Category Archives: Dawg Bones

Dawg Bones

But she was 18! It was consensual!! She was not my student!!!

I remember listening in on talk radio about a year ago and finding, to my surprise, that the radio host was staunchly defending a teacher’s right to have sex with a student…but only under the right circumstances. The circumstances were that 1) the student did not attend the school where the teacher taught; 2) they met entirely away from any school-sponsored activity, through a private martial arts course that the teacher ran; 3) the student was legally an adult—18 years old; and 4) the relationship was completely consensual.  The argument was that these two adults would be free to pursue a sexual relationship under any other circumstances. Why should the young woman’s status as a high school student change that?

According to the State Board for Educator Certification the student’s status as a high school student was a game changer. SBEC permanently revoked the man’s teaching certificate based on its conclusion that he had violated the Code of Ethics. At that time, the Code prohibited educators from having a sexual or romantic relationship with “a student.” But the term “student” was not defined. The man argued that the term did not include someone that he met privately when not “wearing his educator hat.”  The radio host seemed to agree with that. More importantly, so did Travis County Judge Gisela Triana. She overturned SBEC’s decision.

SBEC appealed that decision to the Court of Appeals, which ruled in favor of SBEC, thus resulting in the revocation of the teacher’s certificate.  The court noted that the term “a student” should be interpreted in its ordinary usage, and thus would include any person who was attending any Texas public school.  The case is SBEC v. Lange, decided by the Austin Court of Appeals on February 25, 2016.  You can find it at 2016 WL 785538.

It was probably in response to this case that SBEC amended the rules to define “student.”  Here is the current definition:

Student—a person enrolled in a primary or secondary school, whether public, private, or charter, regardless of the person’s age, or a person 18 years of age or younger who is eligible to be enrolled in a primary or secondary school, whether public, private, or charter.  19 T.A.C. 249.3(54).

Keep in mind that this is the SBEC rule. Violation of it can result in a revocation of certificate. The criminal law is a bit different.  Consensual sexual activity between a teacher and an adult  student is a crime only if the student attends a school in the same school district as the teacher, or the student participated in a school-sponsored extracurricular activity in which the teacher provided services.  Texas Penal Code 21.12(a).

Thus if Teacher Jones, who works in District A, has a consensual sexual encounter with an 18-year old who attends high school in District B, and they did not have contact with each other through a school-sponsored activity, Teacher Jones has committed no crime.  However, Jones stands to lose a valuable teaching certificate.  And we want to make it clear that the Dawg is not encouraging such relationships!  Just ‘splaining the law here. That’s what we do.

DAWG BONE: ALL THINGS CONSIDERED, IT’S BEST TO REFRAIN.

Dawg Bones

It’s Toolbox Tuesday! What do we do with kids who are using drugs or alcohol?

On Tuesdays here at the Daily Dawg we like to highlight issues and cases that are relevant to The Toolbox. The Toolbox is a full day training program focusing on ten “tools” designed to empower you to serve the kids with the most challenging behaviors.  One behavior that educators encounter frequently is student substance abuse.  What should we be doing when we can see that student use of drugs or alcohol is adversely affecting educational progress?

Obviously there is no one-size fits all answer to that question, but a recent case from Oakland, California provides a good illustration. I’m not going to give a detailed accounting of the facts, Suffice it to say this was a student who was doing poorly in school, and nothing the school was doing seemed to be working very well.  Tardies, unexcused absences, unfinished work, a depressed, withdrawn and dis-engaged student.   On top of all that was the use of drugs and alcohol, which the school was aware of.

When the student was in 9th grade, the district provided a behavior plan for the student.  Among other things, it called for the student to quit smoking pot.  “However,” the court noted, “again, no mental health services were provided.”  Attendance and engagement with school continued to decline.  Eventually, the parties reached a disagreement over placement for the student and the case went to a due process hearing.

From the court’s opinion, it sounds like the due process hearing focused a lot on the issue of substance abuse. An expert for the school testified that the drug use “must be treated first, outside the special education arena, before the district could assess and address mental health needs.” In other words—the parents have to get the substance abuse under control before we educators can do anything.  The hearing officer found this “unpersuasive” and indicative of an “outdated, compartmentalized approach to treatment.” Thus the hearing officer concluded that the district failed to provide FAPE by failing to assess the student’s need for mental health services, and its failure to provide them.

The court basically affirmed the hearing officer’s view. Key Quotes:

There is no dispute that the District has no legal obligation to provide substance abuse treatment to Student.

The administrative judge was persuaded that the “student’s substance abuse disorder is a function of his co-occurring mental health conditions and both must be treated for Student to be able to function in the school setting. The Court agrees with this conclusion…”

Those two quotes may appear contradictory.   Let’s unpack them a bit.  The court is saying that the district has no duty to fix the substance abuse problem. But neither should it ignore it or wait for it to be dealt with if it is adversely affecting the student in school.

What can be done with kids who abuse drugs or alcohol?  Certainly a BIP can address this.  BIPs are supposed to address behaviors that impede learning of the student or others.  Putting in the BIP that the goal is for the student to avoid drugs and alcohol is a good goal. In the Oakland case, the BIP established a goal that the student would refrain from the use of drugs. That’s a good start, but only a start.  What services will the school offer to help the student achieve that goal? What “positive behavioral interventions, supports and strategies” will the BIP provide?  Would counseling be a good service to provide?  A peer group?

This is one of many issues we discuss in the Toolbox training. If interested in a Toolbox day, just send me an email and we will find a date.  jwalsh@wabsa.com.

DAWG BONE: IF SUBSTANCE ABUSE IS THE BEHAVIOR IMPEDING LEARNING, THE BIP SHOULD ADDRESS IT.

Dawg Bones

Commissioner reverses teacher termination based on use of force

We have a statute in the Education Code designed to give teachers some protection when they find it necessary to use physical force with a student. Section 22.0512 of the Code tells us that professional employees may not be disciplined for the use of physical force with a student to the extent that such force is justified by the Penal Code.  That means that non-deadly physical force can be used “when and to the degree the actor [meaning, the teacher] reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.”

Dallas ISD fired Caroline Lee, a third grade science teacher, for what the district believed to be the unreasonable use of force.  However, the independent hearing examiner, Robert Prather, did not see it that way.  He recommended that Lee not be fired.  DISD rejected Mr. Prather’s recommendation, terminated Lee’s contract, and she appealed to T.E.A.

Commissioner Morath did not issue this decision, presumably because he was on the board in Dallas at the time the decision was made.  Instead, he named T.E.A. Director of Audits, William Wilson, as his designee.  Mr. Wilson overturned DISD’s decision.  Here is the takeaway quote from the Commissioner’s decision:

As a remedial statute, T.E.C. section 22.0512 is to be given the most comprehensive and liberal construction possible.  A school district has the burden to prove that an employee’s use of force is unreasonable.  It is not an affirmative defense that the employee must prove.  When an employee is using force, a district cannot take disciplinary action against an employee because she was directed by an administrator not to use force.  Likewise, when an employee is using reasonable force, a district cannot take disciplinary action against an employee because it might cause the public to lose confidence in the administration.  The use of reasonable force cannot directly or indirectly be the basis for taking disciplinary action against the employee.

I encourage you to read that entire paragraph out loud, slowly, two or three times.  There is a lot there.  The case is Lee v. Dallas ISD, decided by the Commissioner’s designee on February 16, 2016. The Docket Number is 012-R2-12-2015.

DAWG BONE: TEACHERS ENJOY PROTECTION WHEN THEY REASONABLY USE PHYSICAL FORCE WITH STUDENTS.

Dawg Bones

We knew this was coming…

A teacher leaves her cell phone unattended for a few minutes.  A high school student picks it up. Explores it. Finds the photographs. Finds the nude picture of the teacher.  Sends it out to others.

Who is at fault here?  Over 17,000 people have signed a petition supporting the teacher. But the superintendent held the teacher responsible and asked her to resign, or face discharge. She did resign…but now has filed a suit.

This is the story of Leigh Anne Arthur from Union County School District in South Carolina.  The teacher acknowledged that she knew there was a racy picture on her phone, but she intended it only for her husband. A Valentine’s gift.

And you wonder where the Dawg comes up with material…

DAWG BONE: THE COURT OF PUBLIC OPINION HAS SPOKEN. LET’S SEE WHAT THE JUDGES THINK.

Dawg Bones

Private School Students: What’s Our Responsibility?

You get a call from the parent of a student who attends a private school in your district. The parent wants you to provide the speech therapy that the child needs.  Do you know how to respond to that question? The responsibility of public schools to private school students is one of the more complicated and confusing areas of special education law. That’s why our firm is offering an audioconference on this topic on April 20th, from 10:00 to Noon.  Attorneys Paula Maddox Roalson and Eric Rodriguez will lead the discussion, highlighting the requirements of the law, offering practical suggestions and taking your questions.

DAWG BONE: SIGN UP FOR THIS, AND OTHER AUDIOCONFERENCES, AT OUR WEBSITE: WWW.WALSHGALLEGOS.COM. 

Dawg Bones

Teacher termination upheld based on violation of confidentiality agreement.

It sounds like Principal Gober was having a hard time communicating with teacher Sylvia Ortiz.  After multiple students sought a transfer from Ms. Ortiz’s chemistry class in Plano ISD, the principal met with the teacher. The principal directed the teacher to engage in some rapport building exercises with her students.  Ten days later, the principal issued a written memo, outlining the suggested exercises.

This is where the standoff began.  The teacher refused to sign the principal’s memo, and walked out of the meeting sans memo.  So the principal sent it to her by certified mail. That didn’t work. Ms. Ortiz failed to sign for it.  So the principal hand-carried the memo to the teacher, and attempted to deliver it to her outside of her classroom.  Nope--Ms. Ortiz would not accept the paperwork. So the principal went into the teacher’s classroom and left the papers there for the teacher.

Ms. Ortiz then filed a grievance, alleging harassment, verbal and physical aggression, libel, slander, defamation of character, bullying, intimidation, misrepresentation of facts, and the intentional creation of a hostile and intolerable working environment.

The district assigned an investigator to look into all this. The investigator asked Ms. Ortiz to sign a confidentiality agreement, which she did.  The agreement (later referred to by Ms. Ortiz as an unconstitutional gag order) stated that:

you must not discuss this investigation or inquiry, or any information that you and the investigator discuss, with other District employees (except Safety & Security or Human Resources employees) or any other person who is in any way connected to the incident or event under investigation, or who is a possible witness in this investigation. Disclosure of information pertaining to this investigation may result in disciplinary action against the disclosing employee.

The district later sought to terminate Ms. Ortiz’s employment based on numerous grounds, including her violation of this agreement. Evidence of the violation was based on a telephone conversation with a student in which Ms. Ortiz inquired about what happened when the student was interviewed as a part of the investigation.  Ms. Ortiz recorded this conversation, parts of which were used against her in the litigation.

The independent hearing examiner recommended termination of Ms. Ortiz’s employment. Plano ISD’s board voted to terminate the teacher’s contract.  The Commissioner rejected many of the reasons for termination offered by the district, but upheld the termination based on the violation of the confidentiality agreement.  The state district court upheld the Commissioner’s decision, and now, so has the Court of Appeals.

It is interesting to note that what got Ms. Ortiz fired was not related to the original concerns about her performance, but rather, her violation of a confidentiality agreement she signed off on.  Her lawyer attempted to argue that the district was infringing on her free speech rights, but the court noted that constitutional principles do not apply to confidentiality agreements that people sign.

Many school administrators seek confidentiality during an investigation of alleged employee misconduct, or employee complaints.  Here, the district put it in writing, which turned out to be a critical factor in the decision.

The case of Ortiz v. Commissioner of Education was decided by the Court of Appeals in Dallas on March 10, 2016.  Docket Number 05-14-01165-CV.

DAWG BONE: VIOLATING A CONFIDENTIALITY AGREEMENT CAN BE A BIG DEAL.

Dawg Bones

It’s Toolbox Tuesday! How does the law define “weapon”?

On Tuesdays around here we like to talk about issues relevant to The Toolbox—an all day training program focusing on the kids whose behavior is troublesome.  We talk about 10 tools that are available to schools. One of those—Tool #5—is about the “special circumstances” that authorize a principal to order a removal of the student for up to 45 school days.  There are three circumstances that the law treats as “special.” One of those involves possession of a “weapon.”

So how does the law define that term?  Our IDEA regulations tell us that it has the same meaning as the term “dangerous weapon” in other parts of federal law.  So, we have to look up the definition of “dangerous weapon.”  When we do, we find that a “dangerous weapon” is:

a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2.5 inches in length.

So if a student has possession of a knife with a 3-inch blade, the student has a “dangerous weapon” and is subject to removal for up to 45 school days, regardless of whether the behavior is a manifestation of disability or not.

But slow down.  The law authorizes a removal of up to 45 school days, but it does not require it.  You have to think about how you would treat a non-disabled student who committed the same offense. Many districts would not send that kid to DAEP for nine weeks (45 school days). In fact, my impression is that most districts would impose a penalty shorter than 45 school days.  If that’s how you would treat the non-disabled student, then that’s how you should treat the student with a disability.

This is the kind of thing we review in the Toolbox training. If interested, let me hear from you.  I’m at jwalsh@wabsa.com.

DAWG BONE: IF THE BLADE IS 2.5 INCHES OR LONGER, THEN IT’S A “DANGEROUS WEAPON.”

Dawg Bones

T.E.A. proposing rules on “cameras in the classroom” bill

T.E.A. is planning to post proposed rules pertaining to SB 507, the controversial “cameras in the classroom” bill, this Friday.  Educators should carefully review these proposed rules and make comments on them during the public comment period, which will run until May 9.

The proposed rules largely repeat what is in the statute, but they do offer clarifications on a number of key points.  Here are some highlights:

1. The law allows a “parent” to request the installation of a camera. The proposed rules define “parent” to mean a parent of a student who is placed for at least 50% of the day in the type of setting to which the law applies--a self-contained classroom or “other special education setting.” Note that the statute could have been interpreted to apply to any “parent.” The proposed rules narrow that. The rules also clarify that a student in a special education setting who is 18 years old could qualify as a “parent.”

2. The law allows a “staff member” to request the installation of a camera. The proposed rules define “staff member” to mean only those teachers, related service providers, aides and administrators on the campus where the self-contained classroom or “other special education setting” is located. The statute could have been interpreted to apply to any staff member. The proposed rules narrow that.

3. “Self-contained classroom” is defined as the term is used in the Student Attendance Accounting Handbook.

4. “Other special education setting” is also tied into the SAAH and basically applies to residential facilities and separate campuses.

5. The law allows certain individuals to have access to the video if an “incident” documented by the recording has been reported to the district as a complaint. The proposed rules define “incident” to be alleged abuse or neglect as those terms are used in the Family Code; or, more broadly, “an event or circumstance that….allegedly occurred” in a setting in which video surveillance is conducted.

6. The proposed rules say that the law does not apply to TSBVI, TSD, Juvenile Justice facilities, state agencies that provide special education or any district, charter or private school that your school contracts with.

7. The proposed rules say that complaints alleging that the district has violated the law should go through district grievance procedures, rather than the special education due process system.

8. The proposed rules say that video surveillance is required only during the regular school year—not ESY.

9. Districts and charters will be required to adopt policies and procedures addressing the implementation of all this.

Meanwhile, Commissioner Morath has asked for an “expedited” Attorney General’s Opinion concerning SB 507.  Let’s hope the AG does, in fact, render an opinion in an expedited fashion.  Presumably, the AG’s Opinion could lead to some tweaks in the rules eventually adopted.

Watch for the posting of the proposed rules on Friday, April 8th.

DAWG BONE: STAY TUNED!

Dawg Bones

Donald Trump Announces Education Plan

Republican frontrunner, Donald Trump, today revealed his plan to “make America’s public schools great again.”  Speaking to a boisterous crowd of educators, the billionaire businessman turned politician promised that “our schools are going to be amazing. You’re going to love sending your kids to one of our schools.  It’s going to be tremendous.  You wait and see.”

Mr. Trump won over the crowd when he noted that “you can’t expect your schools to be great unless you have great people running them. And you can’t get great people unless you pay them. When I am President, every teacher will have a six-figure income and still have that three-month vacation. And you superintendents?  The sky’s the limit! I mean…you have to reward people for good work!  We need great principals! We’re going to have all of that when I am your president and our schools are going to be winners again.  Just wait and see.”

A big believer in local control, Mr. Trump promised to repeal any federal law that imposes any obligation on local school districts. However, he did call for a universal adoption of his bestselling book, “The Art of the Deal” as mandatory reading for high school students.  “How else,” he asked, “can we expect our kids to compete with kids around the world?  Everybody in the world reads my book.”

Of particular interest to Texas educators, Mr. Trump noted that he expected illegal immigration from south of the border to completely dry up even before his wall is completed.  He explained that the children in Mexico would be required to stay in their country in order to raise the money Mexico would need to pay for the wall.

DAWG BONE: HAPPY APRIL FOOLS DAY

Dawg Bones

Here’s Another Federal Law You Need to Know About…

Have you heard of the federal False Claims Act?  While the FCA has nothing to do with education, it can be used as the basis of a lawsuit against a school district, as has happened in Tangipahoa Parish, Louisiana.

The FCA is designed to prevent the misuse of federal funds. It imposes liability on those who make false claims to federal funds, (ever heard of Medicaid fraud?) or misappropriate them.  Thus any recipient of federal funds is a potential target under the FCA.  Moreover, the FCA has its own “whistleblower” provision.  A person who is punished in retaliation for reporting, or seeking to prevent, the misappropriation of funds may have a federal cause of action.

In Tangipahoa Parish, a JROTC instructor alleged that he was harassed, badgered and ultimately transferred to another school, more than an hour away from his home.  He alleged that all of this came after he reported what he believed to be a misappropriation of JROTC funds by the school that he worked for.  He filed suit under the FCA, and the 5th Circuit recently held that he had adequately plead his case, thus denying the school’s Motion to Dismiss.

The school tried to get the case tossed out by noting that the higher-ups in the district were completely in the dark about this.  The plaintiff did not allege that the superintendent or the members of the school board had any knowledge of any financial hanky panky.  The plaintiff’s allegations only reached as high as the principal.  Can the district be held liable because of something the principal did?  Yes.  The court held that it was “plausible that [the principal] was acting within the scope of his employment, or at the very least, with the apparent authority of the School Board.”  That was enough to put the school board in play as a potential defendant in the case.

For the lawyers, this case is important because of its broad interpretation of vicarious liability under the FCA. Under this decision, school districts face potential liability based on wrongdoing of a campus principal, even when the superintendent and board are completely innocent.  This is not how things usually work in federal cases.

For educators, the case is important because it gives us an example of another type of “protected activity.”  We must be sure not to retaliate against someone based on “protected activity.”  So if someone reports what they honestly believe to be a misappropriation of federal funds, be sure to take it seriously.  Investigate.  Make a decision based on the results of your investigation.  And whether the claim has merit or not, do not take any retaliatory action against the person who reported it.  Be sure the people you supervise also refrain from any retaliatory action.

The case of U.S. ex. rel. Bias v. Tangipahoa Parish School Board was decided by the 5th Circuit on March 9, 2016.  It can be found at 2016 WL 906227.

DAWG BONE: MAYBE YOU THOUGHT FCA WAS THE FELLOWSHIP FOR CHRISTIAN ATHLETES.  IT IS.  BUT IT IS ALSO THE FALSE CLAIMS ACT.