Category Archives: Dawg Bones

Dawg Bones

DOES THE SCHOOL HAVE TO TRANSPORT A CHILD HOME FROM A PRIVATE, AFTER SCHOOL DAY CARE PROGRAM?

It would have been helpful if the court in New York had ruled on the substantive question presented. The issue comes up fairly often.  The case involved a student with autism and an intellectual disability who attended public school in Bay Shore, New York.  At the end of the school day, on two days of the week, the school district provided special transportation to deliver the boy to an after school program he attended.  The boy’s grandmother usually picked him up from the after school program. But she died.  So the dad asked the school to provide the transportation and the school said no.  The dad sued.

The district court in New York tossed the case out. The parent should have requested a special education due process hearing.  He did not do that. He filed suit in court and the court held that this was premature.  In legal parlance, the father “failed to exhaust his administrative remedies.”  Thus the court had no jurisdiction—end of story.

If the court had ruled on the legal issue, I’m guessing that it would have ruled for the school district.  The district was not paying for the after school program, and had not identified it as something that the student needed in order to receive FAPE (Free Appropriate Public Education). The school district provided bus service to the after school program because it would otherwise be transporting the student home.  In that sense, it owed the student transportation at the end of the school day.  But this after school program was chosen by the father, not recommended or paid for by the school.  Thus I would guess that the court would have said that the school had fulfilled its transportation duty by delivering the boy to the after school program.

Cases like this produce sympathy.  No doubt this after school program is beneficial to the student, and I suspect that the father would not go to the trouble of filing a federal lawsuit over the matter if a simpler solution were readily available.  Perhaps he is a single dad, and thus the death of the grandmother puts him in a bind.  But when we apply our cold blooded legal analysis here, we see that this is the type of dilemma that millions of families face, whether there is a disability involved or not.   There is no disability-related need for this transportation service.  The student is not being treated less favorably than other kids.  So I’m guessing the school would have prevailed in this one “on the merits” as the lawyers say.

The case is Licata v. Salmon, decided by the Eastern District of New York on January 12, 2015. We found it on SpecialEdConnection at 64 IDELR 263.

DAWG BONE: “SPECIAL TRANSPORTATION” HAS TO HAVE SOMETHING TO DO WITH THE STUDENT’S DISABILITY.

 

 

Dawg Bones

HOW THE BOARD CAN OVERRULE THE HEARING EXAMINER’S RECOMMENDATION

Yesterday we talked about Judson ISD v. Ruiz, the case where the district terminated the employment of a counselor for failing to report suspected abuse or neglect.  One of the important aspects of that case was the school board’s decision to overrule the recommendation of the hearing examiner.  That is not easily done, but in this case it was done and done properly according to the Court of Appeals.

After hearing the evidence, the hearing examiner concluded that Ms. Ruiz violated board policy by failing to report about the inappropriate text messages her daughter, a student in the district, had received from a district employee.  Despite that conclusion, the hearing examiner recommended that Ms. Ruiz not lose her job.  In the view of the hearing examiner, this violation of board policy did not amount to “good cause” sufficient to fire the employee.  This was largely based on the fact that another Judson employee, who also knew about the text messages and failed to report them, was not terminated.  The hearing officer concluded that the difference in the way the two employees were treated was “so vastly different and without reasonable grounds or adequate consideration, that it rises to the level of being arbitrary and capricious.”  The hearing examiner characterized this as a “finding of fact.”

The school board thought it was more accurately described as a “conclusion of law.”  The distinction is important.  Determining that two employees have been treated differently is a “finding of fact.” But drawing the inference that this disparity “rises to the level of being arbitrary and capricious” is a conclusion of law that ultimately decides the case.  Thus the board asserted its authority to change a “conclusion of law.”  After considering the case as required under the Education Code, the board inserted a “not” into the crucial ruling.  Thus it read that the difference in the treatment of the two employees was “not” so vastly different as to be arbitrary and capricious.  After all, the Education Code says that the board can reject or change a conclusion of law, “including a determination regarding good cause for…termination.”  T.E.C. 21.259(b)(1).

It’s almost impossible for a school board to override the “findings of fact” made by the hearing examiner. But changes to the “conclusions of law” can be done if the board follows the procedure laid out in the Education Code.  That’s what happened here, and the board’s decision was ultimately affirmed by both the Commissioner and the Court of Civil Appeals.  The case is Judson ISD v. Ruiz decided on March 31, 2015.

DAWG BONE: CHANGING A “CONCLUSION OF LAW” CAN BE DONE, BUT PROCEED CAREFULLY AND WITH LEGAL ADVICE.

 

 

 

Dawg Bones

CAN A COUNSELOR BE FIRED FOR NOT REPORTING POSSIBLE CHILD ABUSE? WHAT IF THE CHILD IS HER OWN?

Judson ISD proposed the termination of Maria Ruiz, a counselor, based on Ms. Ruiz’s failure to report suspected child abuse.

The independent hearing examiner assigned to hear Ms. Ruiz’s case, recommended that she not be fired.  But the board fired her anyway.

So Ms. Ruiz appealed to the Commissioner. The Commissioner affirmed the board’s decision to terminate Mr. Ruiz’s employment.

So Ms. Ruiz took her appeal to state court in Bexar County.  There, she won.  The judge ordered that she be reinstated with back pay and benefits.

So the district appealed to the 4th Court of Appeals.  That court has now ruled in favor of the district.

What makes the case particularly interesting is that the child in question was Ms. Ruiz’s daughter, a freshman at Judson High school.  The suspected abuser, Carlos Reyes, was the girl’s mariachi instructor, who was also a paraprofessional and substitute teacher employed by the district.  When Ms. Ruiz came across sexually explicit and inappropriate text messages between her daughter and Mr. Reyes, she and her husband immediately met with Mr. Reyes and his wife and insisted that there be no further communication with their daughter, unless it was specifically about music.

That is a step that most parents would probably take.  But the problem for Ms. Ruiz was that she was not just a parent in this situation. She was also a school employee, subject to policies and laws pertaining to the reporting of suspected abuse. She did not report Mr. Reyes’s conduct to school officials, the police or the child abuse authorities.  About six weeks later, another counselor found out about these text messages, and she reported it to school administrators. They reported to Child Protective Services, and investigations ensued.  Mr. Reyes promptly resigned. Ms. Ruiz did not.

The initial hearing examiner in this case concluded that Ms. Ruiz “did not believe abuse or neglect had occurred” and therefore “did not believe it necessary to contact the police regarding the incident.” But as this case points out, that subjective belief about whether or not “abuse or neglect” has occurred is not the whole story.  The standard is that we must report if we have “cause to believe” that “abuse or neglect has occurred or may occur.” The court’s opinion emphasizes the concern about future abuse: “Thus a finding that Ruiz did not subjectively believe abuse had occurred in the past does not contradict and is not inconsistent with Ruiz having had cause to believe abuse may occur in the future.”

The fact that the child in this case was the counselor’s daughter does not figure in the decision. Child abuse is child abuse, regardless of whose child it is.  The law requires people who have “cause to believe” that abuse or neglect has occurred to do so.  This mandate applies to all of us, but for teachers and counselors the stakes are higher.  For them, the failure to report suspected abuse is a violation of state law, but also, grounds for termination of employment.

The case is Judson ISD v. Ruiz, decided by the Texas Court of Civil Appeals in San Antonio on March 31, 2015.  We will have more to say about this case tomorrow.

DAWG BONE: FAILURE TO REPORT SUSPECTED ABUSE OR NEGLECT CAN COST YOUR JOB.

 

 

Dawg Bones

TINKER SUPPORTS BELL?  WHO KNEW?

Mary Beth Tinker has filed an amicus curiae (friend of the court) brief in Taylor Bell’s case now pending before the 5th Circuit Court of Appeals. This is the case in which Mr. Bell wrote and recorded a rap (Facebook and YouTube) accusing two coaches at his high school of sexual improprieties with students.  Despite the pervasive vulgarity of the rap and its suggestions of violence against the coaches, the 5th Circuit panel that heard the case concluded that the rap was entitled to constitutional protection as an expression of free speech.  The entire en banc Circuit Court will review that decision on May 12th.

Now, free speech icon Mary Beth Tinker has weighed in on the case.  You may recall Ms. Tinker as the former 8th grader who started the whole fuss about students and the First Amendment by wearing a black armband to school in support of a Christmas truce in Vietnam.  That was in 1965.  Fifty years later Ms. Tinker is still rabble rousing.  In 2013-14 she traveled 25,000 miles by bus and spoke to over 20,000 students on the “Tinker Tour.” The purpose was to provide a “real life civics lesson” to schools and communities.

I wonder if the Tinker Tour stopped in Itawamba, Mississippi, home of Taylor Bell.

The amicus brief was authored by Allyson Ho, Counsel of Record for Ms. Tinker, along with lawyers from the Liberty Institute. The Liberty Institute is the Plano-based advocacy group that has promoted the Texas Religious Freedom Restoration Act and supported the plaintiffs in the endless “candy cane” wars in Plano.

The brief refers to the “disturbing facts of this case.”  It describes the rap as “filled with both vulgar language and violent imagery.”  The rap at issue in the case is characterized as “odious.”  The brief carefully avoids encouraging the Court to rule in favor of Mr. Bell.  Its primary emphasis is to encourage the Court not to do anything to suppress student free speech that is politically or religiously motivated.  The brief urges the Court to make “a narrow ruling on grounds entirely separate and apart from Tinker to avoid inadvertently undermining any form of legitimate student speech, particularly religious and political speech.”

Lots of people are interested in this case.  It presents the 5th Circuit a wonderful opportunity to address the continuing relevance of the on campus vs. off campus distinction in the era of social media.  Mr. Bell won the first round based in part on the fact that the rap was supposedly never played at the school.  After all, cell phones were prohibited by school policy. You know how well that works.

The Dawg will continue to monitor this case. Stay tuned.

DAWG BONE: SHOWDOWN AT THE 5TH CIRCUIT ON MAY 12TH.  DON’T MISS IT.

 

 

Dawg Bones

DEAR DAWG:  WHAT THE HECK IS A SCINTILLA?  IS IT ON THE ENDANGERED SPECIES LIST?

Every time I hear the word “scintilla” I envision a small fur bearing mammal.  But you will not hear this word tossed around by nature lovers or protectors of endangered species.  Nope. This is a lawyer’s word, as in “you have not produced even a SCINTILLA of evidence!”

It comes up in the context of teacher nonrenewal when teachers appeal to T.E.A.  The Agency does not conduct a new hearing. It reviews the record, and is required to uphold the board’s decision if it meets the “substantial evidence” standard. Don’t let that word “substantial” fool you.  You don’t need a whole lot of evidence.  A scintilla will do.  A scintilla is a tiny little bit, but in a nonrenewal appeal, it’s enough.

That’s not the case when the board hears the case. There, the administration has to prove its case by a preponderance of the evidence. So said the Commissioner in Whitaker v. Moses and his decision was ultimately affirmed by the Court of Appeals at 40 S.W.3d 176 (Tex. App. Texarkana 2001).

So if the district is pursuing a nonrenewal it needs to prove its case before the board, and then hope the Commissioner can find that scintilla hiding in the record.

DAWG BONE: HAVE MORE THAN A SCINTILLA OF FUN THIS WEEKEND.

 

 

Dawg Bones

DON’T LEAVE OUT THE KEY WORD IN A PROPOSED NONRENEWAL!

We sometimes read news stories from other states about how difficult it is to fire an ineffective teacher.  In fact, a court in California has held that the state has provided such an excessive level of due process that it is virtually impossible to remove a bad teacher from the classroom, thus depriving students of their right to a good education.

Things are different here.  In Texas, a teacher’s contract can be “nonrenewed” at the end of its term as long as the school district follows procedure, meets timelines, and produces a bit of evidence to satisfy the legal standard. That legal standard is not too challenging.

When teacher nonrenewals are overturned by T.E.A. or a court it is usually because of a procedural error by the district. It is rarely because the district failed to satisfy the legal standard.  The legal standard is simply that the nonrenewal is based on one of the reasons set out in district policy. Want to know what those reasons are? Check out your district’s Policy DFBB (Local).  For over 90% of the districts in Texas, that’s where you will find a list of over 30 possible reasons for nonrenewal.

Sometimes the procedural error by the district involves leaving out a single word in the notice that is given to the teacher. That word is “PROPOSED.”  The board is supposed to give the teacher notice of a PROPOSED nonrenewal.  Then the teacher has the right to request a hearing.  If the hearing is requested, the board will act again, after the hearing, to actually renew or nonrenew the contract. If the teacher receives notice of PROPOSED nonrenewal and does not request a hearing, the board still has to take another action.  They have to take formal action to nonrenew the contract.

In other words, for term contracts, this is a two-step process.  The board PROPOSES nonrenewal; and then the board actually nonrenews the contract.

In Castaneda v. Lasara ISD (Dkt. No. 081-R1-502, T.E.A. 2002) the original notice to the teacher left out the crucial word.  On appeal, the commissioner ordered the district to reinstate the teacher with back pay.  Small mistake—big difference.

It’s a good idea to consult with your school’s attorney before proceeding with a term contract nonrenewal.  Getting the right words in the notice to the teacher is just one of the procedural hurdles. There are others. Furthermore, your attorney can help you decide if you have sufficient evidence to satisfy the legal standard.

DAWG BONE: NONRENEWAL SEASON IS HERE!  DOT YOUR I’S AND CROSS YOUR T’S. 

 

 

Dawg Bones

GET READY TO ADDRESS PROBATIONARY CONTRACTS

It’s the time of year when personnel decisions are made.  Chapter 21 of the Education Code imposes a timeline for the renewal or nonrenewal of probationary and term contracts, and that time draws nigh.  So today and tomorrow we will offer a few reminders about this process.

The employment of a probationary teacher can be terminated as of the end of the teacher’s contract if the school board determines that this action is in the best interests of the district.  The process is pretty simple.  Normally, the principal and superintendent go to the board with a recommendation for termination and the board approves it.  Of course the board does not have to approve such a recommendation, but in most instances, it will do so. The teacher is then given written notice of this decision. The teacher is not entitled to a “nonrenewal hearing” like her counterpart down the hall who has a term contract. In fact, the law does not even require an explanation.

However, principals and superintendents should tread carefully here.  The probationary teacher is not without legal recourse.  The teacher can file a grievance internally, and can pursue legal action in court alleging that the termination of contract was based on an improper motive.  If the teacher pursues legal action, the time will come when the principal and superintendent will have to disclose why they believe that the termination was in the best interests of the school district.

Furthermore, even though there is no law requiring that the teacher be told the reasons for the termination, most administrators do have that conversation with the teacher.  In fact, that conversation, sometimes referred to as “the talk” usually comes before the matter goes to the board so that the teacher will have the option of making a graceful exit from the district via resignation.

We encourage you to talk to your school lawyer about any recommendation of termination of a probationary contract.  Your lawyer can provide a good sounding board to determine if the proposed termination is based on job-related, non-discriminatory and non-retaliatory reasons.  Your lawyer can also guide you through “the talk” so as to avoid any claim of harassment, duress or coercion.

DAWG BONE: DON’T GET A FALSE SENSE OF SECURITY IN DEALING WITH PROBATIONARY TEACHERS.  

 

 

Dawg Bones

CAN THE KIDS SUE BECAUSE YOU FIRED THE COACH?

According to the 9th Circuit Court of Appeals, softball players in a California school district can sue the school district over the firing of their softball coach.  The suit alleges that the firing violated the students’ rights under Title IX. They alleged that the firing was an act of retaliation, punishing the students because their coach advocated on their behalf.

The legal issue here is what the lawyers call “standing.”  A person cannot sue another person just because. They have to allege facts to establish that they suffered an injury of some sort.  This case breaks new ground by holding that the players on a high school team have legal “standing” to sue under Title IX when their coach is fired.  “Standing” would not be an issue if the coach had filed the suit. He lost his job. That’s an injury sufficient to get him in the courthouse door.  But the kids?????

Here’s how the court put it:

Coach Martinez gave softball players extra practice time and individualized attention, persuaded volunteer coaches to help with specialized skills, and arranged for the team to play in tournaments attended by college recruiters. The softball team was stronger with Coach Martinez than without him.  After Coach Martinez was fired, [the district] stripped the softball team of its voluntary assistant coaches, canceled the team’s 2007 awards banquet, and forbade the team from participating in a Las Vegas tournament attended by college recruiters. The district court found these injuries, among others, sufficient to confer standing on Plaintiffs. We agree.

This case has drawn a lot of attention from advocacy groups interested in Title IX. Moreover, the U.S. Department of Justice joined in the suit against the district. The court held that the district violated Title IX in a number of ways, but the biggest news here is the ruling that the students can claim “retaliation” based on the termination of their coach.

The case is Ollier v. Sweetwater Union High School District, decided by the 9th Circuit Court of Appeals on September 19, 2014.  It can be found at 768 F.3d 843.

DAWG BONE: TITLE IX INVOLVES MORE THAN A NICE SOFTBALL FIELD. 

 

 

Dawg Bones

ANOTHER JOHN DOE LAWSUIT. THIS ONE DID NOT PAN OUT FOR THE DOE FAMILY.

According to the court’s opinion in Doe v. Dixon, teacher’s aide Kristy Ray Dixon plead guilty to a charge of Improper Relationship Between Educator and Student, a second degree felony.  She was given a ten-year deferred adjudication sentence based on her sexual interaction with a 14-year old boy in Blum ISD.

But she was not held liable in the civil suit filed by the boy’s mother.  Nor were any of the other parties held liable.

Remember the O.J. case?  He was acquitted in the criminal case, but lost in the civil court.  This case went just the opposite way.

The mother filed suit against the teacher’s aide, the principal who supervised her, and the district.  In the suit, the mother alleged claims under both federal and state law.  The federal claim against the principal was dismissed because the facts alleged in the Complaint did not reach the level of “deliberate indifference.” A principal is not personally liable simply because a person he supervises acts badly. There has to be evidence that the principal knew what was happening and responded with deliberate indifference. That was lacking here.

The federal claim against the BISD was also tossed out.   The district is not liable simply because one of its employees acts badly. There has to be evidence that the policy, custom or practice of the district was the cause of the injury.  That was lacking here also.

But what about Ms. Dixon? Why is she not liable for her sexual activities with a 14-year old?

The suit sought to impose liability against Dixon in both her “official” and her “individual” capacities. But she can be liable in the “official” capacity only for what she does under “color of” (i.e., authority) of the district.  Messing around with a 14-year old boy was not part of her job description, and was not authorized by the district.  Therefore, she was not “acting under color of law” when she did this.

So you might assume that the indiscreet teacher’s aide would be liable in her individual capacity. But no.  These claims alleged assault and battery, and the intentional infliction of emotional distress.  These are state law claims.  Under state law, a plaintiff must give notice to a school district professional employee prior to filing suit against that employee. That didn’t happen here. Also, the Texas Civil Practices and Remedies Code specifies that if you sue a school district you are automatically barred from any suit or recovery by the plaintiff against any individual employee regarding the same subject matter. Thus, since she had sued Blum ISD, she could not simultaneously pursue litigation against the principal or the teacher’s aide.

So Ms. Dixon was not held liable by the court for any civil wrong—neither a constitutional violation, nor an assault, nor an intentional infliction of emotional distress.  She lost her job and got a lengthy “deferred adjudication” but all things considered, it could have been a lot worse for her.

If Ms. Doe finds that frustrating, just imagine how she will feel when she gets the bill for the principal’s attorneys’ fees.  The principal had another defense available to him in connection with the “intentional infliction of emotional distress” claim.  He was entitled to “qualified immunity” on that claim.  He was a professional employee, acting within the scope of his employment, exercising judgment or discretion and not using force in connection with student discipline. Therefore, he was entitled to immunity from this suit, and John Doe’s mother is responsible for his costs and attorneys’ fees.

So it goes.  The case was decided by Walter Smith, federal judge for the Western District of Texas on February 11, 2015.  It can be found at 2015 WL 589632.

DAWG BONE: CRIMINAL LIABILITY DOES NOT ALWAYS LEAD TO CIVIL LIABILITY.

 

 

Dawg Bones

HOW SCHOOL ADMINISTRATION IS LIKE BASEBALL

You may or may not have noticed, but the Dawg tries to be somewhat lighthearted, if not downright humorous, in this space on Fridays. We are aware that much (all?) of the popularity of the Law Dawg column over the years was based on the humor content.  Here in the EdLawDaily we cannot possibly be funny every day, but we are trying to maintain a 20% quota for Law Dawg style humor by reserving Friday for amusing developments.

So with that in mind, let me just make note of the fact that the Chicago Cubs will play their first game of the season this Sunday night.  The Cubs are full of hope this year. They have a new manager (Joe Maddon), some promising new players (including John Lester), Wrigley Field is being renovated and they start the season on Easter!  Time for a RESURRECTION!

I don’t look for that to happen.  Jesus spent only three days in the tomb, but the Cubs have been there for 114 years.  Someone once quipped about the Cubs, “Anyone can have a bad century.” But the Cubs are now past the century mark and still losing.  As someone who grew up on the South Side of Chicago—White Sox territory—I take some pleasure in pointing these things out.

The good news, of course, is that baseball is back.  Of all our athletic entertainments, baseball is the most like life…or like school administration for that matter.

How is baseball like school administration you ask?  Let me count the ways.

First, it is daily.  As a school administrator you do not get to practice for six days and play on one.  No—you have to show up and play every day. Have you ever had a practice day of school?  No, you haven’t. Real kids are there every day and you are expected to be at your best every day.  Like in baseball.

Baseball is like school administration because baseball is the only game in which the defense controls the ball.  Have you ever felt really in control of your life? Have you ever felt totally on top of everything in your school district, in control of all events as you survey your domain?  If so, I suggest that you are delusional. You are not in control of Life, nor are you in control of the many students, parents, taxpayers, colleagues and teachers you will encounter today. You are not in control of the budget, the law, the curriculum or just about anything else.  You don’t have the ball—someone else does.  Just like in baseball.

Baseball is like school administration because you do not improve your performance simply by trying harder.  You have to play smart.  You have to be responsive to situations. All you can really do is prepare and make yourself ready for whatever comes.  Basketball and football are adrenaline games—trying harder improves performance.  But baseball is like golf or tennis. Gripping the bat, club or racket tighter will not improve your game.  You can’t play the game with clenched teeth and white knuckles. Being an educator is like that too.

Baseball is like school administration because every player has to be a good team player, but has to be able to handle the solo spotlight also.  When the ball is hit to you, you can’t just pass it to someone else.  When it’s your turn at bat, there is no one who can help you.  (This is why the Designated Hitter rule is an abomination and spawn of the devil).  So you have to be able to perform alone—but you are a member of a team as well.  Kind of like being a principal or assistant principal.

Baseball is like school administration because you have to have a variety of skills.   You can’t be successful with just a single skill, as you can in many other sports.  You have to be able to play the entire game—hitting, fielding, throwing, running--with some degree of skill.  Life is like this.  Schools are like this.  Educators need to be able to think, to learn, to create, to perform, to speak, to write, to relate.

Baseball is like school administration because the whole idea is to get home safely.  The batter approaches the plate in a state of alert focus, well prepared for whatever may come his way.  If he meets with success, he begins his heroic journey around the bases, moving from station to station, avoiding danger with the aid of his teammates until he reaches the safe port of home plate.

Think on these things and have a Good Friday.

DAWG BONE: MAY ALL YOUR FRIDAYS BE GOOD.