Hello, Dawg Readers. Jim warned you this change was coming, but I think it is important you understand from the beginning that while I will be resisting the urge to make the obvious dog gender joke in this instance, I cannot always be counted upon to resist such obvious low-hanging fruit. Consider yourselves warned.

The fact is, the Dawg will be speaking with not one but two female voices this summer: mine (Christine Badillo’s) and Jennifer Childress’s infinitely classier and smarter voice.  We are both WGTRK lawyers, both moms (we have seven children between us), and we are both hoping to make Jim proud and not get into too much trouble while he’s on vacation.

On this post-election Monday, some of you are probably considering what changes are in store for you and your school district this summer – one or two new trustees to work with or maybe even tens of millions of dollars in bond projects to commence.  If any of these prospects is as daunting to you as temporarily filling in for the legendary Jim Walsh is for me, let’s just take a moment and a deep breath and remind ourselves that this is going to be fun!  Or at least we can hope so.

Oh and btw, (Jim also promised you a younger voice) if for any reason you aren’t completely satisfied with this temporary change to Dawg Blog authorship, just don’t call Jim okay?  As we will see tomorrow, calling the 800 number doesn’t make you a whistleblower…

DAWG BONE:  A LITTLE CHANGE CAN BE A GOOD THING!

 Tomorrow: Toolbox Tuesday is also on a Break!

 DEAR DAWG:  Rumor has it that you are heading out to pasture.  True?  SAY IT AIN’T SO.

DEAR SAY IT AIN’T SO: It ain’t so.  But what is true is that the Dawg is going to rest in the Dawg House for the next three months.  I’m taking a break from writing the Dawg as well as other professional duties for a bit.  There are exceptions to this.  I will be moderating and speaking at three Legal Digest conferences: on special education in San Marcos on April 26 and in Arlington on May 2; and at the principals’ conference in Austin on June 12.  Other than that, look for the Dawg at the local swimming hole, not in the office.

But we have good news for you readers!!  The Daily Dawg will be continued by attorneys Christine Badillo and Jennifer Childress, both of whom possess that combination of legal skills and sharp wit that produces good writing.  I think it’s high time that the Daily Dawg speak with a female voice, not to mention a younger one.  I am confident that the Dawg for the next three months will be relevant, helpful and occasionally funny.  A little snarky sometimes too.  So y’all enjoy.  As for me….I’ll be back in late July.

DAWG BONE: LOOKING FORWARD TO A SUMMER BREAK.

 You may recall that in 2015 the legislature enacted several reforms in how our accountability system works.  Among other things, our lawmakers had mercy on children subjected to overly long STAAR tests.  The tests were to be “designed” so that 85% of kids in grades 3-5 could finish the test in 120 minutes; and 85% of the kids in grades 6-8 could finish in 180 minutes.  But this put the squeeze on T.E.A., which acknowledged that it did not have the time to re-design the tests prior to administration of STAAR in the spring of 2016.

This has now led to litigation.  Several parents alleged that their children did not perform satisfactorily on the tests in the spring of 2016.  As a result the children were automatically categorized as “at risk” and subjected to assignment to accelerated instruction. They sued Commissioner Morath in his official capacity.  They did not seek damages, but rather, a declaration in their favor and an injunction for the future.

The court held that the parents had properly alleged that the Commissioner had acted “ultra vires,” meaning that he had exceeded his legal authority, by ordering the administration of a test that failed to meet the requirements of the law.  Thus the court retained jurisdiction of the case and denied the Commissioner’s plea to the jurisdiction.  Onward we go.

The case is Morath v. Lewis, decided by the Third Court of Appeals on March 29, 2018.  We found it at 2018 WL 1527875.

DAWG BONE: CHALK UP A WIN FOR THE MOTHERS AGAINST DRUNK TESTING!

 Tomorrow: the Dawg makes an announcement…

 A little guy named C.B.D. got off to a rough start in kindergarten.  On August 25, 2016, the little boy was injured at Wilson Montessori Elementary School in the Houston ISD.  When his father arrived at the school he found the boy in the principal’s office where he was being restrained by the school nurse.  There was blood on the boy’s clothing and bleeding around his lower teeth. The dad took C.B.D. to the dentist where three teeth were removed.  The dentist diagnosed a fractured jaw.

How did this happen? Well…we don’t know.  Neither does the dad, and that’s why he filed a “pre-suit” against the district, seeking to conduct an “investigatory deposition” of a representative of the district.

This is a rarely used procedure, authorized by Texas Rules of Civil Procedure 202.  The rule allows a party to seek court approval for a pre-suit deposition to 1) perpetuate or obtain testimony for use in an anticipated lawsuit; or 2) investigate a potential claim or suit.  In this case, the dad was investigating a possible claim.  He did not know if the facts would justify a lawsuit, nor did he know who would be the proper defendants in such a suit.  He sought the deposition to learn more about exactly what happened.

The district responded with a “plea to the jurisdiction” arguing that the court should deny the request and toss the “pre-suit” out.  HISD based this on the fact that there was no motor vehicle involved in this incident.  Whatever happened to the five-year old happened in the school building. The district reasoned that it can only be held legally liable for personal injuries that arise from a motor vehicle accident.  Thus the argument was: no motor vehicle = no claim.  No claim = no jurisdiction.

That argument might have worked if HISD was the only potential target of a legal claim.  But the dad pointed out that his “investigatory deposition” might reveal that school employees were negligent or excessive in handling the boy; or that a non-employee may have been responsible.  Thus there were potential defendants that the court would have jurisdiction of.  Based on that, the court denied the plea to the jurisdiction.  Dad will get his deposition and we’ll see what happens after that.

The other interesting angle in this case involved the surveillance videos that may have captured the student’s injury.  The dad alleged that the district denied him access to these videos.  In court, the district asserted that the videos had subsequently been “overwritten” but provided no evidence in support of this.  Parental access to surveillance videos is a legal issue that can only be resolved by reviewing the specifics of the situation.  It’s a good idea to call your school lawyer whenever you have a parental request for such access.

We’ll keep an eye out for this one if there are further developments.  The case is Houston ISD v. Durrell, decided by the 14^th Court of Appeals on March 29, 2018.  We found it at 2018 WL 1528336.

DAWG BONE:  “PRE-SUIT DEPOSITIONS” CAN BE ORDERED AS PER RULE 202, TEXAS RULES OF CIVIL PROCEDURE.

 Tomorrow: How long is the STAAR Test?

 Did you know that May 1 is Law Day?  Well, it is.  So you should find a lawyer to hug.  Surely you know a lawyer who deserves a hug.  But even the lawyers who don’t “deserve” a hug would welcome one.  So give thanks for living in a country governed by the law, where we resolve our disputes in a (mostly) peaceful and non-violent way.

On top of it being Law Day it is Toolbox Tuesday—a great day for me to remind you that the Toolbox provides ten “tools” that comply with our special education laws and enable campus administrators to serve students appropriately while maintaining safety for all.

It’s Law Day.  It’s Toolbox Tuesday.  It’s the Dawg’s birthday.  So if you bump into me, I should definitely be the lawyer that you hug.  In lieu of that, cash contributions in any denomination always welcome.

DAWG BONE: HUG A LAWYER!

 Tomorrow: Not the best way to start off in kindergarten….

It seems like the Daily Dawg has reported a number of cases recently in which a school official avoided personal liability by claiming “qualified immunity.”  Reciting the facts of these cases is often embarrassing to the school official because they usually involve bad judgment calls or worse.  But due to the qualified immunity doctrine, public school officials are not personally liable unless they violate “clearly established law.”  The most common description of qualified immunity describes it as protecting “all but the plainly incompetent or those who knowingly violate the law.”

So what kind of facts might convince a court that an educator was “plainly incompetent” or “knowingly violating the law?”

Christina Scott alleged in her lawsuit that her son was yelled at, cursed and intimidated by Mr. McGuire, a teacher, in front of other students. The suit further alleges that after the mother reported this to the principal things got worse. Here is what the suit alleges:

After school the next day, B.P. [the student] entered a school bathroom to change clothes for baseball practice.  Although the bathroom was in a hallway he did not normally use, Mr. McGuire [teacher] followed B.P. into the bathroom and began yelling insults at B.P.  While B.P. was in a stall undressing with his pants down, Mr. McGuire opened the stall door by force. The door hit B.P. and pushed him back into the toilet and back of the stall, causing B.P. numerous physical injuries.  Mr. McGuire then entered the stall, blocking the door, and continued to curse and insult B.P.  Although B.P. pleaded with Mr. McGuire to stop, McGuire “continued to yell at B.P. while B.P. was defenseless with his pants down.”

The federal district court held that Mr. McGuire was entitled to qualified immunity. The court reasoned that beating up a kid in the bathroom stall violated the law, but that this was not “clearly established” at the time.  However, the 10^th Circuit Court reversed that decision.  The Court cited an earlier 10^th Circuit decision that established that “at some point of excessiveness or brutality, a public school child’s substantive due process rights are violated by beatings administered by government-paid school officials.”

Beatings administered by government-paid school officials???? Yikes.  The court concluded that the allegations about Mr. McGuire were close enough to the facts of the earlier case that Mr. McGuire should have known that he was violating a student’s constitutional rights by beating him up in the bathroom stall.

So that’s what it takes to convince a federal court that a public school teacher does not deserve the qualified immunity the law provides. The case is Scott v. Mid-Del Schools Board of Education, decided by the 10^th Circuit on February 15, 2018. We found it at 2018 WL 898590.

DAWG BONE: LET’S ALL TRY TO AVOID BEING PLAINLY INCOMPETENT!

 Tomorrow: Toolbox Tuesday and Law Day!!

 I just have to wonder what the judges on the 5^th Circuit say in private when they have a cheerleader case to deal with.  The court’s opinions are always…judicious.  Respectful.  Not a bit of snark.  But you just have to wonder what happens in chambers.

Rebecca Arceneaux (Yes, it’s a Louisiana case!!) got in trouble when a picture of her turned up on Snapchat.  She was wearing her cheerleader uniform in this picture.  The court judiciously noted that in the picture “her uniform skirt was raised.”

That leaves much room for speculation!  Raised how much? From what angle??  But the court does not go there.  It just tells us that as a result of this incident she was sent to ISS and dismissed from the cheer squad.  She sued, alleging that the school’s cheerleading rules punished girls more harshly than boys who engage in similar behavior.

The court dismissed the case:

To prevail, Arceneaux must prove that she was excluded from the team on account of her being a female student.  She cannot do so.  According to the record, Arceneaux was not excluded from participating in cheerleading because she was a female student.  She was removed from the team because she posed for a photograph, raising her cheerleading uniform skirt, and that photo was posted to the internet.

The court pointed out that this disciplinary action was taken pursuant to the school’s Cheer Discipline Policy, which applied to male and female cheerleaders alike.

The case is Arceneaux v. Assumption Parish School Board, decided by the 5^th Circuit on April 2, 2018. We found it at 2018 WL 1602946.

DAWG BONE: IF THE COURT AVOIDS SNARK, SO WILL THE DAWG.

 The Texas Supreme Court has dismissed the sexual harassment suit filed by former Alamo Heights teacher/coach Catherine Clark.  The case generated two lengthy opinions.  The majority of six justices signed off on a 66-page opinion while the two justices who dissented confined themselves to a mere 40 pages.  What comes through loud and clear in both opinions is that “locker room talk” is not confined to the boys’ locker room.  (All hail Title IX!!)  This was a same-sex harassment case full of vulgar, crude and unprofessional comments from a female coach toward another female coach.  Coach v. Coach.

The case teaches us two key lessons.  First, to prove up a sexual harassment case you have to show that harassing behavior occurred, but that, by itself, is not enough.  You also have to prove up the motivation of the harasser.  And it’s not “sexual harassment” unless the harasser behaved badly “because of” the other person’s sex.

Coach Clark’s suit failed because she could not produce evidence that she was picked on because she was a woman.  Was she harassed?  Boy howdy YES!  But Coach Clark produced so much evidence of how the other coach was rude, crass, ugly and vulgar towards everyone that it weakened her argument that she was picked on because of her sex.  The majority opinion cited the fact that Coach Clark identified over one hundred incidents, while only a handful targeted her as a woman.  Moreover, Coach Clark’s written documentation specifically cited the reasons that she believed she was being picked on: the other coach thought she was “snotty” with a privileged attitude; that she shouldn’t be bringing her small children to the workplace; that she ought to quit her job and be an “Alamo Heights mom.”  In other words, Coach Clark alleged that the other coach bullied and harassed her because she just didn’t like her as a person.  She thought the other coach was jealous of her.  This weakened the argument that she was picked on because of her gender.

The dissent did not see it that way.  The dissenting judge recited the facts alleged in the case but made one key change: the opinion attributes all of the harassing conduct not to “Ann” but to “Andy.”  In fact the alleged harasser was a woman named Ann. The dissenting judges make their point by making the harasser a man.  The point being: if the same conduct was done by a man we would unquestionably view it as sexual harassment.  “Andy” in the dissenting opinion makes numerous comments about the size of Coach Clark’s breasts.  He speculates about whether or not they are real.  He makes vulgar wisecracks about Coach Clark’s genitals.  The dissenting opinion asks us: if a man did that kind of thing, wouldn’t we all agree it was sexual harassment?  So why should courts treat the same behavior differently just because it was done by a woman?

The majority opinion does not dispute that point.  But this leads to the second key lesson of this case: legal analysis of a “same sex” harassment case is different from an “opposite sex” case. Thus in the view of the majority, changing “Ann” to “Andy” is a material change in the facts, leading to a different legal analysis.

The U.S. Supreme Court decided 20 years ago that “sexual harassment” can be done by a person of the same sex.  But the court noted that the plaintiff still bore the burden of proving that the harassment was “because of” the victim’s sex.  SCOTUS outlined three ways this might be done.

First, if the harasser is motivated by sexual desire for the other person and, therefore, makes unwelcome sexual advances.  So a gay man who is attracted to another man in the workplace, and makes unwelcome advances, is guilty of sexual harassment.  But Coach Clark did not allege that the other coach was a lesbian and produced no evidence (in the majority’s view) that sexual attraction was the motivator.

Second, if the harasser shows hostility to persons of their own gender in the workplace.  Consider for example a male doctor who believes that all nurses should be female. When Bob the Nurse shows up, the doc gives him grief.  There was no evidence in Coach Clark’s case like that.

Third, if the plaintiff shows a direct comparison of how the harasser treated men and women differently in the workplace.  Again, Coach Clark fell short on this because her evidence showed that the other coach was hostile and rude to a lot of people—not just women.

This case made the front page of the Austin newspaper!  No doubt, this is because of the colorful facts of the case and the fact that it happened in a middle school.  Indeed, the facts alleged in the case indicate that female coaches can be just as vulgar and crude as the male coaches are sometimes accused of being.

The case is Alamo Heights ISD v. Clark, decided by the Texas Supreme Court on April 6, 2018. We found it at 2018 WL 1692367.

DAWG BONE: YOU’VE COME A LONG WAY, BABY!

 Tomorrow: Cheerleaders! At the 5^th Circuit!!

 The Texas Supreme Court recently ruled in a same sex harassment case involving school employees.  It’s a doozy of a case, generating legal opinions from our state’s highest court in excess of 100 pages.  We’ll tell you about it tomorrow.  But to set the stage for that, we need to go back 20 years to the U.S. Supreme Court’s decision about this issue.

In 1998, SCOTUS unanimously held that our sex discrimination laws apply to sexual harassment by a “same sex” person.  The case involved a roustabout working on an oil platform in the Gulf of Mexico—an all male environment overflowing with testosterone.  Joseph Oncale, the roustabout, complained about how he was treated on the rig and alleged that his employer blew off his concerns.  Eventually he quit his job stating that “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.”  He sued, alleging that he was the victim of sexual harassment.

The 5^th Circuit ruled against him because he was a man alleging harassment by other men.  The court believed that sexual harassment could only occur when a man harassed a woman or a woman harassed a man.  SCOTUS unanimously overturned that decision in an opinion written by the late Justice Scalia.

The Court’s opinion emphasizes causation.  The harassment must be “because of” the person’s sex.  Justice Scalia noted that cases involving men harassing women “typically involve explicit or implicit proposals of sexual activity.” This makes it easy for the court to infer that the harassment is “because of” the other person’s sex.  Justice Scalia then outlines three ways in which an inference of causation can arise in a same sex case:

The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual.

A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.

A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

Bottom line: the plaintiff has to show that the harassment was motivated by the other person’s gender.  This is what turned out to be the decisive factor in the case from Alamo Heights ISD that we will talk about tomorrow. Stay tuned!!  The SCOTUS case is Oncale v. Sundowner Offshore Services, Inc. decided by the U.S. Supreme Court on March 4, 1998.  We found it at 118 S.Ct. 998.

 DAWG BONE: SEXUAL HARASSMENT COMES IN FOUR FLAVORS: MALE TO FEMALE; FEMALE TO MALE; MALE TO MALE; FEMALE TO FEMALE.

 Tomorrow: same sex harassment in Alamo Heights.

 The Toolbox is a full day training program for campus administrators and special education staff who serve students with disabilities.  The focus is on disruptive and/or dangerous student behavior. What options are available to the school?  The Toolbox breaks that question down to ten “tools” that can be used in an effort to serve the student properly while maintaining discipline and order.

When you have a bullying issue, there are a number of tools to consider.  Bullying, obviously, violates your Code of Conduct.  If a student with a disability engages in bullying that is not a manifestation of disability, you have all of the disciplinary options that would be applied to the non-disabled student.  But remember: we have a state law that requires the ARD Committee to “review the conduct” of the student prior to any disciplinary action based on bullying.  See TEC 37.001(b-1).

What if the behavior is a manifestation of disability?  In that case, long term disciplinary options, like DAEP, are not available.  You could ask the ARDC to consider a “change of placement” to a more restrictive environment, if that would be educationally proper.  The Toolbox includes two ways to do that: Tool #2 (with parental agreement) and Tool #3 (without parental agreement).

But I want to suggest another tool for you to employ.  Bullying is behavior that “impedes the learning” of the student and of others.  Whenever the student displays behavior that “impedes the learning” the ARDC is required to consider what positive behavioral interventions, supports and strategies might be useful in curtailing or eliminating the improper behavior.  In the Toolbox, we call this Tool #1—the development of a Behavior Improvement Plan (BIP).  So whether disciplinary action is called for or not, a proactive game plan to address this kind of behavior is almost always a good idea.

If you are interested in Toolbox training, let me hear from you!

DAWG BONE: BULLYING IS A KIND OF BEHAVIOR THAT “IMPEDES LEARNING.” LET’S ADDRESS IT WITH A BIP.

 Tomorrow: Same sex harassment: first, some background….