DEAR DAWG: I guess I owe this to the creative students at the University of Texas who are protesting the new "campus carry" laws. They plan to display dildos (dildoes?) on their backpacks as a protest.  According to the Facebook page set up in support of this event, students are being asked to strap "gigantic swinging dildos" to their backpacks.  The organizer claims that these sex toys will be "just about as effective at protecting us from sociopathic shooters, but much safer for recreational use."

Somehow, I doubt that this protest movement will make its way to Baylor.

But it has come to our high school. We have a student organization called Bevo Wannabes--kids who are aiming for the top 7% so they can get into UT Austin. They got wind of this plan and thought if this is what the cool kids are doing at Hook Em Horns U, then they should get into the action.

So I am told that next Monday some of our students will be engaging in "open carry" of plastic phalluses (phalli?). I talked to the leader of the group, a smart girl who plans to be a lawyer. I got this response by email:

SUBSTANTIVELY, THERE IS NO DIFFERENCE BETWEEN A BLACK ARMBAND WORN TO PROTEST THE WAR IN VIETNAM AND A 12-INCH DILDO SWINGING FROM MY BACKPACK TO PROTEST OUR "OPEN CARRY" LAWS. WE WILL BE PEACEFUL, QUIET AND NON-DISRUPTIVE.  I'M SURE YOU ARE AWARE OF THE SUPREME COURT'S LANDMARK RULING IN TINKER v. DES MOINES.  ANY INTERFERENCE WITH OUR CONSTITUTIONAL RIGHTS WILL LEAD TO LITIGATION.

So my question: what's the difference between an armband and a dildo? NEED HELP HERE.

DEAR NEED HELP:

Hmmm. Interesting situation you have there, and that girl shows a lot of promise as a lawyer.  But there are differences.  We doubt that your Code of Conduct explicitly prohibits the open display of sex toys.  Until now, you probably thought such a statement was unnecessary.  But here we are.  Even though your Code probably doesn't specifically use words like “sex toys” or, God forbid, “dildos,” it probably has some more general language about the display of items likely to cause disruption.  The open display of a fake sex organ, especially an oversized one, might even be seen as creating a hostile environment for students, particularly those who have never seen such a thing and don't know what possible uses it might have.  We think you can tell these kids not to do this.  Call us Old School if you will, but we think that Mary Beth Tinker her own self would probably say.....no. That's really not OK.

The fact that UT will probably allow this has no bearing.  What they do at “Sodom and Gomorrah on the Colorado” has no relevance here.

DAWG BONE: WE ARE AT A LOSS FOR WORDS ON TODAY’S DAWG BONE.

A Texas Court of Appeals has held that the surreptitious audio recording of a coach’s remarks to his players in the locker room is not an illegal act of “wiretapping.” Nor does it infringe on the coach’s right of privacy.  But the court’s ruling goes beyond the locker room, right into the classroom as well. Here is the Key Quote:

From the preceding authority, we can extrapolate that society is not willing to recognize that a public school educator—whether a teacher or a coach—has a reasonable expectation of privacy in his or her instructional communications and activities, regardless of where they occur, because they are always subject to public dissemination and generally exposed to the public view.

Thus a student who secretly records a teacher in the classroom, according to this opinion, is not infringing on the teacher’s rights.

This came up in a case from Argyle ISD, where there were concerns about the girls’ basketball coach.  The daughter of a school board member in Argyle taped an iPhone to a locker in the locker room and recorded some of the coach’s remarks at halftime and after the game. The recording was later distributed to other members of the school board as they considered the coach’s probationary contract.  The Argyle superintendent, however, turned the recordings over to the police, and the board member was charged with illegal wiretapping by “procuring her daughter” to record the speeches. The board member was tried, found guilty and sentenced to five years’ confinement, probated for three years, plus a $1,000 fine.

The Court of Appeals reversed the conviction. In so doing, the court relied on its conclusion that the coach had no “reasonable expectation that his intercepted communication was private.”

Does this mean that kids are free to secretly record the teacher in the classroom?  No. It means that such action would not violate the teacher’s right to privacy or amount to a criminal act of wiretapping—if it is only the teacher who is recorded.  But recording in a classroom will rarely involve just the teacher—there are other students involved, and presumably their “reasonable expectation of privacy” is more expansive than the teacher’s. Moreover, schools can adopt policies and rules about recording, including a prohibition of any secret recording.

We noted via a bit of Internet research that the board member is no longer on the board, the coach is now the girls’ A.D., and the team won the state championship last year.  So I guess that probationary contract got renewed.

The case is Long v. State of Texas, decided by the Court of Appeals in El Paso, Texas on June 30, 2015.  We found it at 2015 WL 3984950.

DAWG BONE: TOO BAD WE DIDN’T KNOW THIS WHEN BOBBY KNIGHT WAS COACHING

The 5^th Circuit Court of Appeals affirmed a judgment in favor of Marion ISD and two of its employees in a case based on allegations of ugly racial harassment. The court held that the district could not be held liable for what students did to other students unless there was some evidence of deliberate indifference on the part of the school officials.  “The evidence here,” the court noted, “even when viewed in the light most favorable to the Plaintiffs, fails to raise a genuine dispute” about the district’s responsiveness.

The allegations of racial harassment in this case are ugly.  But the court pointed out that the racial harassment did not come from school officials—it came from other students.  And when it learned of what was happening, the school district responded, including taking “relatively strong action to address the most egregious incidents.”

The most shocking incident involved a threatening, vulgar and racially offensive note left next to the car of one of the plaintiffs in the school parking lot.  Just to make sure the message got across, the person who did this also left a noose for the plaintiff to find.

The school never found out who did this, but it wasn’t for lack of trying.  After the plaintiff informed the assistant principal about this incident, the A.P. reviewed surveillance tape of the parking lot. It did not cover the area of the parking lot where this occurred. The A.P. also turned the matter over the police. The police interviewed several school employees and each of the students that the plaintiff suspected may have been involved.  The FBI got involved also, and the court noted that “Marion ISD cooperated with the police and FBI investigations of the incident.”

The district also took steps to accommodate the student who was the victim:

After the parking lot noose incident, Marion ISD provided Plaintiffs with various accommodations, including allowing [the student] to park in the teacher’s parking lot and complete school work in the counselor’s office, and providing [another plaintiff/student] with an aide to walk her to the high school.

It’s important to keep in mind that this was a “student-to-student” harassment case. Thus the plaintiff sought to impose liability on the school district not based on what the school district did directly.  Rather, the argument is that the district should be held responsible for what students did to other students.  In a case like that, the plaintiff has to prove 1) that the harassment was severe, pervasive and objectively offensive to the point that it deprived the victim of access to educational opportunities or benefits; 2) that the district knew about it; 3) that the district had control over the harasser and the environment where it occurred; 4) that the harassment was based on race; and 5) that the district was deliberately indifferent to the harassment.

The court concluded that no reasonable jury could conclude that the district was “deliberately indifferent.” Case dismissed.

Of course the best way to show that you are not “deliberately indifferent” to harassment based on race, sex, religion or disability is to show that you are proactively seeking to prevent any such misconduct.  Proof of how the district responds to harassment that it learns of is important, but equally important and helpful is proof of the training the district provides to create a culture where such harassment will not take place.  Marion ISD “required its employees to attend additional training on the district’s discrimination, harassment and bullying policies, and it required students to attend a special assembly on the same topics.”

Good for Marion.  The case is Fennell v. Marion ISD, decided by the 5^th Circuit Court of Appeals on October 13, 2015. We found it at 2015 WL 5944434.

DAWG BONE: THE BEST WAY TO SHOW YOU ARE NOT “DELIBERATELY INDIFFERENT” IS TO SHOW THAT YOU REALLY CARE

The Toolbox is a set of 10 “tools” designed to help you meet the needs of students with disabilities who are seriously disruptive, while maintaining a safe and orderly campus at the same time. We have been reviewing the tools over the past 10 Tuesdays, and today we come to the final tool—calling in law enforcement.

It may surprise you to hear that there was, at first, some controversy about this. In the early days of special education law, there were cases in which parents argued that school officials could not refer students to the police after commission of a crime. The argument was that schools brought in law enforcement in an effort to circumvent legal procedures-- trying to change the child’s placement without going through the ARD Committee.

In response, Congress amended the law to explicitly authorize referrals to law enforcement. We now have this language in regulations at 34 CFR 300.535:

Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.

The key to Tool #10 is to be evenhanded.  Campus administrators should call in law enforcement in a non-discriminatory manner.  Would you be calling the cops about this incident if it involved a non-disabled student?

There has been much criticism of public schools of late for a perceived over reliance on law enforcement.  Authority to issue tickets and citations for minor offenses has been curtailed.  But no one questions the authority of a principal to contact the police when we have evidence of a serious crime.  That’s that Tool #`10 is about.

In the all-day Toolbox Training, we go over Tool #10 along with all of the others, and provide hypothetical cases for participants to practice with.  If you are interested in a Toolbox training, please let me know, or contact Haley Armitage at the law firm (harmitage@wabsa.com).

I can’t imagine what we will talk about next Tuesday!

DAWG BONE:  TOOL #10—BE EVENHANDED ABOUT IT.

I once heard a longtime Family Court judge tell a roomful of teachers that it was the teacher’s testimony that she valued the most in a custody dispute.  “Oftentimes,” the judge told them, “the teacher is the only objective witness—the only one whose sole interest is the child.”

That may be true, but still, it is stressful when school officials get brought into a family dispute over custody, or access, or attendance at meetings, or who can have lunch with the child.

That’s why our firm is offering an audio conference on this subject:

ALL IN THE FAMILY: DEALING WITH FAMILY LAW ISSUES THAT IMPACT SCHOOL DISTRICTS

Attorneys Elizabeth Neally and Leandra Ortiz will present this audio conference on November 10 at 10:00 a.m.  This is an excellent opportunity for your staff to receive up to date training on this complex area of law.  Go to the firm’s website to sign up: www.walshgallegos.com.

DAWG BONE: IF YOU’RE A CAMPUS ADMINISTRATOR YOU NEED TO KNOW THE BASICS OF FAMILY LAW.

Dear Dawg: I like reptiles just as much as the next fellow, I suppose, but I'm just not so sure about a lizard in the classroom.  I mean a loose lizard--not one in the cage for the kids to study.  We have a dad who insists that his daughter should be able to bring Lucy the Lizard to class.  Lucy, we are told, will be on a leash and will sit on the little girl's shoulder all day.  Doesn't eat much, Lucy, and we are told she is housebroken. No lizard poop to clean up. The dad insists that Lucy will be no trouble, and she will have a "salutary effect" (his words, not mine) on his daughter's "somewhat tempestuous disposition" (his words, not mine).

Two questions, Dawg.  Do we have to do this? What does "salutary" mean? Sounds like "saliva" to me. DON'T WANT ANY LIZARD SPIT AROUND HERE.

DEAR DON'T WANT ANY:

Housebroken or not, on a leash or loose, spitting or not...makes no difference.  A lizard is not a service animal. First of all, a service animal has to be a dog (or dawg) or a miniature horse. Secondly, a service animal has to "do work" to help the person with a disability.  Lucy may be of comfort, but that is not "work." Just ask this dad what kind of "work" this prehistoric, small brained creature can do. Sheesh.

DAWG BONE: A LIZARD IS NOT A SERVICE ANIMAL.

The Toolbox is a set of practical steps that campus administrators can take in dealing with violent or disruptive students with disabilities.  The law imposes two requirements on schools in serving such students.  We must serve the student appropriately, while maintaining a safe and orderly environment for all the students. This week we focus on Tool #9--leadership at the non-consensus ARD meeting.

This tool is necessary because there will inevitably be times when the school and the parents are not able to come to an agreement as to how, or where, the student will be served.  These disagreements will come up at ARD meetings. The person serving as administrative representative--usually a principal or assistant--needs to have the skills to bring the meeting to closure, even though it will not come to consensus.

Let's consider a common example. The student has committed a serious violation of the Code of Conduct. The teachers and other school personnel are all of the opinion that the student's disability did not cause the student's misconduct.  However, the parent disagrees.  The issue has been discussed long enough that it is clear that neither side is going to budge.

The first thing to keep in mind is that is it OK that ARD Committees will sometimes end the meeting in non-consensus.  In fact, it is expected.  This why we have rules that address the non-consensus meeting.  So don't be afraid of a disagreement.

However, the administrator should ask herself "the three questions" before steering the group toward a non-consensus closure. Those questions are:

1. Is this worth fighting over?

2. Is the school's position legally defensible?

3. Is the school staff united?

If the answer to all three questions is "yes" then it would be appropriate for the administrator who is leading the meeting to bring the meeting to closure.

In our Toolbox workshops we discuss this topic in more detail, and review practical scenarios in which Tool #9 would be useful.  We study the two "stay put" rules and figure out which one applies to a given situation, and what the implications of that are.

If you are interested in bringing the Toolbox to your district or Service Center, please contact me, or Haley Armitage (harmitage@wabsa.com) at our law firm.

DAWG BONE: BRING THE ARD TO CLOSURE WITHOUT CONSENSUS ONLY AFTER ANSWERING THE THREE QUESTIONS.

Dear Dawg: We have a 7th grader who aspires to be a member of the U.S. Supreme Court. the kid reads court opinions during lunch, and speaks in unintelligible legalese half the time.  And he takes great pleasure in being provocative.

So yesterday he pulled a Texas flag out of his backpack and set it on fire on the playground during lunchtime.  Needless to say, this caused a commotion and the assistant principal sent the kid to ISS for the rest of the day. Now Mr. Smartypants is saying that the Texas Court of Criminal Appeals has held that he has a constitutional right to burn the Texas flag. He asked us, "haven't you read Judge Keller's opinion in State of Texas v. Johnson?". What's he talking about?. I HATE LAWYERS ANYWAY.

DEAR I HATE LAWYERS ANYWAY,

The kid is current, but he's wrong.  The Texas Court of Criminal Appeals released its decision in State of Texas v. Johnson on October 7, 2015.  They declared unconstitutional the Texas statute that made it a crime to intentionally damage a U.S. or Texas flag. The court held that the statute was "overbroad" and therefore unconstitutional. So the prosecution of Mr. Johnson could not proceed.  Likewise, Mr. Smartypants, your future lawyer cannot be prosecuted under that statute.

That doesn't mean that there is a constitutional right to burn or otherwise damage the flag anywhere, anytime.  We expect you would consider it a violation of the Code of Conduct to set fire to anything while on the school playground. Fire is dangerous, especially when kids are around. You are not prosecuting him for damaging a flag under the Texas Penal Code.  You are enforcing your code of conduct's rules about setting fire to things.

The U.S. Supreme Court long ago determined that burning an American flag can be a form of expression, and thus it shot down the Texas statute regarding flag desecration. But again, that doesn't mean that a person can burn a flag anywhere, anytime.

Here's a weird tidbit for you. Both of these cases are styled Texas v. Johnson. The U.S. Supreme Court decided Texas v. Johnson in 1989. The Texas Court of Criminal Appeals decided Texas v. Johnson October 7, 2015.  Looks like the State of Texas ought to just leave Mr. Johnson alone.

This kid isn't named Johnson, is he?

DAWG BONE: TEXAS HIGH COURT STRIKES DOWN "DAMAGING A FLAG" STATUTE.  BUT YOU STILL CAN'T BURN A FLAG ON THE PLAYGROUND DURING SCHOOL.