Category Archives: Dawg Bones

Dawg Bones

It’s Throwback Thursday—time to honor Mr. Choplick, Assistant Principal!!

On Throwback Thursday here at the Daily Dawg we like to honor those Golden Oldie cases that all school administrators should know about. And this leads us to the legendary Mr. Choplick.  Has there ever been a better name for a middle school assistant principal than “Mr. Choplick”?  That’s the name of the guy who reached into the purse of a girl known to history as T.L.O.  Mr. Choplick did not find what he was looking for. He was looking for cigarettes.  The report was that some of the girls had been smoking in the bathroom.  He did not find cigarettes, though.  Instead, he found evidence of drug dealing.

Thus the student discipline case morphed into a criminal matter and the lawyer for T.L.O. sought to suppress the evidence of what was in the girl’s purse. The argument was that Mr. Choplick had conducted an illegal search in violation of the 4th Amendment to the U.S. Constitution.  This is how a day that began with girls smoking in the bathroom led to our Golden Oldie on student searches, New Jersey v. T.L.O.

The U.S. Supreme Court rejected that argument, but in doing so the Court held, for the first time, that the 4th Amendment applies not only to the police, but also to school officials.  However, the Court created a sort of spectrum for 4th Amendment analysis.

On one end of the spectrum you have the parents.  They can search their child’s belongings as long as their courage holds out. The 4th Amendment does not apply to the parents, or to any other private parties.  The police are on the other end of the spectrum. To conduct a search, the gendarmes need probable cause or a search warrant.  The Court then put school officials in the middle of that spectrum. Yes, the 4th Amendment applies—but assistant principals do not have to get a warrant or satisfy the stringent standards of “probable cause.” Instead, the standard is “reasonableness” and “reasonable suspicion.”

The Court said that the reasonableness of a search in the school setting would be governed by two questions: was it “justified at the inception?” And was it “reasonable in scope?”  Since the 1985 decision in New Jersey v. T.L.O. lower courts have applied those two standards to all manner of situations from magnetometers to strip searches.

Now that we are in the 21st Century the big issue is the cell phone. Is it a “search” to poke around on a student’s cell phone? Absolutely it is. So teachers, who do not have as much legal training as administrators have, need to know this.  We think that a search should always be preceded by a bit of inner questioning. Ask yourself: what do I think I will find?  And then ask: why do I think I might find it where I am looking?  Those two questions can guide you toward conducting searches only when “justified at the inception” and “reasonable in scope.”

DAWG BONE: NEW JERSEY v. T.L.O.—THE GOLDEN OLDIE ON STUDENT SEARCHES

 File this one under: 4TH AMENDMENT

TOMORROW: PRINCIPALS HEAED TO AUSTIN EN MASSE!

Dawg Bones

Is taking a full year off a “reasonable accommodation”?

Brenda Fields lost her case for several reasons.  She claimed to be a victim of disability discrimination.  To win her case, she had to prove that she could perform the essential functions of her job…as long as the school district provided a “reasonable accommodation.”  But the record did not support her.

First of all, the teacher made several statements to the principal that she was currently completely unable to work as a teacher. She was seeking a full year off, and then a transfer to another school.  As the court noted in its decision, “Reasonable accommodation does not require [an employer] to wait indefinitely for [the employee’s] medical conditions to be corrected.”

Second, she got the payments for her student loans deferred due to her complete inability to work, a position that her psychiatrist supported.

Then there was the fact that she sought disability payments from her private insurance company, again, accompanied by statements of her complete inability to return to work.

So let’s see.  Here we have a person who has made statements to third parties indicating that she just can’t work at all right now. She has also informed the school that she can’t work right now and that it will be at least a year before she can.  The court concluded that Ms. Fields was not a “qualified” individual with a disability. To be “qualified” she had to be able to perform the essential functions of the job, with only a “reasonable accommodation.”

The case is Fields v. St. Bernard Parish School Board, decided by the federal court for the Eastern District of Louisiana on October 16, 2000.  We found it at 2000 WL 1560012.

DAWG BONE: A ONE YEAR SABBATICAL WILL PROBABLY NOT QUALIFY AS A “REASONABLE” ACCOMMODATION. 

 File this one under: ADA and SECTION 504

TOMORROW: THROWBACK THURSDAY LOOKS AT MR. CHOPLICK’S CASE

Dawg Bones

It’s Toolbox Tuesday! Let’s take a look at a case involving cartoons. Yes—cartoons.

On Tuesdays around here we highlight the Toolbox—a full day training program focusing on disciplinary options in dealing with students with disabilities.  Today: a case from Massachusetts involving a very bright student who showed promise as a cartoonist. The problem in the eyes of the school administrators was that so many of the cartoons depicted violence aimed at the school.

The case ended up in litigation involving several issues.  The parents eventually put the student in a private, sectarian school that did not provide special education services at all.  The parents were quite happy with this placement, and even declared to the school that the student “did not need special education at all.”  This was surprising in light of the fact that the high school student had been receiving special education services since first grade.  Even more surprising, the parents sought tuition reimbursement.  Hmmm. They want to be reimbursed for special education services at a school that did not provide such services and for a student that no longer needed them. Sharp readers (recent surveys show this term applies to 97.1% of Daily Dawg subscribers) will quickly surmise that the parents are not going to succeed with that argument.   And they did not.  The court held that the public school did not have to pay for the private placement.

That part of the case is a routine tuition reimbursement case.  But the parents raised other arguments, and that’s’ what makes this case Dawg-worthy.  The parents alleged that by “seizing” the boy’s notebook against his will to inspect his drawings, the school officials violated the 4th Amendment.  They further alleged that by punishing the student for the content of some of the cartoons, the school officials violated the 1st Amendment guarantee of free speech.

Thus this case begins with a very routine incident in the school—i.e., an administrator tells the student to hand over that notebook that he’s been drawing in at school.  The student does so, reluctantly. The administrator is alarmed by what she sees.  Disciplinary action follows.  Sometime later a lawyer alleges that this was an unconstitutional “seizure” and the school officials should be held personally liable.

The court rejected that argument, applying the familiar notion that searches in the school setting are judged by overall reasonableness. Here, the court held that the school officials acted reasonably. They had a reason to want to see what the student was drawing; they handled the situation without an undue incursion into the student’s privacy.  As far as the 1st Amendment, the court said this:

In light of [the student’s] behavioral history and his essay, the drawings were, to say the least, concerning.  They portray an “epic” battle involving guns against teachers at [the school], where the “final battle” was “win or die.”  It was perfectly reasonable for [the principal] and [special education director] to conclude that [the student’s] drawings, whether they were explicitly shared with another student or not, would cause disruption in the school.

In the Toolbox training, we emphasize that the special protections that students with disabilities enjoy come on top of the due process and other constitutional protections enjoyed by all students. The first step toward taking disciplinary action that comports with the special education laws is to make sure you comply with the general laws, such as the Constitution.  In the case of E.T. v. Bureau of Special Education Appeals, the school officials did just that.  The case was decided by the federal court for Massachusetts on March 11, 2016. We found it at 67 IDELR 118.

If you are interested in Toolbox training, let me know!

DAWG BONE: A ROUTINE INCIDENT IN SCHOOL CAN END UP AS A BATTLE OVER THE CONSTITUTION.

 File this one under: SPECIAL EDUCATION DISCIPLINE

TOMORROW: CAN I GET A WHOLE YEAR OFF AS A “REASONABLE ACCOMMODATION”?

Dawg Bones

These kids are really mean to the teacher. Is this a “hostile environment”?

Marie Youngblood had taught at Willowridge High School in Fort Bend ISD for just one semester when the principal informed her that he would be recommending nonrenewal of her contract at the end of the year.  At the end of the year, Ms. Youngblood was again informed that the contract would not be renewed. She retired before that happened. Then she filed the lawsuit.

In the suit, Ms. Youngblood claimed that she was subjected to racial discrimination because her classroom was a “hostile work environment.” That term usually comes into play when an employee is treated badly by supervisors.  But in this case, the teacher claimed that the students in her class created the racially charged, hostile environment.  She alleged that the high school students objected to an African-American teaching Spanish, and that this led to disparaging comments about her teaching ability, verbal threats of violence and physical acts, such as throwing a plastic container of pencils and markers at her.

To make the school district liable for this classroom environment, Ms. Youngblood would have to prove that the district 1) knew what was happening; and 2) “failed to take prompt remedial action.”  The district certainly knew what was happening—Ms. Youngblood filed over 100 student discipline referrals in that rocky first semester.  But the court recited numerous steps that the district took to address the situation. The school disciplined kids who were causing disruption; made more frequent visits to the classroom; and brought in a consultant who offered “helpful and constructive feedback” to the teacher. The court tossed the case out, noting that Ms. Youngblood could not possibly establish that Fort Bend “failed to take prompt remedial action.”

Getting back to our original question: can a teacher establish that she is working in a “hostile environment” based on how the students treat her?  The court noted that our 5th Circuit has not specifically addressed that question.  However, based on the elements of proof required in this type of lawsuit, it seems clear that something beyond unruly students would be necessary. No matter how ugly it gets in the classroom, the teacher has a winning case only if the teacher can also show administrative neglect—the failure to “take prompt remedial action.”

Notice that Ms. Youngblood was an experienced teacher, but she must have been on a probationary contract—it was her first year in the district after a 25-year career in Houston ISD.  Thus this case is yet another illustration of the fact that probationary teachers can seek legal recourse.  Fort Bend won this case because it did a good job of documenting, and then proving in court, its efforts to assist a teacher who was having difficulty.  Probationary status had nothing to do with it.

The case of Youngblood v. Fort Bend ISD was decided by the federal court for the Southern District of Texas on November 13, 2014.  The 5th Circuit later affirmed the ruling and the Supreme Court denied the writ of certiorari on April 19, 2016.  Case closed.

DAWG BONE: IT MIGHT BE A “HOSTILE WORK ENVIRONMENT” IF THE DISTRICT IGNORES THE PROBLEM.

File this one under: TITLE VII

 

TOMORROW: TOOLBOX TUESDAY!

Dawg Bones

Here’s the scorecard for professional organizations comments on the T-TESS rules.

School law nerds may find it interesting to review the comments and responses from T.E.A. in connection with the recently adopted rules for teacher appraisal. The Agency lumped these comments into 66 categories.  The responses to the comments fall into three categories:

THE AGENCY AGREES (i.e.: Good point! Thanks for pointing that out!)

HERE’S A CLARIFICATION (i.e.: We don’t think you understand the rule—let us explain)

THE AGENCY DISAGREES (i.e.: Are you kidding???  No way!)

Since most of the comments come from professional organizations, the Dawg thought it would be interesting (see reference to “school law nerds,” above) to compare how the comments of the various organizations were received. Herewith a scorecard:

 

ORGANIZATION         TEA AGREES       CLARIFICATION    TEA DISAGREES

TSTA                                      0                      4                                  13

ATPE                                      0                      4                                  6

TCTA                                      1                      4                                  13

AFT                                         3                      2                                  7

TASB                                      6.5                   0                                  .5

TASA                                      6.5                   0                                  .5

We’ll let you draw whatever conclusions you want from that. We’re just providing the data.  But we have to add that the most interesting of the 66 categories of comments was the last one:

Comment: Twelve individuals commented that what teachers have to contend with in general is making teaching more and more difficult.

Agency Response: The agency is unable to respond to these comments as they do not relate specifically to the proposed rules for teacher appraisal.

That’s probably the proper bureaucratic response, but don’t you wish that the Agency had added

NO KIDDING!! PREACH ON!!!!

DAWG BONE: MAYBE SOME DAY….

 

Dawg Bones

Throwback Thursday: Let’s take a look at one of the Golden Oldie Cases!

For the summer, we’re going to designate Thursdays as Throwback days, when we take a look at some of the seminal legal developments that are still important.  Let’s call these cases GOLDEN OLDIES!

The Golden Oldie in the area of student free speech is Tinker v. Des Moines School District, decided by the U.S. Supreme Court in 1969. Schools have not been the same since that fateful day when Mary Beth Tinker walked into her 8th grade classroom wearing a black armband in support of a Christmas truce in Vietnam.  The principal had gotten wind of this ahead of time and had specifically prohibited any such war protest in the school building.  So young Ms. Tinker was in direct defiance of the principal when she wore that armband to school.  What’s a principal to do?  He was already on record—he had to follow through with a suspension.

Little did he know that his decision would be the subject of a Supreme Court decision that we would still be talking about almost 50 years later.  The Supreme Court overturned Mary Beth’s suspension. The Court held that the student was engaging in symbolic speech that was protected under the First Amendment. The quote that has rung down through the decades is that “students do not shed their constitutional rights when they enter the schoolhouse gate.”

Of course this is not an unlimited right.  School officials retain the power to discipline students for expression if they “reasonably forecast” that the expression will cause a “material and substantial disruption” of school, or to interfere with the rights of others.

So what’s the latest on this? YouTube! Facebook!! Twitter!!!  The early cases were about armbands, political stickers, underground newspapers and other such things.  Now, of course, student expression is digital, and the courts have struggled to enunciate clear guidelines for the regulation of cyber speech that originates off campus but is incorporated into every cell phone and device in the student’s backpack.  The most recent decision that is relevant to Texas educators is Bell v. Itawamba County Schools. In this case the full 5th Circuit upheld disciplinary action against a student in Mississippi who wrote, recorded and disseminated a nasty rap accusing two coaches of sexual misconduct with students.  This case recognizes social media as a game changer, making the physical boundaries of the school less relevant than they were in simpler times.

How should principals and assistant principals proceed? Cautiously.  Remember that Tinker is the law of the land, and so when students express themselves verbally, symbolically, in writing or in cyberspace, the starting point is that the expression is probably protected under the First Amendment.  There are a number of exceptions to that general rule, but it is still the starting point for analysis.

DAWG BONE: THE GOLDEN OLDIE FOR STUDENT FREE SPEECH: TINKER v. DES MOINES

File this one under: FREE SPEECH

Dawg Bones

The Dawg is dismayed.

We feel dismayed today.  I expect you do too.  There is a reason for this, which I’m sure will come to you as you think about it.

DAWG BONE: HAPPENS EVERY YEAR ABOUT THIS TIME….

TOMORROW: WE INTRODUCE OUR NEW “GOLDEN OLDIE” FEATURE!!

Dawg Bones

Toolbox Tuesday! I keep seeing the term IAES in the federal law. What is that?

On Tuesdays we like to highlight The Toolbox—a one-day training program focusing on students with disabilities.  In that training, we talk a lot about the term “IAES”—an Interim Alternative Educational Setting.  The feds have put out a Q and A that defines this term:

Question C-1: What constitutes an IAES?

Answer: What constitutes an appropriate IAES will depend on the circumstances of each individual case. An IAES must be selected so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP. 

Like most things involving special education the emphasis here is on a case-by-case determination.  Thus the feds tell us that the appropriate IAES “will depend on the circumstances.”  That’s why it’s important that the IAES for a student be selected by the ARDC.  Even when dealing with “special circumstances” where the principal can order a prompt removal to an alternative setting, the ARDC must be the group that selects the setting.

Of course most districts do not have a dozen settings to choose from.  But all districts have at least one setting that should qualify as an appropriate IAES:  the DAEP.  When you break down what an IAES is, it seems that our Texas DAEPs should be able to satisfy the requirements.

*Are they “interim”?  Yes.

*Are they “alternative”?  Yes.

*Are they “educational”?  Yes.

*Do they “enable the child to participate in the general education curriculum”?  Yes.

*Do they enable the child to “progress toward meeting the goals” in the IEP?  Yes.

As a general rule, then, a DAEP that meets state standards for a DAEP, should qualify as an IAES. But remember that this is never an automatic thing.  Members of the ARDC should review the student’s IEP, and particularly the goals and the services.  Will the student be able to make progress toward achieving these goals while in the DAEP?  Can we still deliver the services that the IEP calls for?  The ARDC may need to consider tweaking and/or adjusting DAEP practices. Remember to fit the DAEP to the student, not the other way around.

This is just one of the topics that we cover in depth in the Toolbox Training. If interested, let me hear from you!

DAWG BONE: I-A-E-S IS USUALLY SPELLED D-A-E-P HERE IN TEXAS.

File this one under: SPECIAL EDUCATION DISCIPLINE

TOMORROW: WE ENTER A NEW MONTH WITH FEAR AND TREMBLING

Dawg Bones

Dear Dawg: We have been asked to translate all of our special education documents to Klingon. Do you know anyone who can help us with that?

The Dawg does not personally know any Klingons.  Nor does the Dawg know anyone who can translate the Notice of Procedural Safeguards document into Klingon. But there must be such people out there. We know this because we have read a brief that was filed in the case of Paramount Pictures Corp. v. Axanar Productions, Inc., now pending in the federal district court in California.

The Language Creation Society (LCS) filed an amicus curiae (friend of the court) brief in this case.  According to the LCS, Paramount is claiming that it owns the copyright to the entire Klingon language.  The LCS maintains that this is impossible—that you cannot "copyright” an entire language.

Reading the brief, we learned that there is a Klingon dictionary that has sold 250,000 copies. And there is Klingon Language Institute.  The KLI publishes a quarterly journal, offers a Klingon Language Certification Program and, of course, holds an annual conference.  Hamlet, Much Ado About Nothing and The Epic of Gilgamesh have been translated into Klingon, but so far as we know, none of the Harry Potter books have.  For movie buffs, you might want to check out the documentary about the KLI entitled “Earthlings: Ugly Bags of Mostly Water.”

The Dawg finds that reference kinda rude.

We will keep you posted as this litigation continues. In the meantime, we suspect you look for someone who has one of those Klingon Language Certificates to do your translating.

One final suggestion: if you talk to a Klingon, for heaven’s sake do not say: Hab Sosli Quch!  This means “your mother has a smooth forehead.”  Very insulting.

DAWG BONE: FROM ONE UGLY BAG OF MOSTLY WATER TO OTHERS: LIVE LONG AND PROSPER.

File this one under: WHERE ELSE BUT THE DAILY DAWG CAN YOU GET STUFF LIKE THIS?

Dawg Bones

Battered from the left and the right…

The Hillsborough County Public Schools in Florida are being battered by advocacy groups with strong opinions about religion.  The Freedom from Religion Foundation accuses the district of violating the Constitution.  Liberty Counsel, on the other hand, accuses the district of infringing on religious freedom.  What’s this about?

It’s about the Equal Access Act and the Fellowship for Christian Athletes. The story hit the news when the district temporarily banned adult leaders of the FCA from meeting with district students.

In a situation like this, the facts get spun to suit the storyline of the advocacy group.  So let’s just back up and review some of the basics of the Equal Access Act. This is the law that guarantees that student-led groups can meet in school facilities during non-instructional time.  The law applies to secondary schools in districts that receive federal funding.  The law requires that if such a school district allows one such group to meet, it must allow all of them to meet, regardless of religion, politics or philosophy.  The original intent of the law was to make sure that Bible clubs, FCA and other religiously oriented meetings would be allowed.  Schools are not to discriminate against these groups, just because they are religious.

However, the Equal Access Act does contain some limitations and rules.  Policy 5730 in Hillsborough County, Florida, accurately reflects those limitations and rules.  They are:

1. The activity has to be initiated by students;

2. Attendance at the meeting must be voluntary;

3. No agent or employee of the district is to promote, lead, or participate in the meeting;

4. The meeting must not materially and substantially interfere with instruction; and

5. Nonschool persons may not direct, conduct, control, or regularly attend the activity.

The fuss in Florida seems to be about that last point.  Here in Texas, by the way, you will find these same restrictions imposed with slightly different verbiage in Policy FNAB.

We don’t know what is going on in Florida. But it seems there are three possibilities.

*If it turns out that the district regularly turns a blind eye to “non-school persons” who are “regularly attending” student meetings, then the district has failed to enforce its policy.

*If it enforces the policy selectively, applying the rules to some groups but not others, then the disfavored group has a legitimate gripe.

*If it enforces the policy as written with regard to all groups, then it is not infringing on anyone’s religious freedom or discriminating in any way.

It is just following the law and its own policy. That’s what the Dawg recommends.

DAWG BONE: TAKE A LOOK AT FNAB, LEGAL AND LOCAL, AND MAKE SURE YOU ARE ENFORCING IT UNIFORMLY.

File this one under: EQUAL ACCESS ACT

TOMORROW: HOW MUCH KLINGON DO YOU KNOW?