Category Archives: Dawg Bones

Dawg Bones

“I swear by my momma…I’m going to bring a gun here and kill him.” Criminal offense?

R.D., a student in Fort Worth ISD, was pretty upset when the campus cop brought him to the on-campus intervention room.  According to the teacher, R.D. told the cop “I’m going to get you.  I’m going to kill you.”  The cop left the room without responding to this, but the student continued to talk about it. He told the teacher “I swear on my momma, I’m going to bring something here, bring a gun here and kill him.”  The teacher tried to calm the boy down. Another student in the room also intervened: “No, man, you don’t want to say that.”  According to the teacher, R.D. continued to threaten the police officer, and then left the room, ignoring the teacher’s repeated instructions to come back.

The court does not tell us what happened after that, but presumably nobody got hurt. The student was not charged with assault, or illegal possession of a firearm. But he was charged with the criminal offense of threatening to exhibit a firearm on school property, in violation of T.E.C. 37.125.  He was convicted and appealed to the Fort Worth Court of Appeals. The court upheld his conviction.

The boy’s lawyer pointed out that there was no evidence that the boy had access to a gun, or had any intent to carry out this threat. The court held that this was “immaterial.”  The statute does not require proof that the student intended to carry out the threat; it only requires proof that the student intended “to cause alarm.”

So the next argument was that most of what the student said was not said directly to the police officer.  The court dismissed this argument also, noting that it was reasonable for the trial court to infer that the boy fully expected that his threatening words would get back to their intended target and would, in fact, cause “alarm.”

The statute makes it a crime if a person “intentionally exhibits, uses or THREATENS to exhibit or use a firearm” on school property, or a school bus, if it is done “in a manner INTENDED TO CAUSE ALARM or personal injury to another person or damage to school property.”  Here, the court concluded that there was sufficient evidence presented at the trial to establish that the student threatened to exhibit a gun in a manner intended to cause alarm.

The case is In the Matter of R.D., decided by the Court of Appeals in Fort Worth, on February 11, 2016. We found it at 2016 WL 551906.

DAWG BONE: THIS IS NOT “OPEN CARRY” OR “CLOSED CARRY.” IT’S “NO-CARRY,” BUT IT’S STILL A CRIMINAL OFFENSE.

LAST CHANCE: Those of you at the LRP National Institute in New Orleans have one more chance to hear the Dawg’s partner and head honcho (honcha?) in our New Mexico office, Elena Gallegos, at 11:15 this morning. The subject is student discipline. Don’t miss it!

Dawg Bones

It’s Toolbox Tuesday! What’s this about “serious bodily injury”?

Here at the Daily Dawg we dedicate Tuesdays to the Toolbox--a one day training program for campus administrators and special education personnel.  In the training, we review 10 "tools" that educators can use to maintain a safe and orderly campus while appropriately serving kids with challenging behaviors.  Tool #5 involves the removal of the student to an alternative setting (usually DAEP) for up 45 school days. This Tool can be used if the student engages in one of the three "special circumstances" offenses set out in the law. Those three involve 1) drugs; 2) weapons; or 3) the infliction of "serious bodily injury. So today, let's review what amounts to a "serious bodily injury."

The key word there is "serious." If the statute had omitted that word, leaving just "bodily injury," principals would be using Tool #5 much more frequently than they do. We think that Congress deliberately limited the power of campus administrators by adding the word "serious." The term actually has a definition, which we will provide below. But if you don't want to plow through all of that verbiage, we can just tell you that minor cuts and scrapes, bumps and bruises don't qualify.  In fact, we found two cases that held that a broken nose is not "serious" enough.

One case held that a kick and head butt to the teacher's chest resulted in "extreme physical pain" which was sufficient to make the injury "serious." That hearing officer seemed to rely on the teacher's subjective assessment of the pain as a 10 on the 10-point scale, and "the worst of her life."  Really?   Methinks she has not endured a root canal, much less, childbirth.

Suffice it to say that if you did not have to call for emergency medical help, you probably don't have a "serious" bodily injury.  Here is the official definition:

Bodily injury which involves—

a) a substantial risk of death;

b) extreme physical pain;

c) protracted and obvious disfigurement; or

d) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

DAWG BONE: LET’S HOPE YOU NEVER HAVE TO USE TOOL #5 DUE TO A SERIOUS BODILY INJURY.

ONE MORE THING!  The Gallegos of “Walsh Gallegos” is speaking at the LRP National Institute in NOLA today.  Elena will elucidate the ins and outs of OSEP letters at 10:15 this morning, while covering student discipline at 1:15.  Then the firm will host a client reception at 5:30 at Mulate’s—the Original Cajun Restaurant. Wish I could be there!

Dawg Bones

Court dismisses case from cheerleader wannabe.

Last Friday we told you a little bit about a cheerleader dispute in Highland Park ISD (Region 10).  The court held that whatever “right” a student has to be a cheerleader is not protected by the U.S. Constitution.  Thus the student’s due process claim was dismissed. But that was just one of many legal theories that the parents and student presented.  Here is a quick sample of other legal nuggets from this decision.

1. A suit against a superintendent in his “official capacity” is the same thing as a suit against the district. The plaintiffs sued both HPISD and its superintendent. The court said that this was redundant. Thus all claims against former superintendent Dawson Orr were tossed out.

2. Section 121.003 of the Texas Human Resources Code applies only to physical access to public facilities. This statute prohibits discrimination against people with disabilities in conjunction with “admission and access” to public facilities. This suit was not about physical access to, or the use of, HPISD facilities. This claim was tossed out.

3. Plaintiffs alleged denial of FAPE under IDEA and Section 504, but never requested a special education due process hearing. Thus these claims were dismissed due to failure to exhaust administrative remedies. Lawyers take note: the court held that exhaustion is a jurisdictional requirement—not just an affirmative defense.

4. Plaintiffs alleged an IIED claim: Intentional Infliction of Emotional Distress. The court dismissed this claim, noting that the Tort Claims Act protects school districts from any liability for an intentional tort.

5. The constitutional claim against HPISD failed because there was no pleading that a district policy or custom approved by the school board caused harm. The superintendent was accused of wrongdoing, but the superintendent is not a “policymaker.” Only the board is.

6. The parents’ claims as individuals were dismissed because they did not allege that they have disabilities or were discriminated against due to a disability.

7. The plaintiffs’ motion to amend their pleadings, so as to make out a stronger case, was mostly denied. The court noted “no amount of artful or creative pleading” would rescue some of the purported claims. However, the court left one door slightly ajar, permitting the plaintiffs to amend their Equal Protection Claim. But they would have to plead “sufficient facts to show that this injury occurred because of HPISD custom or policy.”

You are probably wondering what this case is all about.  The plaintiffs alleged that the district failed to provide accommodations or properly implement the student’s 504 plan.  This allegedly caused poor grades, the expense of outside tutors, and disqualification from the Cheer Squad.  The facts as alleged are much in dispute, but at this stage of the legal proceedings, the court takes the facts alleged as true. Even so, the court dismissed all of the claims outlined above.

The case is Dabney v. Highland Park ISD, decided by the federal court for the Northern District of Texas, on March 31, 2016.

DAWG BONE: SUITS OVER CHEERLEADING ARE ALWAYS INTERESTING, BUT RARELY SUCCESSFUL.

And remember: those of you at the LRP National Institute in New Orleans can hear my longtime partner, Elena Gallegos, speak about OSEP advice at 10:00 this morning.  Say hi to Elena for me!

Dawg Bones

News Bulletin! There is no constitutional right to be a cheerleader!

We thought this point was well established.  There have been numerous judicial decisions about kids participating in various extracurricular activities.  The message from those cases has been consistent and clear—the U.S. Constitution does not guarantee, or even protect, the right to participate in after school activities.

The Constitution does protect a student’s right to an education. That’s why “due process” is necessary prior to a suspension from school, even a short one.  But the student’s right to “property” and “liberty” comes to an end when the school day does.

Federal Judge Sam Lindsay affirmed these basic principles in a case involving a wannabe cheerleader in Highland Park ISD (Region 10).  It’s a lengthy decision addressing myriad claims by the parents and the student.  As to cheerleading, here is the takeaway quote:

The court disagrees with Plaintiffs’ contention that Kate has a property or liberty interest in cheerleading.

That’s pretty clear.  What were Kate and her parents and their lawyer thinking? They cited a Pennsylvania case from 2011, but the judge found their reliance on this case “misplaced.”  In fact, Hizzoner had some harsh words to say about this:

Plaintiffs are not being forthright with the court, and the court is troubled by their attempt to mislead it through the misapplication of case law.

We will talk more about this very interesting case next week. But this being a Friday, we had to highlight the cheerleader aspect.  Have a good weekend, Readers!

The case is Dabney v. Highland Park ISD, decided by the federal court for the Northern District of Texas on March 31, 2016.

DAWG BONE: GENERAL RULE: ALWAYS BE “FORTHRIGHT” WITH THE JUDGE.

Dawg Bones

Happy San Jacinto Day!

This is the day when Texans celebrate the battle that won independence for Texas. The battle lasted 18 minutes.  That’s not very long.  Teachers get a longer duty-free lunch than that.  I think there are some TV commercials that last about 18 minutes.  We now have school for 75,600 minutes.  That’s enough time for you to re-enact the glorious battle 4,200 times.

The fact that Texas secured its independence in less time than it takes for you to dry a load of laundry shows that BIG THINGS can happen in a SHORT PERIOD OF TIME.  Educators know this, because they facilitate BIG THINGS in a SHORT TIME.

Here’s a safe prediction: somewhere in the great State of Texas today, a remarkable thing is going to happen in a public school classroom.  A student is going to come alive with a vision for his or her future that the student did not have before.  A teacher will be the instrument that lit that fire.   An administrator will have supported that teacher to be that instrument.  The enlightenment will happen in an instant—much less than the time it took for Sam Houston and the boys to put Santa Anna on the run.  The teacher may not even see that anything extraordinary has happened. The administrator will be too busy with paperwork and problems to know about it.  Maybe the student will tell the teacher what happened. Maybe this will happen that day, or maybe at the 20-year reunion, or maybe the student will recount the magic moment to the teacher’s children at the teacher’s memorial service. Or maybe the student will never talk, and the teacher will never know what happened.

But this will happen today. We know this, because it happens every day.

DAWG BONE: ON THIS DAY, AND ON ALL DAYS, MAY GOD BLESS TEXAS.

Dawg Bones

Are we all straight on the procurement of goods and services?????

I rarely use the word “procurement.”  I cannot recall the last time that I asked My Sweetie “what goods and services do we need to procure from the grocery store?”  I don’t procure goods and services.  I buy stuff.  But life is more complicated for public school districts.  It’s not only more complicated—the entire process is encumbered with legal do’s and don’ts.  So our firm is offering an audio conference on:

PROCUREMENT OF GOODS AND SERVICES AND COMMON CONTRACT ISSUES—KEY POINTS TO GETTING WHAT YOU NEED.

This presentation will provide practical suggestions covering a wide range of issues.  Leading the discussion will be Winnie Dominguez from our San Antonio office, and Ann Mewhinney from Austin.  They make a great team (Winnie and Mewhinney—say it out loud!).  Winnie and Ann have a lot of experience with these issues, and know all sorts of things about this stuff that you need to hear about.

This audio conference will be conducted on May 10th from 10:00 to noon.  So sign up at www.walshgallegos.com.

DAWG BONE: AND TRY TO WORK “PROCUREMENT” INTO YOUR DAILY VOCABULARY.

Dawg Bones

Is Shiner Bock a drug?

It’s Toolbox Tuesday, which means we want to talk about the disciplinary options you have when dealing with students who have disabilities.  The Toolbox is an all day training program, highlighting ten “tools” that you can use to maintain order and safety, while also serving each student appropriately.  Tool #5 addresses the three “special circumstances” that authorize a swift disciplinary removal of the student for up to 45 school days.  One of the three “special circumstances” involves drug offenses.

The specific language in the regulation authorizes school administrators to remove a student who:

Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA [State Educational Agency] or an LEA [Local Educational Agency].  34 CFR 300.530(g)(2).

We notice that there is no mention of alcohol there.  There are plenty of federal laws and regulations that refer to “drugs or alcohol” but this one does not. So if a student has a six-pack of Shiner Bock at the school sponsored baseball game, can the principal invoke “special circumstances”?  We don’t think so.  The principal can certainly impose a disciplinary penalty for this violation of the Code of Conduct.  But “special circumstances”?  Nope.

This is the type of thing we review in detail in the Toolbox training. If interested, send me an email at jwalsh@wabsa.com.

DAWG BONE: SHINER BOCK IS GOOD AT A BASEBALL GAME. BUT IT VIOLATES THE CODE OF CONDUCT.

Dawg Bones

Parents’ “inflexibility” dooms their lawsuit.

Rockwall ISD has prevailed in a special education case decided by the 5th Circuit. The court concluded that the parents had taken an inflexible “all or nothing” approach at the ARDC meeting.   Dissatisfied with the district’s proposed placement of their daughter, the parents sought reimbursement for private school tuition. They won their case before the special education hearing officer, but Rockwall appealed into federal court. The federal district court ruled for the district, and now the 5th Circuit has affirmed.

I know that educators get tired of lawyers harping on the importance of written documentation. But this case is a great example of how important the written record is. The ARD minutes, testimony, letters and emails from the district enabled the court to conclude that the district took “a collaborative approach” to the IEP process, whereas “the record shows that the Parents had no intention of continuing with the ARDC unless RISD approved their proposal.”

The court’s opinion notes that the parents and their advocate frequently voiced their questions and ideas during the meeting, and that “RISD officials repeatedly revised the language of their proposal to incorporate the parties’ suggestions.”   From reading this opinion, I get the impression that the district was listening, open minded and flexible.  The court concluded that it was the parents who refused to return to the table unless the district agreed to their plan.  Districts are sometimes accused of going into ARDC meetings with a “predetermined” mindset. This case shows us that “predetermination” is a two-way street.

The case is Rockwall ISD v. M.C., decided by the 5th Circuit on March 10, 2016. We found it at 2016 WL 929445.

DAWG BONE: PREDETERMINATION WORKS BOTH WAYS. 

Dawg Bones

Are the Band Boosters required to register as a terrorist organization? Seems like they should….

I actually got this question from a very frustrated superintendent.  I think he was kidding, but….you never know.  In any event, this may be one of the questions to be addressed in our firm’s upcoming audio conference on BOOSTERS, PTAs, PTOs, THE GOOD, THE BAD AND THE DANGEROUS.   We know that you depend on the support of booster clubs and parent organizations, but there are some legal and financial concerns that you should keep in mind.  That’s why we’re doing an audio conference on this topic on APRIL 26TH, from 10:00 to Noon.  Attorneys Shellie Hoffman Crow and Alex Berk will highlight the key issues for you and offer practical suggestions.

DAWG BONE: SIGN UP FOR THIS AND OTHER WALSH GALLEGOS AUDIO CONFERENCES AT OUR WEBSITE: WWW.WALSHGALLEGOS.COM.

Dawg Bones

Texas Supreme Court clarifies “exhaustion” requirements

We are all eagerly awaiting the decision of our state Supreme Court in the school finance case.  In the meantime, the Court has already decided another school finance case….sort of. This one is from Clint ISD.  Parents sued the district claiming that internal inequities in funding violated the Texas Constitution. On April 1, the Supreme Court dismissed the case for lack of jurisdiction. The court held that the plaintiffs should have taken the issue up with T.E.A. before filing suit.

It would have been interesting if the court had ruled on the merits of this one. The plaintiffs alleged that the school board spent a disproportionate amount of the district’s funds in the town of Clint, to the detriment of the schools located in Montana Vista and Horizon City.  Rather than addressing that issue, the court tossed the case out on procedural grounds. The legal term is: exhaustion of administrative remedies. The plaintiffs were required to take their case to the Commissioner. Until they did that, the courts lacked jurisdiction.

It’s a lengthy opinion and lawyers will want to study it carefully.  This case provides a detailed analysis of T.E.C. Section 7.057 and the meaning of the term “the school laws of this state.”  In a nutshell, the court held that although the plaintiffs had alleged that the funding scheme violated the Texas Constitution, in reality, all of the violations tied into statutory provisions. Thus the court viewed the case as a challenge to decisions about “the school laws of this state” and so, Commissioner Morath would have jurisdiction, but the courts do not.

The case is Clint ISD v. Marquez, decided by the Texas Supreme Court on April 1, 2016. We found it at 2016 WL 1268000.

DAWG BONE: CASES INVOLVING “EXHAUSTION OF ADMINISTRATIVE REMEDIES” COME UNDER THE CATEGORY OF “BORING…BUT IMPORANT.”