Category Archives: Dawg Bones

Dawg Bones

MEANINGFUL POSITIVE REINFORCEMENT

REMEMBER THIS: IF YOU HAVE TO MAKE AN ADVERSE PERSONNEL DECISION, EVERY GOOD THING YOU HAVE EVER SAID ABOUT THAT PERSON WILL COME BACK TO HAUNT YOU.

If I’m the lawyer representing the teacher who is facing nonrenewal, I’m going to want to scour the file for any kudos or comments that reflect well on my client. If the latest evaluation shows that my client was doing a great job, you can be sure that I am going to emphasize that.   If the principal has recommended nonrenewal of the band director, you can be sure that I will introduce into evidence the email the principal sent last semester bragging about the great performance of the band in the UIL competition.

This does not mean that you should cease putting out kudos, brags and “attaboys.” Positive reinforcement is a good thing. We are just suggesting that positive reinforcement should be given when you genuinely mean it—not as a “motivational tactic.” I recall the principal who confessed to me that some of the things he had put into memos to the teacher were not a genuine reflection of the performance of the teacher. “I was just trying to pump him up with some positive reinforcement.”

For a supervisor, this is a counterproductive tactic. If the band won first place in the competition, by all means, brag on the band director. Provide recognition in ways that are meaningful. We are just suggesting that positive documentation should be based on positive performance—not wishful thinking.

DAWG BONE: EVERYBODY LOVES POSITIVE REINFORCEMENT. SO GIVE IT OUT WHEN IT IS EARNED—BUT NOT UNTIL THEN.

 

 

Dawg Bones

Directives That Direct

TODAY IS THE MOST ASSERTIVE DAY OF THE YEAR: MARCH 4th (MARCH FORTH!!). THUS, LET US TALK ABOUT HOW TO WRITE A DIRECTIVE THAT DIRECTS.

If you supervise people, you want to be ASSERTIVE when appropriate, without being aggressive. An assertive person simply knows what is important, and expresses it clearly.   When you give an employee a directive, be sure that it directs.   One thing that lawyers who represent teachers clearly understand is that the principal has the authority to issue directives, and that directives must be complied with. I’ve seen testimony like this at nonrenewal hearings:

TEACHER’S LAWYER: Now I understand that Mrs. Smith, a parent of one of your students, complained about you to the principal, and that you and the principal discussed the matter. Is that right?

TEACHER: Yes, that’s right.

LAWYER: What did the principal tell you to do about it?

TEACHER: Nothing specific. We just talked about it, and she gave me her thoughts about what I might do.

LAWYER: Did the principal direct you to apologize to the parent?

TEACHER: No!

LAWYER: Did the principal give you any directives as a result of this conversation?

TEACHER: No. No directives, just some ideas of how it might be handled.

LAWYER: Has your principal ever given you a directive?

TEACHER: Yes.

LAWYER: Did you comply with her directives?

TEACHER: Of course! Every time!!

LAWYER: But on this occasion, you received no directive.

TEACHER: That’s correct.

LAWYER: If your principal had directed you to apologize to Mrs. Smith, would you have done so?

TEACHER: Absolutely! I always comply with my supervisor’s directives.

You see the point that the lawyer is making: the teacher is not guilty of “failing to comply with directives” because no directive was given.

When you write a directive, make sure that it is clear and unambiguous. This is not the time to make nice suggestions and hope that the employee reads between the lines. Directives must be in the lines—not between them.

DAWG BONE: MAKE YOUR DIRECTIVES CLEAR AND UNAMBIGUOUS—NOT BETWEEN THE LINES, BUT RIGHT THERE IN THE LINES THEMSELVES!

 

 

Dawg Bones

IS DOCUMENTATION ALWAYS A GOOD THING?

FOR THE REST OF THIS WEEK AND NEXT, WE ARE GOING TO TALK ABOUT DOCUMENTATION OF PERSONNEL CONCERNS. FIRST OF ALL, LET’S REMEMBER THAT THERE IS GOOD DOCUMENTATION AND THEN THERE IS BAD DOCUMENTATION.

But before we get into that, we have to offer a mea culpa. Yesterday’s Dawg claimed that March 2nd is President Lincoln’s birthday. NOT! As most of you know, March 2nd is Texas Independence Day. Lincoln’s birthday is February 12. The Dawg hangs his tail in shame. We shall be more observant of what Dawg Bone is sent out on which day in the future. Now…on to our topic for today!

The lawyers are fond of telling you “Document. Document. Document.”   That’s good advice. But we need to always keep in mind that documentation will either make you look good or make you look bad. You want documentation that reflects that you are a wise, prudent, fair minded supervisor, holding your staff to high (but fair and equal) standards.   Unfortunately, some documentation does not reflect on us so well.

Here’s an example: We expected better behavior out of a WOMAN of YOUR YEARS. Your conduct was hardly in keeping with your CHRISTIAN values. I thought that your HEART ATTACK last year would get your attention and lead to an improvement in your performance.

I made that one up to demonstrate that it is possible to give a plaintiff four causes of action in a three-sentence memo. If this lady is nonrenewed or terminated she will use this memo to claim discrimination based on 1) sex; 2) age; 3) religion; and 4) disability.

Here’s an example that is not made up: in Mayeaux v. Houston ISD (2014 WL 1340083, S.D. Texas 2014) an at-will employee was terminated for mishandling funds. However, there were corrective memos in her file that also mentioned her excessive absences from work. Those “excessive” absences were all due to her military service. Absences due to military service are “protected,” meaning that they may not be used to justify an adverse personnel decision. The mention of the military-related absences was like a skunk at the garden party. It was enough for the court to refuse to dismiss the case. The court said that Ms. Mayeaux was entitled to a trial to prove that her service in the National Guard was a motivating factor in the district’s decision. Thus the “bad documentation” created by the district came back to haunt the district.

So don’t be writing people up based on factors that are legally protected, such as race, gender, religion, active military service, or a health condition that does not impede performance. That’s the essence of what we mean by “bad documentation.”

DAWG BONE: NOT ALL DOCUMENTATION IS GOOD.

 

 

Dawg Bones

LEGISLATIVE WATCH: TEACHERS CAN USE “DEADLY FORCE”?

Here’s an interesting bill to keep an eye on: The Teacher’s Protection Act. It would permit any educator to use force—including “deadly force”—to protect the teacher, the teacher’s students, or school property. The standard the bill would apply would be “if, under the circumstances as the educator reasonably believes them to be, the educator would be justified” in using force or “deadly force” under various sections of the Penal Code. The educator who uses deadly force under these circumstances would be able to offer a defense to prosecution. Moreover, if the “deadly force” results in death or injury to someone, our force-using educator would be entitled to immunity from civil liability.

Headline writers are already having fun with this: “Texas Teachers Can Gun Down Kids Under Bill.”

This bill also includes a provision that would effectively override your school’s code of conduct. It says that a principal may suspend a student who engages in conduct that contains the elements of the offense of assault, under Texas Penal Code 22.01 against a school employee “regardless of whether that conduct is identified in the student code of conduct as conduct for which a student may be suspended.”

Hmmmm. After reading this statute, we are wondering about three things. First, is there any school code of conduct that does NOT call for a suspension (or harsher penalty) for kids who assault school employees? Second, are the teacher groups in favor of this “deadly force” provision? Third, this being the actual factual birthday of Abe Lincoln: what would Mr. Lincoln think of this????

The bill is H.B. 868, introduced by Rep. Dan Flynn, a Republican from Van. Keep an eye on it.

DAWG BONE: THE LEGISLATURE IS IN TOWN! STAY ALERT!!

 

 

Dawg Bones

DEAR DAWG: WE ARE A CHRISTIAN SCHOOL. CAN WE BUILD OUR STUDENT CODE OF CONDUCT ON BIBLICAL PRINCIPLES?

DEAR DAWG,
I used to be a public school administrator, but I have retired from that business and I’m now serving as principal of a nice little Christian school. I expect that life will be easier for me now. So many laws that apply to the public schools do not apply here. Like Chapter 37.

So I was preparing a new Student Code of Conduct, and thought it would be a good idea to incorporate Biblical principles. We teach THE Bible, and emphasize it as the core textbook for life itself.  So it just seems natural to me that we would also incorporate it into our Code of Conduct. So with that in mind, what do you think about leading off the Code with the following:

If a man has a stubborn and rebellious son who will not obey the voice of his father or the voice of his mother, and, though they discipline him, will not listen to them,  then his father and his mother shall take hold of him and bring him out to the elders of his city at the gate of the place where he lives,  and they shall say to the elders of his city, ‘This our son is stubborn and rebellious; he will not obey our voice; he is a glutton and a drunkard.’ Then all the men of the city shall stone him to death with stones. Deuteronomy 21: 18-21.

Do you think that sets the right tone?
--WANTING TO DO THINGS RIGHT.

 

DEAR WANTING:
Well, we think it’s helpful that the Scripture verse tells us that stoning is to be done with “stones.” But as far as tone….no, we think you could find something more appropriate. You are right that private schools have a lot more flexibility, but we think “stoning” goes a bit too far. You might run into some problems with the local district attorney on that one. Furthermore, your private school is subject to non-discrimination laws, and we notice that this provision only targets one gender. What…you’ve got no “stubborn and rebellious” daughters???? So while we think that incorporating Biblical principles is a great idea, we would suggest something that is less likely to lead to constitutional violations and criminal prosecution. How about: “Train up a child in the way he should go; even when he is old he will not depart from it.” Proverbs 22:6.

DAWG BONE: THE AUTHOR OF DEUTERONOMY WOULD MAKE ONE HECK OF AN ASSISTANT PRINCIPAL.

 

 

Dawg Bones

WHEN DOES THE SCHOOL NEED TO CALL FOR A MANIFESTATION DETERMINATION?

A federal court in Washington has held that the school district is not required to conduct a manifestation determination regarding a student’s conduct until the student is removed for disciplinary reasons for more than 10 school days in a school year. This is a case in which the parents alleged numerous IDEA violations, including that the district did not conduct a manifestation determination when it should have.

The court counted up the days of disciplinary removal and they fell well short of the 10-day standard. In fact, the student was suspended for only a total of six school days over a two-year span. The court noted that the school could have conducted a manifestation, but was not required to do so.

This case, Avila v. Spokane School District #81, is a good illustration of what we call THE FAPE-FREE ZONE. The general rule is that long term disciplinary removals of kids with disabilities require a careful review by the ARD Committee in the form of a “manifestation determination.” Short term removals, on the other hand, can be imposed at administrator discretion. The line of demarcation is 10 days—and that is a cumulative total, meaning that you have to keep track of the days. If a student has been suspended three times, each time for three days, you have used up 90% of your FAPE-FREE ZONE.

The Avila case was decided by the Eastern District of Washington on November 3, 2014. We found it at 64 IDELR 171.

DAWG BONE: YOUR FAPE-FREE ZONE IS TEN SCHOOL DAYS IN THE SCHOOL YEAR, CUMULATIVE. COUNT THOSE DAYS!

 

 

Dawg Bones

THE “DEAR COLLEAGUE” LETTER ABOUT ENGLISH LANGUAGE LEARNERS IS WORTH A GOOD READ…

The Office for Civil Rights at the Department of Education is pumping out “Dear Colleague” letters at a breakneck pace. On January 7th, the subject was ELLs and LEPs—English Language Learner students and Limited English Proficient parents. The letter, which comes from both the DOE and the Department of Justice, is detailed and lengthy, but definitely worth careful study by someone in your district.

For purposes of today’s Dawg Bone, we will just emphasize one part of the letter—the part about ensuring meaningful communication with parents. Here’s a key quote: “School districts and SEAs have an obligation to ensure meaningful communication with LEP parents in a language they can understand and to adequately notify LEP parents of information about any program, service, or activity of a school district or SEA that is called to the attention of non-LEP parents. At the school and district levels, this essential information includes but is not limited to information regarding: language assistance programs, special education and related services, IEP meetings, grievance procedures, notices of nondiscrimination, student discipline policies and procedures, registration and enrollment, report cards, requests for parent permission for student participation in district or school activities, parent-teacher conferences, parent handbooks, gifted and talented programs, magnet and charter schools, and any other school and program choice options.”

Take a careful look at that lengthy list of documents that comprise “essential information.” Keep in mind that the legal duty here is to “ensure meaningful communication.” This is not a passive standard. It calls for “affirmative steps to address language barriers.”

One final note: the Letter cautions against relying solely on a web based automated translation feature: “Utilization of such services is appropriate only if the translated document accurately conveys the meaning of the source document, including accurately translating technical vocabulary. The Departments caution against the use of web-based automated translations; translations that are inaccurate are inconsistent with the school district’s obligation to communicate effectively with LEP parents. Thus, to ensure that essential information has been accurately translated and conveys the meaning of the source document, the school district would need to have a machine translation reviewed, and edited as needed, by an individual qualified to do so.”

DAWG BONE: THE TRANSLATION INDUSTRY IS SURE TO BE A GROWTH BUSINESS FOR THE NEXT FEW DECADES.

 

 

Dawg Bones

RESPONDING TO A LAWSUIT: YOUR THREE BASIC RESPONSES

When someone is accused of wrongdoing they have the opportunity to admit they were at fault and accept the consequences. So, for example, the police officer pulls you over for going 30 in a 20 MPH school zone. You can say: “Yes, I did that, and I am sorry. I am ready to accept the consequences.”

But if you feel that you are being wrongly accused, there are three basic responses available to you.

You can say NO: “NO. I didn’t do that. I’m not guilty.”

Or you can say YES BUT: “YES, I did what you say, BUT there was a good reason. Let me explain.”

Or you can say SO WHAT?: “Yes, I did exactly what you said that I did. SO WHAT?”

We think these three responses apply across the board, from children in school, to poor drivers, to defendants in lawsuits.

Of course, lawyers have special labels to describe these three defenses. The “NO” defense is what we call a “general denial.” Your lawyer files a response to the lawsuit that flat out denies every allegation the plaintiff has made. This puts the burden of proof where it belongs—on the plaintiff who is bringing the lawsuit. You say I was driving 30 in the 20 MPH zone? I deny it! Prove it!!

The “YES BUT” defense is referred to as an “affirmative defense.” It admits the truth of the basic allegation, but then offers a worthy excuse. For example, “YES, I admit that I was driving 30 MPH in the school zone, BUT the blinking light was not blinking, and besides that my mother was in the emergency room, and I was rushing to be by her side.”

The “SO WHAT” defense is usually accompanied by a Motion for Summary Judgment. It acknowledges the truth of the allegation, and then contends that there was no violation of law. “Yes, I was driving 30 MPH. Yes, the light was blinking. But it was a Sunday afternoon and there was no school. No school—no school zone. The speed limit was actually 35.   No violation of the law.”

Most good lawyers will offer all three defenses. “My client didn’t do it, Your Honor. But even if he did, he had a good reason for what he did. And even if it was not such a good reason, what he did is not a violation of law—so toss this case out!”

It’s kind of like playing defense in football. Your football team has three lines of defense: the line, the linebackers, and the secondary. If your linemen stop the play at the line of scrimmage, there is no damage to your team’s cause. If, however, the linebackers stop the play after a gain of 7 yards, you have paid a price. And if the runner runs free for 25 yards before the safety makes the tackle, you have paid a heavy price.

Cases that are dismissed early on are usually dismissed due to the SO WHAT defense. This is accomplished by a Motion to Dismiss early on, arguing that there is simply no basis for legal liability here. For the football analogy—this is a sack or a stop by the line.

If your defense is a YES BUT defense, your litigation costs will be higher. You have to marshal facts and evidence to show the court that there is an “affirmative defense.”

And if that doesn’t work, you are down to a factual struggle over what actually happened. This is when we have expensive jury trials that are long and costly in every sense, even if you “win.” It’s like you prevented the touchdown, but you gave up a lot of yardage.

I know that football season is over, but I still think it’s a pretty good analogy.

DAWG BONE: DEFENDING A LAWSUIT IS LIKE DEFENDING A FOOTBALL PLAY…..SORT OF.

 

 

Dawg Bones

HOW DOES OCR LOOK AT CHARTER SCHOOL ADMISSION POLICIES?

Much can be learned about the thinking of the Office for Civil Rights by reading its report on the investigation of Harmony Public Schools.   Harmony is a very large charter school operator. According to the OCR report, the Harmony school system had 28,500 students as of October, 2014. That’s larger than all but a few colleges in Texas! Those students are served in 15 individual “districts” and 43 charter schools.

The OCR report is based on statistics from the 2011-12 school year, when Harmony served 20,239 students. Here is what caught the eye of OCR: in the specific Harmony schools that OCR looked at, only 11.5% of the students were identified as English Language Learners (ELL). The traditional districts located in the same geographical area had 22.5% ELLs. The Harmony schools served only 2.7% students with disabilities; this compared with 7.3% in the traditional public schools.

What’s going on here? The traditional public school is serving twice as many ELLs and more than twice as many special education students. Discrimination?

OCR concluded that “HPS’ admissions policies and procedures are nondiscriminatory on their face with respect to race/national origin, ELL status, and disability status. HPS selected students for admission to its charter schools through a random lottery. HPS did not request information regarding race/national origin, ELL status or disability status on the application form or during the admission or selection process.”

So far so good. But what about those numbers? OCR was concerned about that, noting that ELL and special education students were “underrepresented” to a “statistically significant” extent. Perhaps it was because of that concern that HPS entered into a voluntary resolution agreement, committing to some changes in their practices. We found this language from the OCR report interesting:

OCR is concerned, however, that the exclusion from admission and enrollment in HPS charter schools of students with a documented history of a criminal offense, juvenile court adjudication or discipline problems may improperly contribute to the lower enrollment of students with disabilities or ELL students in the HPS charter schools.

If OCR finds this troubling, they need to address the Texas Legislature, because what HPS is doing is specifically authorized by state law. Texas Education Code 12. 111(a)(5)(A) allows a charter to “provide for the exclusion of a student who has a documented history of a criminal offense, a juvenile court adjudication, or discipline problems under Subchapter A, Chapter 37.”

Traditional schools, of course, cannot do that. The OCR report is dated November 26, 2014; Docket No. 06-11-5004 from the Southern Division, Dallas Office of OCR. We found it at 114 LRP 50981.

DAWG BONE: CHARTERS CAN BE INVESTIGATED BY OCR TOO!

 

 

Dawg Bones

HARPER LEE’S SECOND NOVEL

DEAR DAWG: I heard that Harper Lee has written a second novel, entitled Tequila Mockingbird. What can you tell us about it? Good for assigning to students?

Yes, we heard those rumors. The story was that Tequila is a sequel to Lee’s famous first novel. In the sequel, an aging Atticus Finch checks into rehab to address his drinking problem, exacerbated by his frustration at the injustice of the Tom Robinson trial. His daughter, Scout, now an adult, teams up with Boo Radley, who has now become a high school band director, to get the old man back on his feet. Romance develops between Scout and Boo. So it’s sort of a romantic comedy. Look for Reese Witherspoon and Jude Law in the movie.

Actually, none of that is true. It’s just that it’s Friday and we wanted to have a little fun. We look forward to Ms. Lee’s new book, Go Set a Watchman. The true story of this book is far more interesting than the rumors. She wrote this one first—before Mockingbird. And it does, indeed, tell the story of a grown up Scout returning to her home in the south, and interacting with her father, attorney Atticus Finch. The manuscript of this novel included flashbacks in which Scout recounted stories from her childhood. Ms. Lee’s editor liked the flashbacks more than the novel, so she suggested that Ms. Lee write a second novel from the perspective of the young girl, Scout.

Thank God for that editor. As a result of that suggestion, we have the classic novel, To Kill a Mockingbird. The Dawg knows some folks who were inspired to become lawyers as a result of Mockingbird and its portrayal of the heroic Atticus Finch. In fact, one of my law partners, Craig Wood from our firm’s San Antonio office, was honored with the Atticus Finch Award a few years ago.

So let’s all hope that Go Set a Watchman is equally inspiring.

DAWG BONE: ANY BOOK THAT HAS A LAWYER AS THE HERO IS OK WITH THE DAWG.