Category Archives: Dawg Bones

Dawg Bones

It’s Toolbox Tuesday!! Here’s a case to consider…

The Toolbox is an all-day training program targeting campus administrators along with special education staff. The “tools” in the Toolbox are designed to enable you to serve students with disabilities appropriately and in the least restrictive environment, while simultaneously maintaining a safe campus.

The most important tool in the Toolbox is Tool #1—a Behavior Intervention Plan.  If the BIP works as intended, you can put the Toolbox away. You won’t need the other tools. But as we know, BIPs don’t always work as well as we would like. When the student’s behavior escalates toward violence, litigation is possible.

That’s the background for a case from Crowley ISD that ended up in federal court.  This is a student-on-student sexual harassment case involving 6th graders.  Let’s just call them the Boy and the Girl.

The Girl’s mother filed the suit alleging that the district was deliberately indifferent to clear signs of trouble.  The court’s opinion gives us this background:

At the time of the alleged harassment and assault, [the Boy] had well-known behavioral issues and a long disciplinary record.  He received special education services and had a Behavior Intervention Plan (“BIP”) that was developed by his Admission, Review, and Dismissal Committee (“ARD”). The main behaviors targeted by the BIP were physical and verbal aggression toward others and not staying in his seat or staying on task in the classroom.

Thus the argument was that all of this information put the district on notice that the Boy needed to be watched very carefully. On top of that, there were a few specific incidents that occurred during the 6th grade year when the Boy was disciplined.  Some of these involved his writing of sexually explicit notes.

The specific incident that led to litigation occurred after school one day when intramural volleyball games were going on.  While that was happening, the Boy and the Girl spent about 10 minutes together in the boys’ bathroom.  Video surveillance showed the Boy picking the Girl up and carrying her into that bathroom.  The court does not tell us exactly what happened in the bathroom.

The next day, another girl reported to school administrators that she had seen the Boy and the Girl together in the bathroom.  She also reported that she overheard the Boy claiming that the Girl had performed oral sex and that the Girl confirmed this.  Based on this, the assistant principal suspended the Boy pending an investigation. He also reported the incident to the police, and contacted both sets of parents.

The Girl denied the incident when questioned by the assistant principal, but not when she was questioned by her mother.  In fact, she told her mother that the Boy had forced her to perform oral sex.

The A.P. recommended a change of placement for the Boy to a different school, and the ARD Committee approved it.  He and the Girl were never again in the same school.  As for the Girl, she reported some discomfort at the middle school due to teasing by other students.  Ultimately, her mother requested a transfer to another school in the district, which was granted.

I’m going to write about the Title IX aspect of this case tomorrow. So as not to keep you in suspense, I can tell you that the court granted the school’s Motion for Summary Judgment. The court concluded that no reasonable jury could conclude that the school 1) had sufficient knowledge of the threat to the Girl; or 2) was deliberately indifferent to the situation.

For today, I only want to emphasize what this case tells us about special education and behavior plans.   Notice that the Boy’s BIP targeted “physical and verbal aggression toward others.”  That’s exactly what the lawsuit alleges occurred in that bathroom.  Thus you can see how the lawyer representing the family can argue that the school should have seen it coming.  Let me make just one key point about this.

Don’t ever shy away from accurately describing the targeted behavior based on fears of liability.  Some people might be nervous about openly acknowledging that a student is prone to “physical and verbal aggression toward others” for fear that such an acknowledgement opens the door to liability if the student is later physically aggressive toward others.  In fact, however, the exact opposite is true.  If your evaluation data tells you that the student is aggressive, you should acknowledge this as the targeted behavior.   If you don’t do that, you are much more likely to be seen as “deliberately indifferent.”

The case is Gray v. Crowley ISD, decided by the U.S. District Court for the Northern District of Texas on April 17, 2017.  Kudos to attorneys Bridget Robinson and Jennifer Childress of our firm for excellent work on behalf of the district.

DAWG BONE: THE BIP SHOULD ACCURATELY REFLECT WHAT THE EVALUATION DATA TELLS US.  IF THE PROBLEMATIC BEHAVIOR IS AGGRESSION, MAKE THAT THE “TARGETED BEHAVIOR.”

 File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: What the Crowley case tells us about Title IX.

Dawg Bones

It’s Law Day, aka Hug Your Lawyer Day!!


May 1st is officially designated as Law Day! An excellent day to hug your lawyer.

After you have done that, we recommend that you spend a little time studying the 14th Amendment. The American Bar Association has suggested this as a theme for Law Day 2017.   This should particularly resonate with educators, as the 14th Amendment has been such a significant factor in the development of the legal foundations of our public schools.

A very brief timeline of significant events:

1789: The Constitution goes into effect.

1791: the first ten amendments—the Bill of Rights—go into effect.  This includes guarantees of freedom of speech, of the press and the free exercise of religion. It also requires due process of law before any deprivation of life, liberty or property.  That all sounds great—but there’s a catch.  Keep reading.

1833: In Barron v. Baltimore the Supreme Court holds that the Bill of Rights applies only to the federal government—not the states or their political subdivisions. That’s the catch.

1857: The infamous Dred Scott decision holds that people “of the African race” are not part of the “sovereign people” under the Constitution, and therefore, are not entitled to “the rights and privileges which that instrument provides for and secures to citizens of the United States.”  Eleven tumultuous years later, the 14th Amendment effectively overruled this bad decision.

1863: Lincoln’s Gettysburg Address calls for “a new birth of freedom.”  Lincoln’s vision was not inspired by the legalistic language of the Constitution, but rather, by the soaring rhetoric of the Declaration of Independence.

1868: The 13th, 14th and 15th Amendments are ratified and America has that new birth of freedom that Lincoln envisioned.  These three amendments have been collectively termed “America’s Second Founding.”  The first section of the 14th Amendment makes it clear that the states (and their political subdivisions, such as school districts) must also respect the Bill of Rights.  This overrides Barron v. Baltimore and Dred Scott.

Fast forward then to the 20th Century and the many court cases that have interpreted the 14th Amendment in the context of public education. You know these cases.  Brown v. Board of Education.  Tinker v. Des Moines.  T.L.O. v. New Jersey.  Goss v. Lopez.  Plyler v. Doe.

Neither our society nor our schools would be the way they are without the 14th Amendment. So take a few moments today to reflect on this. And feel free to share the following link with your school’s social studies teachers.

http://www.americanbar.org/groups/public_education/initiatives_awards/law-day/fourteenth_amendmenttimeline.html

DAWG BONE: MAY 1ST IS A GOOD DAY TO BE A LAWYER.

File this one under:  U.S. CONSTITUTION

Tomorrow: Toolbox Tuesday!!

Dawg Bones

NSBA and COSA heading to SA—Mark Your Calendars!

The National School Boards Association will have its annual conference in San Antonio next year. Mark your calendar for April 7-10, 2018 when board members and superintendents from around the country will gather near the Riverwalk.

The lawyers meet just before the NSBA Conference. COSA (Council of School Attorneys) will meet in SA on April 5-7.  I recently attended the COSA conference in Denver and it was excellent. These conferences provide a great opportunity to learn what’s happening around the country.

And think of this: the men’s Final Four is in San Antonio next year also—March 31 to April 2. Come for the Final Four, and just stay!

DAWG BONE: RIVERWALK.  ALAMO.  MEXICAN FOOD. WHAT’S NOT TO LIKE?

Dawg Bones

Transfer student told not to come back. Legal problems?

J.G. got in trouble on the school bus.   The principal questioned J.G. and told him to write up his own explanation of what happened.  After considering the matter, the principal suspended J.G. for a few days.  Later in the year the school informed J.G.’s parents that he would not be allowed to enroll in the district the following year. J.G. did not live in the district—he was a transfer student.

The boy’s mother sued the district, alleging that it had (1) violated his right to due process, (2) deprived him of his right to an education, and (3) discriminated against him on the basis of race.   The school district filed a Motion to Dismiss all three claims, and succeeded on two out of three.  The court dismissed those first two claims, but kept the third claim alive.

As to due process, the court pointed out that it’s permissible for a principal to question a student without first notifying the parent.  It’s permissible to require the student to give a written explanation. None of that deprived the student, or the parent, or the process they were due.  In fact, the court noted, that the principal was simply providing the due process required by the Supreme Court case of Goss v. Lopez. 

As far as the right to an education, the court noted that J.G. could still go to school in the district where he resided. There is no “right” to transfer to another district. So that claim was denied.

However, the opportunity to transfer cannot be denied in a way that illegally discriminates.  The suit alleges that J.G., a Hispanic student, was denied re-enrollment based on the bus incident, whereas there was an Anglo student involved in the incident who was still allowed to transfer.  So that part of the case will continue. No doubt if the matters ends up in trial, the district will offer evidence to explain that the decision was not based on race, but rather on some other factor.  At this preliminary stage of the game, however, the court is required to accept as true the allegations in the complaint.

The case is Garcia v. Vega ISD. Judge Mary Lou Robinson of the Northern District of Texas ruled on the district’s Motion to Dismiss on January 27, 2017.    We found the opinion at 2017 WL 395126.

DAWG BONE:   THERE IS NO RIGHT TO TRANSFER, BUT THERE IS A RIGHT NOT TO BE DISCRIMINATED AGAINST ON THE BASIS OF RACE.

File this one under:  ADMISSION AND ATTENDANCE

Tomorrow: NSBA and COSA heading to Texas!

Dawg Bones

Denton offers teaching contract to a five-year old. What????

You read that right.  Denton ISD has offered a teaching contract to Brenden Flowers, a kindergarten student.  Brenden is to start work in 2033, assuming he gets his degree and teaching certificate by that time.

Brenden is a cute little guy, and this makes for a cute story.  It is obviously a way to encourage young people to think about becoming teachers. But still….let’s not let Dan Patrick find out that school districts are recruiting kindergarten kids.  He will use it as evidence to justify school choice.  Can’t you just hear it?

“These government schools are now so desperate that they are hiring kindergarten kids to teach!  We have to give parents more choices!!”

Here’s the story.

http://dfw.cbslocal.com/2017/04/12/denton-isd-teaching-contract-kindergartener/

DAWG BONE: IT’S A GREAT P.R. MOVE, BUT WE DOUBT THE CONTRACT WILL HOLD UP IN COURT

Tomorrow: transfer student told not to return next year. Lawsuit!

Dawg Bones

It’s Toolbox Tuesday!! We’ve got guidance from OCR about the use of restraint.

In the Toolbox Training we talk about the use of physical restraint, and how it should only be used in a genuine emergency.  Many of the readers of this blog have been trained on the use of restraint and are familiar with the protocols to be used.  To add to that, we now have a Dear Colleague Letter from the Office for Civil Rights about how the use of restraint may implicate  Section 504.

The DCL includes the usual admonitions to avoid any discriminatory treatment, but also makes the following key points:

1. The need to restrain a student not yet identified under IDEA or 504 may indicate a need to conduct an evaluation.   This is particularly true if restraint is done more than once.

2. Students who demonstrate behavioral challenges may have a disability even if they are performing well academically.

3. For students already identified under IDEA or 504, the use of restraints is an indicator that the current array of services are inadequate. Do something about it.

4. Section 504 does not prohibit the use of restraint. It prohibits the discriminatory use of restraint.

5. Use of restraint or seclusion may amount to a denial of FAPE. This is true even if it is just a single instance, if the event has a “traumatic impact on that student.”

6. Students who have experienced trauma in the past could be more impacted by restraint than others.

We discuss all of these issues in the Toolbox training.  The Toolbox is an all day program that covers a lot of ground, including 10 “tools” that administrators can use to comply with the law and serve students appropriately when they display challenging, disruptive or violent behavior.  Restraint is not one of the 10 tools, but it is something that has to be discussed in this context.

Whether you attend a Toolbox training or not, this DCL is worth your study.   The DCL was issued on December 28, 2016. We found it at 69 IDELR 80.

DAWG BONE: LET’S KEEP THOSE RESTRAINTS TO A MINIMUM.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Denton ISD hires a five-year old????

Dawg Bones

The impact of one educator….

I knew the memorial service would be crowded, so I got there 30 minutes early.  Not early enough. I had to park three blocks away, and the church was already full. So I stood against the wall. Waiting for the service to begin, I struck up a conversation with the man standing next to me.

I asked how he happened to know the deceased, and he told me that the man was his high school principal in the mid-70s.  Did he have a lot of contact with the principal?  He laughed.  “Well,” he said, “he paddled me once, and suspended me another time.”  And here you are at his memorial service, over 40 years later?  “Yes,” he said, with a smile. “Dr. Akins was a great man.”

Indeed he was, which is why the Wesley United Methodist Church in East Austin was overflowing.  How many people have a high school named for them while they still live?  Charles Akins was that kind of man.  Teacher.  Assistant principal. Principal.  Assistant Superintendent. Board member at ESC Region 13.

Charles Akins attended the all black L.C. Anderson High School in East Austin before the AISD integrated.  After college, he became a teacher and went to work in AISD.  When the district decided to close the black high school, it opened up a new high school in upscale, all white Northwest Austin, and bused black kids in from the Eastside.  They kept the name—L.C. Anderson—and named Charles Akins as the first principal.  In later years he recounted his memories of greeting both the black and white kids as they got off the buses.  Fights were common.

The district placed a lot of confidence in Charles to put him in that position, and he demonstrated through his service that the confidence was well placed. He succeeded at Anderson High School, and at every position he held in the district.

Charles was one of those people who seemed to overflow with warmth. He remembered names, and took interest in everyone he met.  That man who stood beside me at the service was not the only former student from long ago who took the time to honor this man.  At the memorial, the principal of Akins High School kept her composure until she noted that the school would soon have its first graduation without Dr. Akins.

I did not know him well, but knew him well enough to know that Charles Akins was a quiet hero. We are fortunate that we have many of them serving in our public schools.  The life of  Charles Akins is a reminder of the enormous positive impact a single educator can have.

DAWG BONE: CHARLES AKINS—MAY HE REST IN PEACE

Tomorrow: Toolbox Tuesday, and some guidance from OCR.

Dawg Bones

Happy San Jacinto Day!

Wikipedia says that the Battle of San Jacinto lasted only 18 minutes, but “the killing lasted for hours.”  Yikes.

Anyway, we wish all of you a Happy San Jacinto Day!  If you are wondering how you should honor the Texas heroes who secured our independence, let me suggest this: take an 18-minute nap.

They fought so that we can nap. Be grateful.

DAWG BONE: SAM HOUSTON IS SMILING DOWN UPON US.

Enjoy the weekend!

Dawg Bones

Could we just abolish 7th grade?

At least once a year I like to promote the brilliant idea my wife came up with many years ago.  We should abolish 7th grade and replace it with a full year of instruction and practice on social skills.

Does anyone learn anything of an academic nature in 7th grade that’s really important?  By 7th grade the basics are in place. They know how to read, write and cipher.  The harder stuff (quadratic equations, calculus, quantum physics, Shakespeare) lies ahead.  Nothing really important happens in 7th grade.  Most of what is allegedly “learned” during that year will be re-taught and re-learned later.

That’s largely because 7th graders don’t care about academic learning. They only care about the peer group, their social status and how they fit in. Why don’t we recognize that and take advantage of it?  Let’s spend an entire year on things like:

1. How to shake hands with an adult.

2. How to get someone’s attention without being rude.

3. How to call someone on the telephone that you don’t know.

4. How to meet a new person.

5. The importance of eye contact.

6. Table etiquette.

7. Digital etiquette.

8. How to disagree with someone without being disagreeable about it.

9. How to handle awkward moments.

10. What real friendship looks like.

11. The difference between apologizing vs. making amends.

12. Resilience when things go wrong or are hard.

13. How to respond—not react—when you are angry or offended.

The list could go on.   Anyway….I think the idea has merit. What do you think?

DAWG BONE: DOWN WITH 7TH GRADE!!!

Tomorrow: 18 minutes that changed the world….

Dawg Bones

Is discrimination based on sexual orientation the same as discrimination based on sex?

Is it illegal for an employer to discriminate against a person because he is gay or she is lesbian?  After the Supreme Court’s decision in the same-sex marriage case, you would think that the answer would be an obvious “yes.” But it’s not that simple. In fact, until very recently almost all of the Circuit Courts that have considered the issue have held that discrimination based on sexual orientation does not violate Title VII, which is part of the 1964 Civil Rights Act. Title VII prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.”  So if Mr. Smith is fired because he is gay, has he been discriminated on the basis of “sex”?

This was the issue before the 7th Circuit, sitting en banc in a recent case.  Kimberly Hively alleged in her suit that she was passed over for promotion, and later terminated by Ivy Tech Community College for the sole reason that she was openly lesbian.  By a vote of 8-3, the court held that discrimination based on sexual orientation is a form of sex discrimination.   The opinions of the judges, both majority and dissent, make for interesting reading.

The majority opinion is written by Judge Diane Wood, who I knew when she and I were both undergrads at UT Austin.  She points out in her opinion the weirdness of the current legal landscape whereby a gay person “can be married on Saturday and then fired on Monday for just that act.”  Citing the same-sex marriage case and other Supreme Court cases on analogous topics, the majority concludes that discrimination based on sexual orientation is a subset of sex discrimination and, therefore, equally illegal.

Judge Posner’s erudite concurring opinion overtly embraces the idea that judges can, and should, re-interpret statutes as the culture changes.  He cites his own life experience:

It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII. I had graduated from law school two years before the law was enacted.  Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered “only in the pages of A la recherche du temps perdu.”  [Remembrance of Things Past by Marcel Proust].  Homosexuality was almost invisible in the 1960s.  It became visible in the 1980s as a consequence of the AIDS epidemic; today it is regarded by a large swathe of the American population as normal.

The three dissenting judges were equally eloquent in urging the court not to do for Congress what Congress should do for itself:

It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act.  Legislative change is arduous and can be slow to come. But we’re not authorized to amend Title VII by interpretation. The ordinary, reasonable, and fair meaning of sex discrimination as that term is used in Title VII does not include discrimination based on sexual orientation, a wholly different kind of discrimination.

This case may end up before the Supreme Court. If it gets there, it will have implications not only for gay and lesbian employees, but also transgender employees and students.

The case is Hively v. Ivy Tech Community College, decided by the 7th Circuit on April 4, 2017.  We found it at 2017 WL 1230393.

DAWG BONE: AS THE CULTURE CHANGES, THE LAW FOLLOWS….EVENTUALLY.

File this one under: LABOR AND EMPLOYMENT

Tomorrow: a radical idea for your consideration….