The Commissioner’s decision in the case we review today includes five statements that a teacher made to another teacher near the end of the school day. Kids were there. They heard it. One of them recorded it and then it went on social media. Of course it did. I think I will just quote verbatim the statements made by the teacher:

1. “If I have to keep dealing with kids that are complete and utter morons I’m done. I’m literally done.”
2. “I don’t even care if I lose my job. I want to be fired at this point. I literally am going to hurt myself if I have to keep coming here. It’s so ridiculous. I told my kids, I was like, I have never in my life dealt with kids that are so awful that if they fell into a river I would let them float away. Literally. See ya.”
3. Asked by a colleague “You wouldn’t throw a log?” Petitioner responded “Nope. I might throw a log on them, so they sink. My god.”
4. “I actually want to volunteer to go to work at the [Juvenile Detention Center] campus because I want to carry a gun on my hip and intimidate people. You get to be like a police officer there. And then you can hit them when they’re smartasses.” “You heard me tell my advisory. Can’t even flip a burger. Nobody’s gonna hire you at all. Nobody’s gonna hire you. And they’re like “what?” Start making a little change and sign so you can stay on the street corner cause nobody’s gonna hire your ass.”
5. “I called my husband today and I said I haven’t decided yet if I want to quit or do something so they fire me. And I definitely can’t come back to education. I’m done. I told them, I’m a billionire. I don’t even know why I’m here. I don’t want to keep looking at you. I own two businesses. I’m rich. I have a Rolex. I have a $60,000 diamond in my wedding ring. OK? You guys, suck it. I don’t know. I’m done. I literally can’t decide if I’m coming tomorrow.”

The fallout was predictable. Parents were outraged. The media jumped on it. Some of the students (6th graders) said that they were afraid of the teacher.

The school suspended the teacher with pay and confronted her with the recording. She owned up to it, while also citing the extreme stress she had been experiencing, including one student spitting in her face. Thus her vent to her colleague which happened after classes, but while some students were within earshot. The teacher tendered her resignation effective as of the end of the school year. But this all happened in January and the district did not want to keep her on paid leave until the end of the year. So in early February the board voted to suspend the teacher ‘without pay” effective immediately.

That’s when the teacher requested a hearing. The hearing was not about her continued employment—she had resigned as of the end of the year. The hearing was about payments to her from February to the end of the year.

The hearing examiner ruled that the board had the right to suspend her without pay due to her numerous violations of state law, board policy and the Educator Code of Ethics. The hearing examiner cited some federal court cases for the proposition that suspension without pay, prior to a hearing, is constitutional under the right circumstances. These were the right circumstances.

So why would the Commissioner reverse that decision? Here’s why:

States can provide more process than the constitutional minimum, and the Texas legislature has done so for teachers by providing evidentiary hearing procedures, if requested, for proposed suspensions without pay. Whether [the school district’s] suspension of [the teacher] would pass 14th Amendment muster does not determine the issue of the board’s compliance with subchapter F.

Subchapter F of Chapter 21 of the T.E.C. is where teachers are given the right to obtain an independent hearing after being notified of the district’s intent to terminate the contract or “suspend the teacher without pay.” T.E.C. 21.251(a)(3). Pay cannot be cutoff prior to that hearing. Are there exceptions for cases in which teachers have acted not just bad, but real bad bad? No. Key Quotes:

Although [the district] is…in the unenviable position of paying a teacher whose suspension without pay is all but guaranteed, while also replacing the teacher it suspended, it cannot jump the gun while subchapter F proceedings are still pending.

…the alleged egregiousness or justifiability of [the teacher’s] conduct does not alter [the district’s] need to comply with subchapter F, which makes no exceptions for egregious conduct.

Bottom line: the teacher with the Rolex, the two businesses, and the expensive diamond ring will also get her teacher pay for the rest of the year.

It’s Kennedy v. Lamar CISD, Docket No. 054-R2-08-2022, decided by the Commissioner on September 30, 2022.

DAWG BONE: LOOK FOR THE LEGISLATURE TO ADDRESS THIS.

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

Tomorrow: my journeys as a teacher aide continue….

We have a system of dispute resolution for special education matters. A parent who disagrees with ARD Committee decisions or is generally dissatisfied with the quality of education their child is receiving can obtain a due process hearing by asking for one. However, some lawyers who represent parents in such matters bypass that procedure and go straight to court. Why would they do that?

They do that because the administrative due process system is limited in the remedies it offers. A parent who wins a slam dunk victory in a special education due process hearing might receive make-up educational services, reimbursement for money the parent has spent on their child’s education, a commitment from the school to pay for private schooling in the future, and payment of attorneys’ fees. What they won’t get and can’t get through the due process system is an award of damages. Only a court can award damages, and only if the court concludes that the district did not just violate IDEA—it also discriminated on the basis of disability in violation of Section 504 and the Americans with Disabilities Act.

So filing suit in court without going through the lengthy administrative process of a due process hearing looks to be an attractive option. But it’s risky. The court might toss the case out for “failure to exhaust administrative remedies.” That’s what happened in W.S. v. Dallas ISD.

The student in this case had autism and Down Syndrome. He was a student who consumed objects not meant to be consumed, and of course, that can be dangerous. The district was aware of this and took numerous measures to keep the student safe, but problems persisted. The parent alleged that the school did not keep objects out of reach and the boy continued to put things in his mouth that were not for eating. The suit alleges that the student ingested six rubber gloves that required emergency surgery for removal.

The suit alleged that the district intentionally discriminated against the student by failing to provide a safe environment. The federal district court tossed the case out, holding that this is the type of case that should have been taken to a special education due process hearing. In an unpublished opinion, the 5th Circuit affirmed.

The court viewed the suit as a complaint that the IEP was not properly implemented and/or did not include the necessary protocols to provide for safety. Thus the complaint was in essence a complaint that the district did not provide FAPE. Key Quote:

Consider the complaint’s specific allegations: W.S. alleges that but for DISD’s failure to constantly supervise him, provide one-on-one supervision, and remove small objects from his environment, he would not have been harmed. DISD’s duty to provide such individualized services arises from the district’s FAPE obligations.

The court noted that an IEP includes both instructional and “related” services and that “related services includes addressing safety concerns such as removing choking hazards.” Administrative remedies were not only available, they were mandatory. The parent did not “exhaust” them. Therefore, the court had no jurisdiction of the matter. Case dismissed.

The 5th Circuit decided W.S. v. Dallas ISD on October 7, 2022. It can be found at 2022 WL 6316442.

DAWG BONE: IF IT’S ABOUT FAPE, EXHAUSTION OF ADMINISTRATIVE REMEDIES IS MANDATORY.

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

Tomorrow: teacher rant leads to Commissioner ruling

The Department of Education’s Office of Special Education and Rehabilitative Services has updated the Q and A document on student discipline that it released in 2009. Our firm has always included the 2009 Q and A in our Toolbox book, and the latest version of the Toolbox will include the new and improved 2022 version. On Toolbox Tuesdays for the next several weeks I’m going to highlight some of the important points we can glean from this new resource. We’ll do this section by section—so let’s start with Section A.

Section A includes six questions that provide an overview of the school’s responsibility. They tell us that the evaluation of a student should include, “if appropriate, social and emotional status.” They tell us that the FAPE requirement includes addressing a student’s behavioral needs. They tell us that IEP Teams (ARDs) must ask themselves if the student has behaviors that impede the learning of the student or others, and if the answer is “yes” the Team must address the behavior through positive behavioral interventions, strategies and supports.

All of this should sound very familiar to those of you who have been through a Toolbox training. Looking for something new and helpful, I took note of Footnote 12, which provides a veritable “laundry list” of ways that schools can positively support students with behavioral needs. The federal regulations toss out terms like “supplementary aids and services, and program modifications and supports” but Footnote 12 spells that out in a more concrete and helpful way with this list:

1. Counseling services for mental health needs (e.g., anxiety, depression, etc.);
2. Social skill instruction;
3. Explicit reinforcement of positive behavior (such as a classroom token economy);
4. Explicit instruction in stress, anxiety and depression management;
5. Consultation with a professional with expertise in behavioral interventions to create a positive behavioral support plan;
6. Increased access to counselors;
7. Access to targeted strategies based on peer-reviewed research to support social, emotional, behavioral, or mental health needs (e.g., anxiety scaling, mindfulness exercises); changing the student’s class schedule; training staff on additional positive behavioral supports and universal design for learning; and
8. Access to consultation with related service providers and others with specialized expertise.

When I do a Toolbox Training and I suggest that kids that are using drugs at school should have a BIP, I am often asked what such a BIP would look like. This list is a good place to get you thinking about the answer to that question.

DAWG BONE: WE’LL GO THROUGH THIS Q AND A SECTION BY SECTION.

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

Tomorrow: feeling exhausted?

First of all, BOO! We wish you a Happy Halloween and look forward to pictures on social media of professional educators wearing silly costumes.

Today is a good day to remind you of a provision in the Texas Education Code that some people may have forgotten about. Here is T.E.C. 21.407(b):

A school district board of trustees or school district employee may not directly or indirectly coerce any teacher to refrain from participating in political affairs in the teacher’s community, state, or nation.

I take that to mean that it’s perfectly OK for teachers to “be political.” Of course their political activities should not interfere with job responsibilities. Nor should teachers try to take advantage of the captive audience of students they talk to every day in an effort to get the kids to think about political affairs as the teacher does.

But teachers spend a majority of their lives away from their jobs and this statute is designed to give them the assurance that their involvement in politics will not harm them professionally. We have an election coming up next week and early voting is going on right now. We will be electing state leaders who will make many decisions that directly affect the quality of our public schools.

So I hope that you are encouraging teachers to get involved. Study the issues. Study the candidates. Vote. Get involved. It’s legally protected.

DAWG BONE: NO COERCION—DIRECT OR INDIRECT.

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

Tomorrow: Toolbox Tuesday!!

On Fridays this fall I’m recalling the memorable moments of my time as a volunteer teacher’s aide in 1997. I volunteered to serve in this capacity in several different school districts, each time for just a week. The highlight of the fall tour was the week of September 29 to October 3 when I was in the behavior unit at Smith Middle School in Killeen ISD.

The first thing I noticed about the classroom was the wrestling mats on the floor. I inquired about this and was told “That’s for when we take them down.”

Yikes. Maybe this volunteer gig isn’t such a good idea. The aide who told me about “taking them down” was my fellow teacher’s aide, a skinny young guy a couple of inches shorter than me and weighing in at a good 140 I’d bet.

“We…. we take them down, you say? We do that?” I asked.

“Yeah. These kids…. sometimes you have to take them down.”

The second thing I noticed was the size of one of the students. There were only five or six students (all boys, by the way) and one of them stood out. He was an 8th grader. An Enormous Eighth grader. I wondered if Skinny Aide had actually “taken down” Enormous Eighth Grader. I learned that this boy was on the middle school football team, which did not surprise me. He was big enough to play Offensive Line. Not just one position on the Offensive Line—he could replace the entire line from Left Tackle to Right Tackle. I learned that the school had had to cobble together two pairs of football pants to fit him. The middle school coach came by every day to see if his Offensive Line was ready to be released from the behavior unit. Kids assigned to the behavior unit were not allowed to participate in extracurricular activities.

Let’s pause on that for a moment. I’m not sure I thought about it at the time, but the boys should not have been barred from extracurriculars. This was not a disciplinary placement. This was a self-contained unit where the boys had been placed by the ARD Committee as per their IEPs. That’s an educational placement, not a disciplinary one, and the students should have been allowed to play sports, perform with the band, and all the rest.

I grew to like and admire the teacher of this class. His name was Ed and he had a genuine affection for these students. I did not see anyone “taken down” nor did I witness any serious misconduct by any of the students. But it was very obvious that these boys were doing poorly academically. By this time in the semester, I had spent a week in a 4th grade language arts class, and a week in a middle school Content Mastery room. The students I encountered in those classrooms struck me as bright, capable, and for the most part, well-motivated. It was different in the behavior unit in Killeen. The teacher was working hard, but he was dealing with a group of students who were already far behind their peers. Their frustration with the formality and monotony of schooling was obvious, and understandable.

I had two experiences that week outside of the classroom that left a lasting impression. The kids left school early on Monday and the teachers had a faculty meeting. I attended. They were reviewing the results of the state standardized test—the TAAS, which was the 1997 version of the STAAR test. I could see how these statewide tests served a useful function. When used to diagnose what the students could do, and where they needed help, the tests were useful.

For example, the head of the math department pointed out that the test results clearly showed that doing math calculation was not the problem. Reading was the problem. The multiple-choice math questions always offered one possible answer that was designed to ensnare the student who misread the question. And sure enough, that’s where most of the wrong answers were. The kids did the arithmetic correctly but got the wrong answer because they didn’t read the question right. I learned that the so-called math test was a reading test in disguise.

Standardized tests are not good for evaluating teachers and should not be the sole basis for assessing individual student growth. But at that faculty meeting I saw how the test results told the math teachers something that could help them improve their teaching.

The second experience was the middle school dance, and the unfortunate assistant principal who was assigned to monitor for dirty dancing. Seemed to me there was quite a bit of that, and I decided that it was time for me to thank God for a week of no “taking them down,” and head on home.

Next stop: McAllen.

DAWG BONE: NOT SURE WE HAD RULES ABOUT PHYSICAL RESTRAINT 25 YEARS AGO.

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

LOYAL DD READERS: TODAY’S THE DAY TO ZOOM WITH THE DAWG. 10:00. HOPE TO SEE YOU THERE!

The case in Harlingen started out as a proposed mid-year termination of a teacher who served under a probationary contract. It morphed into a termination as of the end of that probationary year. It’s not surprising that this happens periodically.

Here’s why: it takes a long time to terminate a contract in mid-year. When the district proposes termination in mid-year it must give the teacher notice of it. The teacher is entitled to an independent hearing before a hearing examiner appointed by T.E.A. The district bears the burden of proving that there was “good cause” sufficient to terminate the teacher’s employment. The hearing has to be conducted, the hearing examiner has some time to render a decision, and since lawyers are involved, things often get pushed back. Meanwhile, the district continues to pay the teacher.

In this case there were added complications. The Texas Teachers of Tomorrow alternative certification program had informed the district that the teacher had lost his certification status. Based on that, the board voted to terminate the man’s employment since the contract was void. The teacher appealed that to T.E.A. claiming that the TTT relied on a miscommunication from a district administrator.

All of a sudden it’s April and the parties are embroiled in an appeal to T.E.A. Hmmm. That’s when the district chose to cut the Gordian Knot and take a simpler approach. It rescinded the vote to declare the contract void, and voted instead to terminate the teacher’s employment as of the end of the contract term. This does not require a hearing, does not require proof of good cause, and is not appealable. Simpler. Less expensive.

However, it did still go to T.E.A. where the Commissioner ruled that he did not have jurisdiction to hear the teacher’s appeal. The teacher failed to allege any wrongful act by the board. He claimed that a district administrator gave incorrect information to TTT, which led to the “void contract” decision. The Commissioner pointed out that he has jurisdiction over school board decisions—not those of administrators:

The Commissioner lacks jurisdiction to review administrators’ actions unless a school board, by its action or decision as a body corporate (not an individual board member’s action), reviews and affirms the administrators’ actions. Typically, that occurs when an employee files a grievance about the administrators’ actions and the board decides the grievance. Petitioner did not file a grievance….

It's Campbell v. Harlingen ISD, Docket No. 021-R10-03-2022, decided by Commissioner Morath on August 17 2022. I’m pleased to let you know that our firm’s Rio Grande Valley office handled this case, with contributions from Elizabeth Neally, Leandra Ortiz and Priscilla de la Garza.

DAWG BONE: GOT A GRIPE WITH AN ADMINISTRATIVE DECISION? FILE A GRIEVANCE. GOT A GRIPE WITH THE BOARD’S DECISION? TAKE IT TO THE AGENCY.

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

Tomorrow: my week in the behavior unit…

Thanks to Loyal Daily Dawg Reader Mark Tilley for the heads up about the brief filed by The Onion in Novak v. City of Parma. Not familiar with The Onion? Too bad. Here’s how The Onion describes itself in the brief:

The Onion is the world’s leading news publication, offering highly acclaimed, universally revered coverage of breaking national, international, and local news events. Rising from its humble beginnings as a print newspaper in 1756, The Onion now enjoys a daily readership of 4.3 trillion and has grown into the single most powerful and influential organization in human history.

None of that is true. What is true is that The Onion is hysterically funny. It’s a parody publication that has featured such headlines as: Kim Jong-Un Named the Onion’s Sexiest Man Alive. The brief cites the use of parody going back to the ancient Greeks. Jonathan Swift and Mark Twain are cited, along with several court cases holding that parody and satire are protected as free speech under the First Amendment. As professional parodists, the writers at The Onion claim that they have an interest in protecting Mr. Novak, the plaintiff in this case, from prosecution.

Mr. Novak was arrested for what he posted on Facebook. According to the brief:

Mr. Novak’s spoof Facebook posts advertised that the Parma Police Department was hosting a “pedophile reform event” in which successful participants could be removed from the sex offender registry and become honorary members of the department after completing puzzles and quizzes; that the department had discovered an experimental technique for abortions and would be providing them for free in a police van; that the department was soliciting job applicants but that minorities were “strongly encouraged” not to apply; and that the department was banning city residents from feeding homeless people in “an attempt to have the homeless population eventually leave our City due to starvation.

Do you find that not very funny? Tasteless? The Onion concedes that point, but cites the Supreme Court case involving Larry Flynt’s Hustler magazine for the proposition that “the quality and taste of the parody is irrelevant.”

The brief is asking the High Court to take up this case and reverse the decision of the 6th Circuit. The 6th Circuit ruled against Mr. Novak because he did not include a disclaimer, warning his readers that his posts were not to be taken seriously. The Onion claims that disclaimers would spoil the joke. Here’s how parody works:

The author convinces the readers that they’re reading the real thing, then pulls the rug out from under them with the joke. The heart of this form lies in that give and take between the serious setup and the ridiculous punchline. As Mark Twain put it, “The humorous story is told gravely; the teller does his best to conceal the fact that he even dimly suspects that there is anything funny about it.”

The Dawg has occasionally used parody so I was pleased to see The Onion rise to the defense of this rhetorical art form. We shall see what happens.

DAWG BONE: KIM JONG-UN WAS NOT NAMED SEXIEST MAN ALIVE. MIKE MORATH WAS.

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

Tomorrow: not fired today…fired later.

One of the more challenging situations you will encounter is when a student commits a serious violation of your Code of Conduct, but the behavior is a manifestation of the student’s disability. What then?

Federal law is actually pretty specific and detailed about this and so we spend quite a bit of time on this in the Toolbox Training. But if you want the shorthand version of what to do, remember the two Don’ts:

DON’T PUNISH IT

DON’T IGNORE IT

That makes sense. If a student’s behavior is directly attributable to the student’s disability, you would not want to punish it. That would be the same as punishing the student for having a disability. We call that disability-based discrimination.

But you can’t ignore inappropriate behavior. So the thing to do is to call for an ARD meeting and discuss what can be done to teach the student more appropriate behaviors. That’s what BIPs are all about.

If you are interested in a Toolbox Training, just let me know.

DAWG BONE: THE BEHAVIOR IS A MANIFESTATION OF DISABILITY: DON’T PUNISH IT. DON’T IGNORE IT.

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

Tomorrow: surprising Amicus brief….

WE’RE ZOOMING WITH THE DAWG THIS THURSDAY AT 10! BE SURE TO JOIN FOR A LIVELY DISCUSSION.

Seeing as how it’s a Monday in the heart of football season, let’s talk about Monday Morning Quarterbacking. MMQBing is a popular pastime all over America, but should not be done when judges review the judgment calls that educators make. And usually, they don’t.

A good example comes our way via the 5th Circuit. The court dismissed a case in which a former student in Austin ISD accused the district of being deliberately indifferent to racial discrimination. This is not a case in which a teacher or administrator is accused of racial discrimination. The case is about racial slurs and graffiti by other students. In a student-to-student case like this the plaintiff has to prove that the district knew what happened and responded to it with deliberate indifference. The plaintiff here failed to satisfy that standard. Case dismissed.

The court relied on Fennell v. Marion ISD, 804 F.3d 398 (5th Cir. 2015) which it described as “this circuit’s seminal case on Title VI claims for student-on-student harassment.” The Fennell case “teaches that whether a defendant’s response to harassment is reasonable is a contextual inquiry made in light of the severity of the harassment at issue.” The district’s response is to be viewed “in the totality and in light of the severity of the harassment.”

In this case the district simply did not know about some of the incidents that occurred until the suit was filed. There were other incidents that were reported to the school, and they were investigated and dealt with. As is often the case in suits of this nature, the plaintiff argued that the school should have taken stronger action to protect this student from racial harassment by her classmates. The court noted that “Administrators are entitled to make these decisions without second-guessing from courts.”

It's Sneed v. Austin ISD, decided by the 5th Circuit on October 4, 2022.

DAWG BONE: IF THE DISTRICT RESPONDS REASONABLY, THE COURTS WILL NOT PLAY MONDAY MORNING QUARTERBACK.

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

Tomorrow: Toolbox Tuesday!!

Twenty-five years ago I took some time off from the law firm and volunteered to work as a teacher’s aide for a week at various Texas school districts. I’m relaying my memories of this adventure on Fridays here at the Daily Dawg. Last week I told you about my first stop in Liberty Hill ISD. The next stop was Cedar Park Middle School in Leander ISD.

I was assigned to Content Mastery. Whatever happened to Content Mastery? It was the Big Deal for awhile, but I have not heard that term in a long time. Are schools still doing this? Was it replaced by RtI?

What I recall from my week in Leander is the “regulars”—the kids who came in for some help every day. I remember one in particular. He was obviously a bright kid, with a friendly and engaging personality. I helped him focus on math problems and other assignments. A lot of the work consisted of worksheets, which brought to mind my son’s observation about his public school experience: “Dad, you can’t imagine how boring it is.” The worksheets were boring.

I found it slightly disrespectful that the students never called the teacher by her name. Instead she was referred to simply as “Miss.” I wondered if they didn’t know her name. I guess a lot of other labels could have been used that would have been more rude, but I found it a bit dehumanizing that Ms. Gauna was never called Ms. Gauna. Nor was I Mr. Walsh. I was “Sir.”

We had some downtime in the CM room and so after the first few days I decided to bring along something to read. My regular CM kid saw me reading a magazine and asked what I was reading. The following exchange took place:

KID: Sir, what are you reading?
ME: American Heritage magazine. It’s about American History.
Pause…..
KID: Sir, I thought you were finished with school.
ME: I am.
KID: Then why are you reading a magazine about American History?
ME: Because I find it interesting.
Long pause…..
KID: Sir, you frighten me.

That was satisfying. I felt that my work in Leander was done.

On to Killeen and the behavior unit.

DAWG BONE: THAT KID HAS TO BE ALMOST 40 BY NOW. I WONDER WHAT HAPPENED.

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