T.M. was an 11-year old boy in Quakertown Community School District in Pennsylvania.   He had been receiving special education services since kindergarten due to autism, global apraxia and an intellectual disability.   Fast forward to fourth grade.  That’s when the parents brought in an independent evaluator who was an occupational therapist and board certified behavior analyst (BCBA).

The court offers a succinct summary of the dispute, which sounds like a very common situation:  the parents are dissatisfied with the student’s progress and think that the student should be doing better.  Their independent expert supports that view. School staff think the boy is doing quite well, given his unique circumstances.

The parties ended up in a due process hearing over the IEP for 5^th grade.  The hearing officer ruled in favor of the school district on all points, and was later affirmed by the federal court.  The district comes across as professional and caring.  The court based its decision, to a large degree, on the credibility of the school witnesses.  In terms of experience, education and “time on task” the comparison of the school staff vs. the independent expert was no contest.  The court noted that the independent evaluator “had no four-year college degree. She has no regular or special education teaching degree or experience.” She qualified as an expert on ABA, but “her recommendations about reading, math, speech and language were beyond her specialty areas.”  Since she was neither a certified teacher, psychologist nor speech therapist, she “does not possess the requisite educational background to opine on those topics.”

One more factor limited the weight of the testimony from the independent evaluator: she observed the boy in school for only 16 hours over two days, and on one of those days, a sub was filling in for the special education teacher. In sharp contrast, the school staff had extensive education, numerous advanced degrees, appropriate certifications and had spent 1,440 hours working with the student over two years.  Whose testimony would you believe?

The case is T.M. v. Quakertown Community School District, decided by the U.S. District Court for the Eastern District of Pennsylvania on April 19, 2017. We found it at 69 IDELR 276.

DAWG BONE: THERE IS NO SUBSTITUTE FOR DAILY EXPERIENCE WITH THE STUDENT IN THE SCHOOL ENVIRONMENT.

The Dawg is taking a break next week, folks.  We plan to eat turkey and watch football.  Enjoy yourselves and look for the Daily Dawg back  in your inbox on Monday, November 27. 

Yesterday we told you about a Title IX suit against Richardson ISD.  The district persuaded a federal judge to dismiss a suit that alleged student-on-student harassment.  The key was the court’s agreement with the district’s argument that any pervasive harassment was not gender-related, and any gender-related harassment was not pervasive.

To succeed in a Title IX suit like this the plaintiff has to prove, among other things, 1) that the harassment was based on the victim’s sex; and 2) that the harassment was so severe and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit.

Yesterday we explained how the court concluded that the pervasive harassment was not gender related.  Today, we focus on the specific instances of harassment based on sex, and how the court analyzed those allegations.

The plaintiff alleged two specific instances of gender-based harassment. One was labeled “the Exposure Incident” and the other “The Assault in the Park.”  The court acknowledged that both of these incidents, as alleged, were plausibly based on sex.  But the court held that neither incident was so bad that it satisfied Title IX’s demanding standard. Key Quotes:

The Bullies, among other things, exposed their genitals to [the girl], beat her and threatened to rape her.

But those two instances alone are “not so severe, pervasive, and objectively offensive to deprive [the girl] of access to education.”  Watkins v. LaMarque ISD 308 Fed. Appx. 781, 784 (5^th Cir. 2009).

Does that surprise you?  You may be even more surprised when you read a more complete description of the Assault in the Park as alleged in the suit:

Plaintiffs allege that…the Bullied knocked [the girl] down and held her ankles and wrists….The Bullies then covered [the girl’s] mouth and…dragged [her] to a park fence. The Bullies allegedly pushed [her] into the fence, restrained her, whipped her back with wet sticks, and poured groundwater down her back.

Plaintiffs claim that once the whipping stopped, the Bullies dragged [the girl] to an electric generator box where they threatened to electrocute and rape her, “then leave her body in an adjacent concrete tunnel” that was “full of snakes” so “that she would never make it out alive.”  Next, Plaintiffs say, the Bullies dragged [the girl] to a restroom in Terrace Park and attempted to force her inside, again threatening to rape her.

Wow.  The school saw this incident quite differently.  The principal conducted an investigation and concluded that the boys (aka “the Bullies") had behaved inappropriately, but intended no harm. The principal assigned disciplinary consequences, but the girl’s parents were not satisfied with that.

From a legal perspective the important point here is that the court held that even if the allegations in the suit are completely accurate, this is not “severe” enough to make the district legally liable for what one student does to another, even if it was all done in the line of sight of the teachers.

Texas recently adopted a new law regarding bullying that makes it clear that a single significant act can amount to bullying. It does not have to be a pervasive, long lasting campaign. I would suggest that the description of what this lawsuit labels as The Assault in the Park is a great example of how a single incident can be “bullying.”  If half of what the suit alleges is true, I would think you have “bullying.”

But as this case illustrates, legal liability for that is another matter.

The case is Chavez v. Richardson ISD, decided by the federal court for the Northern District of Texas on August 23, 2017.  We found it at 2017 WL 3620388.

DAWG BONE: IT HAS TO BE GENDER-BASED AND REALLY BAD TO IMPOSE LIABILITY UNDER TITLE IX.

Tomorrow: Who are the leading experts on special education?

Richardson ISD persuaded a federal judge to dismiss a Title IX suit alleging student-on-student harassment.  The key was the court’s agreement with the district’s argument that any pervasive harassment was not gender-related, and any gender-related harassment was not pervasive.

To succeed in a Title IX suit like this the plaintiff has to prove, among other things, 1) that the harassment was based on the victim’s sex; and 2) that the harassment was so severe and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit.

The parents alleged that their third grade daughter was relentlessly bullied and tormented by four third grade boys.  But the only specific allegation about the “relentless” bullying was that the boys called her “ugly and stupid.”  The court observed that “ugly and stupid” is not “based on the victim’s sex.”  Ugly and stupid can apply to boys and girls alike. The court relied on the Supreme Court’s ruling that “Damages are not available for simple acts of teasing and name-calling among school children…even where these comments target differences in gender.”  Davis v. Monroe County Board of Education (1999).

Thus the court concluded that “the pervasive harassment…was not gender-related.” Tomorrow we will explain how the court concluded that “the gender-related harassment was not pervasive.”

The case is Chavez v. Richardson ISD, decided by the federal court for the Northern District of Texas on August 23, 2017.  We found it at 2017 WL 3620388.

DAWG BONE: LET YOUR LAWYER BE THE ONE TO ARGUE THAT “NAME CALLING” DOES NOT MATTER.  IT SHOULD MATTER TO THE PRINCIPAL AND THE TEACHER. 

Tomorrow:  The rest of this story...

The Toolbox is a one-day training program that helps campus administrators handle the discipline of students with disabilities in effective ways that comply with the extensive legal requirements. One of the tools (Tool #7) is the FAPE-Free Zone.  This refers to the ten days when campus administrators can unilaterally remove a student from the placement called for by the IEP.  We get some creative questions about this one. Such as the inquiry about the FAPE-Free Zone Bank.

The idea was simple. Can the district create a FFZ account for each student and manage it through a campus-wide “bank” whereby days of one student could be transferred to another? The district has a sick leave bank. Why not a FFZ bank?

Nope. Can’t do that.  You may have kids go use up the entire FFZ before Halloween, and others who don’t use up a day all year. Nevertheless, the FFZ of each student belongs to each student and the “days” in the FFZ cannot be moved around, student to student.

Each student has ten days. They start to run on day one of the school year.  When the ten days are used up, they are gone until next school year.  As we explain in the Toolbox Training, the principal still has multiple means of dealing with student misconduct after the 10 days are gone.  But out of school suspension is no longer an option.

If you are interested in a Toolbox Training, let us hear from you!

DAWG BONE: NO SUCH THING AS A FAPE-FREE ZONE BANK.

Tomorrow: If someone calls you "ugly and stupid" have you been sexually harassed?

Rob Marriott was a teacher at Bonner Springs High School in Kansas.  In 2016 he found out that he had been spied upon seven years earlier.  It turns out that the superintendent and the director of secondary instruction had secretly installed surveillance video in Marriott’s classroom.

They did not do this to keep an eye on Mr. Marriott.  It turns out that the superintendent’s son and the director’s daughter were both in Mr. Marriott’s classroom. The administrators were not spying on the teacher—they were spying on their own kids.

Mr. Marriott liked to change clothes in his classroom after school.  Moreover, his wife and their son often joined him there. The three of them would change clothes in what they thought was the privacy of the classroom, after school. They shut the door and locked it to ensure their privacy. You can imagine the shock they felt when they discovered, seven years later, that it was all caught on tape.  Boxers or briefs?  The superintendent now knows!

They sued the district and the administrators, alleging an invasion of privacy.

No dice. The court held that a person does not have a “reasonable expectation of privacy” in a public school classroom—even after hours with the door locked.  Furthermore, the two school administrators were entitled to qualified immunity because the right to privacy, even assuming it existed in this situation, was not “clearly established.”

The Dawg does not recommend secretly taping a classroom, regardless of the reason.  We wonder how the two kids felt about this, and how it all played out in the families. Alas, all of that will have to come out in the made-for-TV movie.

The case is Marriott v. USD 204, Bonner Springs-Edwardsville.  It was decided by the U.S. District Court for Kansas on September 8, 2017.  We found it at 2017 WL 3970776.

DAWG BONE: NEED TO CHANGE CLOTHES?  GO TO THE BATHROOM!

Tomorrow: Toolbox Tuesday!!

A former teacher sued Houston ISD, claiming that she was not hired for any of the 14 jobs she applied for because the district was retaliating against her.  The decision by the Texas Court of Appeals provides a good framework for analyzing retaliation cases.

Let’s put it in baseball terms.  To score with a retaliation case, you first have to get to first base.  To do that, you have to allege, and later prove, that you engaged in “protected activity.”  Here, the plaintiff alleged that when she worked for HISD as a coordinator at a magnet school, she tried to recruit a student with a disability. When the school denied admission to the student, the plaintiff facilitated the mother’s complaint against the district.  The court held that this would probably suffice as “protected activity.” The plaintiff was now on first base.

To get to second base, the plaintiff has to prove that the employer took “adverse action” against her.  Here, the case was a little complicated. In 2011, the district non-renewed the plaintiff’s employment with the district. However, this was not the alleged “adverse action.” There had been previous litigation over that issue, which the plaintiff lost. So she could not allege that the nonrenewal was the “adverse action.” But after her nonrenewal, she applied for 14 different jobs with the district. She got none of them. So she alleged that the failure to hire was an “adverse action.” At this early stage of the proceedings, ruling on the district’s Motion to Dismiss the whole case, the court gave the benefit of the doubt to the plaintiff on this.  In accordance with earlier court rulings, the court held that a failure to hire could amount to an “adverse action.”  The plaintiff now stands on second base.

To get around third base and score, you have to connect these two events. This is the hardest part of a retaliation case. You have to allege, and later prove, that the reason you suffered an “adverse action” was because of the “protected activity.”  This is where the plaintiff’s case faltered. The court held that there was no evidence of retaliation presented—just subjective opinion.  Moreover, the court noted that the protected activity occurred in 2010. The adverse action was in 2013.  The court considered this too long of a gap to show a causal connection.

Retaliation cases are increasingly common.  In part, this is because it’s not too hard to get to second base.  But getting home with that run is another matter, as the case of Rose v. Houston ISD illustrates.  The case was decided by the Court of Appeals for the 14^th District in Houston on October 19, 2017.  We found it at 2017 WL 4697889.

DAWG BONE:  YOU MAY THINK BASEBALL SEASON IS OVER.  NEVER.  

Consider the creativity of this argument: because the superintendent forgot to pay the renewal fee for his certificate, a real estate agent claims that he was unable to close a sale of real property, because, after all…who would want to buy a home in a school district where the superintendent’s certificate has lapsed?

When you go house shopping, isn’t that the first question you ask?  “Tell me about the school district: did the superintendent timely renew his certificate?”

It may have been creative, but the Commissioner didn’t buy it.  The agent who filed the appeal to T.E.A. did not live in the district, did not own property in the district, and did not have children in the school. But he claimed he was injured because he lost out on a commission.

The Commissioner held that the man lacked the legal “standing” to pursue this matter. Furthermore, the Commissioner lacked jurisdiction over the allegations that the district had violated the state or federal constitutions or the rules of SBEC. Moreover, the man failed to establish jurisdiction of the complaint under the Education Code.

So the case was dismissed. But in the process of doing so, the Commissioner made some important rulings about contracts and teacher certification.  The headline is that the loss of certification makes the teacher’s contract voidable, not void.  Key Quote:

Texas Education Code section 21.0031 makes a teacher’s contract voidable when the educator lacks the appropriate certificate.  A voidable contract is a valid contract until action is taken to declare the contract void.

What if the contract says that it is “void” without proper certification? The Commissioner held that such a contractual provision is ineffective:

The superintendent’s contract provision that purports to make the contract void if the superintendent fails to maintain certification is itself void as it violates Texas Education Code section 21.0031.

This entire dustup was due to the superintendent’s failure to get his certificate renewed on time.  Thus the certificate was classified as “inactive” for a few months, at which time the superintendent was alerted to the problem. He promptly paid the necessary fees to get the certificate restored to active status.  Apparently the school board had no problem with this sequence of events, but the real estate agent wanted the superintendent fired and financially penalized.  Nope.

The case is Axelrod v. Marble Falls ISD, decided by Commissioner Morath on June 28, 2017.  It’s Docket No. 001-R10-09-2016.  I’m pleased to let you know that Bridget Robinson and Haley Turner of our law firm handled this one for Marble Falls.

DAWG BONE: CERTIFICATE GOES BAD? CONTRACT IS STILL VALID UNTIL THE BOARD ACTS ON IT.

Tomorrow: Yet another retaliation case….

Yesterday we told you about the Kentucky case involving the SRO who handcuffed an 8-year old boy, with the cuffs above the elbows and the kid’s arms pulled tight behind his back. The court did not approve. It held that this was a constitutional violation and a use of excessive force. It was only due to the “qualified immunity” doctrine that the SRO escaped personal liability.

The suit also sought relief from the sheriff of the county in his “official” capacity.  The SRO was an employee of the county sheriff’s department, which contracted with the school district to provide SROs.  When the video of the crying, squirming little boy went viral, the sheriff issued a statement, which read, in part, as follows:

Deputy Sumner responded to the call and did what he is sworn to do and in conformity with all constitutional and law enforcement standards….I steadfastly stand behind Deputy Sumner who responded to the school’s request for help.  Deputy Sumner is a highly respected and skilled law enforcement Deputy, and is an asset to the community and those he serves.

Tammy Wynette could not have said it better.  The sheriff is “standing by his man.”

This turned out to be a mistake.  The plaintiff produced a “handcuffing expert” in the litigation, who testified “that he does not know of any police instructor in the United States who would allow the elbow cuffing of children such as was used…nor does he know of any program that teaches that method.”

It’s not surprising that the plaintiffs found an expert to support their position. But the defendant’s expert was not much help to the defendants:

Even defendants’ handcuffing expert, William A. Payne—who has been conducting handcuffing training for law enforcement for over 20 years—testified that he has never trained law enforcement to use handcuffs above the elbow. He further testified that he was not aware of any law enforcement agency that trains their officers to use such a technique.

The court held that the sheriff’s department was liable for the constitutional violation because the sheriff ratified an illegal action. The court noted that:

*The sheriff testified that the handcuffing was consistent with the department’s policy;

*He testified that he is not interested in how often kids are being handcuffed;

*He said the “behind the back, above the elbows” technique was acceptable practice;

*He has not implemented any changes in how SROs are trained.

It seems pretty clear that the judge in this case was offended by what he saw on the video.  He ruled that the SRO violated the boy’s constitutional rights, but he could not impose personal liability on the SRO due to the qualified immunity doctrine.  The sheriff’s office, however, cannot assert a qualified immunity defense. So when the sheriff doubled down by standing by his man, he cleared the way for the court to impose liability.  All that remains to be decided is the amount of the check the county will be writing.

The case is S.R. v. Kenton County Sheriff’s Office, decided by the federal court for the Eastern District of Kentucky on October 11, 2017.  We found it at 2017 WL 4545231.

DAWG BONE: STANDING BY YOUR MAN CAN BE DANGEROUS.

Tomorrow: the three most important parts of a real estate deal: “location, location, and the superintendent’s certificate.”

Maybe you remember the video that went viral a few years ago, showing a skinny little boy from Kentucky, squirming and crying as he struggled with his arms handcuffed behind his back.  Because of his small size, handcuffs on the wrists would not work. So the School SRO put the cuffs above the boy’s elbows, with his arms behind his back.  The mother later sued the SRO and the County Sheriff’s office.

The court ruled that the SRO violated the boy’s constitutional rights.  True, the boy swung his elbow at the SRO, but the court noted that “such can hardly be considered a serious physical threat from an unarmed 54-pound eight-year old child.”  It’s clear from the court’s decision that the judge was as appalled by the video as I was. Key Quote:

Finally, the method of handcuffing that Sumner [the SRO] employed leads this court to conclude that his actions were unreasonable and constituted excessive force as a matter of law.  The video of S.R. [the boy] shows that his arms were pulled tightly behind him, with only inches between his elbows.  While Sumner testified that the chain between the cuffs was as wide as S.R.’s torso, the video belies that assertion.

The SRO got off the hook in the case due to qualified immunity. While the court held that he violated the student’s constitutional rights, it also held that the law was not “clearly established” at the time.  Therefore, the SRO cannot be held liable for this constitutional violation in his individual capacity.

In the Toolbox Training we offer ten “tools” none of which involve handcuffs.  We focus on positive behavioral interventions, along with administrative and ARD Committee actions that can prevent inappropriate behavior and/or address it effectively.  If you are interested in Toolbox training, please let me know.

This case is S.R. v. Kenton County Sheriff’s Office, decided by the federal court for the Eastern District of Kentucky on October 11, 2017.  We found it at 2017 WL 4545231.  Tomorrow we will tell you about how the sheriff’s office came out in this case. Stay tuned!

DAWG BONE: HANDCUFFING AN EIGHT YEAR OLD ALMOST ALWAYS A BAD IDEA.  ELBOWS BEHIND THE BACK?  EVEN WORSE.

Tomorrow: A case that made me think of Tammy Wynette….

Consider this scenario: a principal issues a written directive to a teacher. The teacher believes that the directive violates school policy, but does not make an issue of it.  Later, the school charges the teacher with violating the directive and proposes nonrenewal of contract.  In the nonrenewal hearing, the teacher claims that she did not have to comply with the directive because it violated school policy.

Too late, according to the Commissioner.  The Commissioner held that the teacher:

was required to file a grievance if she believed the directive was improper. A teacher cannot fail to object to a principal’s directive and then contend that the directive is contrary to policy so the teacher could just ignore the directive.  Gibson v. Tatum ISD, Docket No. 040-R2-1099 (Comm’r Educ. 1999).  By not objecting to the directive by filing a grievance, Petitioner has failed to exhaust administrative remedies as to this claim.

The message is pretty clear. You don’t think the directive is proper?  File a grievance, or forever hold your peace.

The case is Teacher v. Louise ISD, decided by the Commissioner on June 19, 2017. It’s Docket No. 022-R1-05-2017.

DAWG BONE: I THINK WE MAY SEE MORE GRIEVANCES….

Tomorrow: Toolbox Tuesday!!