We’re Zooming again, Loyal DD Readers!  This Thursday, August 17^th at 10:00 I’ll be Zooming along with my partner, Jameson Baker, as we review some of the more high profile laws that are going into effect with the start of the school year.  This is a free monthly event for all Loyal Daily Dawg Subscribers. 

Jameson and I hope you can join us.  If you are not sure you are registered for these events, please contact Liz Clay at lclay@wabsa.com. Liz can make sure you are set up.

The agenda for this month’s Zoom will involve 1) changes to how we serve students with dyslexia as per HB 3928. This one also has implications for your kids in DAEP which we will discuss; 2) Speaking of DAEP, we’ll talk about HB 114 that calls for mandatory time in DAEP for those vapers; and 3) HB 3—an armed security person on each campus. How will you handle that?

In the past we have done the Zoom call on the third Thursday of the month. This year it’s going to move around a bit.  Here’s the schedule for Zooming with the Dawg this school year. Hope you will mark your calendars to make time to join us:

August 17

September 28

October 26

November 30

December 21

January 25

February 22

March 28

April 25

May 23

All of that subject to change as things come up, but that’s the schedule for now.

DAWG BONE: SEE YOU THURSDAY!

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

Tomorrow: Toolbox Tuesday!!

Today’s Daily Dawg is largely a rerun of a post from April 13^th of this year.  It’s newly relevant because of a recent development in this case.  The 5^th Circuit granted qualified immunity to some educators in a student-to-student sexual harassment case.  There was a strong dissent.  When I wrote this up back in April, I predicted that some judges would seek to have the case reviewed “en banc” meaning that all of the 5^th Circuit judges would be involved, not just a panel of three. Sure enough, there was a request for rehearing en banc, but it failed to get enough votes. So the original decision stands.  That makes my April 13^th Daily Dawg relevant again, so here’s the write up. 

The judge who wrote the concurring opinion said that “it is well past time for this circuit to be dragged screaming into the 21^st century by joining all of the other circuits that have now recognized the state-created danger cause of action.” 

What’s this about? 

It doesn’t make sense unless you understand that governmental entities and their employees are well protected from liability claims.  Consider the options for the parent of a student who suffered some serious injury while attending a public school. 

*A standard state law tort claim against the district based on negligence is unlikely to succeed. The district is immune from tort liability unless the injury arose from the negligent use or operation of a motor vehicle. 

*A similar claim against the teachers and administrators will run into claims of immunity provided by the Texas Education Code. Unless a motor vehicle was involved, or the teacher was excessive or negligent in the use of force in a disciplinary context, the parents are probably out of luck. 

*Claims against the district under federal law will not succeed unless the plaintiff can show that the school’s policy or longstanding custom actually caused the injury. That’s rarely the case.

*So then you might consider a claim under federal law against individual school employees.  That’s when the doctrine of “qualified immunity” arises.

The parent of a student with a disability in Fort Bend ISD sued two teachers, the assistant principal, the principal, and the “manager” of the special education program. The facts alleged are grim, to say the least.  The opening lines of the 5^th  Circuit’s opinion lay it out:

A disabled public school student was sexually assaulted by another student with known violent tendencies.  Despite knowing of this attack, the victim’s teachers let both her and her aggressor wander the school unsupervised, and she was again assaulted by the very same student.

The parents alleged that their girl had been deprived of her rights to Due Process under the 14^th Amendment.  They alleged that the five school employees should be held liable due to the “state-created danger” doctrine.  All five school employees moved for dismissal of this claim because they enjoyed “qualified immunity.”  Pursuant to that legal doctrine, the school employees were immune unless they violated legal standards that were, at the time, “clearly established.”  The 5^th Circuit held that all five FBISD employees were entitled to qualified immunity. The 14^th Amendment claims were dismissed.

The court’s ruling was based on the fact that the “state-created danger” theory of liability has never been approved by the 5^th Circuit.  The court reasoned that a legal theory that has not been accepted is certainly not one that is “clearly established.”  That concurring judge I mentioned above agreed with the outcome of this case, but urged the court to join the many circuits that do permit suits alleging “state-created danger” as a viable theory: the 3^rd, 4^th, 6^th, 7^th, 8^th, 9^th, 10^th, and the D.C. Circuit. 

We probably have not heard the last of this case.  Some of the judges will seek an “en banc” review which would be the proper vehicle for the 5^th Circuit to reverse course and allow suits alleging “state-created danger.”  Moreover, this ruling only applies to the Due Process claim. There is also a claim under Title IX, which the court noted “may well provide [the student] a remedy.”

It’s Fisher v. Moore, decided by the 5^th Circuit on March 16, 2023. 

On July 14^th, the 5^th Circuit reported that the decision would not be reviewed en banc. So it stands. The teachers and administrators are immune from liability and the “state-created danger” theory of liability is still a non-starter in the 5^th Circuit. 

DAWG BONE: 5^th CIRCUIT STUBBORNLY CLINGS TO THE 20^TH CENTURY, ACCORDING TO THE CONCURRING JUDGE.

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

Progress on IEP goals remains the Gold Standard in special education matters.  We know that the Supreme Court has told us that for students who are capable of achieving at grade level, passage from one grade to the next is a strong indicator that the district is providing a FAPE. This is so even when behavioral issues are on the rise.

That’s the background to a federal court decision from Pennsylvania.  From 6^th grade to 8^th the student’s behaviors consistently got worse, but the court held that the district offered FAPE and appropriately addressed behavior.  Key Quotes:

It is understandably frustrating for Parents that H.L’s behavior trended this way despite the District’s efforts, but it does not mean the District failed to provide a FAPE.

The Court notes that importantly, despite his worsening behaviors, H.L. still progressed from grade to grade.

In our firm’s Toolbox Training we emphasize Tool #1 (a BIP) as The Most Important Tool.  But as this case illustrates, an FBA and behavior plan is not the only way to address behavior.   The district ultimately did conduct an FBA and a BIP but the parents argued it came too late. The court disagreed.

It’s H.L. v. Tri-Valley School District, decided by the federal court for the Middle District of Pennsylvania on March 14, 2023.  It’s published in The Special Educator at 82 IDELR 229 and at 2023 WL 2505491.

DAWG BONE: TOOL #1 IS THE MOST IMPORTANT BECAUSE IT’S THE ONLY ONE DESIGNED TO PRODUCE AN IMPROVEMENT IN THE STUDENT’S BEHAVIOR.

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

Tomorrow: 5^th Circuit and the “state-created danger” theory…

Most of the cases I tell you about in the Daily Dawg are decided by the court prior to a full trial.  Most of the time the defendant (school district, usually) files a Motion to Dismiss the case based on some fatal flaw in the pleadings or the absence of any evidence to make a plausible case. Today, however, we have a case involving an assistant principal, Mr. Garcia, claiming that he was improperly “constructively discharged” by a school district (Spring ISD) that went to a jury trial.  The jury found that Mr. Garcia’s service in the Army Reserves was a motivating factor in the district’s treatment of him.  The jury also found that Mr. Garcia’s assertion of his rights under the USERRA (Uniformed Services Employment and Reemployment Rights Act) was a motivating factor.  Based on those findings, Mr. Garcia claimed victory in his suit alleging illegal retaliation.

However, the jury also concluded that the district would have constructively discharged Mr. Garcia anyway. There had been a history of parent complaints and questions about Mr. Garcia’s judgment. There had been meetings with him that “did not go well.”  The jury found that Spring ISD would have fired the guy anyway.  Based on those findings, the district claimed victory, and the judge declared the district the winner.

This happens sometimes. It’s not like they show it on TV.  On TV the jury renders a verdict and it’s all over. But that’s not our system. The verdict is just a verdict—it’s not the judgment of the court.  So after the jury’s verdict the lawyers will squabble over the jury’s verdict, arguing with the judge over the instructions the judge gave them, or the jury’s alleged inattention to the overwhelming evidence. 

In this case, the court concluded that the judge gave the right instructions and the jury got it right when it concluded that Mr. Garcia was discharged for a valid reason.  It’s Garcia-Ascanio v. Spring ISD, decided by the 5^th Circuit on July 17, 2023. 

DAWG BONE:  USERRA PROVIDES STRONG PROTECTION TO EDUCATORS IN ARMY RESERVES. BUT NOT COMPLETE PROTECTION.

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

Tomorrow: the Gold Standard in special ed cases….

If a student is diagnosed with autism, any violation of the Code of Conduct is likely a manifestation of that disability: right?  Same goes for students who are identified as needing special education due to a serious emotional disturbance: right? So if you have a student with both of these conditions, it’s predictable that any misbehavior will be considered a manifestation of one or both disabilities: right?

That’s not how the hearing officer viewed the matter in a Texas due process hearing decision from earlier this year.  The ARDC concluded that the student’s behavior was not a manifestation of disability and the hearing officer affirmed that decision. 

Like most decisions from a special education hearing this one is heavily redacted.  Consequently, we are not told exactly what the student did that led to his assignment to a DAEP.  Despite that, we can glean some important lessons from this decision. 

First, the ARDC reviewed all of the relevant records before making a decision:

The MDR Committee reviewed Student’s current FIE; Present Levels of Academic and Functional Performance information from teachers, school records, including permanent records, group/individual achievement records; discipline records, information from parents, and IEP/BIP goals, and placement.

Second, the ARDC reviewed IEP implementation to make sure that the student’s misconduct was not attributable to the failure of the district to do its job.  The teacher testified about how she implemented the IEP, and the Committee noted that the student’s BIP did not address the behavior that led to the DAEP placement. 

Third, the hearing officer emphasized that the MDR sets a high bar.  Key Quotes:

The standard for establishing a manifestation for the purposes of an MDR under IDEA is a high bar, requiring a close correlation between the disability and the conduct. Simply showing a connection to the disability is not sufficient….

Hearing officers and courts have consistently looked for a causal connection between the ways the student’s disability has manifested itself in the past at school and the behavior at issue in the disciplinary incident. 

The bottom line is this: The IDEA’s limit on disciplinary consequences for students with disabilities applies “only when the conduct violation has a documented and close connection to the behavior the student has exhibited previously at school stemming from their disability.”

It’s a Toolbox case!  Here, the district used Tool #6—a Disciplinary Change of Placement.  Tool #6 can only be used when the behavior is not a manifestation of disability. Here the district persuaded the hearing officer that it used Tool #6 properly, even though the student was identified with both autism and an emotional disturbance. It’s Student v. Klein ISD, decided by hearing officer Deborah Heaton McElvaney on March 23, 2023.  It’s Docket No. 157-SE-0123, and it’s reported in The IDELR at 123 LRP 16835. 

DAWG BONE: MDR SETS A HIGH BAR.  CAUSATION—NOT CORRELATION.

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

Tomorrow: jury trial.

Loyal Daily Dawg Readers are well aware of the Tinker Test. Students have the right of free speech that can be infringed by school authorities if there is a “reasonable forecast” of a “material and substantial disruption” of school.  But that’s only the first and most well-known part of the Tinker Test. Today we explore a case that examines the second part. 

It happened in May, 2019 in Clovis, California.  Andy Castro, scheduled to graduate that day, posted a tweet on Twitter that featured a picture of another graduate with a single word caption. That word was the N-word.  Another student alerted the principal. The principal called young Mr. Castro and his parents in for a discussion and concluded that Andy would not be permitted to participate in the graduation ceremony that night.  The principal gave him his diploma. 

Andy sued, claiming that this was an infringement of his constitutional right of free speech. 

Nope. The court held that the principal acted properly when she barred the student from graduation exercises.  What makes the case particularly interesting is that the court held that the school failed the first part of the Tinker Test, but passed the second part.  We don’t have many cases that rely on the second part of the Tinker Test, so let me explain.

TINKER TEST: PART ONE. The court held that the district did not produce evidence that a “material and substantial” disruption of the graduation program was foreseeable.  I suspect that if this case had gone to a full trial the school would have been able to produce that evidence. But the case was decided based on the district’s Motion for Summary Judgment, with little actual evidence. The court noted that the only evidence was the statement by the principal that “based upon her professional background and experience, she believed that Plaintiff’s tweet would cause a disruption….”  Intuition based on “professional background and experience” is not evidence of disruption.  So the school failed Part One. 

TINKER TEST: PART TWO.  The often overlooked second part of the Tinker Test allows schools to restrict or infringe on student expression if “the speech collides with the rights of other students to be secure and to be let alone.”  Notice that this test does not require a big disruption of the school day.  Moreover, it can involve a “collision” with the rights of a single student.  The plaintiff minimized the harm his tweet caused by arguing that it interfered with the rights of only one student.  To which the court responded: one is enough. Reviewing earlier cases the court cited this standard:

Whatever the outer boundary might be of Tinker’s interference inquiry, the cases establish that students have the right to be free of online posts that denigrate their race, ethnicity or physical appearance, or threaten violence. They have an equivalent right to enjoy an education in a civil, secure and safe school environment.

The court quickly disposed of Andy’s “due process” claim, noting that 1) he had plenty of notice that racial slurs were not ok, and that “walking” at graduation was a privilege that could be lost; and 2) he had his opportunity to tell his side of the story.  He did not handle that opportunity well. The principal asked him to delete the tweet to which he responded “you can’t make me delete it.  It’s my right.” 

No.  It wasn’t his right.  And so, on his graduation day, Andy learned a final lesson. There are limits to his free speech rights.  It’s Castro v. Clovis USD, decided by the federal court for the Eastern District of California on May 24, 2022. It’s cited at 604 F.Supp.3d 944. 

DAWG BONE: EDUCATION CONTINUES RIGHT UP TO GRADUATION DAY.

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

Tomorrow: Toolbox Tuesday!!

I wonder how many schools displayed the National Motto in a “conspicuous place” after the Legislature authorized this in 2021.  This year the Legislature expanded the scope of Texas Education Code 1.004 to enable teachers to display the Motto in the classroom.

The general rule about classroom displays is that they are not the teacher’s First Amendment Free Speech Zone.  It’s public school property, and as such, is subject to the control of school district rules, restrictions, and regulations.  But this new law guarantees that school administrators cannot prohibit a teacher from displaying the National Motto in the classroom.

There are still some rules, however. The Motto has to be in a poster or frame that includes a depiction of the U.S. flag “centered under the national motto.”  It also has to include the Texas flag but that does not have to be “centered under” the motto. I guess that means it could be above the motto, beside it, or off center.  Texans who cherish their sovereignty will no doubt delight in that freedom of choice.  We would never be content being consigned to a place “centered under” the motto.  Hrumph. 

The other rule is that the poster or framed copy may not “depict any words, images, or other information.”  Just the Motto, which BTW, is: IN GOD WE TRUST.

If you think that this is a non-controversial piece of legislation you are, perhaps, not aware of the history.  “In God We Trust” was not always our motto.  Congress made it the motto in 1956, which is about the same time that the words “under God” were added to the Pledge.  This was the height of the Cold War and these two moves were specifically designed to distinguish the United States from “godless Communism.”  

From the beginning there have been those who see the Motto as an effort to instill the idea that America is a Christian nation, thus marginalizing others. Sort of like consigning them to a designated place “centered under” the words of the Motto.  So don’t be surprised if this one stirs up some controversy in your community. 

DAWG BONE: IN GOD WE TRUST, WITH THE U.S. FLAG CENTERED UNDER THOSE WORDS, WHILE THE TEXAS FLAG FLIES FREE! SOVEREIGNTY!

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

In response to the pandemic the Legislature introduced the novel concept of allowing parents to require that a student repeat a grade.  The original law along those lines limited this to students in grades one to three. 

Now it’s been expanded to include grades four to eight.  The law also allows parents to require the student to retake a high school course unless the student has met all graduation requirements. All of this subject to possible disagreement and action of the school’s “retention committee.”

It’s HB 3803, which amends Texas Education Code 28.02124. 

DAWG BONE: MAYBE THIS WILL BE YOUR YEAR TO CHAIR THE RETENTION COMMITTEE!  LOOKS GOOD ON THE RESUME. 

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

Tomorrow: the National Motto comes to the classroom…

Word has it that some folks get pretty upset at high school athletic events.  Harsh words have been spoken, I hear.  There have even been reports of physical violence. So in keeping with the theme of school safety, the legislature addressed these issues by passing HB 2484, which will now be located at Texas Education Code 33.081(f-1). 

The first thing to be clear about in this new law is that it does not apply when Parent A cold cocks Parent B.  It applies if Parent A cold cocks the ref.  In the language of the statute, it applies when a “spectator engages in conduct that intentionally, knowingly, or recklessly causes bodily injury” to a referee, judge, or “other official” in retaliation for the person’s performance of their duties. 

The next thing to notice is that it applies to any “spectator” at the event. So it’s not just parents, but they are the ones who are most often among the Usual Suspects.

Third, it’s not just football, obviously.  It’s any “extracurricular athletic activity or competition.”  The zebras, the blues, the people who blow the whistles, move the chains, and throw the yellow flags are all protected by this law. But not the brave theater teacher who grades the One Act Play.   

If there is an assault resulting in bodily injury to the “referee, judge, or other official” the person who committed the offense must be barred from future attendance, not just at the school where it happened, but at “any future extracurricular athletic activity or competition sponsored by the school district or the UIL.” The prohibition must be for at least one year, and no more than five. 

The language of “intentionally, knowingly, or recklessly causes bodily injury” is lifted from the Penal Code, but this statute does not require that the “spectator” be convicted of a crime. In fact, it says that “the district may determine the facts associated with the conduct.”  So some process needs to be set up to do that, but a district determination is sufficient. You don’t have to wait on the criminal process. 

The time-honored tradition of calling for the untimely demise of the umpire appears to be protected.  Sigh of relief.  Blue makes a lot of bad calls.

DAWG BONE: YOU CAN YELL “KILL THE UMPIRE.”  JUST DON’T DO IT.

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

Tomorrow: “I want my child to repeat 6^th grade….”

This week at the Daily Dawg we are looking at new legislation.  This being Toolbox Tuesday, we bring to your attention SB 473 and its implications for students with disabilities. 

SB 473 is a short one:

Before a team may conduct a threat assessment of a student, the team must notify the parent of or person standing in parental relation to the student regarding the assessment. In conducting the assessment, the team shall provide an opportunity for the parent or person to:

(1) Participate in the assessment, either in person or remotely; and

(2) Submit to the team information regarding the student.

After completing a threat assessment of a student, the team shall provide to the parent of or person standing in parental relation to the student the team’s findings and conclusions regarding the student.

You will find this new law at Texas Education Code 37.115(f-1) and (f-2).  It goes into effect with the start of the school year.  For today, I want to point out three things. 

First, the law seems designed to provide transparency for parents and to protect their rights.  However, it does not go as far in that direction as some may have wanted.  It’s significant that the statute requires NOTICE to the parent, but not CONSENT.   Section 37.115(f) continues to say that the threat assessment team “SHALL” conduct a threat assessment. 

Second, even though consent is not required by law, it is difficult for districts to conduct a thorough threat assessment without parental involvement and cooperation.  If a parent is effectively impeding the process, the district needs to document its efforts and proceed as well as it can.

Third, if the student has a disability it’s important for the student’s ARD Committee to be included in the process of gathering information. In effect, that automatically brings the parents into the process, since they are members of the ARDC.  In that sense, the new requirement of “notice” to the parent that the district intends to conduct a threat assessment may have minimal impact on parents of kids with IEPs.  They were probably already in the loop. 

By the way, some of you Daily Dawg newbies may not know what “Toolbox Tuesday” is about.  The Toolbox is our firm’s all day training about maintaining safety while simultaneously effectively serving students who present challenging behaviors. Interested?  Let me hear from you.

DAWG BONE: NOTICE TO PARENTS REQUIRED PRIOR TO A THREAT ASSESSMENT, BUT NOT CONSENT.

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

Tomorrow: is it safe to yell “Kill the Umpire!”