I’ll bet that many Loyal Daily Dawg Readers remember the horrific incident when two high school football players intentionally assaulted the ref near the end of the game.  When I read the court’s opinion in this case I was surprised to see that this incident happened seven years ago—in September, 2015.  Here’s a recap of what happened.

The game was between Marble Falls and John Jay.  According to the allegations in the lawsuit, Jay’s assistant coach, Mack Breed, became “increasingly agitated, angry and enraged over his belief that Referee Robert Watts was not only making a number of bad calls,” he was also allegedly making “racial comments” directed at Jay’s players.  Here’s what the lawsuit alleges happened next:

Coach Breed told John Jay players “to hit” Watts because “he needed to pay the price.”  In the game’s closing two minutes, two John Jay players followed that order. They ambushed Watts from behind. The assault left Watts with “a turf burn on his forehead, a cut next to his right eye, and a large abrasion on his left arm.”  He “received a concussion and experienced “post-concussion syndrome and anxiety disorder.”

Breed pled guilty to assault a few months later and permanently lost his license to teach.  Notice that Coach Breed committed this assault not by doing it himself, but by directing players under his supervision to do so.

The injured ref filed a civil suit against Coach Breed and the district that employed him.  The federal district court tossed it out, but now the 5^th Circuit has reinstated the case against the coach. The suit was based on 42 U.S.C. 1983 which is the most common basis for a lawsuit in federal court against governmental entities and their employees. We can learn a few things about how that statute works from the court’s decision in this case.

Liability of the district.  The district’s defense was based on the fact that there was no official policy or custom of the district that caused the coach to order the kids to knock the bejesus out of the ref.  As a general rule under 1983, school districts face liability only when the policy or well-established custom of the district caused the injury.  That’s not what happened here.  The court put it succinctly:

No policy or custom of Northside ISD directed the assault on Watts—quite the contrary, Breed had gone rogue in ordering the assault—so the district is not liable under section 1983.  

Liability of the coach.  It was a different story with the coach.  To pin liability on the coach, the ref had to convince the court that the injury was caused by a “state actor.”  Section 1983 only applies to “state actors.”  Recall that it was two students who actually did the physical damage to the ref.  How can this be blamed on a “state actor”?  Here’s how:

Breed’s ordering players to assault the referee….is an example of a public official’s ordering private actors to engage in conduct. The law has long recognized that state action exists when a state actor commands others to commit acts as much as when the state actor commits those acts.

The challenged action is Breed’s order to hurt Watts. It is hard to see how that is anything other than state action.  Breed was on the sidelines acting in his role as an assistant football coach at a public school…..Breed cannot escape liability by ordering students to conduct the attack.

It’s Watts v. Northside ISD, decided by the 5^th Circuit on June 27, 2022. I’m pleased to let you know that Craig Wood, Katie Payne and Jameson Baker from our firm’s San Antonio office represented Northside on this one.  Please note our firm represented the district—not the coach.  

DAWG BONE: NOTICE: BOTH CRIMINAL AND POSSIBLE CIVIL LIABILITY FOR ORDERING STUDENTS TO COMMIT AN ASSAULT.

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

Tomorrow: here we go again: is a charter school a public school?

The special education lawyers in our firm held our annual internal Continuing Legal Education seminar a few weeks ago, and as usual, I was blown away by the depth of experience and insight the lawyers in Walsh Gallegos can offer.  For today, I want to just offer one specific example of a suggestion that was made by one of my partners from the Irving Office, Jan Watson. 

We were talking about misunderstanding and/or resistance to the use of any form of “time out.” Texas requires that if this technique will be used recurrently it must be listed in the student’s IEP or BIP.  So put yourself at the ARD meeting where this is being discussed and the parent balks: “I don’t want any use of time out with my child.” What to do?

Jan’s suggestion was first to ask: what is it about time out that you object to?  The answer to that question might reveal that the parent’s understanding of “time out” is much different from the way the district uses this technique. So that discussion, clarifying exactly how “time out” works, would be a good idea and it might resolve the problem.

If the parent is still hesitant, Jan had a second suggestion: to accompany “time out” with a goal that we could monitor for progress. The goal, for example, could be to reduce the amount of time the student takes to regain self-control. Remember that the entire premise of “time out” is that it is used in an effort to help the student regain self-control. 

In our firm’s Toolbox Training we spend a lot of time on Tool #1—the BIP.  The use of time out, like anything else that goes into a student’s behavior plan should be designed to teach, nurture, and encourage the kind of behaviors that facilitate learning.  A BIP does not describe what the school will do TO the student. The Code of Conduct does that. A BIP describes what the school will do FOR the student. That should be emphasized anytime parents are resistant to the content of the BIP.

DAWG BONE: THE BIP IS ABOUT WHAT WE WILL DO FOR THE STUDENT.

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

Tomorrow: remember when the coach ordered the football players to attack the ref?

Just last week the Daily Dawg reported on the SCOTUS case that will enable public funding to go to schools that are overtly religious in the State of Maine.  The Court held that Maine could not refuse to allow funds to go to certain schools simply because they are religious.  If Maine chooses to allow parents to use a state voucher at a private school, it has to allow those vouchers to go to private religious schools. 

But that’s not the end of it. The Attorney General of Maine has raised other concerns.  Some of the private religious schools discriminate on the basis of sexual orientation. Most (all?)  discriminate on the basis of disability.  Maine has a Human Rights Act which prohibits discrimination on the basis of such factors.  Can the state establish that public funds may only go to institutions that commit to abiding by the Human Rights Act?

This may lead to further litigation. The Court’s opinion in the case from Maine repeatedly emphasizes that the private religious schools were excluded from the program solely because of their religious status.  The Court emphasized that the private religious schools met all other conditions to benefit from the program. 

As Texas legislators consider this issue, they should think about that.  If funding for private schools is to be made available, shouldn’t it be limited to those schools, religious or not, that will commit to accept students without regard to race, sex, gender identity, religion, or disability?  Do we want our hard-earned tax money to flow to organizations that discriminate on the basis of these factors? 

DAWG BONE: NOT ALL ATTORNEYS GENERAL ARE LIKE OURS.

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

Tomorrow: Toolbox Tuesday!!

Dear Dawg: What’s this I hear about a BOY screener?  Does this mean that our local school district is now doing some sort of screening on boys? Why would they need to do that? Is this some sort of transgendery thing?  Why can’t we just let the boys be the boys and the girls be the girls? Why do we have to “screen” them? And what happens with this “screening”? If a boy does not measure up does that mean he’s not a real boy? I would hate for that to happen. I think we should let the boys be boys with their frogs and snails and puppy dog tails while the girls remain sugar and spice and everything nice. Can’t we just go back to that?  YOUR FRIEND.  EMILY LITELLA.

DEAR MS. LITELLA: I think you misunderstand, Ms. Litella.  The term BOY refers to the Beginning of the Year assessment of a student. Sometimes schools like to give the students a test at the beginning of the year and then give the same test at the end. This is a simple and effective way to determine if the student is learning.  The school compares the BOY (Beginning of the Year) to the EOY (End of Year) test result. Sometimes there is also a Middle of the Year (MOY) assessment. 

It can be confusing. You know how these educators are—if they can replace words with acronyms they will do it.  But please stay in touch. It’s always a pleasure to hear from you.  DAWG.

DAWG BONE: A BOY SCREENER HAS NOTHING TO DO WITH TITLE IX.Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.

THE PRAYING COACH….

Loyal Daily Dawg Readers keep up with the news better than the average educator, so I’m sure that you already know that Coach Kennedy won his case before the Supreme Court. The Court held that it was perfectly OK for him to offer a brief and quiet private prayer at the 50-yard line right after each game. If some students joined him, no big deal.

I will have a lot to say about this case and its implications for teachers in the classroom at the Back to School program this fall.  For now, let me just make two main points. 

Within an hour of the release of the decision I was seeing many tweets and Facebook posts about the Court allowing teachers to “lead the students in prayer.”  Nope. That’s not what the Court has done, and according to Justice Gorsuch’s opinion, that’s not what Coach Kennedy was doing.  There is nothing in this opinion that authorizes teachers to “lead the students in prayer” and much in the opinion to suggest that such a practice would continue to be inappropriate.  Here are a few excerpts from the decision, with the italicized emphasis added by me:

The contested exercise before us does not involve leading prayers with the team or before any other captive audience.

Note: students in a classroom are a captive audience.

In short, Mr. Kennedy did not direct any prayers to students or require anyone else to participate.

Note: if a teacher says “Students, will you join me in prayer?” the teacher is directing prayer at the students.

Nor is there any record evidence that students felt pressured to participate in these prayers.

Note: teachers are authority figures and role models.  At least some students would feel pressure to join with the teacher’s prayers.

So let’s not read more into this opinion than it provides. 

My second point is my confession of failure.  My prediction of the outcome of this case was correct, but my other prediction was wrong.  No one quoted Matthew 6.  I just felt sure that someone (probably the dissenting judges) would: “And when you pray, do not be like the hypocrites.”  Jesus gave very specific instructions about how to pray and it did not involve grabbing the spotlight at the 50-yard line.  The instructions were to go to the closet, shut the door, and speak to God in private.  How can you miss an opportunity to point that out?!?!?! 

Oh well.  Like I said, much more to say about this at the Back to School. I hope you sign up at www.ed311.com.  This one is Kennedy v. Bremerton School District, decided by SCOTUS on June 27, 2022.  It’s located at 2022 WL 2295034.

DAWG BONE: THAT WALL OF SEPARATION BETWEEN CHURCH AND STATE GETS JUST A TAD LOWER.

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

Tomorrow: a visit from an old friend….

You can expect another heavy push for vouchers in the next legislative session in Texas. Those who support “the money following the child” are sure to emphasize the Supreme Court’s ruling in Carson v. Makin, decided on June 21 of this year.  The Court, by a 6-3 vote, approved for the first time the use of public funds to promote particular religious beliefs in schools that openly discriminate in ways the public schools cannot.

To put this in perspective, you need to understand the situation in Maine that led to this particular scheme.  Here’s something I learned from reading Justice Roberts’s opinion: “Maine is the most rural State in the union.”  It is so rural that over half of its school districts do not operate a public secondary school.  The school district can contract for secondary school services with another school district or with a private school, but if it does not do that, the local district must “pay the tuition…at the public school or the approved private school of the parent’s choice at which the student is accepted.”

To be approved, the private school has to meet certain criteria.  It must be either approved by the state agency or by the New England association of schools and colleges.  It must use English as the language of instruction, offer a course on Maine history and its cultural and ethnic heritage, and maintains a student-to-teacher ratio of not more than 30 to 1.

One more thing: the school cannot be “sectarian.”  A school is considered “sectarian” if it is “associated with a particular faith or belief system and…in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material through the lens of this faith.”

So Mr. and Mrs. John Doe, residing in the backwoods of Maine where there is no high school, can get a grant from the state to send their child to any public or private school that meets that minimal criteria. But they could not send their children to Bangor Christian School or Temple Academy. Those schools were “sectarian,” and thus excluded. 

Chief Justice Roberts wrote the majority opinion that holds that the exclusion of the religious schools is unconstitutional. It infringes on the Free Exercise Clause of the First Amendment.  If parents are allowed to choose a private school, that choice must incorporate schools that are faith-based.

From the dissenting opinion we learn that Bangor Christian and Temple Academy deny enrollment to students based on gender, gender-identity, sexual orientation, and religion.  Moreover, “both schools require their teachers to be Born Again Christians.” In other words, they discriminate in ways that the public schools cannot. They are not required to accept any child. So for the first time, this opinion permits the use of taxpayer funds to support specific religious instruction in institutions that discriminate in ways no public entity can. 

Justice Roberts is not alarmed by this for one basic reason: no state has to spend a penny on private schooling.  Here’s an important part of the majority opinion:

The dissents are wrong to say that under our decision today Maine “must” fund religious education.  Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not “forced upon” it.  The State retains a number of options: it could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own. As we held in Espinoza, a “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” (Emphasis in the original).

This case will help frame the upcoming debate in Texas.  Currently, the only taxpayer money that goes to private schools comes from federal funds.  No state or local tax money goes to private education. We now know that if the legislature chooses to open that spigot, it will flow to schools that teach beliefs espoused by Christians of all kinds, as well as Jews, Muslims and all other religious groups.  Let’s hope that at a minimum, any public funding of private schools will come with some conditions. Those conditions should include the requirement to accept any student that the public school would be required to accept.  Those conditions should include STAAR testing, accountability and transparency in financial and governance issues. Let’s see how many private schools want to accept those terms.

Carson v. Makin was decided on June 21, 2022 and is cited at 142 S.Ct. 1987. 

DAWG BONE: IF TEXAS DECIDES TO FUND PRIVATE SCHOOLS, IT WILL HAVE TO INCLUDE RELIGIOUS SCHOOLS.

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

Tomorrow:  What SCOTUS did: Round Two….

The Toolbox is our firm’s all day training program that outlines ten “tools” that school administrators can use to do the two things the law requires: maintain safety while serving all students appropriately.  That’s what the law requires, and it’s not easily done.  Last school year ended with a horrific event in Uvalde, which is sure to produce a lot of legislative activity during the next session that starts in January.  I expect that there will be more emphasis on security, police, and the “hardening” of the building.  This is one of the things I’ll be discussing with Dr. Harrell, Uvalde’s superintendent, in our Zoom with the Dawg call this Thursday.

Current law, however, puts some restrictions on the role played by SROs and other security personnel.  Section 37.081(d-2) tells us that schools may not assign duties regarding “routine student discipline” to a “school district peace officer, a school resource officer, or security personnel.”  The board is required to coordinate with campus behavior coordinators and other district employees to make sure that the district’s security staff “are tasked only with duties related to law enforcement intervention and not tasked with behavioral or administrative duties better addressed by other district employees.”

That’s a conversation that should be happening in your district, a conversation to make clear the distinction between “routine student discipline” and “law enforcement duties.”

DAWG BONE: LET’S BE SURE EVERYONE IS CLEAR ON THIS DISTINCTION.

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

What SCOTUS did: Round One….

WE’RE ZOOMING WITH THE DAWG THIS THURSDAY!! BE THERE AT 10:00 FOR A LIVELY DISCUSSION WITH THE DAWG AND MY SPECIAL GUEST, DR. HAL HARRELL, SUPERINTENDENT OF UVALDE CISD. 

It’s good to be back on the Daily Dawg!  We hit the ground running this week, and there are three things in particular I want to call your attention to.  The TCASErs are in the Capital City this week, having their semi-annual conference.  As usual, Walsh Gallegos will host a fabulous reception at Fleming’s tomorrow night—Tuesday the 19^th from 5:00 to 6:30.

Then on Thursday at 10:00 we’ve got the monthly Zoom with the Dawg call.  We have switched this monthly event from Fridays to Thursdays, so mark your calendar accordingly.  The general rule is that it will be at 10:00 on the third Thursday of each month, but there will be exceptions. Like in August—it will be the fourth Thursday, the 25^th. 

This month’s Zoom call will feature a conversation with Dr. Hal Harrell, the superintendent of Uvalde CISD.  I know that all Loyal Daily Dawg Readers will benefit from hearing directly from the superintendent about how the district is coping with the tragic events that ended the last school year.    

Meanwhile, we are getting ready for another lap around the track, a.k.a. the 2022-23 school year.  The lawyers at Walsh Gallegos will be all over the state in the next few weeks doing presentations.  You can find me talking to the board members of Region 15 on July 25, the Leadership Team in Port Arthur ISD on July 26, and the assembled staff at Sharyland ISD on July 28. 

DAWG BONE: NEED A GOOD LEGAL PRESENTATION?  WE GOT YOU COVERED.

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

Tomorrow: Toolbox Tuesday

LOYAL DAILY DAWG READERS! IT’S BREAK TIME. THE DAILY DAWG WILL TAKE A BREAK FOR THE NEXT TWO WEEKS, RESUMING PUBLICATION ON MONDAY, JULY 18. WE WILL HAVE A ZOOM CALL THIS MONTH ON JULY 21. HOPE TO SEE YOU THEN.

Coach Watson was suspended with pay so that the district could conduct an investigation into a complaint against her. This suspension went on for seven months, during which time the district found it necessary to hire someone else to take on Coach Watson’s duties at the high school. The district reinstated Coach Watson for the next school year, but moved her to an elementary school. She filed a grievance over this.

It’s well known that teachers and coaches can be reassigned. The contract always contains a provision to that effect. But Coach Watson alleged that this reassignment also carried a drop in compensation. The Commissioner’s decision does not give us much detail about this, but it appears that the coaching stipend at the elementary was less than the coach stipend at the high school. So does Coach Watson have a good case?

The Commissioner held that she did not. Paragraph 5.4 of the contract “expressly excludes all supplemental assignments and payments. In addition, Petitioner’s supplemental duty assignments provide that they are not part of her regular contract, do not carry any property rights, and may be ended and prorated if her supplemental duties change.”

Yesterday we pointed out how important the label of a contract is. If it’s supposed to be a TERM contract, the teacher should not sign one that says PROBATIONARY. Today’s case points out that a teacher/coach contract might include the salary and benefits of the teaching position, while supplemental duty stipends might be excluded from the contract.

Same lesson: read the contract. Make sure you understand it. Then sign it.

This one is Watson v. Liberty-Eylau ISD, decided by the Commissioner on March 8, 2022. It’s Docket No. 003-R10-09-2021.

DAWG BONE: BREAK TIME, READERS! LET’S GET SOME REST AND HANG OUT AT THE POOL.

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

Karen McCarty had a probationary teaching contract with Jim Ned CISD for the 2018-19 school year, her first with the district. For her second year, the district offered her another probationary contract. It said right at the top “PROBATIONARY CONTRACT” in bold font and all caps. Ms. McCarty signed the contract and worked for the district for the 2019-20 school year. This happened again in the 2020-21 school year. For the third year in a row she was offered a probationary contract. Again she signed it and worked for the district.

 At the end of that third year, the district chose not to renew her employment and did so without giving her notice of her opportunity to request a hearing. Why would they? She was on a probationary contract and not entitled to a hearing.

Ms. McCarty filed a grievance with the district, asserting that this was all a mistake. She should have had a term contract. She had worked in public education for five of the eight years preceding her arrival at Jim Ned, and as an experienced teacher, her probationary period was limited to one year. Thus she argued that it was an error for the district to employ her under a probationary contract for a second year, and another error to keep her on probation for a third year.

Maybe so, but the teacher waited way too long to point this out. The board denied her grievance and the Commissioner affirmed that decision. The Commissioner gives us the lesson of this case in clear language:

A teacher waives the ability to complain about being given the wrong type of contract if the teacher (1) agrees to the terms of a probationary contract and (2) accepts the salary and benefits without complaint until she is given notice of a school board’s intent to terminate the contract at the end of the contract’s terms.

The teacher waived her complaint and filed her grievance way past the 15-day deadline. Let’s take a good look at that contract before inking the pact.

It’s McCarty v. Jim Ned CISD, decided by the Commissioner on March 1, 2022. It’s Docket No. 052-R10-08-2021.

DAWG BONE: READ THE CONTRACT. THEN SIGN IT.

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

Tomorrow: Another contract case