A federal court in California has ruled that an athlete kneeling during the National Anthem at a school sponsored athletic event is a form of constitutionally protected speech.  This issue has been brewing ever since the protest movement caught on with a significant number of NFL players.  We knew it would spill over into high school athletics, and that litigation was inevitable.  Now we have a reported case in which the court issued an injunction, ordering the school officials not to restrict “students from kneeling or sitting during the playing or singing of the National Anthem at extracurricular events, including athletic events.” The school was also ordered not to “require any action from Plaintiff or other students during the playing or singing of the National Anthem at extracurricular events, including athletic events.”

The court seemed to think it was a pretty simple and straightforward issue. Kneeling during the National Anthem is a form of symbolic speech.  It did not cause, nor was it likely to cause, a material or substantial disruption of school activities. It sounds an awful lot like a student wearing a black armband to school to protest America’s involvement in the war in Vietnam.

The black armband case was Tinker v. Des Moines in 1965. The National Anthem case happened in 2017. Same issue. Same legal analysis. Same result.  This case is V.A. v. San Pasqual Valley USD, decided by the federal court for the Southern District of California on December 21, 2017.

DAWG BONE: GET THE WORD TO THE COACHES.

School administrators will soon be heading to Austin for the annual MidWinter conference—a highlight of the educational year. At Walsh Gallegos we look forward to hosting you at our annual reception at Flemings, just a block from the Convention Center.  Tuesday, January 30^th. Be there or be square.

DAWG BONE: ALL THE COOL KIDS WILL BE THERE…

Next week our law firm will be offering an audioconference on a particularly timely and important topic:

ELECTIONS AND POLITICAL ADVERTISING: WHAT EVERY SCHOOL OFFICIAL NEEDS TO KNOW

Educators have become increasingly aware of the importance of our elections, particularly at the state level.  Many school-related organizations are actively promoting a “Culture of Voting.”  Many school boards have adopted resolutions encouraging all educators to vote.

But some have raised legal concerns about this.  In fact, we have a pending Attorney General’s opinion about where the line should be drawn—to what extent can public funds be expended in these efforts?

Next Tuesday, our firm will provide an audioconference that dives into the details of these issues.  Two of my law partners—Christine Badillo and Tony Resendez—will lead the discussion.  The emphasis will be on practical application.

I urge you to sign up and participate in this very important audioconference.  Just go to our firm’s website: www.walshgallegos.com.

Everyone knows how important it is for parents to be actively engaged with the school to ensure student success.  Thus I read with interest in Education Week (November 15, 2017) an article about the Parent Institute for Quality Education (PIQE).

PIQE was founded in 1987 in San Diego, California when two community leaders approached the superintendent with an idea about improving parent engagement in one of the district’s low income areas.  What has evolved is a program designed to train and support parents to be effective partners with the schools.  In an early meeting with parents, one of the dads said “We don’t know what we don’t know, and that’s a dangerous place to be. Teachers assume I’m not asking because I’m not interested, but I don’t even know what questions to ask.”

The PIQE mission statement calls for “economic and social equality for all through education.”  Thus the primary focus has been on those parents who “don’t know what they don’t know.”  The program has trained more than 624,000 parents, mostly English language learners.

Disclaimer: please understand that when the Daily Dawg highlights a promising practice like this, we are just passing along something that sounded interesting. The law firm does not endorse this program. But we know that school administrators are always looking for ways to increase the level of positive engagement with parents.  After all, that vision statement—“economic and social equality for all through education”—is something that Texas educators can endorse.

The website is www.piqe.org.  Take a look.

DAWG BONE: PARENTS CAN’T EFFECTIVELY ENGAGE IF THEY DON’T KNOW THE RIGHT QUESTIONS TO ASK.

The Toolbox is a full day training program focused on how school administrators can serve students appropriately, even when they present challenging behaviors. In the Toolbox, we offer ten “tools” that can be used.  I recently came across a case that is a good illustration of Tool #3—an Educational Change of Placement Without Parent Consent.

The student was served in the mainstream, receiving only 20 minutes of special education services per day.  The student was extremely disruptive and frequently violent. Thus the school officials deemed the current placement to be inappropriate, and called for a change. The school proposed moving the student to a placement that would involve four hours per day of special education services.

We call this type of situation an “educational” change of placement, thereby distinguishing it from a “disciplinary” change of placement. The student’s behaviors were disruptive, but they were caused by the student’s disability. Thus a “disciplinary” change of placement was not available.

An educational change of placement can be done the easy way (with parental approval) or the hard way (without). In the Toolbox we label the easy way “Tool #2” and the hard way “Tool #3.”  Here, the parent strongly opposed the change—thus it’s a Tool #3 case.

The parent’s main argument was that the school was proposing this move without first attempting to use “supplementary aids and services” to support the student in the general education classroom.  But the federal judge rejected that argument.  The court held that districts can move a student to a more restrictive environment without attempting to use supplementary aids and services.  Key Quote:

Taylor [the parent] reasons that, because there is a continuum, schools must start at the least restrictive option and move up one step at a time.

Not so.  “The regulations do not require that a child has to fail in the less restrictive options on the continuum before that child can be placed in a setting that is appropriate to his or her needs.”  64 Fed. Register 12,406, 12,638 (March 12, 1999).

To be sure, disabled students cannot be removed from regular classes unless “the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” But this does not say that schools must actually try supplementary aids and services before removing children from regular classes. Instead, the IEP team must simply look into whether supplements could be used instead of separate schooling.

The case is I.L. v. Knox County Board of Education, decided by the judge for the Eastern District of Tennessee in 2017.  We found it at 70 IDELR 71.

In the Toolbox training we talk about cases like this, and practice using the tools through hypothetical situations. If interested in a Toolbox training, let me know.

DAWG BONE: IF THE BEHAVIOR IS A MANIFESTATION OF DISABILITY YOU CAN’T PROPOSE A DISCIPLINARY CHANGE OF PLACEMENT. BUT YOU CAN PROPOSE AN EDUCATIONAL CHANGE.

It’s MLK Day—a good day to reflect on the “I have a dream” speech.  What dreams do you have?

I have a dream that one day the children in the State of Texas will attend schools that are fully and equitably funded.

I have a dream that one day the quality of a child’s education will not be determined by the zip code where the child lives.

I have a dream that one day Texas will be led by visionary men and women who understand that the general diffusion of knowledge is essential to the preservation of the people’s liberties.

I have a dream that one day teachers will not have to pay out of pocket for supplies that school children should be given by the state.

I have a dream that one day we will recognize that the quality of a child’s education cannot be measured by a single test.

I have a dream that one day we will routinely tell our teachers “thank you for your service.” And we will express our gratitude in concrete ways through better compensation, and robust health coverage.

I have a dream that all educators in Texas will carry out their civic duty to vote in every election, seeking to elect those candidates, from either political party, who will support our public schools.

Here’s hoping that these dreams begin to come to life on March 6^th, when Texas citizens go to the polls.

DAWG BONE: THERE IS POWER IN THE BALLOT BOX TO MAKE DREAMS COME ALIVE.

Let’s consider the case of Mr. Smith, a math teacher, who is called in to the superintendent’s office and confronted with some evidence of his romantic and/or sexual conduct with a student.  The superintendent informs Mr. Smith that he plans to recommend to the school board that they terminate Mr. Smith’s employment.  Mr. Smith tells the superintendent that he will save him the trouble.  He offers a resignation, in writing, on the spot.

It’s a pretty bad day for Mr. Smith, and he walks out of the office in great stress. But at least he knows that this is the end of it. There will be no report to the school board—just a quiet resignation. He will begin applying for other jobs promptly.

But of course, Mr. Smith is mistaken.   The superintendent is going to make a report to SBEC.  She has to.

The superintendent in this situation has an obligation to inform SBEC, but there is an equally important duty that precedes that report. The superintendent must make sure that Mr. Smith knows that the report will be made. This has to happen before the resignation can be accepted.

Here’s what the Texas Administrative Code says:

Before accepting an employee’s resignation that, under this paragraph, requires a person to notify the SBEC by filing a report with the TEA staff, the person shall inform the certificate holder in writing that such a report will be filed and that sanctions against his or her certificate may result as a consequence.  19 T.A.C. 247.14(d)(3)(A).

So Mr. Smith should have been informed of this, in writing.  That might have caused him to decide not to resign.  If he chose not to resign, the superintendent would need to follow through with the recommendation of termination to the board. If Mr. Smith goes through with the resignation, he would understand that his troubles are far from over.

DAWG BONE: GIVE WRITTEN NOTICE OF AN SBEC REPORT TO THE TEACHER BEFORE ACCEPTING THE RESIGNATION.

My original law partner, Joe Hairston, once came up with a brilliant idea to address an issue that is coming up with some regularity these days.  A woman in her late 20s contacted her former high school to report that she had had a sexual relationship with a teacher who was still working at the school.   The young woman acknowledged that the relationship was consensual, even though she was underage. At the time, she was very happy about it. But as she got older, married, had children….she began to reflect back on her high school days and saw things a bit differently.  She believed that the school district ought to know.  She suspected that the teacher’s involvement with her was not a one time thing.

What to do?  The school needed to look into it. It would be negligence bordering on “deliberate indifference” to ignore a report like that, just because the events happened over ten years ago. But how do you investigate?

The superintendent confronted the teacher. The teacher denied the allegations and lawyered up.  That’s when Joe came up with a good idea.

Joe asked the woman if she would be willing to provide a sworn statement in the presence of a court reporter and the teacher’s lawyer.  Joe knew the teacher’s lawyer to be an experienced and reasonable person.  He was confident that if the woman provided credible testimony, the lawyer would persuade his client to offer a resignation.

That’s exactly what happened.

You have to have the right set of circumstances and the right cast of characters to make a situation like that work.  But if you have a similar situation, this might be worth exploring.

DAWG BONE:  LAWYERS CAN BE CREATIVE.

Tomorrow: Don’t forget to warn the teacher about an SBEC report…

I don’t know if this is true, but it’s what I heard, and it’s worth sharing.  I was told that at Amy’s Ice Cream (a wonderful Austin institution) the job application consists of a white sandwich bag. The prospective candidate is asked to put on the bag whatever he or she wants the employer to know.

Amy’s prides itself on its creative and fun loving staff.  Customers get not just an ice cream cone, but a show of sorts, yet another reminder of why Austin is so wonderfully weird.  So they simply give the applicant a blank paper bag.  The applicant who gets the job is the one who displays some creativity and humor, but also has enough common sense to include such basics as contact information, prior experience, and references.

This came to mind when I heard Sandra Carpenter, General Counsel at Round Rock ISD, speak at the December conference sponsored by the Texas School Administrators’ Legal Digest and the Texas Association of School Personnel Administrators.  Sandra’s topic was about how to conduct an investigation.  One of the “takeaways” was that a statement written by a person in their own words, in their own handwriting, is generally better than a statement typed out by a school administrator and signed by the person.  In fact, Sandra included in her presentation a sample form  that is not much different from the paper bag used as Amy’s job application.  The form gives the person’s name and the date, and then states:

I VOLUNTEER THE FOLLOWING INFORMATION AND KNOW THAT IT MAY BE USED FOR WHATEVER PURPOSE IT MAY SERVE:

The rest of the form is left blank, except for the signature at the bottom of the page.

Let the witness write it out, poor grammar and misspelling included. It’s much more credible.

DAWG BONE: BUT WE DON’T RECOMMEND THAT PAPER BAG JOB APPLICATION.

Tomorrow:  a creative solution to a problem…

The Toolbox is a one day training program that focuses on the legal requirements for the discipline of students with disabilities.  One of the questions that lingers in the background of that type of training is: do some kids have “more rights” than others? Do the kids in the special education program and their parents have more rights than the other kids and their parents? After all, we have all these special rules and procedures that apply to the students who need special education services.  That’s why we have the Toolbox.  Does that mean that they have more rights?

To answer that question, I’m first going to divide “rights” into two categories.  There are procedural rights and substantive rights.

Students with disabilities and their parents unquestionably have more procedural rights than the other students and parents.  Our federal law spells out elaborate procedures that schools must follow for the students in special education. These procedures include notice, consent, the composition of ARD meetings, the content of an IEP.   A student with a disability has a right to an individualized educational program that is developed in accordance with the federal procedures.  The student’s parents are guaranteed a seat at the table for decisions about IEP content and placement.  A parent can obtain an independent evaluation at school district expense.  Parents can challenge school decisions through an independent hearing process not available to other parents.

And of course with disciplinary decisions, the law lays out other procedures (change of placement, manifestation determination, stay put).

None of this guarantees that students with disabilities will receive better services than their peers, nor that their parents will be happier.  But the procedures are in place and schools are required to follow them. This is why there is so much more paperwork and litigation in special education.

As far as substantive rights, I maintain that there is no distinction.  I do not believe that the law guarantees students with disabilities “more rights” than their peers in terms of the substantive right to an education.  All students have a right to a public education that is appropriate.  Our special education laws use specific language to describe that right (FAPE), but surely, all kids are entitled to an education that is appropriate.

However, the procedural rights enjoyed by parents of students with disabilities make that right to an education more enforceable.  If the parent of a general education student believes that the child has been poorly served by the school district, that parent has no legal recourse.   Courts do not recognize a cause of action for “educational malpractice.” But the parent of a student with a disability can enforce the right to a FAPE through the due process system, followed, if necessary, by a lawsuit.

School administrators want to serve every student appropriately, in a school environment that is safe and conducive to learning.  The Toolbox is a program designed to simplify the complex procedures that apply to the discipline of students with disabilities so that ALL kids will benefit appropriately from your services.

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

DAWG BONE: LET’S SERVE THEM ALL THE RIGHT WAY.

Tomorrow: why you might want to use a plain paper bag as a job application form