So let’s say that I decide to take my entire family on a ski trip.  My children are adults, unmarried.  There are two of them. I plan and pay for the whole thing—four of us on a ski trip in New Mexico.  I pay for the travel, the lodging, the food, the lift tickets.  We have a great time.  The entire trip costs us $10,000 and I pay the whole thing.

Two years later I decide to do the same thing.  But this time we go to a nicer ski lodge in Colorado.   It’s a bit more expensive this time, not only because we are traveling to Colorado, but also because both of my children have gotten married. So now there are six of us on the trip, and I don’t want to pay the full freight. So I tell my kids that I will pay 60% and they will be responsible for 40%.  Now the trip is up to $20,000.  I’m paying $12,000 and each of my children is paying $4000. They’re OK with that.

Three years later we do it again. But this time we are going to travel to a swank ski resort in Wisconsin.  And I now have grandchildren.  There are now eight of us on this trip.  More food. Child care, longer travel, nicer ski resort. The tab is now up to $30,000 and I tell the kids I will pay half. So my part has gone up from $12,000 to $15,000.  My kids each now owe $7500.  Their part has gone up from $4000 to $7500—almost a 50% jump.

Three years later we do it again.  This time to Lake Placid in upstate New York. This is a pricey trip—and we now have more grandchildren. The total tab this time is $40,000 and I tell the kids I will pay 40%.  So I now owe $16,000—just $1000 more than the last trip. The kids now each have to pay $12,000.

After that trip, my children confront me about this.  They complain that these ski trips are getting too expensive for them. They also notice that I make all the decisions about where we go, where we stay, where we eat.  They love these ski trips but they are getting too expensive.  They want me to pick up more of the cost, like I used to—and they also want to be able to make more of the decisions about where we go and what we do.

This causes a major family spat. I accuse them of being whiny, ungrateful and undisciplined.  Obviously, they are not handling their finances very well. They should be able to afford these trips. They must be spending money frivolously.

This is what has happened to Texas school finance over the past 20 years.

Like the ski trips, we are now serving many more children.  From 2006 to 2016 the student enrollment in Texas public schools rose by over 760,000—that’s 76,000 more students each year.   A rising percentage of those students are English Language Learners, and/or low income.

Like the ski trips, we have raised our standards. We don’t want mediocre schools, we want excellent schools. We have put in place standards and accountability measures that are intended to get us there.

Like the ski trips, one party makes almost all of the decisions. The State does that through legal mandates—some of them funded by the state; many of them not.

Like the ski trips, one party is paying less and less of the total cost, thus automatically passing the costs on to the others.  As state funding has gone down, local funding has gone up. It has to.

Here’s where the analogy breaks down. Nobody has to go on a ski trip. But we have a legal and moral obligation to provide education to the next generation. It’s high time that the state quit accusing local school board members and administrators of being wasteful and whiny.  It’s time for the state to pick up a larger share of the cost—like it used to do.

The Four Ski Trips might be a good way for you to explain this to those folks who are mystified by their rising property tax bills.

DAWG BONE:  NEXT TIME YOU WANT TO GO ON A SKI TRIP, CONTRIBUTE TO YOUR ISD EDUCATION FOUNDATION INSTEAD!

Tomorrow: Toolbox Tuesday and a creative teacher.

Now that everyone has agreed that the 8.5% indicator we used to have in the PBMAS was a bad idea, the blame game is underway.  The legislature has ordered TEA never to do such a thing again.  The Department of Education has ordered corrective action.  And the governor has accused school districts of a "dereliction of duty."

That's a crock.  The fault here lies squarely with TEA.  It was a mistake to adopt a specific number and tell school districts that the numbers in special education should match up with that number.  I believe it was a mistake made by good people acting in good faith, but it was a mistake nevertheless.

The staff at TEA was trying to meet legislative demands to contain special education costs.  In the aftermath of the debacle, someone has uncovered the interim report to the legislature in 2004 that recommended a cap on special education enrollment as a means of containing spiraling costs.  With its budget cut, its staff shrunk, and the increase in pressure from the legislature, the folks at TEA made a couple of important decisions.

First, monitoring would no longer be done by teams of people traveling all over our enormous state. Instead, it would be based on data.  Much cheaper.  The politicians would like that.  Second, the PBMAS would include an "indicator" addressing the numbers in special education.

That's why we got the 8.5% indicator.  The folks at TEA viewed the number as a guideline, but it was interpreted by many as a cap.  It's very clear in hindsight that TEA did not adequately explain that the number was not a cap.  The message did not get out, and someone at TEA should have noticed that.

At the local level, educators tried to meet the targets set by the state agency.  What would you expect them to do?  The Agency is responsible for the implementation of IDEA and for overseeing the school districts.  When the Agency says that you should have no more than 8.5% of your kids in special education programs, the locals are going to try to meet that target.

So it's a crock for Governor Abbott to accuse local educators of a dereliction of duty.  It is his Agency headed up by the governor's appointee that bears full responsibility for this colossal mistake.

DAWG BONE: TOO BAD WE DON’T HAVE AN OFFICIAL SCORER TO ASSIGN THE ERROR.

DEAR DAWG: I got sued last year.  Stupid, frivolous lawsuit.  My lawyer just called to let me know that the suit has been dismissed.  I guess that's a good thing, but I'm a little perturbed about the language my lawyer used. He told me that the case was "de-Wopped."  No doubt this is a reference to the scumbag lawyer who filed the suit (Frankie LaRocca) and his equally scummy client (Dolores Antonelli).

In the name of Annette Funicello, what the heck is this about?!  They may be scumbags, Dawg, but that's no reason to insult their ancestry. My lawyer probably doesn't know that I am half Italian (my mother's side) and so I took offense at this ethnic slur.  What should I do?  MAMA WOULD TURN OVER IN HER GRAVE, MAY SHE REST IN PEACE.

DEAR MAMA WOULD:

Hold off, my friend.  This was no ethnic slur.  Your lawyer was using shorthand to explain that the case had been Dismissed for Want of Prosecution.  D-WOP.  This would happen if the scumbag lawyer filed the suit, and then sat on it without doing anything else.  Eventually, the court gives notice that if you don't get off your butt and do something with the suit, it's going to be D-WOPped.  We can assure you that this happens to lawyers of all ethnic persuasions and the fact of this particular lawyer's Italian ancestry is pure coincidence. Your mama can rest in peace and you don't need to do anything other than thanking your lawyer for the good report.

DAWG BONE: THE DEFINITION OF A “FRIVOLOUS LAWSUIT” IS ONE THAT NAMES ME AS A DEFENDANT.

SB 179—David’s Law—has been in effect for almost five months now, but we still don’t have the forms that the law called for whereby parents can seek an injunction to stop cyberbullying.  The law made the Texas Supreme Court responsible for coming up with some easy to understand forms that parents could use to obtain a court order.  The forms are supposed to be readily available, and written in English and Spanish.

Where are they?  I don’t know.  But we have heard nothing from the Texas Supreme Court about this.  I called the Texas Supreme Court about this and left a voicemail with the public information officer. Have not heard back.

DAWG BONE: I GUESS SCOT (SUPREME COURT OF TEXAS) HAS OTHER WORK TO DO.

The Toolbox consists of ten “tools” designed to help school administrators serve students with disabilities appropriately, even when confronted with serious behavioral issues.  Tool #4 is probably the tool that is used the least.  Tool #4 would be used only when you have a student who is “substantially likely” to hurt someone if allowed to remain in the current placement; behavior that is a manifestation of the student’s disability; a parent who will not agree to a change of placement; and no “special circumstances” (drugs, weapons, or a serious bodily injury).  That’s a pretty rare combo.

But I recently came across a hearing officer’s decision from Illinois in which a district tried to use Tool #4.  It didn’t work. The district sought the hearing to force a change of placement, but the hearing officer denied the request.

The student was definitely dangerous.  The hearing officer confirmed that the student had injured both staff and students with biting, kicking, and head butting.  This kind of behavior was on the increase.  Was the student “substantially likely” to continue to hurt people? Yes.

But the hearing officer held that the district failed to produce evidence to show that its recommended placement would meet the student’s needs.  When using Tool #4, districts are seeking to place the student in an “appropriate interim alternative educational setting.”  In the Illinois case, the district failed to convince the hearing officer that the proposed setting was “appropriate.”

This is a good reminder of a fundamental rule about the placement of students with disabilities. The placement recommended by the school must always be appropriate, meaning, that it must be capable of implementing the student’s IEP and enabling the student to make progress.

The case is In re: Student with a Disability, decided by the Illinois hearing officer on April 20, 2017. We found it at 70 IDELR 54.

Interested in learning more about The Toolbox?  Just give me a call!

DAWG BONE: APPROPRIATE.  IT ALWAYS HAS TO BE APPROPRIATE.

Average Joe is just that—an average guy who lives in your school district. When you prepare your board agenda, it might be a good idea to think of how Average Joe would read it.  Average Joe has average intelligence and keeps up with local news to an average degree.  He is neither an activist nor an apathetic slacker. Just an Average Joe.

If Joe were to read your board agenda, would he have a good idea of what the board might do at that meeting?  Consider the following agenda item:

Discussion and Possible Action Regarding Calling a Special Election for May 7, 2016 to fill Unexpired Trustee Terms for [two named individuals].

To view this through Average Joe’s eyes, you have to assume that he knows no background to this.  He may not have known that there were vacancies on the board.  He knows nothing about Texas election laws or procedures for filling a vacancy on the board.

Given all of that, I’m guessing that if Average Joe read that agenda item he would understand that 1) there are two vacancies on the school board; 2) the board is going to talk about this situation; and 3) the board might call for a special election on May 7^th.

Imagine, then, that Average Joe finds out on the day after the board meeting that the board did not call a special election. Instead, it appointed two individuals to fill the vacancies.  The agenda said nothing about appointment of trustees. It only mentioned a special election.

According to the Court of Appeals in Corpus Christi-Edinburg, the board that did this violated the Texas Open Meetings Act. Key Quotes:

This agenda item specifically stated that the Board would discuss calling a special election for May 7, 2016 to fill the vacancies. The agenda did not provide notice to the public that the  Board would either discuss or actually appoint replacement trustees at the February 9, 2016 meeting.

As such, we agree with [the Plaintiff] that by appointing the replacement trustees without notifying the public of that potential action prior to the meeting, the Board violated TOMA.

In other words, this agenda did not put Average Joe on notice of what might happen.  So after you have drafted your action items for the board agenda, go back and read them like Average Joe might read them.  The case is Lugo v. Donna ISD, decided by the Court of Appeals for Corpus Christi-Edinburg on November 30, 2017. We found it at 2017 WL 5953096.

DAWG BONE: HOW WOULD AVERAGE JOE READ YOUR AGENDA?

The Dawg looks forward to seeing a whole bunch of school administrators next week.  I’ve already got my schedule booked up with breakfasts, lunches and receptions. Our law firm’s reception will be at the usual place and usual time—Tuesday afternoon at Flemings.  Be there!

One cautionary note. I always scour the local newspaper during Midwinter and for a few days afterwards looking for a story that seems to come up with regularity.  The headline will be along the lines of “School Administrator Arrested……”

Don’t let that be about you!  But if it is, we know some good lawyers.

DAWG BONE: BE CAREFUL OUT THERE!

At Walsh Gallegos we are pleased to offer our annual HR Symposiums at 10 convenient locations.  This year we are focusing on the issues we get the most questions about:  1) reporting educator misconduct; 2) accommodating employee disabilities; and 3) social media!

We’ve done this for ten years now, and we consistently get great feedback. The program is a half-day review with an emphasis on practical application and plenty of time for Q and A.  You can bring three people from your district for just $150.  Want to bring more?  Just $35/person.

Here’s the lineup for this year:

Region One:                February 13     Villa de Cortez, 260 S. Texas Blvd. Weslaco

Region Two:               February 7       at the ESC

Region Three:              February 14     at the ESC

Region Four:               February 6       Campbell Center, 1865 Aldine Bender Rd.

Region Six:                 February 12     at the ESC

Regions 10/11:            February 12     NOAH’s Event Venue, 6101 Campus Cir. Dr. E., Irving

Region 12:                   February 6       at the ESC

Region 13:                   February 15     at the ESC

Region 15:                   February 7       at the ESC

Region 20:                   February 6       at the ESC

Sign up and get further details at www.walshgallegos.com.  Hope to see you there!

DAWG BONE: HR SYMPOSIUMS ARE JUST IN TIME FOR YOUR BIG HR DECISIONS.

You can get sued if you refuse to accommodate a transgender student in the way the student wants to be accommodated. You can also get sued if you do accommodate the student. That’s what happened in Palatine, Illinois.  A group of parents and students, supported by the Alliance Defending Freedom, sued the school district because the school had been allowing a student born male to use the girls’ restroom. They argued that accommodating the transgender student infringed on the privacy rights of other students.

The federal court has rejected that argument.  The court relied on Supreme Court precedent (Price Waterhouse v. Hopkins, 1989) and 7^th Circuit precedent (Hively v. Ivy Tech Community College of Indiana, 2017; and Whitaker v. Kenosha USD No. 1 Board of Education, 2017) that establish that discrimination based on sex is not limited to “genitalia or chromosome.”  The Price Waterhouse case established that a woman who is denied a promotion because she was insufficiently “ladylike” was the victim of sex discrimination.  The Hively case held that discrimination based on sexual orientation was a form of sex discrimination. And the Whitaker case extended that reasoning to transgender individuals.

The court noted also that there were adequate privacy protections available in the bathrooms, such as private stalls. The court also pointed out that the transgender student had been using the girls’ bathroom for three years prior to the lawsuit:

Notably, District 211’s practice of allowing transgender students to use the restrooms of the gender with which they identify was implemented nearly three years before the filing of this action.  As the Magistrate Judge observed, either Student Plaintiffs did not notice that transgender students were using restrooms consistent with their gender identity, or they knew and tolerated it for several years.  The passage of time therefore further undermines Plaintiffs’ claim of irreparable harm.

Litigation over this issue will continue until we get a SCOTUS decision on it.  The trend seems to be in favor of the transgender student. Certainly that’s the case in the 7^th Circuit, where this case originated. We have no binding 5^th Circuit ruling on the issue, so educators should continue to seek legal counsel.  And remember: the main thing is to provide a safe environment for all kids so that they are receptive and ready to learn.

The case of Students and Parents for Privacy v. U.S. Department of Education was decided by the federal court for the Northern District of Illinois on December 29, 2017.  We found it at 2017 WL 6629520.

DAWG BONE: YOU MIGHT GET SUED REGARDLESS OF WHAT YOU DO. SO DO THE RIGHT THING.

They call them “bullycide” cases.  That’s technically wrong.  The term “bullycide” should refer to someone killing the bully, but in these cases, it’s not the bully who dies, but rather someone who was targeted by a bully.  The cases are hard to read and harder for school personnel to deal with. Nevertheless, there is a notable increase in court cases alleging that a student committed suicide as the result of pervasive, unchecked bullying.  David’s Law, passed by our legislature last year, was a response to this.

Now we have a reported “bullycide” court case from a small district in Texas. The case is worth discussing because it highlights the many legal theories that are used in these cases, and how the courts address them. So let’s review the sad case of J.R.

On May 6, 2014, J.R. took his life.  In the subsequent lawsuit, the parent alleged that J.R. was the target of bullying for over five years—much of it having to do with his weight.  The suit alleged that the boy had “very obvious and large female like breasts.”  In middle school, the boy stood 5’4” and weighed 260 pounds.  He suffered from depression and was taking medication for this.

The suit alleged numerous theories as to why the school district should be held liable for the boy’s death.  The school district responded with motions to dismiss the case, with arguments specific to each legal theory. This is typical of these cases.  In ruling on the motions to dismiss, the court is required to assume—just for the sake of the motion—that the facts as alleged in the suit are all true.  Moreover, the court is required to view those alleged facts “in the light most favorable” to the plaintiff. In other words, the plaintiff, at this stage of the proceedings, gets every benefit of the doubt.  After all, the court does not want to dismiss a case early on if there is a possibility that the case has merit. So with that in mind, let’s review how the court addressed the various issues.

*Exhaustion.  The court held that the parents did not have to “exhaust” their administrative appeals by seeking a special education due process hearing because doing so would have been “futile,” due to the student’s death.

*Race discrimination.  The suit alleged that the bullying was based on the student’s race—he was of Hispanic and Anglo descent. The court made short shrift of this argument, noting that the allegations of this were “conclusory” with no specific facts to support them. The racial discrimination claim was dismissed.

*Disability discrimination. The court dismissed the claims of disability discrimination under Section 504.  The court noted 5^th Circuit precedent for the notion that a 504 claim cannot be based on negligence. There must be evidence of the school’s refusal to accommodate.  Here, there were hints and suggestions that the student might have a disability, but there was never a specific request from the parent. Nor was there any specific diagnosis provided to the school. The court’s analysis illustrates the difference between “child find” under IDEA and “child find” under 504.  Under IDEA there is a duty to be proactive when clear signs of a possible disability are evident. Not so under 504, which is more about responding to requests for accommodation.

*Constitutional claims. The court dismissed claims of constitutional violations. There was no indication that the school policy had caused any injury, or that there was a violation of “due process” or “equal protection.” Again, claims along these lines were deemed “conclusory” and lacking factual support.

*Sex discrimination.   The one claim in the suit that survived the motion to dismiss was the Title IX claim of sex discrimination.  The court noted that the suit alleged a long campaign of bullying and harassment, almost daily, based “in part because of his female-like appearance.”  The suit alleged that classmates “actions and name-calling questioned his sexuality and manhood.”  The court’s holding has clear implications for gay, lesbian and transgender students:

Plaintiff has sufficiently alleged a consistent pattern of bullying, harassment, and teasing against J.R. by his classmates because of his failure to adhere to traditional gender stereotypes and his female-like appearance…  (Emphasis added).

Of course the case has a long way to go. The parent will have to prove the truth of the allegations in the case, including the alleged “deliberate indifference” of school officials. But at this early stage, the court has held that the claim of sex discrimination under Title IX may have merit and should proceed.

As we often emphasize here, those legal theories are for the lawyers to worry about.  As educators, your main focus is on creating a healthy climate on every school campus, free of the bullying or harassment of any student for any reason.  Nothing can be done to bring J.R. back to us, but perhaps with a strong and proactive program addressing the way kids treat each other, we can prevent future tragedies.

Toolbox Training is designed to help you do just that.  It’s a full day program providing ten “tools” that comply with the law and facilitate appropriate services for each student. If you are interested in Toolbox training, let me know.

The case of Reed v. Kerens ISD was decided by the federal court for the Northern District of Texas on June 6, 2017. We found it at 70 IDELR 40 and at 2017 WL 2463275.

DAWG BONE: YOU HAVE TO BE PROACTIVE ABOUT PREVENTING BULLYING—NOT JUST REACTIVE.