Category Archives: Dawg Bones

Dawg Bones

CAN WE GO OVER THIS RETIRE/REHIRE THING AGAIN?

There are a few things in school law that I try to avoid.  PEIMS is at the top of the list, but close behind is “retire/rehire.”  Fortunately, there are people in my law firm who understand this stuff well.  Shellie Hoffman Crow recently wrote a summary of the law pertaining to retire/rehire in Time Out, the newsletter we send to our clients.

The main thing to keep in mind is that there are different rules that apply depending on when the person retired.  The critical date is January 1, 2011, which is easy to remember (1-1-11).

Also, there may be “surcharges” that the employing district is responsible for.  Here, the critical date is September 1, 2005.  If the employee retired after that date, surcharges are likely.  There are exceptions for substitutes and those employed less than half time.

TRS requires a monthly certified statement of employment and there are serious (i.e., criminal) consequences for knowingly failing to file this report. Yikes!

In making decisions about how to treat retire/rehire people, you always have to be sure that your decisions will not be viewed as discriminating against those over 40, and you can expect that most (all?) of your retire/rehires are going to be in that cohort.

Finally, how you handle insurance can be complicated.

That’s all I know. If you have questions about this one, please don’t call me. Call Shellie.

DAWG BONE: RETIRE/REHIRE LOOKS LIKE IT’S HERE TO STAY.

Dawg Bones

REPORTING POSSIBLE CHILD ABUSE

I was reporting possible child abuse, as I’m required to do.  For this, I get sued?????

A director of pupil services in Ohio is facing possible personal liability for reporting that a parent was possibly abusing his child. The 6th Circuit held that a reasonable juror could conclude that the report was an act of illegal retaliation.  Thus the court refused to grant the director qualified immunity. The case will proceed to a trial, and the outcome there will depend on what the jury believes to be true.

In 2008, the 6th Circuit held that a false report of child abuse could be considered an act of retaliation against a parent.  Jenkins v. Rock Hill Local School District, 513 F.3d 580.  In the present case, the same court tells us that the truth or falsity of the report is not the crucial issue.  The crucial issue is the motivation of the person who made the report.  Therefore, “a report of child abuse—even if it is not materially false and there is evidence in the record that could support a ‘reasonable basis’ to suspect child abuse—is actionable if the reporter made the report ‘at least in part’ for retaliatory motives.”

This case is in its early stages, and the court did not sort out the many disputed facts.  In fact, because of the procedural posture of the case—a Motion to Dismiss by the director—the court was required to read the complaint in the light most favorable to the parent.  With that in mind, here is what the court cited as evidence that the proverbial “reasonable juror” might cite in finding that the director was improperly motivated:

  1. The report of abuse came just three weeks after the State Department of Education notified the director that the parent had filed a complaint against the district;
  2. Personal animus. A couple of emails the director sent to staff described the parent as having a “long time assumption that what he wants he gets,” and that he was perhaps trying to “force us to spoon feed him information”;
  3. The report of child abuse “embellished or entirely fabricated other allegations, including those that most clearly suggested sexual abuse.”  The court also noted that the director added irrelevant details, describing the parent as “unkempt” “creepy” “verbally aggressive.”

Much of the problem here stemmed from the fact that the director did not personally observe any symptoms of abuse. She reported what she believed the teachers told her. But then the teachers denied telling her many of the things she reported.  This is where the “embellishment” claim comes from.  This, combined with the emails that suggested that this parent needed to be taken down a peg, were enough for the court to allow the case to proceed to a factual determination.

Educators are in a tough position.  You must report suspected child abuse or neglect.  Sometimes, this report will target a parent with whom the educator has had conflict. This opens the door to allegations that the report “at least in part” was improperly motivated.

So take your time.  Make sure you have your facts right.  Check your motives.  Be sure that any report of child abuse is just that—a report of possible child abuse, and not a backhand way of striking back at a parent.

The case is Wenk v. O’Reilly, decided by the 6th Circuit Court of Appeals on April 15, 2015.  It can be found at 115 LRP 16032.

DAWG BONE: MAKE SURE YOUR REPORTS OF POSSIBLE CHILD ABUSE ARE ABOUT CHILD ABUSE, NOT SOME OTHER AGENDA.

Dawg Bones

SAME-SEX MARRIAGE ARGUMENTS HEARD AT SUPREME COURT TODAY!

This is the day when the Supreme Court will hear the arguments about the constitutionality of marriage between people of the same sex.  Due to the high level of interest in this issue, the Court has promised to make the audio and the written transcript of the arguments available by 1:00 pm, Central time.  The arguments will run from 9:00 to 11:30.  Go to www.supremecourt.gov for more information.

The pundits and court watchers think they have this one figured out. They expect at least five members to hold that the U.S. Constitution requires states to recognize same sex marriages.  Of course we won’t know if they are right based on the arguments today. The Court will take its time on this one, probably issuing a decision in June.

It’s interesting to observe how major social change occurs in our open and free society.  As a general rule, major social change tends to start with litigation long before it goes to legislation.  Consider desegregation.  Cases alleging that racial segregation was unconstitutional were bubbling through the judicial system in the late 1940s and early 1950s.  Then in 1954, the Supreme Court issued its landmark Brown v. Board of Education decision.

Litigation happens before legislation because litigation only requires one determined plaintiff.  Legislation requires a majority.  So it is not surprising to see that it takes awhile before a majority is ready to enact major social change into law.  The ruling in Brown was greeted with resistance, delay, and outright defiance.  It took another ten years before public opinion about racial segregation reached the tipping point and Congress was courageous enough to enact the Civil Rights Act of 1964.

Our special education laws provide another example of this.  Litigation by determined parents, seeking public education for their children began in the late 1960s.  By 1975, Congress was ready to enact the law that we now call IDEA.

The same thing has happened with gay marriage.  Long before public opinion on this issue shifted, determined plaintiffs began filing lawsuits challenging state law bans on same-sex marriage.  Now that litigation has reached the country’s highest court, which must definitively decide the issue.

So this is a historic day.  I don’t know about you, but I look forward to listening to the arguments of the lawyers and the questions from the justices.

DAWG BONE:  GET A GROUP TOGETHER IN YOUR SCHOOL TO LISTEN TO THESE ARGUMENTS. BRING POPCORN.

 

 

Dawg Bones

YOGA IN PUBLIC SCHOOLS

Our principal is demonstrating “Downward Facing Dog.” Is this OK in a public school? Isn’t yoga a religious practice?

You won’t be surprised to hear that it happened in California.  The Encinitas Union School District, which serves only K-6 students, implemented an Ashtanga Yoga program as a component of its P.E. offerings.  The program was funded in part by the KP Jois Foundation, whose mission is to “establish and teach Ashtanga yoga in the community.”

The district hired a yoga instructor who was certified by a yoga institute in India.  The classes taught children a series of poses, some Sanskrit words. The teacher also read “Myth of the Asanas” which contains numerous references to Hindu deities.  However, being in a public school, she omitted the parts about the deities.  She did, however, instruct the children to use the word “Namaste,” which she interpreted to mean “respect.”

After using yoga at one school in 2011-12, the district expanded the program to all nine of its schools the following year.  This was again funded, in part, by a grant from the Jois Foundation. The proposal called for a “partnership” between the Foundation and the school district “to deliver a world class mind/body wellness program” and to provide “students, staff and families access to Ashtanga Yoga on a regular basis throughout the year.”

Not everyone in the community greeted this by chanting “Om” while in the lotus position.   Stephen and Jennifer Sedlock sued the district, its superintendent and all five school board members. The suit alleged that the district was promoting the Hindu religion, in violation of the U.S. and California constitutions.

The California Court of Appeals ruled in favor of the school district.  In its critical ruling, the court observed that “it is clear that while yoga may be practiced for religious reasons, it cannot be said to be inherently religious or overtly sectarian.”

Here are some of the factors that persuaded the court to rule for the school district:

  1. Although the Foundation provided some money, the district maintained complete control over the curriculum, and made sure that it was stripped of anything that even hinted at, or sounded religious. For example, the “lotus position” was renamed “criss-cross applesauce.” The district even dropped the Sanskrit.
  2. Yoga may have religious roots, but that does not mean that its current practice in the district is religious.
  3. The court noted evidence in the record showing that “contemporary yoga is commonly practiced in the United States for reasons that are entirely distinct from religious ideology.” Surveys showed that people practiced yoga primarily for 1) increased flexibility; 2) stress relief; and 3) improvement in physical health.

Yoga is very popular.  It makes sense that some schools might want to teach this to kids, as it is a physical activity that can be practiced for a lifetime.  So we are wondering: is anyone in Texas doing this?  Let me know at jwalsh@wabsa.com.

The case is Sedlock v. Baird, decided by the Court of Appeals, 4th Appellate District, in California on April 3, 2015.

DAWG BONE: IF YOU OFFER YOGA, TAKE OUT ANY RELIGIOUS CONTENT.  THEN ASSUME “CRISS-CROSS APPLESAUCE!”

Dawg Bones

BOYS ON THIS SIDE OF THE CAFETERIA.  GIRLS ON THE OTHER SIDE.  IS THAT OK?

Dear Dawg:  Life is not simple anymore, is it, Dawg?  Of all the ridiculous complaints I have ever had to deal with, I think this one tops them all.  We have a professional busybody in our district who now insists that we are out of compliance with federal law because we separate the boys and the girls in the cafeteria.  You know, we just think it works better this way, and we’ve been doing it for close to a million years.  We don’t know of anyone who has had to undergo extensive therapy later in life because of the trauma.  We are all aware of Title IX and I can assure you that we have a world class softball facility.  But carrying this political correctness into the school cafeteria is a bit much. Will you tell me what law I can cite to tell Ms. Busybody to bother someone else?  MIFFED.

DEAR MIFFED:  Nope. Can’t do it.  Ms. Busybody has a point.  See the Guidance issued by the Department of Agriculture:

http://www.fns.usda.gov/sites/default/files/cn/SP31_CACFP12_SFSP14-2015os.pdf.

The Guidance, issued very recently (March 20, 2015) tells us that “school food authorities” that participate in the Child Nutrition Programs “are not permitted to separate children on any protected basis during the service of Program meals or snacks.”  The Guidance does not tell us what “separate” means. Obviously, if you were to allow one gender to have lunch in a nice air conditioned cafeteria while the other gender suffered in an overheated gymnasium that would be a kind of “separation” that would not be OK. If they are all in the same cafeteria, but in separate Boys and Girls tables, we are not sure if that would be OK.  But probably the humorless bureaucrats at the Department of Agriculture would find fault with that arrangement. After all, the key here is “protected” categories—race, religion, sex.  So the Department would probably look at it this way: If it would not be OK to separate kids by race, then it is not OK to classify and separate them by gender.

We cannot imagine the Lunchroom Nazi instructing the Hispanic kids to sit on one side of the cafeteria while the others sit elsewhere.  We instinctively know that that would be wrong.  Or how about this:  “All you straight kids sit over here; the gays are on that side of the cafeteria.”  No—for many reasons, we know we would not want someone to do it that way. How about: “Christians over here; Jews, Muslims, Buddhists, Hindus, atheists of all stripes, Wiccans and members of the Church of the Flying Spaghetti Monster over here.”  Nope. That would not be a good idea either.

Classifying and separating kids by gender offends most people less than any of these examples, and probably offends many people not in the least.  But in the cold hearted eyes of the Department of Agriculture, it’s all the same thing.

We once bumped into a short book offering 50 ways to divide kids into two groups without ever using the words “boys and girls.”  So if you want to divide the kids into two groups, put your creativity to work.

DAWG BONE:  GENDER SEPARATION IS NOT OK.  EVEN AT LUNCH.

 

 

Dawg Bones

DO YOU KNOW WHAT A “GARRITY WARNING” IS?

You supervise an employee in your school district who is accused of wrongdoing.  If what you have heard turns out to be true, the employee has not only violated school policy—he has committed a crime as well.  The employee could be fired, and could face criminal prosecution.   You are responsible for conducting an investigation into this matter, including an interview of the employee.

It would be a real good idea for you to contact your school attorney and inquire about Garrity v. New Jersey.  This case, cited as 385 U.S. 493, was decided by the U.S. Supreme Court in 1967.  The case established the general legal principle that a public employee can invoke the 5th Amendment right to refuse to incriminate himself when his employer investigates wrongdoing that might lead to criminal prosecution.  Thus, a “Garrity Warning” is due. The warning would advise the employee of the distinction between criminal prosecution vs. administrative proceedings leading to job termination.  The 5th Amendment applies to the criminal aspect only.  If you refuse to answer your employer’s legitimate questions, you might lose your job. But your silence should not be used against you in a criminal case.

Call your attorney about this.  The specific wording of a Garrity Warning is important, and may vary depending on the circumstances. But if you start that conversation by telling your school lawyer that you need help with a “Garrity Warning” I can guarantee that your lawyer will be impressed.

DAWG BONE: H.R. DIRECTORS NEED TO ADD “GARRITY WARNING” TO THEIR VOCABULARY.

 

 

Dawg Bones

PUTTING THE D IN ARD

It’s an Admission, Review and Dismissal Committee.  The title tells you three of the primary functions of the ARDC.  It ADMITS students to the special education program by determining that they are eligible.  It REVIEWS the student’s progress at least once a year.  And it DISMISSES students from special education.

A recent court case from Maine focuses on the dismissal of a student.  The court’s opinion never uses the term “educational need” but that was the main reason that Jane Doe was dismissed from the special education program after seven years of service for her learning disability.  At age 15, Jane was receiving A’s in all of her classes.  Her strong performance in school was corroborated by state-mandated standardized tests. Jane met or exceeded grade-level expectations in both math and reading.

In December, 2012, the district completed Jane’s three-year reevaluation, which showed that she achieved average or higher scores on a battery of tests with only one exception. She scored “low average” on the Rapid Naming Composite portion of the Comprehensive Test of Phonological Processing.

Based on that comprehensive evaluation, along with the classroom grades and standardized test scores, the IEP Team determined that Jane was no longer eligible.  The parents objected, hired two educational experts to test Jane, and took the matter to a due process hearing.

The hearing officer ruled for the school district, and the federal district court affirmed.  The lawyers tried to drag the court into the murky waters of “severe discrepancy” and “standard deviation” and other such arcana. The court dodged it:

As measured by the requirements of the federal regulations, the IEP Team reached this conclusion [that Jane no longer qualified] based on indicia showing that Jane was achieving adequately for her age and meeting State-approved guidelines—Jane’s grades, standardized test scores, and teacher feedback.

Jane’s lawyers tried to focus the court on Jane’s reading fluency scores, and argued that the hearing officer had “veered off course into a consideration of Jane’s academic grades…and scores on Maine’s standardized tests that do not measure reading fluency at all.”

Looking at grades and test scores is hardly “veering off course.” Special education services are designed to assist students with disabilities to achieve at grade level, or as close to it as possible.  Grades and test scores tell us whether the student has achieved that or not.   The evaluation of a student with a learning disability, under both state and federal law, requires a finding that “the child does not achieve adequately for the child’s age or to meet State-approved grade-level standards.”  That makes it pretty clear that achieving at grade level is an important goal.

If the child achieves at grade level, without the provision of special education services, the child does not qualify as a student with a specific learning disability.  It’s really that simple.

The case is Doe. v. Cape Elizabeth School Department, decided by the federal district court in Maine on December 29, 2014. The case is at 64 IDELR 272.

DAWG BONE: YOU ARE NOT A STUDENT WITH A LEARNING DISABILITY UNLESS YOU ARE UNDERACHIEVING. 

 

 

Dawg Bones

THE BOY SCOUTS GOT IN FOR FREE.  HOW ABOUT US?

The Child Evangelism Fellowship of Ohio (CEF) has accused the Cleveland Metropolitan School District of discriminating against it because the district insisted on charging the CEF for the use of district facilities.  The CEF wanted to operate a Good News Club for students after school. The district charged its customary rate of $69.50/hour.

But then the CEF found out that the Boy Scouts were using school facilities for free.  VIEWPOINT DISCRIMINATION!!

The CEF sought an injunction to force their way into school facilities. The federal district court denied the injunction, and the Circuit Court affirmed that decision.

Can school districts pick and choose what groups can use its facilities? Not entirely. The district does have to play fair.  If it makes its facilities available at all, courts are likely to conclude that the district has created a “limited public forum.”  If that be the case, the district “may restrict speech….as long as the restrictions ‘do not discriminate against speech on the basis of viewpoint’ and are ‘reasonable in light of the purpose served by the forum.’”  Miller v. City of Cincinnati, 622 F.3d 524, 535 (6th Cir. 2010) (quoting Good News Club v. Milford Central School, 533 U.S. 98, 106-07 (2001).

So “viewpoint discrimination” is a legitimate complaint…if the facts are right.  The problem for the CEF in this case was that the facts did not support its argument.  True, the Boy Scouts were using school facilities without a cash payment. But the district accepted “in-kind” payment from the Scouts that it deemed worthwhile.  In like fashion, the district permitted a Christian church to hold its services in a school building in exchange for capital improvements to the building that the church provided.

The court’s decision was not unanimous. One judge dissented by noting that the Boy Scouts so-called in-kind payment did not really benefit the school district. The Scouts were given credit for the supplies, uniforms, camping costs and books that it provided to the participants.  These are costs that would normally be borne by the parents—not the district. As the dissenting judge points out, “The District does not explain how payment of these program costs compensates the District for its maintenance and utility expenses—because it does not.”

Good point. So perhaps we have not heard the last of this case.

The case provides a good opportunity for district administrators to review their policies and practices regarding community use of facilities.  Take a look at your Policy GKD and make sure that your practices as well as policies can withstand an accusation of viewpoint discrimination.

The case is Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metropolitan School District, decided by the 6th Circuit Court of Appeals on March 19, 2015.

DAWG BONE:  CHECK OUT POLICY GKD. THEN LOOK AT YOUR ACTUAL PRACTICES.

 

 

Dawg Bones

WHAT IS THE DEADLINE FOR THE THREE-YEAR RE-EVALUATION?

R.C. is a student in the District of Columbia.  In April, 2010, the school district completed an evaluation of R.C. to consider his eligibility for special education services.  Ten months later, on February 8, 2011, his IEP Team met and determined that he was eligible for services.  The court case does not tell us why there was such a long delay, but the dates are relevant because the parent later complained that the student’s three-year reevaluation was not completed on time.

We all know that it is a “three-year” reevaluation, but when does the three year clock start to tick? Is it from the date of the prior evaluation (April, 2010) or the date of eligibility (February, 2011)?

The court concluded that the timeline runs from the date of the previous evaluation.  Thus, if a student’s FIE (Full Individual Evaluation) is completed today, the three-year re-eval would need to be completed by April 20, 2018.

In R.C.’s case, the district missed the deadline.  The court held that this was a procedural error, but found no evidence that the error caused any harm to the parent or the student.   In fact, the court pointed out that “plaintiff has not alleged, much less proven, that R.C. suffered any educational harm from this violation.”

No harm, no foul. The case is Cooper v. District of Columbia, decided by the federal district court for the District of Columbia on December 30, 2014.  We found it at 64 IDELR 271.

DAWG BONE: THREE-YEAR RE-EVAL RUNS FROM DATE OF PREVIOUS EVALUATION. 

 

 

Dawg Bones

COACH STRONG.  COACH SMART.  COACH GOODLOOKING?

We’re just wondering what’s going on at the University of Texas and its coaches.  First they hire a football coach named Strong. Then they hire a basketball coach named Smart.  We’re guessing that whenever Augie Garrido steps down as baseball coach they will be looking for Coach Goodlooking.

Of course all coaches at HookEm U could be described as Coach Rich.  Charlie Strong is the highest paid state employee in Texas.  And Rick Barnes just got paid $1.75 million for getting fired.

It just goes to show that we value athletics a lot in this country.  I once heard a talk by motivational speaker Earl Nightingale in which he talked about how much money a person can expect to make in various occupations. He said it was all based on three factors: 1) how much people want or need the service or product you provide; 2) how well you do it; and 3) how difficult it would be to find someone else to do what you do.

Nightingale said that this analysis applies to every job in every industry.  There is no moral component to the analysis. Drug dealers make a boatload of money because 1) drugs are in great demand; 2) some of them do it very well; and 3) they are hard to replace, especially if they deal with dangerous situations.

Coaches of college athletics in the big revenue sports (football, men’s basketball) make a lot of money because we love those sports so much that a lot of money is there to be had.  And some of them (Mack Brown, Coach K) do it very well.  The pool of talent able to perform at that level is pretty small.  So all three factors favor big bucks.

So think about public school teachers.  Why are they not paid better?

Factor #1: Of course we say that we value our kids’ education enormously, but the proof is in the pudding.  Some of our politicians and business leaders seem to be actively looking for ways to reduce funding.

Factor #2:  The best teacher in the state gets paid about the same as the worst, if their degrees and years of experience are the same.  We have not yet figured out a way to better compensate the teachers who are superstars.

Factor #3:  One teacher retires, and another one comes along.  It’s not hard to find another teacher. It might be hard to find another really good teacher, but the truth is, that’s not what the public demands. We can always find someone who can stand in front of the class.

So if the Nightingale analysis is correct—and I think it is—teachers will probably never be as well compensated as professional athletes or movie stars.  Which makes it all the more important that we find non-monetary ways to make the job of teaching fulfilling and satisfying.

DAWG BONES: EARL NIGHTINGALE’S THREE-FACTOR ANALYSIS LOOKS ACCURATE TO ME. WHAT DO YOU THINK?