Category Archives: Dawg Bones

Dawg Bones

FIRST MAJOR PIECE OF LEGISLATION IN PLACE—SB 149

The Texas Legislature has enacted a new law that will enable some kids to graduate this year, even though they came up short on an End of Course exam…or two.  Governor Abbott has signed SB 149 and it’s in effect NOW. This gives you a very short time frame to put this new provision in place.

It’s interesting to note that the same politicians who put the tough new standards in place change their tune when they see how individual students are affected.  Now, all of a sudden, they create a “pathway to graduation” for students who have met all the other requirements, but failed to perform satisfactorily on an End of Course exam.  It would be a good idea if our representatives would ALWAYS take into account how individual people will be affected by the law.

You need to get busy on this. The law deals with those students who would be graduating this year, but for their performance on EOC exams.  Each such student must have an “Individual Graduation Committee” (IGC) which will be required to consider a slew of information and factors and then decide if the wannabe graduate gets to graduate.  The kid doesn’t “walk” unless the IGC vote is unanimous.  I don’t envy those of you who will be serving on these committees.

The lawyers at my law firm are getting lots of questions about this, and we are happy to help. So give us a call at Walsh, Anderson, Gallegos, Green and Trevino, P.C.

Much more legislation is in the pipeline, but this is the first to hit the street.  Good luck.

DAWG BONE: GRADUATION JUST AROUND THE CORNER AND THE RULES CHANGE! YIKES!!

Dawg Bones

REVOCATION OF CONSENT FOR SPECIDAL EDUCATION SERVICES

The parents revoked consent for us to provide special education services, but this kid is a real behavior problem.  If he commits a serious offense, do we have to do a manifestation determination?

Houston ISD faced that dilemma during the 2013-14 school year. According to the report of a subsequent OCR investigation, the parents revoked consent for special education services on November 7, 2013.  From then until the following March the school suspended the student out of school 16 times.  The district did not consider whether or not this series of removals amounted to a “change of placement.” Nor did the district conduct a manifestation determination.  After all, the student was no longer in the special education program, no longer protected by IDEA.

OCR was brought in to investigate a parent complaint of discrimination over this issue and two others.  OCR did not find the district at fault with regard to any of the three issues presented.  One was dismissed because it was already the subject of another proceeding. A second issue was dismissed for lack of evidence to support it. But on the discipline issue, the district agreed to a voluntary resolution.

That resolution agreement required the district to 1) re-evaluate the student as per Section 504;  2) belatedly conduct a manifestation determination regarding those 16 suspensions; and 3) if the behavior is deemed to be a manifestation of the student’s disabilities, provide compensatory services.

Note that OCR did not order the district to do this and did not express the opinion that the district was required to do this.  The law on this subject is murky.  Parents who revoke consent for services under IDEA should be told very clearly that the protections of IDEA regarding discipline will no longer be provided.  But as to Section 504, we have no clear guidance.  Courts have come to different conclusions about the availability of Section 504 after IDEA services cease.  None of the cases, to date, has directly addressed the issue of student discipline, the notion of “change of placement” and the requirement of a manifestation determination.

The best practice is to consult with your school district attorney on this issue, as it calls for a careful case-by-case analysis.  We found the Houston ISD matter at 65 IDELR 52.   The OCR report is dated November 26, 2014.

DAWG BONE: ON REVOCATION OF CONSENT, GET YOUR LAWYER INVOLVED!

 

 

Dawg Bones

DOES EVERY SCHOOL NEED A FULL-TIME TITLE IX COORDINATOR?

The latest Dear Colleague letter from the OCR reminds us that every school district, college or university that receives federal financial assistance needs to designate someone as Title IX Coordinator. The letter points out that having a Coordinator with genuine authority goes a long way toward keeping your school in compliance with the law.

The letter says that your Title IX Coordinator should not have any conflicts of interest.  What does that mean?  The letter says “For example, designating a disciplinary board member, general counsel, dean of students, superintendent, principal, or athletics director as the Title IX coordinator may pose a conflict of interest.”  So the OCR’s strong suggestion is that you should have a fulltime Title IX Coordinator on staff, someone with no other job duties.

This presents some practical problems, especially in small districts.  Consider Mudflap ISD, where the superintendent starts his day by driving the bus.  He also serves as business manager, director of HR, athletic director, and occasionally substitutes in the math class.  Mudflap does not have a lot of money to be spent on administrative positions.  So they are supposed to hire a fulltime Title IX Coordinator?

The feds don’t seem to recognize that there is a big difference between the University of Texas and Mudflap ISD.

But you ought to read the letter for yourself.  It’s important.  http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201504-title-ix-coordinators.pdf

DAWG BONE:  BE SURE YOU HAVE A TITLE IX COORDINATOR WITH ADEQUATE AUTHORITY AND TRAINING.

Dawg Bones

CAN A TEACHER BE FIRED FOR POSTING A RANT ON FACEBOOK?

Susan Graziosi, a sergeant with 25 years of experience with the Greenville, Mississippi police department, was frustrated.  She had just learned that the PD was sending no one to the funeral of an officer who was killed in the line of duty in the nearby town of Pearl.  This struck the sergeant as disrespectful.  Moreover, it was evidence, to her, of a deeper problem.  She vented on Facebook.

Here are some excerpts:

This is totally unacceptable. 

Dear Mayor, can we please get a leader that understands that a department sends officers of [sic] the funeral of an officer killed in the line of duty?

We had something then that we no longer have….LEADERS.

You’ll be happy to know that I will no longer use restraint when voicing my opinion on things.  Ha!

If you don’t want to lead, can you just get the hell out of the way?

Since some of this was posted on the mayor’s designated public Facebook page, it quickly came to the attention of Sergeant Graziosi’s boss, Police Chief Cannon. The Cannon went boom two days later—he fired the sergeant.

Graziosi sued the city and the chief, alleging that they had trampled all over her free speech rights.  The case went to the 5th Circuit, which ruled in favor of the city and the chief.  The court held that Ms. Graziosi was speaking “as a citizen” when she posted on Facebook.  Posting on Facebook was not a routine part of her job duties.  Even though she clearly identified herself as a police officer, this still qualified as speech “as a citizen” for purposes of the First Amendment analysis.

But to have legal protection for what they say, public employees must not only be speaking “as a citizen,” they must also show that they are speaking about “a matter of public concern.”  This is where Sgt. Graziosi lost the case. The court took into account the form, the context and the content of her remarks, and held that the sergeant’s posts “quickly devolved into a rant attacking Chief Cannon’s leadership.”  It was “akin to an internal grievance” rather than a matter of genuine concern to the general public.

That was enough for the city to prevail in the litigation, but the court proceeded to make one more point: that the city’s interests in maintaining discipline, loyalty and harmony within the police department outweighed Sergeant Graziosi’s interests.  The fact that this was a police department weighed heavily here.  As the court noted, the police department is a “paramilitary organization” where discipline, loyalty and healthy working relationships are particularly important.

So: what about that teacher who takes to Facebook late at night with an attack on the superintendent or principal?   Can the teacher be fired?  Of course, all we can say for sure about that is “it depends.” But this case from Mississippi gives you a good idea of what it depends upon.  Was the teacher speaking “as a citizen” on “matters of general concern”?  Does the school district’s interest in harmony and efficiency in the workplace outweigh the interests of the teacher?

The case is Graziosi v. City of Greenville, Mississippi, 775 F.3d 731 (5th Cir. 2015).

DAWG BONE:  THINK TWICE BEFORE YOU POST ON FACEBOOK. THEN THINK AGAIN. AND THEN THINK AGAIN.

 

 

Dawg Bones

In honor of Mother’s Day, let’s talk about discrimination based on pregnancy!

Happy Mother’s Day to all you mothers out there in Dawgbone Land!  We hope that your loved ones celebrate and honor you all weekend.  As for the legal issues, it just so happens that the U.S. Supreme Court recently weighed in on a case interpreting the Pregnancy Discrimination Act.  What better topic for Mother’s Day!

Peggy Young, UPS driver, filed the suit.  When she got pregnant in 2006 after several miscarriages, her doctor put her under some pretty tight restrictions.  She was told not to lift anything over 20 pounds for her first 20 weeks, and nothing over ten thereafter.

If you’ve ever watched those athletic looking dudes and dudettes popping out of the brown vans, loaded down with packages, you know that this restriction would be a problem.  Sure enough, UPS requires its drivers to lift 70 pounds alone, and 150 with assistance.

Of course there were other UPS drivers that were restricted in lifting, or were otherwise limited in ability to perform, and UPS accommodated many of them.  For example, if you got hurt on the job, UPS would accommodate you.  If you had a condition that qualified as a disability under the ADA, “Brown” would take care of you.  If you were a driver who lost your Department of Transportation certification due to a failed medical exam, they would give you an inside job.

But if you were pregnant and could not lift when your job requires lifting, you were out of luck.  This hit Ms. Young pretty hard.  She ended up staying home without pay, and lost her medical insurance coverage.  With a baby on the way.  Ouch.

So she sued, alleging that UPS discriminated against her based on pregnancy, which is automatically a form of sex discrimination.  UPS responded with the argument that what they did to her had nothing to do with pregnancy. Pregnant women, UPS said, were treated just like everyone else. They would be accommodated if they 1) got hurt on the job; 2) had a condition that qualified for ADA protection; or 3) needed an inside job due to loss of DOT certification as a driver.  UPS said that non-pregnant workers who got injured off the job, like a guy who hurt his back playing pickup basketball on the weekend, would be treated just like Ms. Young. So it didn’t have anything to do with her pregnancy.

UPS won at the district court level and the 4th Circuit. But the U.S. Supreme Court vacated that judgment, holding that the lower courts applied the wrong analysis.  The key language in the law is that pregnant workers must be treated the same “for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.”  The Court’s majority held that this language allows Peggy Young to proceed with her lawsuit.  UPS will have the opportunity to defeat her lawsuit by showing that its refusal to accommodate her delicate condition was a “legitimate, non-discriminatory” reason.  But if Ms. Young can show, for example, that UPS “accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers” she likely has a good case.

Chief Justice Roberts joined the four liberals on this one, and Justice Alito agreed with the judgment, while writing his own concurring opinion. So it is reported as a 6-3 decision in favor of Ms. Young.  Interesting to note that the men on the Court split 3-3.  Ms. Young won because she got the support of all three of the justices who are capable of experiencing pregnancy.

So take that as a Happy Mother’s Day card from the U.S. Supreme Court.  The case is Young v. United Parcel Service, Inc. 135 S.Ct. 1338, decided on March 25, 2015.

DAWG BONE: IF YOU ACCOMMODATE SOME WORKERS, AND NOT THE PREGNANT ONES, ASK YOURSELF: WHAT’S THE EXPLANATION FOR THAT?

 

 

Dawg Bones

If you are using “Restorative Discipline” do you need to change the Code of Conduct?  

 

Many districts are embracing Restorative Discipline or at least moving in the direction of restorative practices in connection with student discipline.  One question that comes up is about the relationship between a restorative approach and the district’s Code of Conduct.

Chapter 37 of the Education Code requires a Code of Conduct, and spells out some of the required content.  The Code does three main things.  First, it notifies the students and their parents of what kind of conduct is expected in the school setting.  Second, the Code lays out the types of misconduct that might lead to exclusionary discipline, such as suspension, expulsion, or DAEP.  Third, the Code spells out some of the due process requirements.

The law makes only a vague reference to the methods you choose to use.  T.E.C. 37.001(a)(8) requires your code to provide the “methods, including options” for 1) managing students; 2) disciplining students; and 3) preventing and intervening in student discipline problems.

So some general statement about your classroom management techniques is probably appropriate for the Code, but this is not the place to go into detailed descriptions of RD or any other program.  Some districts are using (Positive Behavioral Interventions and Supports). Some employ MTSS (Multi-Tiered Systems of Support).  Some are now moving toward RD (Restorative Discipline). Many are seeking to find the best mix of all of these practices, each of which is designed to create a healthy campus climate.  It’s very important that any such plan be implemented faithfully with plenty of training for staff.

Your Code of Conduct will very likely require revision this summer based on new legislation.  In that context, some general statement about “methods” that you use would be appropriate.  But save the detail for the training and implementation.

DAWG BONE: SUMMERTIME APPROACHES.  LET’S START THINKING ABOUT NEXT YEAR’S CODE OF CONDUCT.

 

 

Dawg Bones

Can board members have access to student records? 

Wallace Hall, a member of the UT Board of Regents, has asked for an opinion from the Attorney General about his right of access to records held by UT. Citing earlier AG Opinions, Regent Hall claims “an inherent right of access” to records held by the university.  It may turn out that the AG will not respond to Mr. Hall’s request. The Board as a whole has filed a brief with the AG, asserting that Mr. Hall, as an individual member of the Board, does not have the authority to obtain an official opinion from the AG.

We shall see what happens.   But let’s dive into this issue of board member access to records.  After all, it comes up not just in higher ed, but also with school board members.

Those earlier opinions citing “an inherent right of access” were drawing a distinction between the access of a board member vs. a member of the general public.  They were not specifically addressing the issue of student records.   Some of the records sought by Mr. Hall are “student records.”  This complicates the issue.

The “inherent right of access” cited by board members  is based on state law—the Public Information Act.  Access to student records, however, is governed by federal law—the Family Educational Rights and Privacy Act (FERPA).  Under FERPA, as any good teacher knows, student records can be disclosed to a school official only if that official has a “legitimate educational interest” in the records.  Thus not every teacher has access to all of the student records kept by the school district.

Consider the following hypothetical.  You are a teacher.  You are losing sleep due to the kid who lives next door who is practicing on his new drum set every night until midnight or later.  The aspiring percussionist goes to your school, but is not in your class.  But you are curious about him.   You’d like to find out how he’s doing in school. Perhaps there is information there that you can use to persuade his parents that he ought to knock off the drums a little earlier.  You go to the principal’s office and ask to review his records.

The principal should decline your request.  You may have a “legitimate interest” in learning more about this kid who is robbing you of sleep, but it is not a legitimate “educational” interest.  If your district has adopted TASB Policies, you should look at Policy FL (Local). It will include a definition of “legitimate educational interest.”   Most policies say that the term means that you are 1) working with that student; 2) considering disciplinary or academic action, or an IEP for the student; 3) compiling statistical data; 4) reviewing records to fulfill your professional responsibility; or 5) investigating or evaluating programs.  Checking out the Ringo Starr wannabe does not fit into any of those.

No doubt Regent Hall will argue that he is seeking student records to fulfill his professional responsibility and/or investigating programs. We shall see how Attorney General Paxton responds….if in fact he does. If he does issue an opinion, it will have to address both state law as well as FERPA.  Look for the AG’s Opinion in a future Daily Dawg!

DAWG BONE: SCHOOL OFFICIALS HAVE ACCESS TO STUDENT RECORDS ONLY IF THEY HAVE A “LEGITIMATE EDUCATIONAL INTEREST.”

 

 

Dawg Bones

Can celebrating Cinco de Mayo lead to litigation?  It did five years ago!    

It was Cinco de Mayo Day at the Live Oak High School in the Morgan Hill USD in California.  Celebrations of Hispanic heritage were planned.

Mid-morning that fateful day, a student advised Assistant Principal Rodriguez that “You may want to go out to the quad area. There might be some issues.”  Another student told Mr. Rodriguez that she was concerned about a group of students who were wearing the American flag. The student told Mr. Rodriguez that “there might be problems.”  On orders from his principal Mr. Rodriguez told the kids who were wearing the U.S. flags that they would have to either turn their shirts inside out, or go home for the day.  Mr. Rodriguez  promised the students that if they went home, it would be treated as an excused absence.  Mr. Rodriguez explained to the students that he was concerned for their safety on this particular day.

The principal, Mr. Boden, later testified that he had good reason to be worried about safety.  During his six years as principal he had personally witnessed at least 30 fights on campus.  Some of these involved gangs, and others were between Anglo and Hispanic students.  There was a police officer on campus every day.

On top of that, there had been tension on Cinco de Mayo the year before. A group of Hispanic students walked around school that day with the Mexican flag.  One of them was shouting direct threats of violence against “them white boys.”  The “white boys” responded by installing a “makeshift American flag” on one of the trees on campus and chanting “USA! USA!”.   This tension still simmered a year later.

In short, Principal Boden had good reason to be concerned about safety.  But were his concerns sufficient to justify the restriction of free speech?  Don’t American citizens have the right to say what they want, even if some people may be offended?

Of course they do. But in a school setting, administrators can suppress student speech if they can “reasonably forecast” that substantial disruption is about to occur.   The federal court in California ruled in favor of the school in this case, and the 9th Circuit affirmed that ruling on February 27, 2014. The court held that there was “evidence of nascent and escalating violence at Live Oak” that day.  All things considered, school officials acted reasonably

I listened to the recording of the oral argument of this case. The lawyer representing the Anglo kids sounds like he is from New Jersey, and he is clearly not familiar with the Hispanic heritage of the Southwest. He repeatedly referred to “Cinco de May-o” pronouncing it as if it were a sandwich spread. Even after one of the judges corrected him, he soon reverted to his erroneous ways.  I don’t think this guy could tell a burrito from a quesadilla.

I would have ruled against him just based on that.  The 9th Circuit judges were more…judicious, but they did rule against him.  The case is Dariano v. Morgan Hill USD, 767 F.3d 764 (9th Cir. 2014).

Here’s hoping you have a festive, non-violent and non-litigious celebration of Cinco de Mayo!

DAWG BONE: DON’T HIRE A NEW JERSEY LAWYER IN A CASE INVOLVING CINCO DE MAYO

 

 

Dawg Bones

Does every member of the ARD Committee have to agree or disagree with the decisions made at the meeting?

For as long as I can remember, Texas has required each member of the ARD Committee to indicate whether he or she agrees or disagrees with the decisions made at the meeting.  IEP forms used by school districts accommodated this requirement by including an “agree/disagree” check box next to the name of each of the required members of the Committee.

As of January of this year, this changed.  The Commissioner adopted new rules that dropped the “agree/disagree” requirement.  ARD procedures are spelled out at 19 T.A.C. 89.1050, and they no longer require the “agree/disagree” from each member.

But hold on.  Now there is a bill pending in the legislature (HB 3991) that would go back to the old way of doing business.

Out of curiosity I put out a question on the Council of School Attorneys’ website asking how other states handle this issue. I was informed that Oklahoma and Nebraska require each member of the IEP Team to agree or disagree. But there is no such requirement in Alabama, Connecticut, Georgia, Illinois, Louisiana, New York, Oregon or Utah.

What difference does it make?  Not a lot.  But if Texas wants to keep its procedures pared down to only what the feds require, it should not re-impose this requirement.  Federal law spells out who is supposed to be at the ARDC meeting, but does not require each individual to signify an agreement or disagreement with each decision.  The only time the IDEA speaks of each member “agreeing or disagreeing” is in connection with the report of the “group of qualified professionals” considering whether or not a child has a learning disability.  34 CFR 300.311(b).

It’s an obscure issue, but our special education laws specialize in micro-management. Thus the beat goes on. Keep an eye on HB 3991.

DAWG BONE: DON’T ORDER THOSE NEW IEP FORMS JUST YET.        

 

 

Dawg Bones

IT’S LAW DAY! SHOULD I TAKE MY LAWYER TO LUNCH?

Absolutely, you should take your lawyer to lunch! We always think that’s a good idea, but it is particularly appropriate today, being Law Day.

President Eisenhower first declared the first day of May as “Law Day” in 1957. A few years later, Congress adopted a Resolution making it so.  Thus today is a day when we celebrate and honor the role of law in the creation and maintenance of our republic.

Of course, May 1 is many other things as well. It is International Workers’ Day, celebrated in many Socialist or Communist countries.  May Day was the day when the Soviets paraded all of their military equipment on Red Square.  Do they still do that?

May is when we bust out the Maypole, a rite of spring celebrating fecundity.  “Camelot” celebrated “the lusty month of May.”

Catholic schools honor a May Queen every year—some girl who is usually very pretty and named Mary, Mary Ann, Mary Margaret, Mary Frances, Mary Ellen, Mary Pat, Mary Beth, or Mary Something.  If your name is Karen or Nancy or Susan, you can forget about it.

Speaking of Catholics, in 1955, in a move designed to counter Communism, Pope Pius XII moved the Feast of St. Joseph “the Worker” to May 1.  This could have had important personal implications for the Dawg.

That’s because on top of all these other things, May 1 is my birthday! (Thank you).  The year I was born was prior to 1955, and thus it was not yet the Feast of St. Joseph. The saint of the day back then was St. James. This is how I got my name.  It was my older brother’s idea. Being a pious little 8-year old, he told my parents that I should be named after the saint for that day.  So I became Jim Walsh.  Just think: If I had been born a few years later, I’d be Joe Walsh.  Welcome to The Hotel California!!

For those of you who don’t get that—Google it.

Anyway: Happy Law Day.

DAWG BONE: IT’S LAW DAY. DO SOMETHING NICE FOR A LAWYER.