Category Archives: Dawg Bones

Dawg Bones

Dawg headed to Canada…

It’s hot as hell here in Texas and so I’m headed out for awhile. The Dawg and Missus Dawg will be in Canada for most of the next two weeks. But not to worry! Rather than taking a break, we have decided to offer some CLASSIC LAW DAWG from the original print publication. So the next two weeks will be light on the law, but we hope to induce a chuckle or two. We start today.

DEAR DAWG: Snort, here. Rip Snort. Intrepid Reporter. Friend of the Truth. Dawg, you won’t believe the repression and blue-nosed censorship I’ve uncovered out here. Our so called educational leaders are planning to dump one of our most creative and popular teachers, the youthful and exuberant Ms. Downyshanks. It seems that ‘Shanks, as the boys call her, had the audacity to show a film in her high school English class that is unacceptable to the power structure. Faceless bureaucrats, hiding behind the excuse that the film was not on “the approved list” are planning to bid Ms. Downyshanks adieu at the end of the year. The people cry out for freedom, but are met with an iron fist. The people cry out for artistic liberty, but find only “an approved list.” The people, Dawg, seek your guidance in these troubled times. SNORT.

DEAR SNORT: Your crack team of investigators left out a few key facts. “Gidget Jump Starts Her Social Life” will never be confused with Othello. The flick got a bad rating on Rotten Tomatoes. It is rated R due to extensive vulgar language and what are discretely referred to as “sexual situations.” Ms. Downyshanks failed to seek parental approval for the film, as the school generally requires for an R-rated movie. Moreover, the denouement of this drama, in which Gidget finds security and happiness by obtaining her very own supply of prophylactic devices, leaves many in the community concerned over what message this is sending the young people. While it is true that other teachers have also showed movies not on the “approved list” none has shown such colossal poor judgment. This looks to us like the situation in Krizek v. Cicero-Stickney Township High School, 713 F.Supp. 1131 (N.D. Ill. 1989). In that case, the court upheld the nonrenewal of a teacher for showing the film “About Last Night.” Keep looking for that big case, Snort. We are sure that it will come.

DAWG BONE: TEACHERS NEED TO KNOW ABOUT THE “APPROVED LIST” IF YOU HAVE ONE.

Dawg Bones

It’s Throwback Thursday! What about religion?

There are several potential Golden Oldies when it comes to religion and the public schools. My favorite candidate is School District of Abington v. Schempp, a Supreme Court case from 1963. This case involved a Pennsylvania law that required the reading of 10 Bible verses in every public school each day. The law was challenged by a family that belonged to the Unitarian Church and rejected some of the teachings of the Bible.

The lawyer representing the school district understood that he could not justify teaching specific religious beliefs in a public school. That had already been decided. So his position was that the reading of the Bible verses was not “religious” instruction, but only “moral” instruction. Teaching kids right from wrong, teaching moral principles was perfectly OK. So the argument was that this was “moral” instruction that used a common, widely recognized source for moral instruction—the Bible. Moreover, the lawyer emphasized that the Bible was part of our religious heritage and tradition.

The reference to “tradition” opened the door for the Schempp’s lawyer to make this observation:

I think tradition is not to be scoffed at. But let me say this very candidly. I think it is the final arrogance to talk constantly about “our religious tradition” in this country and equate it with this Bible. Sure, religious tradition. Whose religious tradition? It isn’t any part of the religious tradition of a substantial number of Americans…and it’s just to me a little bit easy and I say arrogant to keep talking about “our religious tradition.” It suggests that the public schools, at least of Pennsylvania, are a kind of Protestant institution to which others are cordially invited.

The Court struck down the Pennsylvania statute in an opinion written by the only justice of the U.S. Supreme Court who graduated from the UT School of Law—Tom Clark.

Not much has changed since then as far as the law. Our country has become far more diverse than it was in 1963, but the legal principles have not budged. Schools can teach about religion, but cannot teach religious doctrine, or endorse religious beliefs.

What about teachers as individuals? Well, of course as individuals all school employees have the same constitutional rights as any other citizen. But those rights are restricted when on the job. This came up in Doe v. Duncanville ISD, a 1995 decision from the 5th Circuit. DISD argued that it could not restrict teachers and coaches from praying with the kids while at school. The 5th Circuit said, in effect, “Yes you can. And you must.”

The other side of the coin is the right of students to express their religious viewpoints to the same extent that they are free to talk about politics, music or anything else. In Morgan v. Swanson (2011) the 5th Circuit affirmed this principle, that “religious speech” is also “free speech.”

There are many strongly held opinions in our country about these issues, which is why we routinely recommend recitation of the Serenity Prayer—seeking the ability to peacefully accept what we cannot change; the courage to change what we can; and the wisdom to discern the difference.

DAWG BONE: AS LONG AS THERE ARE MATH TESTS THERE WILL BE PRAYER IN THE PUBLIC SCHOOLS

File this one under: RELIGION

TOMORROW WE INTRODUCE OUR CLASSIC LAW DAWG FEATURE!

Dawg Bones

Can a parent challenge the STAAR grade through a FERPA challenge?

Here is an interesting question that was presented to the Family Policy Compliance Office (FPCO). FPCO is the federal agency that deals with interpretation of the Family Educational Rights and Privacy Act—FERPA. Last December, FPCO addressed a parent complaint over a student who was scored as zero on the state assessment because he refused to take the test. The parent sought to amend the student’s records so as to reflect that the student did not take the test. The zero score, without explanation, makes it look as if the student answered every question incorrectly. The district declined to change the student’s score, or the record of it. Is that OK?

According to FPCO, it is. Their letter states that “a school is not required by FERPA to afford a parent the right to change substantive decisions made by school officials, such as grades or other evaluations of a student.” The rights that parents have under FERPA “cannot be used to challenge a grade, an individual’s opinion, or to clarify a substantive decision.” The letter encourages the parent to “continue to try to work your concerns out at the local level.” No doubt.

We will likely see more complaints like this as the “opt out” movement advances.

The FPCO letter was dated December 15, 2015. We found it at 116 LRP 17292.

DAWG BONE: YOU CAN’T USE FERPA TO CHANGE A GRADE.

File this one under: FERPA

TOMORROW: THROWBACK THURSDAY LOOKS AT OUR GOLDEN OLDIE REGARDING PRAYER IN SCHOOLS.

Dawg Bones

It’s Toolbox Tuesday! We’re wondering if we can set up a FAPE-Free Zone Bank!

Dear Dawg: We’ve been looking over the data from last year with regard to student suspensions. It turns out that we have a number of students in our special education program who did not use up their “FAPE-Free Zone.” We attended one of your Toolbox workshops and we now talk about special ed discipline using the Toolbox terminology. Tool #7 is the FAPE-Free Zone—those ten days when students might be suspended from school, without services. Looking at the data, we noticed that some kids never used up the full ten days. In fact, most of them were never suspended. On the other hand, we have a few “frequent fliers” who seem to need more than ten days. So we are thinking of establishing a FAPE-Free Zone bank, kind of like our sick leave bank.

Let’s say we have Student A, who never gets suspended, and Student B who gets suspended a lot. If Student B goes past ten, we would tap into the bank, withdraw a few days from Student A’s account, and add them to Student B’s. Voila! We never go past the FAPE-Free Zone! Waddyathink? THINKING OUTSIDE THE BOX OUT HERE.

DEAR THINKING OUTSIDE: We think you ought to get back in the box. FAPE Free days cannot be transferred from one student to another. The FAPE Free Zone is like your birthday. When it’s over for the year, it’s over. Of course administrators do have disciplinary options beyond the FAPE-Free Zone as we discussed in the Toolbox training, but creating a FFZ Bank is not one of them. Thanks for attending the Toolbox training, but we’re not sure you were paying adequate attention when we reviewed Tool #7. If you want a refresher on the Toolbox, get in touch.

DAWG BONE: FAPE FREE DAYS ARE NOT TRANSFERRABLE!

File this one under SPECIAL EDUCATION DISCIPLINE

TOMORROW: A FERPA CHALLENGE TO STAAR.

Dawg Bones

Dear Dawg: At the graduation, the principal failed to call out my child’s name as having perfect attendance. I’m outraged!!

Dear Dawg: It was a lovely graduation ceremony until the principal called out the names of the graduates who had perfect attendance since kindergarten. This was the moment I was waiting for! My child has been there every single day, rain or shine, through sickness and health for 13 years of school. My entire family was ready to yell and shout and blow our air horns when we heard our boy’s name. And then….the principal skipped over him. There were three kids with perfect attendance, and she called out two names, leaving us out. I confronted her after the ceremony. She confirmed that yes, my boy had perfect attendance, and she simply goofed. She was most apologetic, but Dawg….this just doesn’t cut it. I have sent a letter to the school demanding that the principal take out a full page ad in the local newspaper to clarify this situation. We are considering legal options. Any suggestions? OUT FOR REVENGE.

DEAR OUT FOR REVENGE: The Dawg has often heard that revenge is a dish best served cold. We understand that this comes from the Mafia, and it means that the most satisfying form of revenge requires some planning and thus should not be done too quickly. Let your anger cool, and then stick it to the other guy. Think of a horse head in the principal’s bed, for example. Or there is the very satisfying revenge of Inigo Montoya: “Hello. My name is Inigo Montoya. You killed my father. Prepare to die.”

Just to be clear, the Dawg recommends neither course of action. We do not favor headless horses or revenge killings. But we just want to suggest that you might be best off to wait awhile before doing anything rash. We don’t think you have a lot of effective legal options here. Of course you can complain to the school board, but the graduation is over. The moment has passed. We’d put it under the category of “stuff happens.”

DAWG BONE: BETTER TO LET STUFF HAPPEN THAN TO COMMIT A CRIME IN THE SERVICE OF REVENGE

Dawg Bones

We wrap up the month of June with another Throwback Thursday! Today the topic is employee free speech.

We are dedicating Thursdays to the “Golden Oldie” cases that establish important principles of the law. Today the topic is employee free speech, which leads us to Mr. Pickering.

Mr. Pickering, a teacher in an Illinois school district, had an opinion about the upcoming bond election. He was opposed. He felt that the current school board had not managed money well in the past, and should not be trusted with more. So he wrote a letter to the editor of the local newspaper, opposing the bonds.

Higher ups in the district were not pleased about this, particularly in light of the fact that Mr. Pickering got some of his facts wrong. Pickering was soon out of a job. Thus we get our next Golden Oldie: Pickering v. Board of Education, from 1968. A unanimous Supreme Court ruled for Mr. Pickering. When a public school employee is speaking as a citizen on matters of public concern, the employee is protected from retaliation by the First Amendment guarantee of free speech.

Thousands of court cases since then have applied this basic principle in a wide assortment of fact situations. Cases have made it clear that the teacher does not enjoy constitutional protection when acting in his or her “employee” role. It is only when acting as a citizen, on matters of general public concern, that teacher expression is protected. Even then, there are times when a teacher’s expressive activities (i.e., rants or ill-advised statements on Facebook) may lead to trouble.

For a recent example of a case that involved a school principal, let’s consider Rock v. Levinski, decided by the 10th Circuit in 2015. Joyce Rock was principal of Career Prep High School, an alternative school in Shiprock, New Mexico. In May, 2013, the superintendent decided to close the school due to budget concerns. At a public meeting to discuss this, Ms. Rock opposed the plan. Among other things, she expressed concerns that some of the students at Career Prep would not be successful in a more traditional, and larger school.

The superintendent did not appreciate this. Ultimately, Ms. Rock was put on administrative leave and told that she would not be given another contract. She sued, and I’m sure that her lawyer must have cited our Golden Oldie, Pickering, in support of her case. But it did not work. The court ruled in favor of the school district and the superintendent. Critical to the court’s reasoning was Ms. Rock’s status as a principal:

Rock was not an ordinary employee of the District. She was not a teacher, but a principal, a high-ranking member of the management team.

The court cited a U.S. Supreme Court decision for the proposition that “The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails.” Rankin v. McPherson, 483 U.S. 378 at 390 (1987). In other words, the higher up you go, the more cautious you should be.

Summing it up the court said:

A superintendent should be able to expect loyalty and support, at least in public, from a high-ranking employee like a principal who is responsible for implementing his policies.

So the employees that principals supervise enjoy the right of free speech. Principals do too, only not quite as much. Be careful out there.

DAWG BONE: PICKERING v. BOARD OF EDUCATION—THE GOLDEN OLDIE FOR EMPLOYEE FREE SPEECH

File this one under: FIRST AMENDMENT

Tomorrow: What happens when the principal fails to acknowledge a student’s perfect attendance during the graduation ceremony? Yikes!

Dawg Bones

What comes to mind when you think of “Grease”?

When I think of “Grease” I think of Olivia Newton John, John Travolta, a great soundtrack and a terrific movie. But when Zachary Bickford hears “Summer Nights” or “Hopelessly Devoted” he probably will recall the moment when he was working as a stage tech on a school production of “Grease” and a large prop fell on him. According to the subsequent lawsuit, the prop crushed his spine, punctured his lungs and shattered one of his legs. This happened on opening night at Boerne ISD on November 15, 2012.

Zach sued the district in federal court, alleging that the district was negligent in many ways. The suit alleged that the stage crew was short on crew members that night; the prop had fallen down before; the drama department did not provide adequate safety guidelines or training. On top of the allegations of negligence, the suit also asserted that the district had violated Zach’s constitutional right to bodily integrity.

The federal court dismissed the case, holding that neither of these theories could succeed.

Two key points. First, the claims of negligence failed because school districts in Texas are immune from negligence claims unless they involve a motor vehicle. Zach alleged that there was “motor driven equipment” on stage that may have contributed to the accident. But that was not enough to override the district’s immunity. School districts in Texas are liable for negligence only when a motor vehicle is involved.

Second, Zach lost on his constitutional theory because this was, after all, an accident, rather than an intentional act. The suit alleged that BISD had violated the student’s constitutional right to bodily integrity. Previous cases had established that there is such a right. However, that right is never violated by negligence—there has to be an intentional act. That’s why the court pointed out that “This right appears to arise almost exclusively in the context of sexual abuse by a teacher in a school setting, where a school superintendent was deliberately indifferent to such conduct, despite receiving reports from students, teachers, and parents that the abuse was taking place.”

Accidents happen, but liability does not always follow. The case is Bickford v. Boerne ISD, decided by the U.S. District Court in San Antonio on May 26, 2016. We found it at 2016 WL 3033778. Here it is.
DAWG BONE: THE CONSTITUTION DOES NOT PROTECT STUDENTS FROM ACCIDENTS, BUT ONLY FROM INTENTIONAL INJURY INFLICTED BY A STATE ACTOR.

File this one under: LIABILITY

Tomorrow we celebrate Throwback Thursday with the Golden Oldie on employee free speech.

Dawg Bones

It’s Toolbox Tuesday! What tools can the principal use “unilaterally”?

We like to talk about The Toolbox on Tuesdays. The Toolbox is a one-day training program focused on serving students with disabilities in a safe and appropriate way. We provide ten tools that school officials can use to accomplish two objectives at once: serving each student in the least restrictive environment, while simultaneously maintaining a safe and appropriate climate for all students and staff.

In the Toolbox training we talk quite a bit about the word “unilateral.” The online dictionary tells us that this word can be defined as “done by or on behalf of one side, party or faction only.” The word comes up in Toolbox training because the Supreme Court told us in 1988 that our special education law was designed to “strip schools of the unilateral authority they had traditionally employed” with regard to the exclusion of students with disabilities.

This does not mean that there is nothing that a principal can do “unilaterally.” The “unilateral authority” that the law “stripped” away was the power to order a long term change in the placement called for in the student’s IEP. Principals cannot do that “unilaterally.” Neither can special education directors, your superintendent, your school board, President Obama or the Pope. Only the IEP Team (ARD Committee) can do that.

So what can a principal do “unilaterally”? In the Toolbox Training we identify three tools that can be used without the assistance of others. Tool #5 involves the removal of a student based on the commission of a “special circumstance” offense. These involve drugs, weapons and the infliction of serious bodily injury. The principal can unilaterally order a removal in those cases, although an ARDC meeting is still necessary to make sure that the student will continue to receive appropriate services. The ARDC also makes a manifestation determination in Tool #5 cases, but the outcome of the MDR does not alter the student’s placement.

The principal can also use Tool #7 unilaterally. This tool involves a short term removal from the IEP placement, as long as the total number of days of removal does not exceed the magic number of ten. We call these ten days “the FAPE-Free Zone.”

The third tool that can be used unilaterally is Tool #10—bringing in law enforcement. This is generally a decision that is made administratively and the primary guideline to keep in mind is to be even handed about it. We should call the police based on the nature of the offense, not the identity of the student.

“Unilateral” is just one of many fun words we discuss in the Toolbox training. If you are interested in a Toolbox training in your district or ESC, just give the Ol’ Law Dawg a shout. Have Tools. Will Travel.

DAWG BONE: THERE ARE STILL SOME THINGS YOU CAN DO UNILATERALLY.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: what comes to mind when you think of “Grease”?

Dawg Bones

When the judge says seven days, it means seven days!

Some decisions from the 5th Circuit make grand pronouncements about the law. Others deal with more mundane matters, like deadlines. Such is the decision in Lozano v. Donna ISD.  This is a case filed by the parent of a student who was allegedly sexually assaulted by a DISD teacher.  The suit alleged that the district should be held liable for this as a violation of Title IX.  But the district court dismissed the suit because the parent “failed to plead facts showing that Donna ISD had actual knowledge” that kids were at great risk of being sexually harassed.  You have to plead FACTS—not just conclusions.  Saying that the district “should have known” is a conclusion. The plaintiff has to allege FACTS that show why the district “should have known.”

However, the district court gave the parent an opportunity to fix this problem and keep the case alive. The court allowed the parent to file an amended complaint, but it had to be done within seven days.  It wasn’t.  So when the district then asked the judge to completely dismiss the case, the judge did so.

Then the parent appealed to the 5th Circuit, arguing that the lower court had abused its discretion and after all, the 7-day deadline was a “mere technicality.”  The court did not see it that way:

…failing to file an amended complaint pursuant to an order by the district court does not constitute the sort of “mere technicality” discussed [in an earlier case].

Case dismissed.

This case carries an obvious lesson for the lawyers. When the judge says you have seven days to file something, you need to file it within seven days. In fact, six would probably be a good idea.  As for legal principles, the case is yet another illustration of the fact that a school district is not liable just because an employee does a bad thing.  There has to be some evidence to show that the higher ups had at least an inkling of something.

The case is Lozano v. Donna ISD, decided by the 5th Circuit on May 13, 2016.  The court ordered that the opinion go “unpublished” in the official legal reporters, but we found it on the 5th Circuit’s website, Docket No. 15-41493.  And here it is!  http://www.ca5.uscourts.gov/opinions/unpub/15/15-41493.0.pdf

DAWG BONE: ENFORCING A DEADLINE IS NOT AN ABUSE OF DISCRETION

 File this one under: PRACTICE AND PROCEDURE

Tomorrow is Toolbox Tuesday! We take a look at the things the principal can do unilaterally.

Dawg Bones

Dear Dawg: six of us on the board shaved our heads. What can we do about the holdout?

DEAR DAWG:

I’ve got a “hairy” one for you! Our school board has taken a bold step forward toward educational excellence. All seven members solemnly pledged to shave our heads completely bald if our STAAR scores reached a certain point. This got a lot of publicity and really fired up the teachers and the kids. Sure enough, the scores went up and we had to prove that we would follow through on our commitment. Well, Dawg, it was quite a sight at our last board meeting. In strolled six of us, bald as billiard balls. Then we saw LulaMae, the seventh member of the board, with a full head of hair. She said, “One: I didn’t think the kids could do it. Two: I thought we were kidding. Three: I’m the only lady on the board and the rule shouldn’t apply to me. Four: my husband already told me that he signed up for better or for worse, but not for bald. Do you want to be responsible for a broken home?”

This is a delicate situation, Dawg, but we feel that LulaMae should follow through. If she doesn’t, what message are we sending the kids? If we make an exception for her based on her gender, are we violating Title IX? Some of the board members want to get her kicked off the board. What do you think? I DON’T LOOK SO GOOD, BUT AT LEAST IT’S A LOT COOLER IN THE SUMMER THIS WAY.

DEAR I DON’T LOOK:

Not much chance of getting LulaMae removed from the board based on this. Voters can’t recall a board member and we doubt that a judge would find this to be good cause for her removal. And I wouldn’t worry about Title IX on this one. You could try public shame, but we think that’s going to backfire on the six of you men picking on LulaMae. Enjoy your cool head and give LulaMae a break.

DAWG BONE: LET COOLER HEADS PREVAIL

File this one under: GOVERNANCE