Category Archives: Dawg Bones

Dawg Bones

CAN THE SCHOOL BE LIABLE FOR WHAT IT “SHOULD HAVE” KNOWN?

The recent 5th Circuit decision is “unpublished” but it nevertheless sends a strong message about what it takes for a school district to be held liable in a student-to-student sexual harassment case.  The court tells us that schools are liable under Title IX only if they “had actual knowledge of harassment; constructive notice will not suffice.”  Note: the term “constructive notice” is legalese for “you shoulda known.”

This comes from Kelly v. Allen ISD, decided by the 5th Circuit on February 19, 2015.  In the suit, the parents allege that their son was bullied and sexually harassed by another middle school student. The parent had the burden of proving that 1) the district had actual knowledge of the harassment; 2) the harasser was under the district’s control; 3) the harassment was based on the victim’s sex; 4) the harassment was so severe, pervasive and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit; and 5) the district was deliberately indifferent.

The school district asserted that the case fell short on several of those five elements, but exercising judicial economy, the 5th Circuit just focused on factor number one: did the school have “actual knowledge”?  If the parents failed that test, the whole case fails.

The court held that the school did not have actual knowledge of the sexual harassment. The most outrageous incident was the alleged “t-bagging.” (Don’t you just love middle school?).  We choose not to describe what that means.  You can Google it.  What was relevant here was the fact that the t-bagging occurred when teachers were not present. (Good to hear!)  So they didn’t know about it until a student reported it. And when that happened, the school administrators swung into action with a thorough investigation, taking reports from over 50 students.  Disciplinary action was taken.

If the parents had gotten past the “actual knowledge” hurdle, no doubt the school would have stressed that its swift and forceful response showed that it was not “deliberately indifferent.” But this case didn’t get that far. The court said that “The undisputed facts in the record lead to the conclusion that Allen ISD had no knowledge of facts that would permit the inference that [the student] faced a substantial risk of serious harassment, and that no Allen ISD official in fact drew such an inference.”

The Office for Civil Rights continues to urge a “should have known” standard in cases like this, but the courts have consistently rejected that in favor of the tougher standard of “actual knowledge.” This case is the latest example, and it can be found at 2015 WL 690276.

DAWG BONE:  THE 5TH CIRCUIT TELLS US THAT YOU CAN’T BE LIABLE UNLESS YOU KNEW ABOUT IT.

 

 

 

Dawg Bones

WATCH OUT FOR A DISBARRED LAWYER NAMED CROOK.  NOT AN APRIL FOOLS JOKE!

My mother was a great one for April Fools jokes.  One year she packed a lunch for my brother on April 1 as he headed off to school.  It wasn’t until he bit into his sandwich that he found that the only thing between the two slices of bread was a piece of paper that said APRIL FOOLS!

I suppose someone who did that these days might be reported for child abuse. But in my family, we had a sense of humor about these things.  At least I did. Not sure how my brother felt.

Anyway, today is April Fools Day, which seems like a good day to report on the case of Crook v. Galaviz.  Mr. Crook is a convicted felon and disbarred attorney.  His conviction was based on 13 counts of barratry.  Barratry, an offense usually involving a lawyer soliciting clients in an improper fashion, is prohibited by Texas Penal Code 38.12.

Mr. Crook cannot practice law anymore, but apparently, he would very much like to be a teacher.   He wants it so much that he has sued two districts, seeking to override their policies about not hiring convicted felons.   First it was El Paso, and now Canutillo.

You will not be surprised to hear that Mr. Crook lost his case. The federal district court found that the district did not violate the U.S. Constitution by refusing to hire someone with a felony conviction.  The latest challenge alleged, among other things, that Canutillo’s policies subjected Mr. Crook to “double jeopardy” and “cruel and unusual punishment.”   Nope. Those provisions only come into play in criminal prosecutions.

DAWG BONE:  NOT HIRING A CONVICTED FELON IS  USUALLY OK.

Dawg Bones

DO YOU HAVE TO PROVIDE “DUE PROCESS” BEFORE SENDING A STUDENT TO THE DAEP?

A student violates your Code of Conduct and is summarily sent to the DAEP for six weeks.  Lawyer B.J. “Bullfrog” Throttlebottom shows up in your office complaining that the student, his client, was deprived of the Due Process owed to him under the 14th Amendment to the U.S. Constitution.

You call your school district attorney, and relay the conversation with Throttlebottom. Your attorney promptly sends a letter to Bullfrog informing him that “It is impossible to violate your client’s rights to Due Process under the 14th Amendment. He doesn’t have any right to Due Process under the 14th Amendment.  He’s not entitled to ‘due process.’”

Is that so?

It is.  The latest iteration of this by a court came in C.C. v. Hurst-Euless-Bedford ISD.  This is a case in which a student was assigned to DAEP for 60 days for allegedly taking pictures of another student sitting on the toilet.  (Don’t you love middle school?)  Citing an earlier ruling, the court noted that “a student’s transfer to an alternate education program does not deny access to public education and therefore does not violate a 14th Amendment interest.”

This first came up in Texas shortly after the passage of Chapter 37 in the Education Code in 1995.  That’s when the legislature first mandated what we now call DAEPs.  San Marcos CISD assigned Timothy Nevares to DAEP (called AEP back then) and was sued over the Due Process clause of the 14th Amendment. The case went to the 5th Circuit. The court ruled that Neveres was not denied “due process” because no process was due.  “Process” is “due” only if the state (or school district) deprives a person of “life, liberty or property.” Those are the three things protected by the 14th Amendment.  The court held that “Timothy Nevares was not denied access to public education, not even temporarily.  He was only transferred from one school program to another with stricter discipline.”  Nevares v. San Marcos CISD, 111 F.3d 25 (5th Cir. 1997).

This does not mean that school administrators should be cavalier about assigning students to the DAEP.  Constitutional due process is not required, but there are procedures required by state law that are designed to ensure that the student and/or parent is given an opportunity to be heard.   So follow your procedures and provide for a fair consideration of the case.

DAWG BONE: THE 5TH CIRCUIT TELLS US THAT SENDING A STUDENT TO THE DAEP DOES NOT TAKE AWAY “LIFE, LIBERTY OR PROPERTY.”  

 

 

Dawg Bones

T.E.A.’s GENE LENZ CORRESPONDS WITH OSEP ABOUT PROGRESS REPORTS

OSEP wrote to T.E.A.’s Gene Lenz on February 7, 2014 about the duty of school districts to report on the progress of students with regard to their “benchmarks or short-term objectives.”  Most student’s IEPs do not have to include “benchmarks or short-term objectives"—they only need a measurable annual goal.  An IEP must include “benchmarks or short-term objectives” only if the student is scheduled to take an “alternate assessment aligned to alternate achievement standards.”  Our special education law (IDEA) requires schools to keep parents informed of student progress. So Mr. Lenz asked if it was necessary to report on the progress on the short-term objectives, or if reports tied to the annual goal were sufficient.

OSEP responded by quoting the statute, which makes it clear that the duty to report progress is tied into the annual goal, not any shorter term benchmark or objective.  The letter notes that “there is no specific IDEA requirement for reporting to parents on every child’s progress in meeting these benchmarks or short-term objectives.”

This is the kind of tiny detail that may cause many an eye to glaze over, but it does come up in parent complaints.   So Mr. Lenz has done Texas educators a service by seeking clarification of this fine point.  The OSEP letter can be found at SpecialEdConnection, 64 IDELR 283.

DAWG BONE: YOU CAN REPORT ON PROGRESS AS OFTEN AS YOU WANT, BUT THE LAW TIES PROGRESS REPORTS TO THE ANNUAL GOAL.

 

 

Dawg Bones

MARCH MADNESS, OFFICE POOLS, & TITLE IX

Dear Dawg: There is an OFFICE POOL going on here, involving the NCAA tournament.  I have it on good authority that money is being wagered! Isn’t this illegal?  Especially on public school property????  I’M NOT IN ON IT, BUT I HEAR A LOT OF TALK ABOUT KENTUCKY.

DEAR I’M NOT IN: Well, maybe it is illegal, but the Dawg has never seen local prosecutors get too excited about March Madness pools.  Maybe that’s because they are all in one!

We think your bigger problem is if the Office for Civil Rights finds out that your office pool is only for the men’s tournament, and does not include one of equal value for the women.  Those humorless bureaucrats at OCR will bust you for that quicker than you can say “Title IX!”  So either do two pools or none at all.

DAWG BONE: LOOK FOR A “DEAR COLLEAGUE” LETTER ON THIS SOON.

 

Dawg Bones

WHAT’S GOING TO HAPPEN WITH INTERACTIVE EDUCATIONAL GAMES IN THE CLASSROOM?

There is a flap going on in some school districts over Mission US: Flight to Freedom. This is an award winning digital learning game that calls for middle school kids to assume the role of Lucy King, a 14-year old African American held in slavery in pre-Civil War America.  Not surprisingly, some people think the use of games like this for educational purposes is a great idea; while others think the content of this game, and the emotions it will stir up are inappropriate in the school setting.

Reading about this reminded me of a long ago case from Texas, Kingsville ISD v. Cooper, 611 F.2d 1109 (5th Cir. 1980).  Janet Cooper, a History teacher in the district, had her contract nonrenewed by the school board, despite the fact that the school administrators had  recommended her for renewal.  What’s this about?   Ms. Cooper alleged that she was being punished for the exercise of free speech rights in the classroom. Earlier in the year, Ms. Cooper employed a role-playing simulation game, designed to teach students what life was like in rural America during the post Civil War Reconstruction era.   Some folks in the community did not like this, and Ms. Cooper was talked to by the principal and the HR director. But no one ever flat out told her not to use this technique. So she continued. The 5th Circuit was convinced that Ms. Cooper lost her job because of her proper exercise of free speech rights in the classroom.

That case was decided by the 5th Circuit in 1980, but the events occurred all the way back in 1971.  Much has happened since then, both with regard to classroom technology, and the law.  Ms. Cooper might not win her case today.  Courts have curtailed the boundaries of “academic freedom” considerably, especially in the K-12 area.   But it is interesting to see the evolution of educational role-playing from whatever Ms. Cooper did in 1971 to the digital, interactive world of today.

Whatever your district decides to do about games like this, remember that parents in Texas have the right to “opt out” of any school activity that “conflicts with the parent’s religious or moral beliefs.”  T.E.C. 26.010(a).  This is a temporary opt out.  It must be requested in writing. And it is not available to avoid taking a test.

DAWG BONE:  WE WILL SEE SOME INTERESTING CASES INVOLVING CONTROVERSIAL GAMING METHODS.

 

 

Dawg Bones

DR. BIGBRAIN WANTS TO DO A CLASSROOM OBSERVATION. WHAT DO WE DO?

Mr. Jones has exercised his rights under IDEA and is in the process of obtaining an IEE (Independent Educational Evaluation).  The IEE is to be done by eminent and esteemed psychologist, Dr. Bigbrain.  How eminent and esteemed is this guy? Well….he has many letters after his name.  His glasses frequently slip down on his nose so that he can look over them in a very scholarly manner.  He has a neatly trimmed Van Dyke.  There are elbow patches on his tweed jacket. Rumor has it that he smokes a pipe.  He uses big words.  The man is uber-qualified.

And Bigbrain says that his evaluation must include a classroom observation of the child.  Can the school refuse this request?

Yesterday we talked about a federal court case and an OSEP letter about classroom observations by parents and their attorneys.  Both the case and the OSEP letter tell us that IDEA does not give parents the right to demand that they or their attorneys observe in the classroom.

However, observation by a qualified evaluator conducting an IEE should be looked at differently.  Both the court case and the OSEP letter addressed this.  In fact, in the court case, the original hearing officer ordered the district to allow the parents’ independent evaluator to conduct an observation in the classroom. The hearing officer concluded that barring a qualified evaluator from the classroom would interfere with the parents’ right to obtain an IEE.  The school did not challenge that ruling on appeal.  The case is T.M. v. District of Columbia, decided by the federal district court in Washington, D.C., on December 3, 2014.

OSEP sees it the same way.  The OSEP Letter to Savit (February 10, 2014) notes that an observation by a qualified evaluator pursuant to an IEE is not the same as an observation by a parent or attorney: “Therefore, it would be inconsistent with the IDEA for a public agency to have a policy giving third party evaluators only a two hour observation window, because such a limitation may restrict the scope of the IEE and prevent an independent evaluator from fulfilling his or her purpose, unless the LEA also limits its evaluators to a two hour observation period.”

Why the difference? Because IEEs done at public expense are supposed to be conducted under the “same criteria” that the school uses in its own evaluations of students. If the school would include a classroom observation in its evaluation, it must permit the parents to do the same in an IEE.  Likewise, OSEP says the school can limit the IEE observation to two hours only if it also limits itself to that timeframe.

DAWG BONE: REQUESTS FOR CLASSROOM OBSERVATION PRESENT LEGAL ISSUES—RESPOND THOUGHTFULLY. 

 

 

Dawg Bones

CAN THE SCHOOL BAR THE PARENTS FROM CLASSROOM OBSERVATION?

According to a federal court in the District of Columbia, IDEA does not guarantee parents a right of observation of their child in the classroom. Nor does it guarantee that attorneys representing the parent can observe.  This arose in T.M. v. District of Columbia, a case decided on December 3, 2014, and reported by SpecialEdConnection at 64 IDELR 197.

The parents’ argument in this case was based on the notion that IDEA guarantees parents the right to participate in the IEP process in a meaningful way. It also gives parents the right to an IEE (Independent Education Evaluation) if they disagree with an evaluation done by the school.  But the court noted that “the statute is silent on the issue of parental observations.”  The opinion goes on to say that “In the absence of any authority to the contrary, IDEA does not guarantee parents the right to observe on request.  Thus, [the school district’s] decision not to allow T.M.’s parents and attorney to observe when requested was not a denial of FAPE.”

This court decision is consistent with OSEP’s view on the matter.  In Letter to Savit, (February 10, 2014) OSEP says “the IDEA and its implementing regulations do not provide a general entitlement for third parties, including attorneys and educational advocates, to observe children in their current classrooms or proposed educational placements.”

Keep in mind that just because parents do not have the legal right under IDEA to observe in the classroom does not mean that schools must prohibit them from doing so. Most schools permit classroom observation, subject to reasonable rules about frequency, duration and confidentiality. The key is to be consistent and fair about this, with a set of rules that apply to all parents.

What if the parent is obtaining an IEE, and the evaluator wants to do a classroom observation? We will address that issue tomorrow, so check in with the Dawg again then!

DAWG BONE:  IDEA DOES NOT GUARANTEE PARENTS OR LAWYERS THE RIGHT TO OBSERVE IN THE CLASSROOM.

 

 

Dawg Bones

CAN THE SUPERINTENDENT REASSIGN THE PRINCIPAL TO AN ASSISTANT PRINCIPAL JOB?

We all know that superintendents generally enjoy a lot of flexibility in assigning and reassigning staff.  That’s usually part of the superintendent’s job description.  Professional contracts customarily include the statement that the employee understands that he or she is “subject to assignment or reassignment.” But are there any limits on that authority?

This is being litigated in the case of Jenkins v. Crosby ISD. This case began when the superintendent moved a principal to an assistant principal position.  Ms. Jenkins objected, and challenged the authority of the superintendent to make such a move. The argument was based on the theory that “principal” and “assistant principal” are not within the same “professional capacity.”

Ms. Jenkins lost the argument at T.E.A. and appealed that decision to Travis County District Court.  Now, she has lost at that level also. The judge, without a written explanation or analysis, simply affirmed the ruling of the Commissioner.  The superintendent did not violate Texas law, did not change the “professional capacity” of Ms. Jenkins, by moving her from the principal’s job to an assistant position.  The judge affirmed the Commissioner’s ruling that the term “professional capacity” is broad enough to include both positions.  Any further appeal of this case would go to the Court of Appeals, and that would take some time.

While this case supports the notion of broad authority for the superintendent, it is always wise to talk to your school attorney before ordering a reassignment that might be legally challenged.  The legal analysis needs to take into account a number of factors that should be looked at on a case by case basis.

DAWG BONE: PRINCIPAL TODAY; ASSISTANT TOMORROW.  SAME PROFESSIONAL CAPACITY.

 

 

Dawg Bones

YOU’VE HEARD OF “HELICOPTER PARENTS”? HOW ABOUT “DRONE PARENTS”! ANY ISSUES WITH THAT????

Did you know that Texas already has some laws about the flying of unmanned aircraft?  Turns out that there is an entire chapter of the Texas Government Code (423) that addresses this issue.  The statutes spell out when it is lawful and when it is unlawful to take pictures from the sky via “unmanned aircraft” a.k.a. a drone.

The chapter starts out by listing 19 ways in which unmanned aircraft may lawfully capture images. This includes:

*with the consent of the person who owns the real property or lawfully occupies the property; and

*on public real property or a person on that property.

Do you catch that distinction?   If the drone goes over private property, you need the consent of the owner. But if it goes over the public school….no problem. Take as many pictures as you want, even if it includes identifiable students and teachers.

Interesting.  Or as the late Mr. Spock would have said: “Fascinating.”

That’s the current status of state law, but this situation is changing rapidly.  There are also federal regulations about this, and more regs are in the pipeline, so don’t do anything rash until you consult legal counsel.

DAWG BONE: LOOK UP!  A DRONE!!