Category Archives: Dawg Bones

Dawg Bones

Dear Dawg: this kid keeps burping in my classroom. Can I have him arrested?

It took the 10th Circuit Court of Appeals 94 pages to conclude that Officer Acosta did nothing wrong when he arrested a middle school kid for “fake burping” and other such activities that disrupted a P.E. class in Albuquerque.  The court’s majority could not quite bring itself to conclude that “fake burping” gave the officer “probable cause” to arrest this class clown.  But they held that the cop had “arguable probable cause” which was enough to provide immunity to the officer.  He may have violated the law—but he didn’t violate “clearly established” law. Thus no personal liability.

This all started when P.E. teacher Mines-Hornbeck got frustrated with F.M. for “fake burping” and otherwise calling attention to himself during class.  The opinion does not tell us why the teacher did not send the student to the office, but you have to wonder. Instead, she put him in the hallway. When the boy continued to lean into the classroom and burp, she called in the heavy artillery.

Officer Acosta promptly arrived, took the perp away and eventually arrested and handcuffed him.

Just imagine the conversation down at juvie:

“What are you in here for?” 

“I burped in class.”

“I didn’t know you could get arrested for that!”

“Well…I did it more than once. And on purpose.”

“Oh!”

The statute relied on by the officer made it a criminal offense for anyone to “willfully interfere with the educational process of any public…school by committing, threatening to commit or inciting others to commit any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a public…school.”

We are sure that this would apply to a bomb threat, a loudspeaker blaring into classrooms, cutting off the power supply to the school and other such disruptive activities. Now we know that it also applies to burping. Or at least it “arguably” applies to “fake” burping.

Texas has a similar law entitled Disruption of Classes, but our legislature made sure that it did not apply to 7th graders burping in class. It says:

A person other than a primary or secondary grade student enrolled in the school commits an offense if…..  T.E.C. 37.124 emphasis added.

Thus the Texas statute specifies that Disruption of Classes is a criminal offense if done by someone other than a student. If it is done by a student, it should be dealt with via student disciplinary proceedings, rather than a criminal charge.

As usual with long court opinions like this one, the dissent is shorter, and more fun.   Here’s what dissenting Judge Gorsuch had to say:

If a 7th grader starts trading fake burps for laughs in gym class, what’s a teacher to do?  Order extra laps?  Detention?  A trip to the principal’s office?  Maybe. But then again, maybe that’s too old school.  Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant 13-year old to the principal’s office, an arrest would be a better idea.  So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer 94 pages explaining why they think that’s so.  Respectfully, I remain unpersuaded.

The case is A.M. v.  Holmes, decided by the 10th Circuit Court of Appeals on July 25, 2016.  We found it at 2016 WL 3999756.

DAWG BONE: SOMETIMES YOU HAVE TO GIVE OUR LEGISLATURE CREDIT.  GOOD MOVE, PEOPLE. WE EXPECT NEW MEXICO TO FOLLOW OUR LEAD ON THIS.

File this one under: STUDENT DISCIPLINE

Dawg Bones

The Critical Issue: Did the A.P. tell the boy to drop his underpants to his ankles? Or not?

As Assistant Principal McDowell decided what to do with D.H., a 7th grade boy, here’s what he already knew: 1) marijuana had been found on three other 7th grade boys that morning; 2) one of those boys fingered D.H., soon to be known as “the plaintiff;”  3) one of the 7th graders had hidden the weed in his underpants—in fact, Mr. McDowell believed (mistakenly, as it turned out) that two of them had concealed the marijuana in their U-Trou.

What to do?  How extensive of a search would you conduct?

After D.H. denied having any drugs, Mr. McDowell ordered him to empty his backpack, which the boy did. Nothing there.  Next: take off your shoes, empty your pockets and take off your shirt and pants. Still nothing.  Now the boy is standing in the A.P.’s office in his boxer shorts.

What happened next is in dispute. The boy says that the A.P. told him to drop his drawers to his ankles.  The A.P. says he only told the boy to pull out the elastic waistband of the boxers.  Believe it or not: the personal liability of the A.P. will turn on which version of that story turns out to be true.  The 11th Circuit held that if the boy was, in fact, instructed to drop U-Trou to the floor, then the A.P. would be held personally liable for a constitutional violation.

There are some key lessons to be learned from this case.

1. A strip search is a “categorically distinct” type of search. The court says that it is a “quantum leap” to go from outer clothing and backpacks to “exposure of intimate parts.”

2. To be legal, any search of a student must be “justified at inception” and “reasonable in scope.” A search might satisfy the first standard but not the second.  That’s what happened here.

3. Don’t ever conduct a strip search of a student in the presence of other students. That day in the office there were three other students present. The court repeatedly mentioned the presence of the other students as a key factor in the decision.

While McDowell’s strip search of D.H. was justified at its inception, we readily conclude that forcing D.H. to strip fully naked in front of his peers was unconstitutionally excessive in scope.  Even where a student strip search is justified at its inception, the 4th Amendment requires the execution of the search to be reasonable in scope.

So the search was unconstitutional.  The A.P. violated the boy’s constitutional rights. And yet, he will not be held personally liable if the fact finder (judge or jury) determines that the instruction was to pull out the waistband, rather than to drop the underpants to the ground.  That’s because school officials are immune from liability unless they violate legal standards that are “clearly established.” The court said it was “clearly established” that you can’t make a kid drop his drawers to his ankles in front of his peers. But it is not “clearly established” that it’s illegal to make that student pull out the elastic waistband on his boxers.

On such subtle distinctions cases are decided.

The case of D.H. v. Clayton County School District was decided by the 11th Circuit Court of Appeals on July 29, 2016.  We found it at 2016 WL 4056030.

DAWG BONE: IF THE CASE HINGES ON HOW FAR DOWN THE U-TROU DESCENDED, YOU ARE ON SHAKY GROUND.

File this one under:  SEARCH AND SEIZURE

Tomorrow: Is burping in class a criminal offense?

Dawg Bones

Big Judgment Against Fort Worth ISD: REVERSED

Fort Worth ISD fired assistant principal Joseph Palazzolo in the fall of 2010.  Mr. Palazzolo sued, alleging that the district was retaliating against him for being a whistleblower.   The jury agreed with Mr. Palazzolo and rendered a verdict in his favor with damages that added up to $2,146,352.09.  How many years does an assistant principal have to work to earn that much?

The trial court issued a judgment against the district for that amount, along with attorneys’ fees.  On July 7, 2016, that judgment was reversed. The Court of Appeals held that the trial judge goofed when he failed to instruct the jury to answer an important question: would Fort Worth have fired the man for reasons unrelated to his whistleblowing?

The Texas Whistleblower Act was the basis for the suit, with Mr. P claiming that he was fired for reporting in good faith what he believed to be violations of the law. But the district claimed that there were six very specific reasons for the termination of the man’s employment, ranging from falsifying information on his application to creating a hostile work environment to inappropriate physical contact with a student.   The Whistleblower Act says:

It is an affirmative defense to suit under this chapter that the employing state or local governmental entity would have taken the action against the employee that forms the basis of the suit based solely on information, observation, or evidence that is not related to the fact that the employee made a report protected under this chapter of a violation of law.

So this case was a classic factual dispute, with the A.P. claiming that he was fired for his whistleblowing, while the district claimed that that had nothing to do with it.  The Court of Appeals concluded that the affirmative defense offered by the district should have been directly presented to the jury in the form of a question.  The judge did not give the jury that instruction and thus….poof—there goes that enormous verdict.

The case is Fort Worth ISD v. Palazzolo, decided by the Court of Appeals for the 2nd District, Fort Worth, on July 7, 2016.  We found it at 2016 WL 3667867.

DAWG BONE:  IF YOU WERE GOING TO GET FIRED ANYWAY, YOU MAY NOT SUCCEED ON YOUR WHISTLEBLOWER CASE.

File this one under: LIABILITY

Tomorrow: A case that turns on how far down the legs the underpants went. No kidding.

Dawg Bones

It’s Toolbox Tuesday! A word about BIPs…

We like to highlight The Toolbox around here on Tuesdays. The Toolbox is a one-day training program for school administrators and special education staff focusing on ten “tools” that empower you to serve students with disabilities who present challenging behaviors.  We emphasize that of the ten tools, the first one is the most important. And that tool is the development of a Behavior Intervention Plan (BIP).

A good BIP should establish two things: a goal; and some interventions, supports and strategies to help achieve that goal.

Only one of those requires any particular expertise.  Establishing the goal is simply a matter of common sense.  The goal is always to reduce or eliminate some inappropriate behavior and/or to increase an appropriate behavior. That part is easy.  ARD Committees should have little difficulty in establishing the goal of a BIP for a student.

On the other hand, coming up with the interventions, supports and strategies requires some expertise.  Any teacher or parent can tell us what the goal is. The harder part is the “how to.”  How will you enable the student to achieve that goal.

Many of you who have attended my presentations over the years have heard my story of the adolescent boy with autism who was “touching himself” excessively during class time.  This was clearly an inappropriate behavior and one that was directly caused by his disability.  What to do?

The goal in such a case is obvious: reduce or eliminate this socially inappropriate behavior.  You don’t need to have any expertise in autism or adolescent behavior to identify the goal.

But how do you do that? How do you communicate your expectations to a student with low cognitive ability? What combination of rewards, interventions, strategies and/or supports will lead to an achievement of your goal?  To develop that part of a BIP, you need to hear from someone with some expertise or experience in working with students like this one.

This is one of the things we talk about in the Toolbox training. We emphasize that of all the tools in the box, Tool #1—a BIP—is the most important.

DAWG BONE:  ANYONE CAN TELL YOU THE GOAL FOR THE BIP. YOU NEED SOME EXPERTISE TO DETERMINE HOW YOU WILL ACHIEVE THAT GOAL.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: A judgment against a district in excess of $2 million gets reversed.

Dawg Bones

Cameras in the Classroom: Ready?

The Commissioner’s Rules pertaining to cameras in certain special education classrooms go into effect today.  So now that we have the statute and the rules, the next step is for you to have practical Operating Guidelines to follow.

I’m pleased to let you know that the attorneys in our law firm have developed such Guidelines.  The Guidelines provide detailed procedures pertaining to 1) requests for a camera; 2) notice to all the proper parties; 3) reports of an “incident”; 4) how to respond to the report of an “incident”; 5) access to the video by parents, educators and others, all in conformity with FERPA.

Our Operating Guidelines track the law and the new rules, but go well beyond that with detailed procedures to follow, sample forms, and some choices for you to make where permitted by the law.

The Operating Guidelines are available for a fee of $250 for our firm’s Retainer Clients.  You can order a copy for your district by contacting any attorney in the firm, or send an email to info@wabsa.com.  For districts that are not Retainer Clients of the firm, the fee for the Guidelines is $500.

Tomorrow: Toolbox Tuesday! Do you need an expert to help you with a BIP?

Dawg Bones

Just in time for two-a-days: a case involving a cussing coach!

Troup ISD proposed to terminate the contract of Coach Dennis Alexander.  This was based on allegations of improper use of physical force with kids, and improper use of the King’s English.  Yesterday we talked about the physical force, which the Commissioner concluded was sufficient to justify the man’s termination. But the Commissioner also made an important point about the use of profanity.

Witnesses in support of the coach claimed that he only “occasionally” used “relatively mild curse words.”  We’re not sure what words they were referring to, but the independent hearing examiner noted that “It is uncontroverted that [the coach] repeatedly used profanity, including F-bombs, G-D, and “get your f***in a**es over here.”

The asterisks are in the original, but we think you smart readers can figure this out. Besides, the asterisks will help us get past your school district’s filter!

This testimony being “uncontroverted” the coach’s lawyer had to come up with some justifications for such strong language.  The lawyer argued that 1) one student and an assistant coach were not offended; 2) the kids have heard this elsewhere; 3) other coach’s cuss too—in fact one was ejected from a game; and 4) an English teacher had assigned the reading of a book that included similar language.

Neither the hearing examiner nor the Commissioner found any of that persuasive.  The Commissioner put it this way:

The fact that a book used in an English class contained strong language is no excuse for Petitioner using equally strong language. Language that is appropriate in an English text may not be appropriate for a professional educator to use before students.  The fact that another of Respondent’s coaches was ejected from a game due to the use of foul language also does not excuse Petitioner. A one-time use of foul language in the heat of competition is not the same thing of [we think he means “as”] consistently using very foul language during practice.

Termination upheld.  The case is Alexander v. Troup ISD, decided by Commissioner Morath on May 20, 2016: Docket No. 023-R2-02-2016.

DAWG BONE: LET’S KEEP THE ASTERISKS OUT OF OUR LANGUAGE.

File this one under: LABOR AND EMPLOYMENT.

Dawg Bones

How much physical contact with a student is sufficient to justify termination?

Coach Alexander’s troubles began when a board member reported to the superintendent that the coach had slapped a student, that student being the board member’s son.   The superintendent investigated.  He found out that there were allegations of two additional incidents involving other students.  On top of that, some people reported that the coach cussed a bit.  The superintendent put the coach on leave with pay. Two months later the board proposed termination.

After hearing from 11 witnesses, the independent hearing examiner concluded that the coach had, indeed, slapped the boy, leaving visible marks on his face; hit a second student on the back of the head, causing pain and embarrassment; and shoved a third student to the ground from a kneeling position.  Critical to the holding was the testimony of an athletic trainer who both saw and heard the slap, and was concerned enough about it to report to CPS.

The board terminated the man’s contract and the Commissioner affirmed that decision. Commissioner Morath was straightforward in his decision:

Each instance of rough handling a student is alone sufficient to establish good cause to terminate Petitioner’s contract.  It is highly inappropriate for teachers to slap and push down students.

The coach alleged that the superintendent’s investigation was biased because the football team was not doing very well. The argument was that the superintendent and board seized on a “playful” incident to justify showing him the door. The coach noted that the boy had two relatives on the school board—both his father and his grandfather.

But as the Commissioner noted, “A biased investigation would not be able to influence an independent hearing examiner who is appointed by the Commissioner and who makes a decision only after all the evidence presented by both sides under a statute that provides for full due process protections.”

This is a strong statement from the Commissioner about physical mistreatment of students. As to the cursing, we’ll talk about that tomorrow. Stay tuned!

The case is Alexander v. Troup ISD, decided by the Commissioner on May 20, 2016: Docket No. 023-R2-02-2016.

DAWG BONE: “EACH INSTANCE OF ROUGH HANDLING A STUDENT IS ALONE SUFFICIENT TO ESTABLISH GOOD CAUSE TO TERMINATE PETITIONER’S CONTRACT.”

File this one under: LABOR AND EMPLOYMENT

Tomorrow: You may be shocked.  SHOCKED!! To learn that a football coach used profanity.

Dawg Bones

I chose not to testify. I thought they could not hold that against me.

We’ve all seen it on TV. The defendant asserts his 5th Amendment right not to testify against himself and the judge advises the jury not to read anything into this.  But that’s not what happened when Coach Alexander did not testify in his termination hearing.  Here’s what the Commissioner’s decision said about that:

It should also be noted that Petitioner [Coach Alexander] did not chose [sic] to testify.  It is proper to draw an adverse inference from this:

When a party with special knowledge of a disputed issue fails, without explanation, to testify about it, a judge may infer that the party knew its testimony would not support its claim. [Case cites omitted; emphasis added].

It may be inferred that Petitioner knew if he testified it would not support his case.

The Commissioner upheld Coach Alexander’s termination based on the substantial evidence rule.  This being a termination case, the original decision came from an independent hearing examiner.  The hearing examiner ruled against the coach and the school board affirmed that decision.

When a school board approves of the decision from the independent hearing examiner, it’s very difficult for the teacher to override that decision, especially given the substantial evidence rule. As the Commissioner points out in this case:

*the presumption is that the decision is supported by substantial evidence and the other guy has to prove otherwise;

**the evidence may actually “preponderate against the decision of the agency and nonetheless amount to substantial evidence.”

***”The true test is not whether the agency reached the correct conclusion, but whether some reasonable basis exists in the record for the action taken by the agency.”

Summing up, the Commissioner noted that “Substantial evidence is not a high standard.” No kidding.

Thus the decision of the Troup ISD school board, terminating Coach Alexander’s contract, was affirmed.  The decision was based on evidence of “rough handling” of students and the use of inappropriate language. We’re going to tell you more about the rough handling tomorrow, and save the cursing for Friday.

The case is Alexander v. Troup ISD, decided by the Commissioner on May 20, 2016; Docket No. 023-R2-02-2016.

DAWG BONE:  5TH AMENDMENT PROTECTS YOU IN A CRIMINAL CASE, NOT A CIVIL CASE.  REMEMBER WHAT HAPPENED WITH O.J.?

File this one under: LABOR AND EMPLOYMENT

Tomorrow: Is “rough handling” of a student grounds for termination?

Dawg Bones

It’s Toolbox Tuesday!

Hard to believe, but the start of school is just around the corner. What ever happened to those endless summers I remember from childhood?  Sigh.

As it is, we are gearing up for another lap around the track.  Your band is probably on the parking lot right now, working on that routine for the first game.  Your football team is undefeated.  Your administrative team is meeting this week and the teachers will be here soon.

So before you have your first ARD meeting, your first short term suspension, your first DAEP placement or your first manifestation determination, we just want to remind you that the Walsh Gallegos firm offers a one-day training program on all of those sticky, special education discipline issues. We call it The Toolbox, because it provides participants with a framework,  and new vocabulary to better understand what your options are, and how they should be used.  In The Toolbox we review ten “tools” and then provide practice opportunities via hypothetical cases.

Let me know if you are interested in a Toolbox training in your district or ESC.

DAWG BONE: HAVE TOOLS. WILL TEACH.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Is it risky to choose not to testify in your own termination hearing?

Dawg Bones

Canadian ISD Trustee sues for defamation….

School board members who sue for defamation will likely have to prove “actual malice” in order to win.  That’s the upshot of the decision by the Texas Supreme Court in a case brought by former Canadian ISD trustee, Salem Abraham.

Mr. Abraham claimed that an internet blog, AgendaWise, defamed him in its description of what happened at a public campaign event in Levelland in 2012.  The event was sponsored by Jim Landtroop, a candidate for state legislature.  Mr. Abraham supported Ken King, Landtroop’s opponent.  The original post on the blog stated that Mr. Abraham “had to be forcefully removed…by Governor Perry’s DPS detail.”

Mr. Abraham complained about this to Daniel Greer, the executive director of AgendaWise, and as a result, the blog issued a correction that stated that Mr. Abraham “was asked to leave” the event “for heckling.” The post added that Mr. Abraham “cooperated” with this request.

Mr. Abraham complained again, thus leading to a second correction which read as follows:

Correction: On Wednesday August 1, Mr. Abraham contacted AgendaWise claiming he was not forcefully removed by DPS agents, as an earlier version of this story claimed.  According to Mr. Abraham, he was asked to leave by campaign personnel, voluntarily cooperated, and DPS wasn’t involved.  The portion about Mr. Abraham’s exit has been omitted.

AgendaWise also sent two letters of apology to Mr. Abraham.

He sued anyway.

The case worked its way to the Texas Supreme Court, where the issue was: does Mr. Abraham have to show “actual malice” to win his case?  In a defamation suit (slander or libel) an ordinary citizen only needs to prove that the defendant made statements that are defamatory and false.  But a “public official” has to show something more than that: actual malice. This is based on a famous U.S. Supreme Court decision, New York Times Co. v. Sullivan, (1964).

Mr. Abraham essentially argued that this incident had nothing to do with his service on the Canadian school board.  He was not acting as school trustee when he attended this event—he was participating as a citizen in a campaign event organized by a candidate for the state legislature. Moreover, the event was held in Levelland—200 miles from Canadian.  The internet blog said nothing about Mr. Abraham’s service on the school board.

According to the Supreme Court, none of that mattered. The court made four key points about defamation suits involving public officials.

First, some public officials are “so well known in their communities that the general public automatically associates them with their official positions.”  This would appear to apply to Mr. Abraham, who served on the Canadian board for 12 years, including service as president and vice president.  Moreover, he is a 4th generation Canadian, a highly successful businessman, and perhaps the only resident of Canadian, Texas with a Wikipedia page.  The guy is well known.

Second, the “public official” designation applies only when the case involves that person’s “official conduct.” But the court, citing New York Times, Co. v. Sullivan, noted that this includes not just official actions, but also “the official’s fitness for office.”  Thus allegations that a school board member had to be forcefully removed from a public meeting by the DPS might meet that requirement.

Third, “actual malice” is “about the defendant’s attitude toward the truth, not his attitude toward the plaintiff.”

The court’s fourth point is the one of most importance to other school trustees, most of whom are not as well known as Mr. Abraham:

School board trustees are accessible to the public, they are the public’s link to public education. ….they have many public responsibilities. They hire and fire superintendents, set the annual budget, negotiate and approve contracts, seek voter approval of bond packages, set goals, and generally establish a vision for the district. Their meetings are typically open to the public, and, as a board, they are accountable for the school district’s performance.  Abraham’s office is thus a very public one.

This case still has a long way to go.  Mr. Abraham’s attorneys have made a number of other arguments, including the important assertion that an internet blog of this nature is not true “journalism.”  But this ruling from our state’s highest court is important for all school board members.  While few are as well known in their local communities as Mr. Abraham, the court’s sweeping language about the public nature of service on a school board makes it more likely than not that a school trustee seeking relief in a defamation suit would have to show actual malice.

The case is Greer v. Abraham, decided by the Texas Supreme Court on April 15, 2016.   We found it at 2016 WL 1514425.

DAWG BONE: DEFAMATION SUITS INVOLVING A TRUSTEE’S OFFICIAL CONDUCT OR FITNESS FOR OFFICE WILL LIKELY HAVE TO SHOW “ACTUAL MALICE.”

File this one under: GOVERNANCE