This week we’ve been looking at cases that address a parent’s right to make educational decisions and to be informed of what is going on at school.  Sometimes the right of the parent, or the interest of the parent, may infringe on the student’s sense of privacy.  Sometimes kids tell things to counselors or teachers or coaches with the request: “please don’t tell my parents.”

The Daily Dawg is not the place to even try to offer some simple resolution of the issues that such a request presents.  If you are facing that situation, you likely need to bounce it off your school lawyer. Many factors come into play. What are we talking about?  Does your school policy address the issue?  Is it a matter of possible abuse or neglect?  How old is the student?

Texas has a very strong statement in the Education Code about the parent’s right to information:

(a) A parent is entitled to full information regarding the school activities of a parent’s child except as provided by Section 38.004. [Note: 38.004 is about child abuse investigations].

(b) An attempt by any school district employee to encourage or coerce a child to withhold information from the child’s parent is grounds for discipline under Section 21.104, 21.156, or 21.211, as applicable. [Note: all three of those statutes deal with termination of employment].

The Texas statute provides the starting point in answering the question: do we tell the parents about this?  The “default rule” in Texas is that parents have a right to know what is happening at school.  The next question would be: is there some very good reason to deviate from this rule?

Most of the case law addressing student privacy involves sexuality.  In one case, a police officer arrested two young men (17 and 18 years old) in a parked car.  The arrest was for underage drinking, but during the questioning, the young men admitted that they were in the car for the purpose of having sex.  The officer threatened to inform the grandfather of the 18-year old, Marcus Wayman, of this.  When released from police custody, young Mr. Wayman went home and killed himself.

His mother sued for the invasion of her son’s privacy and was vindicated by the 3^rd Circuit:

It is difficult to imagine a more private matter than one’s sexuality and a less likely probability that the government would have a legitimate interest in disclosure of sexual identity.  Sterling v. Borough of Minersville, 232 F.3d 190 (3^rd Cir. 2000).

Matters of sexuality are private, and the law on this is well established.  But it’s not quite so clear when the case arises in the school context, and the disclosure of private information is to the parent.  Consider our 5^th Circuit case on this.  The suit alleged that two coaches had improperly “outed” a gay student to her mother.  Since the suit was against the coaches individually, they were able to assert the “qualified immunity” defense. And it worked. The court held that this disclosure, to the mother, in the context of a discussion of school related matters, did not violate a right of privacy that was “clearly established.” Wyatt v. Fletcher, 718 F.3d 496 (5^th Cir. 2013).

These are murky waters, to be navigated carefully, with legal counsel and with a clear understanding of the specific facts relevant to your situation.

DAWG BONE: IF RUNNING THE SCHOOL WAS A SIMPLE THING, YOU WOULDN’T ENJOY IT. RIGHT?

See you next week, readers!

Earlier this week we told you about the two SCOTUS cases from the 1920s that established that parents have a constitutional right to have some say in the education of their children. But how far does that go?

If you want to find out, here’s one cookbook recipe:

1. Set up a student assembly to address safe sex and AIDS awareness.
2. Make it mandatory.
3. Don’t tell the parents about it.
4. Hire a company called Hot, Sexy and Safer Productions, Inc.
5. Stand back and watch what happens.
6. Get some popcorn.

This actually happened in 1992 in Massachusetts (not the popcorn).  The aforementioned HSS Productions put on a very lively presentation for 90 minutes.  In the lawsuit, the plaintiffs alleged that the presentation was sexually explicit, including simulations of sexual activity.  The suit claimed that the speakers endorsed oral sex, masturbation, homosexuality, and premarital sex.  There were 18 references to orgasm, six to male genitalia and eight to the female variety.  Looks like someone was counting.

The parents who sued the district alleged that the school’s decision to require attendance at this assembly, without parental notice or the opportunity to opt out, violated their substantive due process rights under the Fourteenth Amendment.   Of course they cited the two Supreme Court cases from the 1920s in support of their argument. But the 1^st Circuit found this case to be different from the earlier ones:

If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school's choice of subject matter. We cannot see that the Constitution imposes such a burden on state educational systems, and accordingly find that the rights of parents as described by Meyer and Pierce do not encompass a broad-based right to restrict the flow of information in the public schools.

The parents lost their case because the constitutional right that they cited did not extend as far as they would like.  The Supreme Court was not willing to recognize a constitutional right for parents to dictate school curriculum. However, many states, including Texas, have now adopted statutes that allow a parent to opt their child out of a program, activity or class that the parent finds offensive.  You can find our statute at T.E.C. 26.010.

Thus today, if a Texas school was going to have a student assembly to discuss sensitive matters, such as adolescent sexuality, each parent would have the opportunity to have their child excused from the assembly. This is not a right rooted in the Constitution, but rather, in the Texas Education Code.  Schools would be wise to make sure parents are aware of any such assembly so that they can exercise that right.

The case of Brown v. Hot, Sexy and Safer Productions, Inc. was decided by the 1^st Circuit Court of Appeals on October 23, 1995.  We found it at 68 F.3d 525.

DAWG BONE: NOT A GOOD IDEA TO SLIP “HOT, SEXY AND SAFER PRODUCTIONS” PAST THE PARENTS.

Tomorrow: “Please don’t tell my mom!” 

This week we are reviewing a clash of legal interests that puts school officials squarely in the middle. The parent wants to know about something that the student wants to keep private. What to do?

Monday we told you about Meyer v. Nebraska, a 1923 SCOTUS case that was the first to recognize a parent’s constitutional right to make educational decisions.  The second Golden Oldie involved an initiative passed by the voters of Oregon that was as anti-school choice as you can imagine.  The law required that all children in the state must attend public school.  This would never see the light of day today, but in 1922, the people of Oregon believed that putting all kids in public school would promote American values.  There were concerns at the time about unchecked immigration.  Lots of people with unfamiliar languages and strange customs were coming to America. So the idea was to put them all together in the public school where they would become good Americans.  The law provided an exception for the kids who were “not normal.” That’s a turn of phrase we would not see today.

Three years later the state law was shot down by the Supreme Court. The suit was filed by two organizations that ran private schools—The Society of Sisters and the Hill Military Academy.  The law had not yet gone into effect, but the plaintiffs alleged that “enforcement of the statute would seriously impair, perhaps destroy, the profitable features of [the private school’s] business and greatly diminish the value of their property.”

The Supreme Court cited its earlier decision in Meyer v. Nebraska, but this time put more emphasis on the rights of parents:

Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control:

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public school teachers only.  The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

This case, along with Meyer v. Nebraska, established that parents have rights, protected by the Constitution, regarding the education of their children.  Just how far those rights extend would be the subject of other cases that came up much later.  Later still we began to see cases where the rights of the parent and the rights of the student were not completely aligned.  We will take a look at those cases tomorrow and Friday.

Today’s case is Pierce v. Society of Sisters, decided by the Supreme Court in 1925. We found it at 268 U.S. 510.

DAWG BONE: THE OTHER LESSON OF THIS CASE: DON’T MESS WITH SISTER MARY HOLYWATER.

Tomorrow: Tune in for a discussion of Brown v. Hot, Sexy and Safer Productions, Inc.  Sound interesting?

The Toolbox Training is a one-day program for campus administrators and special education staff that focuses on disruptive and/or violent students with disabilities. We provide ten “tools” that are available to enable school officials to serve each student appropriately, while maintaining a safe campus.  One of the words we study is “unilateral.”

In the only case about discipline of special ed kids to reach the Supreme Court, (Honig v. Doe)   the Court noted that Congress had intentionally stripped schools of the “unilateral authority” they had been using to exclude students who were disruptive.  So in the Toolbox training, we point out exactly what this means.  There are a few areas where principals retain “unilateral authority,” but many where they do not.

Principals have “unilateral authority” to use Tool #7—the FAPE-Free Zone.  These are the ten days during the school year when students can be suspended out of school, without any educational services.  In Honig v. Doe the Court gave its approval to this.

Any removal of the student that amounts to a “change of placement,” however, is going to require approval of the ARDC. So the principal cannot do this unilaterally.

After the Honig case Congress restored a measure of “unilateral authority” by identifying three “special circumstances” in which principals can order the removal of a student for up to 45 school days. This is not entirely a unilateral power, however.  The principal can remove the student to an IAES (Interim Alternative Educational Setting) but needs the ARDC to determine exactly what that IAES will be.  In Texas, it is usually the DAEP.  Furthermore, the removal of the student due to “special circumstances” must be approved by one of the child’s teachers. So the principal cannot use this authority “unilaterally.”

Perhaps that brief description whets your appetite for more information. Several lawyers in the firm can do the Toolbox Training for you, so if you are interested, just let us know.

DAWG BONE: I.D.E.A. DOES NOT LEAVE THE PRINCIPAL POWERLESS. JUST CONSTRAINED.

Tomorrow: Can the state require all kids to go to a public school?

This week the Daily Dawg highlights a clash of interests that is becoming more prominent these days. The parent wants to know what is going on with the child at school. The child wants to keep certain things from the parent.  How does the school navigate these parent-child conflicts?

Just to lay the groundwork for this, we will start with a couple of Golden Oldies.  The cases remain relevant because 1) they were decided by the Supreme Court; and 2) they are frequently cited in support of the parental right to direct the upbringing of the child.

The first case arose in a climate of fear over immigration and the influence of other cultures and languages in America. Sound familiar?  Shortly after World War I the State of Nebraska passed a law making it a crime to teach a child in a modern language other than English until the child had completed 8^th grade.  Instruction in Latin, Greek and Hebrew was permitted, but until you got to high school you could not be taught in a language that people actually use, other than English.  Thus high school kids could study French, German and Spanish, but no instruction in these languages was permitted prior to that.

Mr. Meyer was convicted of teaching a ten year old to read German in Zion Parochial School. He appealed the conviction all the way to the Supreme Court. The Court held that the Nebraska statute unreasonably infringed on the liberty guaranteed by the Constitution.  The Court held that Mr. Meyer’s right “to teach and the right of parents to engage him so to instruct their children” were “within the liberty of the [14^th] Amendment.”

It’s a short opinion and it focuses more on Mr. Meyer’s right to make a living than the right of the parents to make educational decisions. But the one line that is repeatedly cited is this one:

Evidently the legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.  (Emphasis added).

The next time the issue came up it was about the most anti-choice school law ever passed. We’ll talk about that one on Wednesday.

Today’s case is Meyer v. Nebraska, decided by the U.S. Supreme Court in 1923.  We found it at 262 U.S. 390.

DAWG BONE: YOU CAN BET THEY HAD NO IDEA THIS WOULD COME UP LATER IN CASES INVOLVING PREGNANT STUDENTS AND OTHER HOT BUTTON ISSUES.

Tomorrow: Toolbox Tuesday dissects the word “unilateral.”

When a Circuit Court issues a decision that is labeled “Precedential” it should get our attention. Thus I read with interest the decision of the Third Circuit involving an injured football player and a lawsuit against his coach.

The suit alleges that the kid was sent back into a practice after experiencing “a hard hit.”  There was another “hard hit” that resulted in the boy having a traumatic brain injury.  The parents sued the coach and the school district.

The court dismissed the claim against the district.  This was the easy part of the decision.  Case law is very clear that a school district is not legally responsible for every mistake made by every employee. The district would be liable only if the evidence showed that a school district policy or custom actually caused the injury.  That was not the case here, so the district’s Motion for Summary Judgment was granted.

The “precedential” aspect of this decision involves the suit against the coach.  The parent had a heavy burden of proof. Proof of negligence by the coach would not be sufficient. This was a federal court case based on the U.S. Constitution. Thus the parent would have to prove 1) that a constitutional right was at stake; 2)  the harm caused by the coach was foreseeable and fairly direct; 3) that the coach acted with a degree of culpability that “shocks the conscience;” 4) that the football player was a foreseeable victim of the coach’s actions, or at least a member of a discrete class of persons subjected to potential harm, as opposed to a member of the general public; and 5) that the coach affirmatively used his authority in a way that made the player more vulnerable to danger than otherwise.

If the parent successfully cleared all of those hurdles, he had one more: he had to show that the law about this was “clearly established” at the time of the student’s injury.

The court’s decision was based on the coach’s Motion for Summary Judgment—a pre-trial Motion for which the court is required to assume that the allegations in the complaint are true.  Based on that, the court held that the parent had alleged facts that would enable the case to clear all of those hurdles except the last one. The case against the coach was dismissed because the law about this was not “clearly established” in 2011 when the injury occurred.

That is good news for this coach, but a clear warning to coaches today.  A similar fact situation occurring today could lead to personal liability for the coach.  Here are the Key Quotes from the court’s decision:

If a jury concluded that [the coach] was aware of the first blow to [the player’s] head and observed signs of a concussion, the jury could conclude that [the coach] used his authority in a way that rendered [the player] more vulnerable to harm by sending him back into the practice session.

In summary, we hold that there exists a relationship between a student-athlete and coach at a state-sponsored school such that the coach may be held liable where the coach requires a player, showing signs of a concussion, to continue to be exposed to violent hits.  Stated otherwise, we hold that an injured student-athlete participating in a contact sport has a constitutional right to be protected from further harm, and that a state actor violates this right when the injured student-athlete is required to be exposed to a risk of harm by continuing to practice or compete.

That holding is, in fact, “precedential.” It breaks new ground.  But let’s put it in perspective by making a few important observations.

1. The court is really stretching the concept of “constitutional rights” here.  We know that students have a constitutional right to bodily integrity and that a school employee violates this right by sexually assaulting a student.  But this was an accidental injury suffered in a voluntary activity that the student knew to be risky. I’m not aware of any other court holding that the constitution protects students from football injuries.
2. This holding is based on a legal theory known as the “state created danger” theory. The 5^th Circuit has not accepted this as a viable theory of liability. The court has also not expressly rejected the theory. So this theory could succeed in Texas, but it would have to be the case that convinces the 5^th Circuit that this is a viable theory.
3. The court spends little time explaining why the coach’s decision could be construed as “shocking the conscience.” It’s easy to see how a jury could conclude that the coach made a bad mistake, but “shocks the conscience” is a well known expression in federal court cases, and it usually refers only to intentional, deliberate acts of malice.  This is quite a stretch.
4. Then of course there is the fact that this is a 3^rd Circuit decision, not binding on the courts in Texas, which is in the 5^th
5. The case is going to get a lot of attention around the country. It should. It’s a sign of the times. We take concussions much more seriously now, and have come to understand that the running back  wobbling off the field a bit woozy may be more seriously injured than it appears. So get the word to your coaches. Be careful out there. And cautious.

The case is Mann v. Palmerton Area School District, decided by the 3^rd Circuit Court of Appeals on September 21, 2017.   We found it at 2017 WL 4172055.

DAWG BONE: ASK YOURSELF: HOW WOULD COACH TAYLOR HANDLE THIS?  CLEAR EYES, FULL HEARTS CAN’T MAKE THIS KIND OF MISTAKE

Springboards to Education, Inc. has sued three entities associated with the KIPP Charter schools. The three are: KIPP Foundation, KIPP, Inc., and KIPP Texas Schools.  The suit is over trademark infringement.

Springboards created the “Read a Million Words Campaign” that encourages kids in schools to read 1,000,000 words by the end of the school year. Springboards markets a slew of educational products related to this campaign.  To protect its intellectual property, Springboards has registered several trademarks, including “Read a Million Words”; “Millionaire Reader”; and “Millionaire’s Reading Club.”  Springboards sued KIPP, accusing it of infringing on this trademark by using terms similar to this in social media posts.

The suit alleged violations of both state and federal law.  In a recent decision, the federal court dismissed all of the state law claims against one of those three entities—KIPP, Inc.  The court noted that KIPP, Inc., as an open enrollment charter school, has the same legal protection from lawsuits that traditional schools enjoy.  Traditional schools, and charters, are not just immune from liability—they are immune from the lawsuit in the first place.  Thus the court held that it lacked jurisdiction to further consider any claims under state law against KIPP, Inc.

The claims against the other two entities, and the claims under federal law are another matter.  The court also dismissed those claims, but did so “without prejudice.” This means that Springboards will have the opportunity to re-state its case to fix the problem that the court noted. The problem was that the lawsuit did not itemize specifically what each of the three defendants did to violate the trademark laws.  So the court gave Springboards an opportunity to re-plead the case to fix this problem.

The case is Springboards to Education, Inc. v. KIPP Foundation, decided by the federal court for the Northern District of Texas on September 7, 2017.  We found it at 2017 WL 3917701.

DAWG BONE: IMMUNITY IS A NICE THING, NO?

Here’s a simple lesson from a recent federal court case: an employee is not working in a “hostile work environment” when the reprimands she receives are justified.  Supervisors in the IT department at United ISD repeatedly reprimanded one of their employees over tardiness and absenteeism.  Eventually, the district terminated the employee over these issues and others.  The employee filed suit, claiming, among other things, that she was subjected to a hostile work environment.

Nope.  As the court points out, the boss does have the right to expect you to show up regularly, and on time.  If you get written up for that, you are not being treated unfairly.

The case is Garza-Delgado v. United ISD, decided by the federal court for the Southern District of Texas on September 27, 2017. We found it at 2017 WL 4326561.

DAWG BONE: HOLDING EMPLOYEES ACCOUNTABLE IS NOT “HOSTILE.”

The Toolbox is a one-day training program that focuses on serving students with disabilities appropriately, while maintaining safety for all.  IDEA requires schools to continue to serve students who may be seriously disruptive to the school, or even violent. How do you do that, and also maintain a safe school campus?

Sometimes we hear of districts conducting a “risk assessment” pertaining to a particular student.  When you have reason to believe that a student may pose a significant risk, this might be something to consider.

But a few words of caution are in order.  First, the term “assessment” connotes a need for parental consent.  If you are going to retain someone with some degree of expertise to help you figure out if a student presents a substantive risk, you would need to have parental consent for that “assessment.” Another word for “assessment” is “evaluation” and we know that evaluations require parental consent.

Second, the person conducting the assessment should be a person with some degree of expertise, such as a psychologist.   A quick Google search revealed that there are simple forms available for a so-called “Risk Assessment.”  But having someone fill out a form you found on the Internet sounds more like quackery than good practice. So deal with people with some expertise.

Third, do not suspend a student for an indefinite period of time, with the student’s return to school contingent on a risk assessment. This is what a school in South Dakota did, and a subsequent complaint went against the district.  The ruling in the case noted that “a school cannot unilaterally make completion of a risk assessment a perpetual requirement for that child to be returned to school.”

The school has other options if there is a genuine concern over a student’s presence on a particular campus.  In Toolbox terminology, the school can use Tool #2 to seek a change of placement with parental agreement. Or it can employ Tool #4 to seek an expedited hearing and an order from a hearing officer or court to remove the student to a safer location for a period of time.  Acting “unilaterally” and removing the student for an indefinite, and therefore, way too long, period of time is risky.

The Complaint investigation in South Dakota was decided on April 18, 2016 and we found it at 116 LRP 34997.

DAWG BONE: SCOURING THE WORLD FOR OBSCURE CASES—THE DAWG AT WORK.

Of course there are concerns. And, as usual, they have found their way to the courthouse.  In Alachua County, Florida, a parent complained of the upcoming Halloween festivities.  The parent noted that the school was decorated with depictions of witches, brooms, cauldrons and all. One teacher dressed up as a witch. The parent supported his case with an affidavit from a professor of cultural anthropology who stated that Wiccans consider Halloween to be a religious holiday, and that the school was promoting this religious view in violation of the Constitution.

Nope.  The school provided affidavits also, including one from a professor of religion who testified that contemporary Halloween celebrations are secular events without religious connotations. He further stated that Halloween was a cultural festival which “is an important event in the life of society and serves to bring the community together.”

The court agreed with that view, noting that “costumes and decorations simply serve to make Halloween a fun day for the students and serve an educational purpose by enriching the educational background and cultural awareness of the students.”

The Dawg is relieved to hear this.  At our firm we celebrate Halloween with enthusiasm, with pumpkin carving and very creative costumes, all in good fun.  If someone is trying to promote a religion, it slipped right past me!

The Florida case is Guyer v. School Board of Alachua County, decided by the District Court of Appeal of Florida, April 7, 1994. We found it at 634 So.2d 806.

DAWG BONE:  GOOD LUCK NEXT WEEK!