Category Archives: Dawg Bones

Dawg Bones

Annual Back to School Tour About to Launch!

Have you signed up yet for the Law Dawg’s Annual Back to School Tour?  No??? What are you waiting for?!

We have a great program prepared for this year.  As usual, we will divide the all day program into four quarters.  This year it will go as follows:

First Quarter: Personnel Issues

Second Quarter: Special Education and 504

Third Quarter: Social Media

Fourth Quarter: Transgender Students, Hot off the Press Cases and Other Interesting Issues.

You can sign up for the program at www.legaldigestevents.com.  Here’s the schedule:

September 7:              Region 13        Austin

September 14:            Region 11        Fort Worth

September 15:            Region 7          Kilgore

September 16:            Region 8          Pittsburg

September 20:            Region 18        Midland/Odessa

September 22:            HCDE               Houston

September 26:            Region 20        San Antonio

September 28:            Region 17        Lubbock

September 30:            Region 9          Wichita Falls

October 3:                   Region 2          Corpus Christi

October 5:                   Region 10        Richardson

I can promise you we will have some fun along the way while providing a relevant and practical program full of useful information about legal issues as we start off a new school year. Come join us!

DAWG BONE: THE 11TH ANNUAL BTS TOUR IS NOT TO BE MISSED

Dawg Bones

Charters Revoked. LaMarque ISD Shut Down. T.E.A. Vindicated.

In three recent decisions, the Austin Court of Appeals has validated T.E.A.’s authority to take strong action—action to revoke a charter school’s charter, or to shut down a traditional district.  All manner of legal arguments were put forth by the schools in these cases to no avail.   We’re not going into detail on these cases here, but just want to let you know that the failure to meet state standards can have major negative consequences.

Two of these cases involved the revocation of a charter school’s charter. They are Texas Education Agency v. American YouthWorks, Inc. 2016 WL 3230661, decided by the Court of Appeals in Austin on June 10, 2016; and Texas Education Agency v. Academy of Careers and Technologies, Inc., 2016 WL 3917177, decided on July 13, 2016.

The third case is Morath v. LaMarque ISD, 2016 WL 3517955, decided on June 24, 2016.

DAWG BONE: ACCOUNTABILITY STANDARDS MEAN BUSINESS

File this one under: GOVERNANCE

Dawg Bones

5th Circuit Speaks to Sexual Harassment Claims

A 5th Circuit decision involving a Louisiana school district clarifies four key points about sexual harassment.

First, the court reminds us that when the harassment is done by an employee’s supervisor, the concept of “strict liability” applies. This means the employer is liable, regardless of what a wonderful anti-harassment policy it has, and what terrific training it has provided. Strict liability is strict.   However, the employer can mount an “affirmative defense” which leads to our second point.

The second point in the decision outlines the elements of that affirmative defense. This defense is only available in cases where the plaintiff has not suffered a “tangible employment action.” In other words, the plaintiff alleges that he/she was harassed, but was not fired, demoted or otherwise punished directly.  If that’s the situation, then the employer can avoid liability by showing that 1) it implemented suitable institutional policies and educational programs regarding sexual harassment; and 2) the employee unreasonably failed to take advantage of preventive or remedial opportunities provided by the employer.

The third point made by the court hones in on what it means for the employer to institute good policies and practices.  The school district in this case had a decent policy, but the plaintiff produced testimony from several long time district employees to the effect that they did not know about the policy and had never been trained on it.  That was enough for the court to deny the district’s motion for a summary judgment in its favor. There was, according to the court, a factual issue that needed to be sorted out.

Finally, the case spells out what it means to be a supervisor: “A person is a ‘supervisor’ for purposes of sexual harassment law when he or she can take tangible employment action against the victim.  A tangible employment action is a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

The main point for Texas public schools in this case is to get the message about publicizing its anti-harassment policies and getting people trained on them. Equally important is evidence that you have done that. It would be wise to have people sign a document to verify that they know about the school’s policy; they know who to contact if they have a problem or complaint; they know that they will not be retaliated against; and they have received training about all this.  Just having an old, yellowing copy of the fine print of the policy posted in the lunchroom may not be adequate.

The case is Pullen v. Caddo Parish School Board, decided by the 5th Circuit on July 20, 2016.

DAWG BONE: IF YOUR EMPLOYEES SAY THAT THEY DON’T KNOW ABOUT YOUR SEXUAL HARASSMENT POLICIES, MAYBE YOU NEED TO DO MORE TO EDUCATE THEM.

File this one under: SEXUAL HARASSMENT

Dawg Bones

It’s Toolbox Tuesday! Am I going to be held liable when a student hurts someone else?

On Tuesdays here at the Daily Dawg we like to discuss something about special education discipline and related topics. Those issues are the focus in our firm’s one-day Toolbox Training.  When I do the Toolbox, I often get questions about personal liability. Suppose we have a student that we know has violent tendencies. The kid hurts someone. We failed to prevent it. Who will be held liable for this?

If that question interests you, you should sign up for the audioconference our firm is producing on September 14th.  From 10:00 to Noon that day, attorneys Paula Maddox Roalson and Todd Clark will present: PERSONAL LIABILITY IN SPECIAL EDUCATION: HOW WORRIED SHOULD I BE?  You can sign up for this audioconference at the firm’s website: www.walshgallegos.com.

There are lawsuits against individuals in the special education department.  In fact, there has been a noticeable uptick in suits naming as a defendant the director of special education, or an assistant superintendent in charge of curriculum.  But that just proves the old adage that “anybody can sue anybody over anything at anytime.” The more important issue is: will someone or some entity be held liable?

That’s far too complex a subject to address in one Daily Dawg—which is why I encourage you to sign up for Paula and Todd’s audioconference.  But while I have your attention, let me just make one point: when you hear stories of lawsuits and liability, be sure to notice where the case is coming from. State laws vary a great deal on this topic.

For example, I recently read Fernandez v. City of New York, 68 IDELR 50 (N.Y. Sup. Ct. 2016). In that case, a student “violently attacked” a bus aide. The aide sued the city and the school district, alleging that this attack caused her to have at least five surgeries and to be repeatedly hospitalized for depression and suicidal tendencies. She further alleges that she is now wheelchair bound, totally disabled and requires constant care.  The student who inflicted all this damage was five years old.  Yikes.

The various defendants tried to get the case tossed out of court, but that did not work. The New York Supreme Court held that there was the potential for liability here.  The case would have to go to trial.

But here’s the critical distinction.  The New York case happened in New York and is governed by New York state law.  Cases in Texas would be governed by Texas law, which provides immunity for school districts in tort cases like this, as well as immunity for school employees in most situations.  If the same fact situation occurred in Texas, it is highly unlikely that the school district or the individuals who work for the school would face personal liability.

That’s how tort cases work under state law. The more complicated issue is personal liability for violations of federal law.  Do you want to know about that?   Check out Paula and Todd’s audioconference.

DAWG BONE: TORT SUITS ARE BROUGHT UNDER STATE LAW.  NEW YORK NOT THE SAME AS TEXAS.

File this one under: LIABILITY

Dawg Bones

Teacher, principal get sued for doing their jobs.

As of August 22, 2016, the Thomas More Law Center has still not updated its website story about the “Mexican Flag Pledge Case.”  How long will it take for this non-profit advocacy group to correct its errors?

The headline on their website reads: IN ONE TEXAS SCHOOL, STUDENTS HAVE THE RIGHT TO OPT OUT OF RECITING THE AMERICAN PLEDGE OF ALLEGIANCE….BUT NOT THE MEXICAN PLEDGE.

Now that’s a story sure to get the attention Fox News and demagogues like Glenn Beck. And it did.  But the story is nowhere close to the truth.

The story claims that Brenda Brinsdon, then a sophomore at a McAllen ISD high school, was punished for refusing to recite the Mexican Pledge of Allegiance.

Wrong.  According to the 5th Circuit, the student was not required to fulfill this class assignment. After she objected to this assignment in her Spanish class, she was given an alternative assignment.  Nor was she punished for the stance she took.

It is true that she was removed from the Spanish class and completed the class in an administrative office.  This happened over a month after her refusal to carry out the assigned task and the court found that “there is no evidence to support the claim” that she was removed because of her refusal.  She got credit for Spanish III and later graduated.

So, why was she removed from class?  She and her father spoke to Fox News and got their story broadcast on The Blaze, Beck’s TV show. This caused a commotion.  Here’s how the 5th Circuit put it:

The record shows McAllen High received hundreds of communications from anonymous people, some of which contained threats of harm.  Indeed, Cavazos [the principal] testified that after Brinsdon’s “Fox channel videotaping, I explained to her that…the situation had created a hostile environment for the school and for the teacher…and the teacher and myself were receiving hate mails and calls and feared for our safety…[and] that the student[s] she videotaped felt betrayed…..”

“The students she videotaped”????  That’s another little detail that the Thomas More Law Center omitted from its story.  Brenda secretly recorded classroom activities, including individual students, and then shared it with Beck, who broadcast it on his show.

Of course students have free speech rights, and that includes the right to speak to the media. But schools can take appropriate action to prevent or respond to a reasonable forecast of disruption.  Did this situation cause disruption?  The 5th Circuit:

The student speech was published to the national audience that Fox News and The Blaze [Glenn Beck TV Show] command.  Santos [Spanish teacher] was identified by name and her face was shown in the video. Even if the resulting disruptions were in fact insubstantial, a “fact” we do not find, Brinsdon’s publication of her complaints to a national audience were demonstrable factors leading to the school’s reasonable forecast of sufficient disruption.  Indeed, the threats eventually caused police to maintain a patrol of the school.  Santos was escorted to and from her car every day. She was forced to take time off from work.

We hope you noticed in the above recounting of the case that all of this happened in Spanish class.  It was a one-time assignment—memorize and recite the Mexican Pledge in Spanish.  The kids also sang the Mexican National Anthem—in Spanish.  They did this one time—not every day.  In fact, as far as a daily practice, all students in the school were required to recite the Pledge to the American Flag, and to the Texas Flag—but not the Mexican Flag.

The lawsuit makes much of the fact that students could opt out of the Pledge to the American Flag.  They could object, and if they did, they would be excused from the requirement. This is based on what the lawyers call “clearly established” law—specifically a U.S. Supreme Court case from 1943—West Virginia State Board of Education v. Barnette.  So the suit argues that kids should not be required to recite the pledge to the Mexican Flag.

This is a simplistic argument that ignores context.  Glenn Beck would find it compelling.  The 5th Circuit did not.  The Court put it this way:

Clearly, West Virginia sought to have students each day make an operative pledge of allegiance, that is, a statement of actual belief.  (Emphasis in the original).

As for the pledge in Ms. Santos’s class:

There is, though, no evidence in this case of a purpose to foster Mexican nationalism. Instead, the only evidence is that students were, as part of a cultural and educational exercise, to recite a pledge of loyalty to a foreign flag and country.  Santos testified and the class syllabus states that the pledge was educational and the punishment for noncompliance was a failing grade. Finally, the assignment was a singular event; it was not repeated on a daily basis. In summary, the compelled speech at issue is a pledge that did not seek to compel the speaker’s affirmative belief.

The court concluded that neither the district nor the principal nor the teacher should be held liable for any legal violation here.  Good.  But what a shame that a teacher has to endure the stress and expense of a lawsuit for giving her students an assignment that was completely consistent with the Texas Essential Knowledge and Skills for languages other than English—learning about the culture and practices of people from another country.

The case is Brinsdon v. McAllen ISD, decided by the 5th Circuit on August 9, 2016.

DAWG BONE: DON’T TRUST GLENN BECK’S LEGAL ANALYSIS.

File this one under: FREE SPEECH

Dawg Bones

Kids Miss the Prom. Lawsuit!

Thirty-eight kids pooled their resources to rent a party bus for the Junior/Senior Prom for Jensen Beach High School in Florida.  The kids took the bus to a restaurant for a pre-Prom dinner, and then to the Civic Center for the Prom. But they got to the Prom late.  No one was supposed to be admitted after 10:00, and the bus arrived at 10:15.

We’re guessing that if the principal had a do-over on this one, he would have just told the kids to go home—they were too late.  But that’s not what happened.  School officials decided to let the students attend their Prom, but only after a quick search of the bus.

The search turned up an empty champagne bottle and 12 plastic cups.  Looks like someone has been drinking. The bus driver said it must have been the kids. The kids said the bus had not been cleaned up when they got on board—must have been the previous occupants.

In any event, school administrators decided to conduct breathalyzer tests on all 38 kids.  But there was a problem.  The only assistant principal certified to administer these tests had gone home. And they only had two mouthpieces.

The principal called the A.P. and asked her to return, and dispatched someone else to the high school to gather up more mouthpieces.  Meanwhile, our 38 students were told they could not go into the building, nor could they go home.

Then it started to rain, which greatly increases the likelihood that this will be made into a “made for TV” movie.  Here’s how Haley O’Hanna (soon to be known as “the Plaintiff”) described the situation:

So we were outside in our prom dresses and there was no cover. We were outside in our prom dresses and our tuxes, all, and it’s like starting to drizzle.  I know drizzling doesn’t sound that bad, but when it gets about an hour and a half, it’s a lot.  Especially when my hair is all done.  I have a beautiful dress on. So that kind of stunk.

Finally, the breathalyzer-test-certified A.P. got back and the mouthpieces arrived and the school began administering the test to each student.  That’s when the school officials made another critical decision: No one goes into the prom until ALL 38 students are tested.

It’s not clear exactly when the testing was completed, but it was pretty close to midnight, which is when the Prom ended.  So in effect, none of them got to attend their Prom.  Nine of the students sued the district, the high school, the principal, the A.P., the Dean of Students and SRO and the county sheriff.

Oh, one other thing: all 38 kids blew a 0.00—no alcohol in the blood.

The students made two legal arguments: 1) the search of the bus was illegal; and 2) they were illegally detained.

The court held that the search of the party bus was legal.  The students did not have a legitimate “expectation of privacy” there. When they disembarked, they left nothing on the bus. So there was no privacy interest at stake. On top of that, the bus driver consented to the search.

As for the detention, the court split this into two parts.  Keeping the students waiting for the mouthpieces and the A.P. was reasonable and, therefore, legal.  The court reasoned that the school had a reasonable suspicion of drinking on the bus, sufficient to conduct a “minimally intrusive” search like a breathalyzer. Furthermore, the students had signed a form in advance of the Prom, acknowledging that they might be subjected to a breath test.  Keeping the kids waiting for this for 45 minutes to an hour was reasonable.

However, the court found fault with the decision to hold all 38 kids out of the Prom until all were tested:

We now hold, when government officials need to conduct breathalyzer or urine tests on students, the testing must be accomplished in a reasonably expeditious time period; once exonerated by the test, the student must be free to go.

When a student is tested as alcohol or drug free, there is no justification for continuing to detain the student with such definitive exculpatory evidence.

Thus the court held that the school officials had unconstitutionally detained these kids for longer than necessary. Then the court turned around and held that no one would be held liable for this error.  Since there was no prior case law, no binding legal precedent in place, the school officials were operating in uncharted territory. They were, therefore, entitled to qualified immunity.

The case is Ziegler v. Martin County School District, decided by the 11th Circuit Court of Appeals on July 28, 2016.

DAWG BONE: DETAINING STUDENTS LONGER THAN NECESSARY MAY LEAD TO TROUBLE.

File this one under: LIABILITY

Dawg Bones

After School Programs: Boy Scouts! Girl Scouts! The Good News Club! And now…The After School Satan Club!

Does your school have a Good News Club that meets after school?  If so, you may be given the opportunity to also host The After School Satan Club.  According to the FAQs on its website, the After School Satan Clubs “incorporate games, projects, and thinking exercises that help children understand how we know what we know about our world and our universe.”

The Satanic Temple, which operates the clubs, is very upfront about its purpose:  “Please keep in mind that The Satanic Temple is not interested in operating After School Satan Clubs in school districts that are not already hosting the Good News Club. However, the Satanic Temple ultimately intends to have After School Satan Clubs operating in every school district where the Good News Club is represented.”

As of August 8, 2016, TST’s website lists only nine schools where they have a club. None are in Texas. The group claims to be in one school in each of the following locations:  Atlanta, Los Angeles, Pensacola, Portland (Oregon), Seattle, Springfield (Missouri), Tucson, Washington D.C., and Salt Lake City (Salt Lake City???).

Of course all of this is about equal access and the avoidance of viewpoint discrimination.  The After School Satan Clubs are targeting the Good News Club, and yet, they are relying on the legal victory of the Good News Clubs in Good News Club v. Milford Central School. That’s the case where the U.S. Supreme Court held that a school’s policy regarding community use of facilities may create a “limited public forum.” If that be the case, then the district cannot discriminate on the basis of the religious viewpoint of the organization.

Good luck explaining this to the pastor of First Baptist.

DAWG BONE: IS THE “GOOD NEWS” CLUB IN YOUR SCHOOL?  IF SO, GET READY.

File this one under: RELIGION

Tomorrow: 38 kids miss the prom. Lawsuit!!

Dawg Bones

Is it risky for board members to text each other about school business?

It is a violation of the Texas Open Meetings Act for a school board member, or a group of members, to knowingly conspire to circumvent the Act by meeting in numbers less than a quorum for secret deliberations.  However, to prove that the Act has been violated, you have to show that a quorum of the board is involved.  Thus evidence that three of the seven board members are meeting secretly to discuss school business will likely fall short of proving a TOMA violation.

This came up in Harper v. Best, a Court of Appeals decision from April of this year.  The state charged Mr. Harper, a member of the Somervell County Hospital District, with violating TOMA via text messages that he sent to other members.  The Hospital District Board, like a school board, has seven members. So a quorum is four.

The evidence came close to proving that Mr. Harper violated the law, but fell one person short. The evidence showed that Mr. Harper had “conversations” with two other board members via text about the tax rate and other matters involving the hospital district.  But three board members doth not a quorum make.  The only evidence about a fourth board member was a single text in which Mr. Harper referenced that he had informed the fourth member of the motions he intended to make.  Importantly, there was no indication that this fourth board member responded or in any way took part in the “conversation.”

The court pointed out that the charge of “conspiracy to circumvent” TOMA requires proof that the purpose of the parties was to conduct “secret deliberations.”  (Emphasis added).  A “deliberation” is “a verbal exchange.”  Thus to prove that Mr. Harper conspired to circumvent TOMA there would have to be some evidence of an “exchange.”  Since there was no evidence that the fourth board member had joined in on the discussion, the case fell short.

Is it risky for school board members to communicate about school business outside of a duly called meeting?  Absolutely.  But as this case indicates, “risky” does not always lead to liability.

The case of Harper v. Best was decided by the 10th Court of Appeals on April 21, 2016.

DAWG BONE: IT IS RISKY, AND SOMETIMES ILLEGAL, FOR BOARD MEMBERS TO COMMUNICATE ABOUT SCHOOL BUSINESS VIA TEXT OR EMAIL. BE CAREFUL!

File this one under: GOVERNANCE

Tomorrow: Have you heard of The After School Satan Club?

Dawg Bones

It’s Toolbox Tuesday! Take a Look at the new DCL on Behavior

On Tuesdays here at the Daily Dawg we highlight The Toolbox—a full day training program focusing on maintaining safety while serving each student appropriately.  We spend a considerable amount of time in Toolbox training talking about behavioral interventions, supports and strategies for students with disabilities.  Now, we have a new DCL (Dear Colleague Letter) on this subject from the Department of Education to digest.

The letter is 16-pages and well worth perusal for special education directors, school psychologists, behavioral specialists and campus administrators.  If you don’t have time to review all 16 pages, D.O.E. has provided a two-page “Summary for Stakeholders.”

Here is what I derive from the DCL:

1. Suspensions don’t work.  They do not improve student performance or reduce inappropriate behaviors.  So we should impose an out-of-school suspension only when needed for safety purposes—not in the misguided belief that it will magically improve the student’s behavior.

2. We should be relying on “evidence based practices”—techniques that have a proven track record of success.

3. The key thing is for educators to “actively prevent the need for short term disciplinary consequences by effectively supporting and responding to behavior.”

4. Even when using the 10 “FAPE-Free Days” that the law permits, educators must keep in mind the main thing—which is whether or not the student’s behavior is being appropriately addressed.

All of this comes back to the basic question that ARD Committees must repeatedly ask themselves: does this student engage in behaviors that impede learning of the student or others?  If the answer is YES, then the Committee must consider positive interventions, strategies and supports to address the student’s behavior. The law requires that this question be answered at the annual ARDC meeting for each student. The DCL is a good reminder to ask that question at other times as well.

To put this in Toolbox terms, consider: you used Tool #5—a “Special Circumstances” removal—because the student was in possession of drugs or a weapon at school.  That would be a good time to ask the question again: is this a behavior that is impeding learning?

Or you use Tool #7: the 10-day FAPE-Free Zone. Suppose that you suspend a student more than once for the same behavior. Even though you have the authority to do this, isn’t this another indication that maybe we are seeing a behavior that impedes learning?

D.O.E. classifies this letter as “Significant Guidance.” This means that it is not legally binding and does not impose or create new legal requirements. But it is “significant” and thus will be addressed in future Toolbox presentations. The letter was issued August 1, 2016 and can be found at:

http://www2.ed.gov/policy/gen/guid/school-discipline/files/dcl-on-pbis-in-ieps-08-01-2016.pdf.

If you are interested in having the Toolbox brought to your district or ESC, let me hear from you.  I’m at jwalsh@wabsa.com.

DAWG BONE:  THE MAIN THING IS TO KEEP THE MAIN THING THE MAIN THING.  THE MAIN THING IS TO MAKE SURE THAT BEHAVIOR DOES NOT GET IN THE WAY OF LEARNING.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Board members texting each other. Problem?

Dawg Bones

Thus it begins again…

Today, somewhere in the Great State of Texas, a 22-year old teacher is facing a class of students for the first time.

Today is also the first day for a new assistant principal, taking on administrative responsibilities.

Today is the first day for that Early Childhood tyke, clinging to mom.

Today is the first day for that English Language Learner to be immersed in a new culture with people speaking a language she doesn’t understand.

Today is the first day in the new school for that new kid hoping to get off to a good start.

Today is the first day for all of the kids hoping that that they have a nice teacher….and for all of the teachers hoping that they have nice kids.

Here at Walsh Gallegos our thoughts are with you. We’re here to help the people who help the kids.  Let’s make this a great year.

DAWG BONE: ONE MORE LAP AROUND THE TRACK, FRIENDS.  IT STARTS TODAY.

Tomorrow: It’s Toolbox Tuesday!  What’s the latest from the feds on behavioral issues?