Category Archives: Dawg Bones

Dawg Bones

Dear Dawg: We got a letter from the Lieutenant Governor telling us to disregard a letter we got from the Department of Education…

Dear Dawg: How much legal authority does a letter from the Lieutenant Governor carry? We got a letter from the Lite Gov telling us we should pay no attention to the letter we got earlier from the Department of Education. I think you know, Dawg, that this is all about transgender students and the bathroom. Now I personally have great respect for our Lieutenant Governor, but I’m just wondering if his letter carries any legal weight. I know that an opinion from the Attorney General carries some weight with the courts, but what about a letter from the Lieutenant Governor? BOARD MEMBERS ARE ASKING.

DEAR BOARD MEMBERS: The opinions of various legal authorities can be arranged in a sort of hierarchy. The hierarchy will differ depending on if you are talking about state or federal law. With regard to state law, the Texas Supreme Court is the highest authority. But since you asked about transgender students and the bathroom, we are going to focus on federal law. In that case, for Texas educators, we’d rank the hierarchy this way:

1. An opinion from the majority of the U.S. Supreme Court.
2. An opinion from a majority of the 5th Circuit, sitting “en banc.”
3. An opinion from a panel of the 5th Circuit.
4. An opinion from a Circuit Court outside of the 5th Circuit.
5. An opinion from a federal district court.
6. An opinion from the Texas Attorney General.
7. An opinion from your school district attorney.
8. An opinion from an attorney who happens to be your brother-in-law.
9. An opinion from an attorney you met in the doctor’s waiting room.
10. An opinion from your niece who just graduated from law school and is awaiting bar results.
11. An opinion from your second cousin twice removed who just finished his first year of law school.
12. An opinion from a former radio talk show host who never went to law school, never took the bar exam and is not licensed to practice law.

DAWG BONE: WE ALL HAVE AN OPINION, BUT NOT ALL OPINIONS CARRY LEGAL SIGNIFICANCE.

Dawg Bones

It’s Throwback Thursday: when did public schools get caught up in the culture wars?

Today’s entry concludes our “Golden Oldie Throwback Thursday” series. We have been reviewing the Golden Oldie cases that created precedents that are still applied today. We’ve looked at a variety of issues where Golden Oldies are still relevant from student free speech (Tinker v. Des Moines) to issues of personal liability (Barr v. Bernhard). Today, we turn our attention to a more generic issue—when did public school litigation begin to reflect the larger issues in our society?

I think the answer to that is: from the beginning. But we are going to choose a shorter time frame, focusing on the issues and the cases that people alive today can remember.

In 1954, the Supreme Court took our country’s most divisive social issue and placed it squarely into the hands of public school leaders. The case was Brown v. Board of Education. With the stroke of a pen, a unanimous Supreme Court declared an end to racial segregation in our public schools. But declaring an end to this longstanding practice hardly brought it to an end. Decades of dispute, struggle, litigation and violence would follow.

I don’t think anyone in 1954 called the Brown decision part of “the culture wars.” That term came later, but it seems an appropriate designation for the firestorm that the historic decision brought about.  So we designate Brown v. Board of Education as the Golden Oldie with regard to the culture wars.

The culture wars always find their way into the public schools. It makes sense that they do. After all, we all want the public school to reflect our values. The problem is that we do not agree on those values. We did not agree on them in 1954, we do not agree on them in 2016 and we will not agree on them fifty years from now.  Thus it seems inevitable that public school administrators will get caught in the crossfire of the culture wars in whatever format they are taking place.

Today, the most obvious example of this is the fight over transgender students, and particularly, their use of the bathroom and locker room.  This battle is going to go on for a long time, we expect.  It may take a Supreme Court decision to resolve the issue, and even then “resolve” is probably not the best word.  Perhaps “decide” is better.

In the meantime, the best thing that school officials can do to maintain calm in the storm is to rely on good legal advice from a school district attorney, and keep your primary mission uppermost in your mind.  That mission is to serve the kids and prepare them to participate in a free and open society.

We think the Serenity Prayer is a useful tool as well, but we don’t want to push our personal views on you.  Maybe you prefer “Ommmmm……”

 DAWG BONE: PUBLIC SCHOOLS DO NOT CREATE THE PROBLEMS IN SOCIETY, BUT THEY DO REFLECT THEM.  THUS CULTURE WAR LITIGATION IS HERE TO STAY.

 

Dawg Bones

Attorney General issues opinion on Fort Worth ISD transgender guidelines.

When the superintendent of Fort Worth ISD issued administrative guidelines pertaining to transgender students he opened up a political can of worms. The Lieutenant Governor held a press conference in Fort Worth demanding that the superintendent resign. He has not. Mr. Patrick then requested an opinion from the Attorney General about the legality of the transgender guidelines. On June 28th, Ken Paxton issued Opinion KP-100.

The Opinion does not weigh in on the issue of which bathroom transgender students are to use. Instead, the focus is on how much information should be given to parents. Citing Chapter 26 of the Education Code and its strong provisions for treating parents as “partners with educators” Mr. Paxton opined that the Fort Worth guidelines violated this Chapter. Key Quotes:

Far from creating a partnership between parents, educators, and administrators regarding their children’s education, the Guidelines relegate parents to a subordinate status, receiving information only on a “need-to-know” basis.

Thus, to the extent that the Guidelines limit parental access to information about a parent’s child and operate to encourage students to withhold information from their parents, they violate Chapter 26 of the Education Code.

Fort Worth administrators were aware of this problem with the Guidelines, as they indicated in their brief to the A.G. that parental access issues would be “clarified.” Subsequent to the issuance of the A.G. Opinion the district made changes to more fully involve parents.

On a second issue, the Attorney General did not say that the superintendent lacked the authority to issue guidelines without board approval. But he did say that any such guidelines must be aligned with board policy. Key Quote:

While the superintendent has characterized these regulations as Guidelines that “are in alignment with Board Policy FFH (Local),” decisions to withhold information from a parent regarding a student’s gender identity or suggest that employees might work with a student to restrict parental involvement are in fact significant and controversial matters of policy that do not appear to have previously addressed by the FWISD board of trustees.

I take that to mean that the A.G. thinks the Guidelines do not align with board policy. This does not mean that superintendents cannot adopt guidelines about controversial issues—it just means that any such guidelines must align with state law and board policy.

One of my law partners made the observation that we seem to have more lawyers (and politicians) working on the issue of transgender students than we have transgender students. That may be so. So let us all keep calm and carry on, providing safety, privacy and security to all students.

DAWG BONE: TEXAS LAW STRONGLY FAVORS KEEPING PARENTS IN THE LOOP.

File this one under: STUDENTS

Dawg Bones

It’s Toolbox Tuesday! Teacher goes on maternity leave. Whoops!

On Tuesdays we like to highlight the Toolbox Training—a one day program designed to help you serve students with disabilities who present challenging behaviors. One of the ten “tools” we work on in the Toolbox is Tool #3—moving a student to a more restrictive environment (MRE) even when the parent objects.  This is a Tool that must be used with discretion.  Among other things, you have to be sure that the MRE is properly staffed with a qualified teacher.

In a case from Tennessee, the district proposed moving a student to an MRE where he would receive services from a teacher who held a special education certificate in behavior management. That sounds good. It was behavior that was driving the decision to move the student.  However, the teacher went on maternity leave. The sub did not have a certificate in behavior management. In fact, the sub did not have any special education certification.

Whoops.  This mistake was costly to the district.  Finding that the school’s proposed placement would not deliver a Free Appropriate Public Education (FAPE), the court ordered the district to reimburse the parents for an out-of-state residential placement.

The case is S.B. ex rel N.J.B. v. Murfreesboro City Schools.  It was decided by the federal court for the Middle District of Tennessee on March 11, 2016. We found it at 67 IDELR 117 (M.D. Tenn. 2016).

DAWG BONE: PROPER CERTIFICATION IS PRETTY IMPORTANT!

File this one under: SPECIAL EDUCATION DISCIPLINE

 

Dawg Bones

Flat fee contracts with law firms—OK?

It was a weird set of circumstances that induced former Commissioner Michael Williams to ask the Attorney General about the legality of flat fee contracts between a school district and a law firm. The LaMarque ISD was going out of business, with the board of trustees being replaced by a Board of Managers appointed by the Commissioner. Before the transfer of power, the LISD board of trustees hired a law firm to file a lawsuit to keep the district alive.

We’re just guessing that if the flat fee for this work had been $5000 nobody would have questioned the arrangement. But the contract fee was $300,000. This much was guaranteed to the law firm, regardless of how much time the lawyers spent on the case. But they would be keeping track of their time, and if they went beyond 750 hours, the district would be billed at the firm’s hourly rate: $400/hour. So the law firm could not possibly lose on this deal.

Commissioner Williams asked the A.G. whether such an arrangement amounted to an unconstitutional gift of public funds. Complicating the matter was the fact that the board of trustees would not be around to oversee the litigation, since they would be replaced by a Board of Managers.

The A.G. has now issued his opinion and it tells us….not much. There is no direct answer to the questions posed. Instead, the A.G. expresses some general principles and then notes that the situation is fraught with too many “fact issues” which cannot be resolved through an A.G.’s opinion.

What are the general principles? That the school board manages and governs the district; that the board can employ lawyers to sue or to defend the district; that the board can expend money for these purposes; that expenditures must be “for a public purpose” and must “provide a clear public benefit in return.” And that trustees have a lot of discretion to decide whether or not a “public purpose” and a “public benefit” are being provided.

A flat fee contract is permissible, and if the majority of the board thinks the deal is a good one, then it probably passes all legal tests. Obviously, if members of the public think the board is wasting money there is always “public comment time.”

Attorney General’s Opinion KP-0099 was issued June 27, 2016.

DAWG BONE: FOR MOST DISTRICTS, RETENTION OF LAWYERS IS GOVERNED BY POLICY BDD. TAKE A LOOK.

File this one under: GOVERNANCE

Dawg Bones

Dear Dawg: What can be done about a teacher who uses “infer” when she means “imply”?

Thank you for asking! The Dawg often hears these words mixed up, even by high placed journalists. On CNN last night they showed a clip of a Donald Trump speech in which The Donald referred to the various GOP politicians he had defeated in the primaries. Trump mentioned Lindsay Graham, Jeb Bush, John Kasich, Ted Cruz and Carly Fiorina and then said something about “losers.” He did not directly call these people “losers” but he sort of lumped them into that category. The CNN commentator noted that “Mr. Trump seems to be inferring that anyone who runs for high office and falls short is a loser.”

This is wrong. “Inferring” is never done by the person speaking. Inferring is done by the listener. One might say, “I infer from Mr. Trump’s remarks that he thinks of these people as losers.” But Mr. Trump was speaking, so he could not have been INFERRING. If he was doing anything, he was IMPLYING.

We are educators. Let’s get this straight from now on.

DAWG BONE: A FRIDAY IN LATE JULY IS A FINE TIME TO DEAL WITH A PET PEEVE.

Dawg Bones

It’s Throwback Thursday! What about liability issues?

Mark Bernhard was a student in Kerrville ISD who was permanently injured when the roof of the Ag Barn collapsed on him. His lawsuit against the district and several of its employees ended up before the Texas Supreme Court in 1978, and now it serves as our Golden Oldie in the area of liability. In Barr v. Bernhard the Texas High Court held that neither the district, nor any of its employees would be held legally liable for Mark’s injuries.

The KISD enjoyed “sovereign immunity.” School districts in Texas are liable for personal injuries only if the injury arose from the negligent use or operation of a motor vehicle by a school employee or officer acting within the scope of employment. There was no motor vehicle involved in the collapse of the roof. It happened when a calf bumped into a pole that supported the roof.

What about the employees who were responsible for the Ag Barn? Wasn’t somebody negligent here? After all—roofs are not supposed to fall down on people.

The Court held that negligence of school employees was not relevant. We had (and still have) a statute in the Education Code that provides for “immunity” for school employees if they satisfy five criteria:

1. The person is a “professional employee” of the school district;
2. Acting within the scope of employment;
3. Exercising judgment or discretion;
4. Not using physical force in the act of disciplining a student; and
5. Not operating a motor vehicle.

So was anyone negligent? We will never know. The court said it did not matter. The statute provided immunity. That statute, largely unchanged, is now found at T.E.C. 22.0511.

That’s the situation under state law. However, school employees can be held personally liable for violations of federal law. Most often this arises in cases where the lawsuit alleges a violation of the U.S. Constitution. Consider, for example, the 5th Circuit’s 1994 decision, Doe v. Taylor ISD.

This was the first widely publicized “teacher-on-student” sex case in Texas. The suit alleged that a coach had a sexual relationship with the student, who was a minor. The student sued the district, the superintendent and the principal. The case settled out of court before a final disposition, but the settlement occurred after the 5th Circuit held that there was enough evidence of possible culpability by the principal that the case should go to trial. The principal was not charged with sexually abusing the student, but rather, with turning a blind eye to what the coach was doing. The court held open the possibility that the principal could be held personally liable for this.

School officials have a kind of “immunity” in federal cases, just as they do in the state cases. Many people mistakenly refer to this as “good faith” immunity. In fact, however, “good faith” is not the test. The test is not a subjective view into the principal’s thought process—it’s an objective standard. Did the principal violate principles of law that are “clearly established”? Did the principal, in other words, violate a student’s or employee’s rights in a way that any decent principal would know to be a violation? Thus you can act in complete, sincere good faith, and still be held personally liable for violating federally protected rights that are “clearly established.”

This means that ignorance of the law is no excuse. You are expected to keep up with legal developments. So it’s a good thing that you are a reader of Edlawdawg!

DAWG BONE: IMMUNITY IS NICE, BUT IT ONLY GOES SO FAR

File this one under: LIABILITY

Dawg Bones

Home School Case: The Big Question Goes Unanswered

The Texas Supreme Court has held that homeschooling parents who allege that the district has violated their constitutional rights do not have to file a complaint with the local district, or appeal the school board’s decision to the Commissioner. Instead, they can go directly to court with their lawsuit.

The case involves parents in El Paso who refused to sign the form the district asked for that would verify that they were providing a bona fide home school. Not only did the parents refuse to sign that simple form—they also filed suit, alleging that the district was violating their constitutional rights.

Notice that the district did not initiate litigation. The parents were never charged with a crime, nor were the students prosecuted for truancy. The parents filed the suit, seeking damages of over $800,000, because they claimed that the district was infringing on constitutional rights by requiring them to sign a form.

We thought that this case would lead to an answer from the Supreme Court about the key issue here: Is it OK for a school to require some sort of verification that home schooling is really taking place? The Court’s answer to that question is: WE DON’T KNOW. Instead of answering the question the court sent the case back to the El Paso District Court for a ruling.

Sheesh. You see the Court of Appeals had ruled against the parents on the theory that they should have taken their issue up with the El Paso school board, and then the Commissioner. The lawyers call this “exhaustion of administrative remedies.” The theory is that if there are administrative remedies available, (such as an appeal to the Commissioner) then you have to go through that process before you go to court. Since the parents had filed suit without complaining to the board or appealing to the Commissioner, the Court of Appeals tossed the case out for lack of jurisdiction. The Texas Supreme Court has now reversed that decision. The majority of the Court held that the parents were not complaining about the “school laws of Texas” but rather, an infringement of their constitutional rights. The majority held that such claims need not, and indeed, cannot be decided by Commissioner Morath’s office.

The dissenting opinion thought that this was flim flam: “Yet the Court today…holds that homeschool parents can avoid that exhaustion requirement simply by cloaking their school-law claims in constitutional language.”

This is an important decision, but not for the reason we were expecting. We thought the decision would be a significant ruling regarding the rights of parents to home school their kids and the responsibilities of school officials to make sure that all kids are being educated. Instead, the case is important because of how it clips the wings of the Commissioner’s office. You can expect more disgruntled parties to go directly to court now. If they allege that the district somehow violated the state or federal constitution, they can bypass administrative avenues.

The case is McIntyre v. El Paso ISD, decided by the Texas Supreme Court, 6-3, on June 24, 2016.

DAWG BONE: IF THE SUIT ALLEGES VIOLATION OF TEXAS OR U.S. CONSTITUTION, IT CANNOT GO TO THE COMMISSIONER

File this one under: PRACTICE AND PROCEDURE

Dawg Bones

It’s Toolbox Tuesday!! Tell us about a case to illustrate Tool #3.

The Toolbox is a one-day training program that provides a framework, vocabulary and some common sense perspective to help you deal with students with disabilities who engage in challenging behaviors.  Tool #3 is an Educational Change of Placement Without Parental Agreement.  I recently came across a case from Illinois that illustrates how this tool works.

Tool #3 should be used when the school seeks to move a student to a more restrictive environment.  Often, this is the result of behavioral disruptions in the classroom.  Tool #3 is used when the student’s behavior is a manifestation of the student’s disability. If it were not a manifestation, the school might seek a Disciplinary Change of Placement (Tool #6). But if the behaviors are caused by the student’s disability, Tool #3 is the choice.  Of course schools always seek parental agreement when proposing a change of placement. If the parent agrees to a change of placement, then you are using Tool #2.  Tool #3 is for the tougher situation.  When the parents will not agree to the change, the school must be prepared to defend its decision in a due process hearing.

When districts propose moving a student to a more restrictive environment over parental objections, the district has to convince the hearing officer of three things: 1) the current placement is not working; 2) we have really tried; and 3) the student will do better in the more restrictive setting.  In the case from Illinois the district passed all three tests.

*IT’S NOT WORKING.  Jacob’s kindergarten teacher testified that he had regressed in reading. The school social worker noted that Jacob’s physical aggression and non-compliant behaviors were not decreasing as they should.

**WE HAVE REALLY TRIED.  Jacob had an aide, a behavior plan, social work support, and the mainstream placement had been in place for a full year.

***HE WILL DO BETTER IN THE MORE RESTRICTIVE SETTING.  The court relied heavily on the testimony of an independent educational expert who had observed Jacob in the classroom setting over a period of almost three months and written an 11-page report.  She made the case that Jacob needed the kind of services that could only be provided in a more restrictive setting, such as the SELF program (Social Emotional Learning Foundations). Her report noted that the boy should be served “in an environment that can support appropriate relationships, learn to display empathy for others, learn to alter his own behavior to conform to the standards in place, accept responsibility…value another’s point of view, and accept authority.”  In her testimony at the hearing, she stated that “he needed more support systems.  He needed trained staff to be able to address the teachable moments that were occurring throughout his day that could not be done in a GenEd setting.”   The expert said that the SELF program was good for kids with “similar characteristics, the disrespect, the unpredictable behavior, the impulsivity, the lack of remorse, the trouble with social skills.”

The court ruled in favor of the school district on the placement issue.  The case illustrates that it is alright for the school to fail with a student, as long as the school seeks to fix the problem in a timely fashion.  Proposing to move a student out of the mainstream is, in effect, an admission of failure by the school.  Fortunately, the law anticipates that some placements will not work out.  Mistakes will be made.  However, the law does expect school officials to be on top of the situation and to step in with a good Plan B when Plan A is not working.

That’s what is particularly noteworthy about this case.  The independent expert retained by the school did an excellent job of describing exactly what the student needed; why he could not get what he needed in the mainstream setting; and why the school’s proposed placement would be beneficial to the student.  Thus the school made the case that the proposed change of placement was not just about the other kids…it was about Jacob.

The case of Jason O. v. Manhattan School District No. 114 was decided by the U.S. District Court for the Northern District of Illinois on March 29, 2014.  We found it at 67 IDELR 142.

Toolbox Training is available! If you are interested in me bringing the Toolbox to your district or ESC, just send an email to jwalsh@wabsa.com.

DAWG BONE: FOR SOME KIDS THE LRE IS MORE RESTRICTIVE THAN THE MAINSTREAM.

File this one under:  SPECIAL EDUCATION DISCIPLINE

Dawg Bones

Is your school’s website accessible?

The Seattle Public Schools recently settled a lawsuit filed by a parent and the National Federation of the Blind. The issue was accessibility of the district’s website for people with visual impairments. The settlement will require the district to employ an accessibility coordinator, conduct an accessibility audit, develop a remediation plan and add language to RFPs to require vendors to comply with accessibility guidelines. The estimated cost to the district was between $665,400 and $815,400. Yowza!

As websites become increasingly important they will draw more attention in terms of accessibility. Federal guidelines on this subject are in process. Complaints against Texas schools have been made, so this is an issue that is worth the attention of someone in your district.

We’ve had some experience with this at the Walsh Gallegos law firm, so if we can help, just give us a call.

DAWG BONE: THE WEBSITE IS NO GOOD FOR ME IF I CAN’T READ IT.

File this one under: SECTION 504