Dear Dawg: Somebody told me that if a student makes a “credible threat” we can take disciplinary action without having to comply with IDEA procedures.  True? I don’t remember this from your Toolbox presentation.  FAULTY MEMORY?

DEAR FAULTY MEMORY?  We don’t think your memory fails you.  As we explain in the Toolbox, the school can take immediate disciplinary action for up to 45 school days regardless of the outcome of the manifestation determination in three “special circumstances.”  Those involve 1) possession of weapons; 2) possession of drugs; 3) inflicting serious bodily injury. Verbal threats in the absence of a weapon, regardless of how scary, do not come within those three special cases.

Of course there are short term actions that are available, such as a three-day out of school suspension, and principals can assign students for a short period of time to a setting in which they will continue to receive services. But long term removal based on a verbal threat or a social media post?  Not until the ARD has determined that the behavior is not a manifestation of disability.

This is discussed in detail in the Toolbox workshops, an all day presentation providing ten “tools” you can use when dealing with difficult disciplinary situations.  Let me know if interested!

DAWG BONE: THERE ARE THREE “SPECIAL CIRCUMSTANCES” BUT NONE OF THEM INVOLVE PURELY VERBAL THREATS.

 Tomorrow: don’t fall for a setup!

The school district reduced Mr. Alaniz’s overall compensation when it reduced his supplemental non-teaching duties. The district thought this was OK, since the salary for teaching remained the same. But Commissioner Morath thought otherwise, and concluded that the district had improperly reduced an educator’s salary after the penalty-free resignation date.  This decision has important implications for your teacher contracts, particularly those that involve dual assignments.

Donna ISD employed Mr. Alaniz as a teacher, and “Athletic and PE Coordinator.” He had served in this dual capacity for several years, with his salary set out in separate categories.  The largest amount was for the teaching, with the “supplemental duties” bumping up his overall compensation.

On the first day of instruction in 2017, the district made some changes. Some of Mr. Alaniz’s supplemental responsibilities were eliminated and others were reduced.  Thus the district dropped his compensation by $8,780—an overall reduction of 11%.  Mr. Alaniz filed a grievance and took it to T.E.A.

In his decision, Commissioner Morath lays out the two basic ways in which schools can employ someone in a dual capacity. You can do it via a single, unified contract, such as “Teacher/Coach.” Or you can offer a teaching contract governed by T.E.C. Chapter 21 and set out all “supplemental duties” in a completely separate agreement, which would be an “at-will arrangement.”  In this case, the district thought they had the latter arrangement. The Commissioner concluded, however, that the contract was ambiguous as to supplemental duties. After quoting the critical paragraphs in the contract, the Commissioner observes:

These paragraphs are contradictory and create ambiguity.  Although paragraph 5.4 states that Petitioner’s contract “does not cover assignment of or payments for supplemental duties, paragraph 5.4 also provides that the district may assign supplemental duties, paragraph 5.3 states that the District has the right to assign or reassign additional duties at any time, and paragraph 6.1 indicates that the salary includes all assigned duties.  Paragraph 5.1 refers to positions, plural, suggesting that the contract covers more than one position.

The Commissioner also cited the Pay Schedule that the district produced, in which:

The separate elements of his pay were presented to Petitioner as one package. There is nothing on the Pay Schedule or in the contract itself that would lead a reasonable person to believe that Petitioner was free to accept or reject any portion of that document.

Bottom line: the contract was ambiguous. Ambiguous contracts are interpreted “against the drafter,” which was the school district.  So the Commissioner went with Mr. Alaniz’s interpretation, which was that this was a unified, Chapter 21 contract.  That being the case, the district could not unilaterally reduce the man’s pay after the penalty-free date.

HR directors should get with their lawyers after this decision and discuss the basic language for teacher contracts.  In particular, the Commissioner noted that key terms lacked definition.  These were “assignment,” “supplemental duty” and “additional duties.”

The case is Alaniz v. Donna ISD, decided by the Commissioner on July 13, 2018.  It’s Docket No. 029-R10-02-2018.

DAWG BONE: TIME TO REVIEW THOSE TEACHER CONTRACTS BEFORE NEXT SPRING.

 Tomorrow: Toolbox Tuesday discusses “credible threats.”

Before you head out to the Friday Happy Hour consider that question: can you serve booze at a facility owned by the school?  We actually have an Attorney General’s opinion on this subject from 1998.  In LO-98-002, the AG’s office told us that you may serve alcohol at a facility owned by the school district if it is leased out to another entity and is not located on the grounds or a building of a “public school.”  The question concerned the Student Activities Complex owned by Socorro ISD. The folks in Socorro wondered if they could lease the facility to non-school groups, and allow them to serve alcohol.  Assistant AG Rick Gilpin said that they could. We found this opinion at 1998 WL 51094.

So how bout that!

DAWG BONE: NOT DURING SCHOOL HOURS!

See you next week, Loyal Readers!

Enough of all this legal stuff.   Today we offer a few excerpts from “F for Effort! More of the Very Best Totally Wrong Test Answers.”

Q: Name four animals that belong to the cat family.

A: Momma Cat. Poppa Cat. Two Kittens.

Q: Where is Chicago?

A:Fifth place.

Q:What did Paul Revere say at the end of his famous ride?

A: “Whoa!”

Q: In what circumstances does the fourth act of Hamlet begin?

A: It begins right after the third act.

Q: How many wars were waged against Spain?

A: Six.

Q: Enumerate them.

A: 1, 2, 3, 4, 5, 6.

DAWG BONE: WRITING ABOUT THE LAW CAN GROW TIRESOME.

 Tomorrow: Can you serve booze at a school district facility?

When the fighting over the IEP, the IEE, the evaluation, the placement and all that is over, sometimes there is one more fight to be endured: who just won?  That’s what was at stake in a case recently decided by the 5^th Circuit.

The parents claimed that they were entitled to the payment of their attorneys’ fees because they were the “prevailing party.”  The hearing officer who originally heard the case had ordered the school district to add “autism” as a disability category for the student.  The hearing officer ruled in favor of the district on all other issues. The student’s IEP was good.  She received FAPE. The district’s evaluation was properly done.  The parents were not entitled to an independent evaluation at public expense. But the hearing officer did order the district to add “autism” as a disability category, and to review the student’s IEP in light of this change.

The district did that.  The paperwork was changed to indicate that the student had autism, as well as an intellectual impairment. The ARD Committee reviewed the student’s IEP with this new diagnosis in mind and made the following changes: zero. The ARD Committee concluded that the new diagnosis did not warrant any changes to the IEP. The IEP already incorporated strategies from the “autism supplement.”  School participants at the ARDC meeting felt that everything was good as it stood, and “Neither [the student’s] parents nor her counsel offered any suggestions for further altering her plan.”

The parents claimed that the hearing officer’s order made them the “prevailing parties” and thus the district should pay for their attorney.  Nope.  The 5^th Circuit ruled that the hearing officer’s ruling was “the type of ‘de minimis’ or ‘technical victory’ that the Supreme Court has found so insignificant as to not create prevailing party status.”

Why would the court say that?  The key point in this case is a familiar one in special education disputes: the label is not as important as the services that are provided.  This is a great example of that. The district changed the label, which caused it to change nothing about the IEP. The IEP was good with the old label; and good with the new label.  Key Quote:

“The IDEA concerns itself not with labels, but with whether a student is receiving a free and appropriate public education.”  Heather S. v. State of Wisconsin, 125 F.3d 1045, 1055 (7^th Cir. 1997). The order at issue concluded that Lauren’s existing plan provided precisely what IDEA promises—a FAPE—regardless of her diagnosis.  We conclude that the order’s alteration of her diagnosis alone did not confer prevailing party status on Lauren.

The case is Lauren C. v. Lewisville ISD, decided by the 5^th Circuit on September 14, 2018.  We found it at 118 LRP 38037. I’m pleased to report that the district was represented by our firm in this case.  Nona Matthews and Gigi Driscoll took the lead on this one at the local level, and Meredith Walker handled the 5^th Circuit appeal.

DAWG BONE: IT’S IMPORTANT TO GET THE LABEL RIGHT.  IT’S MORE IMPORTANT TO GET THE SERVICES RIGHT.

 Tomorrow: just for laughs.

Do you ever think about what time of the school year might be the optimal time to propose a change of placement for a student?  Of course there is no such thing.  Educators should propose a change when it’s the right thing to do, regardless of what season we are in. But in the Toolbox Training, a full day program focused on serving students with disabilities, we discuss the implications of making such a proposal too soon or too late.

This mostly comes up when we are discussing Tool #3—an Educational Change of Placement Without Parental Agreement.  When the parent disagrees with the proposed change, the district has to be prepared to defend its decision in a due process hearing. And it should consider how the “stay put” rule will come into play.

If the move is to an MRE (More Restrictive Environment) the district needs to show that it has made a good faith and consistent effort to serve the student in a less restrictive environment. Has the district met with the parents to brainstorm solutions? Has the administration looked for additional supplementary aids and services that might help the teacher? Have we given this placement a fair trial? Enough time to get past the rough patches? Thus when we are early in the fall semester it is usually too soon to seek a change.

When considering a change of placement that the parent does not support you always have to consider the “stay put” rule, but this is perhaps even more important in the spring semester. Consider: if the parent requests a due process hearing to halt a proposed change of placement in April, or even March, chances are very good that the hearing will not be concluded until after the end of the school year.  The “stay put” rule will keep the student in the current placement for the remainder of the year. Do you really want to have that fight?  It might be wiser to propose a change to take effect with the next school year.

Let me reiterate: you should propose a change of placement when it’s the right thing to do, but these are some factors that you should think about.  In the Toolbox Training, we walk through some scenarios that give you the opportunity to reflect on such matters.

DAWG BONE: FOLLOW THE GOLDILOCKS PRINCIPLE: NOT TOO SOON.  NOT TOO LATE.  JUST RIGHT.

Tomorrow: when are the parents the “prevailing parties” in special education litigation?

Holly Hall was standing in the hall during lunchtime passing period in McAdams Junior High in Dickinson ISD.  She was talking to another teacher, and never saw the kid coming.  The kid accidentally bumped into her, knocking Ms. Hall to the ground.  The teacher had a broken ankle and filed for assault leave.

She got it, but only after appealing to the Commissioner. A school employee can get assault leave (which is paid!) if the person suffers physical injuries due to an assault that occurred while performing job duties.   But the school board denied her request, reasoning that “the event leading to your fall is not considered assault.”  The Commissioner reversed that decision. He ruled that it was an assault.

There are five lessons to be learned from this one.

First, an assault is not necessarily an intentional act.  If I intentionally inflict bodily injury on you I’ve committed an assault. But I’ve also committed an assault if I “recklessly” cause your injury.  In this case, the student who bumped into the teacher was deemed “reckless.”

Second, you have to examine all of the facts before deciding if an injury was caused “recklessly.”  Critical to the decision in this case was the fact that the student was walking backwards, rapidly, in a crowded hallway. He could not see where he was going.  That’s why the Commissioner considered it “reckless.”

Third, the age of the student matters.  This kid was a 7^th grader. The Commissioner concluded that the average 7^th grader should know better than to walk rapidly, backwards, in the hallway during lunchtime passing period. The same might not be true for a 1^st grader.

Fourth, our assault leave statute is a “remedial” statute, meaning that it should be “construed broadly.”  Give the benefit of the doubt to the injured teacher.

Fifth, it’s probably not a good idea to blame the victim.  The school district argued that the teachers in the hallway should have been watching out for students who might bump into them. The Commissioner characterized this argument as “a misplacement of blame for the incident on the victim.”

The case is Hall v. Dickinson ISD, decided by the Commissioner on July 24, 2018. It’s Docket No. 027-R10-01-2018.

DAWG BONE: SAVE THE MOONWALKING FOR YOUR DANCE MOVES.

Tomorrow: Toolbox Tuesday discusses the timing of a change of placement.

The school board in Webb CISD censured one of its own board members and barred him from any district property for a period of one year.  Later, the prohibition was extended for another year. So for two years a member of the board could not set foot on district property. There were only two exceptions: he could attend board meetings, and he could attend parent-teacher conferences.  Thus the board member was barred from Friday night football games and all other extracurricular activities.

Can they do that?  Commissioner Morath has ruled that they can.  The Commish ruled that he did not have jurisdiction to review the censure.  The board member claimed that the board “abused its discretion” in censuring him. The Commissioner ruled that he does not have jurisdiction to even consider that argument.  His jurisdiction is limited to cases alleging a violation of our school laws.  The censure may have been an abuse of discretion, but it was not a violation of the school laws of Texas.

What about this “no football games for you” requirement?  Isn’t that un-American, un-Texan and unlawful?  The Commissioner ruled that it was lawful, and did not discuss anything else.  The board member noted that we now have a statute (T.E.C. 37.105) that spells out the reasons why a person might be barred or ejected from school property.  Doesn’t that limit the power of school boards to bar a person from school property? The Commissioner noted that the Chapter 37 statute is about the power of school administrators to bar an unruly person. The board, on the other hand, is the owner of all district property, and can bar any person from its property for any non-discriminatory reason.

The board enjoys the same rights of ownership as any other owner of property.  I don’t have to have a good reason to tell you to get off my land—I can just tell you to get off my land. If you don’t go, you are a trespasser. The same goes for the board.

Pretty interesting doings in Webb CISD.  The case is Salinas v. Webb CISD, decided by the Commissioner on July 6, 2018.  It’s Docket No. 034-R10-08-2017.

DAWG BONE: I’M GUESSING THEY ARE NOT GETTING A LOT OF 7-0 VOTES THESE DAYS.

 Enjoy the weekend!  We will be back with more Daily Dawg on Monday.

John Doe and Jane Roe (not their real names!) met at a fraternity party at the University of Michigan. The theme of the party was “Risky Business,” which turned out to be prophetic.  I suspect you sharp readers already know where this story is headed.

Yes, they had sex.   Yes, there was a considerable amount of alcohol involved.  Yes, she claimed rape. Yes, he said it was consensual.  The frat bros supported Mr. Doe’s story. The sorority sisters supported Ms. Roe’s.

The school deployed an investigator who interviewed the two parties along with 23 other witnesses. The investigator found in favor of John Doe and recommended that the university should not take disciplinary action against him.

Ms. Roe appealed this recommendation to the Appeals Board, which reversed the decision. The Appeals Board ruled that Mr. Doe had engaged in sexual misconduct. The next phase was the determination of punishment.  “Facing the possibility of expulsion,” the court tells us, “Doe agreed to withdraw from the university. He was 13.5 credits short of graduating.”

Doe filed the lawsuit against the university claiming that its procedures violated the Constitution and Title IX.  He made note of the fact that the Appeals Board made its decision after two closed door sessions. The Board interviewed no witnesses and considered no new evidence. It just determined that the investigator came to the wrong conclusion.  In particular, Mr. Doe complained of the fact that he never had the opportunity to cross-examine Ms. Roe.

The 6^th Circuit Court of Appeals held that the University violated Mr. Doe’s right to due process by denying him the opportunity to cross-examine.   The court noted that this was a situation in which credibility of witnesses was a critical factor. Key Quote:

If a public university has to choose between two competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.

The court also held that Mr. Doe had alleged a plausible Title IX violation. The theory Doe offered was that the university had reached an erroneous outcome because of his sex.  The suit alleges that the university was under pressure from the federal government, media and advocacy groups to be more responsive to complaints from females of sexual harassment.  The court held that there was enough there to allow this claim to go forward. For example, the court noted that the Board discredited all of the male witnesses and gave credence to the women.  The initial investigator who actually interviewed all these witnesses found in favor of Doe, but the Board “by contrast, made all of these credibility findings on a cold record.”

This is an important decision from a high level court, but it does not have major implications for Texas public schools.  The decision is about due process in higher ed, and specifically in sexual misconduct cases.  However, I feel sure that the folks in the Department of Education will study this case carefully. DOE is about to issue new regulations for Title IX.  This case strongly suggests that those regulations will have to include a right of cross-examination as an element of due process.

All of us will be impacted by the new Title IX regulations, as they will apply to K-12 public schools as well as colleges and universities. So stay tuned.

The case is Doe v. Baum, decided by the 6^th Circuit Court of Appeals on September 7, 2018.  We found it at 2018 WL 4265634.

DAWG BONE: MIGHT BE BEST NOT TO GO TO A “RISKY BUSINESS” FRATERNITY PARTY.

Tomorrow: Can you bar a board member from the football game?

I got a text from a friend recently who is a teacher in a local school district. The text exchange went like this:

Teacher: Hey! One of the lawyers in your firm is talking to our faculty today.

Me: And?

Teacher: We’re not supposed to have sex with the kids!

Well, I’m glad that point was well made.  I’m confident that my colleague’s presentation went into some detail about this.

Telling school staff not to have sex with the kids is a good start, but only that. We have to dive into the weeds on this.  We have to talk about “boundary violations.”  We know from research that the sexual misconduct that occurs in schools is most often preceded by a careful cultivation of the student, along with some testing of boundaries.  It’s called “grooming.” The wise administrator interrupts boundary violations and takes action right then, without waiting for things to escalate.

To do that, you have to clearly define what you mean by a “boundary violation.”  I came across some training material about this recently.  I was impressed with the specificity the materials provided. These material were developed for people working with children in a church ministry. The materials provide a specific list of things that are OK and things that are not. For example:

OK:  Verbal praise.  Brief side hugs or arm around shoulder.  Brief pat on the upper back or shoulder.  High fives, hand slaps, fist bumps.  Holding hands with small children.  Sitting beside small children.  Kneeling or bending down for a brief hug with small children.  Brief touching of hand, face, head, shoulder, or arm.

NOT OK: Initiating embraces, or long or inappropriate embraces.  Holding a child over 3 in your lap.  Touching any part of the leg, buttocks, chest or genital area.  Being alone in an isolated area.  Comments that relate to physique, body development, express affection.  Engaging in the following when in the presence of minors: swearing, using vulgar language, possessing or displaying sexually oriented or morally inappropriate materials.  Discussing sexual activities or engaging in sexually oriented conversations.

I think that’s a pretty good start.

DAWG BONE: REGARDING BOUNDARY VIOLATIONS, SPELL IT OUT. 

 Tomorrow: A “Risky Business” frat party….