Category Archives: Dawg Bones

Dawg Bones

Dear Dawg: Lubbock ISD won’t allow Jesus to show up on the jumbotron. I wouldn’t want to be them when He shows up on Judgment Day! What were they thinking????? SINKILLER OF WEST TEXAS

Dear Sinkiller:  Calm down, my friend.   They love Jesus in Lubbock.  They just don’t like tattoos. What happened was a group called “Little Pencil, L.L.C.” (don’t ask) wanted to display an ad on the jumbotron at the football field. The ad featured Jesus, alright, but he was very extensively tattooed. We’re not sure that tattoo art was available in the early A.D. years, but regardless of its historical accuracy, Lubbock turned down the ad. But they did it because of the tattoos—not because of Jesus. So if they get questioned about this when the sheep and goats are being separated, I’m confident that the spokesperson for the district will be able to say: “It’s not that we don’t like Jesus.  We just don’t like tattoos.”

The district turned down the ad because tattoo parlors in Texas may not serve minors, and the district had a “no visible tattoos” policy. The court held that the district’s rationale was “reasonable.”  It was “content based” but “viewpoint neutral.”

It helped the district’s cause that it accepted other religious advertising.  This indicated to the court that the district was not hostile to religion, just the tattoos.  The court held that the jumbotron was not a place for wide open and free discussion.  Instead, it was a “limited public forum,” which meant that the district could impose reasonable restrictions on the ads it would accept.

The case is Little Pencil, L.L.C. v. Lubbock ISD, decided by the 5th Circuit on September 23, 2015.  You can find the case at 2015 WL 5601316.

DAWG BONE: MAKE NO MISTAKE: LUBBOCK LOVES JESUS, BUT THEY ARE NOT TOO COOL WITH TATTOOS.

Dawg Bones

Dear Dawg: I’ve applied for SEVEN different jobs and they haven’t even given me an interview! After 38 years in the business, I know age discrimination when I see it. What do you think???? TIRED IN TUPELO.

The Tupelo Public School District decided to “outsource” services to the Fillmore Center, an alternative school in May, 2010. The entire staff was let go, and told to apply for available positions elsewhere in the district.  Just one year later, the district dumped the outsourced company, and opened up all the jobs at Fillmore. The former director of the program was re-hired, but his assistant, Mary Alice Stennett, was not. Ms. Stennett, then 66 years old, with beaucoup administrative certifications and 38 years of experience (20 in Tupelo) inquired about a job at Fillmore, and formally applied for seven other positions that were available within the district.

She got two interviews, and no offers.  Each of the seven jobs went to someone much younger.  Ms. Stennett also noticed that none of the four oldest employees from Fillmore found fulltime work anywhere in the district.  She sued, alleging age discrimination.

The federal district court tossed the case out, granting summary judgment in favor of the district. The 5th Circuit reversed, and its ruling is a must read for HR directors.

The court held that Ms. Stennett had established a “prima facie” case, and supplemented that with sufficient evidence to cast serious doubt on the district’s claim that age had nothing to do with it.  The “prima facie” part of this is not too hard to establish.  Ms. Stennett had to show that 1) she was rejected for a job that she applied for; 2) she was qualified for the job; 3) she was over 40; and 4) they hired someone “substantially younger.”  Ms. Stennett made her “prima facie” case seven times, based on the seven open jobs she did not get.

On top of that, the court cited four factors that cast doubt on the district’s position. First, Ms. Stennett produced “comparatively exemplary qualifications” for the seven jobs. The court cited her three advanced degrees, four administrative and teaching certifications, 38 years of experience and 20 within Tupelo. The court concluded that “measured in terms of education and experience, Stennett was more qualified than each of the successful younger applicants, except one.”

Second, the court noted with emphasis the district’s refusal to even interview Ms. Stennett for five of the seven jobs.  Given her experience and credentials, this did not appear to make sense.

Third, the court observed that the district explained its decisions based on criteria that was not listed in the job postings. For example, one principal noted that she favored another applicant over Ms. Stennett because of the applicant’s background in STEM. The job posting said nothing about that.

Fourth, the court noted that Ms. Stennett was just one of four old fogeys at Fillmore who did not land another fulltime job.

Ms. Stennett has not won her lawsuit. But her victory at the 5th Circuit, reversing the lower court’s decision in favor of the district, certainly moves her in the right direction, jacks up the cost of an out of court settlement.

For people involved in the hiring process, this is a great case study. The case is Stennett v. Tupelo Public School District, decided by the 5th Circuit on July 30, 2015.  You can find it at 2015 WL 4569205.

DAWG BONE: IF SHE’S GOT A LOT OF EXPERIENCE AND CREDENTIALS, MAYBE IT WOULD BE GOOD IDEA TO GIVE THE OLD GAL AN INTERVIEW.

Dawg Bones

Open carry. Concealed carry. Let’s see what the AG has to say.

Senator Whitmire has asked the Attorney General to clear up the confusion about open and concealed carry on the premises of Texas public schools.  It’s clear that people cannot possess a firearm within a school building unless they have the OK from the school to do so. But with regard to parking lots, grounds, sidewalks and all that open space, it’s not so clear.

Much of the ambiguity in our new laws focuses on the language in the law prohibiting weapons “on any grounds….on which an activity sponsored by a school or educational institution is being conducted.”  Whitmire’s question points out that:

School classes, educational activities, band activities, etc., are all activities sponsored by the school district.  The “grounds” needed, or being used, to conduct the activities include the sidewalks, walkways, driveways and parking lots of the schools. These are all necessary grounds being used so that the activities sponsored by the school can be performed.

The ball is in Ken Paxton’s court. Stay tuned.

DAWG BONE: THE A.G. WILL OPINE ABOUT GUNS AND SCHOOLS.

Dawg Bones

It’s Toolbox Tuesday! Tell us about Tool #8.

The Toolbox is designed to help school administrators comply with our special education laws, while maintaining a safe and orderly environment for all students.   This week we focus on Tool #8: a short term removal that goes beyond the FAPE Free Zone.

School administrators can unilaterally remove a student from the classroom in which the IEP places the student for disciplinary reasons, but only for a cumulative total of ten school days in the year. This is what we call the FAPE Free Zone (Tool #7, discussed last Tuesday).   Life gets complicated after that.  However, school administrators retain the authority to order short term removals of a student even after the FAPE Free Zone is exhausted, provided that they do it in the right way.

If a principal orders a disciplinary removal after 10 days of removal, she must consider whether or not the cumulative action amounts to a “change of placement”; and 2) provide any necessary services, after consultation with one of the child’s teachers.  Thus there is a change in the school’s legal duty once you get past the FFZ.

Here is a quote from the regulations that authorizes short term removals by a school administrator even after your 10 days have been exhausted:

School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities, AND FOR ADDITIONAL REMOVALS OF NOT MORE THAN 10 CONSECUTIVE SCHOOL DAYS IN THAT SAME SCHOOL YEAR FOR SEPARATE INCIDENTS OF MISCONDUCT (AS LONG AS THOSE REMOVALS DO NOT CONSTITUTE A CHANGE OF PLACEMENT UNDER 300.536).  34 CFR 300.530(b)(1).

Notice four things about this federal regulation:

1. It authorizes “school personnel” to do this—not the IEP Team (ARD).  The term “school personnel” refers to the campus administrator.

2. The first part of the regulation is describing the FAPE Free Zone, Tool #7.

3. The second part, which we put in BOLD CAPS, is where we find Tool #8.  Notice that it speaks of “additional” removals due to a “separate” incident of misconduct within the same school year.

4. Your use of this tool is contingent on it not being a change of placement.

Here’s where Tool #8 is most commonly used: a student commits an offense that calls for long term removal to the DAEP.  This would definitely be a change of placement, and thus an ARDC meeting is necessary.  The principal thinks it best that the student be removed from the student’s regular classroom pending the ARDC meeting, but the ten days have already been used up. What to do?

The principal can use Tool #8 to order a short term removal.  However, he has to consult with one of the student’s teachers about how services will be delivered to the student during this short period of time. Remember: these days are not FAPE Free—and thus the student must be served in some way.

Tool #8 is complicated, and we spend a considerable amount of time reviewing it to ensure understanding in our Toolbox workshops. We also practice with hypothetical cases so that participants can see how this tool works in practice.   I will be presenting the Toolbox in Region 3 tomorrow, Region 10 on Thursday, and Region 7 on October 29.

If you are interested in a Toolbox workshop, contact me at jwalsh@wabsa.com, or Haley Armitage at harmitage@wabsa.com.

DAWG BONE: TOOL #8 IS USED BY THE PRINCIPAL, IN CONSULTATION WITH A TEACHER, FOR A SHORT TERM REMOVAL AFTER THE FAPE FREE ZONE.

Dawg Bones

Happy Columbus Day!

Today we celebrate a man who did not know where he was going, and when he got there, did not know where he was.  This should give hope to all of us.  Do you find yourself confused today?  Going in circles, maybe?  Perhaps you don’t know how you landed in the strange place you find yourself?  Be of good cheer.  Perhaps you will later be celebrated as a great discoverer.

DAWG BONE: CONSIDER THIS: IF COLUMBUS REALIZED THAT HE WAS IN AMERICA, NOT INDIA, HE WOULD HAVE NAMED THE NATIVES “AMERICANS.”  SO MAYBE THE TERM “NATIVE AMERICAN” IS NOT JUST POLITICALLY CORRECT—IT’S ALSO GEOGRAPHICALLY CORRECT.

Dawg Bones

WHAT WOMAN SHOULD WE PUT ON THE $10 BILL?

I’m sure you know by now that the feds are planning to put a female face on the $10 bill.  In my Back to School Tour this year I polled the participants to see who they would nominate.  Unfortunately, I did not come up with this brilliant idea until we were halfway through the tour, so I don’t know what they think in Regions 2, 7, 8 or 20. But we got some good nominees after that.

Rosa Parks and Eleanor Roosevelt were mentioned a lot.  One guy nominated his wife and another named his mother.  We got one nomination of Christie Brinkley, which prompted me to remind people that this will not be a cheesecake photo—just a head shot.   We also got nominations for people who are not Americans--Mother Theresa and the Blessed Virgin Mary.  I want to make it clear that I have all the respect in the world for both of them, but I think the American sawbuck should feature an American.

I think the $10 bill should honor a teacher.  Don’t you think?  Who would you nominate? Send your nominees to jwalsh@wabsa.com. We’ll let you know how this comes out.

DAWG BONE: LET’S START A CAMPAIGN FOR A TEACHER ON THE TEN.

Dawg Bones

GOT ANY SERVICE ANIMALS IN YOUR SCHOOL?

Many of you have heard me make the observation that in special education litigation, courts are always assessing the “reasonableness” of the parties. I recently came across a ruling by the Department of Justice that provides a good example of a situation where it appears that the school district came across as the unreasonable party, even though the school was applying the law exactly as it is written.

The ruling arose in an investigation by the Department of Justice regarding a school district’s refusal to allow a student to bring a service dog to school unless the parent provided an adult handler for the dog.  The DOJ found the school in violation of the ADA and ordered it to modify its policies and practices to permit the student to use the dog, even though it would require some minimal assistance from school staff.

This report includes a detailed analysis of the facts. The dog required minimal attention and the child already had a 1:1 aide accompanying her all day long who could assist with the dog.  There was no question that the dog was helpful, including detecting seizures in advance.  Significantly, the child had had the dog with her at school for four years without incident. In pre-school, the dog accompanied the child without an adult handler. When the child went to kindergarten, the district insisted that the parent must provide a handler.  The federal regulations require that the person who needs the service animal must be able to “handle” the animal. Since this child was unable to do that independently, the school asserted that the parent had to pay for an adult to handle the dog.  Given all of the facts, however, the DOJ concluded that the ADA requires the district to allow the dog to accompany the child without a separate adult handler.

It’s dangerous for a district to discontinue providing an accommodation unless there is an obvious reason for the change.  The ruling came in Re: Gates-Chili Central School District, 65 IDELR 152 (DOJ, 2015).

DAWG BONE: THINK TWICE BEFORE YOU DISCONTINUE AN ACCOMMODATION THAT HAS BEEN PROVIDED. 

Dawg Bones

BE THE FIRST IN YOUR COUNTY TO BE AN INNOVATION DISTRICT!

HB 1842, enacted by the 2015 legislature, is worth a good look.  The bill gives your district the opportunity to become an “Innovation District” if your current accountability rating is “met standard.” The selling point is that an Innovation District is sort of a “charter school lite.”  Innovation Districts can seek exemption from some state requirements. Of course you cannot be exempt from curriculum, testing or accountability requirements, or the dictates of federal law.

The bill creates a brand new chapter of the Texas Education Code: Chapter 12A.  It outlines a process the district must pursue to obtain Innovation status.  Someone in your district ought to take a look.

DAWG BONE: WHAT DISTRICT WILL BE THE FIRST INNOVATION DISTRICT IN THE STATE?

Dawg Bones

IT’S TOOLBOX TUESDAY! TELL US ABOUT TOOL #7!

The Toolbox is a set of 10 “tools” that school officials can use to address discipline problems with students with disabilities.  The Toolbox provides a framework and a common vocabulary designed to assist you in serving each child appropriately while also providing a safe and orderly school environment.

Tool #7 is the FAPE Free Zone! You will not find that term in the law or the regulations.  But you will find a statement that schools are required to provide FAPE to “children with disabilities who have been suspended or expelled from school.”   34 CFR 300.101(a).  Thus the general rule is that kids are entitled to FAPE even when they are suspended or expelled.  However, another regulation carves out a small exception to that general rule.  34 CFR 300.530(d)(3) says that schools are required to provide services to kids who are removed from their current placement for 10 days or less in the school year only “if it provides services to a child without disabilities who is similarly removed.”

Thus a student with a disability may be suspended out of school, without the provision of services, for up to ten cumulative days during the school year, so long as the general education student would be treated the same.  FAPE is not required for those ten days: thus, a FAPE Free Zone.

Keep in mind that Texas limits out of school suspension to three days per offense. A student with a disability could be suspended out of school on three occasions for three days at a time. This would amount to nine days and the student would still be within the FAPE Free Zone. The law would not require you to provide services. We would suggest, however, that good practice would call for you to take a look at what’s going on.  It would probably be a good idea to craft a behavior plan or in some other proactive way address the student’s misconduct.

The FAPE Free Zone is there when you need it, but should not be used lightly.  The emphasis is on keeping students in school and using a removal from the IEP placement only when necessary. But Tool #7 is there for you when a short term removal from services is called for.

In the Toolbox training we spend a good bit of time going over what days count toward the 10-day limit.  If you are interested in the Toolbox training, contact me or Haley Armitage at the law firm. We’d love to spend a day with you going over all ten tools.

Be sure to check in next Tuesday for Tool #8.  Anytime we talk about the FAPE Free Zone we get the question: “OK, but what if we go past ten?” That’s what Tool #8 is about. Stay tuned.

DAWG BONE: TOOL #7 IS THE FAPE FREE ZONE, TO BE USED CAUTIOUSLY AND ONLY AS NEEDED.

Dawg Bones

WHAT GOES INTO A LESSON PLAN?

I learned more than I wanted to know about lesson plans from Ysleta ISD v. Porter.  This turned into a major brouhaha between the district and some teachers over the level of detail the district can require teachers to produce in a lesson plan. It’s a complicated decision, parsing every syllable of Texas Education Code 11.164(a)(6). That statute is entitled “Restricting Written Information.”  The statute is designed to protect teachers from overly burdensome paperwork requirements, but it identifies 10 broad categories of reports that a district can require.  Among those are:

A unit or weekly lesson plan that outlines, in a brief and general manner, the information to be presented during each period at the secondary level or in each subject or topic at the elementary level.  T.E.C. 11.164(a)(6).

Of course when you use subjective terms like “brief and general” in a statute, you are just inviting litigation. And so it came. When the district mandated lesson plans at Hanks High School that included TEKS objective, TAKS objectives, the cognitive level of the lesson, and the “differentiated activities” for special populations, some teachers objected.

The bottom line is that the court held that it was OK to require the TAKS and TEKS objectives, not OK to require the cognitive level, and the district agreed to drop the “differentiated activities” component.

It’s a difficult case to read, as it involves reviewing the decision of the trial court that reversed the Commissioner who upheld the district’s position.  That type of judicial cartwheeling makes for hard reading. But if your teachers are complaining about lesson plans, you ought to take a look at Ysleta ISD v. Porter, decided by the 13th Court of Civil Appeals in Corpus Christi on April 13, 2015. The case is at 2015 WL 1735542.

DAWG BONE: NO ONE LIKES PAPERWORK, BUT YOU HAVE TO TURN IN THOSE LESSON PLANS.