Category Archives: Dawg Bones

Dawg Bones

HEADSCARVES AND RELIGIOUS DISCRIMINATION

Dear Dawg:  We don’t allow employees to wear caps, or headgear of any kind while in the building.  Now we have an applicant for a teaching job who is Muslim, and wears a headscarf…all the time.  What to do?  SEEMS LIKE I READ SOMETHING ABOUT THIS RECENTLY.

Dear Seems Like I Read:  Yes, you probably did read something about the Supreme Court’s decision in a case that parallels your situation.  The case involved an applicant with Abercrombie and Fitch.  Have you ever been to one of those stores?  You will instantly feel shabby and out of shape as soon as you walk in. That’s no accident. Company policy includes the “Look Policy.”  Thus the people who work at A&F must look sharp and dress sharp. This includes no caps, hats, berets, scarves over the head or any other such head covering.

So this lady applies for the job wearing her headscarf. The interview went well, and the assistant manager was inclined to offer her a job. But she was worried about the headscarf, and whether or not it would comply with The Look Policy.  She did not ask the applicant why she was wearing the headscarf. She just assumed that it was probably due to a religious belief.

So she asked the manager about it.  No response. She took it up the ladder to the district manager.  The assistant told the district manager that she thought the woman was wearing the headscarf due to her religion.  The district manager told the assistant that wearing the headscarf would violate the Look Policy, and therefore, she should not offer the woman a job.

The woman sued, alleging that A&F discriminated against her on the basis of religion.  A&F’s main argument boiled down to: “but she didn’t tell us!”  The argument was that the plaintiff had to prove intentional discrimination, and how can it be intentional when the employee has not raised the issue.  In other words, A&F argued that the woman should have said something like this: “By the way, I’m a Muslim.  Will you please waive your Look Policy for me?”

The Supreme Court ruled in favor of the woman. The seven-member majority held that the key was not what the employer knew, but rather the motive of the employer. Here’s the key quote:

An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that an accommodation would be needed.

In this case A&F did not know that the woman would request an accommodation. But it had an “unsubstantiated suspicion” that this was the case. Critically, it was the refusal to even consider accommodating the employee’s religion that was the motive.  In the Court’s words, the district manager was seeking to “avoid accommodation.”

A&F also argued that the “Look Policy” was completely neutral. It did not single out religious headgear.  No head covering of any kind would be permitted.  But the Court made short work of that:

But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual…because of such individual’s” “religious observance and practice.”

Keep in mind that no one ever asked the applicant if she is wearing the scarf because of her religious beliefs.   It’s understandable that the assistant would not want to inquire about the woman’s religion.  That would be an improper question.

But the assistant could have explained the Look Policy, and inquired about whether or not the applicant would be able to comply with it.  If the applicant balked, due to her religious beliefs, then the two of them could have engaged in a conversation about possible accommodations.

The case is EEOC v. Abercrombie & Fitch, decided by the Supreme Court on June 1, 2015.  Justice Scalia wrote the majority opinion, which garnered the support of conservatives and liberals on the Court alike.  But Justice Alito only “concurred” in the judgment, and Justice Thomas mostly dissented.  So score this one 7-2.

DAWG BONE: FEDERAL LAW REQUIRES ACCOMMODATION OF RELIGIOUS BELIEFS AND PRACTICES…EVEN AT ABERCROMBIE & FITCH.

 

 

 

Dawg Bones

LEGISLATIVE ALERT! THE BREAST MILK BILL!!

HB 786 is designed to protect the rights of women who need to express breast milk while at work.  But it doesn’t cover all female workers—only those who work for a “public employer,” like a school district. Hourly workers in private industry already enjoy this protection due to a provision in the Affordable Care Act, which requires that private employers provide break time and adequate space for milk expression.  Now, public employees in Texas will enjoy that same protection.  The only ones left out are salaried employees in private business.

Schools will need to adopt policies to comply with this new law, so we are sure that TASB staff will provide a new policy for your board to consider. The policy must “support the practice of expressing breast milk” and “make reasonable accommodations” for the needs of the mothers who need to do this.

Specifically, your school will need to “provide a reasonable amount of break time for an employee to express breast milk each time the employee has need to express the milk.”  Also, the school will have to “provide a place, other than a multiple user bathroom, that is shielded from view and free from intrusion.”

This is a new right, but also a limited one.  The statute says that a school cannot discriminate against a person who asserts her rights under this statute; but it also says that the statute does not create a “private or state cause of action.” So, presumably, this new statute would authorize a nursing mother to file a local grievance, but not a lawsuit.

However, we expect an aggrieved party would cite federal sex discrimination laws in a lawsuit, rather than this statute.  After all, expressing milk is like pregnancy in that it is unique to one gender.  Furthermore, a suit could probably be brought if it seeks only declaratory relief or an injunction (along with attorneys’ fees, of course!).

But you won’t have to worry about any of that, as long as you comply with the law.  So make sure those nursing mothers are made welcome in your school building.  After all, I have heard from more than one mother that the whole sequence of pregnancy, childbirth and nursing is hard enough as it is.  Let’s not make it any harder.

DAWG BONE:  LOOKS LIKE THIS IS ONE PART OF OBAMACARE THAT OUR LEGISLATURE LIKES.

 

 

Dawg Bones

SENDING STUDENTS TO THE PRINCIPAL… IS ABOUT TO CHANGE

I send the student to the principal. She sends him right back.  I send the student again.  She sends him back again.  I don’t see any improvement!

Classroom teachers have enjoyed the “right” to send students out of the classroom for disciplinary reasons since the beginning of recorded time.  But the legislature decided to codify this in Texas many years ago.  Now, S.B. 107 makes a subtle change in the dynamics between teacher and principal.

Current law says that when the teacher sends the kid to the office “the principal shall respond by employing appropriate discipline management techniques consistent with the student code of conduct.”   T.E.C. 37.002(a).   The new law, which goes into effect this school year, calls for the teacher to send the student to the CBC—the Campus Behavior Coordinator, rather than the principal.  And it says that the CBC (who will very likely be your principal or assistant principal) is to employ techniques “that can reasonably be expected to improve the student’s behavior before returning the student to the classroom.  If the student’s behavior does not improve, the campus behavior coordinator shall employ alternative discipline management techniques, including any progressive interventions designated as the responsibility of the campus behavior coordinator in the student code of conduct.”

This makes it sound like the CBC needs to have a toolbox of techniques available.  Moreover, they must be “reasonably” expected to bring about a change in behavior.  Think about this as you develop changes to your code of conduct this summer.

DAWG BONE:  CBCs ARE GOING TO NEED SOME TRAINING!

 

 

Dawg Bones

WHO WILL BE THE CBC (CAMPUS BEHAVIOR COORDINATOR) ON YOUR CAMPUS NEXT YEAR?

Nothing is important in education until we attach an acronym to it, so I’m proposing right now that we start using the term CBC—Campus Behavior Coordinator. This term comes from S.B. 107, which adds a brand new section to Chapter 37 of the Education Code, Section 37.0012.  That section requires that each campus in the state must have a CBC.  S.B. 107 does not say that it applies to charter schools, so it doesn’t. But the traditional schools will have to designate someone as CBC on each campus next school year.

The principal can be the CBC.  The law also permits the principal to name “any other campus administrator” to serve as CBC, so we expect this new title will go to principals and assistants. The specific duties of the CBC can be established by campus or district policy, but if you don’t adopt any such policy, the law spells it out for you.

“The campus behavior coordinator is primarily responsible for maintaining student discipline and the implementation of this subchapter.”  T.E.C. 37.0012(b).  The new sets out some of the specifics of that “primary responsibility.”

For example, it’s the CBC who must “promptly notify” a parent whenever a student is placed into ISS, out of school suspension, DAEP, expulsion or JJAEP, or when the student is taken into custody by law enforcement. This notice is to take place by telephone or in person on that day.  Our CBC must also make a “good faith effort” to get written notice to the parent on the day of the disciplinary action.

It’s also the CBC who decides what to do when the teacher exercises her right to dismiss a student from the classroom.  Teachers have had this right for a long time, but many of them complain that nothing much happens when they exercise this right.  S.B. 107 makes a subtle but important change in the law of “teacher removal.” We’ll take that up in tomorrow’s Daily Dawg.

DAWG BONE:  LAST YEAR YOU WERE JUST THE PRINCIPAL. THIS YEAR YOU CAN BE THE CBC!!

 

 

Dawg Bones

LEGISLATIVE ALERT! WHAT DID NOT PASS?

You can’t adequately assess a legislative session unless you look at how your team played both on offense and on defense.  We have been highlighting the offense so far—some of the bills that have been passed. But school advocates also played defense this session. In fact, they played a lot of defense, and did it quite well. When you have a Lieutenant Governor being advised by people who think that Pre-K is a “godless environment” and a member of that Committee calling the public education system a “monstrosity” you need to play a good defense.

So here are some things that did not happen.  Vouchers did not happen.  Tax credit scholarships (aka “voucher lite”) did not happen.  The parent “trigger” law did not make it.  Nor did the so-called “Opportunity School District.”  The effort to tie test scores to teacher evaluation and compensation flunked, as did the effort to junk the minimum salary schedule.  District employees will still have the opportunity to have association dues deducted from the paycheck.  And homeschoolers will not be participating in UIL activities—the Tim Tebow bill was fumbled.

I noticed with interest that ESCs survived another session, but did not get a pay raise. They will be funded with $25 million for the biennium—the same amount as the last two years.  That’s $25 million for all 20 of them, and it’s for two years.  So that’s $12.5 million a year for 20 ESCs. That comes out to $625,000 per ESC per year.  In terms of the overall budget, that’s chump change. When you consider the great work and service that ESCs provide, that’s a terrific bargain for the people of Texas.

DAWG BONE:  WORKING WITH THE LEGISLATURE INVOLVES BOTH OFFENSE AND DEFENSE.

Dawg Bones

A GUY THREATENS TO SHOOT UP A KINDERGARTEN CLASS, AND THE SUPREME COURT THINKS THIS IS OK???

Don’t get alarmed by what you hear about the Supreme Court’s decision in the case involving a Facebook post.  True, the Court overturned the conviction of the man who posted this:

That’s it, I’ve had about enough.  I’m checking out and making a name for myself.  Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined.  Hell hath no fury like a crazy man in a Kindergarten class. The only question is…..which one?

The Court (seven of the nine) overturned the man’s conviction because the jury was given the wrong instructions. The jury was told that the man’s intent was not relevant, that he could be found guilty as long as “a reasonable person” would find this language to be a threat.  Since the Court deemed this to be a serious legal error, they reversed the man’s conviction.

If you are like me, you hear about cases like this and wonder what they mean for your typical public school administrator.  Let’s just suppose that you find words like this on a social media site, and you know that the words are from 1) a teacher; 2) a local adult citizen or 3) a student.   Does this Supreme Court case means that your hands are tied?

Absolutely not.  It’s important to recognize that the man in the Supreme Court case was appealing a criminal conviction.  In that context—and only in that context—the Court held that the prosecution must prove what the man thought he was doing.  The Court said that the “reasonable person” standard “is a familiar feature of civil liability in tort law.” But it is not appropriate for a criminal conviction.

If you are dealing with a teacher, or a student, your first response will probably be disciplinary—either adverse personnel action or a student discipline penalty. This Supreme Court case would not be relevant in those contexts.

If language like this is posted by a citizen, we expect you will contact law enforcement and your school attorney.  If county prosecutors seek to file criminal charges, they will have to study this case carefully. But there are other avenues of recourse available.

The case is Elonis v. United States, decided by the Supreme Court on June 1, 2015.  Justice Alito concurred in part and dissented in part; Justice Thomas dissented.  Chief Justice Roberts wrote the opinion, and was joined by Scalia, Kennedy, Ginsburg, Breyer, Sotomayor and Kagan.

DAWG BONE: KINDA NICE TO SEE THE LIBERALS AND CONSERVATIVES COME TOGETHER ON THIS ONE

 

 

 

Dawg Bones

LEGISLATIVE ALERT! ARDC MEETINGS!!

 S.B. 1259 goes into effect with the start of the 2015-16 school year.  It does three specific things.

First, it specifies that the “regular education teacher” member of the ARDC must “to the extent practicable, be a teacher who is responsible for implementing a portion of the child’s” IEP.  In other words, don’t just pull a random P.E. teacher out of the hall. Get someone there who will be working with the student in the classroom.

Second, it specifies that the written documentation of the ARDC meeting must include the date of the meeting, the name position and signature of each member participating in the meeting, and “an indication of whether the child’s parents, the adult student if applicable, and the administrator agreed or disagreed with the decisions of the committee.”  More on this in a moment.

Third, each member of the committee who disagrees with the IEP developed by the ARDC is entitled to include a statement of disagreement.

We have had a lot of wrangling of late about this “agree or disagree” business.  For many years our rules required “each member’s agreement or disagreement with the committee’s decisions.”  Federal law has no such requirement, but Texas imposed it via 19 T.A.C. 89.1050(e).

This rule was dropped as of January 1, 2015. Thus current rules have no requirement that each member of the group indicate agreement or disagreement.

But now we have a statute that requires a statement of whether or not the parent (or adult student) and the administrator are in agreement with the decisions made.

This makes sense.  The ARD Committee needs to know, at the conclusion of business, whether or not there is an agreement between the school and the parent/adult student.  If there is a disagreement, the parent/adult student has the right to seek legal recourse.  So it is important for the record to reflect clearly whether or not the parent (or adult student) agrees with decisions regarding identification, evaluation, placement and the provision of a FAPE.  The administrator plays a critical role in this because he/she is identified in the regulations as the “representative of the school district.”

DAWG BONE: GET READY TO CHANGE THOSE IEP FORMS AGAIN!

 

 

Dawg Bones

LEGISLATIVE ALERT! CAMERAS IN THE CLASSROOM!!

 SB 507 will require school districts and charter schools to video record what is going on in certain classrooms.  The bill is about student safety for our most vulnerable kids—those who are in self-contained special education classrooms.  Students who are non-verbal, non-ambulatory and of low cognitive ability are usually served in those classrooms. But there are other kids in a self-contained classroom as well.

This bill is very important, but it does not go into effect until the start of the 2016-17 school year. Thus, school administrators have some time to learn about this one and come up with a plan.  And to hold multiple bake sales and car washes.  SB 507 is an unfunded mandate—exactly the type of thing most of the politicians promised they would not do.

The Commissioner will be adopting rules to clarify how this bill will be implemented, including a more precise definition of the type of classroom which must be recorded. Look for those rules to be proposed sometime this next school year.

The bill specifies that it’s about safety—not teacher evaluation or any other purpose. In fact, you may not allow anyone to regularly or continually monitor the video recording of the self-contained classroom. However, you must permit a person to view the video if they ask to see it in response to a complaint that has been made, and they are “involved in the incident” documented on the video. Expect considerable discussion of what “involved in the incident” means.  This would include the teacher or aide who is “involved” as well as the parent of the student who is “involved.”  On top of that, certain identified district personnel must be given access if they are investigating a complaint about a staff person, or a student.

We will be reviewing this one, and all of the other new legislation, at my annual Back to School Tour this fall. Check out the details of that at: https://legaldigestevents.com/legal-digest-events/back-to-school-workshops-with-jim-walsh/.

DAWG BONE: CAMERAS IN THE SPECIAL ED CLASSROOM—IN 2016. 

 

 

Dawg Bones

LEGISLATIVE ALERT! EPIPENS!!

S.B. 66 is about anaphylaxis and epipens.  It does not require a school district to do anything.  The critical language in the new law says that “Each school district and open-enrollment charter school may adopt and implement a policy regarding the maintenance, administration, and disposal of epinephrine auto-injectors at each campus in the district or school.”  T.E.C. 38.208(a).  This is a law with a “may” not a “shall.”  Every mandate in the bill is contingent on the adoption of that policy. So you don’t have to do anything about this unless and until your board adopts a policy.

But it is likely that school boards will want to adopt a policy about this.  After all, anaphylaxis is a critical safety concern.  Certainly the parents of students with serious allergies will want to know that the district is doing everything it can to provide for student safety.

If your board adopts a policy, you will need to study the bill carefully. It requires training of personnel, compliance with regulations to be adopted by the Commissioner of State Health Services along with the Commissioner of Education, ensuring that you have at least one properly trained person on each campus “during all hours the campus is open,” reports on use of the epipens, and record keeping.

The law says that schools can accept gifts, grants and donations, along with local and/or federal funds to pay for this. This is a completely unnecessary provision, as the school districts already have that authority. But the real purpose of this provision is for the Legislature to once again wash its hands of any financial responsibility.  If school administrators complain of this being another unfunded mandate, your local rep is sure to point out that you are not required to adopt that policy.  Thus it may be “unfunded” but it’s not a “mandate.”  You don’t have to do this.

Right. Try telling that to the parent whose child went to the emergency room last week.

DAWG BONE: GET WITH THE PROPER MEDICAL PROFESSIONALS IN YOUR DISTRICT TO DISCUSS S.B. 66.

 

 

Dawg Bones

NATIONAL SEERSUCKER DAY!

Dear Dawg: We had a school board meeting last night, and six of our seven school board members showed up wearing seersucker suits.  Those six officially reprimanded the other guy. What’s this about?  AM I MISSING SOMETHING?

Dear Am I Missing:  Yes!   You are missing out on NATIONAL SEERSUCKER DAY!  You may have noticed from news reports that many members of Congress donned seersucker yesterday. This tradition was started by Senator Trent Lott of Mississippi in 1996. Senator Lott, intended to “bring a little southern charm to the Capitol.”  The tradition was discontinued in 2012, when members of Congress were fearful that they might be perceived as neglecting the nation’s business in favor of trivial pursuits.

Hold your snarky comments about that.

In any event, the tradition is back.  And apparently your board members have gotten in on the fun.

As to the reprimand, we have to point out that it is null and void.  It was not on the agenda.  So  your six seersucker suited board members may have created a problem for themselves by taking action on an item in violation of the Texas Open Meetings Act.  But we expect it was all in fun, so we hope that your district attorney will look the other way on this one.

DAWG BONE: SECOND THURSDAY OF JUNE IS NATIONAL SEERSUCKER DAY.  CAN NATIONAL POLYESTER DAY BE FAR BEHIND?