The Texas legislature recently enacted a law that might limit the ability of a parent to take a complaint about extracurricular activities to the school board. Complaints about such matters are legendary, and frequently focus on cheerleading.  But whether the school board hears the complaint or not, the matter can end up in court. And often does.

Perhaps the stereotype of the helicopter parent/cheerleader mom is dated and unfair.  All parents care about their kids’ participation in extracurriculars, as they should.  But for whatever reason, cheerleader parents, especially the moms, seem to get the brunt of the ridicule.

So I found it interesting that the complaint of a cheerleader dad has now made it to the second highest level of our judicial system—the Circuit Court.  The 9^th Circuit did not spend much time on it, giving it the back of its hand with a dismissal without even hearing oral argument.  The court ordered that its opinion not be published and could not be used as precedent in future cases, except under limited circumstances.  Dad had complained that the cheerleaders were held to higher academic standards than the football players; that his daughter was unfairly limited in practice time; and that he was retaliated against due to his advocacy.

Nope.  The court held that dad “lacked standing” to make some of these charges stick, and failed to allege adequate facts to establish the others.

Some day the SCOTUS will get to hear a cheerleader case, but it won’t be this one.  This one is Davis v. Folsom Cordova USD, decided by the 9^th Circuit on January 9, 2017.  You can find it at 674 Fed. Appx. 699 and 343 Education Law Reporter 47.

DAWG BONE: TWO, FOUR, SIX, EIGHT….WE JUST LIKE TO LITIGATE!!

That’s it for this week’s Daily Dawg. Enjoy the weekend, and check in on us on Monday.   

An expelled student in St. Tammany Parish, Louisiana, sued a whole slew of people in the school district, alleging violations of the U.S. Constitution in the way his expulsion was handled. The decision by the federal court in favor of the district is a good reminder of how the law on student discipline differs from criminal law.  Lawyers who represent students in school disciplinary matters would be wise to remember that.

For example, in this case the student alleged that he was interrogated without being given the familiar Miranda warnings that we see on TV all the time (“You have the right to remain silent….”).  The court found fault with this argument in three ways. First, the student provided no legal authority to establish that school administrators are required to give Miranda warnings.  Second, failure to give these warnings, in and of itself, is not a constitutional violation. You have to also show that statements of the accused were then used against him or her in a criminal case.   Third, even if the court considered this to be a legal violation, the law on it was certainly not “clearly established” at the time, and so the school administrators were entitled to qualified immunity from the suit.

The student also complained that a parish deputy was involved in the interrogation of him and the search of his cell phone.  His attorney argued that the involvement of the cops meant that there should be a tougher standard than the “reasonable suspicion” standard generally used in searches by school officials. The court noted that the 5^th Circuit has not specifically addressed this issue. However, the 8^th Circuit has considered the issue, and concluded that the “reasonable suspicion” standard still applies. This court agreed with the 8^th Circuit, and thus found nothing wrong with the search.  School administrators had been tipped off by another student about a drug deal. This provided “reasonable suspicion.” The 8^th Circuit case is Shade v. City of Farmington, 309 F.3d 1054 (8^th Cir. 2002).

This case is Decossas v. St. Tammany Parish School Board, decided by the federal court for the Eastern District of Louisiana on September 8, 2017. We found it at 2017 WL 3971248.

DAWG BONE: LAWYERS WHO DO CRIMINAL LAW AND TAKE ON THE OCCASIONAL SCHOOL DISCIPLINE CASE SHOULD READ THIS CASE AND LEARN FROM IT.

Tomorrow: How far can you take your case about your cheerleader daughter?

During my annual Back to School Tour this year we have polled the participants to identify four worthy candidates for a Regional Mt. Rushmore. People were eligible if they were born in, or achieved fame, within the region.

This has been fun, but has revealed a widespread lack of historical perspective.  Consider: in San Antonio there was no mention of Colonel Travis.  In Houston, Whitney Houston got almost as many votes as Sam.  Perhaps we need to remind the folks that the city was named for Sam, not Whitney.  In Kilgore a country singer I have never heard of (Neil McCoy?) finished second in the balloting.

Here are the results:

SAN ANTONIO—REGION 20

Coach Popovich

Tim Duncan

David Robinson

George Strait

Comment: They do love the Spurs….

AUSTIN—REGION 13

LBJ

Barbara Jordan

Ann Richards

Willie Nelson

Comment: As you can see, people in the Austin area are more serious minded.

KILGORE—REGION 7

Earl Campbell

Neil McCoy

Lady Bird

Don Henley

Comment: Two musicians and a football star. But I’m not going to criticize the selection of the Tyler Rose.  Hook ‘Em.

HOUSTON—HARRIS COUNTY DOE AND REGION 4

J.J. Watt

Mattress Mack

George H.W. Bush

Beyonce

Comment: Jose Altuve about to be the A.L. MVP and you go with a football player? 

MIDLAND—REGION 18

George W. Bush

Laura Bush

Roy Orbison

Chris Kyle

Comment: Chris Kyle is the American Sniper guy.  I’m sure you know the rest.

LUBBOCK—REGION 17

Buddy Holly (overall highest vote getter!)

Waylon Jennings

Spike Dykes

Sheryl Swoopes

Comment: Two musicians, which is appropriate given Lubbock’s strong heritage in music.

RICHARDSON/DALLAS—REGION 10

Tom Landry

George W. Bush

Ross Perot

Nolan Ryan

Comment: No musicians! This is the only Region where that happened.

FORT WORTH—REGION 11

Amon Carter

The Bass Brothers

Kelly Clarkson

Van Cliburn

Comment: And two votes for Keller ISD inhouse counsel, Amanda Bigbee!

Thanks to all who participated!  If you have ideas for what the survey question should be at next year’s BTS, let me know!

DAWG BONE: IF WE DID THIS WITH 8^TH GRADERS, WHO WOULD THEY VOTE FOR?

Tomorrow: St. Tammany Parish gives us a good cell phone case.

In the Toolbox Training we provide a full day devoted to the ten “tools” that are available to school administrators when dealing with seriously disruptive and/or violent behavior by students with disabilities.  Some of those tools involve a long term change of placement. Some of those changes of placement are to the DAEP.  In particular, Tool #6 is a Disciplinary Change of Placement due to a violation of the Code of Conduct that is not a manifestation of disability. And Tool #5 is a Special Circumstances Removal, which usually also involves a lengthy stint in DAEP.

Prior to sending a student to the DAEP, the Campus Behavior Coordinator must schedule and conduct a conference with the student and the parent.  This is not required by the U.S. Constitution. We have 5^th Circuit case law that establishes that the removal of a student to the DAEP is not a deprivation of liberty or property. Therefore, “due process,” as that term is used in the Constitution, is not required.  Nevares v. San Marcos CISD, 111 F.3d 25 (5^th Cir. 1997).

But you do have to schedule and conduct that conference, which is going to look an awful lot like a “due process” conference.  T.E.C. 37.009 lays it all out:

Not later than the third class day after the day on which a student is removed from class by the teacher…or by the school principal or other appropriate administrator…the campus behavior coordinator or other appropriate administrator shall schedule a conference among the campus behavior coordinator or other appropriate administrator, a parent or guardian of the student, the teacher removing the student from class, if any, and the student.

What happens at this conference?

At the conference, the student is entitled to written or oral notice of the reasons for the removal, an explanation of the basis for the removal, and an opportunity to respond to the reasons for the removal.

What happens if you can’t get everyone to attend?

Following the conference, and whether or not each requested person is in attendance after valid attempts to require the person’s attendance, the campus behavior coordinator, after consideration of the factors under Section 37.001(a)(4), shall order the placement of the student for a period consistent with the student code of conduct.

What “factors” is the law talking about?

(A) Self-defense;

(B) Intent or lack of intent at the time the student engaged in the conduct;

(C) A student’s disciplinary history; or

(D) A disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct.

The statute requires consideration of these four factors prior to each suspension, removal to DAEP or JJAEP and expulsion. Moreover, these factors must be considered “regardless of whether the decision concerns a mandatory or discretionary action.”

Of course if you are dealing with a student with a disability, there is another step to take—the ARDC meeting.

The laws pertaining to the discipline of special ed students are complex and detailed.  We created the Toolbox in an effort to streamline and simplify. If you are interested in a Toolbox training, please let me know.

DAWG BONE: WE DON’T CALL IT “DUE PROCSS” BUT IT LOOKS A LOT LIKE IT.

Tomorrow: Final results from this year’s Regional Mt. Rushmore Project!!

Last week we reviewed court cases, including one from the Supreme Court, about students refusing to stand and recite the Pledge of Allegiance.  The case law is very clear.  Students can symbolically express their opinions by refusing to join in this daily ritual.

So what about the National Anthem at the sporting event?  There was a spirited discussion of this on the listserv operated by the Council of School Attorneys recently. There was a definite  consensus among the lawyers.  The school attorneys were of the opinion that football players or cheerleaders who choose to “take a knee” during the Anthem are expressing themselves in a way that the First Amendment protects.  “Taking a knee” for the 90 seconds it takes to play the Star Spangled Banner is very much akin to Mary Beth Tinker walking into her middle school in Des Moines, Iowa in 1965 wearing a black armband. It is a symbolic expression that, of itself, is not disruptive.

I join in that view.  I think coaches would be wise to use the entire controversy as an excellent opportunity for a teachable moment.

However, there is one good argument that could be made to prohibit any symbolic protests during the playing of the Anthem.  That would be that the football player, while wearing the team’s uniform and preparing to represent the school, is not—at that time and place—free to express his own personal opinion about the matter.

I think that’s a valid argument.  However, we got a decision from the Court of Appeals in Beaumont that would reject that argument.  This is from the long lasting case of the Kountze ISD cheerleaders.

The cheerleaders have been putting Scripture verses, often of an overtly Christian nature, on the banner that the team runs through at the start of the game.  They are wearing their cheerleader uniforms. They are representing the school.  The team symbolically endorses the message on the banner by charging through it in aggressive, go-get-em football attack mode.  The cheerleaders in Kountze eschew the violent language customarily used on these banners (“Smash the Hornets; Kill the Tigers”) and prefer sentiments along the lines of “But thanks be to God, which gives us victory though our Lord Jesus Christ.”

According to the elected judges on the Court of Appeals in Beaumont, those cheerleader banners are the private, constitutionally protected expression of the cheerleaders. So if they want to express a religious message, they have the right to do so.

I have not yet met a school lawyer who agrees with that decision, but there it is.

So consider: if cheerleaders have free speech rights to put whatever they want on the banner, surely football players have the right to silently take a knee as the Anthem plays.

The cheerleader case is Kountze ISD v. Matthews, decided by the Court of Appeals in Beaumont on September 28, 2017.  We found it at 2017 WL 4319908.

DAWG BONE:  MAKE IT A TEACHABLE MOMENT…

Tomorrow: It’s Toolbox Tuesday!!

This week we are looking at cases in which students have challenged laws that require the recitation of the Pledge of Allegiance.  Today we look at the one Circuit Court case where the student’s argument was not completely successful.

Florida had a law that required students to stand during the Pledge, even those whose parents had opted them out of this requirement.  Under the statute, parents could do that. In fact, the only way the student could be excused from the requirement was with written parental consent.  More on that in a moment. So not all students would be required to recite the Pledge, but all of them would be required to “show full respect to the flag by standing at attention, men removing the headdress, except when such headdress is worn for religious purposes…”

The court held that the “stand at attention” part of the statute was unconstitutional.  You can require students to be non-disruptive, but not to stand.

However, the court was OK with the part of the law that allowed the student to refuse to recite the Pledge only with parental approval.  The court recognized the case law that acknowledges a student’s right not to recite the Pledge. But here, there was another important factor—the right of the parent to control a child’s upbringing.  Key Quote:

Although we accept that the government ordinarily may not compel students to participate in the Pledge…we also recognize that a parent’s right to interfere with the wishes of his child is stronger than a public school official’s right to interfere on behalf of the school’s own interest.

This decision is good news for the State of Texas, since we have a similar law.

On written request from a student’s parent or guardian, a school district or open enrollment charter school shall excuse the student from reciting a pledge of allegiance under Subsection (b). T.E.C. 25.082(c).

The Florida case is Frazier v. Winn, decided by the 11^th Circuit on July 23, 2008. We found it at 535 F.3d 1279 (11^th Cir. 2008).

This completes our review of “I don’t want to recite the Pledge” cases. On Monday we will reflect on what these cases mean for high school football players who choose to “take a knee” during the Anthem.

DAWG BONE: FOUR CASES ON THE PLEDGE.  KIDS WIN 3.5 OF THEM.

Pennsylvania adopted a statute that required the recitation of the Pledge of Allegiance or the national anthem at the beginning of each school day.  The statute specifically noted that students could decline to participate, but went on to say that the school would then be required to give written notice of this to the parents.

The Third Circuit held that the parental notification provision was unconstitutional.  The court held that the statute required schools to engage in unconstitutional viewpoint discrimination:

Pennsylvania’s parental notification clause clearly discriminates among students based on the viewpoints they express; it is “only triggered when a student exercises his or her First Amendment right not to speak.”  (Quoting from the district court’s decision).

This is a right that belongs to the student.  The court viewed the parental notification requirement as an obstacle to the exercise of that right. An unconstitutional obstacle.

The case is The Circle School v. Pappert, decided by the Third Circuit on August 19, 2004. We found it at 381 F.3d 172.

DAWG BONE: REGARDING THE PLEDGE AND STUDENT REFUSAL: KIDS 3—SCHOOLS 0. BUT TUNE IN TOMORROW!

Tomorrow: OK, kids can refuse to say the Pledge, can raise a fist in protest, and we can’t tell the parents.  But they have to stand up, right?

This week we are looking at cases involving students and the Pledge of Allegiance.  On Monday, we looked at the only Supreme Court case we have on this subject, West Virginia State Board of Education v. Barnette.  Today, we move to the 11^th Circuit in 2004.  As usual, the fact situation is interesting.

Our story begins when John Michael Hutto stuck his hands in his pockets and remained silent during the Pledge.  When his teacher asked about this, the young man told her that he did not want to recite the Pledge, had not recited it in a month and did not have to say it.  The teacher, in front of the whole class, reminded him that he was the recipient of a scholarship to the Air Force Academy.

The teacher then got the principal involved, who threatened to report the student’s behavior to the recruiter at the Academy and the Congressman who had recommended Hutto.  The student was ordered to apologize to the teacher and the class, which he did.

This did not sit well with another student, Michael Hollman, soon to be known as “the Plaintiff.”  The following day, Holloman stood during the Pledge and silently raised his fist.  The teacher shamed him in front of the class. The principal gave him three days of detention. Since it turned out that Holloman was due to graduate in fewer than three days, the principal gave him the option of accepting corporal punishment, which is what happened.  So he was paddled for raising a fist during the Pledge.

The court held that if these facts were proven to be true, the student’s constitutional rights had been violated. Moreover, neither the teacher nor the principal was entitled to qualified immunity. They both faced potential personal liability for punishing the student for the exercise of free speech.  Based on the Barnette case and others, the court held that the student was engaging in non-disruptive, symbolic speech that was entitled to constitutional protection.  Key Quote:

At the very least, Holloman’s gesture was expressive conduct…..Even if students were not aware of the specific message Hollman was attempting to convey, his fist clearly expressed a generalized message of disagreement or protest directed toward [the teacher], the school, or the country in general.

So that’s two cases involving students refusing to participate in the Pledge, and the kids have won both cases. Tune in tomorrow for Round Three. This one is Holloman v. Walker County Board of Education, decided by the 11^th Circuit Court of Appeals on May 28, 2004. We found it at 370 F.3d 1252.

DAWG BONE: KIDS 2—SCHOOLS 0.  A TREND?

Tomorrow: If you don’t say the Pledge, we’re going to tell your mother!

The Toolbox is a full day program focusing on students with disabilities who are disruptive and/or violent. How do you maintain a safe school, while serving each student?  What options do you have?  In the Toolbox, we provide ten “tools” that empower campus administrators to comply with the law while serving students appropriately.

One of the tools is Tool #9—Leadership at the Non-Consensus ARD Meeting.  We like to emphasize the role of the campus administrator as the logical and natural leader of the ARD meeting.  So Tool #9 is very much about the skill set that this person must have. We think you generally have a pretty good inclination of when non-consensus is likely to happen, and encourage administrators to ask “the three questions” before allowing the meeting to end in a non-consensus posture.

The three questions are:

1. Is this worth fighting over?
2. Are we legally defensible?
3. Are we united in our position?

In the Toolbox training we provide more perspective on how these questions should be answered.  If you are interested in a day of Toolbox, just give me a buzz!

DAWG BONE: NOT EVERY FIGHT IS WORTH HAVING.  NOT EVERY STANCE IS LEGALLY DEFENSIBLE.  YOUR POSITION IS NOT ALWAYS THE SCHOOL’S POSITION.

Tomorrow: We look at another Pledge of Allegiance case—one involving a raised fist and a paddled student.

The culture wars always find their way into the public school. Thus it is not surprising that the brouhaha involving the NFL, Donald Trump, the National Anthem and the appropriateness of “taking a knee” or otherwise symbolically expressing an opinion would find its way onto the sideline of the Friday night football game. Can a student football player, wearing the school’s uniform, express his private opinion by “taking a knee” during the playing of the Star Spangled Banner?

We are going to spend all week on this issue (except for Tuesday, which is reserved for The Toolbox).  We do not yet have reported case law about the National Anthem, but we have several important cases about a similar national ritual—the Pledge of Allegiance. Today, we lead off with the granddaddy of all student free speech cases—West Virginia State Board of Education v. Barnette.

That case arose when some students in West Virginia refused to salute the flag during the daily, required Pledge of Allegiance.  The reason for the refusal was religious. The students were Jehovah’s Witnesses. They cited Exodus 20: 4-5 for the notion that they were not to “bow down” or serve any “graven image.”  To them, the flag was a “graven image,” and saluting it would violate God’s commandment.

The Supreme Court ruled that the students could not be forced to salute the flag, and school officials could not punish them for their refusal.  So this case established that students who object to a flag salute based on religion are not required to salute the flag. But the Court made it clear that the decision was based on fundamental First Amendment free speech grounds, not just religion:

Nor does the issue as we see it turn on one’s possession of particular religious views or the sincerity with which they are held. While religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual.

The majority opinion in the case is eloquent. Here are some quotes that resonate in the context of the current controversy:

Symbolism is a primitive but effective way of communicating ideas.

Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another man’s jest and scorn.

Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations.

Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing.

Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.  Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.

Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own.

And here is the quote from this case that is most frequently cited:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

The case is West Virginia State Board of Education v. Barnette, decided by the U.S. Supreme Court on June 14, 1943.  That’s right—1943. Right in the middle of World War II, when patriotism and national unity were at an all time high.

DAWG BONE:  THIS ONE IS A CASE ALL EDUCATORS SHOULD KNOW ABOUT.

Tomorrow: Toolbox Tuesday!!