Join us at the Iron Cactus tonight in downtown Dallas. Our annual opportunity to treat the board members and superintendents who make our schools work. If you are attending TASA/TASB, be there or be square.
DAWG BONE: HOPE TO SEE YOU!
See you next week, Honored Readers!
I bet you’ve heard the same thing I have—that in the world of real estate there are three critical factors: location, location and location.
In the real estate world, “location” means street address, or latitude and longitude. But due to a 9th Circuit decision, we now have confirmation that “location” has a different meaning to educators.
Rachel was served in a private school at public expense for the 2011-12 school year. In May, 2012, the student’s IEP Team in Hawaii decided that her special education needs could be met at a public school. Thus the expectation of all parties was that Rachel would be at Kalani High School, which was close to Rachel’s home. The IEP, however, did not specify what school Rachel would attend.
The family moved over the summer. Now they were in Kailua, 20 to 30 miles from Kalani High. Rachel’s dad requested public reimbursement for private schooling indicating that the student would attend private school, rather than Kalani High or any other public school. The school district turned down the request.
The case ended up before the 9th Circuit, with the father arguing that the failure to identify a specific school was a serious procedural error that deprived the student of FAPE. The argument was based on the requirement in IDEA that the IEP must identify the “frequency, duration and LOCATION” where services will be provided.
The court delved into the details of comments to the federal regulations and legislative history and concluded that “location” does not mean what you might think. “Location,” the court concluded, means the “type of environment that is the appropriate place for provision of [a special education] service.” Thus the IEP must identify whether services will be provided in the general education classroom, a special classroom or other setting. There may be times when an IEP needs to identify a specific campus where the student will be served, but the failure to do so does not “per se” violate IDEA.
The court seemed to think the dad was trying to pull a fast one here. When the family let the school know that they had moved, the school asked the logical question: where do you live? Which attendance zone are you in? The parents did not answer that question. Thus the school officials could not identify which high school the student would attend. The court put it this way:
But instead of undergoing a normal registration process with the educational agency in Kailua, Rachel’s parents decided to treat a purported technical violation of the IDEA as allowing them to unilaterally enroll their daughter in private school at public expense without identifying a single special education need her existing IEP failed to meet….Because the IDEA does not require educational agencies to identify a specific school in every IEP, this gambit must fail.
Let’s keep this in context. Your IEPs normally do identify a specific school. Moreover, in 99% of the cases, everyone knows exactly which school the student will attend. This court decision is helpful, though, by confirming what we have always thought “location” means in the IDEA.
The case is Rachel H. v. DOE State of Hawaii, decided by the 9th Circuit on August 29, 2017.
DAWG BONE: COURT THINKS IT WAS A “GAMBIT.” FURTHER PROOF THAT THE JUDGES ARE ALWAYS QUIETLY ASSESSING THE REASONABLENESS OF THE PARTIES.
Tomorrow: An invitation to a social event!
The Department of Education has issued an interim Q and A regarding campus sexual misconduct. Although much of the media attention on this issue has focused on higher education, the Q and A is equally applicable to K-12 public schools that are subject to Title IX due to the receipt of federal financial assistance.
The Q and A should be reviewed carefully by your Title IX Coordinator. Here are six things that I took note of as I reviewed the Q and A:
In every investigation conducted under the school’s grievance procedures, the burden is on the school—not on the parties—to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred, and, if so, whether a hostile environment has been created that must be redressed. A person free of actual or reasonably perceived conflicts of interest and biases for or against any party must lead the investigation on behalf of the school. Schools should ensure that institutional interests do not interfere with the impartiality of the investigation.
There is a lot more in the Q and A about investigations that merits careful review in your district.
On November 15th, TASB is hosting a conference on Title IX, free to members of the TASB Risk Management Fund. They call it: Title IX Symposium: Theory and Practice. In light of this rapidly evolving area of the law, this should be a very valuable conference. Karla Schultz and Meredith Walker from our law firm will be among the presenters. Check it out here: https://www.tasbrmf.org/Member-Service-Center/Risk-Managemespxnt-Member-Solutions/Member-Training/Title-IX-Symposium.a
DAWG BONE: TITLE IX COORDINATORS SHOULD STUDY THIS Q AND A.
Tomorrow: what does “location” mean?
Now that’s an interesting question. The Toolbox is an all day training program focused on serving disruptive and/or violent students in compliance with our special education laws. There are ten tools in the Toolbox, but as I mention every time I do the Toolbox, that number is arbitrary. We probably could have expanded it to 13 or shrunk it to seven. It’s kind of dependent on how you describe things.
So what would be Tool #11?
Hmmmm.
I think I would call it The Good Common Sense Factor. Don’t overreact to student misconduct. Keep the big picture in mind. That may sound vague. It is. But it’s also essential.
I can remember getting a phone call 25 years ago from a superintendent who wondered what to do with the kid with the tattoo. I don’t remember what advice I gave, but if I had thought real fast, I could have said: “Don’t do anything. Just wait 25 years and that kid will be an assistant principal in your district.”
I’ve got Toolbox Workshops coming up on October 12 (Region 15); November 6 (Region 7); November 10 (Region 6); March 23 (Region 6) and April 10 (Region 7). If you are interested in getting on the list, let me hear from you.
DAWG BONE: IT’S A GOOD QUESTION, BUT I’M STICKING WITH TEN. JUST LIKE THE BIG 12.
Tomorrow: New Guidance from DOE on sexual misconduct.
There is one obscure provision in David’s Law—SB 179—that may draw a challenge under the First Amendment. The State of Washington has a similar provision, and it’s being challenged in court right now.
David’s Law increases the potential criminal penalties for online harassment. Section 42.07 of our Penal Code makes it a criminal offense for a person to send “repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass or offend another.” To prove that this statute has been violated, the prosecutor would have to show that such repeated e-communications have occurred, and also that they were done “with intent to harass, annoy, alarm, abuse, torment or embarrass.”
I’m sure that all of us see e-communications every day that are “reasonably likely” to “annoy” or “offend” someone. So that’s a pretty broad standard, and you can expect someone to argue that it is so overly broad and vague that it improperly infringes on free speech rights.
We can expect someone to raise this argument, but they are unlikely to succeed. David’s Law made only a slight change to Penal Code 42.07—it enhanced the penalty for violating it via “repeated” e-communications. The underlying statute has already survived a constitutional challenge. The case arose when Sean Lebo was convicted of harassing a Bexar County detective. The court found that Mr. Lebo had sent almost 40 emails to the detective accusing him of corruption, threatening to sue him, calling him names and threatening his family. This conduct continued even after the detective asked that it cease. Mr. Lebo was convicted of online harassment. On appeal, he challenged the constitutionality of the statute.
It didn’t work. The court concluded that the statute effectively prohibited conduct, not the communication of ideas. Key Quote:
That is to say, in the usual case, persons whose conduct violates [the statute] will not have an intent to engage in the legitimate communication of ideas, opinions, or information: they will have only the intent to inflict emotional distress for its own sake. Lebo v. State, 474 S.W.3d 402 at 407 (Tex. App.—San Antonio 2015), quoting from Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010).
DAWG BONE: ALWAYS A GOOD IDEA TO ASK THEM TO CEASE THE HARASSMENT BEFORE FILING CRIMINAL CHARGES.
Tomorrow: Toolbox Tuesday speculates over an 11th tool!
Sometimes the good stuff is in the footnotes. In Footnote 10, the very last part of a decision from the Court of Appeals in El Paso we find this testimony from the teacher's (former teacher's) testimony:
The teacher had been warned before about this kind of thing. Here's part of the reprimand the teacher received in 2009:
During the course of the investigation additional allegations were made by students in your classroom. They alleged that you frequently made comments to them about God, read passages from the Bible, told students that the middle finger meant "you want to have sex," and the Texas Longhorn sign was satanic. Finally, students alleged that you made inappropriate comments about President Obama and told them that the world was going to end and everyone was going to die.
The legal issues in the case involved the Whistleblower Act. The teacher was unsuccessful in her effort to get her termination overturned. But I'm telling you, the Whistleblower stuff is downright boring. Read the footnotes. That's where the good stuff is.
The case is Whitney v. El Paso ISD, decided by the Court of Appeals in El Paso on August 23, 2017. We found it at 2017 WL 3614149.
DAWG BONE: AND WHY WERE THESE ISSUES RELEVANT TO "TECH APPLICATIONS"?????
It’s interesting to see which new laws generate the most interest. As I do my Back to School presentations, I notice some things. People are very engaged and interested in the new laws about bullying and teachers crossing the invisible line with students. But the discussion of those issues, important as they are, does not generate a lot of questions or “what ifs.” However, when we get to SB 1553 the room comes alive. This is the one about ejecting unruly people from campus. Apparently, this is happening! Who knew?
Some of the questions revolve around the phrase “inappropriate in a school setting.” What does that mean? What if the person is dressed in a way that is overly revealing? How about the parent who “insists” on having lunch with the student every day, even when school policy limits parents to two days a week?
We’re having a lot of fun thinking up hypothetical, or not so hypothetical, situations that may arise. As a general rule, I think “inappropriate in a school setting” leaves you school administrators with a lot of discretion. If experienced school administrators believe that a person’s behavior is “inappropriate in a school setting” then it probably is. Obviously you will want to avoid any enforcement of this law that would be discriminatory or infringe on parental rights. But your judgment as to appropriate standards of civility is likely to be upheld. Keep in mind that the appeal of your judgment about this 28is unlikely to end up in court. The appeal process goes to your superintendent and then to the school board. If they share your view of what is “inappropriate in a school setting” then you are on solid ground.
I don’t expect any of this to come up today, however. Today I’m doing the Back to School at Region 17 in Lubbock, where no one ever behaves inappropriately. Polite folks there in Lubbock. Seldom is heard a discouraging word.
DAWG BONES: BUT WATCH FOR FLYING TORTILLAS AT THE FOOTBALL GAME!
Tomorrow: Speaking of football, did you know that the Hook Em Horns sign is satanic? Me neither!
According to the Texas Secretary of State, Texas principals are falling down on the job in terms of serving as deputy voter registrars. State law requires principals--REQUIRES--to distribute voter registration applications to students who will be 18 years old by Election Day. Our Secretary of State reports that this duty seems to be neglected.
Voting is a civic responsibility. This is something we should be teaching about. We should try to instill excitement in young people in having a voice in our government.
When I was young, the voting age was 21. It just so happened that the City of Austin had a mayoral and city council election on my 21st birthday. I still remember going to the polls that day. The election clerk stared for a while at my voter registration card and drivers license, and then said: "Happy Birthday."
Election Day (the primary) is March 6. We will be electing a governor, a lieutenant governor, a U.S. Senator and representatives at the state and local level. Let's see if we can get all those newly eligible voters to the polls.
DAWG BONE: VOTING IS A RIGHT AND A RESPONSIBILITY. LET'S ENCOURAGE IT.
Tomorrow: I’ll be at Region 17 for the Back to School program. Hello Lubbock! And the Dawg discusses behavior inappropriate in a school setting
On Tuesdays we like to focus on issues of importance to student discipline. The Toolbox Workshop is all about the "tools" that are available to campus administrators when confronting inappropriate behavior from students with disabilities. One of those tools--Tool #7--is what we call "the FAPE-Free Zone." This refers to the ten days per year when disciplinary consequences can be imposed, even if this means that the services in the IEP will not be provided. Obviously an out of school suspension would require the use of Tool #7.
However, the twin forces of law and policy are encouraging educators to rely on Tool #7 as little as possible. Out of school suspension is an example of "exclusionary" discipline. It excludes the student from the community, doesn't really teach the student anything, and may retard the student’s academic progress. As evidence of the trend away from exclusionary discipline, we now have HB 674, which prohibits the out of school suspension of kids until they are in third grade. There are exceptions for offenses involving weapons, drugs, alcohol or violence (assault). But that non-compliant second grader who is smoking in the classroom while dropping F-bombs will have to be dealt with in some other way.
DAWG BONE: THIRD GRADE! FIRST OPPORTUNITY TO TAKE THE STAAR TEST!! FIRST OPPORTUNITY TO GET SUSPENDED!!!
Tomorrow: You can vote at 18….
Interim superintendent Leobardo Cano signed a contract with the school board in Robstown ISD just three days before the board election in 2012. The contract was just for six months at a salary of $10,000 per month.
The election resulted in a major shakeup on the board, and it took the new board only one month to notify Mr. Cano that his services were no longer needed. Mr. Cano demanded the severance payment he had negotiated with the previous board, should his employment be terminated early. The board said no. Mr. Cano appealed to the Commissioner, who agreed with the board that the district owed him nothing. Mr. Cano then took the case to Travis County district court, where he was successful. The court ordered the district to pay him $60,000. But now the Court of Appeals has reversed that decision.
The dispute hinged on the language in the interim contract:
This Contract may be terminated by the District at any time prior to its expiration, with or without cause, upon written notice to Superintendent and the payment by the District of an amount equal to six months' salary, or an amount equivalent to the salary for the months remaining in the Contract term at the time of notice, whichever is less.
Mr. Cano argued that this was the only way the contract could be terminated early, and that it obligated the district to pony up the $60K. This argument focused on the provision in the contract that it applied if the termination was "with or without good cause." But the district argued that it still retained the power to terminate the man's employment based on good cause, and that the severance payment was not owed in that case. The district cited three specific grounds for termination of employment. The court ultimately agreed with the district.
The case does not give us any new insights into school law, as the court's analysis is simply a matter of contract interpretation. But what we can learn from this case is how important contract language can be.
The case is Morath v. Cano, decided by the Court of Appeals in Austin on August 17, 2017. We found it at 2017 WL 3585252.
DAWG BONE: BE CAREFUL WHAT YOU SIGN!
Tomorrow: Toolbox Tuesday looks at a new provision in Chapter 37, and I will be at Region 18 for the Back to School program. See some of you there!