Category Archives: Dawg Bones

Dawg Bones

JUST WHAT EXACTLY DOES “UNPROFESSIONAL” MEAN?

I always scour the local Austin newspaper carefully during and after the annual Midwinter Conference. Frequently I will find a small item that reports something like this: “John Doe, assistant superintendent in the Wayabovenormal ISD, was arrested in Austin on Thursday night. Charges for disorderly conduct and public intoxication are pending. Representatives of the school district were unavailable for comment.”

I saw no such item this year, so KUDOS to all of you who attended Midwinter without getting arrested!

But this brings to mind the term “unprofessional.” You can bet that someone in the Wayabovenormal ISD is going to accuse Mr. Doe of “unprofessional” conduct. But what exactly does that mean?

In workshops I have conducted about employee documentation I have recommended that supervisors think twice before slinging this loaded word around. There are two reasons for that. First, it is very vague. What you think is “unprofessional” may look quite different to someone else. Secondly, the term reflects on character, which means you are likely to get a strong, defensive response. It is not unusual for the recipient of a memo, charged with “unprofessional” conduct, to throw the term right back at the supervisor. “Unprofessional, you say! Hrmph!! Let’s talk about your behavior at last years’ coaches’ conference!”

On the other hand, there are times when “unprofessional” just seems like exactly the right descriptor. So we would not say that this word should never show up in a corrective memo—only that we should think carefully about its use. If you think the employee’s conduct was “unprofessional” can you point to the specific standard that was violated? Did the employee disparage students? Was the employee rude to a parent or colleague? Usually you can cite some local policy or ethical standard that establishes what “professional” means. Falling short of that standard would be “unprofessional.” So we think it is a good idea to tie this term to a standard.

Remember: there is GOOD DOCUMENTATION and there is BAD DOCUMENTATION. Make sure yours is of the GOOD variety. It’s more…..professional.

DAWG BONE: BE CAREFUL WHEN ACCUSING SOMEONE OF “UNPROFESSIONAL” CONDUCT.

 

 

Dawg Bones

CAN YOU DISCRIMINATE BASED ON DISABILITY WHEN YOU DIDN’T MEAN TO?

A federal court has concluded that the Ohio High School Athletic Association may be guilty of disability discrimination, even though it had no intention of doing so. The case illustrates an important point regarding Section 504 and the Americans with Disabilities Act.

The case involved a student with a learning disability who attends a private high school in Cincinnati. He wants to play soccer for his high school team. In Ohio, private schools are part of the OHSAA, so that’s not the issue. The problem is that he doesn’t live in Ohio—he lives across the river in Kentucky. The OHSAA has an “Instate Residency Rule” that simply says you have to live in Ohio to participate in interscholastic sports. There are some exceptions, but none that applied to this student. So his parents went to court to seek an injunction to allow him to play.

They got it.

The court ruled that the parents did not have to prove that the OHSAA acted with any sort of bad intention. They only had to prove that the Association refused to provide an accommodation that was reasonable. The requested accommodation would be deemed “reasonable” unless the OHSAA could prove that granting the request would create an undue burden, or require a fundamental alteration of the program.

The OHSAA was unable to convince the court that granting this waiver would open up the proverbial floodgates. Restricting participation to Ohio residents had no bearing on safety, and was not necessary to prevent “redshirting.” The court was convinced that the Association could craft a limited waiver process “based on easily verifiable, objective criteria” that “would apply to only a narrow pool of potential students, and would not result in a substantial administrative burden.”

The case is Steines v. Ohio High School Athletic Association, decided by the federal court for the Southern District of Ohio on November 10, 2014. We found it at 64 IDELR 165.

DAWG BONE: IF YOU CAN ACCOMMODATE THE DISABILITY WITHOUT “UNDUE BURDEN” OR “FUNDAMENTAL ALTERATION” YOU HAVE TO DO SO.

 

 

 

Dawg Bones

WRONGFUL URINATION ENDS UP IN FEDERAL COURT

Happy Fat Tuesday! For our pre-Lenten offering, let us consider how a school district in Washington prevailed in a lawsuit over disability discrimination.

The middle school principal assigned the student to Saturday school as a punishment after the student urinated on the floor, walls and sink of the school. We are wondering how the Student Code of Conduct addressed this behavior. “Wrongful urination” maybe? But you must also be asking: how does something like this end up in federal court? Can’t you just imagine the federal judge, sipping the morning’s first coffee, asking the bailiff: “what do we have on the docket today?” The bailiff responds: “A 7th grader peed on the floor at school, Your Honor.” Hizzoner would be asking himself: “when did I become the assistant principal?”

Of course, there was more to this lawsuit than this one incident. The parents alleged that the school had refused to implement the boy’s 504 plan in a variety of ways, or had done so inconsistently. There were allegations that teachers disparaged the student, and that the school ignored evidence of bullying. So the lawsuit was over a lot of things.

With regard to this particular incident, the parents alleged that other kids were involved in the incident, but only their boy was punished. They asserted that another student turned off the lights in the classroom. This caused our plaintiff “anxiety and loss of bladder control.” Sure enough, the student was on a 504 plan, and one of his issues was “anxiety.”

The court dismissed the lawsuit, largely due to the failure of the parents to present any evidence of intentional wrongdoing by the school. Claims seeking damages under Section 504 require evidence of intentional discrimination.

On this particular claim, the court relied on the good investigation conducted by the school. That investigation concluded that another student did, in fact, flick off the lights “for a few seconds.” But it also concluded that the wrongful urination began before that, and continued after that. The court concluded: “The material facts show that [the school district] disciplined [the student] because [the school district] found, after an investigation, that [the student] was responsible for the incident.” Emphasis added.

The case is Held v. Northshore School District, 64 IDELR 162. It was decided by the federal court for the Western District of Washington on November 17, 2014.

DAWG BONE: A GOOD INVESTIGATION SERVES YOU WELL WHEN YOU END UP IN THE COURTHOUSE.

 

 

Dawg Bones

5th Circuit rules for Fort Bend in special education case—reversing lower court.

The 5th Circuit Court of Appeals has ruled that Fort Bend ISD is not legally responsible for the costs of a residential placement for a student with a disability.  There was a lot at stake in the case, as the lower court had ordered reimbursement of tuition at the rate of $7,000 per month, along with over $600 in transportation costs and $90,000 in attorneys’ fees. The appellate court reversed, and rendered judgment in favor of the FBISD.

The basis for the ruling was the court’s conclusion that the private, residential placement chosen by the parents was not “appropriate.” The parents had placed their son at CALO—Change Academy Lake of the Ozarks. The court described CALO as a mental-health facility in Missouri. The high school student had previously attempted suicide, and was regularly using marijuana. Pulling him out of the public school, the parents first put the student at a wilderness camp in Utah, and then at CALO.

The court cited two crucial factors in its analysis. Was the child placed at the facility “for educational reasons”?   And would progress at the facility be judged primarily by educational achievement? The parents failed to satisfy either of those tests.

The first factor concerns the “motivation of the person making the placement.” This placement was motivated by fear of another suicide attempt, and concern over substance abuse. The court said that “there is no evidence showing that [the parents] then enrolled Z.A. at CALO for educational reasons.”

As to the second factor: “The evidence, however, plainly supports finding that Z.A.’s progress was not judged primarily by educational achievement.” Instead, the effort was to treat the student’s underlying disability. Educational achievement may have been an outcome, but it was not the primary indicator of success.

The court ordered that its opinion not be “published” in the official legal reports that create precedent to be followed in future cases. Nevertheless, the opinion is published on the 5th Circuit’s website, and provides a good illustration of the analysis courts will use in dealing with residential placements.

The case is Fort Bend ISD v. Douglas A., decided by the 5th Circuit on February 5, 2015. Here’s the link to the opinion: http://www.ca5.uscourts.gov/opinions/unpub/14/14-20101.0.pdf

DAWG BONE: TO GET REIMBURSED FOR A RESIDENTIAL PLACEMENT, PARENTS BEAR A HEAVY BURDEN OF PROOF.

 

 

Dawg Bones

Happy Valentine’s Day! The Dawg Bone today is just for fun. Read on!

DEAR DAWG,
I cannot figure out how the UIL puts high schools into classifications. I mean, I know the basics—the 6A schools are big and the 1A schools are small. But how exactly do they do it? Is there a science to it? —STUCK IN THE MIDDLE AT 3A.

DEAR STUCK IN THE MIDDLE:

We just heard a very clear explanation about this, from none other than Dr. Charles Breithaupt, Executive Director of the UIL. According to Dr. B, the UIL can do this classification thing just by driving around the state and looking around in each town. Here’s the criteria:

Your town has no DQ:                                 You are 1A
Your town has one DQ:                               You are 2A
Your town has one DQ and a Sonic:     You are 3A
Your town has a Walmart:                          You are 4A
Your town has a Super Walmart:            You are 5A

We think the new 6A classification is reserved for places with multiple Starbucks.

Hope that clears it up for you, and Happy V-Day to all of you!

DAWG BONE: THE UIL PROCESS MAY SEEM MYSTERIOUS BUT IT ALL MAKES SENSE.

Dawg Bones

THIS ARGUMENT ABOUT VACCINATION IS NOTHING NEW…

The Texas Supreme Court upheld the constitutionality of compulsory vaccination laws in 1972. At that time, the Texas statute (T.E.C. 2.09) authorized two exceptions. Children had to be vaccinated before attending public school unless their parents provided 1) an affidavit from a doctor citing medical concerns; or 2) an affidavit signed by the parent, stating that the requirement “conflicts with the tenets and practice of a recognized church or religious denomination of which the applicant is an adherent or member.”

There was no “conscientious objector” exemption, as there is now. Current law allows an exemption if the parent presents an affidavit citing “reasons of conscience, including a religious belief.” T.E.C. 38.001(c).

If Mr. Itz could have cited “reasons of conscience” he would have won his case against the Fredericksburg ISD. Mr. Itz stated that his daughter had contracted hepatitis as a result of a diphtheria shot. He believed that vaccination is harmful to the health. But he provided neither a medical affidavit, nor a religious one.

In its short opinion, the Texas Supreme Court noted that objections to vaccination had a long and distinguished pedigree in this country. Ben Franklin opposed compulsory inoculations in 1721. George Clinton, colonial governor of New York, forbade inoculations against smallpox in New York City in 1747. Mr. Itz cited these historical precedents in support of his argument that inoculation is “an assault upon one’s body by invidious impregnation with bacteria that is cruel and unusual punishment.” He claimed that mandatory vaccination “interferes with parental control and decisions relating to the health of their children” and “interferes with their children’s constitutional right to a public free education.” In fact, Itz asserted, “Vaccination by compulsion is one of the greatest crimes today, and it is being committed by the Legislature of the State of Texas disguised as Education Code 2.09.”

The Court did not buy it. It asserted that “a much more enlightened view” had emerged. That view—that immunization is necessary to stop the spread of infectious disease—had, even by 1972, been adopted by “a great majority of the states.” The Court noted that “these statutes were the subject of frequent attack in the early years of the century and were universally upheld as proper exercises of the police power for the protection of the health and safety of the citizenry.”

Therefore, the Court concluded, the statute was constitutional. The case of Itz v. Penick was decided by the Texas Supreme Court on January 17, 1973. It can be found at 493. S.W.2d 506.

DAWG BONE: THESE ATTACKS ON VACCINATION REQUIREMENTS ARE NOTHING NEW.

 

 

 

 

Dawg Bones

IS “ZERO TOLERANCE” CONSISTENT WITH FEDERAL LAW?

People use the term “zero tolerance” to mean a lot of different things. In essence, it signals a tough, no excuses, discipline system. It curtails educator’s discretion in favor of simple black and white rules applied across the board.

But that approach is problematic under federal law. Our basic special education law, IDEA, says that students with disabilities may not be removed from their classroom placement as a disciplinary consequence unless the student’s ARD Committee concludes that the behavior was not a manifestation of the student’s disability. You can’t just slap a special ed kid into the DAEP due to a disciplinary infraction. You have to go through the ARD process first. Thus it’s hard to square that legal requirement with a strict “zero tolerance” approach.

Our federal special education law does include three “semi-zero tolerance” provisions. These are known as the “special circumstances” offenses—drugs, weapons and the infliction of serious bodily injury. If a student commits one of those offenses, the school is authorized to order an immediate removal of up to 45 school days. This can be done whether the behavior was caused by the disability or not.   But that’s still not exactly what most people mean by “zero tolerance.”

So be careful in tossing this term around.

DAWG BONE: IT’S HARD TO APPLY “ZERO TOLERANCE” AND COMPLY WITH FEDERAL LAW AT THE SAME TIME.

 

Dawg Bones

ZERO TOLERANCE? I THINK NOT.

Don’t let anyone get away with telling you that Texas has a “zero tolerance” policy with regard to student discipline. We dropped zero tolerance some time ago.

Chapter 37 requires school administrators to consider certain factors before deciding on a disciplinary consequence. These are 1) self-defense; 2) intent, or lack of intent; 3) the student’s disciplinary history; and 4) a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct.

These factors are not considered in a “zero tolerance” system. In that system, administrators have no discretion and take no mitigating factors into account. That’s the essence of “zero tolerance” and that’s why it has led to so much criticism and ridicule. Fortunately, our legislature changed our laws to require the exercise of some discretion. And note: these factors must be considered “regardless of whether the decision concerns a mandatory or discretionary offense.” T.E.C. 37.001 (a)(4).

The truth is, “zero tolerance” was always more of a political slogan than a realistic school policy. That’s because “zero tolerance” was inconsistent with federal law from the outset. But we will save that topic for tomorrow.

DAWG BONE: WE DON’T DO “ZERO TOLERANCE” IN TEXAS.       

 

 

Dawg Bones

STUDENT WITH AUTISM FAILS TO MAKE CHEERLEADING SQUAD: IS THIS A LEGAL PROBLEM?

It’s springtime, and cheerleader tryouts are probably drawing near. A recent decision from the Office for Civil Rights provides school districts a step-by-step procedure for ensuring that your tryout procedures are fair to students with disabilities. The student with autism did not make the squad. But OCR concluded that she was not discriminated against.

The key was the fact that the school district held an ARD meeting to consider what accommodations the student would need in the tryout process. Due to the student’s autism and speech impairment, the ARD Committee determined that 1) they would provide the student a video of the tryout routine on the first day of the cheerleading clinic; 2) they would allow the student’s special education teacher to be with her throughout the clinic and the tryout process; 3) they would allow the parents to be present at the tryout.

The parent asked for one more accommodation. The parent wanted the school to allow “changes to the skills and benchmarks necessary for participation.” The school refused to do this.

The clinic was held, the tryouts were conducted and the accommodations that the school promised to provide were provided. But the girl did not make the squad. Her score was too low.

The parent filed a complaint with the OCR, claiming that the district discriminated against the girl on the basis of her disability. OCR issued its ruling on December 22, 2014, in favor of the district. Key Quote:

OCR found that CSISD convened a group of persons knowledgeable about the Student, the meaning of the evaluation data, and the placement options—as is required by Section 504. The ARD committee identified and implemented modifications for the Student that it determined were necessary to accommodate her disability. The committee determined that changes to the scoring process were not necessary, and further, that such changes would constitute a fundamental alteration of the high school cheerleading program—which is a selective activity requiring a particular level and type of athletic skill.

That same analysis applies to any “selective activity” that requires a particular level and type of skill, whether it be athletics, or music, or some other extracurricular activity. The school considered the matter on an individualized basis, and provided accommodations to make sure that the girl was assessed on the basis of her ability, not her disability. But the school held fast to the scoring criteria.

Kudos to College Station ISD for how it handled this matter.

DAWG BONE: MEASURE THE STUDENT’S ABILITY—NOT THE DISABILITY.

 

 

Dawg Bones

CAN A SCHOOL DISTRICT AND ITS EMPLOYEES “CONSPIRE”?

One of the legal theories that we see more frequently these days is that the school district and some of its employees engaged in a “civil conspiracy” to deprive someone of federal rights. Such a theory was attempted in C.C. v. Hurst-Euless-Bedford ISD. The court’s decision, relying on precedent from the 5th Circuit, tells us that it is impossible for a school district and its employees to engage in a civil conspiracy: “Because defendants are a school district and its employees, plaintiff cannot plead facts sufficient to demonstrate a conspiracy.”

The parents had alleged that school officials “conspired” to “kick [the student] out of school by treating some of his conduct as felonies.” Without sorting out whether or not this allegation is true, the court dismissed the charge because a school and its employees are a “single entity” and a single entity cannot “conspire” with itself.

So you can “conspire” with your friends to throw a surprise party. You can “conspire” to dump a bucket of Gatorade on the coach at the end of the game. But you cannot “conspire” with your school district or your fellow employees to deprive someone of the federal rights protected by 42 U.S.C. 1985. Good to know.

The case was decided by the federal court for the Northern District of Texas on January 8, 2015.

DAWG BONE: A SCHOOL AND ITS EMPLOYEES CANNOT “CONSPIRE” WITH ITSELF.