Category Archives: Dawg Bones

Dawg Bones

It’s Toolbox Tuesday!! New Legislation for the Little Kids.

The Toolbox is an all day training program focused on disciplinary options for students with disabilities. In the Toolbox, we break down the complicated federal regulations into ten “tools” that are available to school administrators.  However, we always emphasize that the main goal is to encourage improved student behavior.  Handling student misconduct exclusively through old school, punitive measures is simply not effective.  So we always emphasize that the most important of the ten tools is the first one: the development and implementation of a good BIP (Behavior Improvement Plan).

This becomes even more evident and important as lawmakers discourage some of the traditional forms of student discipline, such as out of school suspension.   In that context, you need to take a look at HB 674, recently enacted by the Texas legislature and now awaiting the Governor’s signature.  Highlights of HB 674:

1. It prohibits the out of school suspension of a student below grade three unless the student commits an offense involving weapons, drugs, alcohol or violence.   Other offenses that may lead to suspension under your Code of Conduct will have to be treated differently if the student is in Pre-K, K, or grades 1 or 2.

2. It authorizes, but does not require, districts and charter schools to develop disciplinary alternatives for the little kids. Specifically, the bill calls for “alternative disciplinary courses of action that do not rely on the use of in-school suspension, out-of-school suspension, or placement in a DAEP.”

The message we are getting is pretty clear. Let’s move away from exclusionary forms of discipline, and take a more positive, inclusive, restorative approach.  Everything we discuss in the Toolbox training is consistent with that message.

I’ve got Toolbox trainings coming up in Region 16, Region 6 and Del Rio. If you are interested in a Toolbox Training, just let me know.

DAWG BONE: NO OUT-OF-SCHOOL SUSPENSION FOR KIDS BELOW GRADE THREE. 

File this one under: STUDENT DISCIPLINE

Tomorrow: Cameras in the classroom!! A new and improved law.

Dawg Bones

Ms. Football Coach???

Sue Ann Easterling had experience coaching gymnastics, softball, basketball, volleyball and track.  Then she applied for a job as head football coach/athletic director.  She had never coached football and never served as A.D.

She didn’t get the job.  In fact, she didn’t get an interview.  The school district offered the job to one guy, who turned it down at the last minute, and then they promoted their interim coach to the job.

Ms. Easterling sued and took it all the way to the 5th Circuit. But she lost her case. The district offered several good reasons for its decision not to hire her. The district saved money by hiring the interim guy who was already an employee. Plus, this contributed to continuity in the football program. But I suspect that the main reason they passed on Ms. Easterling was because of her lack of experience as either a football coach, or an A.D.

What’s noteworthy about this very simple case is how the district did not muck it up by saying things that, perhaps, some of the people in the district thought.  Apparently, nobody said things like:

*But you are a woman—you can’t coach football.

**Hah!! Are you crazy?!?!

***Our boosters would never accept a woman in that position.

****There are no female football coaches in Louisiana and we don’t want to be first.

Nope. They stuck to the basics. We want someone who has some experience, and you don’t have it.

The case of Easterling v. Tensas Parish School Board was decided by the 5th Circuit on March 20, 2017.  We found it at 2017 WL 1065531.

DAWG BONE: JUST WONDERING: DO WE HAVE FEMALE FOOTBALL COACHES IN TEXAS?  FLORIDA HAS ONE.  SO DO THE ARIZONA CARDINALS.

 File this one under: LABOR AND EMPLOYMENT

Tomorrow: Toolbox Tuesday and a new piece of legislation!

Dawg Bones

Court dismisses “clock boy” suit, citing Greek mythology

A federal court has dismissed the suit filed by the student in Irving ISD who was suspended and arrested for bringing a homemade clock to school.  School officials had asserted that the clock was a “hoax bomb” and thus prohibited from school campus.  The student became known as the “clock boy” and the incident made national headlines. Ultimately, Irving police acknowledged that the arrest was a mistake, but the family sued the city, the school district and the principal.

The court dismissed all of that.  As to the city and the school district, the court concluded that the pleadings in the lawsuit simply failed to connect the dots.  There was much mention of racial disparity in student discipline, along with allegations of widespread discrimination based on race and religion in the community. But the court held that much of this was “conclusory” or “speculative.” There was not enough pleading of specific facts to indicate that either the city or the school district acted with any wrongful intent in this particular case.

The court held that the principal was entitled to qualified immunity.  He did not violate legal standards that were clearly established; nor did he act in an “objectively unreasonable” manner. Key Quotes:

Principals are responsible for the safety of students and others on campus and, as part of that responsibility, often have to make decisions quickly and with little information.

This is not a situation in which a person standing in Principal Cummings’s shoes can take unnecessary risks. It would have been fatuous or nonsensical for Principal Cummings to do nothing and wait for something to occur before acting.

A principal’s fate is not so hapless that, on the one hand, by not taking action he is faced with the gruesome prospect of death or serious injury of persons had the device actually been a bomb and exploded; and on the other hand, he is faced with a federal lawsuit for denial of a student’s constitutional rights because the device turned out not to be a bomb.  Woe unto the principal who fails to act on a potential threat that later becomes a reality!  To hold Principal Cummings, or any other administrator, to this standard places him between the dreaded Scylla and Charbydis.  (Emphasis in original.  A lengthy footnote explains the Greek mythology reference).

The case of Mohamed v. Irving ISD was decided by Judge Sam Lindsay for the federal court for the Northern District of Texas on May 18, 2017.  We found it at 2017 WL 2189414.

DAWG BONE: HERE IS A JUDGE WHO DOES NOT SECOND GUESS THE PRINCIPAL.

 File this one under:  LIABILITY AND IMMUNITY

Have a great weekend, Readers!

Dawg Bones

5TH Circuit makes short work of student-on-student sex case

John Doe alleges that he was sexually assaulted in the school bathroom by another student when he was in “second or third grade.”  A whole 12 years later, he sued the school district.  He claimed that the district violated his constitutional rights, and discriminated against him based on disability and sex when it failed to prevent this attack.

The constitutional claim failed.  The court cited the very well established principle that a school district is not legally obligated to guarantee that a student will never be harmed by a third party.  You have to show that the district itself caused your injury, and Doe could not do that.

The sex discrimination claim (Title IX) failed because Doe had no evidence that the school district knew about the assault, either before or after.  There were no teachers in the bathroom when it happened, and the youngster did not report the assault to any school official.  He did tell his mother, but “asked his mother not to reveal the fact of the assault until he graduated to avoid the ‘scorn and shame’ that might follow if his peers learned of the attack.”

The disability claim failed for the same reason.

The most interesting part of the court’s opinion is the very brief discussion of the student’s explanation of how he was damaged by this incident. Among other things, he alleged that he was “rejected by girls he asked to school dances’ when he was in seventh grade.”

Hmmmm.  There are many 7th grade boys who get rejected by 7th grade girls for a wide variety of reasons.  If this one had gone to court, it would have been interesting to see what the jury would do with this factoid.  I suspect a lot of memories of 7th grade would be stirred up.

The case is Doe v. Columbia-Brazosport ISD, decided by the 5th Circuit on May 3, 2017.  We found it at 2017 WL 1661416.

DAWG BONE: IF IT’S A “DOE” CASE, IT’S A SEX CASE.

File this one under: LIABILITY

Tomorrow: We get a decision in the well publicized “Clock Boy” case.

Dawg Bones

Score one for the teachers!

The Houston Federation of Teachers has convinced a federal court that HISD’s former practice of measuring teacher effectiveness through the use of “Value Added Measures” improperly threatened teachers with a deprivation of procedural due process.  The district was using complex algorithms, developed by an outside contractor, to calculate the effectiveness of teachers in improving student learning.  Each teacher received an EVAAS score (Educational Value-Added Assessment System).  However, teachers were not given access to the algorithms because they  were deemed proprietary trade secrets.

HISD filed a Motion for Summary Judgment in this case. It was granted with regard to claims of substantive due process and equal protection. But the court emphatically rejected the Motion as it pertains to procedural due process.  The court held that the secrecy of the process left the teachers ill equipped to challenge a proposed termination based on “effectiveness.”  Key Quote:

On this summary judgment record, HISD teachers have no meaningful way to ensure correct calculation of their EVAAS scores, and as a result are unfairly subject to mistaken deprivation of constitutionally protected property interests in their jobs. HISD is not entitled to summary judgment on this procedural due process claim.

The debate over “Value Added Measures” will no doubt continue, but this case sends a strong message that overly complex, secret formulas that teachers cannot meaningfully challenge will not survive in court.

The case is Houston Federation of Teachers v. Houston ISD, decided by the federal court for the Southern District of Texas on May 4, 2017.  You can find it at 2017 WL 1831106.

DAWG BONE: TEACHERS DIDN’T ACTUALLY WIN THIS ONE, BUT THEY PREVENTED THE DISTRICT FROM WINNING.  FOR TEACHER ORGANIZATIONS IN TEXAS, THAT COUNTS AS A WIN.

 File this one under: TEACHER EVALUATION

Tomorrow: Another “John Doe” case based on student-to-student harassment.

Dawg Bones

It’s Toolbox Tuesday!! But let’s mention SLI first!

TASB’s Summer Leadership Institute is just around the corner!  Attorneys with our firm will be doing some interesting presentations at the Fort Worth version SLI.  On June 23 @ 9:30 am, Sandi Tarski and Derrell Coleman will present “Being Proactive, not Reactive – Practical Tips for High Profile Investigations”.  On June 23 @ 11:15 am, Mark Goulet and D’Ann Bey will present “Don’t Go Down in Flames – Navigating District Social Media: Forum, Free Speech, Privacy & Retention.”  And please be sure to stop at our table during the conference; we hope to see you there!

As for the Toolbox, the summer is a good time to think about training of your staff for next school year. The Toolbox is a full day program that focuses on serving students with disabilities appropriately and safely.  We provide ten “tools” that administrators can use to be sure that the campus remains safe and the kids are progressing.  I’m doing a Toolbox training at Region 16 on June 26, in Del Rio on June 28, and Region 6 on August 9.  If you are interested in learning more about this, give me a call or send me an email.  Have Toolbox. Will travel.

DAWG BONE: SLI AND THE TOOLBOX: WHAT’S NOT TO LIKE?

Tomorrow: Teachers organization wins one!

Dawg Bones

What you need to know about David’s Law—the new anti-bullying bill.

“David’s Law”—S.B. 179—is one of the new laws that will have a major impact on the day-to-day operation of your school.  Here are several things you need to know about this new law, which will go into effect on September 1, 2017.

1. It makes it clear that bullying does not have to involve a pattern of repeated behavior.  “A single significant act” might be sufficient to meet the definition of “bullying.”

2. Our definition of bullying has always required that there be an effect on the target. That effect could be physical harm, or the threat of it; or damage to property; or an “intimidating, threatening, or abusive educational environment.”  The new law adds to this, by stating that it is “bullying” if the behavior “materially and substantially disrupts the educational process or the orderly operation of a classroom or school; or infringes on the rights of the victim at school.”

3. Cyberbullying off campus is expressly included in the definition of bullying if it “interferes with a student’s educational opportunities” or “substantially disrupts the orderly operation of a classroom, school, or school-sponsored or school-related activity.”

4. Notice of alleged bullying must be given to the parent of the target on or before the third business day after the incident is reported. The alleged bully’s parent is to be notified within a “reasonable time.”

5. Your school policy must include a method for students to report bullying anonymously.

6. Chapter 37 is amended to allow for expulsion or DAEP for a student who 1) engages in bullying that encourages suicide; 2) incites violence through group bullying; or 3) releases or threatens to release “intimate visual material” of a minor or an adult student without consent.

7. After an investigation is completed, the principal may report to law enforcement if the principal has reasonable grounds to believe that a student has engaged in assault or harassment. “Harassment” in this context means sending repeated e-communications in a manner likely to “harass, annoy, alarm, abuse, torment, embarrass or offend another.”  Principals enjoy immunity from liability and from disciplinary action when making such a report. This duty can be delegated to another staff member, but not the school counselor.

8. Open enrollment charter schools must adopt anti-bullying policies and can enact the disciplinary penalties called for in the law for bullying.

9. TEA will create a website providing resources for educators working with students with mental health conditions, and continuing education for teachers and administrators may include information about how grief and trauma affect students.

10. School counselors’ duties will include serving as an “impartial, nonreporting conciliator for interpersonal conflicts and discord involving two or more students arising out of accusations of bullying.” “Nonreporting” in this context means that the counselor does not report to law enforcement. Other reports, such as for suspected child abuse, may be necessary.

11. Parents or students can obtain injunctive relief to stop and/or prevent cyberbullying of a minor. This relief could be against the student bully, or the parents of a bully who is under 18.  Forms in plain language will be readily available in English and Spanish to enable people to seek this relief. Plaintiffs can obtain injunctive relief by proving that cyberbullying has occurred—they will not be required to prove all of the elements normally required to obtain an injunction.

12. The Health and Safety Code is amended to authorize schools to develop practices and procedures regarding mental health, including “grief-informed and trauma-informed” practices, and skills related to managing emotions, establishing and maintaining positive relationships, and responsible decision-making.”

13. Criminal penalties are enhanced for harassment by e-communication that is done with the intent that the target will commit suicide or engage in conduct causing serious bodily injury to self.

This is one of the new laws that we will explore in detail at my annual Back to School tour this fall.  We are scheduled to do the BTS in nine locations in September and early October. Go to www.legaldigest for more information.

DAWG BONE: WE CONTINUE TO WORK TOWARD ELIMINATING BULLYING.  LET’S HOPE THIS NEW LAW HELPS!

File this one under: LEGISLATION 2017

Tomorrow: Toolbox Tuesday!!

Dawg Bones

Have you seen the film “Desert Hearts”? It will help you understand today’s case.

Monica Pompeo enrolled in a graduate level course at the University of New Mexico which promised to be controversial.  The course, “Images of (Wo)men: From Icons to Iconoclasts” carried a sort of “parental advisory.” The course materials would include sexually explicit material. Students should expect controversial, even “incendiary” class discussions.  Students were warned to “participate with respect” and to “respect and care for everybody’s marvelously complex subjectivities.”

Ms. Pompeo, a student in the class, did not think much of the film “Desert Hearts,” which was included in the class curriculum.  Here are some quotes from Ms. Pompeo’s paper, which she was assigned to write in response to the movie:

For those uninterested in lesbian romance, the film is likely intolerable to watch in its entirety because there is virtually no other theme in the film; providing no reason for anyone other than lesbians who are unable to discern bad film from good film to endure “Desert Hearts.”

…their general appearance [referring to the women in the film] conjures the cliché, “you can put lipstick on a pig, but it’s still a pig.”

One character is described as:

still sexually vibrant, in spite of her perverse attraction to the same sex.

Regarding a bath scene involving two women:

[The] only signs of potency in the form of the male cock exist in the emasculated body [of one character’s fiancé]; [the bath water] essentially drowning out any chance of life considering their fatal attraction to one another.

The film as a whole:

Can be viewed as entirely perverse in its desire and attempt to reverse the natural roles of man and woman in addition to championing the barren wombs of these women.

The prof asked Ms. Pompeo to meet with her regarding this paper.  Several discussions ensued with both the prof, the head of the department, and other UNM officials. Clearly, the prof took exception to some of the student’s comments and her language.  The paper was never graded, and despite being given the opportunity to re-write it, she never did. The student finally withdrew from the class, protesting that she was effectively forced out due to her viewpoint about same sex relationships.  The university refunded her tuition for the class.

But that did not stop Ms. Pompeo from suing the university, her professor and the head of the department, accusing them of unconstitutional viewpoint discrimination. The case ended up in the 10th Circuit, which issued a decision many readers will find surprising.

The court held that even if this academic flap is considered “viewpoint discrimination” it was all perfectly legal.  That’s because this was “school-sponsored speech” rather than the student speaking on her own.  The court relied on the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988). That case involved a high school student newspaper. SCOTUS held that the content of the school newspaper was actually the speech of the school—not the students’. Therefore, the school could control it, restrict it, censor it, as long as it had a “legitimate pedagogical reason” for doing so.

This case extends that logic 1) to higher education; and 2) to a student paper written in response to an assignment. Thus even though Ms. Pompeo’s paper was clearly an expression of her own views on the film, the court treated it as “school sponsored speech” thus giving the professor the authority to insist that the word “barren” was out of line.

The court held that viewpoint discrimination would not be permissible if it was a pretext for some darker motive, such as religious discrimination.  The court thus distinguished an earlier case (Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004).  In that case, University of Utah officials told a Mormon student who refused to utter curse words in acting assignments that she could “choose to continue in the program if you modify your values. If you don’t, you can leave.”  The court thought there was enough evidence of anti-Mormon bias in the record that it might be a “pretext” case.

But not so for Ms. Pompeo.  There was no evidence of this conflict being about religion, gender, race, or any other protected category.  It seems pretty clear that the student and her prof had very different views about same-sex relationships, but the university officials claimed that they were merely objecting to language in the paper that was “inflammatory and divisive.”  The court noted that “legitimate pedagogical concerns” is a term broad enough to allow educators to promote “discipline, courtesy and respect for authority.”  Key Quote: “Teaching students to avoid inflammatory language when writing for an academic audience qualifies as a legitimate pedagogical goal.”

The case of Pompeo v. Board of Regents of the University of New Mexico was decided by the 10th Circuit Court of Appeals on March 28, 2017.  You can find it at 852 F.3d 973 or 2017 WL 1149501.

 DAWG BONE: “LEGITIMATE PEDAGOGICAL CONCERNS” IS A FLEXIBLE TERM

File this one under: FREE SPEECH

See you next week!

Dawg Bones

Thinking of boycotting Israel? Think again!

Dear Dawg: Reviewing recent activity in the Texas legislature I found myself once again dismayed. Funny….I seem to feel that way every year about this time.  In this case, the proximate cause of my dismay is the passage of HB 89.  This bill requires that every contract my school district enters into must include a provision stating that the other party “does not boycott Israel; and will not boycott Israel during the term of the contract.”

Yikes! Is this going to show up in my teaching contract for next year?  If so, I guess I need to know what exactly “boycott” means.  The truth is that my husband and I were planning a vacation next year during the Christmas break.  My husband suggested that it would be a great time to travel to Israel, go to Bethlehem, see the Holy Land. We’ve never been, and we thought it would be a great educational experience for our kids.  But I nixed the idea.  I thought it was too expensive for us, and besides, traveling in that part of the world can be dangerous.  So I suggested that we go to Oklahoma instead, and my husband ultimately agreed to that.

I promise I was not wanting to “boycott” Israel!  I have nothing against Israel. But if I have to sign a contract that includes that language, is our private husband-wife conversation going to come back to haunt me.  Truth is, my husband and I are not getting along so well these days. What if we split up? Will he be able to use this against me, accusing me of being the one who boycotted Israel after signing a contract that said I wouldn’t?  Help!  DISMAYED INDEED.

DEAR DISMAYED: Not to worry.  First of all, we don’t think your decision about your vacation amounts to anything close to a “boycott.”  Second, this provision is not going to be in your teaching contract.  The bill requires this provision in any contract “with a company for goods or services.”  You are not a “company.”  School districts will need to include this provision in contracts they enter into for goods and services with “companies” but not with individual teachers.  Rest easy and enjoy your trip to Oklahoma.  As for the sense of dismay—we share that.  It’s a seasonal thing.  You will get over it soon. DAWG.

DAWG BONE: DON’T CONTRACT WITH A “COMPANY” THAT IS BOYCOTTING ISRAEL!  NEW LAW!!

 File this one under: LEGISLATION 2017

Tomorrow: Have you seen the movie “Desert Hearts”?

Dawg Bones

New laws tighten up on inappropriate relationships with students

The legislature has passed SB 7 in an effort to further tighten up on educators who cross that invisible boundary line with students.  Key provisions:

1. It makes it a criminal offense for an educator to have sexual contact with a student enrolled in any K-12 school, public or private. Previous law applied this standard only to kids in the school where the employee worked;

2. It requires principals to promptly report to the superintendent when an educator is terminated, or resigns in the face of evidence of misconduct; the superintendent must promptly turn over any such report to SBEC;

3. It provides for immunity from liability for administrators who make these reports in good faith, or communicate with other administrators while acting in the scope of employment;

4. SBEC may impose an “administrative penalty” for failure to report when required to do so; these penalties can run from $500 to $10,000;

5. It makes it a state jail felony to fail to report when required to do so, if this is done with an intent to conceal the information;

6. Districts must adopt a policy calling for notice to parents of students “with whom an educator is alleged to have engaged in misconduct”; this must be done “as soon as feasible after the employing entity becomes aware that alleged misconduct may have occurred”;

7. Applicants for jobs will be required to sign an affidavit, developed by TEA, stating that they have never been “charged with, adjudicated for, or convicted of having an inappropriate relationship with a minor”;

8. SBEC may revoke the certificate of a person who assists another person in obtaining employment when the person knows that the job applicant “has previously engaged in sexual misconduct with a minor or student in violation of the law;”

9. Amends the Public Information Act to permit schools to share teacher evaluations with TEA when TEA is conducting an investigation; and

10. Requires schools to adopt policies about e-communication with students, including via social media.

We will be discussing this important new law in detail in my Back to School tour this fall. Go to www.legaldigest.com for dates and locations for the BTS tour!

And speaking of great opportunities…..

TASB will host its annual Summer Leadership Institute in San Antonio on June 15 to 17. We are pleased to have several of our attorneys presenting to board members and superintendents at this conference.

*On June 16 @ 9:30 am, Craig Wood and Joey Moore will present “Being Proactive, not Reactive – Practical Tips for High Profile Investigations.”

**On June 16 @ 11:15 am, Melanie Charleston and Katie Payne will present “Don’t Go Down in Flames – Navigating District Social Media: Forum, Free Speech, Privacy & Retention.”

***And don’t forget to make a stop at our table during the conference; we hope to see you there!

DAWG BONE: SLI IS THE PLACE TO BE!

 Tomorrow: Don’t even think about boycotting Israel.