Category Archives: Dawg Bones

Dawg Bones

It’s Toolbox Tuesday!! What’s this about providing “FAPE” after “expulsion”? How can that be?

We highlight The Toolbox on Tuesdays around here. The Toolbox is an all-day program for campus administrators and special education staff. It’s all about the ten “tools” that you can use to appropriately serve students with disabilities who may be seriously disruptive or even violent.

Some of those students will commit offenses that are listed in Chapter 37 as expellable. In fact, some of those offenses are “mandatory expellable” offenses. What does that mean for a student in your special education program?

Three key points:  First, there is no such thing as “expulsion” for such a student in the traditional sense of the word “expulsion.” That word typically denotes a cessation of services of any kind for a significant period of time.  Under federal law, states must make FAPE—Free Appropriate Public Education—available to all children from 3 to 21 “including children with disabilities who have been suspended or expelled from school, as provided for in Section 300.530(d).”  Since federal law overrides state law, this means that there is no “expulsion to the street.”  The student with a disability who commits a mandatory expellable offense must still be served. FAPE must be available.

Second, the ARD Committee is the group that decides exactly how that will happen.  Texas is fortunate in that we already have DAEPs and, in our larger counties, JJAEPs that can normally provide the services that “expelled” students need.  But decisions about exactly where and how a student will continue to receive services must be decided by the ARDC on a case-by-case basis.

Third, the student is entitled to services that “enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.”  Notice that this standard is not exactly the same as “FAPE.”

It’s close, but it’s not precisely the same standard.

These are things we talk about in the Toolbox training?  Interested?  Let me know!

DAWG BONE:  DON’T TAKE “MANDATORY EXPELLABLE” TOO SERIOUSLY.

 File this one under: SPECIAL EDUCATION DISCIPLINE

Dawg Bones

First major piece of legislation: Sanctuary Cities

Governor Abbott has signed into law SB 4, the first significant piece of legislation to emerge from the 2017 session—the so-called “Sanctuary Cities” bill.  This bill authorizes employees of “campus police departments” and “local entities” to inquire into a person’s citizenship status when making an arrest or a “lawful detention.”  Importantly, however, this will not affect the conduct of employees of school districts or open enrollment charter schools.  The term “campus police departments” is limited to higher education; and the term “local entity” does not include school districts.

Moreover, the bill includes a very specific exclusion of K-12 entities:

 This subchapter does not apply to a school district or open-enrollment charter school, including a peace officer employed or contracted by a district or charter school during the officer’s employment with the district or charter school or while the officer is performing the contract. This subchapter does not apply to the release of information contained in education records of an educational agency or institution, except in conformity with the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).  Texas Government Code 752.052(d).

Our immigration laws are enforced by the federal government.  SB 4 now empowers state and local officials to assist with this.  But it conspicuously leaves public schools out of the picture.  All students residing in Texas have a constitutional right to attend the public school, regardless of citizenship status or the legality of their entry into the country.  This was settled by the U.S. Supreme Court in Plyler v. Doe (1982).  In order to safeguard that right, it is important for public school employees to refrain from making inquiry into these matters.

SB 4 seems to recognize this.  This law does not empower or encourage school employees, including SROs, to assist in enforcing our immigration laws.  All employees should comply with school district policy on the matter.  Furthermore, if the school receives a request for records pertaining to a student, the release of those records can only occur in conformity with FERPA.

This fall I will be conducting my annual Back to School tour, which will feature a comprehensive review of new legislation.  No doubt we will be talking about this bill and its implications for public school educators.  Registration for the BTS  program is now open at www.legaldigestevents.com.

 DAWG BONE: SB 4 IS ALREADY BEING CHALLENGED IN COURT BEFORE IT GOES INTO EFFECT ON SEPTEMBER 1. STAY TUNED!

 File this one under: LEGISLATION: 2017

Dawg Bones

A book you must get…

The Dawg recommends that all educators and school attorneys get a copy of “F for Effort: More of the Very Best Totally Wrong Test Answers.”

This thing is laugh out loud funny. Although I thought some of the funniest parts were answers that were not “Totally Wrong.”  Consider this from a math test:

Q. A train is blowing its whistle while traveling at 33 m/s. The speed of sound is 343 m/s.  If you are directly in front of the train, what is the whistle frequency you hear?

 A. You will get hit by the train before you even figure out what that whistling sound is.

 I wouldn’t call that answer “totally wrong.” I’d call it spot on.

How bout this from Physics:

Q. Name three states in which water may exist.

 A. New York. New Jersey.  Pennsylvania.

 Again, this is exactly correct. I’ve been to all three states. Each one had water.

Here’s one from Biology:

Q. List five ways that plants interact with each other.

A. They don’t. They’re plants. They can’t talk or hang out. Is this a trick question?

Get the book.  Not only will it make you laugh—it will help you design better test questions.

DAWG BONE: FRIDAY IS GOOD FOR A LAUGH

 

See you next week, friends!

Dawg Bones

Can you be on FMLA Leave and get unemployment benefits at the same time?

Just suppose that you have a serious illness that causes you to use up all of your paid leave.  After all paid leave is exhausted, you are still not able to return to work.  You can then go on unpaid leave due to the Family and Medical Leave Act.   This will keep your job available for you when you recover.  And the employer will keep paying the employer’s share of the health insurance premiums.

You are relieved that the insurance will stay in effect, but you are no longer receiving a paycheck. So you go to the Texas Workforce Commission (TWC) and apply for unemployment benefits. Can you get unemployment benefits while you are still listed as an employee on “unpaid FMLA Leave”?

Not according to the Court of Appeals in Fort Worth.

The issue came up in the case of Julia White, an employee of Wichita County.  The TWC granted her request for unemployment benefits. The standard is that a person can get unemployment benefits if that person is not performing “services for wages.”  Texas law defines “wages” to mean pay for your personal services, but it does not include the employer’s payment of your insurance premiums. So according to the Texas definition of “unemployed” Ms. White was unemployed, and should be allowed to receive unemployment benefits.  So said the TWC.

Her employer, Wichita County, objected.  The County argued: how can a person be “employed” for purposes of FMLA and “unemployed” for purposes of unemployment benefits?

The Court of Appeals held that such a person cannot do that.  In other words, the employee would have to choose. Go on FMLA, keep your insurance in place and your job open for you; or leave the job and go on unemployment benefits while you look for a new job.  Key Quote:

In other words, the federal and state statutes generally apply to distinct groups of people: those who cannot perform existing jobs on a temporary basis, desire to return to those jobs, and need protection for the jobs until the reason for leave resolves (FMLA) as opposed to those who desire new jobs and are ready and willing to perform them and need temporary income benefits in the meantime (unemployment under the labor code). We cannot fathom that either Congress or our state legislature intended for a person to be able to proceed down both paths and receive both benefits at the same time.

The court described this as a “case of first impression” meaning that this is the first appellate court to wrestle with this specific issue. As such, it will carry a lot of weight as the issue comes up elsewhere.

The case of Texas Workforce Commission v. Wichita County, Texas was decided by the Court of Appeals for the Second District of Texas in Fort Worth on December 8, 2016.  You can find it at 507 S.W.3d 919.  A Petition for Rehearing is pending.

DAWG BONE: COURT SAYS YOU CAN’T BE ON FMLA AND UNEMPLOYMENT AT THE SAME TIME.

 File this one under: LABOR AND EMPLOYMENT

Tomorrow: We offer some laughs, and a book to recommend.

Dawg Bones

Guy is fired after working one day as a sub. Makes a federal case out of it.

On Monday we told you about a suit in Spring Branch ISD brought by a substitute who was greatly offended by being called “only a substitute.”  The plaintiff in that case was a sub—but at least she had been at it for a while. The court noted that she had served as a sub from 2012 until her termination in 2015.  Today’s Daily Dawg features a suit by a sub who was fired after one day on the job!!  Thus we get another nice illustration of the one rule of law that has no exceptions: ANYONE CAN SUE ANYONE OVER ANYTHING AT ANY TIME FOR ANY AMOUNT.

Mr. Scott claimed that Crockett ISD fired him due to his age, and his race, and that the district created a hostile environment and retaliated against him.  He also alleged that he had been assaulted. In one particularly interesting allegation, Mr. Scott claimed that he tried to shake hands with a man who contracted with the district and that the other guy “responded by placing him in a headlock.”  There must be more to that story…..

The district’s explanation for the termination was:

After just one day, school administrators received multiple complaint’s concerning Scott’s language and behavior while substituting this class. Several students issued handwritten letters to school officials documenting Scott’s alleged actions, and CISD attached these handwritten allegations as evidence to its motion for summary judgment.  Specifically, a student alleged that Scott made inappropriate comments concerning religion, bisexuality, suicide, and the sex slave trade. The student also accused Scott of using derogatory terms for homosexuals.

As with the Spring Branch case we reported on Monday, this one also is decided in favor of the district.  Like Ms. Silva in Spring Branch, Mr. Scott handled this case himself and his failure to comply with court procedures proved costly.  Nevertheless, the case illustrates how districts sometimes must expend significant resources defending themselves from claims by employees, even employees you hardly got to know.

 The case of Scott v. Crockett ISD was decided by the federal court for the Eastern District of Texas on March 22, 2017. The court dismissed all of Mr. Scott’s federal claims, refused to retain jurisdiction of his assault claim, and left him free to re-file that one in state court.  The court’s decision is at 2017 WL 1079549, adopting a recommendation from the magistrate judge that can be found at 2017 WL 1097214.

 DAWG BONE:  ANYONE CAN SUE ANYONE….

 File this one under: LIABILITY

Tomorrow: can I get unemployment benefits while I’m still listed as being on FMLA leave?

Dawg Bones

It’s Toolbox Tuesday! The student had drugs at school. Should we address that in a BIP?

In the Toolbox training, we provide a full day for campus administrators and special education staff, focusing on serving students with disabilities in conformity with the law.  One of the “tools” in the Toolbox involves “special circumstances.”  When you have a “special circumstances” case, the administrator is authorized to order a removal of the student from the IEP placement for up to 45 school days.  We call this Tool #5.  Possession of a controlled substance at school would, indeed, be a “special circumstance.”

But when the principal uses Tool #5 to order a removal, he or she has some other things to do as well. First, you need to have an ARD Committee meeting.  The ARDC will need to determine exactly where and how the student will be served. The law gives the principal the authority to order removal to an “interim alternative educational setting” (IAES) but it leaves to the ARDC the decision of exactly what that IAES will be.

Second, the principal should make sure that the ARDC considers what should be done to prevent a recurrence of this behavior.  The regulations tell us that when the principal orders a “special circumstances” removal, the student must:

Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur.  34 CFR 300.530(d)(1)(ii).

So don’t use Tool #5 without also picking up Tool #1—the development of a behavior plan, or at least some kind of services designed to address the behavior. The last few words in that regulation are important: “so that it does not recur.”

DAWG BONE: TOOL #5 IS HANDY, BUT SHOULD LEAD TO USE OF OTHER TOOLS AS WELL

 File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Can a sub who was fired after one day on the job file suit? Yes!  America!!

Dawg Bones

“You are only a substitute…”

Can a person who is “only a substitute” tie your district up in federal court litigation?  Yes.  And the statement allegedly made by the district’s “substitute teacher specialist,” informing Ms. Silva that she was “only a substitute” probably provided fuel to the fire.

The court ultimately dismissed this case in its entirety.  The court, at that point, was as frustrated with Ms. Silva as Spring Branch ISD was in the first place. But the case illustrates how a single non-contract, “at-will” employee can bring a lawsuit that causes the district to expend resources, both financial and human.

Ms. Silva, without the assistance of a lawyer, filed suit in federal court against the district, three district administrators, a secretary and the school district’s outside legal counsel.  The suit alleged discrimination based on national origin, race, and age, along with allegations of a hostile work environment and retaliation.

What prompted all this was the district’s decision to terminate the substitute teacher based on a complaint from a parent that the sub had forced a second grader to spend a considerable amount of time on her knees in the classroom.  In fact, the district’s investigation produced written statements to the effect that Ms. Silva had “made all of the students stand and kneel all day.”

You would think that would be sufficient to justify the termination of a substitute teacher without much hoo hah.  But this is America, where anyone can sue anyone over anything for any amount at any time. Sure, the district prevailed in the lawsuit, but look at the effort it took.   The magistrate judge wrote an opinion that runs for more than 12 pages, accompanied by 214 footnotes.  214!!

The magistrate judge concluded that Ms. Silva may have been offended, and perhaps she even had reason to feel offended. But there was nothing in the case to indicate that she was treated rudely because of her age, national origin or race.  Often in a case like this, the court will allow the plaintiff to amend the pleadings to state things in a better way. But not in this case.  The plaintiff had exhausted the judge’s patience:

The court finds that Plaintiff has engaged in a pattern of contumacious and obstructionist behavior that has prejudiced Defendants’ ability to defend this lawsuit and has multiplied their legal expenses.  Plaintiff’s willful misconduct began prior to her non-attendance at the scheduled deposition date and continues to this date. The court find that its efforts to accommodate Plaintiff, to explain the legal process to her, and to warn her of the consequences of her failure to obey court orders have been utterly unsuccessful.  The more effort expended by the court and Defendants, the more Plaintiff became disruptive and disengaged. Therefore, the court finds no lesser sanction to be better suited.

Plaintiff’s entire lawsuit should be dismissed on this basis.

The case of Silva v. Spring Branch ISD was decided by the federal court for the Southern District of Texas on March 1, 2017.  The judge’s order can be found at 2017 WL 823584, approving and adopting a Recommendation from the magistrate that is at 2017 WL 818593.

DAWG BONE: SHE MAY BE “ONLY A SUBSTITUTE” BUT SHE MAKES A HECKUVA PLAINTIFF.  AND WHAT DOES “CONTUMACIOUS” MEAN, ANYWAY?  WHO USES THAT WORD?

 File this one under: LIABILITY

Tomorrow: Toolbox Tuesday!!

Dawg Bones

Can celebrating Cinco de Mayo lead to litigation? It did in California!

It was Cinco de Mayo Day at the Live Oak High School in the Morgan Hill USD in California.  Celebrations of Hispanic heritage were planned.

Mid-morning that fateful day, a student advised Assistant Principal Rodriguez that “You may want to go out to the quad area. There might be some issues.”  Another student told Mr. Rodriguez that she was concerned about a group of students who were wearing the American flag. The student told Mr. Rodriguez that “there might be problems.”  On orders from his principal Mr. Rodriguez told the kids who were wearing the U.S. flags that they would have to either turn their shirts inside out, or go home for the day.  Mr. Rodriguez  promised the students that if they went home, it would be treated as an excused absence.  Mr. Rodriguez explained to the students that he was concerned for their safety on this particular day.

The principal, Mr. Boden, later testified that he had good reason to be worried about safety.  During his six years as principal he had personally witnessed at least 30 fights on campus.  Some of these involved gangs. Some were between Anglo and Hispanic students.  There was a police officer on campus every day.

On top of that, there had been tension on Cinco de Mayo the year before. A group of Hispanic students walked around school that day with the Mexican flag.  One of them was shouting direct threats of violence against “them white boys.”  The “white boys” responded by installing a “makeshift American flag” on one of the trees on campus and chanting “USA! USA!”   This tension still simmered a year later.

In short, Principal Boden had good reason to be concerned about safety.  But were his concerns sufficient to justify the restriction of free speech?  Don’t American citizens have the right to say what they want, even if some people may be offended?

Of course they do. But in a school setting, administrators can suppress student speech if they can “reasonably forecast” that substantial disruption is about to occur.   The federal court in California ruled in favor of the school in this case, and the 9th Circuit affirmed that ruling on February 27, 2014. The court held that there was “evidence of nascent and escalating violence at Live Oak” that day.  All things considered, school officials acted reasonably

I listened to the recording of the oral argument of this case. The lawyer representing the Anglo kids sounds like he is from New Jersey, and he is clearly not familiar with the Hispanic heritage of the Southwest. He repeatedly referred to “Cinco de May-o” pronouncing it as if it were a sandwich spread. Even after one of the judges corrected him, (“Counsel….we pronounce it ‘my-o’”) he soon reverted to his erroneous ways.  I don’t think this guy could tell a burrito from a quesadilla.

I would have ruled against him just based on that.  The 9th Circuit judges were more….judicious, but they did rule against him.  The case is Dariano v. Morgan Hill USD, 767 F.3d 764 (9th Cir. 2014).

Here’s hoping you have a festive, non-violent and non-litigious celebration of Cinco de Mayo!

DAWG BONE: DON’T HIRE A NEW JERSEY LAWYER IN A CASE INVOLVING CINCO DE MAYO

 File this one under: FIRST AMENDMENT, STUDENTS

Enjoy the weekend! The Daily Dawg returns on Monday.

Dawg Bones

How to review independent evaluations.

Lewisville ISD was involved in a federal court case last year over special education, much of it focused on how the district responded to the parent’s request for an IEE (Independent Educational Evaluation).  The district approved the request, thus agreeing to pay for it, but then balked when the private evaluators quoted their fees. The district had adopted Operating Guidelines that set out maximum amounts that it would pay for an IEE, and in this case the parent had contacted two private evaluators, both of whom quoted fees above the maximum.

Three quick points: First, it’s OK for you to have limits on what you will pay for an IEE as long as it leaves the door open for the unusual case in which there is a good reason to pay more than the maximum.  In special education, there always has to be room for that unusual, special situation.

Second, if you adopt cost ceilings, do so on the basis of factual research of typical costs in your part of the state.  Call around, and find out what qualified people are charging. In the Lewisville case, the district pegged the ceiling at 35% over the Medicaid rate. The court found that to be reasonable, as there were plenty of evaluators who could do an IEE within those limits.

Third, whether you pay for an IEE or not, you should consider it at an ARD meeting.  In this case, I was particularly struck by the fact that the district made this easier for everyone by creating a single “side-by-side” document that summarized the recommendations of the three evaluations the ARD was considering—two IEEs along with the district’s evaluation.  This facilitates meaningful parent participation.  It also makes it easier for all members of the ARD Committee to see clearly where the evaluators agree, and where they disagree.

The case is Shafi A. v. Lewisville ISD, decided by the U.S. District Court for the Eastern District of Texas on December 15, 2016. We found it at 69 IDELR 66 and 2016 WL 7242768.

Nona Matthews and Meredith Walker of our firm’s Irving office handled this case for the district.  Nona and the crew in Irving are excellent resources for you if you want to develop good Operating Guidelines regarding IEEs.

DAWG BONE: EVERYBODY LIKES A GOOD SIDE-BY-SIDE.

 File this one under: SPECIAL EDUCATION

Tomorrow: Cinco de Mayo celebration leads to a federal court case!

Dawg Bones

Court notes that middle school is a place to “practice newly learned vulgarities”

It was actually a legal brief from the National School Boards Association that used the phrase “newly learned vulgarities.”   It was cited in a Supreme Court opinion dealing with student-on-student sexual harassment. Here is what SCOTUS said, with the NSBA brief quoted:

The law recognizes that children—particularly young children—are not fully accountable for their actions because they lack the capacity to exercise mature judgment….It should surprise no one, then, that the school’s that are the primary locus of most children’s social development are rife with inappropriate behavior by children who are just learning to interact with their peers…. “The real world of school discipline is a rough and tumble place where students practice newly learned vulgarities, erupt with anger, tease and embarrass each other, share offensive notes, flirt, push and shove in the halls, grab and offend.”

In a recent decision involving a middle school in Crowley ISD, the court relied on that language to explain its decision in favor of the district.  The plaintiff in the case alleged that a 6th grade boy sexually forced himself on a 6th grade girl in a school bathroom.  The court held that the plaintiff had the burden of proving three critical facts, and that any reasonable jury would rule against the plaintiff on two of those three.

The plaintiff had to prove: 1) that the plaintiff was subjected to sexual harassment that was so “severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school”; 2) that the school had actual knowledge of the sexual harassment; and 3) that the school acted with deliberate indifference.

In this case, the court held that the school did not have “actual knowledge” and did not respond to what it knew in a “deliberately indifferent” way.  The court’s reference to “newly learned vulgarities” came up in connection with the two sexually explicit notes that the boy had written prior to the alleged assault.  The girl never read the notes, or knew anything about them. The school disciplined the boy for each of these vulgar and inappropriate notes, but did not see them as implicating any particular danger to the girl, or to anyone else.  And then the court cited the earlier SCOTUS case, and its recognition of how immature middle school kids can be.

As far as “deliberate indifference” the plaintiff pointed out all the things that the school could have done but didn’t.  But the court enumerated the many things the school did.  In particular: “The record shows that [the boy] was promptly disciplined within CISD’s disciplinary guidelines for every infraction.”  The A.P. meted out “consequences directed by a district-wide discipline program that is based on a ‘nationally recognized behavior intervention approach.’”   It’s unfortunate that none of those consequences prevented the alleged sexual assault, but as the court noted, the district’s response “was not an inadequate response to the situation.”

Our firm handled this case for the district.  Kudos to attorneys Bridget Robinson and Jennifer Childress for excellent advocacy and representation of the Crowley ISD.

The case is Gray v. Crowley ISD, decided by the U.S. District Court for the Northern District of Texas on April 17, 2017.

DAWG BONE: WHEN YOU DISCOVER TROUBLING INFORMATION, DO SOMETHING ABOUT IT. 

 File this one under: TITLE IX

Tomorrow: Reviewing an IEE? Make it easy for everyone!