The term “appropriate” has a special meaning in Title IX cases. When a student sues the school district alleging student-on-student sexual harassment, the student must prove that an “appropriate person” in the district knew about it and failed to respond properly. So who is an “appropriate” person?

Generally speaking the higher ups in the district are more likely to be considered “appropriate.” But there is no hard and fast rule and courts have described this as a “fact-specific” inquiry. The key is that a person is “appropriate” if they have “authority to take corrective action to end the discrimination.” The court:

Put another way, the appropriate person must have the authority to both repudiate the conduct and eliminate the hostile environment.

So waddyathink: if there is hazing occurring on a school sports team, would the coach have the authority to repudiate it? To take corrective action? To end the hazing and eliminate the hostile environment?

According to a recent decision from a federal court in Texas, a baseball coach may very well fit the profile of an “appropriate person.” Since there were plausible allegations that the coach knew of the student-to-student hazing, the court refused to dismiss the case against the school district.

This is a preliminary ruling and the plaintiff still bears a heavy burden of proof. The case is about allegations of student-on-student sexual harassment on the baseball team. The plaintiff alleges one specific incident on a bus, but also a “time-honored hazing tradition” in the school and on this team in particular. Is that true? If so, how much did the coach know about it? If so, what did the coach do about it? Nothing has been decided about any of that.

But this preliminary ruling sends one clear message: inaction by a coach in the wake of personal knowledge of sexual harassment on the team can lead to school district liability. It can also lead to more sexual harassment. Those are two good reasons to make sure that coaches are doing all they can to set the right tone, provide a good example, and remain vigilant about protecting all of the kids on the team.

It’s P.S. v. Brownsboro ISD, decided by the federal court for the Eastern District of Texas on October 24, 2022. It’s published at 2022 WL 14151208.

DAWG BONE: IT CAN ALSO LEAD TO MORE HAZING.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: travels of a teacher’s aide…

NOT TOO LATE TO SIGN UP FOR THE WEBINAR TODAY AT 10! ANDREA GULLEY AND I ON RECENT COURT CASES AND THE LESSONS TO BE LEARNED. GO TO WWW.WALSHGALLEGOS.COM

DEAR DAWG: We have an employee we let go a few months ago, and now she claims that it’s all because she is such an attractive woman that our female principal was jealous of her and how the principal’s husband (also one of our employees) was making eyes at her. You got that? Employee alleges she aroused jealousy in her supervisor because supervisor’s hubby has the hots for employee. So jealous principal cans attractive woman for being an attractive woman.

Would this amount to sex discrimination? THIS DOESN’T AFFECT ME DIRECTLY. I DON’T AROUSE JEALOUSY IN ANYONE.

DEAR THIS DOESN’T: Well, that’s a bit like the situation that developed in Edcouch-Elsa. It’s more complicated in EE, but the gist of the lawsuit is: “I’m good looking. Your husband has noticed. You are jealous. That’s why you fired me.”

In the suit, the plaintiff alleges that she was treated badly because she possessed:

Traits often associated with attractiveness and considered readily observable…such as good physical energy, exuberance, good posture, alertness, good hygiene, interest and pride in appearance; freedom from discomfort or pain; ease of mobility and flexibility, youthful appearance; lack of self-consciousness of personal features; healthy skin tone, tasteful adornment and other subtle traits and characteristics.

The suit alleges “that these ‘endowed gender traits, femininity, physical carriage, or a propensity for graceful aging or defying aging’ spurred her supervisor’s ‘spouse’s “biological or emotional attraction to her.’”

The court dismissed the case. Suits over sex discrimination have to be about discrimination that is based on sex. That may sound kinda obvious, but the court had to spell it out in this case. Importantly, discrimination based on sexual attractiveness is not discrimination based on sex. The court put it like this:

…we construe Cabrera’s claims—however uniquely framed and without commenting on the viability of said claims—to be claims of discrimination based on age and/or sex plus a secondary cause: attractiveness. However, to the extent Cabrera seeks to carve out an independent discriminatory characteristic (i.e., attractiveness), we reject such contention.

In other words, firing a person because they are attractive to the point that your spouse finds them desirable may be small minded, petty, and unfair but it’s not discrimination based on sex.

It’s Edcouch-Elsa ISD v. Cabrera, decided by the Court of Appeals for Corpus Christi-Edinburg on August 11, 2022. It’s published at 2022 WL 3257377.

DAWG BONE: LET’S REMEMBER THE MANTRA: ALL PERSONNEL DECISIONS ARE BASED ON JOB-RELATED, NON-DISCRIMINATORY AND NON-RETALIATORY REASONS.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: how “appropriate” is the coach?

WE’RE ZOOMING WITH THE DAWG TODAY AT 10!! HOPE YOU CAN JOIN ME AND MY SPECIAL GUEST, NONA MATTHEWS.

The Q and A recently updated by the Department of Education includes eight questions about “changes of placement.” Here are some key points:

1. A disciplinary removal of a student from the placement called for by the IEP for more than 10 days in a row is a change of placement. This means that virtually every DAEP assignment is a change of placement. This means the school must provide the parents with two documents: the Procedural Safeguards and a Prior Written Notice.
2. It’s also a change of placement if the student is removed in a series of short term removals (such as suspension) in ways that amount to a “pattern.” That word is defined in the regs to mean any accumulation of removals that 1) add up to more than ten school days; 2) are based on substantially similar behaviors; and 3) because of factors like the length of each removal, the total amount of time, and the proximity of the removals. None of this is new. In the Toolbox we offer suggestions on how to make this “pattern” definition a little more specific.
3. The Q and A does not answer the age-old question: Does a day in ISS count toward the ten days? Instead, it answers that question with a lawyerly “It depends.” Then it recounts the same three factors DOE has always cited to help answer the question. Not very helpful, and this remains an issue that campus administrators and special education directors need to address.
4. Here is something important: “In addition, transportation must be provided to a child with a disability placed in an IAES if transportation is required for the child to access the services provided in the IAES.” That’s important because in Texas the DAEP meets the definition of an IAES and is the most commonly used IAES. Are you transporting students to the DAEP? Based on this Q and A, I think we can safely say that the DOE would come down on you if you are not doing so.

On the next Toolbox Tuesday (November 29) we’ll take a look at Section D, which is all about those IAES programs.

DAWG BONE: TRANSPORTING TO THE DAEP LIKELY TO BE AN ISSUE. GIVE IT SOME THOUGHT.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: can an employee be fired for arousing jealousy?

T.E.A. has issued its Proposed Minimum Standards for Bullying Prevention Policies and Procedures. You have until November 28, 2022 to give feedback on the proposed standards. Given the upcoming Thanksgiving break, this is a short window of opportunity.

The Proposed Standards break down to five components.

1. INSTRUCTION. The standards require that “research-based content designed to reduce bullying” be integrated into instruction that is age-appropriate. This section of the Proposed Standards differentiates instruction for the early primary grades and those in secondary schools, but in all cases it calls for “explicit direct instruction” that bullying behavior is not an “immutable trait.”
2. SCHOOL CULTURE. The standards call for age-appropriate surveys to measure how the school’s culture aligns with the mission, values, and vision of the school. The standards also require the designation of someone who is responsible for the implementation of action plans based on survey results.
3. A COMMITTEE. The standards require a committee on each campus to focus on “prevention efforts and health and wellness initiatives.” This would not necessarily require a new committee, as the standards permit that this committee “be incorporated into an existing committee.”
4. REPORTING. Schools would be required to have “an easy mechanism” for bullying to be reported, either anonymously or not. It’s customary to call for such reports to go to some designated professionals on the campus, but the standards also would require that your policy permit students to report to “any trusted staff member” and that “any staff member aware of such incidents must relay any reports to the appropriately designated staff member.”
5. A RUBRIC OR CHECKLIST. The standards call for “a rubric or checklist to assess an incident of bullying and to determine the LEA’s response to the incident.”

I encourage you to discuss these Proposed Standards with key staff members and formulate a response to the Agency. How do these standards align with existing practice? Do you foresee particular problems with implementation? What do you find ambiguous? Are you clear on what “research-based content” regarding bullying prevention should form the basis of your “explicit instruction”?

Your feedback should be sent to StudentDisciplineSupport@tea.texas.gov with the subject line “Updated Minimum Standards Public Feedback.”

DAWG BONE: YOU WILL BE EVALUATED BASED ON T.E.A.’s STANDARDS, SO PAY ATTENTION.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!

On Fridays here at the Daily Dawg I am recounting my experiences from 25 years ago when I took a semester off from the law firm and worked as a volunteer, unpaid teacher aide in several districts. One of the highlights of that experience was my week at Lubbock High School.

This is a school with a sense of itself as a special place. Which it is. How many Texas school buildings are listed in the National Register of Historic Places? There are grooves in the marble staircases from the trudging feet of thousands of students going back decades. The architecture is distinctive and beautiful. And of course, Buddy Holly.

At Lubbock High I attended a film class, and the teacher told me that LHS was the first school in the state to hire a fulltime teacher of film. She told me that she thought the class should be required of all high school students so that they could apply critical thinking analysis to the information that would be presented to them by film and TV. Amen to that! I saw the teacher make the students aware of how shades of light and dark, along with camera angles were used intentionally to subtly convey the filmmaker’s perspective.

The history class I sat in was taught by Ms. Murray, who skillfully used photographs from the time when the railroads were being built across the country to get the students thinking. She had them notice how people were dressed. Who were the rich people? Who were the workers? How can you tell? The kids were engaged as was I.

I enjoyed talking to Mr. Cates, the principal. By this time in my career I had spent a lot of time in principals’ offices and I enjoyed noticing the differences between an elementary principal’s office and the high school office. The elementary principals’ offices often featured bright colors, flowers, and teddy bears. At the high school it was trophies and game balls. Mr. Cates broke the mold. Instead of being a former coach he had come through the ranks as a fine arts teacher. He explained to me that the LISD board created the Lubbock Exemplary Academic Program (LEAP) in 1979 to create a magnet for bright students throughout the district. It worked. Mr. Cates was proud of the many academic competitions in which LHS students excelled but acknowledged the tradeoff: “We’re not very good in athletics.”

It was a diverse group of students at Lubbock High School, and a noticeably high achieving bunch. I came away from my week in Lubbock encouraged about Texas public schools. Lubbock High School was, and remains, a very good one.

Next Friday: the next stop on the road.

DAWG BONE: AN INSPIRING WEEK IN LUBBOCK.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

I have a Commissioner’s decision to tell you about today, but first a bit of a rant along with a request for feedback. I often drive by a large billboard advertising “The Lawyer That Works!” Does the use of the singular (i.e. “The” Lawyer) not imply that none of the other lawyers work? I go to work every day with an entire firm of lawyers who work hard. The guy is not the only lawyer who works. Furthermore, the claim to be a working lawyer is sort of a minimalist brag, isn’t it? So he works. So what? Does he work hard? Well? Daily? Effectively?

There is another billboard I often see touting “The Lawyer That Rocks.” The guy has a scraggly beard and long locs. I’m glad to see such diversity of personal appearance in our profession. The old stereotype of the uptight lawyer in the three-piece suit is long outdated.

But my primary objection to both billboards is the grammar. Note: “The Lawyer THAT…” Shouldn’t that be “The Lawyer WHO….”?

I don’t think you should hire a lawyer who shows off his poor grammatical skills on a large billboard for all to see.

Then I got to thinking what verb I would use if I were to put up such a billboard: The Lawyer Who ????

This is where I need your feedback. I’m thinking of going with THE LAWYER WHO NAPS.

How does that sound? I have been a napper for a long time, and I think the brief power nap in mid-afternoon is conducive to productivity and a healthy work-life balance. Moreover, it’s grammatically correct. I expect that clients—at least the higher grade of clients—would appreciate that.

Now as to the Commissioner’s case for today, it’s yet another one where the petitioner, an unnamed parent in the North East ISD, was seeking relief that is not available via an appeal to the Commissioner. The parent wanted the Commissioner to straighten the district out with regard to its grievance process. The parent wanted an audit to be done. The parent wanted reprimands to be issued. You can’t get any of that by filing an appeal under T.E.C. 7.057.

It's Parent v. North East ISD, Docket No. 023-R10-003-2022, decided by Commissioner Morath on September 15, 2022.

DAWG BONE: THE LAWYER WHO NAPS! IS THAT A WINNER?

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: a week in Lubbock as a teacher’s aide

One week from today I’m doing a webinar along with Meredith Walker focusing on special education and The Most Relevant Cases to Learn From. Sign up at www.walshgallegos.com.

In the presentations I have done over the past couple of years I have emphasized what I call “the unwritten rule” in special education cases—that the hearing officer or judge is always quietly assessing the comparative reasonableness of the parties. In a case from New York, the court spelled out what it means to be reasonable. This is helpful, since “reasonable” is a subjective and vague term.

The parents in this case were seeking tuition reimbursement for private schooling. The court held that the school district failed to offer FAPE and that the private school where the parents placed the child was “proper” under IDEA. Normally, that would be enough to get an order of tuition reimbursement. But the court considered a third factor—the “equities” which is legalese for the basic fairness of the situation. Key Quote:

Particularly important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.

The court noted that there was “strong evidence that Plaintiffs were part of an organized campaign to shift students from iHope to iBrain, and to thwart the District’s process for preparing IEPs for those students.” (Note both are private schools, but iHope was the school that the public school proposed. The parents preferred iBrain.) Key Quote:

Given Plaintiffs’ conspicuous absence from the CSE meeting [IEP Team] and the systematic, obstructionist behavior in which they engaged that was orchestrated by Mr. Donohue [plaintiff’s lawyer] the IHO and SRO appropriately determined that Plaintiffs did not genuinely consider the proposed placement at iHope.

Rather than using general terms like “reasonable” or “collaborative” the court did us a service by providing a list of factors that courts consider when determining if a parent has acted unreasonably. This is in the specific context of a request for tuition reimbursement, but many of these factors apply across the board. They include:

1. Providing reports to the IEP Team.
2. Attending the IEP Team meetings.
3. Participating in those meetings.
4. Giving timely notice to the school of an intent to place the child in a private school and seek reimbursement.
5. Visiting the placement proposed by the public school.
6. Genuinely considering the district’s proposal.
7. Whether they were determined to place their child in the private school regardless of what the public school offered; and
8. Whether the parents unreasonably delayed anything.

The court also listed two factors that are relevant to the district’s reasonableness: 1) any unreasonable delay; and 2) the overall appropriateness of the district’s conduct.

It’s Neske v. Porter, decided by the federal court for the Southern District of New York, and published by Special Educator at 81 IDELR 157.

DAWG BONE: UNWRITTEN RULE SPELLED OUT.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: lawyer advertising and the Commissioner’s jurisdiction

Today we take a look at Section B of the Q and A recently issued by the Department of Education regarding the discipline of students with disabilities. Section B is very short as it provides an “overview” of the rules and regulations. As an overview, this section is very general, but I noticed three things that are worth mentioning.

First, IDEA simply does not address disciplinary consequences that do not result in exclusion from the classroom. OSEP tells us that schools can use “loss of privileges, after-school detention, or performing community service.” IDEA is concerned about disciplinary practices that remove the student from the classroom in which the IEP places the student.

Second, the Q and A advises that physical restraint should never be used as a disciplinary measure. That does not mean that schools can never use restraint. It means that restraint should be used as an emergency measure, rather than as a form of correction or punishment. This is consistent with Texas law, although it might be relevant that OSEP believes that physical restraint should be used only to prevent “serious physical harm” to the student or others. Texas law expands that to include the prevention of serious property damage.

Third, Question B-1 is the first time in this Q and A that we see the term “interim alternative educational setting” (IAES). Campus administrators should get used to that term. The law authorizes campus administrators to assign a student to an IAES in the event of a “special circumstances” offense. In the Toolbox, we call this Tool #5. Oftentimes campus administrators assign students to the DAEP, but that’s a mistake. The DAEP is a particular kind of IAES, and perhaps it is the only one you have in your district. But the selection of the right IAES for each student is up to the ARDC. So principals, when using Tool #5, should be saying: “I am assigning the student to an IAES and calling for an ARDC meeting so that the ARDC can select the IAES.”

That may sound like a waste of time if your district has nothing to offer other than the DAEP. But it’s not. Even if the DAEP is the only option, the ARDC needs to analyze the student’s IEP, compare it with the services currently available at the DAEP, and, if necessary, tweak, bolster, supplement and support the DAEP to provide services that will enable the student to continue to progress on IEP goals.

Next week we’ll move on to Section C of the Q and A to discuss “change in placement.”

DAWG BONE: DAEP IS AN IAES BUT IT MIGHT NOT BE THE RIGHT IAES.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: clarification on what “be reasonable” means

Stirring phrases can arise from unlikely places. Consider The Case of the Foul-Mouthed Cheerleader that was decided by the Supreme Court last year. In his majority opinion, Justice Breyer noted that public schools are “the nurseries of democracy.” In the context of that case, this meant that school officials should vigilantly protect students who express unpopular opinions. Justice Breyer noted that “popular ideas have less need for protection.”

But I think the phrase “nurseries of democracy” means more than that. The dictionary tells us that “nursery” means “something that fosters, develops or promotes.” It means “a place in which persons are trained or educated.”

If the public school is the “nursery of democracy” we should be intentional about fostering, developing and promoting those habits that are essential to the preservation of our democracy. Being informed. Taking an interest in civic affairs. Developing critical thinking skills. Protecting the freedom of thought, religion, and speech that is fundamental to our system. We should not only seek to foster, develop and promote these habits in the students. We should be good examples.

So we need to vote. You know what tomorrow is, and I suspect that most Loyal Daily Dawg Readers have already voted. For those who haven’t—you know what tomorrow is.

DAWG BONE: LET’S ALL FOSTER, DEVELOP, AND PROMOTE THE HABITS OF GOOD CITIZENSHIP.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!

On Fridays here at Daily Dawg HQ I’ve been telling you about my adventures from a quarter century ago when I took a break from the law firm and worked as a volunteer unpaid teacher’s aide. I started out within commuting distance of my home in Austin, going for a week to Liberty Hill, a week to Leander, and a week to Killeen. Then it was time to hit the road.

I spent the week of October 13 to 17 in a math class at Memorial High School in McAllen ISD. I recall the principal telling me that the teacher in the math class was a good and experienced teacher, but she was recovering from cancer and dealing with treatments that were having side effects. She wore a wig to cover the loss of hair she was experiencing.

Looking back on this whole experience of volunteering to work as a teacher’s aide for all of one week, I wonder what a burden I was to the teacher. I can image the conversation:

TEACHER: He wants to be a teacher’s aide for a week? And you’re putting him in my classroom?
PRINCIPAL: Yes.
TEACHER: What am I supposed to do with him?
PRINCIPAL: I don’t know. He says he wants to be helpful. Give him something to do.
TEACHER: Like what? He won’t even know his way around. Are you sure this guy is not a spy?
PRINCIPAL: Maybe he is. I don’t know. The superintendent says it’s ok. It’s just for a week, OK?

The math teacher did give me some menial tasks to do—copying things and whatnot. The math was not too hard for me, and I was able to help some of the students. I don’t remember too much of my week in McAllen, but I do recall her evident embarrassment when one of the boys in the class said something about “the vato.”

I did not know this word. Looking it up today on various websites I see that it has ambiguous meanings ranging from respectful to not so much. But it was clear that the teacher viewed it as disrespectful and she admonished the boy for referring to me as a “vato.” It was also clear to me that she was slightly embarrassed for this to have happened in her classroom with me present. As if she was to blame. I wonder how much teachers punish themselves with the unrealistic view that they should have total control of a room full of adolescents.

The class I saw her teach was more of a remedial class for students who were either behind or at risk of it. On the one hand I was grateful for that as it meant that the math was not over my head as it would have been if I’d been in an Algebra II or calculus class. On the other hand, it was a struggle to keep the kids engaged in work that they found frustrating and/or irrelevant.

I remember a man I knew who left the superintendency to become a classroom teacher. He loved teaching, particularly math. I thought he had a very good way of responding to the question students often ask about math: when will I need Algebra in “real life?” He explained that solving Algebraic equations was like a workout in the gym. Rarely in life will you be asked to bench press a heavy weight. But the strength and skill you develop in the gym workout will pay off in numerous ways in “real life.” Algebra was like that, he explained.

The teacher in McAllen told me she found it much harder to work with students who were less advanced, less interested in the schoolwork. She also taught higher level classes and found that a lot easier. She had a lot of criticism of TAAS—the 1997 version of STAAR. She said that the math on the TAAS was very basic, but she had to get the kids ready for it, and that meant that she had to dumb down her lessons from a high school to a junior high level. She also blamed TAAS for her being “stuck” teaching Geometry because she had a good track record of students doing well on that part of the test. She had wanted to teach Economics and more high level classes.

My 1997 journal included this:

I end the week admiring her perseverance and courage. I have a hard time making it through a week of this. This is just October—she will still be dealing with some of these unmotivated, off-task kids in April and May. Hang in there, Susie!

So my week in McAllen confirmed a few things that I already knew: teaching is hard. It’s stressful. It takes a lot out of a person. That teacher needs to bring her A Game to the classroom every day, and that is asking a lot. This teacher was carrying something heavy—cancer and the side effects of treatment. But every teacher is carrying something heavy. We usually can’t see it and don’t know about it. They need and deserve more support than our society gives them.

So that was McAllen. Next stop on the Teacher Aide Tour: Lubbock.

DAWG BONE: TEACHERS. THEY CARRY SOMETHING HEAVY EVERY DAY.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.