Category Archives: Dawg Bones

Dawg Bones

One more difference between employment in the public sector vs. employment in the private sector

Texas is an “at will” employment state.  The general rule is that employees are hired “at will” which means they can be fired at any time without good cause.  Of course we have both federal and state laws that prohibit terminating employment on the basis of certain protected characteristics, like race, sex, religion, age, disability.  But other than that, most employees in Texas serve at the pleasure of their employers.  Teachers with contracts are a notable exception to the general rule.

Another exception was created by the Texas Supreme Court in the case of Sabine Pilot, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985).  In the Sabine Pilot case our Supreme Court held that the employer may not fire an employee for refusing to perform an illegal act.

But a recent decision from Beaumont ISD demonstrates that the Sabine Pilot case does not mean the same thing in the public sector as it does in the private sector.  An at-will employee of a school district does not have the same protection as his or her counterpart in the private sector.  In the Beaumont case, Mr. George Thomas, Jr. asserted that the district fired him for refusing to perform an illegal act.  He alleged that the district was keeping false records regarding student attendance. He alleged that he refused to go along with this, and for this he got canned.

Is this a valid claim under the Sabine Pilot case? We will never know. The district filed a “Plea to the Jurisdiction” asserting that the court should dismiss the case from the get-go because the court had no jurisdiction.  BISD pointed out that it enjoyed governmental immunity—immunity from suit, not just from liability—and this claim was barred by that immunity.

The state district court did not agree with that, but the Court of Appeals did.  Citing six earlier cases, the court held that Sabine Pilot did not waive BISD’s governmental immunity.  Indeed, governmental immunity can only be waived by the legislature—not a court.  Thus in practical terms, the Sabine Pilot case means that a private employer cannot fire someone for refusing to perform an illegal act.  As for a governmental employer….no liability for doing the same thing.

The case of Beaumont ISD v. Thomas was decided by the Court of Appeals in Beaumont on January 28, 2016.

DAWG BONE: “AT WILL” IN AN ISD IS MORE “AT WILL” THAN IT IS AT WAL-MART.

Dawg Bones

It’s Toolbox Tuesday! Does the new federal education law (ESSA) say anything about special education discipline?

On Tuesdays around here we like to highlight The Toolbox. This is an all day training program focused on the disciplinary options with students with disabilities.  Does the new federal law speak to this?  No—certainly not directly.  The details about the discipline of special education students are contained in the Individuals with Disabilities Education Act (IDEA).  Congress has not amended IDEA since 2004, and we don’t hear much rumbling about that happening this year.

However, there is one provision in the new federal law that we think is important and relevant with regard to your student discipline program.  The new federal law is The Every Student Succeeds Act, which replaces the No Child Left Behind Act. So it’s out with NCLB and in with ESSA.  ESSA, like its predecessors, makes federal money available to states and local districts that meet certain requirements.  One major requirement is that the state must submit a plan outlining how it will serve students, and how it will implement the components of the law. That’s where we found the one little nugget that addresses student discipline.

Section 20 U.S.C. 6311(g)(1)(C) now states:

Each State plan shall describe…how the State educational agency will support local educational agencies receiving assistance under this part to improve school conditions for student learning, including through reducing—

(i)   incidences of bullying and harassment;

(ii)  the overuse of discipline practices that remove students from the classroom; and

(iii) the use of aversive behavioral interventions that compromise student health and safety.

The law also requires a “State Report Card” that will disclose how much the state and each district is using suspension (both out of school and in-school), expulsion and contact with law enforcement.

Notice the law speaks of the “overuse” of practices that remove students from the classroom. There is nothing in this law that prohibits the use of the traditional tools of student discipline.  But the law seeks to move us away from an “overuse” of these tactics, toward practices that focus on inclusion and the restoration of a healthy school climate.

This new law provides your district a great opportunity to explore the use of Restorative Practices.  Restorative Practices focus on inclusion, rather than separation; relationship building, rather than crime and punishment.  So if you have not yet looked into Restorative Practices, please do. It’s the wave of the future and the future starts right now.

DAWG BONE: ESSA WILL NUDGE US TOWARD RESTORATIVE PRACTICES WITH STUDENTS.

Dawg Bones

What’s happened with the T-Bizzle case–the student rapper from Mississippi?

Maybe it was appropriate that we got the word on Leap Day that the Supreme Court would not hear the case of Bell v. Itawamba County School Board. This is the case involving the wannabe rapper, Taylor Bell, who goes by T-Bizzle in the rapper community.  By deciding not to hear the case, SCOTUS leaves intact the en banc decision of the 5th Circuit. That decision upheld the disciplinary action the school took after Mr. Bell recorded a rap alleging that two coaches had engaged in sexual misconduct with some female students.

To say that the rap was vulgar and nasty would be an understatement, but it wasn't the nastiness that turned this case in favor of the district. The court concluded that the rap violated the school code of conduct by "threatening, harassing and intimidating" school employees.  The rap included defamatory accusations along with suggestions of violence. Importantly, the court held that even though it was created and recorded off campus, it was intended to reach the school community. That was pretty obvious, since Mr. Bell put it on Facebook, where he had almost 1,400 friends, and then YouTube.  Since it was intended to reach the school community, and violated the standards laid out in the code of conduct, the school had the authority to take disciplinary action.

The 5th Circuit decision is a major pronouncement regarding free speech rights of students in public schools.  This is especially true for us in. Texas, since a 5th Circuit decision is binding on our courts.  The case is particularly important because it recognizes that the Internet and social media are game changers in the legal analysis. The geographic boundary of "school property" becomes less important with this decision.

No doubt we will be talking about this one on my annual Back to School tour this fall.  As a school attorney, I'm pleased with this outcome. But I'm a little disappointed that we won't get a Supreme Court decision about this very interesting case.  The oral argument would have been a “bring your popcorn” event.

DAWG BONE: TAKE A LOOK AT YOUR CODE OF CONDUCT REGARDING STUDENT USE OF SOCIAL MEDIA.  YOU MIGHT WANT TO REVISE LANGUAGE BASED ON THE BELL CASE.

Dawg Bones

Dear Dawg: what do you think your chances are for a nomination to the Supreme Court?

Hah!  Not very good, that’s what the Dawg thinks.  We heard that one of the people under consideration is probably too old.  The guy is 63, a number the Dawg passed by some time ago.

Furthermore, one of my very own family members pointed out that Catholics are already disproportionately represented on the Court. There were six.  With Scalia’s departure, there are still five.  So I’m too old and of the wrong religion.

On top of that is the fact that I have never been a judge and am completely unqualified for the job.   Then there is the fact that President Obama has never heard of me.  Then there is the fact that the Republicans would never confirm me.

So it ain’t gonna happen.  But I have given a lot of thought to this vacancy.  Who could President Obama possibly nominate that the Republicans in the Senate would approve?  Sandra Day O’Connor?  The ghost of Ronald Reagan?  Maybe Ted Cruz!  After all, reports are that nobody in the Senate likes the guy, so this would give them an opportunity to get him out of there.  He might be the only person in America who could be confirmed 100-0.

Of course, there is no chance that Obama would name Cruz. Thus the dilemma: how do you thread the needle with someone acceptable to our liberal president and our very conservative Senate?

Any ideas, readers?  Let me hear from you! I will report the results.  jwalsh@wabsa.com.

DAWG BONE: WHATEVER ELSE YOU MIGHT SAY ABOUT JUSTICE SCALIA, WE WILL MISS HIS WITTY DISSENTING OPINIONS.  MAY HE REST IN PEACE.

 

Dawg Bones

Did Dallas give the guy fair warning of the salary reduction?

Dallas ISD informed Leon James that his salary for the 2013-14 school year would be $73,000.  The notice was provided on August 20, 2013, and Mr. James promptly objected.  This salary was a cut from his previous pay, and the notice was provided too close to the start of the school year. He could not resign his position without facing possible penalties.

Dallas backed down.  On September 5, 2013, it sent a second letter to Mr. James. This time, he was told that his salary for the year would be “frozen at $79,988.” The next sentence became the crucial issue in the subsequent litigation: “Your salary will be reduced for 2014-15 to be reflective of assignment.”

In June, 2014, the board adopted a budget and salary schedule.  The ‘Salary Handbook” published by the board showed that middle school assistant principals could range from $59,400 to $76,500.   On September 11, 2014, Mr. James was informed that his salary for the year would be $73,000.

Mr. James appealed this decision to the Commissioner. The legal issue was whether or not the district had provided “formal” and “specific” notice of the salary cut prior to the penalty-free resignation date. Clearly the district had not done that for 2013-14, which is why the district backed down quickly when Mr. James objected. But what about the next year?

Notice that Mr. James was not told his exact salary until September.  However, he was told well in advance that his salary would be “reflective of assignment.” Moreover, the Salary Handbook, which he could look up, showed that even the highest salary for A.P.s at the middle school would involve a cut in pay.

The Commissioner held that DISD had satisfied the requirements of the law.  The standard “does not require that a school district give an educator enough information that the educator can determine exactly what the future salary amount will be.” Rather:

A notice is sufficiently specific if it “would result in a reasonable teacher knowing the amount the salary could be reduced.” [Emphasis added in the DISD case].  The notice does not need to state the salary amount explicitly if the educator can refer to salary schedules published by the school district and determine the amount the salary for the educator’s position could be reduced.

The case of James v. Dallas ISD, Docket No. 028-R10-03-2015, was decided by Commissioner Williams on October 15, 2015.

DAWG BONE: NOTICE OF SALARY REDUCTION MUST BE FORMAL, SPECIFIC, AND PROVIDED BEFORE THE PENALTY-FREE RESIGNATION DATE.  “SPECIFIC” DOES NOT MEAN WHAT YOU THINK IT MEANS.

Dawg Bones

In honor of Texas Independence Day, let’s talk about how much independence charter schools have.

If you are the parents of a child attending an open enrollment charter school, you do not have some of the rights that other parents have.  For example, you will be hard pressed to get the Commissioner to hear your case complaining about the charter school violating Texas laws.

In Child v. Harmony School of Political Science and Communications the Commissioner dismissed the parent’s appeal because the Commissioner does not have jurisdiction in cases alleging that a charter school violated the school laws of Texas.  Section 7.057 of the TEC is the avenue for appeal of the decisions of traditional schools. If a parent alleges that the board of trustees of the traditional school district has violated “the school laws of Texas” the Commissioner will hear and decide the case. But not so with a charter. In this case, the Commissioner confirmed that TEC 7.057 does not apply to charters.  Therefore, no jurisdiction.

The case is Docket No. 042-R10-05-2015, decided by Commissioner Williams on December 18, 2015.

DAWG BONE: CHARTERS ARE SCHOOLS OF CHOICE. SO IF YOU DON’T LIKE IT, I GUESS YOUR REMEDY IS TO LEAVE.

Dawg Bones

It’s Toolbox Tuesday! Let’s talk about manifestation determinations.

The Toolbox is a one day workshop focusing on special education discipline.  We like to highlight the Toolbox on Tuesdays, and today we’re doing it in an unusual way. Let’s talk about a personnel dispute.

Paul Green was a monitor on a special education bus for the Dallas County Schools.  After he was fired, he sued DCS, alleging disability discrimination. The jury agreed with him. When attorneys’ fees were added to the damages awarded by the jury, Mr. Green had a favorable judgment in excess of $500,000.  But all of that got taken away by the appellate court due to the manifestation determination.

Now I know that the readers of EdLawDaily are a particularly sharp bunch of people. Therefore, you have to wonder about the last sentence of the preceding paragraph.  Since when does a “manifestation determination” come up in an employment case?

Well….it doesn’t. But the way this case was decided is a good illustration of how a manifestation determination is supposed to work.

So let us review the embarrassing details of this case.  Mr. Green peed in his pants on the school bus.  He felt it coming on, and begged the driver to stop at a gas station. The driver did not do so, and Mr. Green could not hold it any longer.  No students were on the bus when this happened, but a wheelchair bound student boarded the bus shortly thereafter. Mr. Green assisted the student, securing the wheelchair with straps without touching the student.

The incident was reported to supervisors and both Mr. Green and the driver were disciplined. The driver was suspended without pay for one day. Mr. Green was fired.

Mr. Green had congestive heart failure, for which he took medication. He had informed his supervisors of this.  There were previous incidents when he had a sudden urge to urinate, and bus drivers had accommodated this by making unscheduled stops, without incident.  So Mr. Green’s legal theory was that he urinated on himself due to his disability and/or the meds that he took for it.   DCS argued that neither his disability, nor his meds had anything to do with it. DCS claimed it was all about his handling of the student after the incident without first washing up.

So: do you see that this is a manifestation determination case?  The jury was asked if the urination episode was caused by the disability. The jury said yes. The appellate court answered the same question with a “no.”  In fact, the court said that the evidence in the case was too weak to support the jury’s conclusion.

Three experts—medical doctors--testified in the trial.  Two of them were hired by DCS, and they both testified that neither congestive heart failure, nor the medication that Mr. Green was taking would have caused a sudden loss of bladder control.  Of course Mr. Green had his own medical doctor as an expert witness, but the court deemed that doctor’s testimony “speculative” and “conclusory.”  The court noted that the doctor “could not, and did not say that [the medication] caused or contributed to Green’s incontinence episode.”

In other words: this incident was not “caused by,” nor did it have a “direct and substantial relationship” to Mr. Green’s disability.  Therefore, he was not fired because of his disability. There goes the half a million.

The case of Dallas County Schools v. Green was decided by the Court of Appeals, 5th District: Dallas, on January 19, 2016.

If you are interested in the Toolbox, let me hear from you at jwalsh@wabsa.com.

DAWG BONE: MANIFESTATION DETERMINATIONS LOOK AT DIRECT CAUSATION.  

Dawg Bones

District thought it had the guy’s resignation. Then they gave him a contract. What now?

Happy Leap Day, Readers! And in honor of this day that comes only once every four years, we offer a story that comes from a court case that we hope won’t be repeated for at least another four years.

It seems that Tomas Martinez, an assistant principal in United ISD, filed a few grievances against his boss, the principal.  Mr. Martinez was a veteran educator of 21 years, the last 12 as an A.P, but he apparently did not have a great relationship with the principal.  Fortunately, the parties were able to settle all their disagreements in one fell swoop.  On May 9, 2014 the district and Mr. Martinez signed off on a Settlement Agreement that could not have been more clear.  Mr. Martinez would 1) drop all his grievances and 2) resign, effective January 23, 2015.

That settled that. Or so they thought.

However, two weeks later the district offered Mr. Martinez a term contract for the entire 2014-15 school year. Mr. Martinez signed it, as did the board president.

When January rolled around, the HR department contacted Mr. Martinez to discuss his impending departure.  Mr. Martinez informed HR that he was going nowhere. He had a contract for the entire year.

Hmmm. The district did not see it that way.  After all, the man had promised to resign.  The district barred Mr. Martinez from working for the district after January 23, 2015, the date when he had said he would resign.

This matter ended up in the lap of the Commissioner, who ruled in favor of Mr. Martinez. The Commissioner held that the contract amended and overrode the Settlement Agreement.  The Settlement Agreement allowed for modifications of its terms by a written document, signed by both parties. As the Commissioner pointed out, the employment contract was a written document signed by both parties.   Moreover, the employment contract included the standard paragraph about how it was the “entire agreement” between the parties, thus overriding anything they had previously agreed to.

Of course, since United ISD thought that Mr. Martinez was no longer its employee after January 23, 2015, it did not go through the normal procedures to nonrenew his contract as of the end of that year. So guess what? They got him for the next school year as well.  Term contracts that are not properly “nonrenewed” are automatically renewed.  Thus the Commissioner held that Mr. Martinez was entitled to compensation for the remainder of the 2014-15 school year; and he was entitled to a contract for 2015-16.

The case is Martinez v. United ISD, Docket No. 030-R10-03-2015, decided by Commissioner Williams on November 23, 2015.

DAWG BONE: THAT EMPLOYMENT CONTRACT IS USUALLY GOING TO OVERRIDE ANY PRIOR AGREEMENT, EVEN ONE IN WRITING.

Dawg Bones

It ain’t over in Kountze!

CheerleaderGate is not over!  The cheerleaders in Kountze have been displaying overtly Christian messages on the banners that the team runs through at the beginning of the game.  Litigation has been going on for years.  But then the school board tried to end all the fun and games by adopting a resolution that effectively allowed the cheerleaders to express their religious messages on school banners. “Moot!” cried the school district lawyers.  “Your claim is moot because we have given you what you want—so go away now.”

The Court of Appeals agreed with that, but the Texas Supreme Court did not.  The Supremes declared that the case was not moot because the school board might very well reinstate a ban on religious messages on school banners.

Thus it continues.

If this goes on much longer, we are afraid that the cheerleaders are going to switch from the comparatively tame verses they now cite (“I can do all things through Christ, which strengthens me” Philippians 4:13) to the darker Hebrew Scriptures.  This is particularly likely if the team continues to lose as they did in 2015, going 2-8.

Let’s remember: this is football, people! Let’s get away from the namby pamby in Philippians and go with some smashmouth Hebrew Scriptures.  How ‘bout this one from Deuteronomy 28:31:   “Thine [donkey] shall be violently taken away from before thy face and shall not be restored to thee.”

The Scriptures actually don’t use the word “donkey.” They use another word, and I’m confident that you know what it is. But I also know that using that word will cause some of your filters to block the Dawg from entering your space. So we say “donkey” but you know what we mean.

Stuff like that might get the Kountze Lions back in the playoffs.

DAWG BONE: WONDERING IF THIS CASE WILL END UP IN FEDERAL COURT.

Dawg Bones

Don’t make me go to a pep rally! I’ve got PTSD!

New Caney ISD was faced with an interesting situation when teacher Stephen Seidel asked his principal for an accommodation of his PTSD.  Mr. Seidel is an Iraq War vet, and he informed his principal that loud noises in enclosed spaces would exacerbate his symptoms. Of course there are few things in life louder than a high school pep rally in the gym. So Mr. Seidel asked to be excused from pep rallies at the school.  The principal agreed to this. The plan was for Mr. Seidel to patrol the hallways during the pep rally, rather than attending.

Apparently, this worked just fine for a year and a half.  Then, on December 21, 2012, the high school held a “Lip Dub.”  The court tells us that this event “resembles a pep rally in its loudness.”  Mr. Seidel’s supervising teacher, who was also his department chair, perhaps unaware of the agreement, told him to attend.  Mr. Seidel told her that he could not do this. He explained that “he does not go to the pep rallies.”  According to the court, the supervising teacher insisted that he needed to go into the gym, like the other teachers.

The court’s opinion tells us that Mr. Seidel at first stayed near the door to the gym, but “Later, other unnamed administrators forced him into the bleachers, over his objections.” The “Lip Dub” included “students rushing in, screaming, popping balloons, shooting off confetti cannons.”  In other words, it was loud in there.

Mr. Seidel claims in his lawsuit that all this chaos did, in fact, bring about a “flashback” to his days in Iraq.  With help from his students he left the gym, but he experienced panic attacks and flashbacks the rest of the day.  He left the school, and did not return “out of fear of having a flashback and possibly hurting a child.”

Eventually, Mr. Seidel filed suit, alleging disability discrimination.  New Caney filed a Motion to Dismiss the suit, arguing that Mr. Seidel was not a “qualified individual” able to perform the work of a teacher. In a suit under the ADA (Americans with Disabilities Act), the employee must establish that he or she was able to perform the essential functions of the job. Here, the district cited Mr. Seidel’s own admission that “he can no longer work as a teacher.”  Mr. Seidel’s argument was that he was fully capable to work as a teacher until the “Lip Dub” incident when the district revoked the accommodation he had had.

The court said that the key issue was “the relevant time for assessing whether Mr. Seidel can work as a teacher.”  The court held that the “relevant time” is “when the alleged ADA violation occurred.”  In other words: was Mr. Seidel qualified and capable of serving as a teacher on December 21, 2012, the day when he alleges that the district violated the ADA.  He was. Thus the court refused to dismiss his lawsuit.

This case has a long way to go.  Mr. Seidel has only jumped the first hurdle. He still faces a heavy burden of proof.  If the case ends up going to trial, Mr. Seidel will have to prove the truth of his allegations.  He did not have to do that in this proceeding.  On a Motion to Dismiss, the court assumes the truth of the allegations, thus giving the plaintiff the benefit of every doubt.  On top of that, if it goes to trial, Mr. Seidel will be asked to explain why he felt bound by the directions of a department chair when he already had an agreement in place with the principal.  The district will argue that Mr. Seidel could have respectfully refused to comply with the direction to enter the gym.

But there is a good legal nugget for us here. See today’s Dawg Bone!  The case of Seidel v. New Caney ISD can be found at 2015 WL 6549895. The federal court for the Southern District of Texas ruled on the Motion to Dismiss on September 18, 2015.

DAWG BONE: A PLAINTIFF IS A “QUALIFIED INDIVIDUAL” UNDER THE ADA IF HE WAS ABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB AT THE TIME WHEN A REASONABLE ACCOMMODATION WAS DENIED OR WITHDRAWN.