Category Archives: Dawg Bones

Dawg Bones

DEAR DAWG: CAN WE SEND A STUDENT’S SERVICE ANIMAL TO ISS? HE VIOLATED OUR CODE OF CONDUCT.

Dear Dawg: We love Happy the Dog.  That’s the name of little Emily’s service animal. Happy the Dog has been with us for two years now, and has become a part of our family.  We have had no problems whatsoever, and the kids love Happy the Dog.

But rules are rules.  Last Tuesday Happy the Dog got into a number of backpacks and ate the lunch of at least three students.  If a student had done this, we would have imposed a disciplinary penalty—like a couple of days in ISS.  We see no reason why Happy the Dog should be treated differently.  Like I said, he’s part of our family here.

But I thought I better check with you, Dawg. I don’t want the PETA people to get on my back on this.  We are just trying to enforce our rules fairly.  And maybe I shouldn’t be asking you about this: you being a Dawg, do you have a conflict of interest here?  RULES IS RULES.

DEAR RULES IS RULES: I don’t think it’s the PETA people you have to worry about—it’s the ACLU.  Sending Happy the Dog to ISS would be a violation of the constitutional right of due process, and the ACLU would be all over that.  It’s a fundamental rule of due process that you have to give notice of the types of behaviors that might get someone in trouble. That’s why you distribute the Code of Conduct at the beginning of the year and ask parents to sign a receipt.  That’s why you have a student assembly to go over the rules.

Has Happy the Dog read the Code of Conduct?  Hmmm.  I didn’t think so. Did you go over its provisions with Happy the Dog to be sure he understands?  No?  Well, then, you cannot punish Happy the Dog for this behavior.  You have not given him notice that eating a student’s lunch is a violation of the rules.

Maybe I do have a conflict of interest here, but I just have to say that I think you are punishing Happy the Dog for being a dog.  Dogs eat other people’s lunches. It’s what they do.  FREE HAPPY THE DOG!!

DAWG BONE: LET’S LET DOGS BE DOGS…..OR DAWGS, AS THE CASE MAY BE.

Dawg Bones

ANOTHER SAD STUDENT SUICIDE CASE…

There has been a lot of litigation over the past several years over student suicides.  All of the cases are tragic and difficult to study.  Most of them deal with allegations that the suicide was the result of bullying based on disability or sex or sexual orientation.  The latest to reach a high level court had nothing to do with those issues.

Jake was a senior in Marysville, Michigan, just a few months from prom, graduation and enrollment at Michigan State. There is no hint of bullying in the case.  The suit was brought against the district, the principal, the assistant principal and the acting superintendent. The suit alleged, among other things, that the defendants should be held liable for Jake’s death due to the “state created danger” theory.

The 6th Circuit held that the state created danger theory was not applicable.  The court cited earlier cases in which it had rejected this theory in a suicide case. The court observed that “where a person makes a free and affirmative choice to end his life the responsibility for his actions remains with him.”

What happened?  This all started with a laptop, stolen from a teacher.  Jake admitted that he had taken it.  School officials imposed a long term suspension.  Jake was sent home in the custody of his father.  Later that day, he apparently slipped out of the house and took off in his car.  At 8:30 that evening, local police reported to the parents that Jake had driven his car into a concrete pillar.  The car caught fire.  Jake never got out.  The medical examiner ruled it a suicide.

The court distinguished this case from an earlier one in which a school sent a “mentally unstable” student home, knowing that he would be unsupervised and had access to firearms.  This was quite different.  The school released Jake to his father, and the young man remained under the supervision of his father or grandfather for several hours before he slipped out.

The case is Jahn v. Farnsworth, decided by the 6th Circuit Court of Appeals on June 29, 2015.  We found it at 2015 WL 3938035.

DAWG BONE: “STATE CREATED DANGER” WILL RARELY APPLY IN A SUICIDE CASE.

Dawg Bones

DOES A PRINCIPAL HAVE THE RIGHT TO PUBLICLY CRITICIZE SCHOOL POLICIES?

A recent decision from the 10th Circuit confirms the notion that free speech rights shrink as one moves up the administrative ladder.  In Rock v. Levinski the court affirmed the termination of a principal who was fired because of the way she publicly criticized a decision made by the school administration.

Joyce Rock was principal of Career Prep High School, an alternative school in Shiprock, New Mexico.  In May, 2013, the superintendent decided to close the school due to budget concerns.  At a public meeting to discuss this, Ms. Rock opposed the plan.  Among other things, she expressed concerns that some of the students at Career Prep would not be successful in a more traditional, and larger school.

The superintendent did not appreciate this.  He charged her with being unprofessional. The superintendent held the belief that campus administrators should show support for administrative decisions, and should certainly not question the ability of kids to be successful in the school to which they will be assigned.

Ms. Rock was not the only speaker who opposed the planned school closure during the public meeting.  Others spoke out as well.  The school board took the concerns to heart.  The very next day, the board announced that it had found additional funds, and would keep the school open.

This must have been a relief to Ms. Rock, but what happened next was not.  Four days later her immediate supervisor put her on a growth plan, citing her failure to publicly support the superintendent as one reason.

It got worse.  Two weeks later the superintendent put Ms. Rock on administrative leave for the remainder of her contract, and decided that she would not be given another contract.

A couple of weeks after that the New Mexico Association of Secondary School Principals named Ms. Rock as its Principal of the Year.  This, no doubt, was a nice honor, but she was now out of a job and not happy about it. Ms. Rock filed suit against the superintendent and the district, claiming that they had retaliated against her for the exercise of First Amendment rights of free speech.

The court ruled in favor of the school district and the superintendent.  Critical to the court’s reasoning was the fact that Ms. Rock was a high ranking school official:

Rock was not an ordinary employee of the District. She was not a teacher, but a principal, a high-ranking member of the management team.

The court cited a U.S. Supreme Court decision for the proposition that “The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails.”  Rankin v. McPherson, 483 U.S. 378 at 390 (1987).  In other words, the higher up you go, the more cautious you should be.

In support of its decision, the court cited two other Circuit Court decisions that specifically dealt with principals, and came to the same conclusion: Sharp v. Lindsey, 285 F.3d 479 (6th Cir. 2002) and Vargas-Harrison v. Racine Unified School District, 272 F.3d 964 (7th Cir. 2001).  Summing it up the court said:

A superintendent should be able to expect loyalty and support, at least in public, from a high-ranking employee like a principal who is responsible for implementing his policies.

The case is Rock v. Levinski, decided by the 10th Circuit on June 29, 2015.  It is cited at 791 F.3d 1215.

DAWG BONE: THE HIGHER YOU GO, THE MORE CAUTIOUS YOU SHOULD BE BEFORE YOU SPEAK IN PUBLIC.

 

Dawg Bones

IT’S TOOLBOX TUESDAY! LET’S TAKE A LOOK AT TOOL #4.

The Toolbox consists of ten tools that school administrators can use to deal with disruptive and/or violent students who are eligible for special education.  Tool #4 is probably the tool that is used the least.  That’s a good thing.  Tool #4 is used when a student’s presence in the current placement is dangerous to the point that the school has decided to seek an order from a special education hearing officer or court to order the immediate removal of the student.

Here’s how this might happen. The school calls for an ARDC meeting to consider a change of placement because of the student’s disruptive and/or violent behavior.  The ARDC concludes that the behavior is a manifestation of the student’s disability—thus Tool #6 (Disciplinary Change of Placement) is not available.  The school members of the ARDC think a change of placement is called for, but the parents do not agree—thus Tool #2—an agreed-to change of placement—is not available.  And although the student is dangerous, he/she has not inflicted “serious bodily injury” or possessed drugs or a weapon at school—thus Tool #5 is not available.

Pursuant to the traditional “stay put” rule, the student is supposed to remain in the current placement. The principal and superintendent are genuinely worried that this will lead to an injury to someone in that classroom. We know that school administrators cannot “unilaterally” remove the student from the current placement—but they can seek an order from a special education hearing officer or a local district judge.  However, the burden of proof is demanding. The school must prove that if the student stays where he/she is, someone is “substantially likely” to get hurt.

Let’s hope that does not happen in your school this year. If it does, be sure to get your school’s attorney involved from the start. This tool is definitely one where the lawyer needs to be involved.

DAWG BONE: SCHOOLS CAN SEEK HELP FOR THE IMMEDIATE REMOVAL OF A STUDENT IF NECESSARY.

Dawg Bones

DEAR DAWG: A LOCAL PREACHER CLAIMS THAT THE TEXAS CONSTITUTION REQUIRES ALL SCHOOL BOARD MEMBERS TO ACKNOWLEDGE THE EXISTENCE OF A SUPREME BEING. TRUE?

Dear Dawg: A local preacher claims that the Texas Constitution requires all school board members to acknowledge the existence of a Supreme Being.  True?

Dawg: I got a letter from one of our local preachers last week that got my attention. This fella has been here for decades, is well respected and is informally known as The Sinkiller of West Texas.  Now, you don’t want to ignore a man like that. The Sinkiller is a good man, but he loves to rail about our “evil” public schools, where God is no longer welcome.  His latest claim is that every member of our school board is required to acknowledge, at a minimum, that there is at least some kind of Supreme Being out there.  What’s this about?  I DON’T SUPPOSE THE SUPERINTENDENT WOULD QUALIFY AS THE “SUPREME BEING”?

DEAR I DON’T SUPPOSE: We know where the Sinkiller got that.  He’s not making it up.  Let’s take a look at Article I, Section 4 of the Texas Constitution:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.  (Emphasis added).

That’s what it says.  Still.

We used to have a provision in the Education Code that said much the same thing, and applied it to all school employees.  Section 4.07 stated that schools could not inquire into the religious beliefs of anyone who sought employment with the school except to ask if the person acknowledged the existence of a Supreme Being.  A federal district court in Houston struck this statute down in 1982 in the unreported case of Roe v. Klein ISD.  We found a reference to this case in the first edition of The Educator’s Guide to Texas School Law, by Dr. Frank Kemerer (UT Press, 1986).  We’re not sure when it disappeared from the Education Code, but it did.

Statements in the Texas Constitution can remain there until repealed by the voters, but if they conflict with federal constitutional requirements, they hold no power.  We have a very recent example of this.  Article I, Section 32 of the Texas Constitution says that “Marriage in this state shall consist only of the union of one man and one woman.”

It still says that.  But county clerks are issuing marriage licenses to same-sex couples.

And no, the superintendent will not qualify as a “Supreme Being.”

DAWG BONE: BE CAREFUL WHEN READING THE TEXAS CONSTITUTION.

Dawg Bones

THE DAWG IS CORRECTED BY A COLLEAGUE….

We have a tradition in our law firm (two years—that makes a tradition, right?) of exchanging adorably cute pictures of our adorably cute children and even more adorably cute grandchildren as they head off to school on that first day.  It’s all smiles and backpacks and new shoes.  But my colleague, Doug Brock, a lawyer’s lawyer, pointed out that we should no longer refer to the first day of school as “the first day of school.” As per HB 2610, now it is The First 420 Minutes of School.

Duly noted, Doug. Thanks.

And just think of the progress you have already made. If you started on August 24th, and took Labor Day off, by the end of the day, you will have completed 5,880 minutes!  Only 69,720 to go!!

DAWG BONE: AS THE DOOBIES BROTHERS ONCE SAID, “MINUTE BY MINUTE….”

Dawg Bones

DEAR DAWG: I’M CONFUSED ABOUT WHAT WE ARE SUPPOSED TO TRANSLATE AT AN ARD MEETING. WHAT ARE THE RULES?

You are confused because it is confusing. We’ve had a lot of wrangling about this of late, including a new rule that went into effect at the start of 2015. Now we have a proposed addition to that rule that may make it more clear.

Here’s where we are right now.  The current rule says:

If the student's parent is unable to speak English and the parent's native language is Spanish, the school district must provide a written copy or audio recording of the student's IEP translated into Spanish. If the student's parent is unable to speak English and the parent's native language is a language other than Spanish, the school district must make a good faith effort to provide a written copy or audio recording of the student's IEP translated into the parent's native language.

This is pretty much the same language we have in the Education Code at 29.005(d).  Notice that both the statute and the rule call on districts to translate the IEP—not the ARD meeting. This has caused much confusion, as some folks fail to distinguish between the two. But they are different. The proposed rule clarifies this. It reads as follows:

(1) For purposes of this subsection, a written copy of the student's IEP translated into Spanish or the parent's native language means that all of the text in the student's IEP in English is accurately translated into the target language in written form. The IEP translated into the target language must be a comparable rendition of the IEP in English and not a partial translation or summary of the IEP in English.

(2) For purposes of this subsection, an audio recording of the student's IEP translated into Spanish or the parent's native language means that all of the content in the student's IEP in English is orally translated into the target language and recorded with an audio device. A school district is not prohibited from providing the parent with an audio recording of an ARD committee meeting at which the parent was assisted by an interpreter as long as the audio recording provided to the parent contains an oral translation into the target language of all of the content in the student's IEP in English.

(3) If a parent's native language is not a written language, the school district must take steps to ensure that the student's IEP is translated orally or by other means to the parent in his or her native language or other mode of communication.

We added emphasis to that with the bold font to make sure the message gets across.  It’s not the back-and-forth at the ARD meeting that must be translated.  It’s the IEP. All of it.

DAWG BONE: TRANSLATING THE IEP IS A MUY BUENO IDEA.

Dawg Bones

11TH CIRCUIT REJECTS STUDENT-ON-STUDENT LIABILITY STANDARDS PROPOSED BY THE FEDS

Last week we told you about the 11th Circuit’s decision in the infamous “rape bait” case, Hill v. Cundiff.  The court held that the school district, and some of its employees, could be held liable for the injuries suffered by the 8th grader who was used as “bait” to catch a boy “in the act” of sexually harassing her.  In its ruling, however, the court actually rejected the standard of liability that the plaintiff and her supporters were advocating. This is particularly interesting because those supporters include the Department of Education and the Department of Justice.

The argument was over what the plaintiff had to prove in order to win.  Did she have to show that the school had “actual notice” of harassment that had already occurred?  Or would it be sufficient to show that the school officials knew that there was a “substantial risk” that sexual harassment would occur.   There is a big difference there.  It’s basically about whether the school is liable based on what it knew, or what it “should have known.”

The court said that the “substantial risk” standard proposed by the federal Department of Education and Department of Justice “lacks merit.”  The court noted that the DOE’s proposed standard was based on cases involving teachers who sexually harassed students—not student-on-student cases.  As the court noted, there is a big difference:

The standard for student-on-student sexual harassment claims is far more rigorous than a claim for teacher-on-student harassment.

The [Supreme] Court imposed this high standard to guard against the imposition of “sweeping liability.”  Unlike an adult workplace, children “may regularly interact in a manner that would be unacceptable among adults.”

Some risk of sexual harassment is inherent in the enterprise of public education, in particular because public schools must educate even the most troublesome and defiant students.

The high burden of Davis [the Supreme Court’s student-on-student case] ensures that school districts are not financially crippled merely because immature kids occasionally engage in immature sexual behavior.

Based on that analysis, the court chastised the lawyers from the Departments of Justice and Education for citing the wrong cases:

All of the cases cited by [the plaintiff] and the Department of Justice applying a “substantial risk” standard or similar language involved teacher-on-student harassment.

Thus the higher standard was rejected, which is good news for school districts in the future. It didn’t help the Huntsville, Alabama district, however, as the court went on to rule that it failed the easier test.

The case is Hill v. Cundiff, decided by the 11th Circuit on August 12, 2015.

DAWG BONE: THE STANDARD FOR STUDENT-ON-STUDENT CASES IS MORE RIGOROUS THAN IN A  TEACHER-ON-STUDENT CASE.

Dawg Bones

THIS MUST BE TOOLBOX TUESDAY! TELL US ABOUT TOOL #3

The Toolbox is a set of 10 “tools” available to school administrators in dealing with students with disabilities who engage in inappropriate and/or disruptive behavior.  Last week we looked at Tool #2—a change of placement with parental agreement. Tool #3 is the companion to that one—this is another educational change of placement, but this time, it is done without parental agreement.

Tool #3 is used when the student’s behavior is a manifestation of his or her disability. Consider, for example, a student with autism who is served in the general, mainstream classroom.  The teacher reports that the student’s behavior is impeding the learning of the student and of others in the class. The behaviors are directly caused by the student’s disability, but that does not make them any less disruptive.  What to do?

The first thing to do is to come up with ways to better support the teacher and the students in that class.  Are there supplementary aids and services that could be employed effectively?  Is the behavior plan working? If not, what can we do to improve it?  Should we consult with a new behavior specialist?  Are there evaluative steps we should take?  What do the parents suggest?

We should try all of that before thinking about a change of placement. After all, we are expected to serve the student in the least restrictive environment.

But sometimes schools try all of those things, and see little progress. There comes a time when you may find it appropriate to recommend a change of placement.  Tool #3 is an “educational” change of placement. That’s to distinguish it from Tool #6, which is a disciplinary change of placement. You would use Tool #6 to change placement based on behavior that is not a manifestation of disability. But if the behavior is a manifestation, a disciplinary removal would be inappropriate. You can, however, recommend a change to a more restrictive environment for educational reasons.

Tool #3 anticipates parental disagreement, and so the school officials should talk to the lawyers first.  Have we done all that we can do to serve the student appropriately in the LRE?  Are we unified in our view that a change is appropriate? Do we have a good alternative placement to propose?  All of those issues need to be addressed.

This Tool is the ARD Committee’s Tool, as changes in placement can only be proposed and effected at an ARD meeting. But the ARD that uses Tool #3 needs strong administrative leadership and sound legal advice.

If you are interested in a Toolbox training, contact me at jwalsh@wabsa.com or Haley Armitage at harmitage@wabsa.com.  The Toolbox training is a full day, aimed at campus administrators and special education staff, with a clear explanation of all 10 tools and some hypotheticals to practice on. We’d love to hear from you!

DAWG BONE: TOOL #3: AN EDUCATIONAL CHANGE OF PLACEMENT WITHOUT PARENTAL AGREEMENT.

Dawg Bones

THE DAWG’S ANNUAL BACK TO SCHOOL TOUR ABOUT TO LAUNCH!

We’re pleased to let you know that next week we launch the Dawg’s 10th Annual Back to School Tour! We have much to cover this year. New legislation.  Court cases.  Special ed and 504 developments.  We will provide a full day of informative training, along with some fun along the way.  Sign up at:   https://legaldigestevents.com/legal-digest-events/back-to-school-workshops-with-jim-walsh/

Here’s the schedule:

September 10:  Region 7--Kilgore

September 11: Region 8—Pittsburg

September 15: Region 2—Corpus Christi

September 16: Region 20—San Antonio

September 18: Region 1—Edinburg

September 22: Region 18—Midland/Odessa

September 24: Harris County Department of Education—Houston

September 29: Region 17—Lubbock

October 1: Region 13—Austin

October 6: Region 9—Wichita Falls

October 7: Region 10—Richardson

October 9: Region 11—Fort Worth

Be there or be square!

DAWG BONE: HOPE TO SEE YOU SOMEWHERE AROUND THE GREAT STATE OF TEXAS