Dear Dawg: I’m not saying this is going to happen, but just in case…..what happens if we have a parent who gets a little out of control at the football game tonight?  Now this probably won’t happen, but let’s just say that the quarterback throws three interceptions in the first half, just like he did last week…and the week before. And let’s just say that this time, the coach benches the kid and puts in the second stringer.  And let’s just say that maybe the first string QB’s dad played QB at a Big 12 school and thinks he has forgotten more about football than our coach ever knew. And so let’s just say, for the sake of argument, that this former Big Time Big 12 Big Shot QB gets loud, boisterous, unruly with his verbal attacks on the coach. Let’s just suppose it goes way past “I disagree with that decision!” and involves certain words that we tell the kids they are not supposed to use.  Let’s say there are even threats of physical violence.  Can we ask this gentleman to leave the premises?  JUST HYPOTHETICALLY SPEAKING….

DEAR JUST HYPOTHETICALLY:  In answer to your just hypothetical question, we would say that: Yes, you can ask the gentleman to leave. But remember that we have a new law in place this year.  SB 1553 deals with ejection from the property of a person who “behaves in a manner that is inappropriate for a school setting.”  The law does not say if it applies to extracurricular activities, but it deals with “property under the district’s control.” So we think that means your football stadium tonight. If this new law does apply, then remember: you have to give the QB’s dad—I’m sorry, the “hypothetical QB’s dad—a verbal warning. If he fails to get under control, you can eject him but have to give him “written information about the appeal process.”  Get one of those little laminated “YOU ARE EJECTED” cards that your assistant principals are carrying around this year.

Better yet: let’s hope that your QB completes all of his passes tonight.

DAWG BONE: ALWAYS ASK YOURSELF: WHAT WOULD COACH TAYLOR DO?

Let’s suppose your district has a policy that calls for any type of medical equipment, any medication, and anything that might be a safety hazard to be kept in the nurse’s office.  Let’s suppose you have a student whose Individual Health Plan calls for him to have a glucose testing kit, including sharp objects, readily available to him in the classroom.  How do you suppose this is going to come out?

North East ISD got embroiled in an OCR complaint over this issue and three others. On the other  three issues, OCR found in favor of the district.  The district had a plan to deal with the student’s diabetes, even when the nurse was absent.  The district had a good plan in place for field trips.  And the district did provide the parents with notice of their rights.

But with regard to the glucose testing kit, OCR found the district at fault:

The NEISD’s practice to not permit diabetic testing materials to be maintained in students’ classrooms appears rule-like, and in this case, adherence to the practice seemingly substituted for or circumvented the requirement that a team of persons make the determinations based on the individual needs of the Student.

“Rule-like.”  Hmmm.  School districts are large organizations that need to operate as per rules, procedures and protocols.  Being “rule-like” is normally a good thing. But not when it comes to one of our laws that require a determination based on individual need.

When you find yourself about to say: “Our policy does not permit that” you should pause, and say instead: “Our policy does not normally permit that. But we will ask the 504 Team [or ARD Committee] to see if we need to make an exception due to the needs of your child.”

As Scripture would put it, that puts you on solid rock as opposed to shifting sand.

The OCR report on the North East ISD case was issued on November 22, 2016 and we found it at 69 IDELR 256.

DAWG BONE: IF IT’S A 504 OR SPECIAL EDUCATION ISSUE, INDIVIDUAL NEEDS ARE LIKELY TO OUTWEIGH DISTRICT POLICY AND PRACTICE

If you think that federal lawsuits against school districts can only be filed by teachers with contracts, you have not been paying attention. We came across a case recently from San Antonio ISD where the suit was filed by a substitute teacher.

It seems the principal at Douglass Elementary got some complaints over Ms. Willis’s performance.  After meeting with the sub to discuss the matter, the principal informed Ms. Willis that she would not be invited back to Douglass Elementary, at least for the remainder of the school year. This happened around April 11, 2016, so there was not a whole lot of school year left.

Ms. Willis filed a federal lawsuit over this, alleging that she had been harassed and discriminated against because of a disability—her weight.  Ms. Willis tossed in other allegations as well, complaining of discrimination based on race, color, sex and age.  She also alleged that she was retaliated against for filing a grievance.

Ms. Willis struck out.  STRIKE ONE was the dismissal of the claims based on race, color, sex and age.  The court pointed out that Ms. Willis had not checked those boxes when she filed her EEOC complaint.  If you don’t bring it up to the EEOC, you can’t bring it up in court.

STRIKE TWO was the dismissal of the disability discrimination complaint.  The court held that Ms. Willis had not suffered an “adverse personnel action” because she was still on the SAISD sub list. She was only barred from one elementary school.   This was going to make things inconvenient for Ms. Willis, but the court was pretty hard hearted about that.  The court also noted that the verbal insults Ms. Willis alleged were not even close to being “severe” or “pervasive.” So there was no evidence to support a case based on disability discrimination.

STRIKE THREE was the dismissal of the retaliation claim.  The court pointed out that “The standard for an adverse action in retaliation cases is lower than for disparate treatment claims.” So when the principal took Ms. Willis off the sub list for Douglass Elementary, that may have been sufficiently “adverse” to keep the case alive. However, the court dismissed this claim for another reason—Ms. Willis filed the grievance AFTER she was taken off the list. So there was no way that the principal was “retaliating” for a grievance that had not yet been filed.

So there you have it.  But notice: the district spends time and money defending itself on a claim by a sub who was taken off the list of one school for less than two months.  The case is Willis v. San Antonio ISD, decided by the federal district court for the Western District of Texas on August 11, 2017.  We found it at 2017 WL 3470944.

DAWG BONE: ANYONE CAN SUE ANYONE OVER ANYTHING FOR ANY AMOUNT.  NO EXCEPTIONS.

I grew up thinking that Paris was in France. Then I learned that it’s right here in Texas.  Now I have learned that they’ve got one of those in Arkansas also. Who knew?

I found out about the Ozark version of Paris due to Paris School District v. A.H.   This is a case that provides an excellent illustration of some basic principles of The Toolbox. The Toolbox consists of ten “tools” that schools can use when dealing with disruptive and/or violent students who are in your special education program.  You want to continue to serve those kids, but you also want to maintain safety and order.  The Toolbox is designed to help you do that.

Paris School District placed a student in its Alternative Learning Environment (ALE) but, according to the court, did not do it the right way.  The record showed that the mother was not given proper notice that the IEP Team would be considering a change of placement; the meeting was “organized hastily without thorough review of data and without the participation of key people.”  Moreover, the mother stated that she “knew nothing” about the ALE.  The mother checked the “I AGREE” box at the meeting, but pretty quickly changed her mind. Despite the fact that the ALE was supposedly “agreed to” the court held that it was not the “stay put” placement.  Thus the student was sent back to the regular campus while the due process hearing was pending.

This is a great illustration of the risks districts create for themselves when they rush a parent into a change of placement, particularly a disciplinary removal.

There were other problems at the ALE also.  The parent convinced the court that the staff was inadequately trained to deal with the nuances of behavior that a student with autism might present.

The court cited the coach who was in charge of ALE to illustrate this point:

This lack of training manifested itself in the indifference that some of the staff took towards handling A.H.’s disabilities seriously.  For example, when asked about accommodations that he made for A.H. while she was in the ALE, Coach Prieur stated “and I mean, I guess, you know, I’ll get in trouble for saying this, but I just didn’t think she needed some of these accommodations, because she was doing so well on her stuff and so I really didn’t make a whole lot of accommodations for her.”

The case was decided by the federal court for the Western District of Arkansas on April 3, 2017.  We found it at 69 IDELR 243.

DAWG BONE: SENTENCES THAT BEGIN WITH “I’LL GET IN TROUBLE FOR SAYING THIS” SHOULD PROBABLY END RIGHT THERE.

 High school football.  A praying coach. And the law.  This gives us all the ingredients we need for a made for TV-movie, or a good court case.  It brings out the culture warriors in droves. So let us take a moment to reflect on Kennedy v. Bremerton School District.

The Coach Kennedy liked to say a prayer after the football game. He liked to do it smack dab on the 50-yard line. Lots of players joined him.

This went on for quite a while, but eventually someone complained to a school administrator.  This led to an exchange of lawyerly crafted correspondence between superintendent and coach.  The message to the coach was plain: Coach—you can’t do this anymore.  Here’s my favorite part of the court’s lengthy opinion:

Kennedy’s legal representatives responded to the District’s letter by informing the media that the only acceptable outcome would be for the District to permit Kennedy to pray on the 50-yard line immediately after games.

Hmmmm. How do you suppose the superintendent felt about that?

The Coach eventually sought an injunction to permit him to continue to pray. The court denied it. He appealed to the 9^th Circuit, which has now ruled against him as well.  The court held that Coach Kennedy was not “speaking as a citizen” when he prayed. He was speaking as a school employee:

…by kneeling and praying on the 50-yard line immediately after games while in view of students and parents, Kennedy was sending a message about what he values as a coach, what the District considers appropriate behavior, and what students should believe, or how they ought to behave. Because such demonstrative communication fell within the scope of Kennedy’s professional obligations, the constitutional significance of Kennedy’s job responsibilities is plain—he spoke as a public employee, not as a private citizen, and his speech was therefore unprotected.

The court spelled out the many ways in which Coach Kennedy could practice his religion and then added:

What he cannot do is claim the First Amendment’s protection…when he kneels and prays on the 50-yard line immediately after games in school logoed attire in view of students and parents.

In support of its decision, the 9^th Circuit cited cases that came to the same conclusion in similar circumstances from the 3^rd, 6^th, 7^th and 5^th Circuits. The 5^th Circuit case is Doe v. Duncanville, 70 F.3d 402 (5^th Cir. 1995).

You might want to let your coaches know about these decisions. The trend line is pretty clear.  This one was decided by the 9^th Circuit on August 23, 2017.

DAWG BONE: ALWAYS ASK YOURSELF: WHAT WOULD COACH TAYLOR DO?

September is a very busy month for me.  I will be doing my 12^th annual Back to School Tour of Texas, focusing on all of the legal developments you need to know about.  Here’s the schedule:

September 11: Region 20 in San Antonio

September 12: Region 13 in Austin

September 14: Region 2 in Corpus Christi

September 20: Region 7 in Kilgore

September 21: Harris County DOE in Houston

September 26: Region 18 in Midland/Odessa

September 28: Region 17 in Lubbock

October 3: Region 10 in Richardson

October 5: Region 11 in Fort Worth

These BTS programs are sponsored by the Texas School Administrators’ Legal Digest. You can sign up for them at www.legaldigest.com.

The program this year will focus heavily on new legislation and its implications for the day-to-day operations of the school.  We also will discuss the Top Ten Court Cases from the past year, and our annual special ed/504 legal update.

We also like to have some fun at these events by taking a poll on some issue of interest. This year we will re-visit a past topic—the Mt. Rushmore project.  A few years ago we asked you to identify four worthy Americans who achieved fame in the 20^th or 21^st Centuries for inclusion in a new Mt. Rushmore.  This year, a variation of that: we want you to come up with four worthy people FROM YOUR REGION.  They should be either born in your region, or achieved something noteworthy in your region.  So think about that, and come prepared!

Hope to see you there!

DAWG BONE: BACK TO SCHOOL TOUR….ON THE ROAD AGAIN!

Tomorrow: Just in time for football….praying coach vs. school district.

David Gerda promoted the passage of a bond issue in Keller ISD and then ran for the school board against incumbent Brad Schofield.  To say that the campaign turned nasty would be an understatement.  The accusations and counter accusations are recounted in detail in a lengthy opinion from the Court of Appeals in Fort Worth.

Oh yes, this one ended up in court. Mr. Gerda lost the suit, and is facing the prospect of reimbursing the people he sued for their attorneys’ fees. He lost the election too.  So if you know someone who is thinking of running for the school board, you might want to let them know about this case.

Mr. Gerda filed the lawsuit against Mr. Schofield and Marie Howard, the president of the local Tea Party and a strong supporter of Mr. Schofield.  Mr. Gerda’s lawsuit accused the two defendants of libel, slander and conspiracy.  Mr. Gerda alleged that the two defendants had falsely and publicly accused him of unethical behavior.

The problem Mr. Gerda encountered in the suit was that all of the criticism he endured came in the heat of a political campaign.  The court concluded that Mr. Gerda, as a candidate for office, was a “public official.”  Under the law of defamation, this meant that he had to show that the statements about him were not only false, but also that they were made with “actual malice.”

He was unable to do that, and thus the court dismissed the case and sent it back to the trial court to assess court costs and attorneys’ fees that Mr. Gerda will be required to pay.

The case provides a good illustration of how difficult it is for a “public official” to get past that “actual malice” standard. Proving that the statements made were false is not good enough.  Proving that the statements were erroneous is not good enough. Proving that the statements were made without the benefit of a thorough fact-checking is not good enough. Proving that some pieces of evidence were ignored, downplayed, or misinterpreted is not good enough. Here’s what you have to prove:

…to establish actual malice a plaintiff must prove that the defendant made the statement “with knowledge that it was false or with reckless disregard of whether it was true or not.”  New York Times, 376 U.S. at 279-80, 84 S.Ct. 710.  Reckless disregard is also a term of art.  To establish reckless disregard, a public official or public figure must prove that the publisher “entertained serious doubts as to the truth of his publication.”  St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)

Mr. Gerda was unable to get over that high hurdle.

The procedural posture of this case is interesting.  After Mr. Gerda filed the suit, the defendants responded with a Motion to Dismiss the case based on the Texas Citizens Participation Act (TCPA).  This is a law that all public officials, including elected school board members, should learn about.  The court tells us that the TCPA “protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them.”

Normally, the party who files a Motion to Dismiss will bear the burden of proving to the court that the case should be dismissed. But these TCPA cases don’t work that way. Instead, the defendant simply has to show the court that the suit is based on his or her exercise of free speech. If the defendant does that, the burden shifts to the other guy—the plaintiff--to show “by clear and specific evidence” that there is a basis for each element in the case. Here, Mr. Gerda failed to show good evidence that satisfied the “actual malice” standard.

One more point: the court pointed out that “public officials” are fair game for any accusations that go to their “fitness for office.” That means that accusations of dishonesty, malfeasance and/or improper motivation are permissible, as long as they are not done with “actual malice.” Key Quote:

As the supreme court reminds us, the actual malice standard “honors our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.’”

Yep.  Even in a race for an unglamorous and unpaid position like school board trustee.

The case is Schofield v. Gerda, decided by the Court of Appeals in Fort Worth on May 18, 2017. We found it at 2017 WL 2180709.

DAWG BONE: AND YOU WONDER WHY GOOD PEOPLE DON’T WANT TO RUN FOR SCHOOL BOARD….

Tomorrow: what really happens in the surgery room?

On Tuesdays, we like to highlight the Toolbox—a full day training program designed to help you serve each student well, while maintaining safety.   After all, sometimes kids do things at school that may be dangerous. How to respond? What does the law require? What does it permit?   That’s what we talk about in the Toolbox training.

One issue involves the IAES—an Interim Alternative Educational Setting. The law authorizes campus administrators to send a student to an IAES when the student commits a “special circumstance” offense involving drugs, weapons or the infliction of serious bodily injury. The IAES is also employed when the student commits a serious violation of the Code of Conduct that is not a manifestation of disability.

Some of you are thinking: we send kids to DAEP in those circumstances.  And that’s probably just fine.  Your DAEP probably qualifies as an IAES.  The term IAES is not defined in federal law, so let’s just break it down word by word.

An IAES is “interim.” It’s not forever.  Neither is a placement in DAEP.

An IAES is “alternative.” It’s not the same as the regular school the student has been attending. Neither is your DAEP.

An IAES is an “educational setting.”  There is a teacher.  Instruction takes place. It’s school. So is your DAEP.

So we think that our Texas DAEPs qualify as an IAES. But one thing principals should be careful about—when a student is sent to an IAES it’s the ARD Committee that has to select the specific  IAES to be used. So principals should be careful to avoid saying things like “I’m assigning this student to the DAEP.”  You might be able to do that on a short term basis, but for a long term arrangement, the ARDC has to approve the selection of the IAES. So the careful principal would say: “I’m recommending your placement in an IAES. We will hold an ARDC meeting to determine the specifics of the placement.”

This comes up in the Toolbox when we talk about Tool #5 and Tool #6. Want to know more?  Let me hear from you!

DAWG BONE: DAEP=IAES, MOST OF THE TIME.

Tomorrow: Race for the school board turns nasty….

We hope that you got to view the solar eclipse last week, without causing any damage to your vision.  We also hope you don’t get hauled into court over the eclipse, like the School Board of Orange County, Florida did over 20 years ago.

The suit was filed by the mother of a boy who damaged his eyesight by looking at the sun during an eclipse.  This happened while the boy was participating in an after-school program that he was not signed up for!! Apparently he and three buddies saw their teacher and some kids getting ready to observe the eclipse during the after-school program, and they joined in. There was much dispute over whether the after-school teacher gave these kids permission to do this or not.  In any event, the boy did participate, did look right at sun, and did have visual damage.

The kid was a 4^th grader, which strikes me as “old enough to know better.” That seems to be how the jury saw it as well. They ruled in favor of the school board on this one.  But the mom claimed it was the school’s fault, and when she lost at the trial court, she took it up on appeal.  And she won.

The appellate court ruled that the judge had given the jury erroneous instructions about one of the fine points of state law in Florida.  The court held that Florida law made the district responsible for any student who happened to be on school property, whether they were students in the program or not. The judge had not made that clear in his instructions to the jury. So the verdict was reversed.

It’s an obscure case, but just further evidence that what happens in the Real World will find its way into the school….and into the courthouse. The case is Versprill v. School Board of Orange County, 641 So.2d 883 (Fla. App. 5 Dist. 1994).

DAWG BONE: HOPE YOU DIDN’T LOOK AT THE SUN! 

Tomorrow: Toolbox Tuesday!

Joann Compton sued the Port Arthur ISD and two school administrators for allegedly punishing her for the exercise of free speech. Ms. Compton, a speech therapist, complained that her speech therapy reports were being printed on a printer in an open school hallway in another school building. Ms. Compton expressed concern over violations of student privacy. She alleged in her suit that the district responded to this complaint by giving her an “exhausting and rigorous schedule of meetings” and then initiating an investigation of her for Medicaid fraud.

Before going any further, we should point out that all speech therapists have “an exhausting and rigorous schedule of meetings.”

As to the lawsuit, the court dismissed it. On top of that, the court ordered Ms. Compton to reimburse the school administrators for the attorneys’ fees they incurred. How does this happen?

The court ruled that the free speech claim was negated by the pleadings Ms. Compton’s attorney filed. Those pleadings conclusively showed that the “free speech” alleged here was a private communication to her supervisors about work-related matters. Public employees enjoy free speech protection when they speak “as a citizen” on “matters of public concern.” That’s not what was alleged here. As the court noted “speech made pursuant to a speaker’s official duties is not constitutionally protected.” Also:

Speech that is made privately between the speaker and her employer or its employees, rather than “against the backdrop of public debate” is generally not deemed of “public concern.”

So the case lacked merit and was tossed out, despite the effort of the attorney to persuade the court that the Texas Constitution provides greater protection than the U.S. Constitution. The court disagreed with that.

The two administrator/defendants then sought to recover their attorneys’ fees pursuant to Section 22.0517 of the Education Code:

In an action against a professional employee of a school district involving an act that is incidental to or within the scope of duties of the employee’s position of employment and brought against the employee in the employee’s individual capacity, the employee is entitled to recover attorney’s fees and court costs from the plaintiff is the employee is found immune from liability under this subchapter.

That’s exactly what happened here. The administrators were acting within the scope of their employment, and they were found to be immune from liability. They get to recover court costs and attorneys’ fees.

The case is Compton v. Port Arthur ISD, decided by the Court of Appeals in Beaumont on July 20, 2017. We found it at 2017 WL 3081092.

DAWG BONE: SOMETIMES THE PLAINTIFF HAS TO PAY THE DEFENDANT’S ATTORNEY’S FEES.

One week down!! Enjoy the weekend!