I often listen to CNN on satellite radio in the car.  The radio broadcast is identical to the TV broadcast, except for the commercials.  You can buy airtime on the satellite radio for a lot less than TV time costs.  So you don’t hear a lot of ads for heavy hitters like Geico or Toyota or Apple.  Instead, the ads on satellite radio often promote things like “get rich quick” schemes, plans to beat the IRS, hair replacement products, risky franchise opportunities and adultery.

That’s right.  Adultery.  The Ashley Madison website used to advertise a lot on satellite radio.  Ashley Mad is just like other online dating/meetup sites with one exception—it specifically targeted married people.  The tagline was “Life is short.  Have an affair.”

I’m not sure they are still in business.  There was a big scandal when A/M had a data breach a few years ago and the names of all of its account holders were revealed.  I’m not sure if they have recovered from that, but I’m afraid to explore the possibility on my law firm computer, and even more fearful of using my personal laptop.

I remember when I first heard the Ashley Madison advertisement thinking to myself: this is going to show up in a teacher termination case someday.  And now it has.  So this week (except for Toolbox Tuesday) we are going to discuss the Mississippi case of Matthew P. Wallace v. DeSoto County School District.  There is more to it than you might think. So stay tuned!

DAWG BONE: LIFE IS SHORT. HAVING AN AFFAIR COULD MAKE IT SHORTER.

 Tomorrow: Toolbox Tuesday!!

Here is another court case where the claim of discrimination is denied, but the retaliation claim lives on.  Parents claimed the student suffered from Electromagnetic Hypersensitivity Syndrome and was having health issues because of the Wi-Fi in the school building.  They alleged that he needed to be served in a Wi-Fi free classroom, which the school refused to provide.  The court dismissed the claim, noting the lack of evidence that the student’s health issues were caused by Wi-Fi.  (This despite the three medical doctors who testified for the student).

However, the retaliation claim survived.  The school argued that the family suffered no “adverse action,” and thus there was no “retaliatory” act.  For the most part, the court agreed with that.  The court held that the school offered legitimate reasons for some of its actions, but failed to produce evidence to explain why the student was excluded from athletics or why his brother was omitted from the 8^th grade graduation dinner.  That was enough evidence of an “adverse action” to keep the “retaliation” claim alive.

This is an interesting one.  The court was skeptical about the existence of this “Syndrome” but retained a judicial respect for the plaintiff.  The same cannot be said for school staff, who appeared to consider the mother a nut case.  Among other things the evidence showed an email from one staff member to teachers about the mother with the subject line: “Rabbit Ears and Aluminum Foil.” One of the responses was “Blahahahahahaha!”  The court noted that actions like this were immature and rude, but the email was not sent to the mother, and thus could not be viewed as an “adverse action.”

The case is G. v. Fay School, Inc. decided by the District Court for the State of Massachusetts on September 29, 2017.  We found it at 70 IDELR 256.

 DAWG BONE: LET’S REMEMBER: GALILEO WAS CONSIDERED A NUT CASE TOO.

Have a good weekend, Honored Readers.  The Dawg barks again next week.

Kenya Boson sued Manor ISD alleging a variety of things, including that she was discriminated against on the basis of race.  The plaintiff alleged eight specific actions she considered to be discriminatory.  However, all but one of those actions fell short of an “ultimate employment decision.”  That turned out to be a problem for the plaintiff. The court put it this way:

For purposes of discrimination, the Act [Texas Commission on Human Rights Act] only addresses ultimate employment decisions; it does not address every decision made by an employer that arguably might have some tangential effect on employment decisions.  Generally, adverse employment decisions involve hiring, granting leave, discharging, promoting, and compensating employees.  Adverse employment actions do not include disciplinary filings, supervisor’s reprimands, poor performance reviews, hostility from fellow employees, verbal threats to fire, criticism of the employee’s work, or negative employment situations.

That knocked out seven of the eight allegedly discriminatory actions.  The one remaining claim was a “failure to promote” claim.  However, the court concluded that the “promotion” would not really have been a promotion—it was a lateral move.  So that claim failed as well.

The case is Boson v. Manor ISD, decided by the Court of Appeals in Austin on March 1, 2018. We found it at 2018 WL 1124310.

DAWG BONE: LOTS OF MINOR AND/OR FAIRLY MAJOR IRRITATIONS CAN STILL FALL SHORT OF AN “ULTIMATE EMPLOYMENT DECISION.”

 Tomorrow: Have you heard of people who are allergic to Wi-Fi?

Denise Reyes sued the district where she used to work, claiming that her termination was based on her national origin, her gender and her previous complaints of sexual harassment.  She lost her case because the court held that she took too long to file her complaints of illegal discrimination with the Texas Workforce Commission.  The timeline for filing such a complaint is 180 days.  This case turned on the court’s analysis of when that timeline started.

Ms. Reyes was a teacher under a contract.  A teacher’s contract is not terminated until the board takes final action to terminate it.  This usually comes only after a hearing by an independent examiner who has recommended termination.  This is exactly what happened in this case and the final action of the board to terminate the teacher’s employment happened on January 11, 2012.  Ms. Reyes filed with the Workforce Commission on May 23, 2012—exactly 133 days later.

So she was on time, right?

Wrong.  The court held that the timeline began on August 29, 2011.  That was the day when the district sent her a letter to notify her that the board had accepted the superintendent’s recommendation to terminate her employment.

So even though the August letter was couched in terms of a “proposed” termination, even though the teacher remained under contract and on the payroll until January 11, 2012, the court held that the “alleged unlawful employment practice” occurred months earlier when she was told that she might be fired.  With the timeline starting in August, the complaint to the Workforce Commission the following May was too late.

The case is Reyes v. San Felipe Del Rio CISD, decided by the Court of Appeals in San Antonio on March 7, 2018. We found it at 2018 WL 1176487.

DAWG BONE:  COURT SAYS THE “UNLAWFUL EMPLOYMENT PRACTICE” OCCURRED WHILE THE EMPLOYEE WAS STILL LAWFULLY EMPLOYED. 

 Tomorrow: What is an “ultimate” employment decision? Why does it matter?

The Toolbox is a full day training program designed to help you serve students with disabilities who present challenging behaviors.  These challenges are particularly acute when you have a student who is required to register as a sex offender.

The starting point is that you should contact your school attorney to work through this situation carefully.  There are a couple of policies you and your attorney are going to need to look at.  Start out with Policy FOE in the Policy Reference Manual which tracks the subchapter in Chapter 37 (Subchapter I, Sections 37.301 to 37.313) that specifically addresses this issue.  In a nutshell, the subchapter calls for the removal of such a student from the “regular classroom,” at least for a period of time in most cases.  But remember the fundamentals of special education law—placement decisions are never made by statute, by school policy, or by administrative directive. Placements are made by ARD Committees.

Section 37.307 recognizes this:

(a)  The placement under this subchapter of a student with a disability who receives special education services must be made in compliance with the Individuals with Disabilities Education Act.

(b)  The review under Section 37.306 of the placement of a student with a disability who receives special education services may be made only by a duly constituted admission, review, and dismissal committee. The admission, review, and dismissal committee may request that the board of trustees convene a committee described by Section 37.306(a) to assist the admission, review, and dismissal committee in conducting the review.

The other policy to review is FL, dealing with confidentiality and student records under FERPA.  FERPA has numerous provisions that permit student information to be disclosed without parent consent.  One of those has to do with sex offenders.  Personally identifiable information from student records can be disclosed sans consent if:

The disclosure concerns sex offenders and other individuals required to register under section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14071, and the information was provided to the educational agency under 42 U.S.C. 14071 and applicable Federal guidelines.  34 CFR 99.31(a)(16).

There’s a lot of legal mumbo jumbo there.  So call your school attorney before disclosing information about the student to others to make sure that the disclosure satisfies every part of that regulation.

These are the kind of challenging situations we deal with in a Toolbox workshop.  If you think this would be beneficial in your district, give me a buzz.  Toolbox is packed up and ready to go.

DAWG BONE:  ALWAYS GOOD TO CHECK IT OUT WITH THE LAWYER.

 Tomorrow: Don’t miss that timeline!

On April 11, I will be doing an audioconference reviewing the top ten cases from the past year.  This will include cases involving personnel decisions, liability concerns, bullying, student free speech and other timely topics.  It’s tough to narrow this down to ten cases, but we all like that number.  After all, the Big XII limits itself to ten teams, and the Big Ten hangs on to that label with 14 teams!

So we will talk about ten cases.  Some of these are from high level courts, but not all of them.  I chose these cases because they teach lessons that are relevant to educators.  Court cases are to lawyers as Biblical parables are to preachers—they tell stories and they teach lessons.  So if you want to hear about football players “taking a knee” during the National Anthem, cheerleaders waving religious banners, little kids in handcuffs, why coaches need to be careful about how they talk about concussions, teachers getting physical with kids…then sign up and show up!

If you want to participate, just go to our firm’s website where you can find information about registering: www.walshgallegos.com/events.

DAWG BONE: TEN WAS GOOD FOR MOSES.  IT’S GOOD FOR US.

 Tomorrow: Toolbox Tuesday!!

Many districts in Texas accept transfer students, but reserve the right to turn a student down if there is no room in the student’s grade level. What if you have room at the grade level, but the student has an IEP that will require services you are not prepared to offer?

This issue came up in Wisconsin which has a statewide Open Enrollment Law.  In the lawsuit, the plaintiffs claimed that the Open Enrollment Law discriminated on the basis of disability.  The Law permitted students to enroll in a non-resident district, but permitted the receiving district to reject the application based on several criteria, one of which was “Whether the special education or related services described in the child’s IEP…are available in the nonresident school district or whether there is space available” to provide the services required by the IEP.

The court held that this provision did not discriminate on the basis of disability.  The court noted that it would be “problematic” if the law permitted rejection of an application solely because the student had an IEP.  However, the court interpreted the provision to require “assessing the availability of space as it pertains to specific services or specialized teachers or other providers.”  The court was OK with that.

You might want to take a look at your district’s policy on transfers and see how it comports with this Wisconsin law.  Obviously any district that accepts transfers and then turns down a special education student is going to need a good, non-discriminatory reason for that decision.  This case lends credence to the notion that the availability of services and of space are relevant considerations.

The case is S.W. v. Evers, decided by the District Court for the State of Wisconsin on October 3, 2017.  We found it at 70 IDELR 252.

DAWG BONE: MAKE SURE YOUR TRANSFER POLICY WILL NOT LEAD TO DISCRIMINATION BASED ON DISABILITY.

The 7^th Circuit has approved the Christmas Spectacular production at Concord High School in Elkhart, Indiana, despite the fact that the program included a nativity scene and other religious content. This litigation has been going on since 2014 when the Freedom from Religion Foundation challenged this annual event in the small Indiana town.

This program is a holiday tradition going back to the 1970s when the high school marching band attended the Radio City Christmas Spectacular in New York. I’m sure that the Radio City program is impressive, but those Yankees got nothin’ on these Hoosiers. Concord High produces a program that involves two string orchestras, a symphony orchestra, a concert band, two jazz bands, five choirs, and small chamber groups. That’s just the music. The program also includes dance teams and drama department players. Throw in the stage technicians and crew, and you have 600 of the high school’s 1700 students involved in this 90-minute production. I expect there is a partridge in a pear tree as well.

Until the litigious Doe family got involved, the program was exclusively about Christmas. Oh, there were secular songs, like Jingle Bells and White Christmas, but there was no mention of other faiths and their winter celebrations. Moreover, the program concluded with “The Story of Christmas” which included readings taken directly from the Gospels. This was accompanied by a live nativity scene, with students in costumes portraying Mary, Joseph, angels, shepherds and the three wise men.

The Doe family, supported by the Freedom from Religion Foundation, filed suit, seeking to force changes in the program for 2014. In response, the school immediately offered to make some changes. They dropped the Gospel readings, and added songs pertaining to Hanukah and Kwanzaa. These holidays, along with Christmas, would be introduced in the program with a short reading about the cultural significance of each holiday. But the nativity scene was still in the program. And the “Story of Christmas” portion was to last 20 minutes, compared to three or four minutes honoring the other traditions.

The federal district court in Indiana ruled that this did not go far enough. The court held that the program, as proposed by the school, would still amount to a governmental endorsement of religion, in violation of the First Amendment.

So the school made additional changes for the 2015 program. The Doe Family continued to object, but the court found the 2015 program to be significantly different from previous Christmas Spectaculars. Those differences were enough for the program to pass muster. The plaintiffs appealed this decision to the 7^th Circuit, and now that court has affirmed the ruling.

Some Key Quotes:

About the nativity scene….

 Let us start with the most inherently religious aspect of the show: the nativity scene. We are not prepared to say that a nativity scene in a school performance automatically constitutes an Establishment Clause violation. Each show must be assessed within its own context. Nevertheless, the nativity story is a core part of Christianity, and it would be silly to pretend otherwise. Many nativity scenes therefore run a serious risk of giving a reasonable viewer the impression of religious endorsement. But in Concord’s 2015 show, the nativity tableau no longer stands out. Instead of serving as the centerpiece for much of the second half and the finale, it has become just another visual complement for a single song.

What about Christmas Carols?

 Without the biblical narration and live nativity, the performance of Christmas carols alone does not inevitably convey a religious message. These songs, played with regularity in workplaces and stores and on TVs and radios have permeated mainstream society.

Bottom line….

 The current Spectacular is primarily entertainment and pedagogy. The nativity scene, which was problematic in the 2014 and proposed versions, is no longer the second half’s main event. Instead, as we have already said, it accompanies just one song, serving the same aesthetic purpose as the images projected on screens and other visuals.

Hint….

 This would have been an easier case if the Christmas spectacular had devoted a more proportionate amount of stage time to other holidays.

This case is a great illustration of how the culture wars in our society play out in the public school. The court noted that there was a Facebook page entitled “Save Concord’s Christmas Spec’s Nativity Scene” with over 7,000 “likes.” Hundreds of people in the small town wore t-shirts promoting the cause to a school board meeting. Yard signs were on display in the community and someone (a Christian????) sent a death threat to the FFRF. Yikes.

Moreover, the court noted that there was a “powerful ovation” from the audience when the nativity scene was displayed.

And how did the judges feel about this case?

 The parties put us in the uncomfortable position of Grinch, examining the details of an impressive high school production. But we accept this position, because we live in a society where all religions are welcome.

This case is a reminder of the fine line public schools have to walk when celebrating holidays that have religious origins. Public schools are not expected to ignore the role of religion, or the religious roots of some of our holidays. But neither are they to endorse the majority view.

The case is Freedom from Religion Foundation v. Concord Community Schools, decided by the 7^th Circuit on March 21, 2018.

DAWG BONE: HAPPY EASTER!

Tomorrow: Turning down the transfer of a student with a disability. Risky?

We can learn five legal “nuggets” from a recent 5^th Circuit decision involving a nurse, frustrated with the way her district treated a diabetic student who ultimately committed suicide.  The nurse had recommended that the student should have a 504 plan.  That didn’t happen.  The nurse was diligent in making sure all of the teachers understood how to accommodate the student’s health issues in the classroom.  After the suicide, the parents sued the district, and the nurse’s extensive notes were subpoenaed.

According to the nurse, that’s when trouble began.  She alleged that administrators started treated her badly.  This culminated in her involuntary transfer to another school.  There was no cut in pay, but she was no longer on the same campus as her children, and felt humiliated by the transfer.  She eventually resigned, and then sued the district and some top administrators.  Five nuggets:

1. An involuntary transfer is not an “adverse employment action” unless it is a “demotion.” This wasn’t. The court noted that her pay, benefits and job duties remained the same.  Key Quote:

Although her office facilities at the new school were subjectively less desirable, and she no longer worked at the school her children attended, these differences do not amount to a demotion.

2. It has to be really, really bad before you can claim “constructive discharge.”  Quote:

Cold stares, rude conduct, and a transfer to a subjectively less desirable location simply do not meet this high standard.

3. School districts face liability under the First Amendment only when district policy or custom caused the plaintiff’s injuries. Isolated actions taken by administrators are not sufficient to show that there was a district policy. There was no improper policy here.

4. School employees are protected by the First Amendment only when they are “speaking as a citizen,” rather than as an employee. The nurse was never “speaking as a citizen” here.  She was speaking pursuant to her official job duties.  If a school employee is not “speaking as a citizen,” but rather, communicating in conjunction with job duties “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.”

5.  A public employee’s reputation is not a constitutionally protected interest.  Damage to one’s reputation may be actionable, but only when it is done with “stigmatizing” and false charges in the process of discharging the employee.  This nurse was never discharged.

Case dismissed.  It’s Rayborn v. Bossier Parish School Board, decided by the 5^th Circuit on February 2, 2018.  We found it at 2018 WL 670489 and 881 F.3d 409.

 DAWG BONE: NOT EVERY INVOLUNTARY TRANSFER IS A DEMOTION, MUCH LESS A CONSTRUCTIVE DISCHARGE.

 Tomorrow: Have you heard of Electromagnetic Hypersensitivity Syndrome?  It’s an allergy to WiFi. 

I got one of those phone calls today.  I spent about 20 minutes on the phone with a frustrated superintendent and principal.  They have a student in the special education program who seems to be completely non-compliant, hostile, uncooperative, unmotivated, etc.  The student is not doing well, academically or behaviorally, and no one seems to know what to do.

Neither do I.  Of course I can lay out the various legal options.  If behaviors are not a manifestation of the disability and are in violation of the Code of Conduct, the student can be sent to DAEP (Tool #6).  The problem in this case is that they have tried that, and it did not improve the student’s performance or attitude.  They might try a move to a more restrictive environment, like a behavior unit (Tool #3) but they don’t have one of those.  If the student commits a “special circumstances” offense they can put him in an IAES (Interim Alternative Educational Setting) for up to 45 school days, regardless of the manifestation determination (Tool #5).  But this would probably result in a DAEP placement, and again, that has not worked in the past.

What to do?  When I reach that frustration point the only thing I know to suggest is to gather fresh evaluation data and take another shot at developing a Behavior Plan that would work.  Maybe bring in some new person to conduct an evaluation of the student who is not tainted by past experience with the kid.  A fresh set of eyes.

Will that work?  Who knows?  But at least it shows good faith on the part of the school district.  Our laws require a zero-reject approach, and a never-give-up attitude.  You have to keep plugging away in an effort to find some way to improve the student’s performance.  Remember: if the student is doing poorly, the district needs to have a “cogent and responsive” explanation (that’s the Supreme Court’s phrase) for why this is happening and what it intends to do about it.  Giving up is not an option, nor is ignoring the problem.

In the Toolbox Training, we talk about situations like this, and practice working on hypothetical cases involving the ten tools.  If interested, let me hear from you.

DAWG BONE: IT’S LIKE CHURCHILL FAMOUSLY SAID: NEVER GIVE UP.

 Tomorrow: A nurse.  A diabetic student. A suicide.  A lawsuit.