The charter school in California required all students to participate in statewide testing, or the alternative test. However, students in special education could be exempted.  The student (soon to be known as “the plaintiff”) was in special education, and exempted from the standardized tests for several years. Then this happened:

April 1: Parent revoked consent for special education.

April 3: School acknowledges the revocation and reminds parent that student will now be responsible for participating in the testing.

April 5: Parent changes her mind, requests evaluation for special education services.

April 19: School sends parent the plan for initial evaluation.

April 23: Parent consents to special education evaluation.

Meanwhile the date for standardized testing came and went. The student did not take the test.  Since he was now a “general education” student, taking the test was a condition for his continued enrollment in the district. So the district informed the parent that the student was “disenrolled” and could not return to the school for the next year. 

The parent sued.  She thought that she could simply “put him back in” to special education just as easily as she had pulled him out. But it doesn’t work that way.  Key Quote:

Plaintiff’s request for assessment of J.T. for special education on April 5, 2019 did not “un-do” her April 1, 2019 revocation of consent.  It also did not reinstate J.T.’s status as a special education student.  It would be incongruous with these provisions of the IDEA to automatically impute legal knowledge of J.T.’s disability on the School after Plaintiff’s refusal of services but before a second assessment.

How would this have played out in a traditional public school?  It would play the same, but only up to a point.  The parent who revokes consent cannot simply “put him back in.” That part is true regardless of the nature of the school. But traditional public schools cannot “disenroll” a child because the child or parent failed to comply with a school policy.  That’s one of the ways that charter schools are different. 

I have a suspicion that Empire Springs Charter School was not too disappointed to see this parent leave.  The school handled it in a way that complies with the law, but there were other options.  You have to wonder if they would have taken this approach if the parent was highly valued by the school. 

The facts are spelled out in the district court’s decision at 78 IDELR 131.  The 9^th Circuit affirmed with a short opinion which is published at 80 IDELR 94.  It’s Thomas v. Empire Springs Charter School.

DAWG BONE: MAKE SURE PARENTS UNDERSTAND THE CONSEQUENCES OF REVOKING CONSENT.

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

Tomorrow: Sam Houston defeats Santa Anna….

The Toolbox is our firm’s all day training program about special education discipline.  In the training we offer ten “tools” that educators can use to accomplish two important goals: serve each student appropriately; and maintain a safe school.  We always emphasize that Tool #1 is the most important tool because it’s the only tool that is designed to improve a student’s behavior. Tool #1 is a Behavior Improvement (or Intervention) Plan (BIP). 

ARD Committees are required to ask themselves at every annual ARD meeting if the student has behaviors that impede the learning of the student or others. If the answer is “yes,” the Committee members are then required to “consider the use of positive behavioral interventions and supports, and other strategies, to address the behavior.” The folks in Arkansas did that, but they did not conduct an FBA or develop a BIP.  The parents alleged that this was a violation of IDEA.

Nope. The court pointed out that the operative word is “consider.”  The folks in Arkansas did consider how to address the student’s behaviors. They were not required to do so via an FBA and BIP. 

This would play the same way in Texas if the issue came up at the annual ARD meeting. However, if the issue arose in the context of a proposed change of placement due to the student’s behavior, then state law requires an FBA and BIP.

The case from Arkansas carries a few other important lessons.  Such as:

The importance of evaluation data: The court noted that every time the amount of OT or speech therapy was reduced it was based on a recommendation from a therapist.  This was good evidence that the decisions were not predetermined.  The fact that independent therapists had different recommendations did not change the outcome, as the district considered them and was under no obligation to follow them.

Courts consider parental behavior: The court noted that some of the lack of progress by the student was due to the decision of the parents to pull the student out of school multiple days each week for outside therapy that could have been provided after school hours.

What does “predetermined” really mean?  The court rejected the parent’s argument that the IEP content was “predetermined” noting that the parents were invited to every meeting and that their outside service providers also participated.

It’s  Does T.B. and D.B. v. Key, decided by the federal court for the Eastern District of Arkansas on November 19, 2021.  It’s published in Special Ed Connection at 80 IDELR 10.

DAWG BONE: ARE BEHAVIORS IMPEDING LEARNING?  DO SOMETHING ABOUT IT!

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

Tomorrow: parent revokes consent, then changes mind.

THIS FRIDAY IS ZOOMING WITH THE DAWG DAY!! BE SURE TO JOIN ME WITH MY GUEST, MORGAN BEAM!  MORGAN AND I WILL BE TALKING ABOUT THE LEGAL INS AND OUTS OF INVESTIGATING CLAIMS OF IMPROPER RESTRAINT AND EXCESSIVE FORCE. SEE YOU FRIDAY AT 10!

I’ve heard this term “microaggression” tossed around, so I did extensive research to learn what it means.  Ten seconds on Google brought me this definition: “a statement, action, or incident regarded as an instance of indirect, subtle, or unintentional discrimination against members of a marginalized group….”

But I learned more when I read the case of Hiers v. Board of Regents of the University of North Texas System.  The lawsuit was sparked by a stack of flyers some anonymous person left in the UNT math faculty lounge.  The flyers encouraged faculty members to avoid verbal microaggressions, and then it offered some examples:

I believe the most qualified person should get the job.

America is the land of opportunity.

The flyers characterize these common statements as “microaggressions” because they “promote the myth of meritocracy.” 

So picture Nathaniel Hiers, adjunct math instructor, walking into the faculty lounge and finding these flyers.  He read the flyer, and then wrote a message on the blackboard: “Please don’t leave garbage lying around.”  He also drew an arrow on the chalkboard pointing at the flyers.  Like the person who left the flyers in the lounge, Mr. Hiers acted anonymously. 

UNT fired him for this.

Of course they first had to figure out that he was the one who left this message.  That happened quickly. The chair of the math department promptly sent an email, including a picture of the chalkboard message, to the entire math department:

“Would the person who did this please stop being a coward and see me in the chair’s office immediately.”

Let’s pause for a  moment of reflection right here.  Insulting someone in an email that goes to that person and all of that person’s colleagues without having heard that person’s side of the story usually does not turn out well. Better to pause when agitated and think about another course of action.

Back to our story: Mr. Hiers responded:

“I’ll be by in a few minutes.  I don’t see anything ‘cowardly’ about commenting on silly political flyers left lying in the lounge. If it’s fine for someone to leave stacks of them around the lounge, criticizing them should be fine too.”

In the meeting with the math department chair, Mr. Hiers alleged that he was accused of being “stupid” and “cowardly” and pressured to resign. Mr. Hiers did not resign, and did not apologize for his views.  Shortly thereafter, the math department chair informed Mr. Hiers that his services were no longer needed at UNT.  Just to be sure the matter was nicely teed up for federal court review, the chair laid out the reasons for the decision in black and white:

“My decision not to continue your employment in the spring semester was based on your actions in the grad lounge on 11-26 and your subsequent response.”

Mr. Hiers sued UNT and 15 individuals.  Considering various Motions to Dismiss, the court made the following rulings:

1.  Mr. Hiers chalkboard message was constitutionally protected free speech. The issue of politically correct language is a matter of public concern.  It’s very clear that this is the reason he was fired.  Thus his claim of retaliation was allowed to proceed.
2. He also had alleged a plausible claim of viewpoint discrimination, and so that claim will go forward as well.
3. Even though he was an at-will employee with no contract for future employment, the university faces potential liability for attaching unconstitutional conditions to his continued employment.
4. Mr. Hiers has a plausible claim of unconstitutional “compelled speech” insofar as he alleges that he was pressured to apologize for his views.
5. With regard to the claim of retaliation, the individual defendants—all 15 of them—were not entitled to qualified immunity.
6. Even though only two of the 15 were personally involved in Mr. Hiers’s termination, the court refused to let the other 13 off the hook. Mr. Hiers had alleged that each of the 13 “knew about and consulted on [his] firing before that decision was made.”  That was enough to keep those claims alive.

This case has a long way to go. Mr. Hiers has survived the Motions to Dismiss with most of his claims intact, but he still bears the burden of proving the truth of his allegations.  But there are lessons we can all learn from this early ruling. 

I’m guessing that if the math chair had a second chance to respond to the chalkboard message he would not have used the word “coward.”  That was more than a “microaggression.”  It was a direct insult to the character of the person who left the message on the chalkboard. It’s not surprising that things escalated from there.  This entire incident could have been a teachable moment for the entire math department about the use of language and how personal experience colors our reactions. As it turned out, it is a teachable moment…but not exactly the one that UNT would want.

It's Hiers v. Board of Regents of the University of North Texas System, decided on March 11, 2022 by the federal district court for the Eastern District of Texas.  It’s located at 2022 WL 748502.

DAWG BONE:  PAUSE BEFORE HITTING “SEND” ESPECIALLY WHEN IT’S GOING TO A LARGE GROUP.

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

Tomorrow: Toolbox Tuesday!!

That’s the official opinion of the Fifth Circuit Court of Appeals. Football is dangerous.  I don’t think we needed a judicial declaration on this topic. We’ve all seen serious injuries that players suffer and we’ve seen evidence of the long term effects of the head banging that is an essential element of the game. 

The court opined on this in the context of a high school student who suffered a concussion and then sued the district and numerous district employees over it.  The federal district court dismissed the case, and the 5^th Circuit has now affirmed that decision. Here’s the final paragraph in the court’s short opinion:

There is growing debate in this country about the dangers of football. The problem of concussions has reached the court system via tort suits, See, e.g., In re: NFL Players’ Concussion Injury Litig., 821 F.3d 410 (3^rd Cir. 2016). But we do not see a role for the Constitution in the weighing of risks and benefits that participants in America’s most popular sport must make. 

It’s Yarbrough v. Santa Fe ISD, decided by the 5^th Circuit on March 25, 2022. 

DAWG BONE: BUT IT IS DANGEROUS.  LET’S BE CAREFUL.

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

Suppose that you are a school board member and you are giving a deposition in a civil case brought by a former employee of the district who alleges that he was illegally terminated.  The employee’s lawyer pursues a line of questioning about what happened when the board met in closed session.  Can you answer those questions?  Isn’t closed session confidential?  Can you get in trouble for answering the questions?

In one recent case, a board member, acting on advice of counsel, refused to answer the questions.  The lawyer informed the board member that there were both criminal and civil penalties for disclosing “what occurred in a closed meeting.” 

The court held that the lawyer’s interpretation of the statute went too far. The statute, Texas Government Code 551.046, does provide for civil and criminal penalties but only for the improper disclosure of “the certified agenda or recording” of a closed meeting.  The court held that:

This is not a blanket prohibition against testifying about conversations occurring in a closed meeting, it merely penalizes disclosure of the certified agenda or recording—nothing more.

The court overruled the district’s objections to this line of questioning.  There might be other reasons not to answer certain questions, such as attorney-client privilege. But the mere fact that something was said in closed session does not prevent its disclosure.

This came up in a preliminary motion in the case of Hardy v. Carthage ISD, decided by the federal court for the  Eastern District of Texas on March 1, 2022.  It’s published at 2022 WL 609151. 

DAWG BONE: CLOSED SESSION IS NOT AS CONFIDENTIAL AS MANY PEOPLE THINK.

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

Tomorrow: “Football is dangerous.”

Let’s get the ugly facts out there right away so we can put them out of our minds and focus on the legal nuggets in the case from Plano.  A 14-year old boy, soon to be known as “the Plaintiff,”  celebrated his birthday  by having some friends spend the weekend at his house. Late on Saturday night, after one of the boys had fallen asleep, the student (“Plaintiff”) “urinated in a cup, slapped a groggy [other boy] awake, and caused [the other boy] to drink from the cup.” 

Oh boy.  Middle school.  But wait….it gets even worse.  In a footnote, the court notes that while “there is no evidence that [the Plaintiff’s] conduct that night was racially-motivated, the fact that [the other boy] was the only Black student present is important to give context to the following events.”

Are you surprised to also learn that this incident was captured on video? And that the video was widely disseminated in the community? And that this created a lot of pressure on the school district to “do something” about this?  I didn’t think so.

The school did something.  It charged the Plaintiff with cyberbullying and assigned him three days of suspension followed by 75 days in the DAEP.   However, the federal court reversed all of that.  After a trial, the judge ruled that the district’s disciplinary action was arbitrary and violated the student’s right to substantive due process. 

So let’s get to the legal nugget in this messy situation. The legal nugget is that you have to pay close attention to the specific violation that you charge the student with.   In this case it was cyberbullying.  But there was a problem with that.  The Plaintiff did not record, possess, or disseminate the video. Furthermore, the court concluded that he did not even know that it was being recorded.  Remember that the district did not charge him with bullying. They charged him with cyberbullying, which required evidence that he “used” an electronic device to bully another student.

The Plaintiff slapped the other student and forced him to drink urine. Why not charge him with bullying? Why label it “cyberbullying”?  The court had an explanation:

But it is clear why the District chose to do so.  The District admitted at trial that under current law, it did not have authority to punish [the Plaintiff] for purely physical bullying that occurred off campus and was unrelated to any school activity.  Thus, but for the fortuitous occurrence that [the Plaintiff’s] conduct was caught on video, [the Plaintiff’s] discipline was beyond the reach of the District.

At the time, however, the District was placed in a difficult situation.  The District was deluged with daily protests, death threats, accusations of turning a blind eye to racism, and masses of phone calls and emails, many of which personally attacked School and District administrators for not doing enough to discipline the students involved in the incident. 

The court rejected a number of arguments put forth by the Plaintiff and his father. No, the district did not infringe on the parent’s right to direct and control his child’s upbringing. No, the Constitution does not protect the Plaintiff’s “right” to be on the football team.  No, the district did not violate his Due Process protections in the way it handled his three-day suspension.  No, the removal to DAEP does not require constitutional Due Process. No, the Code of Conduct was not so vague as to violate legal standards.

But the sticking point was the district’s interpretation of the word “use” in the cyberbullying law.  The court held that it was arbitrary.  Being caught on video doing something deplorable, when you don’t even know that you are being recorded is not the “use” of an electronic device. So it’s not cyberbullying.

It’s A.V. v. Plano ISD, decided by the federal court for the Eastern District of Texas on February 14, 2022.  It’s published at 2022 WL 467393.

DAWG BONE: BE CAREFUL WHAT YOU CHARGE THE STUDENT WITH. 

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

Our firm’s Toolbox Training is designed to help school administrators serve students appropriately and safely even in the face of disruptive or even violent behavior. Given that type of behavior, we have to talk about the role of the School Resource Officer (SRO).   Unfortunately, there seem to be quite a few court cases in which SROs are accused of excessive force with students.

In one case from California the student is trying to blame the principal for the SRO’s excessive force, arguing that the principal should have prevented it.  The legal issue revolves around supervision of the SRO. Did the principal have supervisory authority over the SRO?  It wasn’t clear in the record, but the court  allowed the student to amend his pleadings to make the case that the principal had the authority to control the SRO.  The SRO was a city employee, serving as an SRO at the school. The student alleged that the agreement between the school and the city gave the principal supervisory authority, but the pleadings did not adequately explain that.

When SROs are school employees it’s usually pretty clear who has authority. But many schools contract with the city or county for security personnel. It’s important to have your school district attorney review that contract.  

Today’s case is J.M. v. Parlier USD, decided by the federal court for the Eastern District of California on November 10, 2021.  It’s published on  Special Ed Connection  at 80 IDELR 17.

Tomorrow: ugly, ugly facts…..

First, an announcement. We have a WINNER in the Dawg’s April Fool’s Lawyer Joke Contest.  Maria Washington, a Section 504 Specialist and Loyal Daily Dawg Reader from Socorro ISD offered the following:

The man in the interrogation room tells the cop: “I’m not talking until I have my lawyer present.” 

The cop: “But, Sir, you are a lawyer.”

The man: “Exactly.  Where’s my present?”

Thanks to all who played!  Now for today’s content….

At long last we have found something that all of our Supreme Court justices agree on.  School board members can issue a formal resolution of censure, describing one member’s conduct as “inappropriate” and “reprehensible,” without violating the First Amendment.   That’s the unanimous decision of the Court in Houston Community College System v. Wilson, issued on March 24, 2022.

Mr. Wilson had been a thorn in the side of other board members for many years.  In fact, the board reprimanded him in 2016.   This did not deter Mr. Wilson: 

In the ensuing months, Mr. Wilson charged the Board in various media outlets with violating its bylaws and ethical rules. He arranged robocalls to the constituents of certain trustees to publicize his views.  He hired a private investigator to surveil another trustee, apparently seeking to prove she did not reside in the district that had elected her.  He also filed two new lawsuits in state court. 

And so in 2018 the board censured him for actions “not consistent with the best interests of the College.”  In response, Mr. Wilson sued HCC, claiming that this censure resolution was an act of retaliation, punishing him for speaking his mind as the 1^st Amendment allows.

SCOTUS rejected that argument.  The Court pointed out that elected representatives should expect criticism.  Moreover, what Mr. Wilson characterized as an “adverse action” was itself “a form of speech.”   Consider:

The 1^st Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy.  But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same. 

It’s a community college case, but the legal standards are equally applicable to public school trustees.  HCC prevailed, but there are some cautionary statements in the decision. 

*It was significant that the censure was aimed at an elected member of the board.  The Court points out that a governmental censure of a private individual would be a different kettle of fish.

*The Court ruled only on the verbal censure.  There were some punishments that went along with the censure, but for procedural reasons, those issues were not before the court. The Court noted that a censure accompanied by some form of punishment might be treated differently. 

*This was not a defamation case. The Court ruled only on the 1^st Amendment issue.  If Mr. Wilson had alleged that the censure constituted libel, that would have presented a different issue.

In short, the Court affirmed the authority of elected bodies to hold members to certain standards, and to publicly point out when a member falls short.  But there are still some legal issues to be dealt with here.  Don’t act hastily.  Get some legal advice.

DAWG BONE: SCHOOL TRUSTEES CAN CENSURE A SCHOOL TRUSTEE.

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

Tomorrow: Toolbox Tuesday!!

A student in Indiana had a 504 plan that called for “reduced classroom distractions.”  Then COVID happened and the entire state went on remote instruction.  This was hard on this student’s family.  They lived in a ranch home with about 1200 square feet of space, with five children (5 to 20 years old) and three pets “including a guinea pig who frequently squeals to get attention for five minutes or more.” 

The parents sued the district, claiming disability discrimination.  Nope. The court held that this was not disability discrimination: All children were treated the same, even though their circumstances differed.  All children, including these children, received remote instruction. Moreover, the school was not responsible for “classroom distractions” under these emergency circumstances.

The legal standards of IDEA and Section 504 did not change when COVID hit us.  But most judges have the good common sense to interpret those standards in ways that recognize the altered reality. It’s hard to see how the school could have reduced the classroom distractions under these circumstances. 

It's Reinoehi v. St. Joseph County Health Dept.,  decided by the Indiana Court of Appeals on December 3, 2021.  It’s cited in Special Ed Connection at 80 IDELR 51.

DAWG BONE: NICE TO SEE A COMMON SENSE DECISION.

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

It’s Opening Day for another season of baseball which means it’s time for my annual reminder of how baseball, of all of our athletic games, is the most like LIFE. That’s why there is more to learn from baseball than there is from any other sport.

Football is enjoyable and popular even though I’ve always thought George Will showed off how smart he is when he observed that football showcases two unpleasant aspects of modern life. He pointed out that the game consists of “violence punctuated by committee meetings.”

Who doesn’t like basketball?  The fast pace, the beauty of a three-pointer arcing toward the hoop, the sheer athletic grace of the players. It’s a wonderful game. 

Like many of my age group, I don’t understand futbol very well, but I have found it is not the boring game that I thought it was. It’s exciting.  The players are as athletic as the hoopsters, and it’s nice to see that you can be a person of normal size and still excel. 

I am grateful that I never acquired an addiction to golf.  It’s ruined many people.  I am a terrible golfer, never having stayed in double digits. But I understand how someone can get addicted to this game. There was that one perfect chip shot I made one day.  I watched as the little white ball rose in a perfect arc against the blue sky and came to rest on the lush green just two feet from the cup. So beautiful, and it felt so good! I can understand how someone could chase that elusive feeling for the rest of their lives. 

All of these games are good, but none of them are models for LIFE as baseball is. Why do I say that?   Let’s start with the fact that major league baseball players play every day.  You don’t practice for six days and play on one. No.  The game is there to be played every day. Just like LIFE.

There is not much specialization in baseball compared with the other sports.  Everyone has to bat (well, except for the pitcher).  Everyone has to play defense (well, except for the DH).  Everyone has to be able to run and throw and catch.  Of course some are better at certain things than others, but everyone has to be able to do the basics. Like LIFE.

In baseball you can’t check in and out of the game.  Once you are taken out, you are out.  LIFE is like that as I’m sure you have noticed.  When the Coach takes you out, you are not coming back in. 

As George Carlin pointed out, in baseball the goal is to be safe at home.  Isn’t that something we all want in LIFE?

To be successful in baseball you have to be a good team player. No one can singlehandedly win the game. But there are times in baseball when you are utterly on your own. When you stand in the batter’s box, no one can help you.  Kinda like LIFE. 

Baseball is the only game in which the defense controls the ball.  Have you noticed that LIFE is like that?  You are trying to live a certain kind of life, but there are more things out of your control than in your control.  You are trying, with the help of your teammates, to navigate your way through life from first base, to second, to third and then to be safe at home. But you are not in control. You do not have the ball.  LIFE has it.

Baseball, as former MLB Commissioner Bart Giamatti once wrote, “breaks your heart.  It is designed to break your heart.”  It teaches us how to deal with suffering. I remind my son of this every year at the end of the season.  Last October we were texting back and forth as the Atlanta Braves clobbered Our Astros in Game Six of the World Series.  As the game came to an end, I called him and asked him if he remembered what baseball is really about.  “Yes, Dad,” he said.  “Baseball is about suffering.”

But this is Opening Day!  Carlos Correa is dead to me, but Justin Verlander is back, and Jose Altuve lives on. Let’s play ball!!

DAWG BONE: 162 GAMES ON TAP!

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

Tomorrow: a COVID case from Indiana….