Category Archives: Dawg Bones

Dawg Bones

Let’s talk about corporal punishment.

Dear Dawg: Corporal punishment is legal in Texas….right?  JUST WONDERING.

DEAR JUST WONDERING:

Right.  It is legal, but risky.  The most important thing about corporal punishment is compliance with your local policy. Study your policy FO Local. You will find that:

1. Some districts have prohibited corporal punishment;

2. Some districts require parents to give consent before corporal punishment can be used;

3. Some districts impose restrictions, such as a) who can administer it; b) how it is administered; 3) where it is administered; 4) how parents are notified.

The easiest way for an administrator to get into trouble over this issue is to fail to comply with local policy.  Even the failure to comply with a part of the policy that seems unimportant can lead to legal problems.

I recently looked at one district’s FO Local and found that it allowed corporal punishment, unless the parents have provided a written statement prohibiting its use. State law requires that parents be given that opportunity.  The district’s policy had these restrictions:

1. Only “spanking or paddling” are allowed;

2. The student must be told the reason for the paddling;

3. Only the principal or assistant principal can paddle;

4. The principal must approve the instrument to be used;

5. It must be done in a designated area out of the view of other students;

6. There must be a professional district employee serving as a witness; and

7. There must be a disciplinary record to document all of the above.

It’s my impression that most districts that allow corporal punishment require written parent consent.  Remember that state law requires that parents be allowed to opt out of corporal punishment, but many district have taken the extra precaution of limiting this practice to those parents who have affirmatively given their consent for its use. The Dawg thinks that this is the better practice.

Limiting corporal punishment to situations where parents have given written consent is sure to lower your risk of litigation over this controversial practice, but it does not eliminate that risk. Parents can give consent; and then sue over it.

You may wonder: how can they do that?  How can they say it’s OK, and then file a lawsuit over it?  Easily.  The suit will allege that parents gave consent for reasonable corporal punishment, and that what happened in fact was not at all “reasonable.”  No one can precisely define the line of demarcation between “reasonable” and “excessive” corporal punishment. Thus this is a risky practice, and one of the few instances in which a campus administrator can be held personally liable for damages.  You can be held liable for the excessive or the negligent use of physical force while disciplining a student.

So read your FO Local.  Comply with it. Be careful.

DAWG BONE: IT’S 2016 AND CORPORAL PUNISHMENT IS STILL LEGAL IN TEXAS.  LEGAL…BUT RISKY.

Dawg Bones

It’s Toolbox Tuesday! Can you tell us about a court case that illustrates the proper use of Tool #1?

The Toolbox is a one-day training program for campus administrators and special education staff. The Toolbox provides 10 “tools” that school officials can use to serve students with disabilities who present challenging behaviors.  The idea behind the Toolbox is to provide a framework and common vocabulary to help you serve all kids in the LRE while maintaining safety and an environment conducive to learning.

Tool #1 is a BIP—a Behavioral Intervention Plan.  In the Toolbox training we emphasize that Tool #1 is the most important tool.  If it works, you won’t need any of the other nine tools.  That’s because Tool #1 is the only tool designed to improve the student’s behavior.

There are many cases that illustrate the proper and the improper use of a BIP.

*Some courts have pointed out that the law provides no specifics about what a BIP is supposed to look like;

*Some courts have found that the absence of a BIP is no big deal if the school can demonstrate that it addressed the student’s behavior in other ways;

*On the other hand, there are cases that have held that the absence of a BIP is a denial of FAPE to the student.

One of the cases that I think is most illustrative is C.F. v. NYC DOE, 62 IDELR 281 (2nd Cir. 2014).  As if often true, the case provides us a good “teachable moment” because the court ruled against the district.

The court held that the district denied FAPE due to several things, one of which was an inappropriate BIP.  The district did not conduct a FBA.  The court found that this, by itself, was not a violation of law.  However, the BIP that was developed was “vague” and “failed to match strategies with specific behaviors, instead simply listing behaviors and strategies.”

The 7th Circuit would likely disagree with this analysis, since it has held that it is impossible to write a BIP that fails to meet substantive standards, since there are none.  Nevertheless, this is a good case for training on behavioral issues.  A list of behaviors and strategies, without matching them up, is common.  This court holds that a proper BIP would match them up—describing the specific strategy to be used for each behavior.

DAWG BONE: A BIP IS DESIGNED TO IMPROVE THE BEHAVIOR THAT IS IMPEDING LEARNING. SO A GOOD BIP SHOULD CALL FOR INTERVENTIONS THAT ARE DESIGNED TO DO THAT.  MATCH ‘EM UP!

Dawg Bones

The State of the Union….How is yours?

President Obama delivers his final State of the Union address tomorrow night.  We are told that it will be “non-traditional.”  Hmmm. I wonder what that means.  I shall be watching with interest.

I see that many school districts have borrowed the concept of the “State of the Union” address.  Some superintendents now deliver an annual State of the District speech.   I expect that most of these school district events are similar to what we hear from the President each year. It doesn’t matter whether the President is a Democrat or a Republican, you can count on four messages in the SOTU address:

1. Things are good.

2. Things can be better.

3. I know what we need to do.

4. Follow my lead.

My wife and I borrowed the “State of the Union” concept a long time ago.  We established a tradition of each writing a “State of the Union” letter around the first of the year.  In that letter, we write honestly about the state of our little two-person union. What is working? What is not? What can we do better?  What are our hopes for the upcoming year?  We go to a nice restaurant. Being in a public place usually ensures that there will be no major blow up.  Usually.  After ordering, we open our letters and read them. Then we talk.

It’s a healthy tradition. As with most (all?) of the tools that have kept us happily together for 42 years, she gets the credit for this. But I was the one who dubbed it “the State of the Union.”

You might want to try this.  And if you find the concept useful, you might want to expand it beyond your family to your co-workers. After all, you spend a lot of time with the people you work with, and they become, in many ways, another family.   You and the people you work with are a “union”—dedicated to serving the kids and the families in your school district.

So the Dawg’s gentle suggestion is to give this a try.  Get with some of the key people you work with and write up a “State of the Workplace Union.”   What is working? What is not?  What can you do better?

The start of a new year is a great time to have a good talk about such things.

DAWG BONE:  THE ANNUAL “STATE OF THE UNION”—BORROW THE CONCEPT!

Dawg Bones

Dear Dawg: It was after we sent home the class picture of the first graders that we noticed the little munchkin on the front row shooting the finger. Help!

Dear Dawg: I have come to expect this kind of behavior at the middle school, but not from a first grader. Before we send home class pictures of the kids in middle school we go over them with a magnifying glass, looking for anything improper.  But a first grader!  Dawg, the kid is as cute as they come. He is a little guy, so he was one of the ones sitting cross legged on the floor right in the front.  You can’t miss him. Big smile.  Looks like the sweetest little boy in the world.  But once we started getting angry phone calls from parents, we took another look at the picture. How could we have missed it?  There is no mistaking what he was doing. This was no accident, but rather, a deliberate effort to sabotage the picture with a vulgar middle finger.  Two of them in fact.  All of a sudden, that sweet smile began to look more like a malevolent grin. The more I looked at the kid, the more he looked like a younger, better coiffed version of Donald Trump.  I can see Trump doing this in first grade, can’t you?

Anyway….what do we do???  NEED A BETTER PHOTO EDITOR.

DEAR NEED A BETTER:

I think you already identified what needs to happen here. Get a better photo editor!  We don’t see a big legal problem here.  But even if you photoshop this thing to clean it up, be sure to hang on to the original also.  After all, if the kid ends up running for president 40 or 50 years from now, this picture will be priceless.

DAWG BONE: CLASS PICTURES.  NOT WHAT THEY USED TO BE.

Dawg Bones

Was it the 479th phone call that got him in trouble? Or the 480th?

The Court of Appeals in Austin has ruled that SBEC got it right when it called for the revocation of Erasmo Montalvo’s teaching certificate.  This case began when a college student alleged that Mr. Montalvo had sexually assaulted her while she was a student in Rio Grande City High School.  Criminal charges were filed against the man, but he was ultimately acquitted following a jury trial.

Despite the acquittal, T.E.A. sought to revoke Mr. Montalvo’s certificate, alleging that he was “unworthy to instruct or supervise the youth of this state,” and that he had violated numerous provisions in the Educator’s Code of Ethics.  After a hearing on these matters, the Administrative Law Judge concluded that the evidence against the man was insufficient to show either a Code of Ethics violation, or that he was “unworthy.”  Thus the ALJ recommended no corrective action.

SBEC disregarded that recommendation.  SBEC liked the ALJ’s fact findings, but disagreed with his conclusions.  Thus it adopted the ALJ’s fact findings, modified two “conclusions of law” and added a third. The upshot of all that action was an order revoking Mr. Montalvo’s certificate, even though there was no “fact finding” that he had violated the Code of Ethics.  SBEC found that Mr. Montalvo had “exceeded the bounds of the proper educator-student relationship and is a person unworthy to instruct or supervise the youth of this state.”

Mr. Montalvo appealed this decision to district court in Travis County, which ruled in his favor.  In fact, the court issued a permanent injunction, barring SBEC from revoking the man’s certificate until all appeals in the case were concluded.

Now the Court of Appeals has weighed in, ruling decisively in favor of SBEC and dissolving that injunction. I looked up Mr. Montalvo’s certificate on December 23rd and it was listed as “valid.” But this may change soon.

The Court of Appeals held that there was “substantial evidence” in the record to support SBEC’s decision.  In particular, the court cited testimony that supported findings of fact that:

*student athletes used a Jacuzzi in Mr. Montalvo’s home, even though they could have used one at the school;

*on one occasion, the student went to Mr. Montalvo’s home alone to use the Jacuzzi;

*Mr. Montalvo gave the student and others rub downs; the head athletic trainer testified that it was OK for a coach to rub down an athlete prior to competition, but not as a form of therapy;

*over a four-month period there were approximately 480 phone calls between Mr. Montalvo and the student, over 80 of them after 10:00 pm.

Notice that there are no fact findings of actual sexual misconduct, and remember: Mr. Montalvo was acquitted by a jury.  Mr. Montalvo argued that there were no findings of “actual wrongdoing” on his part, and that, at most, he had violated guidelines or protocols, rather than ethical standards.  But the Court of Appeals held that an educator can be deemed “unworthy” even when there is no violation of the Code of Ethics.  Key Quote:

However, Rule 249.15 provides a basis for revocation independent of any violation of the Code of Ethics, and the definition of “unworthy to instruct” includes no requirement that the educator violate any rule or policy.  Montalvo further contends that his conduct did not cross the bounds of a proper educator-student relationship because nothing “improper” or of a sexual or romantic nature occurred. But the plain language of Rule 249.15 does not require an “improper” event or actual harm, and it is the duty of the Board to protect the safety and welfare of Texas schoolchildren, which includes assessment of potential harm.

The case is SBEC v. Montalvo, decided by the Texas Court of Appeals, Third District (Austin), on November 24, 2015.  You can find it at 2015 WL 7708947.

DAWG BONE: ALL EDUCATORS NEED TO BE AWARE OF RULE 249.15, WHICH CAN BE USED TO PURGE ALL WHO ARE “UNWORTHY.”

Dawg Bones

Joe Jamail (R.I.P.) would have gone bananas over this case.

We can learn four lessons from a nonrenewal decision issued by former Commissioner Williams.

First, the lawyers had better be ready to jump up and shout “OBJECTION!  HEARSAY!!”  The decision tells us that evidence that could be excluded as “hearsay” is admissible, and can be relied on by the board if it was not objected to at the time it is offered into evidence.

Second, Texas administrative hearings (like nonrenewal hearings before the board) can rely on “liberal” exceptions to the usual hearsay rules.  In this case, this meant that a video statement from a student about a teacher’s wrongdoing was admitted into evidence, even though the teacher’s lawyer never had a chance to cross-examine the student.  The late, great Joe Jamail would have gone nutso over this.  The Commissioner relies on the “liberal” exceptions to the hearsay rule that can be used in administrative hearings.  The student had “disappeared” according to the Commissioner. She could not be found by the district or the police.  If the student had been located, this case may have been decided differently. But since no one could find the kid, the Commissioner held that it was OK to admit into evidence a very damning video statement given by the student that the teacher’s lawyer never had a chance to confront.

Third, teachers facing nonrenewal have the right to cross-examine adverse witnesses, but in the special circumstances of this case, the student on video was not a “witness.”  So the fact that the teacher’s lawyer never got to question her was no big deal.

Fourth, it’s not always going to be a due process violation for two lawyers from the same firm to be involved in the nonrenewal hearing—one for the administration and one for the board.  The Commissioner treats this as a hypothetical issue since teachers facing contract nonrenewal are not entitled to “due process” in the first place, there being no “property interest” at stake.

The case is Manuagwu v. Edgewood ISD, Docket No. 003-R1-09-2015, decided by the Commissioner on November 4, 2015.

DAWG BONE: TEXAS MAY NOT BE “LIBERAL” ABOUT ANYTHING ELSE, BUT WHEN IT COMES TO HEARSAY WE ARE A MATCH FOR BERNIE SANDERS.

Dawg Bones

It’s Toolbox Tuesday! Calling the cops is never a problem….is it?

We like to talk about special ed here on Tuesdays, specifically “The Toolbox.” But before we get into that, let me point out that the law firm is holding an audioconference next week that will be of particular interest to special education staff. On January 13, Nona Mathews and Gigi Maez from our Irving office will conduct an audioconference on “IEEs: What Criteria Can You Have?” This is an issue that Nona and Gigi are particularly experienced with, so I encourage you to sign up for this timely and informative session at www.walshgallegos.com.

The Toolbox is a set of ten tools designed for campus administrators and special education staff for those cases where student behavior is particularly challenging.   To kick off the first Toolbox Tuesday of the year, let’s look back at history, particularly with regard to Tool #10—bringing in law enforcement.

In the early days of our special education laws, some parents argued that schools could no longer contact the police to deal with disruptive behavior from a special education student. The argument was that the police would detain the student, effectively creating a “change of placement.” Thus some early cases asserted that schools could not do this without first holding an IEP Team meeting (ARD) and conducting a manifestation determination.

It might surprise you to know that this argument found favor with one high level court.  In Morgan v. Chris L., 106 F.3d 401 (6th Cir. 1997), the 6th Circuit held that the initiation of juvenile court proceedings was equivalent to seeking a “change of placement” and thus required compliance with the special education law’s procedures, such as an IEP Team meeting.

Congress apparently did not like that outcome, so it changed the law to make it clear that IDEA does not prohibit schools from contacting law enforcement, or initiating juvenile proceedings.  Despite the clarity of that language, some lawyers kept making arguments based on the Morgan case.  For example, consider Valentino v. School District of Philadelphia, 2003 WL 177210 (E.D. Pa. 2003).

What happened here is that the student was arrested at school after a confrontation with a teacher. The parents were not notified of the arrest until 5pm, and the student was detained for 21 hours. The student alleged that the school violated IDEA’s “stay put” provision.  The court ruled in favor of the school.  Key Quotes:

Plaintiff argues that this provision [stay put] prevents any “aversive techniques,” such as arrest, from being used to remove a special education student from his current educational setting. Such a strained conclusion would have the illogical effect of removing all special education students from the reach of law enforcement for any illegal actions taken at school.  This argument cannot be sustained under the language of the statute itself, and accordingly, Plaintiff can prove no set of facts to support this theory.

The court allowed the plaintiff to amend the complaint to spell out the alleged IDEA violations in more detail. The plaintiffs this time raised the issue of a manifestation determination, arguing that the school should have completed this process prior to calling the police.  In 2004, the court rejected this argument:

In light of the above, the Court now concludes that reporting a child with a disability to the appropriate authorities pursuant to [IDEA] does not constitute a change in educational placement and that the provision does not require an administrative hearing before reporting a disabled child to the police.

Note: the “administrative hearing” referred to is a manifestation determination. Thus the court held that calling the police does not trigger a manifestation determination, nor does it amount to a “change of placement” that would invoke the stay put rule.  The second decision is Valentino v. School District of Philadelphia, 2004 WL 225038 (E.D. Pa. 2004).

DAWG BONE: YOU CAN CALL THE COPS. BUT MAKE SURE YOU ARE EVEN-HANDED ABOUT IT.

Dawg Bones

Can a parent possess a gun while he drops his child off at school?

Happy New Year, Readers!!  The Dawg hopes you had a rejuvenating and restful holiday break, and that you woke up this morning eager to take on the challenge of a brand new year.  Whether you woke up in that positive frame of mind or not, 2016 is here. So let’s turn our attention to what happened while you were opening presents and drinking eggnog.  We got an AG’s Opinion about “open carry” and public schools.

Here is the takeaway quote:

In sum, Penal Code subsection 46.03(a)(1) prohibits weapons, including handguns, from places on which a school-sponsored activity is being conducted, which places can include grounds otherwise excluded from the definition of “premises” such as public or private driveways, streets, sidewalks or walkways, parking lots, parking garages, or other parking areas.

We already knew that guns are prohibited inside of school buildings. This Opinion addresses the possession of guns outside of the building but on the grounds. The AG tells us that the key is whether or not a “school-sponsored activity” is being conducted.  In the Opinion, Mr. Paxton says that this is a “fact question” which cannot be resolved through an AG Opinion. But he offers an example:

For instance, if a high school utilizes a school parking lot for a band rehearsal, that parking lot would likely fall within the scope of subsection 46.03(a)(1) prohibiting weapons during the time of the rehearsal.  Yet, the other parking areas at the school where school activities are not occurring would not fall within subsection 46.03(a)(1) and would not be places where weapons are prohibited.

So what about morning drop off and afternoon pick up?  Here comes Harry Handgun, proud owner of a license to carry.  He’s got his gun properly concealed in his car.  He is legal all day long, driving around the State of Texas with his firearm in the car.  He can leave it in the car at his workplace parking lot.  But is it illegal for him to have the concealed weapon in the car with him as he drops his child off at school?

The answer to that question will depend on how the local district defines “school-sponsored activity.”  We expect some districts will define that term to include parent drop off and pick up.  In a district like that, Harry would have to leave the gun at home, or drop his child off just outside of district boundaries. We expect other districts will choose not to adopt a definition quite that expansive, thus permitting Harry to drive onto school grounds with his concealed handgun.

No doubt questions will persist on this, so let us know if we can help you with the crafting of local policy, the rules about signage, or other gun-related issues.

The opinion is KP-0050, issued December 21, 2015.

DAWG BONE: THE SECOND AMENDMENT IS ALIVE AND WELL HERE IN TEXAS.

Dawg Bones

Take a break!

Whew! Hard to believe, but I’ve been doing this Daily Dawg for a year now. Our first entry was January 5th, (Why Subscribing to the Daily Dawg is Like Going to the Dentist) and today is the last entry for calendar year 2015.  Time to take a break, go home, drink eggnog, and be with the family and friends.

I wish you a Merry Christmas and a Happy New Year. See you around the corner in 2016. The Daily Dawg re-appears on January 4th.

DAWG BONE: HAPPIEST OF HAPPY HOLIDAYS!!

Dawg Bones

Commissioner denies appeal from parents of dance team members.

Commissioner Williams concluded that he did not have jurisdiction over the claims brought by the parents of some students on a junior high dance team in the United ISD. In making his ruling, the Commissioner makes several key points.

1. The Commissioner does not have jurisdiction over claims that an educator violated the Texas Educator Code of Ethics. Those should go to SBEC.

2. School boards must adopt a procedure for hearing grievances, but the specifics of that procedure are up to the local board. In particular, the board is not required to allow parties to call or cross examine witnesses.

3. Not firing a teacher is not a violation of the Education Code, since the authority to discharge the teacher is permissive, not mandatory.

4. Grieving parties have to “explain to the school board at the local level how the school district has violated the Texas Education Code with sufficient clarity to allow the school board to decide whether a violation occurred.” If the grieving party fails to do that, the party has not “exhausted administrative remedies.”

5. Retaliating against a parent for filing a grievance is a violation of T.E.C. 26.001(a). But the Commissioner held that retaliation did not occur here. Instead, the local board granted the part of the parents’ grievance asking that their children be protected from retaliation.

DAWG BONE: HANDLE YOUR GRIEVANCE PROCEDURES WITH CARE