This is the first day of school for many districts, including Austin ISD where my grandchildren attend. So The Dawg hereby declares this NEW YEARS DAY!! So we wish all of you well as you begin another lap around the track, so to speak.

What will happen this year? A child in the Panhandle will discover that the letters on the page form words that the child can say out loud. She is reading! A 22-year old teacher in the Valley will find out just how hard this business is. But by next May, he will have developed a better set of classroom management skills, and will be thinking….maybe I can do this. A brand new assistant principal behind the Pine Cone Curtain in East Texas will handle her first student discipline matter, her first angry parent phone call, her first classroom observation. A senior, somewhere in the Hill Country, will shed tears while playing the tuba as the band performs at the final home football game. A brand new superintendent in West Texas will deal with some ugly public comment at the board meeting, and then frantically reach out to her mentor to ask: “How do you handle this???”

Teacher lounges all over the state will witness the full range of human emotions—the weeping and gnashing of teeth; out of control laughter; exuberant joy. Some football teams will win state championships. Some coaches will be fired.

As citizens, we will choose new leaders in November. In January, they will come together in Austin. By next May they will pass new laws, some of which we will like, some of which we will not.

At Walsh Gallegos Trevino Russo & Kyle, we will have your backs. We’re ready—at the telephone, at the board meeting, at the inservice, in the courtroom. Let’s work together to make this a good year.

DAWG BONE: READY OR NOT: HERE WE GO!

Tomorrow: Toolbox Tuesday visits an alternative school.

Yesterday we told you about the 10^th Circuit decision in favor of an A.D. who wrote a letter to a judge, seeking leniency in the criminal sentence of the A.D.’s nephew who had pled guilty to manufacturing child pornography and other crimes.  The court held that the man was exercising his right of free speech when he penned that letter, and thus, he should not have been fired.  The school district faces potential liability for wrongful termination.

What about the superintendent? He’s the one who made the decision to recommend the termination of the A.D.  The 10^th Circuit dismissed the superintendent from the case due to the “qualified immunity” doctrine.  Pursuant to that legal doctrine, an individual school administrator is not automatically legally liable for a constitutional violation. The plaintiff has to prove that “the constitutional right at issue was clearly established at the time of the violation.”

Well, it was certainly “clearly established” that school employees have free speech rights. It was clearly established that when a school official speaks out on a “matter of public concern” they enjoy constitutional protection. But that’s not enough. The plaintiff has to show that this general constitutional right was “clearly established” in the particular factual context of the case.  This case addressed the issue of whether or not a sentencing decision in a criminal case is a “matter of public concern.  The court held:

As described above, we hold that a sentencing decision is a matter of public concern for the purposes of the First Amendment. But this proposition was not clearly established in our circuit at the time [the superintendent] acted.

So the superintendent is immune from liability and dismissed from the case.  This seems fair.  After all, in this very case the federal judge at the district court level held that the A.D. was not speaking on a matter of public concern. So if it wasn’t “clearly established” to a federal judge, how can it be “clearly established” to a non-lawyer school superintendent?

The case is Bailey v. ISD No. 69 of Canadian County, Oklahoma, decided by the 10^th Circuit on July 24, 2018. We found it at 2018 WL 3543064.

DAWG BONE: MOST OF YOU READERS ARE PROTECTED FROM LIABILITY BY QUALIFIED IMMUNITY.  YOU SHOULD PUT THIS ON YOUR DAILY GRATITUDE LIST. 

Coach Bailey served as A.D. in School District No. 69 of Canadian County, Oklahoma for seven years and had received outstanding evaluations.  In 2014, Coach Bailey wrote a letter to a state court judge who was considering the sentence to be imposed on a man convicted of various crimes, including the manufacture of child pornography.  One year later, the coach wrote a second letter when the judge was considering a reduction of the man’s sentence.  Both letters were written on school district letterhead.

Why would a coach get involved in something like this? Why would a coach seek a reduction in the sentence of someone who had pled guilty to the manufacture of child porn?

The coach was the man’s uncle.  He was personally convinced of his nephew’s remorse, and firmly believed that he would henceforth be a model citizen.  That’s why.

A former in-law of the coach who was upset about the nephew’s early release and “other family issues” brought all of this to the attention of the superintendent.  Don’t you love family drama????  The superintendent met with the coach, talked it over and ultimately decided that he could no longer trust Coach Bailey’s judgment.   Coach Bailey was fired.

Now the 10^th Circuit has held that Coach Bailey’s letters were protected by the First Amendment.  He was speaking as a citizen, not as an employee.  He was speaking about the sentence to be given to a criminal defendant, which the 10^th Circuit ruled is a “matter of public concern.”

What about the use of district letterhead?  The court noted that Coach Bailey, as well as other district employees, had used district stationery for similar purposes before.  The court was ruling on a Motion for Summary Judgment, and was required to make inferences from the facts that were favorable to the coach.  Thus at this stage of the game, the court concluded that he was fired for the content of his letter—not the stationery.

So the court reversed the lower court’s decision that was in favor of the school district and sent the case back down to the lower court for further proceedings. For our purposes, the key point is the court’s pronouncement that speaking up about the sentence to be given a criminal defendant is protected by the First Amendment.

The superintendent was sued personally in this case. We’ll talk about that tomorrow. The case is Bailey v. ISD No. 69 of Canadian County, Oklahoma, decided by the 10^th Circuit on July 24, 2018. We found it at 2018 WL 3543064.

DAWG BONE: IT MIGHT BE CONSTITUTIONALLY PROTECTED BUT WE STILL THINK THAT IF YOU WANT TO SUPPORT YOUR NEPHEW, THE PORNOGRAPHER, YOU SHOULD USE YOUR OWN STATIONERY.

 Tomorrow: Do you do a Daily Gratitude List?

When I hear the term “strip search” I think of what I see them do on Orange is the New Black or  Cool Hand Luke. Terms like “naked as a jaybird” come to mind, and then my mind spins off into why we think the jaybird is more naked than, say, a grackle.  Anyway, you get the picture. When I hear this term, I’m thinking someone has been required to completely disrobe.

It’s now pretty clear that “strip search” does not necessarily mean completely naked.  This point was made clear by the 5^th Circuit in the case decided this summer in which 22 (22!!) 6^th grade girls were subjected to what the court called a “mass, suspicionless strip search.”

I think it would be wise for administrators to drop the term “strip search” and substitute instead, “underwear search.”  I suggest this because your campus administrators need to understand that they are walking on thin legal ice when they explore a student’s underthings.

We wrote up the 5^th Circuit’s decision in the Daily Dawg on July 9^th, so I’m not going to rehash the entire decision here. I just want to make this one point: if you require a student to loosen her bra, or if you explore the waistband of a student’s underpants, you are conducting an “underwear search.” As a general rule, you should not be doing that.  The court did allow for such searches in rare circumstances, such as 1) when what you are looking for is dangerous; or 2) when you have good reason to believe that the underwear of a particular student is exactly where the “contraband” will be found.

The case is Littell v. Houston ISD, decided by the 5^th Circuit on June 27, 2018. We found it at 894 F.3d 616.

DAWG BONE:  LET’S KEEP THE TERM “STRIP SEARCH” IN THE PRISONS. 

Tomorrow: why would a coach use district letterhead to support a child pornographer?

On Tuesdays here at the Daily Dawg we highlight the laws that pertain to the discipline of students with disabilities.  The Toolbox is a full day training program that offers ten “tools” to address such situations.  One of the tools is a BIP—a Behavior Improvement Plan. In fact, in the Toolbox training, we emphasize that the BIP is the most important tool you have.  Today, we report on a court case that has implications for how you write a student’s BIP.

The case deals with a number of issues, but for today we are just going to focus on the use of “time out.”   Both the special education hearing officer and the federal court ruled that the district handled time out inappropriately.

The student transferred into the district as a 5^th grader.  Right from the start, the boy engaged in disruptive and inappropriate behaviors.  By early October the district was offering a 504 plan, and by January the district offered to do an evaluation for special education services.  The student was found to be eligible and the IEP was approved in March.  Among other things, it included a BIP which contained a lot of familiar language about avoiding power struggles, speaking in a calm voice, offering breaks, a cool down area, etc.

None of that worked. According to the court, the school staff “repeatedly used timeouts, used physical restraints at least eight times and automatic isolations sixteen times.  Additionally campus police were summoned on at least four occasions” and the student was ultimately reduced to a shortened day for the final twenty days of the school year.   The parents withdrew the student, placed him in a private program and sought tuition reimbursement.

They got it.  The hearing officer and the court ruled that the district 1) failed in its child find responsibility by seeking a special education evaluation too late; and 2) denied FAPE by failing to implement the IEP properly. It’s the second part that we want to talk about here.

The court pointed out that “time out” is supposed to be listed in a student’s IEP or BIP “if it is utilized on a recurrent basis to increase or decrease a targeted behavior.”  19 TAC 89.1053(g)(2).  Apparently, there was no mention of “time out” in the IEP or BIP in this case. The staff contended that they were not using “time out.” They called it “take five” or “take ten.” But the judge held that this technique is “time out” and, therefore, should have been identified as a technique on the IEP and/or BIP.

This case points out that you might be putting a student in “time out” even if you don’t think of it that way.  Here is the definition of “time out”:

Time-out means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting (A) that is not locked; and (B) from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.  19 TAC 89.1053(b)(3).

As to the “take five” the court said:

These procedures were mandatory isolations for O.W. away from his regular setting and other students.  As such, these procedures were time-outs, and the use of “take 5” or “take 10” violated O.W.’s IEP.

 Take a good look at that definition again.  It sounds like you are using “time out” if 1) you have a student who has lost “self-control”; 2) you order the student “separated” from other students for a “limited period;” and 3) the student is not locked in.  Notice: it doesn’t say how long the separation has to be, and it doesn’t say how much of a “separation” there has to be.  So a short “sit in the corner” is a “time out.” If that’s going to be done “on a recurrent basis” you have to include it as one of your techniques in the IEP or BIP.

This is the kind of thing we talk about in the Toolbox training. If interested in one, let me hear from you!

This case is Spring Branch ISD v. O.W., decided by the federal district court for the Southern District of Texas on March 29, 2018. We found it at 72 IDELR 11.

DAWG BONE: RECURRENT USE OF “TIME OUT” HAS TO BE LISTED ON THE IEP OR BIP.

 Tomorrow: Let’s talk about a “strip search.”

Tomorrow: Let’s talk about a “strip search.”

We are fast approaching a major milestone for our law firm—35 years!  We opened our doors on September 1, 1983 with three attorneys and a secretary.  We now have five offices in Texas and one in New Mexico.  Like you, we have come a long way in the last 35 years.  And like you, we are excited to begin a new school year and continue our work together.  At Walsh Gallegos we believe that public education makes a difference.  That belief, and the desire to work toward making a difference in our communities, is why we are here today.

We hope you enjoy this short video that celebrates the power of your work—because it matters.

Tomorrow: Toolbox Tuesday looks at Time Out practices.

Yesterday I told you about a preliminary order in a case from New Jersey in which a parent claims that the district is promoting Islam through its social studies curriculum.  The district filed a Motion to Dismiss the case and the judge denied it. Despite that, I’m going to issue a bold prediction here: The district will prevail in this case.

The plaintiff claims that the district is giving short shrift to Christianity and Judaism while promoting the Islamic faith to 7^th graders.  The plaintiff cites the fact that the curriculum includes two videos and a worksheet that “contain materials that members of the Islamic faith use to express religious beliefs or proselytize others.”  Those materials include: “May God help us all find the true faith, Islam. Ameen.”

The judge’s brief opinion tells us that the plaintiff is alleging that her child “has been exposed” to these materials.

Well! Exposing students to a variety of cultures, customs and religions is very much what “social studies” is all about.   Exposing falls far short of proselytizing, or indoctrinating.  A well educated high school graduate should know that the world is full of a wide variety of religions and should be able to tell us at least a little bit about the basic beliefs of the major religions. By any objective standard, Islam is a major religion.

The judge refused to dismiss the case, which was the cautious, judicial thing to do. The court noted that the factual record had not yet been developed. Discovery had not taken place. All that was in the file was the complaint, and the district’s Motion to Dismiss.  My prediction is that when that factual record is developed, the court will support the school’s position, which the court describes as follows:

…the students study world religions as part of their academic education in a class called World Cultures and Geography.  That yearlong class, they say, covers many areas of the world, and embraces such subjects as geography, trade, art, social, economic and political structures, and everyday life, as well as religions and religious texts.  Many religions, they say, are covered, but to study them is not to endorse or promote them.  One unit of the class covers the Middle East and North Africa, and materials concerning the Islamic faith, say defendants, are a necessary part of that unit.

My prediction is based on previous cases. We’ve been through this before.  Courts have consistently upheld the authority of schools to decide what should and should not be in the curriculum, despite disapproval from a parent.

The case is Hilsenrath v. School District of the Chathams. The judge’s opinion on the Motion to Dismiss was signed on June 13, 2018 and can be found at 2018 WL 2980392.

DAWG BONE: EDUCATION IS ABOUT OPENING MINDS. NOT CLOSING THEM.

There is an interesting case brewing in New Jersey in which a parent claims that a school district is promoting Islam.  Jennifer Childress gave you a heads up about this case in the Daily Dawg on June 27^th. Today I want to revisit the case to make some observations about classroom teachers as defendants.

The plaintiff sued the district, the superintendent, the director of curriculum, the principal, the supervisor of social studies and two middle school social studies teachers. I wonder what happened at the dinner table after the teachers found out about the suit.

Q:How was school today, honey?

A: It was good. All of my kids did well on the geography quiz. It was the nurse’s birthday, so we had cupcakes in the teacher’s lounge. The assistant principal asked me to serve on the advisory committee for next year. I got some very nice emails from one of the parents. Oh…and I’ve been named as a defendant in a federal lawsuit!

Despite widespread fear among teachers, they don’t get sued very often.  Lawsuits involving educational matters generally start at the higher pay grades. Superintendents get sued regularly.  Principals and HR directors occasionally. Teachers….very rarely.

But in this case, the plaintiff sued two overworked, underpaid classroom teachers.  Lawyers tend to not take this as seriously as teachers do.  Lawyers deal with lawsuits all the time, and understand how the process works. But put yourself in the shoes of a teacher unfamiliar with legal procedure.  Seeing your name on federal court papers can be terrifying.

This case is in its early stages, and the judge chose not to dismiss the teachers from the suit.  But he strongly suggested that the plaintiff should drop them.  The court noted that if it becomes necessary to issue an injunction “an order directed to the local school authorities should be sufficient,” meaning that it’s really not necessary to name individual social studies teachers.

The judge gave the lawyers a strong hint:

To simplify the administration of this case I direct the parties to discuss a reduction in the defendant roster at their upcoming conference before the Magistrate Judge. They may wish to focus in particular on the necessity, and the pedagogical ramifications, or retaining the two defendants who are middle school social studies teachers.

I read that to mean: leave the teachers out of this.

I expect someone of you are wondering about the merits of this case. Are they promoting Islam in New Jersey?  Tune in tomorrow.

The case is Hilsenrath v. School District of the Chathams. The judge’s order was signed on June 18, 2018.  We found it at 2018 WL 2980392.

DAWG BONE: WE LOVE IT WHEN JUDGES CITE “PEDAGOGICAL RAMIFICATIONS.”

 Tomorrow: Are they really promoting Islam in Jersey????

Score a victory for students in the ongoing T-shirt wars.  A high school student at Liberty High School in Hillsboro, Oregon, wore a T-shirt to school that proclaimed:

DONALD J. TRUMP BORDER WALL CONSTRUCTION CO.

THE WALL JUST GOT 10 FEET TALLER

The principal saw this shirt as promoting a hostile learning environment, especially given the fact that 33% of the students were Hispanic. So he ordered the student to go home, or cover up the shirt. Nope. The kid refused, and thus got suspended.

Well, then. It’s Mary Beth Tinker all over again, right? A student wears a T-shirt carrying a political message that is going to be offensive to some people; refuses to comply with the principal’s directive; gets punished; sues.

In May, a federal judge issued a restraining order, allowing the student to wear the pro-Trump shirt for the rest of the school year. Shortly thereafter, the student graduated.  Now, the district has settled the case with an apology and $25,000.  The district noted that the law in this area is “gray” (no kidding) and that it was only looking out for student safety.  But due to the cost and uncertainty of litigation, the district chose to cut its losses with the apology and a check.

How would this have come out if it had gone to court?  Hell if I know.  But I do know that the district would not prevail unless it could produce evidence of a substantial disruption of school, or at least a reasonable forecast of such a disruption.  Proving that some people, even a lot of people, found the message offensive would not be good enough.  Mary Beth Tinker’s black armband was offensive to a lot of people in Des Moines, Iowa in 1965.  “Offensive” does not cut it.  Nor does the intuition of the principal.  A “reasonable forecast” of disruption has to be based on facts—not intuition, even when that intuitive hunch is based on considerable experience.

DAWG BONE: POLITICAL MESSAGES ARE PROTECTED, WHETHER IN BLUE OR IN RED.

 Tomorrow: What happens when the classroom teacher is named as “the defendant.”

On “Toolbox Tuesdays” here at the Daily Dawg we like to highlight issues concerning disciplinary techniques in dealing with students with disabilities. The Toolbox is a full day training program that describes ten “tools” available to school officials.  Physical restraint is not one of the tools, but it is something that we talk about in the Toolbox training. In particular, we discuss how physical restraint should, or should not, be addressed in a BIP.

So I keep an eye out for court cases involving restraint.  I found a recent one from the 8^th Circuit.    The Bentonville School District (Arkansas) used physical restraint periodically in dealing with two elementary aged students with autism.  The 8^th Circuit held that the district’s use of restraint did not discriminate against the students. Nor did it deprive them of FAPE or their constitutional right to bodily integrity.

Physical restraint is never the favored approach.  On the other hand, schools should make sure that parents understand that restraint may be necessary in an emergency to maintain safety.  In the Arkansas case, the court pointed out that both students had IEPs that provided numerous techniques and interventions designed to address behavioral issues.  Despite all that, the district found it necessary, at times, to get physical with the children.  Consider the behavior of the child identified as “Child L:”

Despite multiple programming conferences and attempts to manage Child L’s recurring misbehavior, from December 2012 until the time the parents withdrew Child L from the District, Child L exhibited behavioral outbursts that ranged from mild disruptions to acts of aggression that resulted in physical harm to several District employees.

Child L’s behavior was summarized like this:

The behavior included hitting; spitting; throwing objects, furniture, school supplies, and books; yelling; biting; pushing walls and objects; scratching; pulling and ripping out hair; head-butting; pulling clothing; attempting to insert spit into an electrical outlet; disrobing; attempting to choke himself by putting a finger down his throat; running around the room; banging on doors and glass; pushing over cabinets; dumping out containers; ripping handles off closed shelves; kicking computer monitors, chairs, and desks; and urinating on the carpet.

All that in about two months.  After first trying interventions set out in the IEP, the district used restraints.

Courts will scrutinize the use of restraint carefully.  Did the district follow state guidelines? Did the district attempt less drastic interventions first? Did the district comply with the student’s IEP and/or BIP?  All things considered, was the use of restraint reasonable under the circumstances?

These are the things we talk about in the Toolbox. If you are interested in a training, please let me know.

This case is Parrish v. Bentonville School District, decided by the 8^th Circuit Court of Appeals on July 24, 2018. We found it at 118 LRP 30734.

DAWG BONE: REMEMBER: WE USE RESTRAINT ONLY IN AN EMERGENCY, AND ONLY AS LONG AS THE EMERGENCY EXISTS.

 Tomorrow: “The Donald J. Trump Border Wall Co.”