Category Archives: Dawg Bones

Dawg Bones

SCOTUS Signals OK on Vouchers for Religious Schools

Let’s assume that a few years from now the Texas legislature enacts a voucher scheme whereby parents can take public money and use it at a private school. Let’s assume that the scheme allows that public money to be spent at any private school—including a religious one.  Let’s further assume that someone challenges the constitutionality of that scheme and takes it to the U.S. Supreme Court.  Based on its latest ruling on a similar issue, I’m predicting SCOTUS rules that religious schools cannot be blocked from the program.

The case of Trinity Lutheran Church of Columbia, Inc. v. Comer was about recycled tires used to pave the playground at the church, which operates a school and daycare.  Missouri made grant funding available for these new and improved playgrounds, and Trinity Lutheran applied. Its application was a good one. SCOTUS noted that it “would have received one, but for the fact that Trinity Lutheran is a church.”   Missouri—like Texas—has a state constitutional provision that prohibits the use of any public money for the benefit of a religious institution. Based on that provision, Missouri rejected the church’s application.  Kids continued to scrape their little Lutheran knees on a pea gravel surface, rather than harmlessly bouncing off the recycled tires.

SCOTUS held that Missouri violated the Free Exercise Clause of the First Amendment.  Chief Justice Roberts cites an earlier SCOTUS case that holds that the U.S. Constitution takes precedence over the state version:

“the state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause.”  [Taken from Widmar v. Vincent, 454 U.S. 263 (1981).

The Chief’s opinion concludes strongly:

But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution…and cannot stand.

Suppose the “public benefit” is participation in a voucher program.  If a private school is prohibited from participating in that program because it is religious, and only because it is religious, how do you think Justice Roberts would rule?  I predict he rules in favor of the religious school.  You can count on Alito, Thomas and Gorsuch ruling the same way.  And Justices Kennedy and Kagan sided with Roberts on this one.  So there are at least four SCOTUS votes in favor of vouchers for religious schools, and possibly as many as six.

We shall see.

The case of Trinity Lutheran Church of Columbia, Inc. v. Comer was decided by the Supreme Court on June 26, 2017.  Seven justices ruled for Trinity Lutheran with two dissenting.

DAWG BONE: WE KINDA LIKE THE OLD DAYS, WHEN PLAYGROUNDS WERE DANGEROUS

File this one under:  RELIGION

Tomorrow: the 5th Circuit gets its first opportunity to interpret the “new” FAPE standard.

Dawg Bones

Slants, Redskins, Your School’s Mascot and the Constitution

Fans of the Washington Redskins and Cleveland Indians are probably very pleased by the Supreme Court’s decision about a rock band.  The band filed for a trademark for its name.  The Trademark office turned them down because its name violated the “disparagement clause” in the Patent and Trademark laws.  The disparagement clause prohibits the registration of any trademark that may “disparage…or bring into contempt or disrepute” and “persons living or dead.”  The band was called The Slants, a term that is commonly understood to be a derogatory reference to people of Asian descent.   The band members were Asian Americans themselves, and they chose this name in an effort to “reclaim” it.

SCOTUS held that the disparagement clause is unconstitutional.  The Court described the clause as “a happy-talk clause” designed to prevent the expression of ideas that offend.  Justice Alito’s opinion for the majority shot that down:

And, as we have explained, that idea strikes at the heart of the First Amendment.  Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful: but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”  United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).

This will not stop people from protesting the use of the name “Redskins” for the Washington football team, but it will likely sack any legal challenge to that name. And the same goes for any school mascot name that people find offensive.  In fact, public schools would have an additional strong argument to make to defend their school mascot—it is “government speech.” The government is not restricted by the First Amendment.

The case is Matal v. Tam, decided by the Supreme Court on June 19, 2017.

DAWG BONE: LOOKS LIKE ALL YOU INDIANS AND WARRIORS AND WAMPUS CATS WILL BE OK. 

File this one under: FIRST AMENDMENT

Tomorrow: what will SCOTUS say about vouchers going to religious schools?

Dawg Bones

It’s Toolbox Tuesday!!

They will play the Midsummer Classic tonight—the baseball All Star game between the National League and the American. So it’s midsummer. What a great time to think about bringing the Toolbox to your district!

The Toolbox is an all day program focusing on serving appropriately and safely the kids who present particularly challenging behaviors.  (Wow….three adverbs in that sentence.  That’s almost Gingrichesque.  I have to cut back).   

I’ve recently done the Toolbox training at Region 16 and San Felipe Del Rio CISD. Coming up: Athens ISD and Region 6.  How bout getting on the calendar?  The Toolbox is practical, relevant and timely.  Let me know if you are interested.

As for the game tonight: I predict an AL victory, sparked by Carlos Correa’s home run.

DAWG BONE: THE DAWG MIGHT BE WRONG ABOUT THE BALLGAME, BUT HE’S RIGHT ABOUT THE TOOLBOX.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: SCOTUS rules on the controversial name of a rock band.

Dawg Bones

Keep Those Cheerleader Moms Outta Here!!

If that’s the sentiment of your school board members, they will be pleased to hear about Section 9 of newly enacted SB 1566. It amends Section 26.011, which is a statute that requires the board to have a grievance procedure to address complaints.

But not every complaint.  Newly added subsection (b) says that the board is NOT required to hear a complaint “concerning a student’s participation in an extracurricular activity that does not involve a violation of a right guaranteed by this chapter.”

So those angry cheerleader moms or band booster dads will have to think about this if they want to get their complaint before the board.  They will have to cite some section of the Education Code that they think the district is violating. A garden variety complaint about Susie Cheerleader or Biff Bandman will not get you there.

DAWG BONE: THE BOARD DOESN’T HAVE TO HEAR IT, BUT THE SUPERINTENDENT DOES.

File this one under: LEGISLATION 2017

Tomorrow: Toolbox Tuesday and a prediction for the All Star Game.

Dawg Bones

Does This Strike You as “Local Control” or “Micromanagement”?

Section 3 of newly enacted SB 1566 clarifies the procedure for board members to obtain information maintained by the district without having to cite the Public Information Act.  The new law creates a timeline for the district to respond to a board member’s request, and then authorizes that board member to sue the district if the district fails to produce the information on time.  If the board member is successful with that suit, the district has to pay the board member’s attorneys’ fees and court costs.  It then says:

The district shall pay the costs and fees from the budget of the superintendent’s office.

I’ve never before seen a law that specifies what account a payment has to come from. Are these the same guys that claim they support local control? This is legislative micro-managing.  And a slap at school superintendents.

DAWG BONE: THERE GOES THE SUPERINTENDENT’S NEW COFFEE TABLE!

 File this one under: LEGISLATION 2017

Enjoy the weekend!!

Dawg Bones

SB 1566 Slaps Superintendents Around A Bit….

Two sections of SB 1566 seem to take potshots at school superintendents.  Section 2 permits the board to require certain school staff members to participate in an executive session, and then says:

A superintendent may not interfere with an appearance or testimony required by the board under this section.

Of course it’s up to the school board to determine who should join them in a closed session.  Superintendents should not interfere with that, but I’m surprised to see that a law about that is necessary. Must be a story behind this one.

Tomorrow we will cover the other section of this new law that superintendents might take exception to.

DAWG BONE: THE CLOSED SESSION IS THE BOARD’S PARTY.

 File this one under: LEGISLATION 2017

Tomorrow:  Local control?  Or controlling the locals?

Dawg Bones

SB 1153: Formalizing the RTI and “pre-referral” process

Welcome back! The Dawg hopes that each of you enjoyed a splendid long weekend in celebration of our country’s birthday.  Now, it’s back to work.  So let’s take a look at SB 1153—a bill that is likely to have a significant impact on how you do business.

This one is further fallout from the statewide controversy over T.E.A.’s monitoring standard in the PBMAS that targeted any district that identified more than 8.5% of its kids in special education. That PBMAS standard is now gone.  T.E.A. pulled it down when the flak reached a tipping point.  Then the legislature piled on with SB 160, which prohibits T.E.A. from ever doing anything like that again.

We also got this new bill.  It requires that you give notice to parents when you begin to provide “intervention strategies” that go beyond the first tier that is provided for all children.  In other words, when the student moves to a second tier on your RTI model.  This notice must include several components, including a description of what the “intervention strategy” is, and the data you’ve collected from the first tier. Moreover, this law will require a separate PEIMS code for students served 1) through Section 504 and 2) via “intervention strategies.” In short, this new bill formalizes and regulates pre-referral activities to a greater degree than in the past.

We think this bill will require campus administrators and special education staff to put together some new protocols and/or systems.  I don’t see how you can comply with this one without making your RTI/504/Pre-Referral/At Risk strategies and procedures a bit more formal and regulated than they have been in the past.

DAWG BONE: BE SURE EVERYONE UNDERSTANDS WHAT AN “INTERVENTION STRATEGY” IS. 

File this one under: LEGISLATION 2017

Tomorrow: Lege takes a slap at our school superintendents…

Dawg Bones

Can the superintendent move me from principal to assistant principal?

I’m guessing a lot of you think the answer to today’s question is simple: of course the superintendent can do that. Doesn’t the contract give the superintendent the power to “assign and reassign”?  Yes it does, but it took the Texas Court of Appeals 23 pages to uphold the superintendent’s reassignment of Hermenia Jenkins in Crosby ISD.

Ms. Jenkins, ably represented by attorney Kevin Lungwitz, filed a grievance when the superintendent moved her from Intermediate School principal to high school assistant principal. This moved Ms. Jenkins backwards, in her view. She had already been an A.P. at the high school. She was then promoted to principal of the Intermediate School where she served for eight years. Now, it was back to the high school, and downward to an A.P. position. Grievance.

The superintendent denied the grievance. The school board affirmed the superintendent’s decision.  The Commissioner affirmed the board’s decision. The Travis County District Court affirmed the Commissioner’s decision, and now the Court of Appeals has affirmed the District Court.

The case turned on the phrase “same professional capacity.”  Ms. Jenkins argued that “principal” and “assistant principal” were different professional capacities, which would mean that a superintendent could not simply order the principal to take the new job. The superintendent would have to afford the principal a non-renewal hearing and the board would have to approve the move.  In other words, the argument was that moving a principal to an A.P. position is a “nonrenewal” of contract, requiring the procedures that teachers are entitled to when their contracts are not renewed.

Nope.  The court concluded that this phrase—“same professional capacity”—leaves “room for policy determinations.” Therefore, the court held, “we will defer to the Commissioner’s interpretation if it is reasonable and does not contradict the plain language of the statute.”

The court then turned to the Commissioner’s “seminal administrative decision” in which the Commish noted that the phrase in the law was “same professional capacity”—not “exact same position.”  Then this:

It is more reasonable to conclude that the legislature, by using the term, “same professional capacity” (instead of “the exact same position”), intended to allow school districts to be flexible in their personnel assignments while discouraging the abuse of the district’s inherent or contractual reassignment authority….Barich v. San Felipe-Del Rio CISD, (Commissioner Decision, Dkt. No. 117-R1a-484 (1985).

Ultimately the court deferred to T.E.A.:

We also conclude that the Commissioner’s interpretation of section 21.206(b)—that whether a reassignment from the position of principal to a different position is within “the same professional capacity” depends on the particular circumstances, comparing duties, compensation and other relevant factors—is reasonable and does not contradict the language of the statute. As a result, we will defer to the Commissioner’s interpretation and affirm his decision if substantial evidence supports his conclusion that Jenkins’s reassignment was within the same professional capacity.

Substantial evidence did support that conclusion.

This decision does not completely close the door on similar challenges from reassigned principals in the future. The court did not say that a reassignment from principal to assistant is always going to be OK. It said that it would depend on the comparison of “duties, compensation and other relevant factors.”  Here, the compensation was the same; the move was from a smaller school to a larger one; and the superintendent emphasized the important administrative responsibilities Ms. Jenkins would continue to have.

Maybe it’s more accurate to say that the door is closed. It’s just not dead bolted.

The case of Jenkins v. Crosby ISD was decided by the Court of Appeals for the Third District (Austin) on June 15, 2017.

DAWG BONE: IT’S PRETTY HARD TO OVERRIDE THE SUPERINTENDENT’S AUTHORITY TO “ASSIGN AND REASSIGN.”

File this one under: TEACHER CONTRACTS

Dawg Bones

5th Circuit overturns big jury verdict. South San ISD not liable for sexual assault of student.

I was trying to explain to my friend that our law firm just won a big victory.  The 5th Circuit reversed a decision that went against our client, and in the process, tossed out a jury verdict of $4.5 million.  Obviously, with a verdict like that, the jury was very sympathetic to the plaintiff.  It turned out that my friend was also.  That’s understandable. The plaintiff in this case is a very sympathetic figure.  My friend did not understand how the school district should not be liable when a little boy is sexually molested by a school administrator he had come to trust.

Mr. Alcoser was a vice-principal, and then a principal of a school in South San Antonio ISD.  What he did to the boy was reprehensible, illegal, and not disputed.  The legal issue was: who should be held legally responsible for this?  Mr. Alcoser could be held liable, and he has been held liable in the criminal context. He was sentenced to 18 years in prison for aggravated sexual assault.  His employment with the district was terminated.  But the parents dropped their civil suit against Mr. Alcoser, and focused their lawsuit on the district.

The problem they ran into was that no one else in the district—no one—knew what was going on between Mr. Alcoser and the boy.  This was an undisputed fact.  Thus the case presented an unusually clear legal issue: can the district be liable under Title IX for an employee’s sexual assault of a student, when the only employee in the district who has actual knowledge of the misconduct is the employee himself?

In a well-reasoned and very thorough opinion, relying heavily on prior Supreme Court cases and congressional intent, the 5th Circuit said: No.

To understand this, you have to start with the basics of Title IX. This federal law prohibits sex discrimination by school districts that receive federal financial assistance.  The primary means of enforcing Title IX is through action by the Department of Education to withhold federal funds.  However, several earlier court cases established that Title IX included an “implied private right of action.” That opened the door to lawsuits by individuals seeking damages for sex discrimination.

One of those lawsuits was Gebser v. Lago Vista ISD, decided by the Supreme Court in 1998.  That case set the standard for district liability under Title IX. Those standards are now well established. If an employee sexually molests a student the district can be held liable, but only if the evidence shows that the district had actual knowledge of the misconduct, and responded to it with deliberate indifference.  In this case, Mr. Alcoser obviously knew of the misconduct and he was way more than “deliberately indifferent.”  But no one else did. No one.  In its critical ruling the 5th Circuit held:

“Where a school district’s liability rests on actual notice principles, however, the knowledge of the wrongdoer himself is not pertinent to the analysis.”  Applying that principle to the present facts, the District is not liable for damages based on Title IX since Alcoser’s knowledge of his own wrongdoing is not pertinent. (That quoted part is taken from the Lago Vista decision).

Thus the court concluded that Title IX does not impose liability on the school district under those circumstances. To put it plainly: school districts are not liable under Title IX for sexual abuse. They are liable when they know about it and respond poorly.  Schools must be given the opportunity to correct the problem before liability is imposed. Here, the district did not have that opportunity.

Many people, like my friend, will disagree with this outcome.  The little boy at the heart of this case was a victim of sex discrimination. But when applying legal standards of liability courts have to go beyond that fact to ask another question: yes, the little boy was violated—but by whom?  By the district?  School district policy prohibited sexual misconduct.  One employee intentionally violated the school’s policy and was careful to keep it secret.  No one with the authority to put a stop to it--other than that one employee--was aware.    If Congress, or the Texas legislature wants to impose liability on school districts in cases like this, it could do so. But this court has held that the existing language in Title IX does not go there.

The case is Salazar v. South San Antonio ISD, decided by the 5th Circuit on June 15, 2017.  You can find it at 2017 WL 2590511.  Meredith Walker of our firm’s Irving office and Craig Wood from our San Antonio office headed up the representation of the district in this case.

DAWG BONE: DISTRICTS ARE LIABLE UNDER TITLE IX FOR THEIR OWN WRONGFUL CONDUCT—NOT THAT OF EACH INDIVIDUAL EMPLOYEE.

File this one under: TITLE IX

Tomorrow: Can the superintendent reassign you from principal to assistant principal?

Dawg Bones

HB 1886 on dyslexia….

HB 1886 deals with two issues—dyslexia and transition.  These two issues are of equal importance, but the dyslexia provisions require more immediate attention. That’s because the transition provisions do not go into effect until the 2018-19 school year.  The new requirements regarding dyslexia will take effect with the upcoming school year.  So here’s what’s new with dyslexia:

1. Every ESC will have to employ as a “dyslexia specialist a person licensed as a dyslexia therapist” under the Occupations Code.  I’m not sure that all 20 ESCs have such a person now.  They may all have people with expertise in dyslexia, but are those folks licensed as a “dyslexia therapist”?

2. The new law requires “screening at the end of the school year of each student in kindergarten and each student in the first grade.” I attended a conference recently where a presenter informed the group (special ed types, mostly) of this new provision. There was an audible gasp.

3. Once a student is identified as having dyslexia, or is receiving accommodations due to dyslexia, the school may not re-screen or re-test the student for dyslexia without first reevaluating the information from the original screening/testing. There is an exception to this general rule if the second testing is required by law—presumably this refers to a full individual evaluation under IDEA.

TEA will annually develop a list of training opportunities for educators pertaining to dyslexia.

DAWG BONE: NO SUB-CATEGORY OF LEARNING PROBLEMS IS MORE MICRO-MANAGED BY LAW THAN DYSLEXIA.

File this one under: SPECIAL EDUCATION

Tomorrow: How a verdict of $4.5 million can go away