Dear Dawg: I confess.  Our district has been encouraging teachers to vote.  Not only that, we’ve even encouraged them to vote for people who will support a good education system. But we haven’t tried to tell them who those people are. We let folks make up their own minds about that.

Anyway, we are being harassed by multiple PIA requests seeking every email, text message, etc. that contains loaded words like “vote” or “culture of voting.”  Some of these folks are publicly saying some nasty things about our board members.  One guy asked us to remove a video that our superintendent made, encouraging people to vote to support public education.  We prepared a response to this guy that we think is good, but we wanted to run it by you before we send it out.  Here it is:

Dear Sir:  Your facts are wrong.  You’re wrong about the law too.  No laws have been violated and so we kindly ask you to retract your stupid letter.  If you don’t, we intend to hit you with a few res ipsa loquitors, res judicata and zenyatta montattas thrown in to be all legal and stuff. We’ve got more important things to deal with, so bug off, buster.

Waddyathink, Dawg?  STRAIGHT SHOOTER.

DEAR STRAIGHT SHOOTER:

We like the attitude, but the tone could be…..toned down.  We suggest you take your cue from Jeff Crownover, General Counsel for Lewisville ISD.  After the AG’s Office went public with criticism of efforts in Lewisville to encourage voting, Mr. Crownover wrote a point by point rebuttal, concluding with this:

In fact, throughout the entire video, Dr. Rogers [Superintendent] does not name a single politician or candidate for office nor does he encourage anyone to vote for a particular candidate. He does not tell anyone to vote for an incumbent or a challenger in any race. Dr. Rogers does not mention a specific political party, or in which party’s primary someone should vote.  As an educator who has given over 30 years of his life to serving kids in public education, of course, Dr. Rogers encourages people to unite behind the cause of public education because of the amazing impact he has seen it have on countless children’s lives. 

As you know, uniting behind the common cause of public education is not a violation of any law, and supporting public education generally is not “supporting or opposing a candidate for nomination or election to public office or office of a political party, a political party, a public officer, or a measure.” Tex. Elec. Code 251.001(a6).  The District believes Dr. Rogers’s comments in this video have not violated any laws, and it maintains there is currently no reason to remove the video from the District website. 

DAWG BONE: GET OUT THERE AND VOTE, FOLKS.  A LOT IS RIDING ON IT.

Tomorrow: Toolbox Tuesday!!

In a suit against the Houston ISD the plaintiff alleges that the district violated Title IX by not reporting an alleged student-on-student sexual assault to CPS or to a state law enforcement agency.  Instead, the district turned the matter over to its own police department.

The court found no problem with this.  The court cited the Texas Family Code:

The Texas Family Code requires a report of child abuse to be made to Child Protective Services or to any “local or state law enforcement agency.”  See Tex. Family Code 261.103(a)(1).

Notice: that statute says the report can go to either CPS or to law enforcement.  But there is an important exception built into the statute. If the alleged abuse was committed by a person who is responsible for the “care, custody or welfare” of the child, then the report MUST be made to the Department of Family and Protective Services.   That term—a person responsible for the care, custody or welfare of the child—applies to school employees and school volunteers.

So to whom do you report?  If the abuse was allegedly committed by a parent, teacher, teacher aide or other school employee the report must go to DFPS.  If, as in this case, the alleged abuse was by a student, the report can go to DFPS or to a state or local law enforcement agency.

The case is Ayala v. Houston ISD, decided by the federal court for the Southern District of Texas on January 22, 2018. We found it at 2018 WL 496898.

DAWG BONE:  IF REPORTING ABUSE BY A SCHOOL EMPLOYEE, MAKE THE REPORT TO DFPS.

Most of the lawsuits we write about in the Daily Dawg are about personnel disputes, student injuries, student discipline or special education. But schools also get enmeshed in business disputes.  Several districts around the country are defending suits filed by a company called Springboards to Education, Inc. alleging trademark infringement.   In one such case the federal court recently ruled in favor of Houston ISD.

The case is about trademarks owned by Springboards.  The company alleges that HISD infringed on their intellectual property by creating, selling and distributing thousands of products (t-shirts, brochures, bumper stickers) that included Springboards’ trademarks.   Houston ISD acknowledged much of this. The district aggressively promoted its “Millionaire Club”—a reading program for kids, and used phrases similar to Springboards’ trademarks in the process.

But the district denied that it sold any such product, or made any profit on any of this. These were giveaways.

That was the crucial fact.   In a trademark infringement case, the plaintiff must prove that the other party used its trademark without consent in a commercial enterprise.  Key Quote:

…the Court finds that creating and distributing items free of charge to students as an incentive to participate in a free local public education reading program is not commercial use of Springboard’s Marks.

Springboard produced evidence that it claimed showed that the HISD print shop had actually made a profit by printing flyers and brochures. Commercial use? The court said no. There was no true “profit.” What looked like a profit was only a reflection of an internal transaction within HISD.  The HISD Library Department “paid” the Print Shop for this work.  It was an HISD entity paying another HISD entity. This is not “commercial use.”

This case is getting quite a bit of attention among lawyers around the country, and for good reason.  The court’s ruling effectively means that school districts don’t have to worry about trademark infringement, so long as the program is free.

But let’s be careful about this. This is a lower court decision in a case that will probably go on to higher level courts.  If you are worried about using materials that may be protected by trademark, proceed cautiously—i.e., call your lawyer!

The go-to guy in our firm on these matters is Barry Berenberg in our Albuquerque office. Barry is currently involved in representing a district in South Texas in a case filed by Springboards.  That case involves multiple school districts and is pending in federal court.  Barry has extensive experience with what the lawyers call “IP Law”—Intellectual Property. We also have other lawyers in the firm with experience in dealing with trademark issues. So we can help you out on these things.

The case is Springboards to Education, Inc. v. Houston ISD, decided by the district court for the Southern District of Texas on January 22, 2018. We found it at 2018 WL 523266.

DAWG BONE: IT’S NOT “COMMERCIAL USE” IF YOU GIVE IT AWAY.

Tomorrow: Where do we go with that child abuse report?

It’s very hard for a plaintiff to pin liability on a school district for a violation of federal law unless the board was directly involved.  A recent decision from the 5^th Circuit provides a good example.  Here are some of the things that Elsa Rodriguez alleged:

*She was an active member of the Houston Federation of Teachers and filed several grievances against her principal.

*The principal recommended nonrenewal of her contract, which the board approved.  The parties then entered a settlement agreement whereby Ms. Rodriguez was given a new contract but transferred to a new school.  In exchange, Ms. Rodriguez promised not to sue the district or its employees over the nonrenewal.

*The principal at the new school instructed custodial staff not to assist Ms. Rodriguez with a move of her materials to a new classroom, despite knowing that Ms. Rodriguez had physical limitations.

*The district suspended Ms. Rodriguez in connection with an investigation of possible STAAR irregularities. She was not cleared of this for over a year, despite the fact that the district knew that she had been on medical leave for several weeks before and many months after the alleged cheating took place.

Ms. Rodriguez sued the district, alleging violations of her constitutional rights under the 1^st and 14^th Amendments. The district court dismissed the case, and the 5^th Circuit affirmed that decision.  The court did not determine if the allegations in the suit were true or not. The court held that even if all of them were true, there was no basis for liability of the school district.

How can that be?  The problem Ms. Rodriguez ran into is that federal law imposes liability on a school district for a constitutional violation only if the violation was caused by the official policy of the district, or the decisions of a “policymaker.”  Ms. Rodriguez blamed most of what happened to her on the superintendent.

But case law is clear that under Texas law, the superintendent of schools is not a “policymaker.”  The Big Cheese? The Head Honcho?  Yes. But not the school’s “policymaker.” That designation belongs exclusively to the school board.

So go back over Ms. Rodriguez’s allegations. You will notice that the only thing the school board did was to approve the nonrenewal of her contract, and Ms. Rodriguez had already entered into a settlement agreement over that decision.  Her lawsuit mostly involved incidents that occurred after that, and the board was involved in none of it.  Case dismissed.

The case is Rodriguez v. Houston ISD, decided by the 5^th Circuit on January 23, 2018. We found it at 2018 WL 526996.

DAWG BONE: THE SUPE IS THE BIG KAHUNA, BUT NOT A POLICYMAKER.

Tomorrow: Schools can get embroiled in trademark disputes too!

There are a lot of details involving the school shooting in Florida that we still don’t know about.  I have heard a lot of stories about Mr. Cruz’s mental health issues, but I haven’t yet seen any definitive indication that he had been receiving special education services.  However, I’ve read numerous news stories indicating that he was expelled from school.

Let’s just assume that he was in the special education program.  If so, he could not be expelled “to the street.” Federal law (IDEA) requires that FAPE be available to all students with disabilities, including those who have been suspended or expelled from school. So if he was “expelled” it would have to be with some level of services.

Moreover, if the shooter was in the special education program, a manifestation determination would have to be done prior to any long term disciplinary change of placement.  There is no exception to this requirement just because people are afraid of the student.  There is no exception to this requirement when people have reason to be afraid of a student.

That’s what the Toolbox is all about.  The Toolbox is an all day training program focused on how schools can safely and properly educate dangerous and disruptive students, while maintaining a safe campus for everyone.  Incidents like the recent shooting remind us that schools are, these days, “places of special danger.”  Justice Alito made that observation in a Supreme Court opinion in 2007, and it certainly remains true today.

I wish I could promise that Toolbox training would prevent any future school shooting incidents.  No one can promise that.  But the Toolbox is designed to help you create the climate and the procedural structure for you to handle situations that could get dangerous. If you are interested in Toolbox training, please let me know.

DAWG BONE: “SCHOOLS CAN BE PLACES OF SPECIAL DANGER.” SAD.  TRUE. 

Tommorrow: Who in your district is a “policymaker”?

The IRS has gotten pretty aggressive about going after employers who retain “independent contractors” rather than “employees.”  Just because you call the people who work for your company “independent contractors” does not mean that they are.  The IRS might audit your district’s books years later and determine that these folks were actually “employees.”  That would mean your district owes a bunch of back taxes.

The IRS audits both private sector employers and governmental employers, like school districts.  If the IRS concludes that your speech therapist or educational diagnostician was actually your employee, when you treated them as independent contractors, your district’s budget might be facing an unexpected and large hit.

Our firm is offering an audioconference on this very relevant and important topic on March 6^th.  Attorneys Shellie Hoffman Crow and Morgan Beam will present practical strategies for you to properly classify workers.  Shellie and Morgan will fill you in on how the IRS looks at this issue, and identify common areas of concern in school district operations.

You can sign up at our website: www.walshgallegos.com.

DAWG BONE: NO REASON TO PAY MORE TAXES THAN YOU OWE.

Tomorrow: Toolbox Tuesday….

Earlier this week we told you about the ugly incident among some cheerleaders in Albuquerque that led to litigation.  On Wednesday we explained why the cheerleader/plaintiff failed to establish a claim under the Equal Protection Clause of the Constitution. Yesterday we told you why the court ruled tossed out her Title IX claim.  Today we review the claim of retaliation. This one survived.

Refresher: two other cheerleaders took pictures and a video of the plaintiff while she was in the shower at a cheerleader camp. They then posted the pictures on Snapchat and made ugly comments about the girl’s appearance.

One thing we haven’t talked about yet is how the school district responded to the girl’s report of the shower incident.  It was the district’s response that formed the basis of the retaliation claim.  Here is what the plaintiff alleges:

*The cheerleading coach’s first response was to instruct the victim to apologize to the perpetrators for her “overreaction.”

*The coach did not discipline the other girls because “she did not want to ruin their trip.”

*The coach threatened to punish the victim if she “ruined the trip” for the others.

*The coach downplayed this incident because another girl who was photographed on the toilet did not complain about it.

*The coach and an assistant impeded the girl’s efforts to get help from hotel security.

*The coach asked the girl’s parents not to report the incident to the police, (which the parents did anyway) and then impeded the police investigation.

*The coach excluded the plaintiff from a team photo and other team activities and demoted her from her position on the squad.

*The coach told the girl that the incident was “a joke” and that “this was just what girls did during sleepovers.”

*The coach criticized the girl to other coaches, calling her a “baby” and a “bad teammate.”

Ultimately the school did take disciplinary action with one of the perpetrators, but not the other one.  Later, when the parents sought a transfer for the girl to another high school, the request was denied.  Eventually, however, the school offered to accept the transfer, but only if the parents would drop any possible legal claim.  The school was on notice of a possible claim because it knew that the parents had retained counsel who had given written notice of a possible tort claim.

The court held that these allegations, if proven true, would make a valid case of illegal retaliation under Title IX.  The student engaged in “protected activity” by reporting the original incident in the shower; she suffered adverse consequences after making the report; and a reasonable juror could conclude that the adverse consequences were caused by the initial report.

Thus the school officials, primarily the cheerleading coach, walked right into a valid lawsuit through their own words and actions.  I think there is a lesson in there for all of us.

The case is Higgins v. Saavedra.  This part of the case was decided by the U.S. District Court for New Mexico on January 8, 2018.  We found it at 2018 WL 372241.

DAWG BONE: COACHES AND SPONSORS NEED TRAINING ABOUT HOW TO RESPOND TO REPORTS OF SEXUAL HARASSMENT

Yesterday we told you about the case in New Mexico where two cheerleaders took pictures and video of another cheerleader in the shower at an out of town camp.  Yesterday we explained why the plaintiff’s Equal Protection Class of One claim was doomed to failure.  But the Title IX claim was a closer call.

The cheerleaders not only invaded their teammate’s privacy, they also posted the video on Snapchat and made ugly comments about the girl’s physical appearance. I’m not going to re-publish those comments here other than this one: “who would want to have sex with her?” The other comments were even more personal and vulgar.

Mean girl cheerleaders. Sheesh.

The student eventually filed suit against Albuquerque Public Schools and five individual employees alleging that they were guilty of sex discrimination under Title IX.  Today we will tell you how the court dealt with that issue. Tomorrow we will tell you about the retaliation claim.

I expect many readers will be surprised to hear that the court tossed out the Title IX claim without even getting to the issue of how the school responded to the situation.  To win her case, the plaintiff had to prove that she was subjected to harassment based on her sex and that the harassment was really bad.  The plaintiff failed to do that, and thus, the court did not even bother to discuss how the school responded.

The court did a fine grained analysis of all that the plaintiff alleged.  The plaintiff cited four specific incidents of harassment that occurred after the shower incident.  The court reviewed all four and concluded that none of them showed that the harassment was “based on her sex.”  The things that happened after the shower were mostly name-calling. The court noted that name-calling, by itself, particularly among adolescents, is rarely going to amount to the type of “egregious” conduct “based on sex” that violates Title IX.  It also hurt the plaintiff’s cause that she alleged that the harassment was in retaliation for her reporting the shower incident, and that her brother was also harassed. The court reasoned that 1) if the brother was also harassed, then the harassment was not motivated solely by the plaintiff’s sex; and 2) if it was an act of retaliation, then the motivation for the harassment was retaliation—not sex discrimination.

As to the original incident—the publication of the pictures from the shower—the court agreed that this was “based on sex.”  The harassment was not really based on the fact that the girl was a girl. It was because the harassers did not think she was the right kind of girl.  She did not satisfy their standards of beauty. Key Quote:

The allegations in Plaintiff’s Amended Complaint support her theory that B.P.’s teammates harassed her on July 25, 2015 based on their notions of attractive femininity.  Their statements [here the court quotes the vulgar comments] are evidence that B.P.’s teammates believed B.P. did not conform to their ideas of the stereotypical feminine appearance.

That sounds promising for the plaintiff, but the plaintiff still failed to show that the harassment was “pervasive.”  So the original shower incident was “based on sex” but not “pervasive” and the subsequent incidents were not “based on sex.”    The Title IX claim was dismissed.

But that’s not the end of it.  The student also alleged that she was punished for reporting sexual harassment. Tomorrow we will tell you how the court handled that.

The case is Higgins v. Saavedra.  This part of the case was decided by the U.S. District Court for New Mexico on January 8, 2018.  We found it at 2018 WL 372241.

DAWG BONE: GIRLS HARASSING GIRLS BASED ON PHYSICAL APPEARANCE CAN BE A VIOLATION OF TITLE IX.

Tomorrow: a textbook example of what not to do….

There is a doozy of a cheerleading case going on in New Mexico.  We’re going to spend the rest of this week on this case because the court has now made three separate rulings that are significant for school administrators and lawyers.

According to B.P., soon to be known as “the Plaintiff,” two of her fellow cheerleaders took pictures and shot a video of her in the shower at a cheerleading camp.  They then put the video on Snapchat and shared it with other students. The lawsuit alleges that other students harassed B.P. and her brother for months after this incident.

B.P. and her brother applied for transfers to another high school within the Albuquerque Public Schools.  The brother’s transfer was approved.  B.P.’s was not.  The brother was in the general education program. B.P. received special education services due to dyslexia.

In the first ruling we will tell you about, the court granted the school’s Motion for a Partial Summary Judgment. The specific issue before the court was the plaintiff’s claim that the APS had denied B.P. the Equal Protection of the laws, as required by the Constitution.

Equal Protection cases are usually about a group of people treated badly because of their membership in the group.  Thus the traditional Equal Protection case would be about discrimination based on race, sex, religion or disability.  But there is another type of case that the courts recognize.  It’s called a “class of one” case.  The allegation in such a case is that this one individual was treated differently than all the others.  To make an Equal Protection “class of one” claim, the plaintiff has to show a comparison of her situation to that of some other person who is similar to her “in all material respects.”  There were many kids in APS who got a transfer, including B.P.’s brother. But none of them were similar to B.P. “in all material respects.”

B.P.’s special education status was a crucial factor.  The APS system automatically culled out transfer applications from students with IEPs and forwarded them to the special education department for a determination of whether or not the new school would be able to provide the services called for in the IEP.  This was a “material” factor that made B.P.’s request different.  Key Quote:

Thus APS administrators were automatically notified that B.P.’s transfer request would require an additional hurdle that would be unnecessary for a general education student.

Here at the Daily Dawg we like to use court cases to teach lessons. This court decision holds potential for a lot of lessons, but the actual lesson of this decision is quite limited. This is a cheerleading case that teaches us nothing about cheerleading. It’s a bullying case that teaches us nothing about bullying. It’s a social media case that teaches us nothing about social media.  It could be a 504 case, but this decision teaches us nothing about that.

The only lesson here is that it’s very hard for plaintiffs to succeed on an Equal Protection “class of one” claim. They bear a heavy burden of proof to find someone who is in an identical situation in all material respects.  If they find that person, they then have to prove that the parties were treated differently “without any conceivable basis other than a wholly illegitimate motive.”  Tough burden of proof.

There is much more to this case. So come back tomorrow and we will talk about Title IX.

The case of Higgins v. Saavedra was decided by the U.S. District Court in New Mexico on January 23, 2018. We found it at 2018 WL 555457.

DAWG BONE: A “CLASS OF ONE” EQUAL PROTECTION CASE IS A HARD CASE TO MAKE.

Tomorrow: Was this sexual harassment?

Dear Dawg:  When my secretary told me I had a visitor from Strippers-R-Us I thought she was kidding.  But no.  It turns out that I recognized the young lady who stood sheepishly in our office. Lisa had graduated with honors from our high school two years ago. Apparently, she was having a tough time with college expenses, and so she took a part time job with the aforementioned business, operating under the stage name “Destiny.”  I am told that the pay is good, and not subject to withholding for taxes or TRS.

Lisa/Destiny explained that she had gotten a call from her dispatcher instructing her to report to a certain address at 10:00 a.m. and ask for me by name.  She did not recognize the address or the name, but when she arrived at our middle school, she realized that this was a prank.  Lisa could have simply gone on home, but she was a member of the National Honor Society when she was here, and I think that was probably what motivated her to do the right thing. So she informed me of the name and phone number of the person who paid for this unexpected visit.   I thanked her and wished her well.

The phone call came from a number belonging to the father of a 7^th grader.  We called the kid in for questioning and got the scoop. Yes, he made the call. Yes, he put the charge on his dad’s credit card.

Here’s the question, Dawg.  We know that this violates our Code of Conduct—but we don’t know exactly why.  We have nothing in the Code that says “Thou Shalt Not Bring a Stripper to the School.” How do we classify this?  THINKING WE MAY BRING “DESTINY” BACK ON CAREER DAY.

DEAR THINKING:  We are sure that you have some general prohibition of any activity that disrupts school activities.  This prank interrupted and disrupted your day.  If “Destiny” had performed, the situation would have been a lot worse.  So you can rely on those general statements in the Code.

But that’s the thing about the Code of Conduct—nobody reads it until some kid does something so creative that we don’t know how it fits into the Code. The Code is entirely reactive—you use it to react and respond to student misconduct.

A behavior plan, on the other hand, is proactive.  When you develop a BIP for a student, you are 1) identifying problematic behaviors; and 2) calling for positive interventions, supports and strategies to address those behaviors.

In the Toolbox Training, we emphasize how the Code of Conduct and a student’s BIP work together.  If interested in Toolbox Training, let me hear from you.

DAWG BONE: NATIONAL HONOR SOCIETY KIDS KNOW TO DO THE RIGHT THING.

Tomorrow: a doozy of a cheerleader case….