Category Archives: Dawg Bones

Dawg Bones

BUT I DID EVERYTHING YOU TOLD ME TO DO!

So you wrote up the teacher and gave him an official “intervention plan” or “growth plan” or whatever you want to call it. The teacher diligently carried out every task in the plan. But you are still not satisfied with the teacher’s performance. Can you recommend nonrenewal of contract?

Yes. That’s one of the lessons of Kellogg v. Sinton ISD, decided by the Commissioner in August, 2014. Mr. Kellogg appealed his nonrenewal to T.E.A. and argued that since he had satisfied every requirement of his “Teacher in Need of Assistance” (TINA) Plan, he was safe and protected from nonrenewal.

Not so. The ruling tells us that “successfully completing an intervention plan does not protect one from being notice for proposed nonrenewal.”

On top of that, the Commissioner pointed out that Mr. Kellogg had not, in fact, successfully fulfilled the requirements of the TINA. Sure, he had turned in lesson plans and observed other teachers, as the TINA required. But this did not produce the required results. The purpose of a TINA, or any corrective communication an employee is to produce a better result. In this case, the TINA called for periodic walk-throughs to provide evidence that the teacher had improved in classroom management. The walk-throughs provided evidence alright…but not evidence of improved performance.

Kudos to Sinton ISD for writing a TINA that properly focuses on results. I learned a long time ago that the key phrase in a growth plan is “so that.” For example: “the teacher will attend a training session at the local ESC on classroom management SO THAT the teacher’s classroom management skills improve as evidenced by an increase in students being on task when periodic walk-throughs are conducted.” There are many good examples of this in The Texas Documentation Handbook by Kemerer and Crain, published by Park Place Publications.

Another interesting tidbit in this case: how long does the board have to “deliberate” in a nonrenewal case? Here, the board took just 20 minutes to decide the case after four hours of hearing and 500 pages of exhibits. The Commissioner did not have a problem with that.

The case is Docket No. 077-R1-2014.

DAWG BONE: MAKE SURE YOUR GROWTH PLANS FOCUS ON RESULTS!

 

 

Dawg Bones

WOULD YOU WALK 16 MILES TO GET TO WORK?

Think about this one. You are a custodian at a school building, working the night shift. You have fallen on hard times. You are homeless, and have no means of transportation. Well, of course you can walk—and walking was just fine until the district moved you to another building that was 16 miles away. Would you be willing to walk 16 miles to get to work? And another 16 to get to wherever it is you lay your head down to sleep?

According to Webb v. Round Rock ISD, this is the dilemma that Crystal Webb faced. On top of that, Ms. Webb claims that her employer made this move in an effort to punish her. She had previously filed a complaint with the EEOC, alleging racial discrimination. So Ms. Webb alleged in her lawsuit that Round Rock violated federal law by punishing her for engaging in “protected activity”—filing that EEOC complaint.

We don’t know what happened to the EEOC complaint, but we have a recent decision in favor of Ms. Webb from the 5th Circuit on the retaliation claim. The case is important because it sends a clear message to employers.

The legal issue here is this: what action by the employer amounts to an act of “retaliation”? The legal term used here is “adverse employment action.” Employers can do things to employees that run the gamut from trivial to severe. On the severe end, you have termination. On the trivial, you have the boss who never says “good morning.”

But what about this case? Ms. Webb’s pay was not cut. Her duties were not changed. This was a “lateral transfer” in every sense, except for the fact that Ms. Webb had no car, and could not get to the new jobsite without a ridiculously long walk.

The federal district court ruled in favor of the district in this case, holding that “Webb’s new position did not offer less opportunities for promotion or salary increases, did not involve a greater likelihood of termination, or the like.”

The 5th Circuit reversed that decision. The Court cited Supreme Court authority for the proposition that “a lateral transfer can amount to an adverse employment action without affecting these usual terms of employment.” Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006). The issue is not simply pay, or hours, or potential for promotion. The issue is whether the employer’s action was sufficiently severe to dissuade a reasonable employee from taking the protected action. In other words: if you knew that your employer would respond to your EEOC complaint by transferring you to a school that required you to walk 32 miles a day, would you be “dissuaded” from filing that complaint? Would a “reasonable employee under similar circumstances” feel that way?

The court specifically said that the circumstances of the particular employee matter. “Context matters,” the Supreme Court said in the Burlington case. Thus what is “adverse” to one employee is not “adverse” to another. The High Court offered an example: “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”

By that logic, a transfer to another building may be no big deal to many workers, but matters a lot if you have to walk to work.

Two caveats about this case: first, the 5th Circuit ordered that this one not be “published” in the official reports, and thus it is not supposed to serve as a precedent in future cases. Second, the case is in the very early stages. Round Rock sought dismissal of the case on the theory that there was no “adverse employment action” here. The district lost that argument, but Ms. Webb now faces the burden of proving the truth of her allegations. So we shall see.

The case is Webb v. Round Rock ISD, decided by the 5th Circuit on December 11, 2014. The citation is 2014 WL 6980143.

DAWG BONE: A “LATERAL TRANSFER” CAN BE DEEMED AN “ADVERSE EMPLOYMENT ACTION.”

 

 

Dawg Bones

SOMETIMES YOU NEED A LITTLE HELP FROM THE JUDGE

The U.S. Supreme Court has heard only one case that involved the discipline of students with disabilities—Honig v. Doe, decided in 1988. The Court held that Congress had intentionally stripped school officials of the “unilateral” authority to exclude students with disabilities from school. School officials could, according to the Court, suspend kids for up to ten days (cumulatively) during the school year. But anything above that number would require another party to approve the exclusion, usually the IEP Team (ARD). If the school needed immediate assistance in dealing with a dangerous student, it could seek assistance from the local state or federal court.

The Wayne-Westland Community Schools in Michigan did just that, and the case is instructive as to what kind of evidence a school would need to justify the immediate exclusion of a student from the IEP placement. Wayne-Westland got a TRO (Temporary Restraining Order) on October 9, 2014, followed by a Temporary Injunction on October 16. The Injunction will keep the student away from any school facility until the IEP Team can meet and discuss a change of placement. Even if the parent challenges a change of placement and invokes the “stay put” rule, the Injunction will keep the student out of school for awhile.

So what kind of evidence did the school present? In a case like this, the school faces a heavy burden of proof. It must show that maintaining the current placement is substantially likely to result in injury to students or staff. To convince a judge of that, you usually need evidence that the student has already injured someone.

Wayne-Westland had that evidence. The evidence showed that the student was a big kid—6 feet tall, 250 pounds. In one month in the spring of 2014 he 1) physically attacked a student and several staff members, spitting at and kicking them; 2) “menaced” two staff members with a pen held in a stabbing position and refusing to put it down when told to do so; 3) punched a student; 4) punched the principal; 5) threatened to rape a female staff member; 6) punched another staff member in the face. Later in the semester, the student attacked a security liaison. He was told to leave the building. When he attempted to return, four staff members held the door closed to keep him out. Since the student would not leave the school grounds, the entire school was placed on lockdown.

When school resumed in the fall of 2014, the student 1) threatened to bring guns to school to kill staff members; 2) made racist comments toward African American staff members; and 3) punched the director of special education in the face.

That was enough to convince the court that maintaining the student in the current placement posed an imminent threat. The school had plans to continue the boy’s education through Virtual Academy, with a staff member available to help him and answer questions by phone or email. The court found that plan to be sufficient.

Prior to 1988 a student like this one would probably have been expelled from school. That is no longer an option. The school has a continuing duty to provide a FAPE—Free Appropriate Public Education. But as this case indicates, the school can seek immediate assistance from a court to move a dangerous student off campus.

The case is Wayne-Westland Community Schools v. V.S., decided by the U.S. District Court for the Eastern District of Michigan on October 16, 2014. We found it at 64 IDELR 139.

DAWG BONE: IF YOU NEED IMMEDIATE RELIEF, YOU MAY NEED TO GO TO COURT.

 

 

 

 

Dawg Bones

FOLLOW THE AGENDA AT AN ARD MEETING

Dear Dawg: At an ARD meeting can we just jump right into talking about the student’s placement?  That’s what the parent wants to do, so why not?

Jumping right into placement at the ARD meeting can be dangerous, even if the parent is impatient and wants the meeting to move along.  That’s the lesson of P.C. v. Milford Exempted Village Schools, 60 IDELR 129 (S.D. Ohio 2013).  This is one of the many cases in which parents allege that the school improperly “predetermined” the placement by entering into the IEP Team meeting with a closed mind. The hearing officer did not see if that way. Nor did the state review officer. The school district prevailed in the litigation until the case went to federal court. There, however, the parent won.

The court held that the district denied FAPE by engaging in predetermination, thus depriving the parents of meaningful participation in the process.  The court held that the district predetermined placement in its reading program and failed to involve the parents in the discussion of what reading methodology would be used.  The court acknowledged that methodology need not always be included in IEP Team discussions, but in this case, it should have been.  But the most interesting and illuminating part of the court’s decision involves the order in which things are to be decided.  The court held that the Team had decided placement “and then began to decide on what goals to pursue and which methodologies to try.”

The court noted that placement must be based on the IEP, and therefore, the content of the IEP should be decided before the placement discussion takes place.  This is an affirmation of the idea that IEP Team decisions should be made in the correct order: 1) evaluation review; 2) eligibility; 3) IEP; 4) placement.  This decision supports the notion that schools should have an agenda and follow the agenda so as to take things up in correct order. If you decide placement prior to deciding what the IEP will contain, how can you be sure that the placement is in the least restrictive environment?

So we think ARD Committees should come to closure on the content of the IEP—the present levels, the annual goals, and the specific services needed to achieve those goals, including related services. Then, the chair of the meeting can move the group on to the next issue: “Now that we have agreed on what the child needs, let’s talk about the least restrictive environment in which those services can be provided.”

DAWG BONE: ARD COMMITTEES SHOULD TAKE THINGS UP IN CORRECT ORDER.

Dawg Bones

PROTEST IN DES MOINES

Kids in a high school in Des Moines, Iowa recently protested the grand jury decisions in Ferguson, Missouri and New York City. The protest lasted about 15 minutes, during the students’ lunch hour. They held signs, marched, chanted, and eventually laid down in a “die in” for 4.5 minutes.

Apparently none of this caused any significant disturbance at the school. On the video of the incident you can see other students watching, while teachers and the principal look on. In fact, the principal complimented the kids for their social awareness and calling the protest “way cool.”

Well, that’s not exactly the way some members of the general public saw it! The news story I read carried comments from readers. Here’s a short sample:

“…in short, [you students] are idiots. Now get back to class.” Fred.

“Fred, they’re not idiots, their gourds are empty and awaiting the next phase of brainwashing you and I are paying for through taxes and tuition.” Kit.

“…these CHILDREN need to be in class learning something worthwhile instead of using these incidents as an excuse to get out of school. The faculty and principal should be fired for failing to maintain control of the school. What a bunch of morons…..Disgraceful.” Terry.

One reader called the kids “no-nothings.” Fortunately, another reader corrected him, pointing out that the term is “know-nothings.”

From the Dawg’s perspective, the principal should not be fired. He should be honored. He respected student free speech, as is required by the U.S. Constitution. Ironically, we know this is true because of a case that arose in the 1960s in Des Moines, Iowa! Tinker v. Des Moines established that students enjoy the constitutional right of free speech, even while they are at school.

The limitation is that they may not cause a “material and substantial” disruption of school. If this protest had disrupted class, or if the “die in” had impeded traffic flow, the principal would be authorized to take some sort of action. But that didn’t happen here, and the principal had the good sense to monitor the situation without trying to stop it. He did not “fail to maintain control of the school,” as Terry charged. In fact, if he had tried to stop this peaceful protest, he would have likely embroiled the school in litigation that would not have ended well for the Des Moines school district.

So hats off to principal Gary McClanahan. You can see the news story and the protest for yourself at this link: http://www.kcci.com/news/students-stage-die-in-protest/30117074

DAWG BONE: STUDENT FREE SPEECH ALIVE AND WELL IN DES MOINES, IOWA!

Dawg Bones

PARENT VS PARENT: SCHOOL ON THE SIDELINES

Dustin, with a little help from Melissa, created a fake Facebook account and used it to pick on Alexandria, one of their classmates.  The court doesn’t give us details in the opinion, but you can imagine how cruel 13-year olds can be to other 13-year olds.  When they found out about this,  Alexandria’s parents had a pretty good idea of who was behind it, and reported their suspicions to the school principal. The principal called in Dustin and Melissa, both of whom sang like canaries with written confessions.  The principal imposed disciplinary consequences.

So did Dustin’s parents.  But according to the subsequent lawsuit, that’s all that they did. They did not contact Facebook. They made no effort to get the account deleted.  Many months went by with the defamatory material there for all to see as the Facebook account continued to attract “friends.”

Alexandria’s parents sued Dustin’s parents. The suit was based on Georgia state law, alleging that the parents were negligent for the defamation due to the “negligent supervision” of their son.  The lower court tossed the case out, granting summary judgment to Dustin’s parents. But the Georgia Court of Appeals reversed that decision, holding that this is a valid cause of action that should not be dismissed.  Instead, a jury will have the opportunity to review the evidence and determine if the facts support the theory.  If they do, Dustin’s parents could be held liable.  Boston v. Athearn, Georgia Court of Appeals, October 10, 2014.

Notice that even though the school got pulled into this family dispute, it managed to stay out of the litigation!   

DAWG BONES: SOMETIMES IT IS BEST TO STAY ON THE SIDELINES

 

 

 

 

 

Dawg Bones

BE THOUGHTFUL ABOUT JOB VACANCY POSTINGS

At the TSALD/TASPA Conference in December, attorney Wayne Haglund told an interesting story of how an addition to a job vacancy notice helped a community college fend off a claim of discrimination.  Looking for a new teacher, the college may have been surprised to get an application from a man with a Ph.D. from a prestigious university and a resume that included multiple publications in peer reviewed journals.  Pretty impressive that a guy like that would apply for a teaching position at a community college.

But they didn’t hire him.  Instead, they hired a younger woman with a Master’s degree.

The man filed a discrimination complaint.  According to Wayne, the job vacancy posting was critical to the defense of the college. The posting included a statement that experience teaching at the community college level would be preferred.

Bingo.  The younger woman had that experience. The older man with the impressive academic credentials did not. Was he more qualified?  Certainly he was more qualified for many higher education jobs—but not for this one.

So when you post that job vacancy notice, think about what is really important in a candidate, and be sure to include it.

DAWG BONES: THINK CAREFULLY BEFORE YOU POST THAT JOB VACANCY NOTICE

 

Dawg Bones

CAN REASSIGNMENT LEAD TO LITIGATION?

In the school setting, what do you suppose would be the equivalent of re-assigning a sheriff’s deputy from “patrol duty” to duty at the jail?  According to the 5th Circuit, the transfer of a deputy from patrol duty to the jail can be viewed as an “adverse employment action.” That means that if the boss did it with an improper motive, the boss may have some serious legal problems.

This came up in Burnside v. Kaelin, decided by the 5th Circuit on December 9, 2014.  Mr. Burnside alleges that Sheriff Kaelin punished him for not supporting him in an election.  Burnside was the chair of a law enforcement political action committee (PAC).  In his lawsuit, Burnside alleges that Sheriff Kaelin told him that the PAC ought to support him in an upcoming election.  Burnside told Kaelin that the membership would have to vote on that, and that the sheriff would be treated just the same as the other candidates. Burnside alleges that Kaelin threatened to move him to jail duty if the PAC did not come through for him, and that Kaelin followed through with that threat just three weeks later.

Normally, a job transfer (in education, we usually call this a “reassignment) does not come under the category of “adverse employment action.”  But the court held that some job transfers do fit that description.  If the new job is “objectively worse” or “markedly less prestigious and less interesting.”  Key Quote:

Here, Sheriff Kaelin took Burnside off the streets and placed him in the jail. The complaint alleges that the transfer was “typically considered by all in [Burnside’s] position to be……a demotion.” Burnside alleged that Sheriff Kaelin himself viewed the transfer as a demotion.  One reasonable inference is that Kaelin initiated the transfer to punish Burnside for not supporting Kaelin in the 2012 election….Given the facts and reasonable inferences drawn from Burnside’s complaint, his transfer alleges an adverse employing action under 42 U.S.C. Section 1983. 

And that means that Sheriff Kaelin was not entitled to qualified immunity. Thus the suit was not dismissed and will continue, giving Burnside an opportunity to prove the truth of his allegations.

Be cautious before ordering a reassignment that might be viewed as an “adverse employment action,” even when the contract and school policy give you the authority to do so.  Check your motives.  Make sure that your decision is based on job-related, non-discriminatory and non-retaliatory reasons.

DAWG BONE: A REASSIGNMENT MIGHT BE CHALLENGED AS AN “ADVERSE EMPLOYMENT ACTION”

 

 

Dawg Bones

ADMINISTRATIVE REPS AND THE ARD COMMITTEE

It has to be frustrating for the Miami-Dade County School District to be found guilty of “predetermination” after holding an IEP Team meeting that lasted three full days, with the parents in attendance the whole time.  The parties met from 9:00 a.m. to 3:30 p.m. on three separate occasions in an effort to develop an IEP and placement for a student moving from middle school to high school.  On top of that, the district sent the parents 59 (59!) “prior written notice” forms following the IEP Team meetings, but was then accused of  not providing “prior written notice” as required by law.  The parents were represented by a slew of lawyers, one of whom sought to recover for his time at the rate of $600/hour.

The 11th Circuit Court of Appeals held that the district “predetermined” the boy’s placement at Palmetto Senior High School. That school served 3600 students.  The parents wanted their son at MAST Academy, a much smaller charter school operated by the district. There was evaluation data to indicate that a large school would be difficult for the student to deal with, and might exacerbate his problems.  But the district insisted on Palmetto, and the court based its “predetermination” claim largely on a transcript of the IEP Team meetings in which the LEA representative was quoted as saying that MAST was “not an option that’s on the table as far as [the Board] is concerned. What our option is, is that he go to his home school.”

“This explicit statement,” said the Court, “that the Board was considering placement only at Palmetto Senior High School, and that bureaucratic policies precluded an alternative placement, weighs strongly in favor of finding predetermination.”

The Court’s opinion makes it clear that the voice of the “administrative representative” carries a lot of weight. The Court noted that “Other Board representatives [i.e., members of the IEP Team], to their credit, seemed ready to discuss whether the Board could accommodate [the student’s] needs by offering a smaller setting for [the student] within Palmetto Senior High School….But the Board representative running the meeting cut this conversation short, saying finally that the placement would be Palmetto Senior High School and that the parents would have to pursue mediation if they disagreed.”

It’s appropriate for the administrative representative to “speak for the school” after a full discussion of all options has been conducted.  It’s OK for the school to come to the conclusion that the meeting is going to end in non-consensus, and to explain that to the parents.  But the “not an option” remark in this case hurt the district’s case.

So be careful out there.  Even when you are tired and frustrated, be careful.

The case is R.L., S.L. v, Miami-Dade County School Board, (11th Cir. 2014) 2014 WL 3031231.

For today, chew on this Dawg Bone, special ed types:

DAWG BONE: WORDS SPOKEN BY THE “ADMINISTRATIVE REP” AT AN ARD MEETING CAN COME BACK TO HAUNT YOU

 

 

Dawg Bones

WHAT TO LOOK FOR IN A 504 COORDINATOR

I was surprised when I found out that the man listed in the school’s “504 Manual” as the “504 Coordinator” had died three years earlier.  I felt that the superintendent should know about this. So I went to her office and asked: “Did you know you’ve got a dead man for a 504 coordinator?”

“Yes,” she coolly replied.  “It’s part of our strategic plan. If the parents get angry and call, we’ll just say, ‘Sorry.  He can’t come to the phone.’”

I pointed out that such a “strategy” would not work for very long. She let me know that she would not be in the district much longer.

Part of this story is true, and I’ll let you figure out which part.  But the episode got me to thinking about what we need in a 504 coordinator.

The responsibilities of the 504 coordinator have grown over the past few years.  In 2009, Congress expanded the definition of who is to be served under Section 504.  That change in the law, combined with an increase in public awareness of Section 504 has led to many more referrals.

So the 504 coordinator needs a lot of training to keep up with the law.

On top of that, the coordinator needs to have a good sense of the importance of process.  Section 504 is as much concerned with process as it is with results.  The Office for Civil Rights, which enforces 504, promises not to overturn a decision made by a local school district, even if they disagree with it, as long as they see that you followed the right process.

The coordinator also needs to have some authority within the district to make sure that 504 plans are implemented. 504 teams are much like ARD Committees. Once they determine what the student needs, the district is required to see to it that the student gets what he/she needs. So if a teacher is not taking a 504 plan seriously, the 504 coordinator needs to have some authority to take action.

So you need a pretty sharp cookie to serve as 504 coordinator. And first and foremost, one who can still fog a mirror.

DAWG BONE: FIRST REQUIREMENT FOR A 504 COORDINATOR—STAY ALIVE!