This being Football Friday, the Dawg offers a gentle reminder to coaches, broadcasters and others.  This phrase, “he just had his bell rung” should be retired.  We have heard it for decades, mostly when a football players wobbles off the field after a hard hit.  But it reflects an overly casual attitude toward head and brain injuries.  We now know that these things should be taken seriously.

So let’s be careful about how we discuss these things. And as usual, with a football related issue (see Dawg Bone).

DAWG BONE: ASK YOURSELF: WHAT WOULD COACH TAYLOR SAY?

Let’s start with this.  A student makes a bomb threat at a public school. The principal, not surprisingly, questions the kid about this.  Mom sues the principal and assistant principal over questioning her child without notice to her. Does mom sound pretty unreasonable?

Well, then, let’s add some more facts. The student was nine-years old and has autism.

More facts: the questioning was not just by the two school administrators.  There were two uniformed (and presumably armed) police officers questioning the boy as well. That’s four grown up men, two of them with guns, interrogating this little boy.  Does that affect how you think of this?  Can you understand mom’s concern?

Want some more facts?  They arrested the kid, took him to the station and charged him with terroristic threat.  Mom knew nothing of any of this until the boy had been at the police station for an hour.

Just a few more facts.  The kid didn’t exactly call into the school and say “there’s a bomb about to go off in the library.” That would be a bomb threat.  No, that’s not what happened here. What happened is that five days before all of this, a bomb threat was discovered written on a bathroom stall. The building was evacuated. Our nine-year old with autism had nothing to do with this, but it made it an impression on him. So five days later, he attempted to re-create the situation by writing “bone thrat” on the wall of the bathroom stall.

So he didn’t really make a “bomb threat.” He made, at most, a “bone thrat.”

Now what do you think?

The court held that the principal and assistant were entitled to qualified immunity. First of all, they did not make the decision to arrest the boy. The cops did that. As to the questioning, the court held that “No court has recognized the right of students to be free of questioning by school officials after reporting a bomb threat.”

Case dismissed. It’s well established that school officials can question a student about misconduct in the school without advance notice to the parents.  But you can understand how this mother felt when she found out what happened at school.  It’s always important to get an understanding of all of the facts of a situation before forming an opinion.

The case is Hicks v. Kilgore, decided by the District Court for the Middle District of Georgia on May 4, 2017. We found it at 69 IDELR 266.

DAWG BONE: MAYBE A CALL TO THE MOM WOULD HAVE SAVED A LOT OF TROUBLE.

Tomorrow: a phrase we ought to quit using on Friday nights.

The culture wars in our country have many “fronts.” One of those concerns immigration, ethnic and cultural diversity, English vs. Spanish and related issues.  It’s boiling over in Arizona, the home of “Sheriff Joe,” and the site of a long running battle over a curriculum offering in Tucson.   A federal court recently weighed in with a stinging rebuke of state leadership.

Tucson Unified School District had a Mexican-American Studies (MAS) program.  In 2010-11, the program offered 21 classes at the middle and high school levels. There were 1300 students enrolled in those classes, all voluntary.  Ninety percent of the students in the MAS classes were Latino. Sixty percent of all students in TUSD were Latino.

A professor from the University of Arizona confirmed that the program was beneficial, particularly raising academic achievement of Mexican-American students. But the program got sucked into the political vortex in 2006 when a Latina labor leader gave a speech at the high school in which she said that “Republicans hate Latinos.”

The state’s Superintendent of Public Instruction sent his deputy to the high school to offer a rebuttal in which she explained why she was proud to be both a Latina and a Republican.  The court tells us that a group of students attending the speech “protested by taping their mouths, turning their backs, raising their fists, and walking out of the auditorium.”

The state Superintendent was there, and he did not like it. He later wrote an open letter to the citizens of Tucson encouraging them to drop the MAS program.  Tucson did not do that.

This ultimately led to a bill passed by the state legislature that prohibits any public school from offering courses that: (1) Promote the overthrow of the United States government; (2) Promote resentment toward a race or class of people; (3) Are designed primarily for pupils of a particular ethnic group; or (4) Advocate ethnic solidarity instead of the treatment of pupils as individuals. Districts that offered such a course could lose up to 10% of their state funding.

The Arizona Department of Education ultimately concluded that the MAS program in Tucson violated this law and threatened to cut funding.  TUSD dropped the program.

But a group of students and parents challenged the law, claiming that it violated their rights under the First and Fourteenth Amendments.  They faced a heavy burden of proof. They had to show that this law was passed, at least in part, with a discriminatory intent.  They succeeded.

The court’s opinion is long and includes a detailed description of the development of the law that ultimately passed.  The most colorful and convincing evidence of discriminatory intent came from blog posts that were made anonymously by John Huppenthal.  At the beginning of this story, Mr. Huppenthal was chair of the Senate Education Accountability and Reform Committee.  Later, he successfully ran for the elected position of State Superintendent of Public Instruction, using the issue of the MAS as a key part of his campaign. Some of the entries that he posted using a false name:

I don’t mind them selling Mexican food as long as the menus are mostly in English.

The rejection of American values and embracement of the values of Mexico in La Raza classrooms is the rejection of success and embracement of failure.

The Mexican-American Studies classes use the exact same technique that Hitler used in his rise to power.

Senator/Superintendent Huppenthal saw this clash of values as apocalyptic:

And so when we encountered this situation, we did what Hannibal did to the Romans, and when Hannibal encountered the Romans he stretched them out…So we elaborately built our case…stretched them out for a while year…[until MAS] lost an enormous number of their MAS students.  [MAS] had to continue to defend themselves in the press.

The war with MAS is eternal…it goes back to the plains of the Serengeti…when we were evolving as a human race, the battle between the forces of collectivism and individualism.  It defines us as a human race.

The court noted that the Arizona Department of Education (ADE) ignored the independent audit which found that the program complied with state law.  Despite that, ADE decided that the program violated state law without further investigation, and ordered it shut down.  Moreover, the court noted how unusual it is for a state legislature to take aim at a single part of the curriculum in a single school district.  Moreover, no one looked into the African American or Asian American studies programs that were offered. It all seemed to be focused on Hispanics.  And then there were all those blog posts and other statements revealing a racial bias. The court concluded:

Finally, Huppenthal’s comments describing his “eternal” “war” against the MAS program expose his lack of interest in the welfare of TUSD students, who would be the focus of legitimate pedagogical concern if one existed.  Those comments reveal instead a fixation on winning a political battle against a school district. Having thus ruled out any pedagogical motivation, the Court is convinced that decisions regarding the MAS program were motivated by a desire to advance a political agenda by capitalizing on race-based fears.

The case of Gonzalez v. Douglas was decided by the U.S. District Court for the State of Arizona on August 22, 2017.   We found it at 2017 WL 3611658.

DAWG BONE: YOU WOULD THINK THAT THE IMPROVEMENT IN STUDENT PERFORMANCE WOULD COUNT FOR SOMETHING.

Tomorrow: Principal questions a kid after a bomb threat. Gets sued.

True or False: the principal can send a student to the DAEP before the ARDC meets, and prior to the manifestation determination.

The answer is True. And we have a nice illustration of this point in a recent court order from Riesel ISD.

Here’s what happened:

7-6-17: Hearing officer issues a decision in favor of the district in a case where the parent challenged the IEP for 2016-17 and related issues.  Disciplinary removal was not an issue in the hearing.

8-2-17: Student is involved in an unspecified “altercation” on campus.

8-4-17:  Parent appeals the due process decision to federal court.  Remember: that case has nothing to do with the disciplinary incident.

8-9-17: Principal concludes that student violated Code of Conduct. Assigns him 40 days in DAEP to begin when next semester begins on 8-16-17.

8-16-17: Assignment to DAEP begins.  Parents file Emergency Motion to Stay Put in federal court, seeking to have the student returned to Riesel High School.

8-21-17: ARDC meets, conducts MDR and determines that student’s behavior is not a manifestation of disability.

Does the stay put rule come into play?  Is the school required to put the student back in his regular Riesel High School placement, pending the outcome of the appeal of the due process case? That’s what the parent argued.  But the court disagreed.

The critical fact, according to the court, was that the ARDC decided that the behavior was not a manifestation of disability.  When that’s the case, the “stay put” rule does not come into play.  If the behavior had been a manifestation of disability, then the student would have been returned to his regular placement.  But since it was not a manifestation, the assignment to DAEP could continue.  The court said the idea that the stay put rule would insulate the student from disciplinary action would lead to an absurd result:

If the Court were to rule otherwise, such result would….lead to an absurd result permitting a disabled student to remain in general education classes at their current school even if the student repeatedly and daily: (1) used profanity; (2) brought pornography to school; (3) gambled on the school campus; (4) violated the dress code; (5) cheated on exams; and (6) smoked at school.

One more issue: was it OK for the principal to send the student to DAEP before the MDR had been done?  Yes.  As the court points out, the regulation says that the MDR is to be conducted with ten school days of the assignment.  Here, the assignment began on 8-16. Ten school days later would be 8-29. They had the ARDC on 8-21—well within the timeline.

This is the kind of situation we discuss and practice on at the Toolbox workshops. If interested in bringing The Toolbox to your district or ESC, please let me hear from you!

This case is Leigh Ann v. Riesel ISD, still pending in the Western District of Texas. The court’s order denying the Emergency Motion to Stay Put was issued on August 29, 2017.

DAWG BONE: PRINCIPALS CAN ASSIGN TO AN INTERIM SETTING, LIKE DAEP, AND THEN HOLD THE ARDC MEETING.

Tomorrow: More controversy over immigration issues in Arizona.

Dear Dawg: Our superintendent has issued a new directive, telling us that if we are aware that a transgender student wants to keep that information confidential, then we are supposed to honor that request. Which I am fine with, except that I asked the superintendent if that applies to the child’s parents. And he said it does. I asked: what if the parents ask us point blank—is my child claiming to be transgender while at school? And the supe said “It’s confidential.  Lie to them.”  WTH!

DEAR WTH:  The Dawg does not condone lying under any circumstances. We think your superintendent is giving you bad advice.  We read about a situation like this brewing in Washington state. We don’t know what the laws are in Washington, but here in Texas we have a very clear directive:

T.E.C. 26.008: (a) A parent is entitled to FULL INFORMATION regarding the school activities of a parent’s child except as provided by Section 38.004 [Child abuse investigations].

(b) An attempt by any school employee to encourage or coerce a child to withhold information from the child’s parents is grounds for discipline under Section 21.104, 21.156, or 21.211, as applicable. (Emphasis added).

So you don’t withhold, or encourage withholding of information and you don’t lie.  Not to the parents.  Now you may run into very difficult situations where you have good reason to believe that disclosure of certain information to the parent would subject the student to abuse.  You need to talk that situation over with your legal counsel. But we think you can find an appropriate course of action short of outright mendacity.

DAWG BONE: PARENTS ARE PARTNERS WITH US.  SAYS SO IN T.E.C. 26.001. DON’T LIE TO YOUR PARTNER.

 Tomorrow: A Toolbox illustration from a Texas district!

John Harrington was supposed to be the lead actor in the school play.  This would nicely cap the high school career of young Mr. Harrington, a well-respected senior and member of the National Honor Society. But the assistant principal accused him of plagiarism, gave him two days of after school detention and barred him from the school play.    We can learn three things from the subsequent lawsuit.

First, a student is not entitled to “due process” when assigned to after school detention.   Process is due under the constitution when students are deprived of their right to attend school via a suspension or expulsion.  After school detention does not implicate the constitutional right to due process. This kid had another problem with this argument—he never served the time.  The parents appealed the A.P.’s decision to the principal, and the principal revoked the detention.

Second, removal from the school play—even the lead role in the school play—does not require due process.  The court cited an earlier case for the notion that “exclusion from a particular course, event or activity is of no constitutional import.”

Third, you are going to have a hard time proving a disability-based discrimination case when there is a non-disability reason for what happened.  The student acknowledged that the reason he was removed from the lead role in the school play was because of alleged plagiarism, not his disability.  So there was no basis for a Section 504/ADA case.

The case is Harrington v. Jamesville Dewitt Central School District, decided by the federal district court for the Northern District of New York on April 11, 2017.  We found it in Special Ed Connection at 69 IDELR 235.

DAWG BONE: YOU JUST HAVE TO WONDER IF THE CASE COMES OUT DIFFERENTLY IF THE PLAY WAS “HAMILTON.”

See you next week!

School employees enjoy “qualified immunity” that protects them from legal liability when they are sued in federal court.  The immunity is designed to protect school employees from liability when they make a mistake, or a bad judgment call.  But there are limits.  A bus monitor in Angleton ISD has been sued for allegedly abusing a student with autism, repeatedly, on the school bus.  The pleadings in the case include this:

That on 37 bus trips over a 22-day period, [the bus monitor] viciously assaulted the minor Plaintiff, with no provocation whatsoever, a verified and documented 39 times, including pinching, slapping, and striking him with a metal belt buckle, his school supplies and even his own tennis shoes.

Yikes.  The suit alleges that the videos on the bus will confirm all this.  The bus monitor filed a Motion to Dismiss the case, asserting her qualified immunity. The court denied the Motion, holding that the law on this is “clearly established.” Key Quote:

A reasonable school district employee would have understood that a school bus monitor’s repeatedly striking a disabled, nonverbal student, without any provocation or justification, violated the child’s substantive due process rights and that such conduct was objectively unreasonable in light of the clearly established law at the time.

The case has a long way to go. The plaintiff has kept the case alive by providing detailed allegations of shocking behavior, but still bears the burden of proving the truth of these allegations.

But for today, the case stands as a reminder that qualified immunity is QUALIFIED.  More important than that, the case is a reminder of the importance of paying attention to what happens on the school bus.

The case is Saldana v. Angleton ISD, decided by the district court for the Southern District of Texas on April 25, 2017.  You can find it at 2017 WL 1498066 or on Special Ed Connection at 69 IDELR 274.

DAWG BONE: YOU HAVE IMMUNITY WHEN YOU MAKE A MISTAKE. NOT WHEN YOU ABUSE A CHILD.  THAT SEEMS FAIR.

Tomorrow: What happens when a good student gets kicked out of the school play?

My partner, Jim Byrom, did an excellent job at the recent School Law Retreat with a review of recent decisions involving the Whistleblower Act.  I think y’all have a good understanding of the basics of this law. It’s designed to protect those good citizens who report governmental wrongdoing and then get hammered for it.

To prevail, the plaintiff has to show that he or she 1) made a good faith report of 2) a violation of law to 3) an appropriate law enforcement authority.  As Jim pointed out, of these three elements, the one most litigated is “appropriate law enforcement authority.” Lawyers who defend these cases can be real sticklers about this, and there are numerous cases that plaintiffs have lost because the entity to which they blew the whistle did not meet the definition of an “appropriate law enforcement authority.”

The cases are usually interesting. For the pure “ewww…that’s gross” factor, I liked the case of Ellis v. Lubbock County Hospital District, 2014 WL 6478627, decided by the Court of Appeals in Amarillo on November 19, 2014.  A surgical technician reported that surgeons were tossing human tissue around the surgery room. To whom did he report this?   A lot of people.  He reported to the head of education, another person in the education department, the person second in charge at the hospital, the hospital compliance hotline and one other unspecified hospital official.

On cross examination the surgical tech was asked: did any of these people have the power to arrest the surgeon?  No. Could any of them file a criminal case against the tissue-tosser?  I guess not.

The court held that none of these folks were “appropriate law enforcement authority.”  Case dismissed.

By the way, the tech was told that this tissue tossing “happens all the time.”  Hmmm.

DAWG BONE:  MAKES YOU WONDER WHAT GOES ON IN THAT SURGERY ROOM….

Tomorrow: The Dawg tells you about a story you won’t want to hear.  But you need to.

The Toolbox is a full day training program, focused on the legal requirements that apply to the discipline of students with disabilities.  We spend the day talking about ten “tools” that are available to the school. The goal is to serve every student appropriately while maintaining a safe and orderly school environment.

A federal court case from Warren ISD illustrates how Tool #3 comes into play.  When the family moved to Warren with a third grader, WISD called for a self-contained placement for most of the day. The mother expressed disagreement, and in fact, one day after the ARDC meeting she revoked consent for special education services. Two days after that she rescinded the revocation.   So the placement went forward.

Things did not go smoothly.  There were five physical restraints of the student before Christmas.  The first of these was prompted by the student throwing chairs and other objects, and then “repeatedly banging his head on the door and wall.”  When the teacher intervened, the boy “began hitting, kicking and biting her.”

It continued that way throughout the school year.   The parent finally requested a special education due process hearing in March, 2016.   Hearing Officer Mary Carolyn Carmichael conducted a two-day hearing in May, 2016 and rendered a lengthy decision in favor of the school district.

The parent appealed the decision into federal court, which also ruled in favor of the school district.

We call this a Tool #3 case because the district placed the student in a restrictive environment in the face of parental opposition.  Two of the tools in the Toolbox are “Educational Changes of Placement.”  We call them “educational” to distinguish them from a “disciplinary removal.” When the student’s behavior is a manifestation of disability, the school cannot impose a disciplinary consequence. But it can call for a move to an MRE—a More Restrictive Environment. Tool #2 involves doing that the easy way—with parental agreement. Tool #3 involves doing it the hard way—when the parent is opposed.

When using Tool #3, the school has to be prepared to justify the MRE. Why can this student not be served in the mainstream?  What efforts are you making to bring the student into the general education classroom?

Both before the hearing officer and the federal judge, the district passed that test. The district pointed out that the student often refused to participate in the general setting: “When he was not refusing to participate…his behavior and aggressive outbursts….impeded his own learning and the learning of his peers in the general education classrooms.”

The case of C.M. v. Warren ISD was decided by the U.S. District Court for the Eastern District of Texas on April 18, 2017. The court ordered the case not be published in the official court reporter, but we found it at Special Ed Connection at 69 IDELR 282.  The hearing officer’s decision can be accessed at the T.E.A. website.  It’s Docket No. 175-SE-0316, decided on July 5, 2016.

If you are interested in learning more about the Toolbox, send me an email! I’m at jwalsh@wabsa.com.

DAWG BONE: IF ONLY WE COULD GET THE COURT TO USE TOOLBOX TERMINOLOGY!

Tomorrow: I’m in Victoria at Region 3, and the Daily Dawg warns you of what really happens in the surgery room.

I’m launching my annual Back to School Tour today in Region 20. Hello San Antonio!!  Looking forward to going over all of the new legislation and court cases y’all need to know about.

Speaking of launching, our law firm is launching a new season of audio conferences, starting this month, and the first two focus on areas that generate a lot of legal issues.   On Wednesday of this week—the 13^th—you can participate in an audio conference on the legal issues that come up with the discipline of students with disabilities.  Attorneys Elvin Houston and Eric Rodriguez from our San Antonio office will provide the input. This is a great way for your staff to get some low cost, valuable information.

Our second audio conference of the year is about booster clubs.  Jameson Baker from our San Antonio office and Ann Mewhinney from Austin will conduct this one on September 20^th.

You can sign up for these audio conferences and others at our website: www.walshgallegos.com.  Look for:

Legal Update on Special Education Discipline:  September 13

Boosters, PTAs & PTOs: the Good, the Bad and the Dangerous: September 20

DAWG BONE: AUDIO CONFERENCES: THE SMART WAY TO GET TRAINING.

Tomorrow: the Back to School Tour comes to Region 13 in Austin, and the Daily Dawg talks about The Toolbox!