Category Archives: Dawg Bones

Dawg Bones

IT’S GETTING HOT AROUND HERE. AND FOOTBALL PRACTICE IS NOT TOO FAR OFF . . .

In 2007, the Texas Legislature beefed up safety requirements in connection with extracurricular activities.  Section 33.201, et. seq. of the Education Code spell out a variety of requirements, including such things as adequate hydration for athletes during practices and games.  I remember in my annual “Back to School” tour for that year predicting that these safety standards would be cited in future cases alleging that the school district, or the coaches, should be held liable for a student injury.

So let me introduce you to the case of Ripple v. Marble Falls ISD.  Blake Ripple alleged that he suffered injuries playing football in high school.  In the suit, he alleged that the district failed to identify him as a student with a disability under Section 504, and failed to “keep him safe from harm and failed to provide him an environment that was not injurious to his physical well-being.”

The school district prevailed in the lawsuit.  The coaches never put Blake back into the game when he was hurt, they had a doctor’s clearance for him each year, and they complied with all of the safety requirements.  The legal wrangling is more complicated than we have time for here, but it’s worth pointing out that one of the allegations was that the student became severely dehydrated after an August practice.  Fortunately for the school district, the coaches were able to produce evidence that they provided water breaks and otherwise complied with the safety requirements.

So today’s Dawg just offers a reminder about these things.  Make sure your coaches review the requirements of Subchapter F of Chapter 33 of the Texas Education Code, which begins with Section 33.201.  Full compliance will be important in the event of future litigation. More important than that, full compliance will go a long way toward maintaining safe conditions for all of the kids.

The case is Ripple v. Marble Falls ISD, decided by the federal court for the Western District of Texas on March 27, 2015.

DAWG BONE: KEEP THAT WATER FLOWING DURING TWO-A-DAYS!

 

 

Dawg Bones

IS THE MISCONDUCT OF A STUDENT WITH A SERIOUS EMOTIONAL DISTURBANCE ALWAYS A MANIFESTATION OF THE STUDENT’S DIABILITY?

If a student has a serious emotional disturbance, along with ADHD, I’m guessing that any misconduct is going to be considered a manifestation of the student’s disability. Right?

Some educators have expressed the view that misconduct by a student with a serious emotional disturbance and/or ADHD is always going to be considered a manifestation of disability. A recent case proves that is not so. The case involved a student who was charged with creating a “shooting list” in his English journal.  The district treated this as a violation of the Code of Conduct and assigned DAEP for 35 days.

The ARDC met to make a manifestation determination on April 12, 2012.  The parents were present, along with an advocate and the boy’s pediatrician, who produced a diagnosis of PDD-NOS, and argued that the behavior was a manifestation.  The issue of autism came up, as it had before. The district offered to conduct an evaluation, but, according to the district, the parents declined to provide consent.  The parties did not complete the process on April 12th, and so they recessed and came back on April 23rd.  However, the parents did not participate in the second session. The ARDC concluded that the making of the shooting list was not a manifestation of the boy’s health impairment or emotional disturbance.

The parents requested a special education due process hearing.  The hearing officer ruled in favor of the school district on all issues except for the manifestation determination. The hearing officer concluded that the boy created the so-called “hit list” as a direct result of his disabilities.

Both sides appealed to federal court.

The hearing officer cited the doctor’s testimony in her ruling in favor of the parents.  But the federal court overturned that ruling, and concluded that the behavior was not a manifestation.  As the court pointed out, the school’s psychologist, “a member of the ARD Committee who actually observed Z.H. in a classroom setting,” rebutted the pediatrician’s view. (Emphasis added).   The parents failed to cite evidence in the record to overcome this.

There is no easy shortcut to a proper manifestation determination. Each one must be considered individually, taking into account all of the relevant information available. It is certainly not as simple as automatically attributing certain behaviors to disability; or automatically discounting a causal connection.

The case is Z.H. v. Lewisville ISD, decided by the U.S. District Court for the Eastern District of Texas on March 2, 2015.  We found it at 65 IDELR 106.

DAWG BONE: MANIFESTATION DETERMINATIONS REQUIRE CAREFUL AND INDIVIDUAL ANALYSIS.

 

 

Dawg Bones

WHAT DOES IT TAKE TO HAVE AN AGE DISCRIMINATION CASE?

Dear Dawg: I’m 64 and got fired by the school district last year.  Now they have gone and replaced me with a young fella.  He’s 63. Do I have an Age Discrimination case?  NOT THAT OLD. 

DEAR NOT THAT OLD:  We’d have to know a lot more about your situation before we’d express any opinion about that. But let’s just start out by saying it would probably be a stretch to convince a court that the school was motivated by age when they replaced an elderly 64-year old with a spring chicken of 63.

This issue came up in a case recently decided by the Houston Court of Appeals.  A charter school teacher was let go, and she alleged that it was based on age. She was 64.  The majority of the Court held that she failed to allege a “prima facie” case because she admitted that she was replaced by a 50-year old.   The Court said that a prima facie case requires allegations to show four critical facts: 1) that you are older than 40; 2) that you are qualified for the job; 3) that your employment was terminated; and 4) that you were replaced by someone younger than 40, or that similarly situated people were treated differently.

The teacher had no problem with the first three factors, but she lost her case based on the 4th factor.  Since her replacement was 50, rather than 39 or younger, the case was doomed to failure.

A dissenting judge asserted that the majority got it wrong.  He cited a Texas Supreme Court case that said the 4th factor was not about being under 40—it was about being younger than the plaintiff. See Mission CISD v. Garcia, 372 S.W.3d 629 (Tex. 2012).  Thus the dissenting judge said that the teacher alleged a prima facie case, and should have been allowed to proceed with her case.

Even if the plaintiff had gotten past that “prima facie” hurdle she would have borne the burden of proving that age was the motivating factor in the termination decision. So to get back to your question, we think that burden of proof would be particularly difficult if the age differential was just one year.

The case is Rosenberg v. KIPP, Inc.  decided by the Court of Appeals for Houston, the 14th District, on January 29, 2015.  We found it at 2015 WL 410454.

DAWG BONE:  AGE DISCRIMINATION CLAIMS REQUIRE PROOF THAT AGE WAS THE MOTIVATING FACTOR.

 

 

Dawg Bones

NEW LAWS! LET’S TAKE A LOOK AT HB4—THE ONE ABOUT PRE-K

After much wrangling and politicking, the Lege did indeed pass a new law regarding Pre-K programs.  The headline on HB 4 is what it did not do.  It did not open the door to more kids to attend Pre-K.  Nor did it fund a full day Pre-K.  Eligibility for Pre-K is still limited to kids who meet certain criteria.  They must be three or four years old and 1) unable to speak English; 2) educationally disadvantaged; 3) homeless; 4) the child of an active duty military parent; 5) the child of a parent injured or killed in military service; or 6) a child who has been in conservatorship.  There were several bills introduced that would have kept these limitations in place for three-year olds, but opened Pre-K to all four year olds. None of those bills passed.

The new law provides Foundation School Program funding for a half-day program.  On top of that, there will be grant funding available for programs that meet certain standards. The grant funding is only available for four-year olds, and cannot exceed $1500/student. The specifics of the grant funding will be established by the Commissioner. The total funding available for this cannot exceed $130 million over the next two years. That would be $65 million per year; if funded to the max, this would help out 43,333 four-year olds.

There was some talk that districts would be required to impose an assessment of sorts on the kids in Pre-K, but that did not happen. The only reference to testing in the bill leaves it optional with the district.  It says that “If the district elects to administer an assessment” then it must include a description and the results of the assessment in its PEIMS data.

Another noteworthy provision creates a new credential: a Child Development Associate (CDA).  Service Centers are authorized to provide training for this.  Districts that seek the grant funding must employ certified teachers who also have a CDA or equivalent training and/or experience. No doubt we will see more rules on this.

Finally, the Lege took advantage of this new law to take another couple of shots at the Common Core. In two places HB 4 emphasizes that Pre-K programs in Texas may not use Common Core standards.  Of course there are no Common Core standards for Pre-K, but you know, we just want to be sure.

DAWG BONE:  WATCH FOR NEW RULES RE: HB 4 AND YOUR PRE-K PROGRAM.

 

 

Dawg Bones

SUGGESTIONS FOR YOUR SUMMER READING LIST . . .

I know you are busy during the summer. Contrary to popular belief, school administrators do not get a three month paid vacation, and in fact, the summertime is often pretty hectic.  But surely you have time to read a book or two.

So here’s my suggestion for the top of your list: “Getting Life” by Michael Morton.  Name sound familiar?  It should.  Mr. Morton is the fellow wrongfully convicted of the brutal murder of his wife.  He spent 25 years as a guest of the Texas Department of Corrections before DNA evidence, The Innocence Project, and a group of incredibly dedicated and talented lawyers wrung his release from the foot-dragging Texas justice system.  Besides being a compelling true life story, the book is noteworthy because Mr. Morton is a gifted writer. He spent his time in prison improving himself, earning both a Bachelor’s and a Master’s degree.   The book gives a chilling portrayal of prison life, counterbalanced with the joy of the simple pleasures of life on the outside after so long behind bars.

There are hundreds of people, wrongfully convicted, who have now been freed due to the work of the Innocence Project. What makes Mr. Morton’s case uniquely inspiring is the genuine forgiveness that he radiates.  He has every reason to be bitter, angry and self-pitying. But there is none of that in the man. I saw him interviewed by Evan Smith of the Texas Tribune at a fundraising dinner recently.  Mr. Smith asked: “How do you keep the anger from spilling out?  How do you repress it?”  Mr. Morton responded: “I don’t repress it. It’s gone. It’s not there anymore.”  The book tells the story of how that happened.

A good book by a good man.  Well worth your time.

DAWG BONE: NO BLUE BELL THIS SUMMER, BUT WE CAN STILL READ GOOD BOOKS.

 

Dawg Bones

CODE OF CONDUCT, ARD COMMITTEES AND CLAIMS OF INNOCENCE

We’re trying to make a manifestation determination, and the parents keep arguing that their child is innocent, that he didn’t violate our Code of Conduct. What to do?

I attended a surreal ARDC meeting many years ago.  Someone at the middle school had started a fire that went out of control and burned the school down.  You will not be surprised to hear that this was a violation of the Code of Conduct.  The principal investigated the matter, and concluded that a student—let’s call him Adam—started the fire.  There was no “smoking gun” as it were, proving that Adam started the fire.  And Adam and his parents vehemently denied that he had anything to do with it.  But the principal felt there was enough evidence for her to conclude that Adam did it.

Adam was in the special education program, so an ARDC meeting was necessary to conduct a manifestation determination.  District practice at the time called for the ARDC meeting to be held prior to the general education due process hearing. So we were in the bizarre position of deciding if Adam’s disability caused him to start a fire that his parents contended he did not start.

I learned a few things from that.  One of them was that the general ed due process procedures should happen first. That’s where the arguments over “guilt or innocence” should be made.  If the principal finds that the student violated the Code of Conduct, and the parents disagree with that, they should take it up with the superintendent or the school board, just as a parent of a non-disabled student would do.  They should not make that argument to the ARDC.

This came up in a recent federal court decision involving a Texas district. The student was assigned to DAEP for 60 days due to a violation of the Code of Conduct that the parents claimed he did not commit.  They requested a special education due process hearing where they continued to assert that the student did not violate the Code of Conduct.  They lost there, and took it on to federal court.  They continued to argue about the Code of Conduct.  The judge ruled in favor of the school district, dismissing the parents’ argument as “not relevant” to the issues the hearing officer was to decide.  In other words, the hearing officer should not have addressed this issue—he should have confined his decision to the manifestation determination.

That may sound strange until you go back to the fundamentals about what a special education due process hearing is about.  Special ed hearing officers have jurisdiction over decisions of the ARDC—not the principal or the superintendent.  The ARDC deals with five things, five issues that can be appealed to a hearing officer: 1) identification; 2) evaluation; 3) placement; 4) the provision of FAPE; and 5) manifestation determinations.  The parents, in this case, were not arguing about any of that.  Even though it was a discipline case, they were not arguing about the manifestation.  Like Adam’s parents long ago, they argued that the kid didn’t do it in the first place.  The court said: that’s not what the ARDC deals with, and it’s not what a special ed hearing officer deals with.

The lesson here is that long term disciplinary action involving a student with a disability requires a two-step process.  The two steps should be kept separate and distinct.  Campus administrators investigate the matter and make a decision about whether or not the student has violated the school’s Code of Conduct. That’s the first step, and, of course, it requires due process. The student must be informed of the charge, and have an opportunity to rebut the charge, or otherwise, tell his or her side of the story.

Then it goes to the ARDC—the Admission, Review and Dismissal Committee—for step two.  The ARDC has two functions.  First, it must make a manifestation determination. Then it must make sure that the student will continue to receive a FAPE—Free Appropriate Public Education.

Thus if the parents are trying to convince the ARDC that the student did not commit the offense, they are making the argument to the wrong body.   If the campus administrators determined that the student committed the offense, and the parents disagree with that, they should take it up on appeal to the superintendent or the school board.  The ARDC lacks the power to overturn the principal’s decision.

The case is C.C. v. Hurst-Euless-Bedford ISD, decided by the federal court for the Northern District of Texas on May 21, 2015.

DAWG BONE: LONG TERM SPECIAL ED DISCIPLINE IS A “TWO STEP.”  DON’T MIX THEM UP.

 

 

Dawg Bones

SAD ACCOMMODATIONS

Dear Dawg: One of my teachers sent me a memo that said: “I am SAD.  I’d like to meet with you to discuss how you can accommodate me.”  What the hell is this about?  He’s SAD?!  Well, I’m so sorry about that. I’ve had my SAD days too, but you press on. What am I supposed to do by way of “accommodation”?  Give him a candy bar?  Tell him to take the day off?  Maybe a nice shoulder rub?  I’ve drafted a response, and I’d like your input. Here’s what I plan to say:

Dear Teacher: I hear you are SAD.  Awwwwww!  You poor thing!!   I am soooooo sorry!  Now kindly get over your self pity and get back in the classroom to do the job we pay you to do.  I am often SAD as well. At other times I am HAPPY.  Sometimes I feel ANGRY.  Like when teachers put their personal problems ahead of their professional responsibilities.  That makes me ANGRY.  Sometimes I get so ANGRY that I fire the teacher.  This makes me HAPPY.  I THINK YOU GET THE MESSAGE.

Waddyathink, Dawg?

Dawg:  We think you should slow down, Pardner.  We expect that the teacher did not mean “sad” but rather, S.A.D.—Social Anxiety Disorder.  This condition, previously called “social phobia” is recognized by the DSM-V as a mental disorder.

This came up in an employment case recently decided by the 4th Circuit. The employee claimed that she was terminated because she had a disability (S.A.D.) and because she sought accommodation for it. The court held that she presented a plausible case, and was entitled to a trial to attempt to prove up her facts.

This is one of the first cases to reach a Circuit Court level that addresses the expansion of the Americans with Disabilities Act.  In 2009, Congress deliberately broadened the scope of this law in an effort to cover more people.  In this case, the employer argued that whatever the plaintiff’s condition, it did not “substantially limit” her in any “major life activity.” The plaintiff asserted that her S.A.D. rendered her substantially limited in her ability to “interact with others.” The employer countered by arguing that “interacting with others” is not a “major life activity.”

The statute (ADA) includes a list of “major life activities” and it does not include “interacting with others.” But the EEOC regulations do include it.  The court held that the ADA list was “nonexhaustive” and it was well within the discretion of the EEOC to include “interacting with others” as a major life activity. The Court looked at it this way:

Few activities are more central to the human condition than interacting with others.  If “bending” and “lifting” are major life activities, [cite omitted] it is certainly reasonable for the EEOC to conclude that interacting with others falls in the same category.”

So don’t blow this off, Buddy.  Call your teacher in for the beginning of the “interactive process.” Keep in mind that S.A.D. as a mental disorder is a serious condition—it’s a long way from simple shyness or slight nervousness in social situations. But if a teacher claims to have this condition, you should explore it, and determine if accommodation is called for, and reasonable.

The case is Jacobs v. North Carolina Administrative Office of the Courts, decided by the 4th Circuit Court of Appeals on March 12, 2015.

DAWG BONE: S.A.D. IS NOT THE SAME THING AS SAD. 

 

 

Dawg Bones

CAN PHOTO ID BE REQUIRED TO ATTEND A SCHOOL BOARD MEETING?

Can we require people who attend our school board meetings to show a photo ID?

More and more government buildings are increasing security by requiring visitors to show a photo ID.  Most of the schools I have visited of late have imposed this requirement, and so I have grown accustomed to being run through the system before I gain entry.  The Attorney General was asked how such a requirement would mesh with the Texas Open Meetings Act.

Courts have made it clear that an “open meeting” must be physically accessible to the general public.  You can’t call your meeting in a private dining room, or in a school office halfway across the state.  Suppose, however, that your local school district adopts a requirement that everyone who comes to the school board meeting must show a proper government-issued photo ID, like the ones you show at the airport. The meeting is “physically accessible.” But if you don’t happen to have one of those IDs, they won’t let you in. Is that OK?

Mr. Paxton’s opinion notes that a lot of fact issues would have to be considered in resolving that question, and his office is not the place to resolve fact issues. But he did render a carefully worded, lawyer-like opinion:

A court is unlikely to conclude as a matter of law that the Open Meetings Act prohibits a governmental body from holding meetings at a location that requires the presentation of photo identification for admittance. 

Interestingly, the Opinion points out that some states (Kentucky, Michigan, Nebraska) have adopted statutes that specifically prohibit any sort of ID requirement. Texas has not, and thus the question was ripe for an AG Opinion.

If your school board is thinking of imposing such a requirement, advance input from your school attorney would be very wise. As the AG Opinion notes, a court addressing an issue like this would probably “weigh the need for the identification requirement as a security measure against the public’s right of access guaranteed under the Act.”  Your attorney can help with that analysis.

The opinion is Attorney General Opinion KP-20, issued on May 11, 2015.

DAWG BONE: BE CAREFUL ABOUT TURNING PEOPLE AWAY AT AN OPEN SCHOOL BOARD MEETING.

 

 

Dawg Bones

IF A LAW FIRM CHANGES ITS NAME, IS IT THE SAME LAW FIRM?

It’s a big day for us at the law firm formerly known as Walsh, Anderson, Gallegos, Green and Trevino!  We have changed our name!  We are now:

WALSH, GALLEGOS, TREVINO, RUSSO and KYLE

And yes, we are absolutely the very same firm.  Only the name (and the letterhead, the business cards, the website, the coffee mugs, the baseball caps, the pens and the other swag) has changed.

What brought this about?  Well, as many of you know, Dorcas Green left us recently to travel to Ireland and other fine places and otherwise enjoy retirement with her husband Gary.  So it was time to drop the “Green” and add the next in line.  But since we were going to need to change the name in light of Dorcas’s departure, we decided it was time to make an additional change as well. Denise Anderson retired from the firm some years ago. We kept her name in accordance with State Bar regulations, and Denise has stayed in touch with us and done occasional work, when not otherwise occupied playing with her grandchildren in Arkansas.  We decided we wanted to use the firm name to promote those lawyers who are still actively practicing with us, the ones that you know.  Moving Elena Gallegos’s name up a notch was also a way for us to celebrate our two-state practice, since Elena inaugurated our Albuquerque office.

Elena and I made a phone call to Denise to let her know that we thought it was time to drop her name from our corporate title. Denise was most gracious about this, as we knew she would be.

So today is the day!  I am very pleased to see my longtime partners, Bob Russo and Paige Kyle, both in our San Antonio office, attain this recognition.  Oscar Trevino has served as our leader and managing shareholder for over a decade, and so I am pleased also to see his name move up a notch.  Elena now enjoys the second longest tenure among the lawyers in our firm. She clerked for us while attending UT Law School, and then joined the firm upon graduation. She has been here her entire career, first in Austin and then in New Mexico.

Our state is very diverse, and changing in its demographics. We are proud of the fact that our name reflects that.

So get used to it, folks. As of today, the phone will be answered “Walsh Gallegos.”  The website is www.walshgallegos.com.  Email addresses remain the same, Thanks Be to God!!

Same firm. Same excellent service.  A new name for an exciting new day.

DAWG BONE: THE DAWG NOW WORKS AT WALSH GALLEGOS, NOT WALSH ANDERSON.

Dawg Bones

NATIONAL TEACHER OF THE YEAR HAS SOME THINGS TO SAY!

Here is something for Texas educators to brag about—Shanna Peeples, an English teacher at Palo Duro High School in Amarillo, is the National Teacher of the Year!  Just back from being honored in Washington, including sharing a cup of joe with President Obama, Shanna gave an interview to the Texas Tribune.  Here are six things worth noting from that interview.

  1. Relationships matter. When asked how she motivated students to take more challenging classes, Shanna spoke of the importance of relationships:  “A lot of students come in and eat lunch in my room.  We have a lot of dinner table conversations that maybe they are not having with a parent, but they are having with me or another teacher.  That is kind of how we build that relationship with them to help push them, based on what they say they want to accomplish.”
  2. We need more training. Shanna came to teaching directly from journalism which she said gave her a “depth of experience.”  My sense is that she was speaking of “fresh out of college teachers” when she said: “I think for many teacher candidates, we almost need to do what they do with doctors.  I don’t think one semester is enough of student teaching.”
  3. Student mental health. When asked if she sees trauma in her classroom, she said: “That is the most woefully underfunded need of students. It is a sort of invisible need that we don’t think about and that is mental health services…We need a dedicated mental health counselor. We see students that have struggled with depression, severe anxiety, what really seems like post-traumatic stress disorder. They have seen horrible things, and that’s not just my refugee students. That includes regular students growing up with domestic violence. Safety is the number one thing you have to deal with with children in trauma. They have to feel physically safe and emotionally safe. You can’t learn when you are terrified. That is something I hope to bring more attention to in this position. There are particular needs for students in trauma and how trauma is related to poverty.”
  4. Teacher evaluation.  “I am concerned about the idea that is being floated about tying teachers' salaries to test scores.  A discussion we need to have is how you make that system fair.”
  5. Pre-K. “It sounds crazy, but you can tell at the high school end who had Pre-K.  You can see.  Tons of research supports that early intervention pays off in huge dividends down the roads.  It is an initial investment up front, but you are not having to remediate at the other end, which requires expensive solutions.”
  6. Standardized testing. “What you assess drives your curriculum.  The assessment can see what you know, but it can’t see what you can do.  It is notoriously difficult to pick up character, persistence, creativity, innovation, collaboration off a standardized test.”

Members of the Texas Legislature: are you listening to this?  It would be nice if our leaders paid more attention to Shanna Peeples than to Bill Hammond.

The entire interview is at www.texastribune.org/2015/05/08/shanna-peeples-tt-interview/

DAWG BONE: SHANNA PEEPLES KNOWS MORE ABOUT PUBLIC EDUCATION THAN DAN PATRICK DOES.  LET’S LISTEN TO HER.