On June 13, 2023 we will be presenting the Frank Kemerer Award to an outstanding Texas high school social studies teacher. Do you know a good candidate?  If so: check out https://www.tassp.org/frank-r-kemerer-award-

This award is sponsored by ED311 (www.ed311.com) and the Texas Association of Secondary School Principals (TASSP).  Nominations should come from the principal, be endorsed by the superintendent, and sent to melissa@tassp.org. 

The ideal nominee has at least five years of experience and has demonstrated excellence in promoting scholarship and culture in the school through the social studies department.  Why social studies?  First, because that was Frank Kemerer’s domain. Frank was a highly respected professor at the University of North Texas, the founder of The Texas School Administrators’ Legal Digest, (which has evolved into ED311) and the author of the first edition of The Educator’s Guide to Texas School Law.  As a student of law and educational policy, Frank understood the value of strong teaching in the social studies area.

The second reason we chose social studies is to give it some recognition. It’s imperative that the next generation be well prepared to take on the responsibilities that come with citizenship in a democracy. 

The winner of this annual award will be invited to Austin for a celebratory dinner and then the presentation of the award at the annual ED311/TASSP Legal Conference.  ED311 generously provides the funding for the travel to Austin as well as a $3000 check to the winner.

Who is the best social studies teacher you know?  Ask the principal to send that email to melissa@tassp.org.   

DAWG BONE: DON’T KNOW MUCH ABOUT HISTORY?  BUT I BET YOU KNOW A GOOD TEACHER.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Misophonia was a new one for me when I encountered the term in a 6^th Circuit court case. Spell check thinks I’m misspelling it, but the term gets a lot of hits on Google, including from WebMD.  It’s a disorder that causes people to have disproportionately strong reactions to common sounds.  We’re not talking about fingernails on the chalkboard. Everyone hates that. We’re not talking about the loud, obnoxious roar of a leaf blower. We’re talking about the sound of someone eating food or chewing gum. Does that drive you up the wall?  Probably not, but if you had misophonia it would.

Jane Doe, a student in Knox County, Tennessee has misophonia, which prompted her parents to make a simple request of the school: tell the other kids not to eat or chew gum in the classroom.  The school denied that request and the parents sued. 

They won an important skirmish, but lost the war.  The parents persuaded the court that this is the type of lawsuit that can go directly to court rather than plodding through the special education due process system. In the language of the law, the court held that the parents were not required to “exhaust their administrative remedies.” They could go directly to court with their ADA and 504 complaints. 

THE SKIRMISH: EXHAUSTION OF ADMINISTRATIVE REMEDIES.   This is a term that should never be uttered at an ARD meeting. This term is for the lawyers, and this part of the court’s decision is for the lawyers. It’s your lawyer who will decide if a Motion to Dismiss based on “failure to exhaust” is worth pursuing.  This case is a published Circuit Court decision on this issue. In other words, it’s an important precedent. And here are some Key Quotes:

The IDEA’s text and circuit precedent both show what it requires: Parents seek “relief” that is “available” under the IDEA only if a child needs an  instructional change, not just a non-instructional accommodation to some rule or policy. (Emphasis in the original).

Doe’s parents did not need to proceed through the IDEA’s administrative process because their complaint did not request (or suggest that Doe needed) any instructional changes.

A ban on eating and chewing is neither “special education” nor a “related service” (the two items that make up a FAPE).

THE WAR: AN INJUNCTION.  So the court took jurisdiction of the case, but then ruled against the parents. However, the case is not over. The parents were seeking a preliminary injunction which carries with it a high burden of proof. The court was unimpressed with the “cursory briefing” the parents provided to support their cause. The court denied the injunction on that basis but sent the case back to a lower court for a decision on the full merits after all of the evidence is presented.

It's worth noting that the school had a basis for its denial of the request. Jane Doe attended L&N STEM Academy, a school of choice that was unique in the district. It did not have a cafeteria, and had a policy of allowing each teacher to decide if eating in the classroom would be acceptable. Consider this:

According to L&N’s principal, the school seeks to develop a “unique” culture that gives the students more independence than a typical high school….Because L&N operates more like a college, it has gathering spaces that can hold only 70 to 90 students and lacks a designated “cafeteria.” ….If students could eat only at specified times, the school would have to change its “entire schedule.”  Some students also travel from hours away to attend L&N and stay for extracurricular activities.  They may remain on campus for over 12 hours and often need to eat more than at a designated lunch time. The school thus allows teachers to permit snacking during class.

It's Doe v. Knox County Board of Education, decided by the 6^th Circuit on January 4, 2023.  It will be published in the Federal Reporter, but for now can be found at 2023 WL 33624.

DAWG BONE: FIRST DECISION FROM 2023 AND WE LEARN A NEW WORD!

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: know any good social studies teachers?

By all accounts, student mental health problems are surging.  More than ever teachers are reporting that students are depressed, anxious, sleep deprived, and adversely affected by trauma.  That does not mean that all of those students have the kind of “serious emotional disturbance” that IDEA recognizes.  A recent case from the 10^th Circuit provides a good analysis of this issue. 

The Colorado district offered to evaluate D.T. for special education in November 2017, his junior year of high school.  Upon completion of that evaluation the IEP Team determined that the student  qualified due to a serious emotional disturbance (SED). But the parents sued the district, alleging that all this came too late, that the district failed its Child Find duty by waiting too long before looking into special education

The Colorado hearing officer ruled in favor of the district. The federal district court did so also, and now the 10^th  Circuit has affirmed that ruling. The case is particularly helpful because it directly addresses the very common situation in which students are having major issues at home, but doing reasonably well at school.   

Colorado’s state law addresses this.  It requires that an SED label be based on “indicators of social/emotional dysfunction” that “are observable in at least two different settings within the child’s environment. For children who are attending school, one of the environments shall be school.”  Moreover, those indicators must not be “isolated incidents or transient, situational responses to stressors in the child’s environment.” 

The student had been stressed since his first year of high school after his family moved from Florida and enrolled him in the Colorado school that was much larger.  He had trouble connecting with peers that first year, but earned a 3.36 GPA. 

In sophomore year the grades dropped down below 3.00, but part of that was because the student refused to drop the Honors English course, as his counselor had recommended.  He was still passing his courses, but the outside problems escalated. The mother reported suicidal ideation and the time he jumped in front of a car after a fight with the family. His mother suspected he was using drugs.

Junior year: in September the student was hospitalized for a week after leaving home late at night after another argument with the parents.  In October the mother requested a 504 plan. More arguments at home. Drug use confirmed.  Many meetings with the school psychologist and other staff members. 

On November 10 another student reported that D.T. had threatened to “shoot up the school.” This led to a second brief hospitalization, disciplinary action, and an evaluation for an IEP that concluded that he did have an SED requiring special education.  After the winter break the student transferred to another school district where he graduated a year later.

To recap: there were numerous indicators of a mental health problem, and the school was aware of them. Nevertheless, the school did not refer the student for an IDEA evaluation until he threatened to “shoot up the school.”  The parents argued that this was too late, but the court did not see it that way. The court’s rationale was based on four factors. First, the absence of problems in the school setting: 

Until D.T.’s shooting threat, in-school manifestation of his emotional dysfunction was scant. The incidents he uses to illustrate that the District violated its child find duty predominantly stem from at-home conduct. 

Despite these difficulties at home, the District reported no substantial behavioral issues during school, and he continued to engage in his studies.

Second, the signs of trouble were not “pervasive”:

Although this court takes seriously the toll depression and anxiety take on students’ learning, we do not construe mere declining grades and social difficulty as the kind of pervasive disability IDEA contemplates for an SED determination.

Third, the district had reason to believe that its general education response was working:

The District went to great lengths to ensure D.T.’s access to FAPE upon becoming aware of his struggles with mental health.  When faced with acute mental health concerns, the school conducted a risk assessment and a robust re-entry plan with individualized supports. The school also consistently offered D.T. additional counseling and customized academic help.  For those additional academic supports in which he participated, the school observed progress. 

…the school had no reason to suspect its general education supports were insufficient.

Fourth, there were other reasons that explained D.T.’s problems:

…his episodes of emotional distress were strongly connected with familial disputes outside the school environment.  Further, the record demonstrates he struggled with moving from Florida to Colorado and settling into an unfamiliar learning environment.  D.T. also took a rigorous course load against his counselor’s advice, and he performed better when it was pared back.  Lastly, he began engaging in regular drug use during his sophomore and junior years.  These circumstances illustrate repeated situational responses to negative occurrences in D.T.’s life.

We’ve been writing a lot in the Daily Dawg about Child Find. This case is important because it shows that the particular elements of the disability that is “suspected” should be analyzed when determining whether or not to make a referral. Those factors the court relied on are pulled directly from the very definition of an SED.  Let’s keep that in mind.

It’s D.T. v. Cherry Creek School District No. 5, decided by the 10^th Circuit on December 10, 2022.  It can be found at 55 F.4^th 1268.

DAWG BONE: WHAT DISABILITY DO WE SUSPECT? WHAT ARE THE ELEMENTS OF THAT DISABILITY?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: a new vocabulary word….

We are using our Toolbox Tuesdays to plow through the Q and A document promulgated by OSEP regarding student discipline. Section K is about the dispute resolution mechanisms that are available when there is a dispute over discipline. In a nutshell: all of them. Parents can seek mediation, if the district is also willing to mediate; parents can file a complaint with the state agency; parents can seek a due process hearing. If they go the hearing route, it must be done in “expedited” fashion—the hearing to be held within 20 school days of request, with a decision due ten school days after the hearing.  Lawyers call that the Rocket Docket.

I think this section of the Q and A omitted something important.  What happens to the student when the parties disagree about the manifestation determination, or the appropriateness of a DAEP placement?  Seems to me the Q and A should have mentioned the disciplinary stay-put rule here.  Here it is:

When an appeal under Section 300.532 has been made by either the parent or the LEA, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in Section 300.530 (c) or (g), whichever occurs first, unless the parent and the SEA or LEA agree otherwise.  34 CFR 300.533

To translate that to simpler language: the student stays in the setting the ARD calls for, which is usually the DAEP.  That “interim alternative educational setting” (IAES) is determined by the ARD.  And if the ARD can’t agree?  Let’s go back to the Q and A Question F-6:

If [the parties do not agree], the LEA must make the determination and provide the parent with prior written notice…”

DAWG BONE: ALMOST DONE WITH THIS Q AND A REVIEW, AND I’LL BE HAPPY TO RETURN TO MORE INTERESTING CONTENT.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: is every depressed and anxious kid also “emotionally disturbed”?

ARE YOU ATTENDING THE MIDWINTER CONFERENCE?  IF SO, YOU ARE INVITED TO THE WALSH GALLEGOS RECEPTION THIS AFTERNOON AT FLEMINGS RESTAURANT, JUST A BLOCK FROM THE CONVENTION CENTER.  HOPE TO SEE YOU AT 5:30!

Is it even possible to create a social media account that is limited to just a few people?  That’s what Cedric Epple (soon to be known as “the Plaintiff”) attempted to do during the 2016-17 school year. His intent was to keep this account to a few carefully selected friends so that they could share memes, images and comments “which other people might not find funny or appropriate.”

What Cedric posted, and other students added to or “liked” went way beyond “not funny.”  It went way beyond “vulgar and inappropriate.”  I’m not going to describe the posts in detail here, but let’s just summarize the content as the 9^th Circuit did:

These ranged from immature posts making fun of a student’s braces, glasses, or weight to much more disturbing posts that targeted vicious invective with racist and violent themes against specific Black classmates.

After he was expelled from school, the Plaintiff alleged that the school had infringed on his free speech rights by punishing him for these posts, which he did when he was not at school.  He argued that the school had no authority to discipline him.  After all, he had not intended for his posts to be seen by anyone but about 13 people that he approved to follow this private account. 

Just ask any assistant principal how long that privacy is going to last.  The Plaintiff’s plan to maintain a tight circle started to fall apart when one of his followers showed some of the content to one of the Black students who was shown on the Plaintiff’s Instagram account with a noose around her neck. That student then told others.  And then a student who was not following the account asked to borrow the phone of a student who was allowed to follow it. The kid lied, saying that she needed to call her mom. Instead, she took the phone to the bathroom where she and another friend took pictures of some of the incendiary content.

So all of a sudden, knowledge of these despicable posts was widespread.  The principal called a faculty meeting the next day and the faculty informed him that the horse was already out of the barn:

The teachers complained that the meeting should have been held the day before, because a “majority” of the students knew about the matter and wanted to talk about it in class, leaving the teachers to deal “with the situation all day without any official information from the school.”

An A.P. said that the school counselors and mental health staff “were inundated with students needing help to handle their feelings of anger, sadness, betrayal and frustration about the racist posts and comments in the Instagram account.” The superintendent described the impact of all this as “significant and ongoing.”

So there was a major disruption of school, but let’s get back to the Plaintiff’s insistence that it wasn’t his fault. He took steps to keep things private. It was those other kids who spread things around.  The 9^th Circuit displayed a common sense approach to that argument.  The Plaintiff’s “intent” was irrelevant. What mattered was this:

Given the ease with which electronic communications may be copied or shown to other persons, it was plainly foreseeable that Epple’s posts would ultimately hit their targets, with resulting significant impacts to those individual students and to the school as a whole.

The court offered a colorful metaphor:

Epple again emphasizes that he did not ever intend for the targets of his posts to ever see them.  But having constructed, so to speak, a ticking time bomb of vicious targeted abuse that could be readily detonated by anyone following the account, Epple can hardly be surprised that his school did not look the other way when that shrapnel began to hit its targets at the school.

This is a solid and important decision from a high level court that should assure school administrators that they are on firm ground when dealing with this kind of bullying, even when it is “only” on social media and “only” done off campus. In fact, ignoring behavior like this could lead to charges that the school was complicit in the creation of a racially hostile environment. 

It’s Chen v. Albany USD, decided by the 9^th Circuit on December 27, 2022.  It can be found at 56 F.4^th 708.    

DAWG BONE: BULLYING IS NOT FREE SPEECH.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!

The facts alleged in B.W. v. Austin ISD would probably not occur in most of Texas. The plaintiff alleges longstanding harassment and bullying because of his vocal support for former President Trump. He wore the hat, had Trumpian stickers on his laptop, and wore a Ted Cruz shirt.  He alleges that this produced a cascade of bullying and harassment that was open for all to see. He alleged that teachers were part of this, failing to take any corrective action and sometimes joining in the harassment.  He was accused of being a racist, anti-gay, anti-feminist.  He says he was criticized for being a Christian, a Republican and a white person.  He claims to have been the only kid who stood when the Pledge of Allegiance was broadcast on the loud speaker and that his patriotic gesture was greeted with “America is only for white people,” spoken by another student. 

He lost his case.  The basic problem comes under the “barking up the wrong tree” category.  He alleged racial harassment but the court found it all to be more political than racial. The suit alleged that the plaintiff was called a Nazi and KKK member, but the court noted that “this is just one of his many flawed attempts to conflate political with racial animus.” Key Quote:

The Complaint is replete with examples demonstrating that most of the incidents B.W. experienced were due to his ideological beliefs. B.W. fails to connect this political animus to the racial animus that he must show for his Title VI claim.   

After all, Title VI is not about politics. It’s about race.

The case reminded me of Justice Scalia’s famous remark that all federal judges should have a big red stamp reading: STUPID, BUT CONSTITUTIONAL.  This case suggests that there is another stamp they should have: APPALLING BEHAVIOR THAT MIGHT VIOLATE SOME LAW, BUT NOT THE ONE YOU THINK IT DOES.

The behavior alleged by students and faculty in this case is appalling to anyone of any political persuasion.  It’s important to point out that the court’s opinion assumes the truth of the student’s allegations, which the court must do when considering a Motion to Dismiss.  I hope the allegations in the case are not true.  But true or not, they do not amount to harassment based on race.

What about bullying? Wasn’t this bullying? Yes it was. But again, the suit alleged racial discrimination. Key Quote:

The bullying alleged in this case is a cause for concern. But while we do not condone bullying in any form, Title VI does not support a claim for bullying generally. A plaintiff like B.W. must allege that he was harassed because of his race, color, or national origin.  B.W. has failed to do so.

It’s B.W. v. Austin ISD, decided by the 5^th Circuit in an “unpublished” opinion issued January 9, 2023, and cited at 2023 WL 128948.

DAWG BONE: OK, BUT LET’S SEE IF WE CAN PREVENT ALL KINDS OF BULLYING. HOW ABOUT THAT?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Mr. Dodge brought his MAGA hat to the teacher training on cultural sensitivity and racial bias.  He didn’t wear it into the building, but left it on his desk or his backpack as he sat quietly in the back of the room during two days of training.  The Washington State University professor who led the training saw the hat and told the principal that it made her feel “intimidated and traumatized.”  One teacher cried. Another found the hat “threatening.”  In all, however, fewer than five of the 60 attendees complained about Mr. Dodge’s hat. Mr. Dodge was silent throughout the two days and the training was completed without incident.  But that red hat sat there for all to see.

After the first day of training, the principal advised Mr. Dodge that some of his colleagues were upset about his choice of headwear. She encouraged him to “use better judgment” but added that she could not ask him to stop wearing the hat.  After the second day of training, the principal took a harder line. According to Mr. Dodge (soon to be known as “the Plaintiff”) the principal swore at him and accused him of being a “homophobe and a racist and a bigot and hateful.”  The principal told the teacher that “the next time I see you with that hat, you need to have your union rep.” 

Mr. Dodge filed a “harassment, intimidation and bullying (HIB) complaint against the principal, and asked for a transfer to a different campus, which ultimately led to his lawsuit against the principal, the HR Director and the district.  The court dismissed the claims against the HR Director and the district, but the Dawgworthy aspect of this case involves Principal Garrett.

The 9^th Circuit held that Principal Garrett was not entitled to qualified immunity. She faces possible personal liability for an infringement of the teacher’s constitutional right to free speech.  Here are the takeaways from this decision.

1. Wearing a MAGA hat is uber-protected as free speech because the First Amendment  “affords the broadest protection to….political expression.”  The court observed that “The messages of candidates for public office are not only newsworthy; they inherently relate to the ‘political, social, or other concern to the community.’”
2. A supervisor threatening an employee with disciplinary action is an “adverse employment action.”
3. When an employee speaks as a citizen on a matter of public concern, the government has a high burden of proof to justify infringing on that speech.
4. It was significant that this was a teacher-only training.  Had Mr. Dodge wore the hat in the classroom, which he had promised not to do, the case might have come out differently.

The principal justified her actions in two ways: first there were teachers who were angry, offended, and even fearful due to a fellow teacher displaying this hat. Second, the hat “was an affront to the [school’s] agenda of cultural inclusivity and interest in creating a safe place for ELL students.”  The principal noted the context—that this all occurred “within weeks of the Trump Administration’s loud and publicized initiative to deport as many immigrants as possible.” The court found that argument to be indicative of the principal’s viewpoint bias.  Here’s an important quote:

It would be one thing if Principal Garrett was enforcing a generally applicable policy that banned all political expression. A government employer can categorically prohibit political speech as a valid administrative interest such that the prohibition does not favor or disfavor any particular view. But that is not what happened here.

How did the court come to that conclusion? Well, for one thing there was the Black Lives Matter poster in the school library. It turns out a teacher who was married to a police officer complained about the BLM poster, but it stayed up. The court quoted Principal Garrett’s explanation for why the BLM poster was OK but the MAGA hat wasn’t:

While the Black Lives Matter poster is a symbol of cultural acceptance and inclusivity…Mr. Dodge’s MAGA hat is a symbol commonly associated with white supremacy and other anti-immigrant sentiments. Comparing an innocuous bumper sticker and a racially supportive poster to the MAGA hat is troglodytic and unacquainted with the affairs of the world.

Oh, I forgot to mention the “innocuous bumper sticker.” It turns out that there was a car in the faculty parking lot sporting a Bernie Sanders bumper sticker. Principal Garrett’s car. 

As to the upset teachers, the court applied the familiar Tinker test: was there a material and substantial disruption of the teacher training?  No.  Just people who strongly disagreed with Mr. Dodge and were upset and angry that he chose to express his view.  As we all should know by now, free speech often makes people angry.  It’s part of living in a country that has a First Amendment.

The court held that it should have been obvious to the principal that she was infringing on the teacher’s free speech rights. Therefore, she could not claim qualified immunity.  Nor can she continue to serve as principal.  After an investigation into how Principal Garrett handled this situation the board gave her a choice: accept a demotion or face disciplinary proceedings. She resigned.

It’s Dodge v. Evergreen School District #114, decided by the 9^th Circuit on December 29, 2022.  It will be published in the Federal Reporter, but for now it’s at 2022 WL 17984059.

DAWG BONE: “TROGLODYTIC”?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: the kid with the MAGA hat….

Dear Dawg: My child is making fantastic progress in reading, thanks to the S2C letterboard we are using.  S2C is Spelling to Communicate, aka Rapid Prompting Method.  I hold the board with the alphabet on it and my child signals to me letter by letter.  The school district refuses to use it.  They say that there is no “peer-reviewed research” to support it.  How can that be?  My child’s neuropsychologist and speech pathologist both recommend it. I think the real reason the school won’t use it is that they think I am cheating with the letterboard—hinting or helping my child to find the right letter.  What can I do about this?  DISTRAUGHT.

DEAR DISTRAUGHT:  That sounds a lot like what happened in a Pennsylvania school district last year.  The school’s concern over supportive research is legit.  In the Pennsylvania case the court noted that there was “no peer-reviewed research supporting the legitimacy of S2C as an evidence based methodology.”  Your speech path may have liked it, but the national organization of speech paths, ASHA, stated that the use of RPM “is not recommended because of prompt dependency and the lack of scientific validity.”  Moreover, the State of Virginia’s Speech and Audiology Licensing Board  assessed an $8,000 fine against the creator of S2C for practicing without a license from 2004 to 2017.  I hope your child’s district carefully considers your request and looks into it seriously, rather than dismissing it without investigation. That kind of careful consideration is important.  Here’s how the court summarized how the Pennsylvania district handled the situation:

Although the District ultimately did not agree to use S2C in the academic setting, the record reflects the District’s teachers and staff seriously researched and evaluated whether it could be used.  The record also shows that the District’s teachers and staff had A.L.’s best interests at heart. Unfortunately, the District could not overlook the lack of evidence supporting the method and the District’s own observations calling the method’s reliability into doubt….It is not the Court’s role to second guess the District’s decision not to implement S2C. 

I suggest you ask a lawyer to help you out, but the lawyer should start out by reading J.L. v. Lower Merion School District, which was decided by the federal court for the Eastern District of Pennsylvania on September 15, 2022.  It can be found in Special Ed Connection at 81 IDELR 251.

DAWG BONE: COURTS WILL SUPPORT METHODOLOGY DECISIONS MADE BY SCHOOLS IF THERE IS RESEARCH TO SUPPORT THE DECISION.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: the MAGA hat case….

Q and A documents from the Department of Education can be helpful, but too often they either simply regurgitate what is already in the regulations, or offer wishy washy “it depends” kind of answers.  So I noticed that Section J of the Q and A about discipline is more direct. This section has eight questions and seven of them are answered with a “yes” or “no.” 

So here’s a quick summary:

1.  When a parent consents to some but not all of what the district offers in the IEP, do the discipline provisions apply?  Yes, they do.
2. Do they apply after the parent has revoked consent for special education services? No, they do not.
3. Do they apply to kids in charter schools?  Yes.
4. Do they apply in a virtual setting?  Yes.
5. Do they apply when students are in a correctional facility?  Yes.
6. Do they apply when the school district places the student in a private school in order to provide FAPE? They do.
7. What about eligible students who are placed by their parents in private schools?  No—they are not entitled to IDEA’s protections.

The other question was about preschoolers. Are they entitled to IDEA’s protections?  The answer to that one was “Generally, yes.”  In fact, the protections of these little ones are often greater than what IDEA offers since state law often restricts the use of disciplinary measures. For example, Texas prohibits the use of out of school suspension for all students below grade three.

Next week we move on to Section K in the Q and A—Resolving Disagreements.

DAWG BONE:  A “YES” OR “NO” ANSWER IS RARE IN THE LAW, BUT ALWAYS WELCOME.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: a distraught parent reaches out to the Dawg.

Don’t you hate the car congestion when you try to pick up family members at the airport?  There you are carefully nudging your Subaru forward, trying to get past the Lexus in front of you while avoiding the Chevy coming up too fast on your left. This van in front of you is taking way too long with the goodbye hugs, and won’t get out of the way. Finally you slide into the coveted inside position, but your family is just now getting the bags and it will be a few minutes before they emerge. Do you stay or do you go?  Do you risk another circuit around the track? 

Just then the airport cop approaches your vehicle and tells you to move it. What happens then?

According to Mr. Vardeman, things went south at Hobby Airport very quickly.  One officer told him to move, using vulgar language and discounting his explanation that his family was just around the corner.  The officer asked for help. By the time the next officer came on the scene, the family had arrived and Mr. Vardeman was loading the bags in the car. According to the lawsuit, the officer’s opening line was “you need to move the f-ing car or I will whip your bitch ass.” Mr. Vardeman’s adult daughter, while holding her baby, attempted to get between the two men and the officer “forcefully pushed” her.  Which prompted Mr. Vardeman to push the officer away. Uh oh.  Here’s what happened next, according to the lawsuit:

Simpson [the airport cop] aggressively and violently struck Mr. Vardeman with a closed fist, in the right side of his face with such force that it knocked him to the ground. Simpson then proceeded to walk around and stand over Vardeman in a menacing manner and acting as if [he] was going to strike Vardeman again, while he was still on the ground. It was only when Vardeman’s wife got in front of Simpson did he walk back to the sidewalk away from Vardeman..

Loyal Daily Dawg Readers must be thinking to themselves right about now: “Interesting story, Dawg, but what’s it got to do with school law?” 

Mr. Vardeman sued the city and Officer Simpson, alleging, among other things, a violation of the 4^th Amendment, an unconstitutional “seizure.”  Therein lies the connection with school law. The Daily Dawg has reported three cases in 2022 in which plaintiffs allege that the physical restraint of a student was not just “excessive force,” but also an unconstitutional seizure under the 4^th Amendment.  So when the 5^th Circuit issues a published decision that sheds light on what is and is not a “seizure” we need to pay attention.

The federal district court tossed the claim out, holding that what Officer Simpson did was not a “seizure.”  The 5^th Circuit reversed that. That’s why this case is Dawgworthy. 

Reviewing the case law, the 5^th Circuit noted that all of the circumstances have to be considered. The issue boils down to this: did the conduct of the officer communicate “to a reasonable person that the person was not free to decline the officers’ requests, or otherwise terminate the encounter.” Put yourself in Mr. Vardeman’s position, prone on the pavement at Hobby Airport, as the officer who put you there after shoving your daughter who was holding your grandchild, hovers above you in a menacing manner? 

The court cited SCOTUS for the notion that “brief seizures are seizures all the same.”  Thus the conclusion was that the allegations in this suit, if proven true, could support the conclusion that what Officer Simpson did was a “seizure,” thus opening the door to liability for a violation of the 4^th Amendment. 

This is going to come up in a school district case involving allegations that the physical restraint of a student lasted longer than it should have. We have plenty of legal authority to support the use of physical restraint on students in cases of genuine emergency involving imminent threats of serious physical injury. But this case highlights, again, the critical need for good training with regard to when and how physical restraint is used. 

It's Vardeman v. City of Houston, decided by the 5^th Circuit on December 21, 2022. It will be published in the Federal Reporter, but for now can be found at 2022 WL 17829434.

DAWG BONE:  SEIZURES CAN BE BRIEF, BUT THEY ARE STILL “SEIZURES.”

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!