Sometimes I go to a movie because it features a great cast, and then it turns out to be a dud of a movie. It happens with court cases too. I recently recognized a couple of names in a lawsuit. Jay Brim! Rick Arnett!! I know these guys—what are they doing as defendants in a lawsuit?

It’s hard to figure. The suit was filed by Bennie Washington, an unhappy bus driver who used to work for Plano ISD. Ms. Washington was a member of the Association of Texas Professional Educators (ATPE). When she complained about the assignments she was given and assorted other things, such as “disrespect” “mistreatment” and being “cursed out” she tapped into her ATPE membership for legal assistance.

That’s where Rick Arnett and Jay Brim came in. For decades they have provided legal assistance to ATPE members. I know them well and can personally vouch for the fact that both gentlemen are experienced, competent and reputable attorneys, very knowledgeable of school law.

However, that’s not how Ms. Washington saw it. When the district turned down Ms. Washington’s $10 million dollar settlement demand (!) due to her pain and suffering, she took the matter to the EEOC and then to court. Besides the district and the guy who assigned bus routes, she also sued Mr. Brim, Mr. Arnett and the ATPE.

Proceeding without benefit of counsel, the plaintiff had a hard time putting her case together. Ultimately, the federal court tossed the whole thing out for failure to allege facts that would enable the plaintiff to prevail. As to the lawyers, the court pointed out that they were private practice attorneys, and therefore, not “state actors.” Thus there was no basis for liability under 42 U.S.C. 1983. Likewise, it was clear that neither Brim nor Arnett nor ATPE ever employed the plaintiff—thus there was no possible liability under Title VII.

Courts are patient with “pro se” litigants, but eventually, the plaintiff has to allege facts that would amount to a valid lawsuit. That just didn’t happen here. The case is Washington v. Plano ISD, decided by the federal court for the Northern District of Texas on March 27, 2018. We found it at 2018 WL 1477491.

DAWG BONE: YOU HAVE TO WONDER HOW THESE ATPE LAWYERS FELT ABOUT BEING CO-DEFENDANTS WITH A SCHOOL DISTRICT.

A teacher believes that the district is not complying with our state laws pertaining to serving students with dyslexia. She points this out to district leaders.  The district responds by refusing to allow her to attend a continuing education program for which the teacher had previously been approved.

Would that teacher have a good claim for “retaliation”?

We are seeing an awful lot of cases involving “retaliation” of one kind and another.  In this case the teacher did not file suit—she filed a grievance that was ultimately denied by the school board. Then she appealed that to the T.E.A.  The Commissioner concluded that he did not have jurisdiction to hear the case, thus effectively affirming the board’s decision.

The teacher filed her appeal pursuant to T.E.C. 7.057(a)(1), which grants jurisdiction to the Commissioner if a person claims to be aggrieved by the “school laws of this state.”  In this case, the teacher claimed that she was punished for pointing out how the district was not complying with the school laws of Texas.  What the Commissioner hung his hat on was the fact that the “school laws” of Texas do not specifically say “thou shalt not retaliate against a teacher who complains about your failure to comply with the dyslexia laws.”  Here’s the key part of the decision:

Petitioner contends that because she pointed out how the district was violating the laws concerning students with dyslexia, that the district took actions against her, such as not allowing her to attend previously approved continuing education.  Assuming that such allegations are true, and such actions are not condoned, the Commissioner lacks jurisdiction.

Petitioner points to several sections of the school laws of this state that concern the proper testing and intervention for students with dyslexia, but none of these statutes or rules provide that it is a violation of the school laws for a school district to retaliate against a teacher who points out that the school district is not following the law.

So the Commissioner reasons that he would have jurisdiction over a retaliation claim only if “the school laws of this state” specifically said that there can be no retaliation against a person who complained about the district’s non-compliance.

Interesting.  The case is Hubble v. Waco ISD, Dkt. No. 014-R10-12-2016, decided by Commissioner Morath on October 6, 2017.

DAWG BONE: THE “SCHOOL LAWS OF THIS STATE” ARE THE FIRST TWO TITLES OF THE TEXAS EDUCATION CODE.

Yesterday we told you about the outcome of the “clock boy” suit against Irving ISD and various others.  The court dismissed all claims.  Today, we focus on how the court analyzed the principal’s actions.

The principal gave the “clock boy” a three day suspension after he was arrested and charged with possession of a hoax bomb.  The civil suit was against the district and also the principal.  As a government official who is responsible for making discretionary judgment calls every day, the principal was entitled to “qualified immunity.”  To overcome that, the plaintiff had to produce evidence that would show that the principal was “plainly incompetent” or “violated clearly established law.”

The plaintiff failed to do that.  In an earlier ruling in the same case, the judge wrote eloquently about the difficulties principals face these days:

Woe unto the principal who fails to act on a potential threat that later becomes a reality!  To hold Principal Cummings, or any other administrator, to this standard places him between the dreaded Scylla and Charbydis.

I don’t know where Scylla and Charbydis are, but it certainly sounds like they are between the proverbial “rock” and “hard place.”

After that ruling, the plaintiff was given the opportunity to re-plead his case to try to convince the court that the principal should be held liable. In the amended complaint the plaintiff pointed out something that had not been mentioned before—that the principal failed to comply with a procedure set out in the student handbook.  That procedure read as follows:

LAW ENFORCEMENT AGENCIES (All Grade Levels) Questioning of Students

The principal will verify and record the identity of the officer or other authority and ask for an explanation of the need to question or interview the student at school.

The principal ordinarily will make reasonable efforts to notify the parents unless the interviewer raises what the principal considers to be a valid objection.

According to the allegations in the suit, which the court was assuming to be accurate, the kid was grilled at length by several armed and uniformed officers without notice to his parents, despite his repeated requests to call them.  In other words, the plaintiff did allege that the principal violated, or at least ignored, the student handbook.  Is that a violation of “clearly established law”?

The court said no:

A deviation from an entity’s internal procedures, without more, does not show discriminatory intent or amount to a constitutional violation, as constitutional requirements may nevertheless have been met.

Thus the case against the principal, like the case against the district, was dismissed.  However, this one serves as another reminder of how important it is to follow district policy and procedure. In fact, that “procedure” in the student handbook is taken directly from Policy GRA (Local).

This case has gotten tons of attention on social media and elsewhere, so perhaps it will move on to the 5^th Circuit. But as of now, all legal claims asserted by the Irving “clock boy” have been dismissed. The case is Mohamed v. Irving ISD, decided by the federal court for the Northern District of Texas on March 13, 2018.  We found it at 2018 WL 1305455.

DAWG BONE: CHECK OUT YOUR GRA LOCAL—I BET IT’S THE SAME AS IRVING’S. 

 Tomorrow: Another claim of “retaliation” by a teacher.

On September 14, 2015, a 14-year old freshman at MacArthur High School in Irving ISD brought a homemade contraption to school.  He showed it to his geometry teacher, who told him it was “really nice.” Later he showed it to his English teacher.  She asked him “Is that a bomb?”  “No,” the boy responded, “it’s an alarm clock, see?”

Thus began the transformation of this obscure young man from an anonymous high school student into his new destiny: the Irving Clock Boy.

Just google it and see what happens.

As most readers know, the boy was questioned, handcuffed, arrested, charged with a crime and suspended from school for three days.  The alleged crime was possession of a “hoax bomb.”  Later all charges were dropped, and the Irving police chief acknowledged that the entire arrest was a mistake.

The parents sued the City of Irving, the school district, the principal and several police officers.  In a decision handed down on March 13^th, federal judge Sam Lindsay dismissed all of the claims.

In this week’s Daily Dawg I’m going to make just two points about this lengthy court opinion.  Today, we focus on the standards for “qualified immunity” for school officials. Tomorrow, we will look more specifically at the role of the principal.

Qualified immunity is designed to protect governmental officials who have to make tough judgment calls.  The idea behind qualified immunity is that a government official (police officer, teacher, administrator) should not have to face legal liability just because they make a bad call.  They should be held liable only when they do something that is colossally stupid or in clear violation of the law.  I’ve not seen a case that uses the term “colossally stupid” but I think that gets at the general idea. Here is what the cases do say:

Qualified immunity is designed to protect from civil liability “all but the plainly incompetent or those who knowingly violate the law.”

The plaintiff in this case argued that the overreaction of the Irving officials in this case satisfied that standard. The court disagreed. In so doing, the court separately analyzed the actions of the principal, the arresting officers, and the other police officers.  I think the officers who actually made the arrest came closest to losing their immunity.  The plaintiff pointed out that the student repeatedly asserted that the contraption was nothing but a clock; that he never sought to scare anyone; and thus, the student showed no intent to create alarm or panic.  The argument was that there was no reason to make the arrest in the first place.

The crime of possession of a hoax bomb requires some proof of an intent to 1) make someone believe that it’s a bomb; or 2) cause “alarm or reaction” by a public agency.  In this case there was “alarm or reaction” by a public agency, but was there an intent by the student to cause that reaction?

The court noted that there are no binding court decisions about how the “hoax bomb” statute is to be interpreted. In such a vacuum, the officers were able to convince the court that they were not violating “clearly established law,” nor were they “plainly incompetent.”  Thus they were entitled to qualified immunity.

Tomorrow we’ll point out the lesson of this case for principals.  So stay tuned!

The case is Mohamed v. Irving ISD, decided by the federal court for the Northern District of Texas on March 13, 2018. We found it at 2018 WL 1305455.

DAWG BONE: WANT TO AVOID LIABILITY? DON’T DO SOMETHING COLOSSALLY STUPID OR IN VIOLATION OF CLEARLY ESTABLISHED LAW.

 Tomorrow: But what about the principal?

The Toolbox is a full day training program that focuses on serving students with disabilities who engage in serious misconduct.  There is no giving up on these kids.  The law requires that schools must continue to serve students, even when they may be dangerous or disruptive.  Moreover, the district is to serve all students in the “least restrictive environment.”  At the same time, the law requires districts to maintain a safe and educationally appropriate climate for the education of all children.  Sometimes, therefore, it’s appropriate to move one student out of the mainstream.  Sometimes a student is so disruptive, defiant or dangerous that a long term change of scenery is called for.

The law refers to this as a “change of placement.”  In the Toolbox, we divide changes of placement into “educational” and “disciplinary” changes.  The difference is in the manifestation determination.  If the ARD Committee concludes that a student violated the Code of Conduct in a manner that is not a manifestation of the student’s disability, then a “disciplinary” change of placement is called for.  We call that Tool #6.

Sometimes, however, you have a student who has seriously disrupted school in ways that are a manifestation of disability.  It would not be proper to impose a disciplinary penalty.  That would be like punishing the student for having a disability.  So Tool #6 is not available.  However, there are two “educational” changes of placement that are available.  The ARD Committee might decide to change the student’s placement to a more restrictive, or at least a different, setting.  If this is done with parental agreement, you are using Tool #2.  If the ARDC ends in a disagreement, you are using Tool #3.

Sound interesting?  If so, let me know if you’d like us to bring the Toolbox to your district or ESC.

DAWG BONE: THREE TOOLS CAN BE USED TO CHANGE PLACEMENT.

 Tomorrow: Remember the “clock boy” in Irving?  There is news!!

Suppose you are the owner of a private business that you view as an opportunity to honor and serve God.  Your company’s mission statement tells us that your company’s “highest priority is to honor God in all that we do as a company and as individuals.”  It’s a family business that has been around for a long time.  Suppose further that you believe that the Bible teaches that sex is an immutable God-given gift.  Thus you believe that a person who is born male who later decides to dress like a woman is violating God’s law.

If that’s what you believed, how do you suppose you would respond when Mr. Stephens, who has worked for your company for five years, tells you that he is about to go on a vacation, and that when he returns, he would be a woman?

Mr. Rost, the owner of the business, fired Mr. Stephens.  The subsequent litigation has now produced a Circuit Court decision that squarely addresses the difficult issues that arise when our laws pertaining to sex discrimination collide with a person’s sincerely held religious beliefs.

The Circuit Court held that the termination of the employee was an act of sex discrimination.  The Court also held that the burden this placed on Mr. Rost’s religious beliefs was not “substantial.”  Thus his defense, based on the Religious Freedom Restoration Act, failed.

That same issue is now pending before SCOTUS in the case involving the Colorado baker who refused to bake a cake for a gay couple’s marriage.  We should get a decision on that soon.  In the meantime, lawyers will want to pour over this 49-page scholarly opinion.  The case is EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., decided by a panel of the 6^th Circuit on March 7, 2018.  We found it at 884 F.3d 560.

DAWG BONE: THIS AIN’T OVER.  SCOTUS WILL WEIGH IN SOON.

 Tomorrow: Toolbox Tuesday!!

Only a legal analysis would make that question meaningful or important.  We want to assure you that the Dawg understands that the two photographs in question would not be anywhere close to “nearly identical.”  We would describe the first as “art” and the second as “gross.”  But a federal court in Mississippi was not ready to pass judgment on the issue as a matter of law.

This all has to do with the lawsuit filed by ex-Coach Matt Wallace, who was fired from the Desoto County School District after a picture of him featuring “full frontal nudity” showed up on the Ashley Madison website.  We’ve been writing about this case all week, and today we bring it to a close.

One of Coach Wallace’s arguments was based on sex discrimination.  He claimed that he was treated differently than a female school employee under “nearly identical” circumstances.  Both employees complained that revealing pictures of them were being circulated by other school employees.  Coach Wallace claimed that his ex-wife and her “boyfriend” (that’s how Coach Wallace characterized the relationship) posted a naked picture of him without his knowledge or consent on the Ashley Madison website.  Did I mention this was the ex-wife?

Coach Wallace complained about this as a form of sexual harassment.  The district did not exactly see it that way.  In fact, the district fired the coach, claiming that it did not matter how the picture came to be on the website—the existence of this picture on a website that promotes adultery was sufficient cause, in the district’s view, to terminate the man’s employment.

However, when Samantha Rivera (a.k.a. “the coach’s new girlfriend”) complained that the same ex-wife and the same “boyfriend” had circulated a revealing picture of her, the district took the complaint very seriously.  The court put it this way:

Thus, the school district was presented with two very similar reports of sexual harassment involving a male and a female employee, but it could not have handled them more differently.  Indeed, [the Coach] notes that not only was Rivera not fired, but the school district took her complaint against [the ex-wife’s new guy] seriously, found it meritorious, and ordered him to stay away from her.  This contrasts very sharply with the district’s decision to fire [the Coach] without a public hearing.

That sounds like sex discrimination, but the Coach bears the burden of proving that he was treated differently than a woman under “nearly identical” circumstances.  This is what prompted the court to weigh in on the distinctions between female backsides and male frontsides:

While a jury may well determine that there is a substantive difference between a photograph depicting a female’s nude backside and one showing a male’s full frontal nudity, this is certainly not an issue upon which this court is prepared to make a pronouncement as a matter of law.

So this case lives on.  Coach Wallace has successfully fended off the efforts of the district to toss his case out of court.

Just to recap: this one involves four school employees—a coach, his ex-wife, the coach’s new squeeze and the ex-wife’s “friend/boyfriend,”- a website devoted to violations of the 6^th Commandment, and some cell phone pictures.  The judge played it straight out of the legal playbook, dispassionately analyzing the facts and applying the legal standards.  But in Footnote 3, His Honor had to make a few comments:

…this court is not passing judgment regarding the morality, or even good taste, of a married couple taking such a photograph, although it may certainly be regarded as unwise.  Indeed, in this day and age, there is a long list of folks who regret having allowed a significant other to take a nude photograph or video of them.  Further, the court cannot overlook the fact that the actors in this situation drama spent so much time indulging their modeling, photography, and voyeuristic interests, that one marvels that these players had any time left over to inspire the hearts and minds of the young people entrusted to their care.

The case is Wallace v. Desoto County School District, decided by the federal court for the Northern District of Mississippi on March 21, 2018.  We found it at 2018 WL 1413973.

DAWG BONE: WE’RE LOOKING FORWARD TO THE MOVIE!

This week we are exploring the case of the Mississippi football coach who lost his job due to “immoral conduct.”  As we told you yesterday, the coach signed up for an account with Ashley Madison, a website that promotes adulterous affairs.  That’s not what got the coach canned.  It was the fact that his account with A/M included a nude photo of the coach—“full frontal” as the court delicately explains. The coach’s wife (later ex-wife) took the picture during happier times.

Stuff like that causes people to talk.  No doubt the superintendent must have heard from a lot of people when this became public, including a state senator who informed the superintendent that his constituents did not want Coach Wallace to continue to work for the district.

Apparently the superintendent and board agreed with that.  They terminated Coach Wallace’s employment, citing “immoral conduct.”  Since they had kept him on board for a full year after learning that he had signed up with Ashley Madison it appeared that the “immoral conduct” was about the nude photo.  It wasn’t about the fact that the photo existed—the court acknowledged that “The fact that consenting married adults would photograph each other in a state of nudity does not strike this court as being 'immoral.'"

So the termination was not based on his having an account with Ashley Madison.  It wasn’t about the fact that there was a picture of him in the altogether.  It was about the fact that it got posted on the internet.  Thus the critical issue: who put it there?

Coach Wallace presented evidence indicating that he did not post the photo.  He claimed that his ex-wife and her friend did it.  In fact, the court noted that the coach produced “very substantial, bordering on overwhelming” proof that this is how it went down.  For example, there was a text message to the ex-wife from her friend:

That sign in and password that u had.  Are you not worried that they can trace that?  I know I did it one time. Wouldn’t look good huh.

The ex-wife acknowledged that she had taken the racy photograph—while they were married—and that she knew the password to his Ashley Madison account.  Then the text message makes it look like she passed it on to her friend.  (Coach Wallace thinks that fellow is more than a “friend.”  He’s also a defendant in the case).

Coach Wallace made two main arguments.  First, he asserted that he was denied due process because the district did not allow him to have a hearing before they fired him.  Schools have to provide due process if they take away a person’s property or liberty.  Normally, the termination of a contract would be considered a deprivation of property, sufficient to require due process.  But in this case, the coach had allowed his certification to lapse.  His contract was contingent on him getting the certificate renewed, and he failed to do this prior to the termination.  So the court reasoned that the coach did not have a “property interest.”

That was not the end of it though.  The court held that the coach presented an arguable case for a “liberty” interest.  School employees rarely succeed with a claim like that.  A school employee is entitled to due process to protect a “liberty” interest only if 1) the employee is fired; 2) stigmatizing charges are made against the employee; 3) those charges are false; 4) the employee was not given a hearing; 5) the charges were made public; 6) the employee requested a hearing; and 7) the employer denied that request.

Bingo.  Coach Wallace had some evidence to support all seven of those components.  Importantly, the court held that “made public” did not necessarily mean that the school district made it public. There just had to be some evidence that the stigmatizing charges were publicly known.  Oh boy, were they ever!

That was enough for Coach Wallace to keep his case alive and get it to a jury.  His second argument was based on sex discrimination.  He claimed there was another racy photograph of a school employee making the rounds, and that the school treated the subject of that photograph very differently.  The other photograph was of a woman—Coach Wallace’s new girlfriend.

To tune in tomorrow for the conclusion of this soap opera!

DAWG BONE: YOU CAN’T MAKE THIS STUFF UP.

 Tomorrow: backsides of women vs. frontsides of men.  The same? Or different?

This week we are writing about the very interesting case involving the head football coach in Mississippi who was fired for “immoral conduct.”  This thing has “made for TV-movie” written all over it.  It includes a head football coach, his ex-wife, the ex-wife’s new “friend” and the coach’s new girlfriend—all of whom worked for the DeSoto County Schools.

Coach Wallace signed up for the Ashley Madison website.  As we told you on Monday, this is a dating website that targets married people.  I don’t know who Ashley M. is, but apparently she has little regard for the 6^th Commandment.  The tagline for the site is “Life is short. Have an affair.”

From the court’s opinion it sounds like Coach Wallace’s marriage was coming apart at the time he sought a new partner.  But it is often hard to sort out cause from effect in a situation like that.  In any event, when a hacker exposed all of the account holders on the Ashley Madison website, it became known in the community that Coach Wallace was seeking an adulterous relationship.

How would that play in your school?  Would the coach’s record matter? What do you suppose Alabama would do if we found out that Nick Saban was fooling around?

Questions abound.

Coach Wallace’s involvement with Ashley Madison became known after the data breach in August 2015, but the district did not terminate his employment over this.  In the subsequent litigation, the principal testified that “everyone” knew that the coach had an account with A/M, but the principal still wanted him as an employee.  Here is an exchange between Coach Wallace’s lawyer and the principal:

Q: So you had every intention of him being a school teacher for you the next school year.  Is that correct?

A: That’s correct.

Perhaps you are wondering: didn’t they fire him for “immoral conduct”?  So if this is not what got him fired, what else happened?

Tune in to the Dawg tomorrow.  More will be revealed.

DAWG BONE: WHEN YOU IGNORE INAPPROPRIATE EMPLOYEE BEHAVIOR, IT HAS A TENDENCY TO COME BACK TO BITE YOU.

 Tomorrow: The plot thickens….

On Tuesdays around here we review the Toolbox—a full day training program that offers ten “tools” to help schools serve students with disabilities who present challenging behaviors.  Today, a few words about manifestation determination reviews (MDR).

I came across a case from California in which the parent complained that a general education teacher was not present at the meeting when the MDR was conducted.  The hearing officer concluded that this was irrelevant—the district did not need to produce the entire IEP Team—only the “relevant members” of the team.

Hmmm. Is that correct?  In California it may be. Not in Texas.

Federal regulations do say that the MDR is to be done by “the LEA, the parent, and relevant members of the IEP Team (as determined by the parent and the LEA).”  34 CFR 300.530(e)(1).  So you only have to attend if you are a “relevant” member.  Irrelevant members are off the hook.  That’s the federal regulation the hearing officer in the California case was relying on.

But in Texas we have a state law that requires that the MDR must be done by the entire ARD Committee—relevant along with irrelevant members:

Any disciplinary action regarding a student with a disability who receives special education services that would constitute a change in placement under federal law may be taken only after the student’s admission, review, and dismissal committee conducts a manifestation determination review under 20 U.S.C. 1415(k)(4) and its subsequent amendments. T.E.C. 37.004(b).

So you should have a properly constituted ARD Committee doing the MDR. That would include a general education teacher.

Interested in Toolbox training?  Let me hear from you.

DAWG BONE: ONLY THE ARD COMMITTEE CAN DO THE MANIFESTATION DETERMINATION.

 Tomorrow: Coach Wallace is exposed!