Category Archives: Dawg Bones

Dawg Bones

It’s Throwback Thursday! What’s the Golden Oldie for student due process?

On Throwback Thursdays we like to highlight those “Golden Oldie” cases that established key principles of school law. In the area of student due process that case is Goss v. Lopez. That’s the 1975 case in which the Supreme Court held that the 14th Amendment concept of “due process” applies to a short term suspension. The Court defined “short” as ten days or less. Of course in Texas, out of school suspension is capped at three days.

Most campus administrators are familiar with the notion that a student facing a possible suspension must have the opportunity to “tell his or her side of the story.” That comes from Goss v. Lopez. The Court emphasized that it believed it was announcing a rule that school officials would easily comply with. The Court reasoned that any decent administrator would be doing this anyway. The process, according to the Court, could be short, informal and immediate. Just a simple give-and-take with the student.

What about DAEP? Twenty years after the Goss case, Texas mandated alternative education programs for kids who committed serious offenses. What sort of “due process” would apply here? This came up before the 5th Circuit in Nevares v. San Marcos CISD. The Court surprised a lot of people by holding that young Mr. Nevares was not entitled to “due process.” The Court reasoned that “process” was “due” only when the school district was proposing to deprive the student of his or her right to an education. The opinion said that DAEP was not such a deprivation: “Timothy Nevares was not denied access to public education, not even temporarily. He was only transferred from one school program to another program with stricter discipline.”

So there. No deprivation. No process due.

But be careful. The case was interpreting the constitutional notion of “due process.” We still have statutory law that applies. In particular, Chapter 37 requires a “conference” prior to a DAEP assignment, and that “conference” looks an awful lot like a form of “due process.”

Principals should keep one other important fact of life in mind. Most people are not lawyers, and so when they speak of “due process” they do not mean what the lawyers mean. When lawyers speak of “due process” they are talking about constitutional requirements as interpreted by our courts. But to the average person on the street “due process” just means basic fairness.
In that sense, we think you should always provide “due process” when taking disciplinary action. Principals often note that they spend an inordinate amount of time and energy dealing with the A-B-C-Ds of school life: Athletics, Band, Cheerleaders, Drill Team. Disciplinary action involving these programs does not require “due process” as the lawyers speak of that term.

But woe to you who fail to provide a process that satisfies the streetwise sense of “due process” for a cheerleader.

DAWG BONE: GOSS v. LOPEZ IS THE GOLDEN OLDIE FOR STUDENT DUE PROCESS

File this one under: STUDENT DISCIPLINE

TOMORROW: CAN THE SCHOOL BOARD PUNISH THE BOARD MEMBER WHO GOES BACK ON HER WORD?

Dawg Bones

“Stupid but constitutional.”

Lincoln Brown was a 6th grade teacher in Chicago. One day during class, Mr. Brown intercepted a note the kids were passing around. The note included lyrics from some rap songs that included racist and violent words.  Among other things, the lyrics referenced what we, in polite company, call “the N-word.”  Mr. Brown decided to use this as a teachable moment, explaining to his classroom of mostly African-American children why the N-word was considered offensive.

In the back of the room sat the principal, doing a classroom observation.  Was he proud of his teacher for taking advantage of this situation to teach an important life lesson?  No.  In fact, he recommended a five-day unpaid suspension for uttering the N-word in the classroom.  District policy prohibited the use of any sort of racial slur in the school, but you would think that context would be taken into account.

The Chicago school board upheld the man’s suspension and the man sued, alleging that this was a violation of his First Amendment rights of free speech. He lost.  When in the classroom, teachers’ rights of free speech are about the size of a pinhead.  He might have had better luck if he had alleged that the principal and the Chicago school board had engaged in rank stupidity.  But that’s not a theory that the lawyers would call “actionable.”  In fact, the opinion of the 7th Circuit, affirming the man’s suspension, begins with this:

Justice Scalia once said that he wished all federal judges were given a stamp that read “stupid but constitutional.”

I was watching the Ken Burns documentary about Jackie Robinson recently.  You should watch it.  Spoiler alert: it includes the N-word!  It’s kind of hard to tell that piece of American history without the N-word.  I thought I knew the Jackie Robinson story pretty well, but the Burns documentary shocked me with its description of the overt, unashamed racism of a time not so long ago.  So it saddens me to see a teacher getting punished for trying to teach young kids about some of that history and why they should be a bit more thoughtful in their use of language.  I wonder if that Chicago principal would allow the kids in the school to watch this documentary.

I’ve been practicing school law long enough to know that there is always more to the story than appears in the court’s opinion.  Maybe Mr. Brown was a bad teacher.  Maybe he wasn’t as good a role model as he portrays himself.  But on the face of it, this case looks like a boneheaded decision by a narrow minded principal upheld by a school board that ought to know better and a court that labeled the decision stupid….but legal.

The case is Brown v. Chicago Board of Education, decided by the 7th Circuit Court of  Appeals on June 2, 2016.  Here’s a piece of trivia for you: the opinion is written by Judge Diane Wood, the only federal judge that the Dawg once asked out on date.  For the record, the Dawg’s motion was denied.

DAWG BONE: SIGH. 

File this one under: FIRST AMENDMENT

TOMORROW: THROWBACK THURSDAY LOOKS AT STUDENT DUE PROCESS!

Dawg Bones

For Toolbox Tuesday let’s look at a case involving physical restraint from a state that already has cameras in the classroom.

We like to highlight The Toolbox on Tuesdays around here. The Toolbox is a one day training program aimed at campus administrators and special education staff.  In the Toolbox, we learn how to use the ten “tools” that are available to school administrators in dealing with challenging student behaviors.  We don’t classify physical restraint as one of the ten tools, but it is something that we talk about in the training.  And with the advent of cameras in our special education classrooms this year, we found a recent case from Clark County, Nevada (Las Vegas) very interesting.

It started with a complaint from the parent of a non-verbal student with autism. The student was assigned to what sounds like a self-contained classroom.  This is the type of classroom which, in Texas, would be eligible for a camera next year.  The parent reported that the student had come home from school with multiple bruises.

In response to the parent complaint, the Clark County School District Police Department decided to install hidden surveillance cameras in the classroom. The plan was for a police officer to monitor a live feed from the classroom, beginning on March 5, 2012.  However, the assigned officer called in sick, so nobody watched the video feed that day.

But an officer watched the live feed the next day, and was shocked by what he saw.  A teacher’s aide “repeatedly dragged M.P. [a student] to the ground and pinned him to the floor with her knees and elbows.” At one point the boy crawled under a table “only to be dragged back to the center of the room by his wrist” by the aide.  The video also showed the same aide “without any apparent provocation, repeatedly shove a different student who also was not resisting or being combative.”

After other officers also viewed the video, they contacted the school’s assistant principal and special education facilitator.  The educators confirmed that what the aide was doing did not conform to district policy and procedures regarding restraint.  So the cops arrested the aide.

Now that the aide was removed from the classroom, the police watched additional footage from the classroom. They observed the aide committing three additional batteries of the student, including one that happened two hours after the officer first saw the live feed.  This timeframe became important in the subsequent litigation, as the parents alleged that the district was tardy in  responding to the situation.

The aide eventually pled guilty to two gross misdemeanor charges of child abuse, neglect, or endangerment.  She also was named as a defendant in the civil suit, along with the district and three district police officers.

The court dismissed all claims against the police officers.  The suit against them was based on the theory that they “failed to monitor the live feed on March 5, 2012, or take immediate action to intervene when they witnessed [the aide] aggressively dragging and pinning M.P. on March 6, 2012.”  The court pointed out that these allegations, even if proven true, were not sufficient to impose liability:

…the Officer Defendants cannot be said to have taken any affirmative action to place M.P. in harm’s way.

Instead, Plaintiffs’ evidence shows only a possibility that the Officer Defendants could have more quickly resolved a dangerous situation they played no part in creating.

However, the court did not dismiss the case against the school district.  In large part, this was based on the fact that the teacher’s aide testified that the district had trained her to use physical restraint, and that she completely complied with her training.  The district refuted that assertion, but the conflict in the testimony created a fact issue that precluded the court from issuing an early dismissal of the case:

Plaintiffs have submitted several pieces of evidence, which considered together in the most favorable light, demonstrate that CCSD had a policy of deliberate indifference which facilitated the unwarranted use of force upon students in Classroom 25, including M.P.

Will we see cases like this in Texas, once the cameras start to roll?   Who knows?  Our law prohibits anyone from continually or regularly monitoring the video.  So no police officer or assistant principal should be put in the awkward position of witnessing, live, an act of physical abuse in the classroom.  But how the law is written and how it works in real time are two different things. So we shall see. Meanwhile, our main hope is that there is no physical or emotional abuse taking place in our self-contained classrooms. If it doesn’t happen, it can’t show up on video.

 The case is Phipps v. Clark County School District, decided by the federal district court for Nevada on February 22, 2016.  We found it at 67 IDELR 91.

 DAWG BONE:  MAKE SURE WE ARE USING PHYSICAL RESTRAINT IN ACCORDANCE WITH LAW, REGULATION AND TRAINING.

 File this one under: SPECIAL EDUCATION DISCIPLINE

TOMORROW: THE COURT LABELS IT “STUPID, BUT CONSTITUTIONAL.”

Dawg Bones

Fighting over class rank….

The Court of Appeals concluded its opinion by complimenting the “exemplary academic efforts” of two students from Vela High School in Edinburg.  The Court also extended its “admiration to their parents who have clearly supported and encouraged these students in their commendable efforts.”  Comments like that from a court are usually a consolation prize. That’s what happened here. The court complimented the parents and students as it ruled against them.

The whole thing was unfortunate. According to the lawsuit, a school counselor advised one of the students that Dual Enrollment Computer Science would be a class that was positively “weighted” so that the student’s grade would automatically have ten points added to it.  The student got a perfect score in the class, and expected that this would be counted in her GPA with the additional ten points—thus, a 110 grade rather than 100.

It turns out the counselor was mistaken.  The school administration determined that state law, regulations and local policy (EIC Local) required that class rank be based only on grades in English, Math, Science, Social Studies and Languages Other Than English.  The Computer Science class did not fit into any of those categories, and so the “plus ten” was taken away.  Parents appealed to the board to no avail.

Then the parents went to state district court and obtained an “ex parte temporary restraining order” against the district. TROs are very short in duration—just two weeks.  The next step for the parents was to convert that TRO into a Temporary Injunction.  They succeeded.  After hearing testimony over three days, the local district judge issued a temporary injunction that effectively required the school to give the student the extra ten points.  Keep in mind that this is all happening just weeks prior to graduation.

ECISD immediately appealed to the Thirteenth Court of Appeals for Corpus Christi-Edinburg. There, the arguments moved away from interpretation of EIC Local to legal doctrines of governmental immunity. The Court held that both the district and its administrators were immune from suit.  Thus the lower court actually lacked the jurisdiction to issue the injunction.

For the lawyers, this case is worth studying for the court’s analysis of governmental immunity and the limited circumstances where the “ultra vires” doctrine comes into play.

For school administrators, the case provides comforting news along with a caution. The comfort is that as long as you are acting within the scope of your employment and exercising your lawful discretion, you are generally protected not only from personal liability, but also from a lawsuit.    The caution is that we really need to be accurate in what we tell the kids about how grades will be calculated.

The case is Edinburg CISD v. Smith, decided by the Court of Appeals for Corpus Christi and Edinburg on May 26, 2016.  We found it at 2016 WL 3068119.

DAWG BONE: CLASS RANK MATTERS.  LET’S BE CAREFUL AND ACCURATE.

 File this one under: LIABILITY AND IMMUNITY

TOMORROW: CAMERAS IN THE CLASSROOM?  THEY ALREADY DID THAT IN LAS VEGAS.

Dawg Bones

Dear Dawg: I got fired from a charter school. Do I have to appeal this to T.E.A.?

Dear Dawg: I just got fired from a charter school and my buddy, the so-called legal expert, says that I have to appeal this decision to the Texas Education Agency.  I guess my buddy should know about these things.  He’s been canned by five different districts.  He said his lawyer has tried to get his case straight into the courthouse, but he keeps getting tossed out and sent back to the Puzzle Palace on Congress Avenue.  He said this had something to do with “exhaust.” I don’t understand that.  What does an escaping gas have to do with my legal rights? My buddy was not real clear—he just knows that he keeps getting tossed back into the bureaucracy.  But I work for a charter, Dawg. Are things different for me?  DON’T WANT ANY EXHAUST IN MY FACE.

DEAR DON’T WANT:  Things are different for you.  This was recently confirmed by the Texas Court of Appeals in Tyler.  The case involved a man who was fired from his job as superintendent of a charter school.  He sued the charter in state court. The charter filed a “Plea to the Jurisdiction” on the theory that the court had no jurisdiction. The argument was that the ex-supe had to take his case to T.E.A. and that until he did this, the court had no jurisdiction of the matter.  This is called “exhaustion of administrative remedies.” Be sure to pass that along to your buddy—it’s “exhaustion” not “exhaust.”

Anyway, the charter school lost that argument. The court held that appeals to T.E.A. are done pursuant to Section 7.057 of the Education Code. The court held that this section of the Code “does not apply to open-enrollment charter schools.”   What that means in practice is that the ex-superintendent could not appeal his termination to T.E.A. Therefore, he certainly did not have to go through a process that would have been futile.  His case continues.

So you go ahead. Fire up that lawsuit and let us know how it works.  This case is Azleway Charter School v. Hogue, decided by the Court of Appeals in Tyler on May 4, 2016.

DAWG BONE: T.E.A. DOES NOT HAVE JURISDICTION OVER CHARTER SCHOOL EMPLOYMENT DISPUTES

File this one under: CHARTERS

Dawg Bones

Throwback Thursday! Let’s talk about IDEA and special education discipline

Early in my legal career I frequently told a lame joke:  (some of you may be thinking: nothing has changed!)  The joke goes like this:

How many educators does it take to change a light bulb? And the answer is: One—unless the light bulb has a disability. Then you need an entire Committee.

The point of the joke, of course, was to emphasize that decision making about students with disabilities is not to be made by a single individual, but rather, by the student’s ARD Committee.

This is true with regard to student discipline as well.  The Supreme Court has decided only one case involving the discipline of students with disabilities, so it’s pretty easy to identify our Golden Oldie with regard to special education and discipline: Honig v. Doe.   In that case, the school officials argued that their responsibility for safety was an overriding concern, and thus, when a student was deemed dangerous, they should have the authority to remove that student from school, no questions asked.  The Supreme Court emphatically rejected that argument:

We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school.

That’s a quote from the Supreme Court’s opinion, which goes back to 1988.  Notice the word “unilaterally.” The Court pointed out that its decision was not going to leave assistant principals powerless.  There were certain things that still could be done “unilaterally” such as a short term removal of the student. Thus a three-day suspension, for example, was still an option that could be done “unilaterally.”  In fact, later in the same opinion, the Court gave its approval to what we now call The FAPE-Free Zone, meaning the ten cumulative days during a school year when campus administrators can unilaterally remove students with disabilities from the placement called for in the IEP.  Beyond those ten days, “unilateral” action is restricted, even when the student is dangerous.

That was 1988. Since then, Congress has changed the law to add some situations in which you can order a student’s removal unilaterally. These situations are usually referred to as the “special circumstances” offenses of drugs, weapons and the infliction of serious bodily injury.  While the principal can order the immediate removal of a student under these circumstances, she still needs to convene an ARDC meeting as well. The ARDC is required to conduct a manifestation determination and make sure that the student continues to receive an appropriate education.

DAWG BONE: HONIG v. DOE—THE GOLDEN OLDIE FOR SPECIAL EDUCATION DISCIPLINE

File this one under: SPECIAL EDUCATION DISCIPLINE

Dawg Bones

PARENT AND STUDENT WAIT TOO LONG TO FILE SUIT

Mary King-White alleged that her daughter was sexually abused by a dance instructor employed by Humble ISD.  The lawsuit alleged that this started in the spring of 2009, when the girl was 16, and continued until she graduated in 2011.   More than two years later, the mother and daughter sued the dance instructor, the district and certain district officials.

Last year, the 5th Circuit held that was too late to pursue a suit against the district or its officials under Title IX or 42 U.S.C. Section 1983. See King-White v. Humble ISD, 803 F.3d 754 (5th Cir. 2015).  Thus the district and its officials were dismissed from the suit without the court ruling on the substance of the allegations. Instead, the case was decided pursuant to the statute of limitations.

Now, the 5th Circuit has reached the same conclusion with regard to the dance instructor.  The case against her was also dismissed due to the statute of limitations.

Neither Title IX nor Section 1983 contain a federal statute of limitations, and so the courts apply a comparable state statute.   In particular, courts are supposed to use the “general or residual” statute of limitations under state law.  Here, that is Section 16.003 of the Texas Civil Practice and Remedies Code, which calls for a two-year timeframe for personal injury cases.

The plaintiffs argued that the case did not “accrue,” and thus the two-year countdown did not start until long after the girl’s graduation when they obtained more information about HISD policy and practice. The court disagreed.  The case “accrued,” according to the court, when 1) the plaintiff became aware of the injury; and 2) the plaintiff became aware of “causation, that is, the connection between the injury and the defendant’s actions.”   This means that the plaintiff is aware of “circumstances that would lead a reasonable person to investigate further.”

The court pointed out that the girl certainly knew that she was being abused by a teacher.  And the mother had complained about the relationship to school officials while the girl was still in school—so she must have known something was amiss. On top of that, as the court emphasized, the daughter actually lived with the dance instructor, with the mother’s consent.  Thus the court concluded that the cause of action accrued long ago. The statute was “tolled” until the girl turned 18, but the suit was filed more than two years after that. Case dismissed.

The decision about the suit vs the dance instructor is also styled King-White v. Humble ISD. It was decided by the 5th Circuit Court of Appeals on May 6, 2016.

DAWG BONE: TITLE IX AND SECTION 1983 CLAIMS IN TEXAS HAVE A TWO YEAR STATUTE OF LIMITATIONS.

File this one under: PRACTICE AND PROCEDURE

Dawg Bones

It’s Toolbox Tuesday!! Time to take a look at your Code of Conduct!

On Tuesdays here at the Daily Dawg we like to highlight The Toolbox. This is a one day training program focusing on serving students with disabilities who engage in challenging behaviors.  In the Toolbox we provide ten “tools” that schools can use to serve these students safely and appropriately.

We talk quite a bit about the Code of Conduct in our Toolbox trainings.  The Code provides an important point of reference.  In the Toolbox training we emphasize how the Code of Conduct differs from an individual student’s Behavior Intervention Plan (BIP).  We also encourage you to make sure that parents understand that a BIP does not replace your Code of Conduct. The Code of Conduct applies to all students.

So I want to be sure you are aware of the fact that Walsh Gallegos offers a Model Student Code of Conduct. It’s an interactive product, empowering you to take our framework and customize it to your district. It’s been a popular product for us because it is user friendly and very workable. Our Model Code is simple and straightforward. We update it after each legislative session and keep an eye on developing case law for significant changes as well.

If interested, take a look at our website: www.walshgallegos.com, and then click on Products.

DAWG BONE: SUMMERTIME IS THE TIME TO UPDATE THE CODE.

File this one under: STUDENT DISCIPLINE

TOMORROW: THE STATUTE OF LIMITATIONS COMES INTO PLAY.

Dawg Bones

How do you fire a teacher on a continuing contract?

Some readers may not even be familiar with the term “continuing contract.” There are not many districts that still offer this type of arrangement.  However, the Education Code allows districts to choose to employ teachers on a continuing contract, which is the same as what other states call “teacher tenure.” Some districts in Texas still employ teachers this way.  North East ISD is one.

Ms. Riou was a ten-year veteran in the North East ISD with a continuing contract that automatically renewed each year.  A teacher on a continuing contract can only be terminated “for good cause as determined by the board of trustees, good cause being the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state.”  T.E.C. 21.156(a).

North East proposed the termination of Ms. Riou’s contract and she requested a hearing before an independent hearing examiner.  Thus the district had the burden of proving that Ms. Riou failed to meet the standards that apply in similar districts. Normally, districts do this through the testimony of a superintendent or other expert who can explain what the standards in “similarly situated districts” are, and how this person failed to meet those standards. However, North East produced no such testimony.

Hmmm.  That would normally mean “teacher wins.” But there is an exception.  The teacher loses if the district shows “good cause per se.” This applies when “a teacher’s actions are so extreme that there is no need to provide evidence of the standards in other districts because there can be no reasonable doubt that other similarly situated school districts would terminate teachers for the same behavior.”

When you read words like “so extreme” and “no reasonable doubt” you may think that “good cause per se” applies to things like child abuse, sexual misconduct, smacking the principal up the side of the head and stuff like that. No doubt it does.  But in this case the Commissioner held that it also applies when a teacher fails to perform benchmark testing of her kindergarten students; fails to follow the required scope and sequence of instruction; and fails to enter grades electronically.  That’s what Ms. Riou was charged with.  First the hearing examiner, then the school board, and finally the Commissioner concluded that her failures met the standard for “good cause per se.”

The Commissioner laid out a three-part test for determining if the teacher’s behavior amounts to “good cause per se.”  The district has to show that 1) the rule that was violated was a reasonable rule; 2) the evidence of a violation of the rules was clear; and 3) this had an adverse effect on the school’s business.  North East had evidence to prove all three. Case closed.  Continuing contract ceases to continue.

The case is Riou v. North East ISD decided by Commissioner Morath on March 31, 2016, T.E.A. Docket No. 016-R2—02-2016.

DAWG BONE: WHO SAYS YOU CAN’T FIRE A TEACHER ON A CONTINUING CONTRACT?

File this one under:  TERMINATION

TOMORROW: TOOLBOX TUESDAY TAKES A LOOK AT THE CODE OF CONDUCT!

Dawg Bones

Here come the principals!

School principals will invade Austin next week for the annual conferences of TASSP and TEPSA. The Dawg looks forward to seeing many of you!  I will be speaking at both of these conferences, and also at the annual legal conference co-sponsored by the Texas Association of Secondary School Principals and the Texas School Administrators’ Legal Digest.   We have a great program this year for the TASSP/TSALD Conference.   I will kick things off with TOP SCHOOL LAW CASES FOR THE CAMPUS PRINCIPAL. After that we will have:

*DEALING WITH OUTSIDE LEGAL ENTITIES: CPS, LAW ENFORCEMENT, SUBPOENAS AND MORE (Sandra Carpenter from Round Rock ISD is the presenter);

*STUDENT DISCIPLINE UPDATE (David Hodgins, aka “the funny guy from Houston");

*SUSPICIONS OF STUDENT-STAFF RELATIONSHIPS (Dr. David Thompson from UTSA);

*EXTRACURRICULAR ACTIVITIES—CODES OF CONDUCT, DRUG TESTING, ETC. (Marney Sims from Cy-Fair ISD); and

*TRANSGENDER STUDENTS (Craig Wood from Walsh Gallegos).

We will have two Q and A sessions, which will no doubt be a lot of fun.  There is still time to sign up for this great conference. Go to http://legaldigestevents.com/education-law-for-principals/http://legaldigestevents.com/education-law-for-principals/  Or you can register on site. The event is Tuesday, June 14 at the Austin Convention Center, beginning at 8:20. NOTE THE EARLY START TIME! We start the conference with the annual presentation of the Frank Kemerer Award to an outstanding social studies teacher.  Don’t miss it.

DAWG BONE: TSALD/TASSP CONFERENCE: ALL THE COOL KIDS WILL BE THERE