Olecia James thought she was treated unfairly when she finished third in the rankings of the graduating class at  Cleveland Central High School in Mississippi. It’s understandable that she felt that way. The district botched the situation.  But the 5^th Circuit held that Ms. James did not have a “property interest” in her class ranking, and thus she had no basis to claim a constitutional violation.

The problem arose when two high schools were merged due to a 50-year old desegregation decree. (Just now??)  Now there were more students in the senior class, and Ms. James, a model student, slipped from second to third in the rankings.  However, both of the high schools had made mistakes in awarding credits as called for in the student handbook.  The superintendent discovered the problem several weeks prior to gradation and took corrective action, ordering a review of all transcripts so that grades would be properly aligned with the handbook.

This did not sit well with Olecia or her family because she received fewer “quality points” than she thought she should have. The student and her family complained and the superintendent granted their request to award Olecia the additional points she wanted.

So far so good for Olecia. But then another “disgruntled parent” came forward and the superintendent “backtracked again.” The superintendent issued her final decision, calling it “the fairest outcome for a bad situation.” This moved Olecia, soon to be known as “the plaintiff,” from second place to third.

The court dismissed the case for reasons that are well established.  Yes, students have a “property interest” in their public school education that is protected by the Due Process Clause of the 14^th Amendment.  But that “property interest” is triggered “only by a student’s total exclusion from the educational process.” It does not apply to the exclusion from extracurricular activities. It does not guarantee that a student gets to attend the school they’d prefer to attend. It applies to expulsion and suspension, but not to class rank.

I was personally pleased to see the court repeatedly cite Nevares v. San Marcos CISD, 111 F.3d 25 (5^th Cir. 1997).  That’s the case where the court held that the Due Process Clause does not apply when a student is assigned to the DAEP. My late, great law partner, Eric Schulze, represented San Marcos in that case. 

This case is another in the long line of cases in which federal judges point out that they do not wish to be school administrators.  Key Quote:

It would be a fool’s errand to try to write federal due process rules governing how schools should award honors or how many quality points an Algebra II class should get.  Federal judges have no business constitutionalizing such matters. “If we wanted to do that, we would have run for school board.”

This one is James v. The Cleveland School District decided by the 5^th Circuit on August 17, 2022. It’s cited at 2022 WL 3443916.

DAWG BONE: IT MIGHT HAVE BEEN UNFAIR. IT WASN’T UNCONSTITUTIONAL.

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

Tomorrow: what’s your opinion of Taylor Swift?

The 5^th Circuit characterized Priscilla Villarreal as a “citizen journalist” because she frequently posted about local news items on her Facebook page where she had over 120,000 followers.  It turns out, however, that her status as a citizen journalist was not critical to the outcome of her suit against the City of Laredo and numerous local officials.  The 5^th Circuit refused to dismiss the case, noting that Ms. Villarreal had plausibly alleged that her First Amendment rights had been infringed, and that she had been unconstitutionally “seized” in violation of the 4^th Amendment. On top of that, the court held that she alleged a plausible claim of “selective enforcement” of a Penal Code statute in violation of the Equal Protection Clause of the 14^th Amendment.

What was this about?  It’s safe to say that Ms. Villarreal was not well liked among the officers in the local police department or the district attorneys’ office. They were offended by some of her accusations of wrongdoing, corruption, or incompetence.  Ultimately they obtained a warrant from a state magistrate judge and arrested her, charging her with violating Texas Penal Code 39.06(c). 

That section of the Code makes it a crime to (1) “solicit” from a (2) “public servant” (3) information that the public servant has access to because of the public servant’s position but  has not been made public for (4) the purpose of obtaining a benefit.  The specifics in this case were that Ms. Villarreal had contacted a public servant (police officer)  to confirm what she had heard elsewhere. In one instance this involved the suicide of a Border Patrol agent, and in the other it was about the identity of a family involved in a fatal car accident. Neither the name of the BP agent, nor the identity of the family had been made public.  The city charged Ms. Villarreal with doing this for the purpose of “obtaining a benefit,” specifically, scooping traditional news outlets and thus enhancing her status on  Facebook. 

The 5^th Circuit noted that “benefit” in the state statute was defined as “economic gain or advantage.”  Ms. Villarreal did not seek to obtain an economic gain or benefit. The court had a very simple way of characterizing what happened here:

Priscilla Villarreal was put in jail for asking a police officer a question.  If that is not an obvious violation of the  Constitution, it’s hard to imagine what would be. 

It’s Villarreal v. City of Laredo, decided by the 5^th Circuit on August 12, 2022. It’s cited at 2022 WL 3334699.

DAWG BONE:  GOT A “CITIZEN JOURNALIST” IN YOUR LIFE?  DON’T OVERREACT.

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

Tomorrow: wannabe salutatorian sues….

Our firm’s Toolbox Training is about compliance with both federal and state law pertaining to the discipline of students with disabilities.  You Loyal Daily Dawg Readers no doubt already know that our state legislature made some significant changes in this area in the last session.  We have state laws that govern how and when we do a Functional Behavioral Assessment, a Behavior Improvement Plan, how and when we use physical restraint, and how we deal with “time out” as a disciplinary tool. 

All of this will be the subject of our firm’s next webinar. Here are the details:

Title: FBAs, BIPs, Time Out and Restraints: New Rules and the Impact on Student Discipline.

Date/Time: Wednesday, September 14; 10:00 to 11:30.

Presenters: Denise Hays and Kelly Janes

Register: www.walshgallegos.com

Denise and Kelly have years of experience with these issues and will bring a practical approach to the discussion.  I encourage you to sign up.

DAWG BONE: FBAs, BIPs, RESTRAINT, TIME OUT: YOU NEED TO KNOW THE RULES.

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

Tomorrow: who is a “citizen journalist” and does it matter?

September is the month when Haley Turner and I embark on the annual Back to School Tour.  We’ll be providing an all-day update on legal issues that school administrators need to know about. We’ll talk about the court cases that have implications for how you deal with personnel issues, parent rights, student discipline, the role of religion in our schools, special ed and 504.  We’ll do our best to cover all of the issues that keep you awake at night.

We hope to see you! You can sign up at www.ed311.com.  Here’s the schedule:

September 15:             Lubbock                      Region 17

September 28:             Fort Worth                  Region 11

September 29:             Richardson                  Region 10

October 5:                   New Braunfels            New Braunfels Civic Center

October 14:                 Kilgore                        Region 7

It will be informative, lively, and we will find a way to have some fun. Please join us.

DAWG BONE:  BTS 2022 ON THE LAUNCH PAD.

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

DEAR DAWG: Someone told me it’s OK for me to have sex with a co-worker as long as we are both happy about it.  True?  NOT SAYING I WOULD…JUST WANT TO KNOW MY OPTIONS.

DEAR NOT SAYING:  It’s above the Dawg’s pay grade to know whether or not it is “OK” for you to do this.  Lots of variables apply to that question.  We don’t know if you are referring to “OK” in terms of morality, marital fidelity, workplace harmony, or legalities.  So we will confine our answer to what we can speak about, which is the legal angle. 

Let’s assume that Person A and Person B are employed at District C. They hold the same position, neither one supervising the other.  Maybe they are teachers in classrooms next door to each other.  Person A makes sexual overtures toward Person B, to which Person B responds YIPPEE! YES!! BY ALL MEANS!!!  WHAT TOOK YOU SO LONG?????

Thus, with regard to Person A, Person B’s welcome mat is out, so to speak.  What we can say about that for sure, is that Person A has not engaged in sexual harassment.  Sexual activity of employees with students is always forbidden, but among the grownups who work for the district, the key term is “unwelcome.”

I always think of my friend and colleague Wayne Haglund when discussing this issue. Wayne is the lawyer who once pointed out the implications of this term “unwelcome.” It means that two employees in your district are free to have a sexual fling with each other as long as both parties are happy. 

But there’s a hitch.  Once they get started they cannot stop. As long as all activities are “welcome” by both parties, you do not have sexual harassment.  As Wayne pointed out, it’s when one party pulls up the welcome mat that the legal issues arise.

Of course romantic and/or sexual activity in the workplace can be a problem even if it is enthusiastically welcomed by both parties.  For one thing, if there is a power imbalance between the parties, such as a principal and a teacher, what looks to be “welcome” may not be.  There is pressure on the lower rank employee to welcome the overture. 

There can be other problems.  That rendezvous at the copy machine lingers on much longer than necessary. That lunch break stretches out.  Googly eyed employees are not as attentive to the task as they should be.  Any activity that gets in the way of the work being done is a problem—but it is not “sexual harassment” unless it is “unwelcome.”

DAWG BONE: IF THE WELCOME MAT IS OUT, IT’S NOT SEXUAL HARASSMENT.

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

Tomorrow: the BTS Tour!

Dear Dawg: I’m a bus driver. I’ve got 57 kids on my bus.  I’ve got notes for 34 of them that they have to sit in the front row. What do I do—stack them up?

I got this real question from a bus driver many years ago, and was completely stumped.  Hmmm—I don’t know what you do in a case like that.  The question made me realize what practical problems bus drivers encounter.  I suppose that if you have 34 out of 57 kids who are supposed to sit up front you have a glitch in your system.  We are making promises that we cannot keep.    

Bus drivers play a crucial role.  They are Ambassadors of First Impressions.  While their primary responsibility is to transport the kids safely, they also set the tone for the school day.  A warm and personal greeting by the bus driver starts the day off well. 

Unless you have an aide on the bus, the driver is left alone, the only adult supervising a large number of kids.  That’s a very tough job.  One thing you should be sure about is that the bus driver has adequate information about any special needs or concerns involving the students. 

Can confidential information be shared with the bus driver?  Yes.  Take a look at your Policy FL Local. This is where your district has defined the terms “school officials” and “legitimate educational interest.”  Under FERPA, you can share information from educational records with a “school official” who has a “legitimate educational interest.”  The typical FL Local adopted by most districts defines “school official” broadly enough to cover all school employees; and “legitimate educational interest” means, among other things, that the employee is working with a student. 

Bus drivers will meet that definition. They are responsible for safety and order on the bus. They are responsible for preventing acts of bullying or harassment. To do their jobs well, they may need to know some things about some of the students. For example: does Amber have a behavior plan that the driver needs to know about? Does Carlos have special medical conditions that might be important?  

Of course there is a lot of information about students that the bus driver does not have a “legitimate educational interest” in.  The driver does not need to know who is on the honor roll, who just flunked the math test, or who got sent to the principal’s office today.  The driver does not need to know who is in a special ed or 504 program, unless there are implications for the time on the bus.  So the transportation director and the principal should come up with some guidelines for the type of information that should be shared.

Drivers also need to have some training on FERPA, particularly to make sure they understand the duty to maintain confidentiality.

We can help with this. If you have a need for training of your bus drivers on some of these issues, or help with coming up with a protocol for the sharing of information, give us a call at the law firm. 

Just don’t ask me what to do with those 34 kids. 

DAWG BONE: GOD BLESS THE BUS DRIVERS OF THE WORLD.

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

Tomorrow: August is over!! Thank God!!

Our firm’s Toolbox Training is based on the regulations promulgated pursuant to IDEA, which govern how schools serve students with disabilities under that law.  However, the tools in the Toolbox are—for the most part—applicable also to those students who are covered by a plan under Section 504. The requirements of the two laws as they pertain to student discipline are largely parallel. But there are a few distinctions.

Last month the Department of Education’s Office for Civil Rights issued a 32-page guidance document entirely focusing on “Supporting Students with Disabilities and Avoiding Discriminatory Use of Student Discipline under Section 504.” 

If you are the 504 Coordinator for your district, this is a document you must study.   You can expect the OCR to take an aggressive approach in responding to complaints about school district compliance with these guidelines, so it would be a good idea for the Coordinator to study up and do some training with key staff in the district.  The lawyers at Walsh Gallegos are happy to help with that. We’re diving into this document in detail and will be ready to help you.

DAWG BONE:  YES, YOU MUST DO A MANIFESTATION DETERMINATION FOR THAT 504 STUDENT!

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

Tomorrow: the Ambassadors of First Impressions

There is a K-8 charter school in North Carolina that requires girls to wear skirts.  No, really—they do.  Yes, the boys at the School must conform to a uniform policy as well, and it’s equally conservative. But the girls claim that this skirt requirement imposes a burden on them that the boys do not have to deal with.  They are more inhibited on the playground, they have to take care as to how they sit.  It can be cold on bare legs in North Carolina. 

The founder of the school, who still serves on the board, claimed that the dress code promoted chivalry. He testified that “chivalry” meant “a code of conduct where women….are regarded as a fragile vessel that men are supposed to take care of and honor.” 

I intend to poll the Women of Walsh Gallegos and see how they feel about that.  Fragile vessels, indeed.  Fiddle-dee-dee, Miss Scarlet!

But that gives you an idea of the culture the charter school was promoting. One of the board members testified that school at the Charter Day School was more like school was 50 years ago.  This appealed to many parents, but three of them, representing girls in kindergarten, 4^th and 8^th grades, sued the school, alleging that the dress code, besides being a few centuries behind the times, was illegal. 

The 4th Circuit, sitting en banc, has now held that the “girls must wear skirts” provision in the dress code violates the Equal Protection Clause of the Constitution.   Pursuant to prior cases, the court noted that any distinction based on sex must be justified by an “exceedingly persuasive case” to the effect that the distinction serves an “important governmental objective.”  The majority opinion concluded that Charter Day School’s explanation for its skirt requirement fell “woefully short” since the rationale for the requirement was to reinforce outdated gender stereotypes.  That’s not an “important governmental objective.” 

The court also held that Title IX applies to school dress codes, and remanded the case to the lower court for a ruling as to whether the dress code also violates that statute.  But the big news here is the Constitutional ruling as it will be cited in every future challenge to a distinction in a school dress code based on sex. 

So get ready.  It’s Peltier v. Charter Day School, Inc., decided by the entire 4^th Circuit on June 14 2022. It’s cited at 37 F.4^th 104.  You might want to take a look at this set of FAQs from TASB about student dress codes: https://www.tasb.org/services/legal-services/tasb-school-law-esource/students/documents/dress-and-appearance-of-students.pdf

DAWG BONE:  WILL EARRINGS AND LONG HAIR BE NEXT?

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

Tomorrow: Toolbox Tuesday!!

The court’s decision in Reyes v. BOE for Prince George’s County Public Schools is a mixed bag.  The court ruled in favor of the school on some issues, and in favor of the parent on others.  For today, I want to highlight one aspect of the case that has practical implications.  It’s about Progress Reports and how you respond to them. 

The court held that the district’s failure to call for an IEP Team meeting after progress reports were issued indicating that the student was not on track to achieve the annual goal was a denial of FAPE and not merely a technical or harmless procedural error. I’ve never encountered a court looking at Progress Reports in that way.  The regulations do not require that an ARD meeting be held anytime a six-week report shows a lack of progress. The way the regulation is worded, it looks to me that the annual review is sufficient.

But that’s exactly what the district argued in this case and the court rejected it. Not only that, the court refused to shrug this off as a harmless technical error.

This is not a binding precedent in Texas. It’s a federal court decision from Maryland.  But I think there is a lesson here, that being: take those progress reports seriously.  Three things in particular are worth noting.

First, the progress reports should be accurate and based on the data.  Do not sugarcoat.

Second, the reports should be based on progress toward the measurable annual goal. If we are halfway through the year, are we halfway toward achieving the goal?

Third, if the progress report shows that the student is not on track DO SOMETHING ABOUT IT.  An ARD meeting may not be necessary, but notice to the parent and a conversation would be a good idea. Or a staffing of relevant school personnel to see what can be done. Do something. Document it.

It’s Reyes v. BOE for Prince George’s County Public Schools, decided by the federal court for the State of Maryland on March 31, 2022.  It’s published by The Special Educator at 80 IDELR 286. 

DAWG BONE:  IS THE STUDENT “ON TRACK”? IF NOT, WHAT ARE YOU DOING ABOUT IT?

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

The student regressed…. but received FAPE.  How can that be?

“There’s no question [the student] had regressed rather than progressed by the end of third grade. This doesn’t mean, however, that she wasn’t afforded a free and appropriate public education.”  That’s how the federal court in Arkansas summarized the situation.  To understand this decision you have to take into account the COVID shutdown in March, 2020.  The court noted that the pivot to remote instruction “didn’t come easily for [the student].”  The court noted that all parents were given a choice as to how instruction would be provided. These parents chose hard-copy work packets, which the district provided.  The court also took note of the district’s efforts under difficult circumstances:

The District was flexible; [the student’s] teachers were willing to make changes if things weren’t working.  Her teachers testified that they regularly contacted [the student’s] parents in telephone calls, text messages, and emails, but seldom received any response. Ms. Blauser (the District dyslexia coordinator and special education supervisor) even went so far as to visit the home one evening after the District hadn’t heard from the parents in about two weeks.

The record doesn’t show a District that was ignoring a student’s needs….The District put forth a significant effort to enable [the student] to make appropriate progress in light of her circumstances.”

Based on that analysis, the court reversed a hearing officer’s decision and concluded that the district did provide FAPE to the student. Therefore, the parents were not entitled to reimbursement for private school tuition or any other relief.  The court cited teacher testimony and test scores showing progress.

Does this case tell us that as long as we are trying hard, the courts will grade our work well?  No. But some evidence of progress, along with lots of evidence of a consistent and focused effort goes a long way toward explaining why a student suffered educationally due to the COVID shutdown.

It’s Beebe School District v. Does J.H. and R.H., decided by the federal court for the Eastern District of Arkansas on March 30, 2022. It’s published in The Special Educator at 80 IDELR 289.

DAWG BONE: EFFORT AND FLEXIBILITY COUNT. 

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

Tomorrow: progress reports…