If your subscription to the Daily Dawg goes all the way back to 2017 you might remember the first time I told you about the case involving the football coach who liked to take a knee at the 50-yard line right after the game ended.  There, joined by many players on both teams, he said a prayer.  After someone objected to this practice, the superintendent told the coach that he had to say his prayer somewhere else.  Well, guess what?  The Supreme Court is going to hear this one.  Get your popcorn!

I think I know how this one will come out. SCOTUS has extended the notion of religious liberty in several recent cases, some of them dealing with Covid-related restrictions on religious gatherings.  There are at least four justices chomping at the bit to rule in favor of Coach Kennedy.  I’m pretty sure the coach will garner at least one, and possibly two more votes in his favor.  I don’t expect the Supremes to open the door to a daily practice of a school employee reciting  The Lord’s Prayer or reading from the Bible over the P.A. every day.  I expect the cases from the 1960s that established those restrictions will survive.  But this case is different. It’s about the individual religious choice of a single person. Yes, he was “on the job” and served as a representative of the school district.  Yes, his very conspicuous choice of location and timing sent a message to his players about his religious views.  It’s not surprising that a lot of players chose to join in—but no one was forced to do so. 

It will be very interesting to see how the Court decides this one.  It is likely to mark a significant change in how school administrators can thread the needle in the Constitution—the needle that requires that public schools allow the free exercise of religion while not endorsing those exercises. A ruling against the school district might be welcomed by many school superintendents if it offers us clearer guidance on what is allowed and what is not.  Right now, school superintendents and board members are caught in the middle of the culture war over issues like this.  If you let the coach pray, you risk a lawsuit from a group like the Freedom From Religion Foundation.  If you don’t allow the coach to pray, you risk a lawsuit from the coach, and condemnation from the pulpit. 

Tomorrow I’m going to republish the Daily Dawg from September 1, 2017 to give you a bit more background on the case of Kennedy v. Bremerton School District.

DAWG BONE: MAYBE WE WILL GET SOME CLARITY ABOUT A VERY MURKY AREA OF THE LAW.

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

Tomorrow: how the praying coach case began…

We highlight The Toolbox on Tuesdays around here. The Toolbox is an all-day program for campus administrators and special education staff. It’s all about the ten “tools” that you can use to appropriately serve students with disabilities who may be seriously disruptive or even violent.

Some of those students will commit offenses that are listed in Chapter 37 as expellable. In fact, some of those offenses are “mandatory expellable” offenses. What does that mean for a student in your special education program?

Three key points:  First, there is no such thing as “expulsion” for such a student in the traditional sense of the word “expulsion.” That word typically denotes a cessation of services of any kind for a significant period of time.  Under federal law, states must make FAPE—Free Appropriate Public Education—available to all children from 3 to 21 “including children with disabilities who have been suspended or expelled from school, as provided for in Section 300.530(d).”  Since federal law overrides state law, this means that there is no “expulsion to the street.”  The student with a disability who commits a mandatory expellable offense must still be served. FAPE must be available. 

Second, the ARD Committee is the group that decides exactly how that will happen.  Texas is fortunate in that we already have DAEPs and, in our larger counties, JJAEPs that can normally provide the services that “expelled” students need.  But decisions about exactly where and how a student will continue to receive services must be decided by the ARDC on a case-by-case basis.

Third, the student is entitled to services that “enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.”  Notice that this standard is not exactly the same as “FAPE.”

It’s close, but it’s not precisely the same standard.

These are things we talk about in the Toolbox training?  Interested?  Let me know!

DAWG BONE:  DON’T TAKE “MANDATORY EXPELLABLE” TOO SERIOUSLY.

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

Tomorrow: the next culture war case…

The Commissioner’s decision in Doornwaard v. Socorro ISD appears to rely on an insistence that the petitioner has to cite the correct section of the Education Code to justify the Commissioner’s jurisdiction. In this case, the Petitioner cited T.E.C. 7.057(a)(1) when she should have cited 7.057(a)(2). 

OK.  That’s important for the lawyers.  But the Commissioner went on to make a Dawgworthy ruling with important implications for HR directors, superintendents, and board members.

To see if this case is important in your district, pull up your Policy DGBA (Local). That’s the one about employee grievances.  This case involved the legality of a provision that is commonly found in that policy.  The provision gave the board “at its sole discretion” the power to decide if it will actually hear a live presentation of the grievance, or “to allow only the written information.” In other words, the policy did not guarantee that the grieving party would get to present the grievance directly, in person, to the board. The grievant might be limited to having the board review what is submitted in writing. Is that OK?

The Commissioner ruled that it was. In fact, this is the second time that the Commissioner gave his approval to this version of DGBA. The first time was in Parents v. Eanes ISD, Docket Number 037-R10-04-2020 (2020).

This one was decided by Commissioner Morath on November 5, 2021. Docket No. 036-R10-05-2021.

DAWG BONE: CHECK OUT YOUR DGBA.  YOU MIGHT WANT TO DO WHAT EANES AND SOCORRO DO.

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

Tomorrow: Toolbox Tuesday!!

If you get a request from a parent that a book be removed from the library, the first thing to say in response is: “We have a policy about that.”  You can find the policy at EF Local.  I chose three districts at random and looked at their policies.  I found some similarities and some differences in how they address this issue, but importantly, each of those three districts has a policy, and I’m pretty sure that your district does too. So that is the starting point.

All three of the policies I looked at call for some formal review of the request.  In Beaumont, the principal is required to appoint a “reconsideration committee” to review the material “in its entirety” and make a written report.  Lubbock has a similar requirement, but the members of the committee are appointed by the “curriculum and instruction department.”  Frisco draws a distinction between an instructional resource that is selected for a particular campus vs. those selected for the district as a whole.  For campus-selected resources, the principal makes the original decision. For district-selected resources the superintendent appoints a “reconsideration committee.”

In all three districts, policy says that the challenged instructional resource is not to be restricted while this review process takes place.

Board members should be reminded that they have a policy about this subject, and so they should not be making promises about removing or restricting student access to instructional materials.  Instead, the proper response is “we have a policy about that.”  Of course the board can change the policy if they don’t like it, but board members, just like school employees, are required to comply with the existing policy.  

DAWG BONE: SOME OF THE WISEST WORDS EVER SPOKEN ARE: “WE HAVE A POLICY ABOUT THAT.”

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

I’ve written many times in the Daily Dawg about what I call the “Unwritten Rule” in special education litigation—that the judge is always quietly assessing the comparative reasonableness of the parties.  When judges find parents to have acted unreasonably it’s often due to overly aggressive behavior at ARD meetings, or as reflected in communications.  When judges find that the school has acted unreasonably, it’s often due to a nitpicky insistence on compliance with some rule or policy. Judges sometimes call that “elevating form over substance.”  

Here’s a good example.  The district had conducted an evaluation of the student.  After reviewing it, the parent sent an email to the district that included the following:

Maybe an independent evaluation would help shine light on the questions. I do disagree with some parts of the last evaluations, so I’m asking for an independent.

New Jersey has a state law that requires schools to respond to an IEE request within 20 calendar days.  So that timeline should run from the moment the district got this request….right?  After all,  there is no doubt about what the parent is requesting.  I think this could be the very model of how to request an IEE. 

But the district did not respond within 20 days. Why?  Because district policy required that IEE requests had to be done by a signed letter. This communication came via email.   

The court seemed to think that the substance of the parental request was more important than the method by which it was made.  Key Quote:

Given [the district’s] clear understanding that [the parent] was requesting an IEE, its decision to elevate form over substance unnecessarily and arbitrarily interfered with [the parent’s] right to a prompt resolution of their request.

It’s K.K. v. Parsippany-Troy Hills Township, decided by the federal court for New Jersey on August 30, 2021.  It’s reported on Special Ed Connection at 79 IDELR 257.

DAWG BONE:  SUBSTANCE OVER FORM IS THE BETTER DECISION APPROACH.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.  Tomorrow: “take that book out of the library!”

If you are coming to Austin for the Midwinter Conference next week I hope you will be joining us at the Walsh Gallegos Reception.  Monday, January 31 starting at 5:00. Free food, drinks, and fellowship at Flemings. We are delighted to be able to host this gathering LIVE and IN PERSON this year.

Our Midwinter Reception is a long standing tradition.  In 1987 Joe Hairston and I were looking for office space to move into as our little law firm was growing.  We toured some available space on the 5^th floor of a building at Barton Springs and Bouldin.  Joe observed that the Palmer Auditorium was right across the street, and that come January, every superintendent in the state would be there for the Midwinter.  “We could host a reception,” Joe noted. And so we did.

Now the Conference is at the Convention Center and the Reception is at Flemings.  But there will be shrimp. Some things don’t change.  Hope to see you there next Monday.

DAWG BONE: WALSH GALLEGOS RECEPTION: THE PLACE TO BE!

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

Tomorrow: the Unwritten Rule again….this time in Jersey.

Most of our firm’s Toolbox training involves specific disciplinary actions that schools are authorized to use when dealing with students who are eligible for special education.  Tool #9, however, has broader application. Tool #9 is about leadership at the non-consensus ARD meeting.  That’s a tool that will be useful in many situations.  You might have a disagreement over eligibility, the goals in the IEP, the services to be provided, or the placement. Or it might be about disciplinary action.  In all such cases, someone has to step up to provide leadership for the school district.

The ARD Committee has a set of required members that include “a representative of the public agency.”  This is usually the principal or assistant principal. It needs to be someone who has the authority to commit the district to provide the services that the IEP calls for.   This is the logical person to look to for leadership. 

There are two fundamental aspects of ARD meetings that the leader needs to remember. First, there are only two parties at the meeting—the school and the parent (or adult student).  You may have a dozen people sitting around the table, but there are only two parties.  Many viewpoints and opinions will be expressed in the meeting, but ultimately, each party has to speak with a united voice.  It’s up to the administrative representative to give voice to the position of the school district. 

Secondly, special education is upside down compared to everything else in school operations.  Schools operate on a top-down model.  The highest ranking administrator is the one who speaks for the school.   But not so with special education.  In special education, the decisions are made by the ARD Committee which is staffed with teachers, direct service providers and the parent.  When the members of the ARD Committee agree on something, no one in the district can override it. The district is committed.  That’s why we don’t like for people in the ARD to say things like “we’ll have to see if that’s OK with the superintendent.”  If you need the superintendent’s approval, you should have the superintendent at the meeting. 

Taking into account those two fundamental features of special education process and law, the administrative representative should understand that leadership in special education is different from leadership in other areas. The administrative representative states the position of the district, but that position should be derived from the consensus views of the school members of the Committee—the teachers, evaluators, and direct service providers.  The administrative representative needs to be a good listener, someone who can pull together the views of the team members and unite them in a single position.  The administrative representative is the leader, but not the quarterback dictating the play. 

Our Toolbox Training touches on all this as we review Tool #9, but our firm also offers more in depth training specifically focusing on how the administrative representative can provide the kind of leadership the school needs at the ARD Committee meeting. Let us know if we can help you with that. 

DAWG BONE:  A LEADER.  NOT A DICTATOR. 

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

Tomorrow: Midwinter Conference

DEAR DAWG: Snort, here. Rip Snort.  Intrepid Reporter. Friend of the Truth.  Dawg, your Intrepid Reporter confronts you with an error in an earlier post.  On December 6, 2021 you reported that the case involving the Pledge of Allegiance in Klein ISD was over, that all defendants had been dismissed.  Wrong.  The case against the classroom teacher who allegedly required the student to write the words to the Pledge has not been dismissed. This was first reported by Loyal Daily Dawg Reader Joe Ball of the TASB Legal Staff. What say you now?  SNORT.

DEAR SNORT:  We tuck our tail between our legs, Snort.  You are right. Put an E in the score book: “E-Law Dawg.”  Many thanks to Joe Ball who is not only a LOYAL Daily Dawg Reader, but also a diligent one.  To be accurate about the case, all defendants except for that one classroom teacher have been dismissed. The district has been dismissed. Left twisting slowly in the wind is the classroom teacher who assigned the students with the task of writing the words of the Pledge.   His plea for dismissal on the basis of qualified immunity was denied, much to the dismay of many of the 5^th Circuit judges.  So the case continues. 

DAWG BONE:  SNORT GOT ONE RIGHT!

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

Tomorrow: Toolbox Tuesday!!

Hey Loyal Daily Dawg Readers: don’t forget to join us this morning at 10:00 for Zooming with the Dawg.  Hope to see you then!

Hopkinton High School in Massachusetts suspended eight students from the hockey team for their participation in a group chat on Snapchat that targeted and bullied another hockey player.  The Hopkinton Hockey Eight were also suspended from school for various lengths of time, depending on the severity of their misconduct.  Two of the Eight sued, alleging that the school was violating their constitutional rights of free speech.  Besides being suspended from the hockey team, one of the two plaintiffs was suspended from school for three days, and the other for five.

This case gives us another look at how the courts will address social media activity by students after last year’s Supreme Court ruling in favor of Brandi, the cheerleader, who dropped four F-Bombs on Snapchat.  Brandi won her case. The hockey players lost.  Brandi used vulgar and disrespectful language, but she did not bully anyone. The hockey players did.

The two hockey players who sued basically argued that yes, they were part of the Snapchat group, but they were not the main instigators of all this.  There were others in the group who took and disseminated unauthorized pictures and videos of the student who was targeted.  These two plaintiffs did not do that. They argued that what they did was not all that bad.  The court took an interesting approach to that argument, noting that:

Children often bully as a group. The children who stand on the sidewalk and cheer as one of their friends shakes down a smaller student for his lunch money may not be as culpable, but they are not entirely blameless.

The court noted last years’ Supreme Court ruling about the cheerleader, but emphasized that SCOTUS held that the school retains the power to address “serious or severe bullying or harassment targeting particular individuals.”  Key Quote:

Speech or conduct that actively and pervasively encourages bullying by others or fosters an environment in which bullying is acceptable and actually occurs—as in this case—is not protected under the First Amendment.

I suspect that the school’s response to the original bullying complaint was a factor leading to its success in the subsequent litigation. Upon receipt of a complaint from the parent of the targeted student the school took swift and decisive action, including a thorough investigation that produced a nine-page report.  The court began its analysis of the case by noting that “Courts generally defer to school administrators’ decisions regarding student speech so long as their judgment is reasonable.”  Hopkinton High handled it well, and benefited from the court’s deference. 

It’s Doe v. Hopkinton Public Schools, decided by the 1^st Circuit Court of Appeals on November 19, 2021.  The case is published at 19 F.4^th 493.  

DAWG BONE:  DO A GOOD REPORT AND THE JUDGE WILL LIKELY DEFER TO YOUR JUDGMENT.  

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

It seems of late that a lot of cases that are appealed to T.E.A are being dismissed on the basis of a lack of jurisdiction.  In several recent decisions the Commish has pointed out that things changed in 1995 when Chapter 7 of the Education Code was amended.  Prior to that year the Commissioner had the authority to rule on a wider variety of cases. But since 1995 the Commissioner’s authority under T.E.C. 7.057 has been limited to two types of cases: those alleging a violation of a written employment contract that caused monetary harm; and those alleging a violation of “the school laws of this state.” The “school laws” are only those contained in Titles I and II of the T.E.C.

A recent decision from DeSoto ISD points out all the things the Commissioner does not have the power to address. These include:

1. Violations of the U.S. Constitution.
2. Violations of school board policy.
3. Violations of federal law.
4. Violations of the Code of Ethics and Standard Practices for Texas Educators.

Mr. Michael Robinson alleged that DeSoto ISD “improperly reduced his compensation.” But he did not allege that a written employment contract was violated, nor did he properly plead any violation of “the school laws of this state.”  Case dismissed.

It’s Robinson v. DeSoto ISD, decided by the Commissioner on November 15, 2021. I’m pleased to let you know that Sandi Tarski and Wesley Nute of our firm’s Irving office handled this one for the district. 

DAWG BONE: APPEALS UNDER 7.057 ARE LIMITED.

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

Tomorrow:  the Case of the Hopkinton Hockey Eight….