Chloe Murphy’s lawsuit alleges that Northside ISD favored football more than cheerleading. The suit alleges that the district pours resources into football, including significant efforts to provide for student safety, whereas the all-girl cheerleading squad at Clark High School was inadequately supported. According to the suit, this was why the plaintiff was required to do 150 “frog jumps” in sweltering heat, causing physical injuries. All because she was late for practice.

The court dismissed the constitutional claims. To hold the district liable for constitutional violations in a case like this the plaintiff has to show that board policy, or clearly established custom, led to the student’s injuries. But the term “frog jumps” appears nowhere in NISD policy and in fact, the district’s policies prohibit the use of exercise as a form of punishment. So there was no basis for district liability under the Constitution.

What about Title IX? That’s where the plaintiff alleged that the district favored football more than cheerleading. The plaintiff tried to make a sex discrimination issue out of that, but the effort failed:

…Plaintiff’s allegations at most demonstrate a discrepancy between sports.

The court noted that this same argument (by the same lawyer) had been dealt with previously in a case involving a dance team. The court quoted the earlier opinion:

As there are myriad differences between football and the dance team besides the gender of the majority of each activity’s participants, this is not differential treatment of similarly situated individuals. Title IX liability does not arise based solely on the fact that different sports teams might require different treatment based on the unique training, safety, performance, and other specific factors related to each.

It's Murphy v. Northside ISD, decided by the federal court for the Western District of Texas on February 16, 2023. It’s located at 2023 WL 2060744. I’m pleased to let you know that Katie Payne from our firm’s San Antonio office was the lead attorney on this one.

DAWG BONE: TITLE IX RECOVERY REQUIRES PROOF OF INTENTIONAL DISCRIMINATION.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Elvin Houston and Eileen Costello have come up with an intriguing title for the webinar they will be doing next week. Here are the particulars:

DATE: April 12, 2023, 10:00 a.m.
TITLE: Three Special Education Myths That Are Making Your ARDs Hard
PRESENTERS: Elvin Houston and Eileen Costello

I’m curious. Aren’t you? Sign up at www.walshgallegos.com.

DAWG BONE: I’M GUESSING THERE ARE MORE THAN THREE “MYTHS.”

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: frog jumps?

The Wilkinson County School District in Mississippi offered Mr. Ward a fulltime teaching contract on June 10, 2020. State law and district policy required that offered contracts be signed and returned within 10 days. If that’s not done, the board can withdraw the offer. Here’s the timeline in our case:

June 22, 2020: The district informed Mr. Ward that his contract was ready to be signed.

June 29, 2020: The district reminded Mr. Ward, and told him it needed to be signed no later than July 1. Mr. Ward was out of town at the time, but informed the district that he would come in to sign the contract as soon as he could.

July 6, 2020: Mr. Ward went to the office and reviewed the contract. He was told that he needed to sign it immediately because the 10-days had already passed. He didn’t sign. He said he wanted more time to think about it.

July 8, 2020: The Board voided the contract.

Almost three years later, March 7, 2023: The 5th Circuit affirmed the ruling of the lower court, holding that the district did not deprive Mr. Ward of due process.

This is not surprising. Teachers are entitled to “due process” when the school proposes to take away a “property right.” Those property rights are framed by state law, local policy, and the contract language. This situation could hardly be more clear. Mr. Ward argued that the constitution required that he be given “a reasonable time to consider” the proposed contract. The court did not delve into the issue of whether 10 days is a reasonable time. It simply noted that Mr. Ward had no property right at all because he never signed the contract, and thus, was not employed by the district.

Texas does not have a similar law but this 10-day window is a common practice in many districts. It makes sense that there be some timeline for teachers to respond to an employment offer, so that the district can make other plans if the teacher decides not to sign.

It’s Ward v. Wilkinson County School District, decided by the 5th Circuit with an “unpublished” opinion on March 7, 2023. However, it is published on Westlaw at 2023 WL 2418212.

DAWG BONE: BE SURE TO COMMUNICATE ANY SUCH TIMELINE CLEARLY.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: mythology about ARDs?

The traditional stay put rule keeps a student in the “current educational placement” while the grown ups wrangle over a possible change of placement. We call it the “traditional” stay put rule because there is another one—a “disciplinary” stay put rule. You can look them up for yourself. The original stay put rule (the one we call “traditional”) is at 34 CFR 300.518. The disciplinary stay put rule is at 34 CFR 300.533. If the “disciplinary” rule applies, the student stays put, but not in the “current educational placement.” Instead, the student stays put in the “interim alternative educational setting” as designated by the ARD Committee.

For today, let’s think about how the traditional stay put rule should affect your thinking about a possible change of placement this late in the school year. Suppose that a teacher asks that a student be moved to a more restrictive setting due to a lot of disruption in the current setting. It’s clear to all that the student’s behavior is a direct result of the student’s disability, but still…the teacher is having a hard time working with the other students in the classroom due to this student’s behavior. Suppose that the school agrees with the teacher that a change of placement is called for. An ARD meeting is held to discuss the matter, and the parent adamantly opposes any change. What now?

Those who have been through Toolbox Training should now be thinking about Tool #3. With Tool #3 the school can make a change of placement to a more restrictive setting over parental opposition. But before pursuing that course of action, the school should talk to its lawyer about how the stay put rule plays out. This is not a disciplinary removal, since the behaviors are a manifestation of disability. That means the “traditional” stay put rule applies. That means the student is not going anywhere until after the special education due process hearing is decided.

It's April 4th. What are the chances that the special education due process decision will be issued before the end of the school year? Slim. So maybe it’s wiser to propose a change that would take place with the start of the next school year. In the meantime, collaborating with the parents about tweaks and adjustments that would be agreeable would be a good idea.

Interested in Toolbox Training? Let me hear from you. We are sure to have a few tweaks and adjustments to the Toolbox after the legislative session, but we can schedule now for next year.

DAWG BONE: LATE IN THE YEAR, THINK ABOUT “STAY PUT.”

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: how much time do you need to consider your contract?

We get a lot of 5-4 and 6-3 decisions from our Supreme Court these days, particularly on the so-called “hot button” issues. But special ed seems to bring them together. For the second time in a row, a case involving a student with a disability produced a unanimous decision.

The major takeaway from the case is that parents who seek a remedy that IDEA does not permit can go directly to court with their case. They are not required to pursue a special education due process hearing first. What remedy does IDEA not permit? Damages in the form of $$$.

So if the parent believes that the school has discriminated against the child by violating the Americans with Disabilities Act or Section 504, and they want to pursue the recovery of damages, they can bypass the administrative hearing process and go directly to court.

Many have predicted that this decision will produce an explosion of such suits. I’m not so sure. The lawyers advising parents about their options will need to think through this carefully. The pursuit of money damages always sounds attractive. Consider the hundreds of billboards we drive by every day touting the lawyers who sue over car wrecks and medical malpractice. But to recover damages under ADA or 504 requires a high burden of proof. The plaintiff has to show that the school intentionally discriminated, that it acted with “bad faith” or exercised “gross misjudgment.” That’s a tough sell.

It's a lot easier to prove that the school goofed by violating a provision in IDEA. If the parent can convince a hearing officer that the school failed to provide FAPE, they can recover what they have already paid in private school tuition. They can obtain an order for compensatory services. They can recover attorneys’ fees. And none of that requires proof that the school acted with bad faith or exercised “gross misjudgment.”

So we will see how this plays out. Will there be more suits filed in court without first pursuing a special education hearing? Certainly. But it may not be the explosion that some are predicting.

This one is Perez v. Sturgis Public Schools, decided by SCOTUS on March 21, 2023. For now it can be found in the IDELR at 123 LRP 10045.

DAWG BONE: “EXHAUSTION OF ADMINISTRATIVE REMEDIES” NOT REQUIRED WHEN PARENTS SEEK A REMEDY IDEA DOES NOT PERMIT. LIKE $$$.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!

S.B. 923 would return us to the days when children who are not legally residing in the State of Texas would not be entitled to a free public education. I know what you are thinking, Loyal Daily Dawg Readers. You are thinking “We can’t do that! The Supreme Court has decided this issue. See Plyler v. Doe! We read about this in the Daily Dawg!”

Exactly right. Since 1982 it has been established law that a state law barring such children from the benefits of public education would violate the U.S. Constitution. The author of S.B. 923 is attempting to get around that roadblock by inserting a clever provision that would require the admission of undocumented children as long as the federal government agreed to pay for them. The bill also would require T.E.A. to try to work out an agreement with the feds whereby they would agree to pay for the education of these children.

Can I see the hands of all those who think that the federal government will agree to facilitate a state’s desire to violate the Constitution?

Thought so.

DAWG BONE: THE DEBATE ON THIS ONE WILL BE INTERESTING.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

It’s Opening Day of the Major League Baseball season! Time for my annual reminder to you Loyal Daily Dawg Readers of how baseball, of all of our games and sports, is the most like life.

First, they play every day. It’s not like our most popular sport, football, where they practice all week but play only once. Big league teams play 162 baseball games from late March to the end of October. That’s almost every day. In a typical week they will have one, maybe two, days off, but otherwise the players have to be ready to play every day. Life is like that. It keeps coming at you. You don’t get to practice much. You have to suit up, show up, and play. Every. Single. Day.

Second, baseball is the only game in which the ball is controlled by the defense. Consider how odd that is in the games we play, and yet, how much like life. As you navigate your life, your job, your family, your finances, all your other relationships and interests, I’m sure you have noticed how much is out of your control. You don’t have the ball. Life does. You just have to be sure that you are ready. I like to watch the infielders in between pitches. They look around the ballpark. Spit. Scratch. Pat the glove. Move the dirt around with the shoe. Spit again. But then, just before the next pitch is thrown they assume the ready position. Most of them actually jump a bit, in anticipation of the ball coming their way. Ready to respond. That’s how we have to show up at our work every day. Ready for what comes our way.

Tonight will be special in Houston, as the Astros celebrate another World Series Championship, and begin the long slog toward what we hope will be another. Mrs. Dawg and I will be, as usual, in attendance. Justin Verlander is gone and Jose Altuve is injured, but the team persists, playing this wonderful game with grit and joy. Happy Baseball Season, Friends.

DAWG BONE: DID I MENTION THAT THE HOUSTON ASTROS ARE THE WORLD SERIES CHAMPIONS?

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: can Texas make an end run around Plyler v. Doe?

Consider the broad spectrum of English language speaking skills. I’m happy to be living in our largely monolingual culture because I’m no good in any other language. I would not rate my Spanish speaking skills to even reach the “getting by” stage. I’m fine with “buenas dias” “gracias” and “dos margaritas por favor” but that’s about it. Put me in a meeting with multiple people speaking rapidly in Spanish about complicated matters and I’m out of luck. I’d have a hard time advocating for my child at an ARD meeting held in Spanish.

We know that there are many people in Texas who are not native English speakers and yet they have enough skills to “get by.” They can ride the city bus, pay the tab at the store, and handle basic interactions with co-workers. But how do people with “getting by” skills manage at an ARD meeting?

It’s becoming a legal issue thanks to an interesting lawsuit percolating along. The suit is not aimed at any school district. Instead, the sole defendant is T.E.A. The accusation is that T.E.A. has set a standard for providing interpretive help at ARDs that is in direct conflict with the federal standard.

The federal regulations require state agencies to “take whatever action is necessary to ensure that the parent understands the proceedings of the IEP Team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.” 34 CFR 300.322€.

It would be crazy to take that statement literally. Think of the millions of people who speak excellent English even though it was not their first language. Henry Kissinger and Arnold Schwarzenegger come to mind. Do you think they’d need an interpreter at an ARD? Not likely.

Then there is the Texas regulation which requires that documents be provided in a person’s native tongue if they are “unable to speak English.” 19 T.A.C. 89.1050(f). If “unable” means completely unable to speak a word of English, then it is equally crazy. Surely the person whose English vocabulary is 50 words or fewer needs some help at an ARD.

The lawsuit against Commissioner Morath alleges that “unable to speak English” violates the federal standard and disregards the needs of all of those parents who can say “hello” and “thank you” and “have a good day” but not much else.

The court refused to dismiss the case. T.E.A. made two arguments. First, it argued that the plaintiff should have to “exhaust administrative remedies” by pursuing a special education due process hearing. The court rejected that, noting that such an effort would be futile, since the hearing officer would be unable to override a state regulation.

The Agency’s second argument was along the lines of “don’t sue us. Sue the school districts.” The Agency pointed out that it did not directly communicate with parents, nor did it prevent local districts from being as generous as they wanted to be with the provision of interpreters. The court rejected that argument also, noting that IDEA makes state agencies responsible for ensuring that parents can meaningfully participate in ARD meetings.

So the case will continue and the Dawg will keep an eye on it. This particular lawsuit was predictable, given the mismatch between Texas and federal regulatory standards. We know how that conflict will be decided. In the meantime this is an issue that calls for some attention at the local level. When we speak of “meaningful” parent participation, there is nothing more important than helping out those parents who are not comfortable or fluent in English.

It's Garcia v. Morath, decided by the federal court for the Western District of Texas on __________, 2023. It’s cited in Special Ed Connection at 82 IDELR 106.

DAWG BONE: PARENTS WITH ONLY “GETTING BY” SKILLS IN ENGLISH NEED SOME HELP AT AN ARD MEETING.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Opening Day!

Is expulsion ever mandatory? Is DAEP ever mandatory? Of course that word does pop up in Chapter 37 of the Education Code. Our state law neatly divides student misconduct into those that call for a “mandatory” penalty vs. those that make the consequence “discretionary.” So it is not too surprising that many campus administrators use that language in talking to parents. “I have no choice in the matter. This is a mandatory offense. It’s automatic.”

Is it really?

The term “mandatory” has always been in an inherent conflict with IDEA. Loyal Readers of the Daily Dawg, and particularly Toolbox Tuesday, are well aware of how discipline works under IDEA. You will not find the word “mandatory” there at all. In fact, IDEA requires continued services to students with disabilities even after they have committed an offense which would normally call for expulsion. Furthermore, neither expulsion nor assignment to DAEP is available for the student whose behavior is a manifestation of disability. So there is nothing either “mandatory” or “automatic” if the student is in your special education program, or covered by Section 504.

As to the rest of the students, you have to consider T.E.C. 37.001(a)(4). It requires that “consideration will be given” to each of six factors when administrators are contemplating suspension, DAEP, expulsion or JJAEP. And here’s the kicker: it requires administrators to consider the six factors regardless of whether the decision concerns a mandatory or discretionary action.” (Emphasis added).

Those six factors are: self-defense, intent, disciplinary history, disability, being in the conservatorship of the state, or being homeless.

So nothing is “automatic” with student discipline; nothing is “mandatory for students with disabilities; and nothing is “mandatory” for general education students until the six factors are considered.

DAWG BONE: LET’S BE CAREFUL IN TOSSING AROUND THESE WORDS.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: do you have “getting by” skills in another language?

Claims of a hostile work environment are usually aimed at the boss. But Ms. Walker, a teacher in the Harmony Public Schools, was accused of harassing her colleagues to the point that they complained to the administration that their fellow teacher had created a hostile work environment. Sounds like a good plot line for Abbott Elementary!

The administration put Ms. Walker on paid leave and did an investigation. The conclusion was that Ms. Walker was “unnecessarily confrontational, threatening, and with the intent/effect of bullying and intimating [sic] coworkers.” The administration charged Ms. Walker with creating a “toxic work environment which was unacceptable.” She was fired.

Her subsequent lawsuit was unsuccessful and would not normally merit mention here since it was based on a simple failure to produce evidence, rather than any interesting or new legal nugget. However, the fact that teachers report that a fellow teacher has singlehandedly created a “toxic work environment” make this one Dawgworthy.

It’s a reminder that playing well with others is an essential function of the job. Policies adopted in most districts reflect this. Check out your DFBB (Local) which lists all the reasons why a teacher’s contract might be nonrenewed. It probably includes “Failure to maintain an effective working relationship, or maintain good rapport, with parents, the community, or colleagues.”

This one is Walker v. Harmony Public Schools, decided by the 5th Circuit on February 22, 2023. It’s cited at 2023 WL ?????.

DAWG BONE: IT TAKES A VILLAGE TO EDUCATE A CHILD, BUT A SINGLE INDIVIDUAL CAN CREATE A TOXIC WORK ENVIRONMENT.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!