Category Archives: Dawg Bones

Dawg Bones

The hero of our story today is the school custodian.

Mr. Kominek was probably looking for a mop bucket when he opened the door to the janitor’s closet one day after school hours at Dundee Middle School in Michigan.  That’s not what he found.  What he found was Coach Neff and a girl (soon to be known as “Jane Doe, Plaintiff”) “engaging in sexual contact.”   Mr. Kominek promptly reported this incident to the A.D., who turned it over to the superintendent, who turned it over to the police and the child protection agency.  Coach Neff was later convicted of criminal sexual conduct and is currently incarcerated.  Well done, Mr. Kominek!

The parents of the girl later filed a lawsuit against the district, the superintendent and the A.D.  The suit alleged that the district and its officials should have known what was going on. The relationship between the coach and the girl had been going on for quite some time. There were rumors.  There were complaints from parents about how this particular girl seemed to get special treatment from the basketball coach.  In fact, the A.D. had previously cautioned the coach about texting players and sitting in the back of the bus with them.  Even the custodian, Mr. Kominek, had an inkling.  He testified that he had a “weird feeling” about the coach and the girl.

None of that was enough to convince the court that the school had sufficient notice of an inappropriate relationship.  One of the unique factors in this case was that the girl’s father was an assistant coach on the basketball team. In fact, the first time that Coach Neff kissed the girl was while he was watching a hockey game with the dad at the girl’s home.  The court summarized:

Doe and Neff intended to keep the relationship secret, and did so successfully until they were caught. Even Doe’s father, who was also coaching the team, was fooled. This fact gives rise to the inference that the other observers with more distant relationships to Doe were not at fault when they did not take action to remedy or report the unknown sexual activity.

Case dismissed.  But if Mr. Kominek had not reported what he saw, this case may have had a very different outcome.

The case is Campbell v. Dundee Community Schools, decided by the 6th Circuit Court of Appeals on October 13, 2016. We found it at 2016 WL 5939880.

DAWG BONE: ALL STAFF MEMBERS SHOULD BE REPORTING SEXUAL MISCONDUCT BY STAFF.

 File this one under: LIABILITY

Dawg Bones

It’s Toolbox Tuesday!!

We like to write about the Toolbox on Tuesdays.  The Toolbox is an all-day training program for campus administrators and special education staff, focusing on “tools” that are available to address serious behavior issues presented by students with disabilities.  We talk a lot in the Toolbox training about the importance of evaluation data to support the decisions the school makes.  This includes following up on suggestions in earlier evaluations.

Consider: the District of Columbia evaluated a six-year old boy who was getting into a lot of trouble at school.  The IEP Team meeting was held in January, 2014, and it concluded that the boy did not qualify for special education services.  This was largely based on the district’s evaluation.  However, that evaluation also included this:

If his behaviors increase in frequency and severity, a re-evaluation of his behavior and social-emotional functioning might be warranted.

His behaviors certainly did increase in frequency and severity.  From March to May the district suspended the boy six times and “expelled” him four times.  (We’re not sure what “expulsion” means in D.C.).  On top of that, in March the boy jumped out of a second floor window in an attempt to end his life.  It’s not like the school did not know about this—it happened at school.

But apparently, no one remembered the warning contained in the school’s evaluation. The person who conducted that evaluation later testified that she did not know about the subsequent behavioral issues.  It looks like the staff on the ground knew about the behavioral issues, but forgot about, or ignored, the caution in the boy’s evaluation. Bottom line: the district never followed up. The court held that the district violated its Child Find responsibility.  The district should have heeded the warning in its own evaluation, and taken a fresh look at the student’s eligibility.

The case is Horne v. Potomac Preparatory Public Charter School, decided by the U.S. District Court for the District of Columbia on July 20, 2016. We found it at 68 IDELR 38.

DAWG BONE: WHEN CIRCUMSTANCES CHANGE, IT MIGHT BE WISE TO DO A NEW EVALUATION.

File this one under: SPECIAL EDUCATION DISCIPLINE

Dawg Bones

How do you show that a student’s off-campus use of social media disrupted school activities?

WELCOME TO OUR NEWEST GROUP OF SUBSCRIBERS—THE DIRECTORS AND PRINCIPALS IN FRISCO ISD!!  HOPE YOU FIND THE DAILY DAWG HELPFUL IN YOUR DAILY WORK. 

Frisco subscribed in bulk.  You can do that, Readers.  We offer discounts. So let us know if you are interested.  Now…on to the law! 

A student creates a Twitter account that contains ugly and demeaning personal comments about classmates.  All this happens off campus.  Thus when the school suspends the student, his lawyer claims that his First Amendment rights have been violated.  While the tweets were ugly and vulgar, there was no hint of violence.  The lawyer claims that there was no disruption of school, and therefore, this is not the school’s business.  What do you think?

A federal court in New Jersey ruled in favor of the school in this case.  What’s most interesting about the decision is how the court concluded that there was a disruption of school activities.  The court noted that 1) there were complaints from parents and students about the Twitter account; 2) this required school administrators to investigate the matter, which “took them away from other school duties”; and 3) the student lied about his involvement with the account, which made the situation worse.  Key Quote:

Complaints from parents and students about the HIB-speech (Harassing, Intimidating, Bullying) content of the Twitter account, and an investigation into these complaints, which was stymied by plaintiff’s intentional decision to lie about his involvement, constitute the “material and substantial disruption” to the “work and discipline of the school” requirement necessary to permit the school to discipline plaintiff for his out-of-school speech.

Keep in mind that schools can discipline students for vulgarity, but only if this occurs at school or school-sponsored activities.  When the expression occurs off campus, something more is required.  This case follows the recent trend, recognizing the school’s duty to prevent speech that harasses, intimidates or bullies other students.

The case is Dunkley v. Board of Education of the Greater Egg Harbor Regional High School District. It was decided by the U.S. District Court for New Jersey on October 20, 2016.  We found it at 2016 WL 6134518.

DAWG BONE: ON CAMPUS: YOU CAN PROHIBIT VULGARITY.  OFF CAMPUS: YOU NEED SOMETHING MORE.

File this one under: STUDENT DISCIPLINE.  FIRST AMENDMENT

Dawg Bones

Is anyone reading this one?

Just wondering if anyone will read today’s entry. We expect most of you are headed over the river and through the woods to Grandmother’s house, or wherever the turkey and the football can be had. Have a happy day. Be grateful.

DAWG BONE: GOBBLE GOBBLE GOBBLE!!!

Dawg Bones

Dear Dawg: I took personal leave to go to the 7th Game of the World Series. Now they are punishing me for it. What gives?

Dear Dawg: I am proud to report that when the Chicago Cubs ended 108 years of suffering by winning the World Series for the first time since 1908, I was present.  My grandfather was a Cubs fan. He taught me to love the game. Taught me to keep score.  So I kept score of that extra-inning victory, and the next day, left that scoresheet on Granddad’s tombstone.  May he Rest in Peace, right alongside Ernie Banks.  Of course, I had to take some personal leave days to do this.

So imagine my shock when I get back to school and find that I’ve been written up for violating our personal leave policy!  There is another teacher down the hall from me who missed a couple of days that same week to go to a NASCAR event in Tennessee.  NASCAR!!  A bunch of rednecks drinking beer, waving Confederate flags and watching loud motor vehicles turn left!  I, on the other hand, was witnessing an iconic moment in the long history of our National Pastime.  I feel sure my rights have been violated, Dawg. Set ‘em straight!  CUBS WIN! CUBS WIN!! CUBS WIN!!!

DEAR CUBS WIN!:  We honor your devotion to baseball, your grandfather and the Cubs. But you got your facts wrong.  The school did not measure the relative merits of the World Series v. NASCAR. If they had, they would have violated the law. Teachers can take personal leave for personal reasons, and it’s improper for the school to distinguish between the “worthy” and the “unworthy.” For a recent illustration of this, see Houston v. Point Isabel ISD, Docket No. 014-R10-01-2016 (August 25, 2016).

No, my friend, it was a lot simpler than that.  As you stated, your fellow teacher took “a couple of days,” (i.e., two days).  You took three.  Your school’s policy allows teachers to take personal leave for any reason, but not for more than two days in a row. That’s a valid policy.  So to put this in terms you will understand, the official scorer is giving you the E on this play.  Take it like a man and consider….it’s a small price to pay to witness the end of more than a century of suffering.

DAWG BONE: LEAVE POLICIES CANNOT DISTINGUISH BETWEEN THE “WORTHY” AND THE “UNWORTHY.”

 File this one under: LABOR AND EMPLOYMENT

Dawg Bones

Dear Dawg: Is it OK to lower a teacher’s appraisal rating because she took all five days of personal leave?

 Dear Dawg: We are trying to encourage our teachers to be present as much as possible. We know that they get five days of personal leave, and we don’t punish them for taking those days. But we do make note of it in the Appraisal.  We have an indicator in Domain IV on “Attendance.” You get marked as “Distinguished” if you have zero absences.  If you have two absences, you get marked down to “Accomplished.”  If you have five, you are merely “Proficient.”  Is there any problem with this?  SHOWING UP IS HALF THE BATTLE.

DEAR SHOWING UP: Yes, there is a problem.  You say that you are not punishing the teacher, but the Commissioner thinks that you are.  This is what Point Isabel ISD was doing and the Commissioner flat out said it was illegal.   Key Quote from the decision:

Most importantly for this case, a district cannot adopt a policy that makes it difficult to take leave.  Since appraisals have a significant impact on teachers, marking a teacher’s appraisal down for taking leave that a teacher is statutorily allowed to take is found to make taking leave more difficult. For this reason, it cannot be done.

The case is Houston v. Point Isabel ISD, Docket No. 014-R10-01-2016, decided by Commissioner Morath on August 25, 2016.

DAWG BONE: YOU CAN REWARD TEACHERS FOR NOT TAKING LEAVE, BUT YOU CANNOT PUNISH THEM FOR TAKING IT.

File this one under: LABOR AND EMPLOYMENT

Dawg Bones

Dear Dawg: We’ve got the mother, the stepmother, and the girlfriend all showing up at the ARD meeting. Who is the go-to person here?

Dear Dawg:  I hear that there used to be a time when almost all children were raised by two people, those being their biological parents. It is so much more complicated now.  We had an ARD meeting yesterday where three women showed up, all claiming to be the one who should be treated as the parent.

We had the biological mother. We don’t think that her relationship with the dad was ever formalized, if you know what I mean.  In fact, we’re not sure that “relationship” is the right word.  She left the scene very shortly after giving birth to the boy.  But she is the bio mother and no one questions that. So she claims priority based on the nine months of pregnancy, the many hours of labor and the pains of childbirth.

Then we have the current wife of the dad. I guess she qualifies as “stepmom.”  She claims that she’s the main one because she’s the only one who has actually married the father.  However, the two of them have not been together for quite some time and that’s because of…

The girlfriend.  She and dad have been living together “without benefit of clergy” as they say for several months.  And the kid lives with them.  So she claims priority because she’s the one actually giving the kid his Fruit Loops in the morning and tucking him in at night.

Dad steered clear of all of this. Smart fellow, that guy. But we have to sort this out. What do you say?  LONGING FOR SIMPLER TIMES.

DEAR LONGING:  First of all, if it’s Fruit Loops every morning, we think the GF is disqualified.  More to the point, however, there is actually a federal regulation that addresses your quandary.  34 CFR 300.30 defines the word “parent,” and in doing so, it creates a hierarchy of people who can be treated as “the parent.”

The stepmom is not a “parent” under this definition.  The definition includes “An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives…” Since the child is not living with the stepmom, she does not qualify.

The GF could qualify.  Although she is not a relative, the definition is not limited to relatives, and the child does live with her.  But you would want some written documentation to establish that she is “acting in the place of” the dad. And then, of course, there is the Fruit Loops issue to consider.

But the bio mom holds the aces here.  First of all, she is definitely a “parent” under the definition. Furthermore, the regulation anticipates exactly the kind of mess you are in, and provides guidance. It states that when two or more people are qualified to be the “parent” the biological or adoptive parent who is “attempting to act as a parent” should be treated as the parent, unless there is a court order to the contrary. You didn’t say anything about any court orders.  If nobody presents you with a court order that identifies them as the decision maker, then that bio mom is the “parent” for purposes of your ARD meeting.

Fortunately, you don’t have to sort out this tangled family mess beyond that, so try to avoid any discussion of who has the kid on Thanksgiving Day.

DAWG BONE: FEDERAL REGULATIONS ACTUALLY PROVIDE ANSWERS TO TOUGH QUESTIONS

 File this one under: SPECIAL EDUCATION

Dawg Bones

We omitted the child’s name. We redacted all of the personal information. We’re OK….right?

Yesterday we told you about the case from New York where a Director of Pupil Services is facing possible personal liability for disclosing confidential medical and educational records without parental consent.  The court held that the Director might be liable for this, but whether that will actually happen will be decided later.  One of the issues the court will eventually have to deal with is the fact that much of the student’s information was redacted.

At this early stage of the litigation, the court addressed this issue in a footnote:

Notwithstanding Defendants’ claim that “the district redacted personally identifiable information from the records in the referral packets,” the Court must accept as true Plaintiffs’ allegation that “the redacted documentation contained personally traceable information which was sufficient to identify the individual and, indeed, one of the recipients of the documents was able to identify the student based on the documents.”

In other words, redaction does not always get the job done.  FERPA regulations define “Personally Identifiable Information” to include:

Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.  34 CFR 99.3.

If a “reasonable person” in your “school community” is likely to be able to figure out who you are talking about, then you have not redacted enough.  You have disclosed “Personally Identifiable Information” without ever using the student’s name.

The case is W.A. v. Hendrick Hudson Central School District.  We found it at 67 IDELR 178 (S.D.N.Y. 2016).

DAWG BONE: DON’T BE GUILTY OF INSUFFICIENT REDACTION.

 File this one under:  CONFIDENTIALITY

Tomorrow: a regular family feud breaks out at the ARD meeting.

Dawg Bones

Can you be personally liable for violating FERPA?

The U.S. Supreme Court has already decided that there is no “private cause of action” authorized by FERPA (Family Educational Rights and Privacy Act).  For you lawyers and lawyer wannabes, that happened in Gonzaga University v.  Doe, 536 U.S. 273 (2002). That means that even if you violate FERPA by improperly disclosing confidential student information, no one will be able to sue you over the FERPA violation. The court would dismiss any suit like that.

But lawyers are a creative lot.  A lawyer in New York has figured out a way around the Gonzaga case. The lawyer took a routine FERPA violation and called it a violation of the constitutional right of privacy, protected by the Due Process Clause.  So far, this has worked.  The federal district court in New York held that the Director of Pupil Services could be held personally liable for violating the Due Process Clause.

How did this happen?  The IEP Team had already agreed that the student needed to be served in an out-of-district program.  The Team identified five programs that could possibly serve the student, and asked the parents for consent to send information to these programs. The parents did not give consent. Instead, they asked for more information about the five programs before they would give consent.

The director sent the referral packets anyway, albeit with a lot of personally identifiable information redacted.  The court was not convinced that the redactions went far enough.

Thus the allegation in the lawsuit is that the Director sent out referral packets containing confidential medical and educational records without parental consent and against specific parental direction.   The court held that this allegation, if proven true, would be a constitutional violation.  Moreover, 2nd Circuit authority made it a violation of a legal principle that was “clearly established,” thus opening the door to personal liability for the director. Key Quote:

Thus, in alleging “the disclosure of confidential educational and medical records without consent and against the express identification of the lack of consent from [the student’s] parents,” Plaintiffs have plausibly pleaded a violation of a constitutionally protected interest.

What about the fact that information was redacted?  Tune in to tomorrow’s Dawg for more on that.

The case is W.A. v. Hendrick Hudson Central School District.  We found it at 67 IDELR 178 (S.D.N.Y. 2016)

DAWG BONE: FERPA VIOLATION MAY BE MORE THAN A FERPA VIOLATION.  IT MIGHT BE A CONSTITUTIONAL PROBLEM

 File this one under: LIABILITY

Tomorrow: did we redact enough?

Dawg Bones

It’s Toolbox Tuesday!! When should we revise a student’s BIP?

We usually talk about the Toolbox here on Tuesdays. The Toolbox is a one day training program focusing on services to students with serious behavioral issues.  We talk a lot about behavior plans.

The answer to today’s question is straightforward: you should revise a student’s BIP when it becomes clear that the existing BIP is not working. Oftentimes this becomes apparent when the student commits a serious violation of your Code of Conduct, one that might lead to a disciplinary change of placement.

But a case I bumped into recently reminded me that there are also other times when the ARD Committee should consider making some changes.   In Brown v. District of Columbia, a student was shot eight times, sustaining serious physical and emotional injuries. The court held that the district should have convened an IEP Team meeting to consider what changes this would require in his IEP. Not doing so deprived the student of FAPE.

I hope you don’t encounter anything quite that dramatic.  But the case is a good reminder that sometimes IEPs and/or BIPs should be revisited based on outside issues that may have an impact on the student.  This student committed no offense.  He was a victim. But because of the impact this traumatic event might have on his education, the court held that the IEP Team (ARDC) should have met to discuss this.

We found this case at 67 IDELR 169.  It was decided by the District Court for the District of Columbia.

DAWG BONE: DOCUMENT YOUR EFFORTS TO ADDRESS TRAUMATIC EVENTS THAT MAY AFFECT THE STUDENT’S EDUCATION.

File this one under: SPECIAL EDUCATION

Tomorrow: Can you be personally liable for violating FERPA?