When Mr. Rodriguez inquired about a promotion within the school district to a position he had heard about he was informed that the position had already been filled by the only person who had applied for it.  When Mr. Rodriguez later sued, alleging age, sex and disability discrimination, his failure to apply for the job came back to haunt him. The court put it this way:

Without showing that he applied for (or even made a timely inquiry about) the position, Plaintiff cannot show that he was qualified for it or that he suffered an adverse employment action as a consequence of any alleged wrongdoing in denying him the position.

The law does not require an employer to read the minds of its employees.

That summed it up.  You can’t establish a claim of illegal discrimination until you establish that you were qualified for the job. Here, the court points out that you are not “qualified” if you never applied.

The case is Rodriguez v. Brownsville ISD, decided by the federal court for the Southern District of Texas on September 29, 2017. We found it at 2017 WL 4354611.

DAWG BONE: TO BE “QUALIFIED” FOR THE JOB YOU HAVE TO APPLY FOR THE JOB.

Tomorrow: Unequal distribution of rights?

Heckler’s Veto is a term you will encounter in cases involving free speech that someone finds offensive.  It’s coming up a lot these days when colleges, for example, refuse to allow certain controversial speakers to speak.  The idea is that a heckler should not be able to shut down a speaker, just because the speaker is saying something the heckler finds offensive.

This can even come up in the public comment section of a school board meeting.  Suppose that Mr. Jones rises to the podium and makes some remarks that people in the audience find offensive. Booing and yelling begins. If Mr. Jones is staying within the boundaries of the First Amendment (which are pretty wide), the district should try to quiet the crowd, rather than shutting down Mr. Jones.  If we shut down Mr. Jones, we are allowing the heckler to veto his remarks.  This infringes on Mr. Jones’s free speech rights.

But a recent case from California flat out says that the “heckler’s veto” doctrine does not apply to student speech. The court cited a 9^th Circuit case:

In the school context…the cases do not distinguish between “substantial disruption” caused by the speaker and “substantial disruption” caused by the reactions of onlookers or a combination of circumstances.

We recognize that, in certain contexts, limiting speech because of reactions to the speech may give rise to concerns about a “heckler’s veto.”  But the language of Tinker and the school setting guides us here.  Where speech “for any reason…materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” school officials may limit the speech.  Dariano v. Morgan Hill USD 767 F.3d 764, 778 (9^th Cir. 2014).

This all came up in the case involving the threatening, racist and incredibly ugly posts on a student’s Instagram account that we wrote about here yesterday.  Bottom line: student discipline over the off campus cyberbullying was proper.

The case is Shen v. Albany USD, decided by the federal court for the Northern District of California on November 29, 2017.  We found it at 2017 WL 5890089.

DAWG BONE: 9^th CIRCUIT SAYS THERE IS NO “HECKLER’S VETO” IN STUDENT FREE SPEECH CASES.

A California school district expelled one student and suspended several others over an Instagram account that included racist and threatening comments about other students.  The students who were expelled or suspended sued, claiming that the district had infringed on their First Amendment rights.

The content of the Instagram posts is laid out in the court’s opinion, but is far too ugly to be repeated here. Suffice it to say it shows off humanity (or at least adolescence) at its worst.

The case has a long way to go. In this opinion, the court only addresses the First Amendment issue.  The court concluded that posting on Instagram is “expressive conduct” entitled to First Amendment protection. So is “liking” the posts of others.  Thus to determine whether or not school discipline was proper, the court relied on the Tinker test: was there a major disruption of school? Did the Instagram posts interfere with the rights of others?

The court divided the kids into three groups: 1) the creator of the account, who was also the sole author of all of the posts; 2) the kids who “liked” some of the posts or otherwise expressed approval of the message; and 3) those who followed the Instagram account, but made only neutral or ambiguous comments, without “liking” anything that was said.

The boy who created the account and wrote all of the posts was expelled. The ones who liked some posts, or expressed approval were suspended. The court held that the district did not violate the constitutional rights of any of these students.  Even though all of this “posting” and “liking” occurred off campus, there was a sufficient connection to the school that the school had a proper interest in taking disciplinary action.  Moreover, it was predictable that the account would come to the attention of the school, since it was entirely based on things happening at school, and targeted specific students and teachers.   Was there disruption? Oh boy, was there. Once this Instagram account became common knowledge there was a major upheaval.

This analysis by the court is very consistent with our new state law (David’s Law) that gives schools the authority to discipline kids for off campus cyberbullying.  This California case is definitely an example of cyberbullying and the court’s view of the matter will be comforting to school officials. Some examples:

Geographic location is still a relevant factor, but strict tests of locality are not compatible with the online methods of communication in our digital age.

…schools are responsible for preventing not only acts of violence or assault, but also harassment and bullying.

…students have the right to be free of online posts that denigrate their race, ethnicity or physical appearance, or threaten violence.  They have an equivalent right to enjoy an education in a civil, secure, and safe school environment.  [The plaintiffs] impermissibly interfered with those rights.

However, the court held that the third group of students should not have been disciplined. They had not created disruptive comment, nor “liked” it. In fact one student was a follower of the account, but testified that he never accessed any of the content, and did not know what it contained.  The court viewed him as, at most, a “reader” of the account. “The First Amendment protects readers as well as speakers.”

I found one of the arguments offered by the lawyers for the suspended students to be…oh….let’s just say “interesting.” They said that the kids made their Instagram comments “casually and thoughtlessly.”  The court made short shrift of that, noting that “a plaintiff’s subjective state of mind is irrelevant.  Under Tinker, the inquiry is whether the speech at issue interfered with the rights of other students to be secure and let alone. The District has established that it did.”

Tomorrow we will address one more aspect of this case—the so-called “Heckler’s Veto.”  Stay tuned!

This case is Shen v. Albany USD, decided by the federal court for the Northern District of California on November 29, 2017.  We found it at 2017 WL 5890089.

DAWG BONE: AUTHORITY TO DISCIPLINE OVER CYBERBULLYING CONTINUES TO GAIN JUDICIAL SUPPORT.

Tomorrow: What the heck is a “Heckler’s Veto”?

Warning: this Daily Dawg entry is probably of more practical use to the lawyers than the educators. Nevertheless, I hope all readers find it an interesting illustration of how Texas cases involving possible tort liability are litigated.

We first reported this case last month (December 13^th). At that time we told you about the lawsuit filed by a family in La Joya over the tragic death of their 13-year old son.  They sued the school district, alleging that the boy’s death was caused by the bus driver’s negligence in operating the bus.  In last month’s entry, we explained how the court concluded that the suit did allege a negligent operation of the bus, thus giving the court jurisdiction to hear the case.  But in order to even get that far with the case, the family had to clear another hurdle.  They had to prove that they had given proper notice of the claim to the school district.  Under the Texas Tort Claims Act, plaintiffs must give notice to the school district of the claim within six months of the plaintiff’s alleged injury.

In this case, the family failed to do that.  So the case should be dismissed, right?  Wrong. Turns out there is an exception to the requirement.  Notice is not required if “the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.”  Texas Civil Practices and Remedies Code Section 101.101(c).

Well, the school district certainly knew that “death has occurred.”  After all, this was a 13-year old boy, hit by a car while running to catch the school bus in the morning.  The school district knew about it. So the parents didn’t have to give notice. The case should go forward, right?

Maybe not.  There’s another wrinkle.  The Texas Supreme Court has previously held that just knowing that a death has occurred is not enough to put the governmental entity on notice.  The governmental entity must know of its own “alleged fault producing or contributing to the death, injury, or property damage.” It also has to have knowledge of the parties involved. Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995).

To summarize then, plaintiffs have to give notice within six months, unless the school district has actual notice of 1) a death, an injury or property damage; 2) the parties involved; and 3) its own possible culpability.

This case turned on that third factor.   In ruling on it, the court cited a recorded, Spanish language conversation between the bus driver and a student.  Based on the driver’s words and his actions, the court concluded that “there is a fact issue as to whether the District had actual notice of its ‘alleged fault producing or contributing to’ [the student’s] death.”

Thus the parent convinced the court that the district’s Plea to the Jurisdiction should be denied.  Although the parent had not given formal notice to the district, there was sufficient evidence of the district’s awareness of the incident, including the driver’s potential culpability, that the case would not be dismissed. The parent would have the opportunity to pursue the matter.

The case is La Joya ISD v. Gonzalez. The Plea to the Jurisdiction was denied by the Court of Appeals for Corpus Christi and Edinburg on November 2, 2017. We found it at 2017 WL 4987145.

DAWG BONE: GIVING NOTICE OF THE CLAIM IN TIMELY FASHION (SIX MONTHS) WOULD HAVE MADE THIS A LOT SIMPLER.

Tomorrow: students posting on Instagram in a “careless” and “thoughtless” way. Can you imagine?

Welcome back, Honored Readers!!  I hope your holiday was restful and happy. Now, it’s a new year and we go back to work. And this being a Tuesday, we lead off 2018 with a Toolbox entry.

The Department of Education issued a Q and A last month about the impact of the Endrew F. case.  It’s impossible to discuss that case without using the murky language the Supreme Court used. Students must have an “appropriately ambitious” IEP with “challenging objectives.”  That leaves a lot of room for discretion and professional judgment.  Still, the DOE’s Q and A is worth reading.

With regard to discipline, the Q and A offers this:

Q16:  Must IEPs address the use of positive behavioral interventions and supports?

A16: Where necessary to provide FAPE, IEPs must include consideration of behavioral needs in the development, review and revision of IEPs.  IEP Teams must consider and, if necessary to provide FAPE, include appropriate behavioral goals and objectives and other appropriate services and supports in the IEPs of children whose behavior impedes their own learning or the learning of their peers.

We talk about this a lot in the Toolbox training.  Most school districts use an IEP form that incorporates this language—does the student have behaviors that impede learning of the student or others?  Notice that the question is not limited to disability-related behaviors. Any behaviors that are impeding learning should be addressed.   Your IEP form probably has a YES and a NO box below this question. If YES is checked, the minutes of the meeting should reflect the ARD Committee’s discussion of how to address the behaviors effectively.

We have several Toolbox trainings on the books for 2018 and are happy to add more.  Let me hear from you if you are interested.

DAWG BONE:  DOES BEHAVIOR IMPEDE LEARNING?  IF SO, ADDRESS IT!

Tomorrow: what kind of notice does the plaintiff have to give before suing the district?

The Dawg is outta her for awhile, folks.  On Sunday night I board a plane with my daughter and my two grandkids, heading for Vietnam. We will be there until after the first of the year, along with many others from the Vietnamese Dual Language Program at Summitt Elementary School in Austin ISD.

So the Daily Dawg will take a hiatus. We wish you a Merry Christmas and Happy New Year. Get some rest, enjoy your families, and come back ready to rock and roll for another semester!  Look for your next Daily Dawg on January 2, 2018.

DAWG BONE: PEACE ON EARTH AND GOOD WILL TO ALL!!

According to the court’s opinion, a girl named C.L., from Argyle High School, wangled her way into the visitor’s locker room at Sanger High School before a critical girls’ basketball game.  To do this, C.L. pretended to be the Argyle team manager, which she was not.  Once inside the sanctum sanctorum, C.L. taped an iphone to the inside of a small locker, where it successfully recorded (audio and video) the halftime and postgame comments of the Argyle coach.

Can we just pause and reflect on the technical wizardry, not to mention the derring-do, of this young lady?  I have been to numerous school board meetings where people with numerous degrees are unable to operate a simple tape recorder. I have walked away from meetings thinking we have a good recording, only to discover later that we got nuthin.  But this girl slips into the locker room undetected, and sets up the iphone like a pro.  It reminds me of Clemenza taping the gun to the toilet in the bathroom of the Italian restaurant for Michael Corleone.

What makes the whole situation juicier is that C.L.’s mother was a school board member in Argyle, collaborating with her daughter in a scheme designed to gather damaging information about the coach. On top of that, she was a principal in a neighboring district. Yowza!

The girl was never prosecuted, but the mother went down. She was eventually convicted of illegal interception of a conversation, i.e., wiretapping.  The jury convicted her, but the Court of Appeals reversed.  We reported that in the Daily Dawg in October, 2015.  The appellate court reversed the conviction on the theory that the coach did not have a “reasonable expectation of privacy” in the locker room. That court reasoned that the locker room was kinda like a classroom, and a teacher should know that the classroom is not a private sphere. No expectation of privacy, no conviction.

Now, the Texas Court of Criminal Appeals has reversed that decision. Thus Wendee Long, former principal of Wayside Middle School in Saginaw, and board member in Argyle ISD, is guilty as charged.

The case is 18-pages long and features 162 (THAT’S ONE HUNDRED AND SIXTY-TWO!!) footnotes. The bottom line is that the court held that the coach did have a reasonable expectation of privacy in the locker room, and therefore, the surreptitious recording of his remarks was illegal.

Thus comes to a close a colorful case.  But one more aspect of this case deserves mention.  The court strongly hinted that it would be permissible for schools to spy on teacher/student interactions, as long as certain safeguards were in place.  Consider these quotes:

This is not to say that a school district, when faced with parental complaints regarding a particular teacher or coach, lacks the authority to intercept communications between school employees and students.

Given a school district’s interest in providing a safe and effective educational environment for students, a school district could certainly fashion surveillance protocols tailored to further an interest in monitoring communications between adults and students with only minimal intrusion upon existing privacy interests.  And providing some form of notice to those under surveillance that such communications in otherwise restricted areas are subject to electronic interception would render any subjective expectation of privacy objectively unreasonable under the electronic eavesdropping statute.

The case is Long v. State, decided by our state’s highest criminal court, the Court of Criminal Appeals, on June 28, 2017.  We found it at 2017 WL 2799973.

DAWG BONE: LOOK FOR MORE SURVEILLANCE, LESS PRIVACY.

Tomorrow: We wish you a Merry Christmas!

It’s hard to read cases involving accidents that lead to a child’s death, especially when you can visualize exactly what happened.  This one happened on October 23, 2012 on U.S. 83, a busy highway, in La Joya.  Josue Uranga, a 13-year old boy, was a bit late getting to the bus stop that morning.  When the bus driver did not see the boy at the usual stop, he continued on his route, turning into the crossover between the expressway’s two lanes.

But then the driver saw Josue heading for the bus, so he stopped in the crossover and activated the flashing warning signs.  To reach the bus, Josue had to cross the expressway.   He did not make it.  He was hit by an oncoming vehicle and died at the scene.

The parent sued the school district. (She also sued the driver of the vehicle, but the court does not tell us what happened with that lawsuit).  The district filed a Plea to the Jurisdiction, arguing that the court did not have the authority to hear this case.  This was based on the Texas Tort Claims Act, which shields school districts from tort liability in most cases.

However, the TTCA does permit liability if a person is injured due to the negligent use or operation of a motor vehicle by a school employee, acting within the scope of employment.  Thus if a school bus driver is careless, and crashes into an embankment, the district would be liable for injuries. If the driver fails to keep a safe distance from the car ahead of it, and rear ends it, the district would be liable.

This case was different. The boy was not struck by the school bus, but by a private vehicle driven by someone who was not a school employee. The bus driver was simply waiting in the crossover, giving the student a chance to catch up to the bus.  Was this an act of “negligence” in the “use or operation” of the bus?

The parent argued that the use of the flashing signals was an instance of the negligent operation of the bus. The argument was that the flashing signals, while the bus was at an undesignated stop in the middle of a busy highway, indicated to the 13-year old boy that it was safe for him to cross the highway….which it wasn’t.  The court agreed with the parent that this was a plausible theory of liability:

When, as alleged here, a bus driver stops at an undesignated location in the middle of an expressway in order to pick up a student, it is reasonable to anticipate that the student would attempt to cross the expressway, thereby risking injury or death to the student.

Thus the court concluded that the complaint alleged a viable cause of action. The court had jurisdiction. The Plea to the Jurisdiction was denied.  The case is La Joya ISD v. Gonzalez, decided by the Court of Appeals for Corpus Christi-Edinburg, on November 2, 2017. We found it at 2017 WL 4987145.

There is another aspect to this case that we will discuss in a later Dawg entry—that being about the requirement to give the school district notice of a tort claim.

DAWG BONE: THE DISTRICT CAN BE LIABLE FOR THE NEGLIGENT USE OR OPERATION OF A SCHOOL VEHICLE.

Tomorrow: Cloak and dagger operations in girls’ basketball!

Regular readers of the Daily Dawg know that Tuesdays are Toolbox Tuesdays here.  I know that many of you have been to one of my Toolbox workshops, but others have not. Today, just a brief reminder of why we need a “toolbox” to deal with the discipline of students with disabilities.

So let’s take the Wayback Machine back to 1975, when Congress first enacted the federal law that we now know as IDEA.

The first version of the law did not directly address student discipline. But it did create a dilemma for school administrators by requiring that schools do two things that are hard to do at the same time. On the one hand, the law required schools to provide a safe and orderly environment, conducive to learning for all students.  On the other hand, it required schools to serve all students appropriately, including those with disabilities who commit serious or violent offenses at the school.  Not only did the law require schools to serve all such students, it also required that services must be provided in the “Least Restrictive Environment” (LRE).

These two duties bump into each other.

This dilemma was squarely presented to the U.S. Supreme Court in Honig v. Doe, the only case involving special education discipline ever decided by the High Court.  In that case, California school officials argued that safety was the overriding concern. Therefore, the argument went, the “stay put” rule did not apply when school officials deemed a student to be dangerous.  The argument was that principals and superintendents should be allowed to order the removal, or expulsion of a student who is dangerous.

The Supreme Court flatly rejected that:

We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. In so doing. Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to “self-help,” and directed that in the future the removal of disabled students could be accomplished only with the permission of the parents, or, as a last resort, the courts. (Emphasis added).

That certainly put it clearly.  Congress “very much meant to strip schools” of the authority they historically enjoyed.  The Court did not think that its decision was leaving school officials powerless.  If the principal believed that a student was dangerous, she could suspend the student for up to 10 school days.  The “stay-put” rule did not apply to such short-term actions.  If a principal believed that a suspension of more than 10 days was called for, he could seek relief from a court.

That was 1988.  Much has happened since then, but the basic tension between two competing duties remains.  Schools must simultaneously maintain a safe and orderly school, while appropriately serving students who may present a risk of danger.

For the most part, this tension is resolved on a case-by-case basis by each student’s IEP Team (ARDC).  The law emphasizes individualized decision making by a group of educators working in collaboration with the parents—the ARD Committee.  The ARDC ultimately has the duty of determining, case-by-case, how to balance the duty to serve in the LRE with the duty to maintain safety.  If educators believe that a student is placed in the wrong setting, they should call for an ARDC meeting and seek a change.  If parents believe that a student is placed in the wrong setting, they should do likewise.

Thus most of the time, this tension will be addressed and resolved through ARDC action.  But in addition, there are things that an individual school administrator—usually the principal of the school—can do to address this tension.

That’s what the Toolbox is all about--ten tools educators can use to simultaneously provide a safe school and a proper placement for each student.

If you are interested in bringing the Toolbox to your district, or your ESC, please let me hear from you!

DAWG BONE:  WHEN DISCIPLINING SPECIAL EDUCATION STUDENTS, IT’S THE “UNILATERAL” POWER THAT IS CURTAILED. 

Tomorrow: A tragic accident in South Texas…

A couple of months ago the Dawg recommended that you advise your coaches to drop this phrase from their vocabularies.  This continues to be good advice.  In fact, we now have a federal court case in which this familiar expression has been used as evidence against a school district.

The parent sued the district over a head injury a student suffered after an exercise that was described as a “mat drill.”  The suit alleged violations of Title IX, Section 504, the ADA and various constitutional provisions. None of it stuck. The court dismissed the case in its entirety.

Nevertheless, the fact that “he just had his bell rung” came up in the legal proceedings is noteworthy.  We have heard this expression for many years, usually by a TV commentator during a football game.  In this case, the parent alleged that the coach would not have shrugged off a similar injury if it had happened to a girl.  Thus the allegation was that the coach’s remark revealed an attitude of discrimination based on sex, tolerating injuries to boys that we would not tolerate with girls.

The court noted that there was no indication in the lawsuit that the district had a policy of discriminating against the girls, nor was there an allegation of anything that would amount to deliberate indifference. The coach’s casual comment fell far short of showing sex discrimination.

Todd Clark and Kelley Kalchthaler from our firm ably represented the district on this one, which took a lot of patience because the legal theories kept changing. Originally the parent’s lawyer alleged sex discrimination.  Todd and Kelley filed a Motion to Dismiss the case, so the plaintiff added a claim of constitutional violations.  We filed a Motion to Dismiss those claims also, so plaintiff filed another pleading, tossing in some additional constitutional theories.  Kelley and Todd filed yet another Motion to Dismiss, and so the plaintiff tossed in a final theory—disability discrimination.  Nope.  The court finally granted the school district’s Motion to Dismiss the whole enchilada, noting the patience that the court had extended to the plaintiff:

Here, Plaintiff has been given leave to amend her complaint three times over a period of more than 12 months.  Plaintiff is represented by experienced counsel.  Plaintiff had the guidance of the Court’s August 31 Order and failed to provide new facts in her Third Amended Complaint that addressed the deficiencies in the Second Amended Complaint.   Plaintiff has had ample opportunity to plead her best case and has failed to state a claim under Rule 12(b)(6) twice.

Congrats to Todd Clark, Kelley Kalchthaler and the Giddings ISD for this good result.  The case is Ryburn v. Giddings ISD, decided by the federal court for the Western District of Texas on November 27, 2017.  We found it at 2017 WL 3821691.

DAWG BONE: BELLS SHOULD BE RINGING THIS MONTH, BUT NOT DUE TO CONCUSSIONS.

Tomorrow: the final Toolbox Tuesday of this year….