Category Archives: Dawg Bones

Dawg Bones

LET’S ALL GO TO THE TASA/TASB CONVENTION!

For people who love Texas public schools this is a banner day.  The TASA/TASB Convention kicks off today, right here in River City, the New Jerusalem on the Colorado, the People’s Republic of Austin.  So welcome to all of you who will be traveling here today.

This afternoon, Joey Moore and I will be speaking on Ten Things School Board Members Need to Know About Personnel Issues.  Tomorrow morning it will be my privilege to welcome those of you who attend the annual skit written, produced and performed by the TASB Legal Staff. I will be pleased over the next two days to see old friends, make new ones, and take in the positive energy generated by thousands of public school advocates gathered in one place.

Be sure to stop by our firm’s booth, say hi and pick up some SWAG. We will be at Booth 1620.  And then, of course, there is the annual reception sponsored by Walsh Gallegos Trevino Russo and Kyle. Be there or be square!  5:00 to 6:30 at Fleming’s.  The first drink is on me.

DAWG BONE: TASA/TASB ROCKS THE CAPITAL CITY.

Dawg Bones

IT’S STILL HOT AROUND HERE!! CAN I DRIVE THE AIR CONDITIONED BUS?

We do look for fall to befall us sometime this month, but it has been known to stay mighty hot in Texas in late September and early October. So we read with interest the recent 11th Circuit decision about the bus driver who requested a transfer to an air conditioned bus.  When this request was not granted, the driver sued, alleging racial discrimination, illegal retaliation, and a failure to accommodate her disability.

The 11th Circuit found possible merit in only one of those theories—the one based on disability. In the muggy heat of August in Atlanta the driver alleged that she had to pull over to the side of the road due to shortness of breath. Two medical opinions bolstered her case, stating that her difficulty breathing during extreme weather was indicative of a physical impairment.

The school district claimed that it could not accommodate this request. It had some buses with AC, but they were all spoken for by drivers with more seniority.  The Americans with Disabilities Act requires employers and governmental entities to “reasonably accommodate” people with disabilities unless doing so would cause “undue hardship” to the employer. The court noted that the plaintiff had previously driven an air conditioned bus, and “so it is difficult to understand how reassignment would upset the bus-allocation process in such a way as to cause undue hardship.”

This case has a long way to go, but at this stage, the court has held that the plaintiff should have her day in court.  Her allegations create fact issues that a judge or jury will need to sort out.

So what can we learn from this case?  Pay attention to medical reports you receive that indicate that an employee has a “physical or mental impairment” that substantially limits them in a “major life activity.” I think we can all agree that breathing ranks right at the top of “major life activities.”  If you get such a report, get creative and flexible in devising “reasonable accommodations” that will enable the employee to continue to work.

The case is Hill v. Clayton County School District, decided by the 11th Circuit Court of Appeals on August 7, 2015. You can find the case at 2015 WL 4663755.

DAWG BONE: SWITCHING THE DRIVER TO A BUS WITH A.C. MIGHT BE A “REASONABLE ACCOMMODATION.”

Dawg Bones

CAN A TEACHER BE FIRED FOR REFERRING TO STUDENTS AS “SPAWN OF THE DEVIL” “UTTERLY LOATHSOME” AND “NOWHERE NEAR AS GOOD AS HER SIBLING”????

You won’t be surprised to hear that this is about an English teacher, a woman with a good vocabulary and a colorful writing style.  At first, her blog was a private affair, read by less than a dozen people. But you know how these things work.  It was not password protected, and so….people discovered it. The media discovered it.  The superintendent got a call that probably caught him off guard: Have you read some of the comments Ms. Munroe has made about her students?

The blog was entitled “Where Are We Going and Why Are We In This Handbasket?”  The blog post that drew the most attention featured a depiction of a school bus with a “Short Bus” sign and the following heading: “I DON’T CARE IF YOU LICK THE WINDOWS, TAKE THE SPECIAL BUS OR OCCASIONALLY PEE ON YOURSELF….YOU HANG IN THERE, SUNSHINE; YOU’RE FRIGGIN SPECIAL.”

The blog then included a number of comments Ms. Munroe would like to have included on student report cards. Things like this:

A complete and utter jerk in all ways.

Gimme an A.I.R.H.E.A.D.  What’s that spell?  Your kid!

Just as bad as his sibling. Don’t you know how to raise kids?

Dresses like a street walker.

Whiny, simpering grade-grubber with an unrealistically high perception of own ability level.

Rude, belligerent, argumentative fuck.

Liar and cheater.

Utterly loathsome in all imaginable ways.

There’s no other way to say this.  I hate your kid.

It took the school district more than a year to do it, but they terminated this teacher.  The district asserted in court that her blog posts had nothing to do with it.  That’s hard to believe, seeing as how the district also asserted that the blog posts caused a major disruption of school operations, with students “livid” and large numbers of parents opting their kids out of Ms. Munroe’s classes.

In the end, it didn’t matter. The court held that the blog posts were not constitutionally protected speech.  Therefore, even if the district did fire her because of her comments, the district was on safe ground legally.  The court emphasized the importance of the teacher/student/parent relationship. There must be trust, based on mutual respect. Thus the court concluded that the district legitimately concluded that Ms. Munroe had fractured that relationship of trust.  Key Quotes:

We find that Munroe’s various expressions of hostility and disgust against her students would disrupt her duties as a high school teacher and the functioning of the School District.

Referring to the “…YOU HANG IN THERE, SUNSHINE” remark, the court said:

Even if intended as a comedic exercise, such characterizations speak for themselves. Simply put, they were despicable.

In these days of social media, this is an important decision, confirming the notion that teachers must exercise their free speech rights with thoughtfulness. At a minimum, teachers cannot use their First Amendment rights in ways that destroy the relationship of trust with students and parents.

The case is Munroe v. Central Bucks School District, decided by the 3rd Circuit Court of Appeals on September 4, 2015.  You can find the case at 2015 WL 5167011.

DAWG BONE: BE CAREFUL WHAT YOU PUT ON SOCIAL MEDIA.

Dawg Bones

IT’S TOOLBOX TUESDAY! TELL US ABOUT TOOL #6.

The Toolbox provides a framework and a common vocabulary to help school administrators sort through the complex legal requirements that apply to the discipline of students with disabilities.  Today we discuss Tool #6—a disciplinary change of placement.

Districts can propose a disciplinary change of placement when 1) a student violates the code of conduct; 2) the disciplinary penalty called for by the code involves a long term removal to DAEP or JJAEP; and 3) the behavior is not a manifestation of the student’s disability.

For example, suppose that a student assaults another student or teacher.  If a general education student committed this offense, the student would normally be assigned to the DAEP for more than ten consecutive school days. For a student with a disability, an assignment of that length amounts to a “change of placement.”  Thus the ARDC must be involved.

Tool #6 involves a two-step process. First, campus administrators provide due process and make a determination as to whether or not the student violated the code of conduct.  If the administrator determines that the student did violate the code, the matter then goes to step two: an ARDC meeting.

The ARDC’s function is twofold. First, the ARDC makes the manifestation determination.  If the behavior is a manifestation of the student’s disability, Tool #6 cannot be used.  Tool #6 is a disciplinary change of placement.  It is the application of the penalty called for by the code of conduct. It is punitive. Therefore, it should not be used if the ARDC determines that the behavior is a manifestation.  The ARDC may consider the use of Tools 2 and 3, which we discussed earlier, but not Tool #6.

The second thing the ARDC does is to make sure that the student will continue to receive a Free Appropriate Public Education (FAPE).   Even if the offense is a so-called “mandatory DAEP” offense, the ARDC must examine the student’s IEP, review what is available in the DAEP, and make any necessary tweaks, adjustments and modifications.  We should not be saying things like: “we don’t offer that at the DAEP”—not when the student’s IEP requires it.

The law anticipates that students with disabilities are held accountable for misbehavior to the same extent as all students are.  But we still take into account how the disability affects the student’s behavior.  We do manifestation determinations to make sure that we are not punishing a student for having a disability.  The main purpose of a manifestation determination is to make sure we are not discriminating on the basis of disability.  We also want to make sure that disciplinary action does not have the effect of depriving the student of needed services.

Tool #6, properly used, enables educators to do all of that.    It enables you to enforce your code of conduct in a fair and evenhanded way, while assuring that no one is discriminated against, and no one is deprived of needed services.

Next Tuesday we will take a look at Tool #7: the FAPE Free Zone!

DAWG BONE:  A DISCIPLINARY CHANGE OF PLACEMENT CAN BE IMPLEMENTED WHEN THE BEHAVIOR IS NOT A MANIFESTATION OF DISABILITY AND THE SCHOOL CAN STILL PROVIDE APPROPRIATE SERVICES.

Dawg Bones

CHEERLEADERS! FACEBOOK!! THE 5TH CIRCUIT!!!

Thank God for Mississippi!  The Magnolia State continues to provide us with interesting and enlightening court cases that make for important judicial rulings.  The latest involves the toxic combination of cheerleaders and Facebook.

The captain of the cheerleading squad reported to the sponsor that a freshman cheerleader had cursed at and threatened her on the bus ride coming back from an event. The captain said that the verbal abuse turned to cyber abuse via Facebook later that evening.

The sponsor called the squad together and gave them a lecture about the risks and dangers in the use of social media.  She also “requested” that each member of the squad give her their Facebook username and password.  That’s where the legal issue arose.

After reviewing Facebook messages from the freshman (soon to be known as “the plaintiff”) to the captain, the sponsor suspended the girl from the squad for two weeks.  The principal and superintendent upheld the sponsor’s decision.  So the plaintiff sued all three of them, alleging that her constitutional rights had been violated in a variety of ways.

The recent decision from the 5th Circuit focuses on a narrow issue.  It does not tell us whether or not it was OK for the sponsor to review Facebook messages that were done off campus and away from school.  It does not tell us if it was OK for the sponsor to ask the students to disclose their login information. The issue was: did the sponsor do something that was “clearly established” as being unconstitutional at that time?

Thus the court had to get into the time machine and travel back to 2007 when these events occurred.  Would a cheerleader sponsor at that time know that requesting a student’s Facebook information was unconstitutional?  Would a principal know that? Would a superintendent know that? The court said: No. The law in 2007 was not “clearly established” on this point. Therefore, none of these school officials can be held personally liable.  They are all entitled to “qualified immunity” due to the murkiness of the law at the time they took action.

Thus, a narrow decision that does not answer the bigger questions.  But no doubt it is good news to three Mississippi school officials.  The case is Jackson v. Ladner, decided by the 5th Circuit on September 15, 2015.  You can find the case at 2015 WL 5332664.

DAWG BONE: QUALIFIED IMMUNITY PROTECTS SCHOOL OFFICIALS WHEN THE LAW IS MURKY AND UNCLEAR.

Dawg Bones

DOES THE USE OF THE “HAIL MARY” PASS IN A PUBLIC SCHOOL IMPLICATE CONSTITUTIONAL ISSUES?

On the first weekend of college football season the BYU Cougars faced a desperate situation.  They were down by one point to the Nebraska Cornhuskers with one second on the clock.  They were way too far away for a field goal, so there was only one thing to do: the QB would heave the ball into the end zone and hope for the best.  In football parlance, this is known as a “Hail Mary.”  Roger Staubach coined that term after he hit Drew Pearson for the touchdown in a 1975 playoff game.  Asked about it afterwards, Staubach claimed “I closed my eyes and said a Hail Mary.”

The term stuck.

But can BYU use this play?  Apparently so.  What if they were playing Notre Dame?

Hmmm.  These are things we ponder occasionally.  Can a high school quarterback in a public school call for a Hail Mary without violating the Establishment Clause?  Can the coach direct the player to throw a Hail Mary?  What if the QB is not a Catholic—can he refuse the coach’s instructions?

We have no answers today.  Just questions.

DAWG BONE: SOME QUESTIONS HAVE NO ANSWERS.

Dawg Bones

WHEN DOES THE “STAY PUT” RULE COME INTO EFFECT?

Dear Dawg: We had an ARD meeting three weeks ago at which the parties disagreed.  The school proposed some changes to the IEP and placement.  The parent disagreed.  He checked the “disagree” box on the form, and we advised him of how to request a due process hearing.  Now three weeks later, no request for hearing has been made.  Is the “stay put” rule in effect?  Or can we put the changes we proposed into effect?  STAYING PUT UNTIL WE HEAR FROM YOU.

DEAR STAYING PUT:  This came up in a case recently decided by the 2nd Circuit Court of Appeals.  In the case before it, the parties had a non-consensus IEP Team meeting in June, 2009.  The parent requested a due process hearing, but waited until April, 2010 to do so.  That’s a ten month gap.  When did “stay put” go into effect?

The court held that “the statute is clear that the Board’s obligation to provide stay-put services was not triggered until the Parent’s administrative complaint was filed.”  In other words, disagreeing at the meeting is not sufficient.  The parent has to file for a hearing in order to invoke “stay put.”

This is why districts are required to provide Prior Written Notice.  The PWN document gives the parent fair warning of a change that is going to go into effect, unless the parent requests a hearing.  If you had a non-consensus ARDC meeting, you should have provided PWN.  You say it is now three weeks later.  If you have provided PWN properly, and the parent has not requested a due process hearing, the changes proposed at the meeting should go into effect.  Stay put has not been invoked.

So sayeth the 2nd Circuit in Doe v. East Lyme Board of Education.  It was decided on June 26, 2015, and is cited at 790 F.3d 440 (2nd Cir. 2015).

DAWG BONE: STAY PUT GOES INTO EFFECT WHEN A HEARING IS REQUESTED.

Dawg Bones

COURT APPROVES EVALUATING TEACHERS ON TEST SCORES IN SUBJECTS THEY DO NOT TEACH

The 11th Circuit Court of Appeals has upheld the constitutionality of Florida’s Value Added Model (VAM) of teacher evaluation.  The court came very close to saying that the Florida scheme was unwise and unfair.  But it passed muster under the Due Process and Equal Protection Clauses of the Constitution.

Consider this: teachers who taught science, social studies, art and music were evaluated in large part based on how their students did on math and English tests.  Did you get that? These are teachers who don’t teach math or English.  But 50% of their evaluation was based on how their students did in subjects these teachers do not teach.

Teachers who taught in grades where there was no state mandated testing were evaluated in large part based on how kids whom they did not teach fared on the state tests.  Testing started in third grade.  So a second grade teacher is not being evaluated based on how her students fare. She’s evaluated based on all the kids she does not teach.

Hmmm.  So we have teachers’ performance being evaluated based on student performance in subjects the teachers do not teach; or based on the performance of students the teachers’ don’t even know.  Florida considers this a good scheme.

The 11th Circuit did not endorse the scheme, but it did say that it was rationally related to a legitimate governmental purpose.  That’s all that is required to satisfy the Constitution.  The case is Cook v. Bennett, decided by the 11th Circuit Court of Appeals on July 7, 2015.  It is cited at 792 F.3d 1294 (11th Cir. 2015).

DAWG BONE: JUST BECAUSE IT’S CONSTITUTIONAL DOES NOT MEAN IT IS FAIR, OR WISE.

Dawg Bones

IT’S TOOLBOX TUESDAY!! SO TELL US ABOUT TOOL #5.

The Toolbox is a set of 10 “tools” available to school officials in dealing with students with disabilities who engage in challenging behaviors.  Most of the tools involve ARD Committee action.  But today’s focus is on Tool #5, which is a tool that can be wielded by the principal. Tool #5 deals with “special circumstances.”  When “special circumstances” arise, the principal can act unilaterally.

You may recall that we have a Toolbox because Congress intentionally curtailed the power of campus administrators in dealing with students with disabilities.  No more would the principal be empowered to “unilaterally” order the removal of a student with a disability based on a violation of the Code of Conduct.  But there are some exceptions to that general rule.

First, campus administrators do retain the power to “unilaterally” remove a student for disciplinary reasons for up to ten days, cumulatively, during the course of the school year. We call this “the FAPE Free Zone” and will discuss it two weeks from today when we address Tool #7.

In 1997, Congress restored “unilateral” power to campus administrators in two specific situations: possession of weapons, and possession or use of drugs at school.  In those instances, Congress gave principals the power to order the “unilateral” removal of a student for up to 45 days.  The school would still be obligated to serve the student, but it could be in an alternative environment.

In 2004, Congress extended the “45 days” to “45 school days” and added a third category of behavior: the student’s infliction of “serious bodily injury.”

Thus we now have three types of misconduct that authorize a principal to order the removal of the student for up to 45 school days.  We call these “Special Circumstances."

If the principal, or assistant, concludes that a student has engaged in one of these three types of misconduct, the student can be removed for up to 45 school days, regardless of whether the behavior is a manifestation of disability or not. That’s what makes them “special.”  However, the principal still needs to call for an ARDC meeting. The ARDC needs to make sure that the student will continue to receive appropriate services in what the federal law calls an “interim alternative educational setting.”  Moreover, the ARDC should conduct a manifestation determination as part of its effort to prevent a recurrence of this type of behavior.

In the Toolbox training we go into detail about exactly what type of conduct is covered by the “special circumstances” offenses. And we practice using these tools in conjunction with the specifics of your school’s Code of Conduct.  If you are interested in having the Toolbox training in your district or ESC, contact Haley Armitage at harmitage@wabsa.com.  We’d love to bring the Toolbox to your school!

DAWG BONE: TOOL #5 IS THE PRINCIPAL’S TOOL TO USE WHEN THERE ARE “SPECIAL CIRCUMSTANCES.”

Dawg Bones

DISTRICT IN CONTEMPT OF COURT DUE TO RELIGIOUS PRACTICES.

Here’s what happened in Rankin County, Mississippi that resulted in the district being held in contempt of court.

A student (identified in the case as M.B.) sued the district during her junior year of high school, alleging that the district had a practice of including Christian sermons and prayers in student assemblies.  The district admitted that it had been violating the Constitution, adopted a new Religion in Public Schools Policy and settled the lawsuit by entering into an Agreed Judgment, approved by the federal court.

Six months later, the district held an assembly to honor students who scored high on the ACT.  M.B. was one of the honorees.  The printed program for the event included an Invocation by a local Methodist preacher.  The Reverend asked the students to stand and bow their heads.  He delivered the invocation, concluding with: “in the name of the Father, and the Son and the Holy Spirit.”

M.B. filed a Motion, asking the court to find the district in contempt of court for violating the Agreed Judgment.  The district admitted that the prayer at the ceremony was a violation of the Establishment Clause of the U.S. Constitution.  However, the district argued that there were two reasons why it should not be held in contempt of court.

But Your Honor: She Didn’t Have to Be There!

First, the district pointed out that the ceremony was voluntary: M.B. did not have to be there.  The court said that this was “immaterial.”  The event was voluntary, but the inclusion of the prayer made it “coercive.” The court: “The event was still coercive as it unnecessarily required Plaintiff to make the difficult decision between being exposed to a religious ritual she found objectionable or not attend an event honoring her and other students for their academic excellence.”

But Your Honor: This Stuff is Complicated!

Second, the district argued that First Amendment law is so complicated that its administrators, who are not lawyers, should not be held in contempt for running afoul of its complexities.  The court described this, without irony, as “a Hail Mary pass.”  The court pointed out that the issue was not the ins and outs of the First Amendment: it was whether the district had violated an Agreed Judgment that it voluntarily entered into.  Indeed, in a previous court filing, the district had stated that its “Religion Policy” was “stated in terms which are clear and easily understood by teachers, administrators, other school officials, and any groups seeking to make use of the school facilities.”

But Your Honor: We Acted in Good Faith! The PR Director Didn’t Understand!

It did not help the district to assert that the PR Director who organized the ceremony acted in good faith and did not understand that the preacher’s prayer was a mistake.  The court pointed out that the district was responsible for making sure that all of its employees understood the Religion Policy.

And What About Those Gideon Bibles?

By filing the suit, the student uncovered other practices in the school.  In particular, the court addressed the principal of an elementary school directing all 5th grade teachers to lead their classes to an area in the hallway where Gideons would be distributing Bibles.  This happened after the Agreed Judgment was entered into.  The court found this to be further evidence of the district’s “egregious” violation of the Agreed Judgment.

The court ordered the district to pay the Plaintiff $7,500.  The district will have to pay a fine of $10,000 for any future violation.  The district will have to pay M.B.’s attorneys’ fees and costs of court.  And the district is now permanently enjoined from including “prayer or religious sermons in any school-sponsored event including but not limited to assemblies, graduations awards ceremonies, athletic events and any other school event subject to the limitations set out in the Equal Access Act.”

The case is M.B. v. Rankin County School District, decided by the federal court for the Southern District of Mississippi on July 10, 2015.  It is cited at 2015 WL 5023115.

DAWG BONE: JUDGES DON’T LIKE IT WHEN YOU AGREE TO DO SOMETHING, AND THEN YOU DON’T.