A student with an intellectual disability in the Houston ISD alleges that he was sexually assaulted by another student three times, that he told his teacher about it each time, and that she did nothing about it.  Assuming that all of that is true, is it enough to make the HISD liable for what happened to the student?

No.  The federal court in Houston dismissed the case, noting that “What happened to [this student] is horrific. But Title IX precedent creates a ‘high bar’ to hold school districts liable for the unlawful acts of school employees.”

To clear that “high bar” the student must prove that someone who has the “authority to address the alleged discrimination and to institute corrective measures on the [school district’s] behalf has actual knowledge of discrimination….and fails to adequately respond.”  The narrow issue presented by this case was whether a teacher has that authority.  The student alleged that the teacher knew of the three assaults, and failed to do anything about it.  The court was ruling on a Motion for Summary Judgment, which meant that the court had to assume that those allegations were true. So it came down to this: is a classroom teacher, one who is also the case manager for the student, a person who can “institute corrective measures” to address the situation?

The court said no, and its analysis may surprise a lot of educators. The court noted that there were many things that the teacher could or even must do in a situation like this:

…the record evidence shows that [the teacher] had a duty to report incidents of sexual assault that she learned of, had the authority to send a special education student like [the plaintiff] or [the student who allegedly assaulted him] to [the assistant principal] in the case of a rule infraction, and could recommend changes to [the student’s] IEP.  This is not enough to support a finding that [the teacher] was assigned the authority to rectify the harassment [the student] allegedly reported to her.  (Emphasis added).

What would have been sufficient evidence?

[The teacher] could not make the decision to initiate an investigation, impose increased supervision of [either of the students] during restroom breaks under their Plans, require that they use different restrooms, remove one of them from the school, rearrange their schedules to ensure they remained separated throughout the day, or mandate that either or both attend counseling.

Ask yourself: who does have the authority to do those things?  Assistant principals and principals do.  So if there had been evidence that an A.P. or a principal had been informed of the three sexual assaults, the student would have had a stronger case. 

One more thing is worth mentioning.  As Loyal Daily Dawg Readers know, the Title IX regulations were amended in 2020 to say that a school district is responsible for addressing sexual harassment of a student when any district employee knows about it.  ANY district employee.  So why did that not come up in the court’s analysis?  It did. And the court simply noted that the amended regulation became effective on August 14, 2020. This case involved things that happened well before that, so the amended regulation was not yet in effect.

It’s I.M. v. Houston ISD, decided by the federal court for the Southern District of Texas on November 19, 2021.  It can be found at 2021 WL 5416715. 

DAWG BONE: A DUTY TO “DO SOMETHING ABOUT IT” IS NOT THE SAME AS THE AUTHORITY TO “INSTITUTE CORRECTIVE MEASURES.”

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

Tomorrow: the Commissioner’s shrinking jurisdiction….

Word on the street is that school districts are struggling to have enough staff on hand to keep going.  We are short on teachers, aides, and bus drivers.  This is going to present some legal problems.  Consider the possibility that a brand new substitute teacher deals with a student in a way that is in conflict with the student’s BIP. 

It’s important that substitute teachers have a basic understanding of who they are serving in the classroom.  When the sub reports that “I didn’t know that the student had an IEP” this reflects poorly on the district.  It’s the district responsibility to make sure that classroom teachers—all of them—know what responsibilities they have as set out in a student’s IEP or BIP. 

There is no legal barrier to informing subs of who has an IEP and what it requires.  Take a look at your school’s Policy FL (Local).  There you will probably find a statement like this:

A school official shall be allowed access to student records if he or she has a legitimate educational interest in the records. 

That language comes directly from FERPA, the federal law regarding student records.  And look for the policy’s definition of a “school official.” It likely includes all employees.  Does a sub have a “legitimate educational interest” in knowing which students have an IEP, and what that IEP requires of them?  Of course. This does not mean that subs should have access to all of the information in a student’s special education file. It’s unlikely that a substitute teacher would need to have detailed information from the student’s evaluation, or to review minutes of ARD meetings.  But the basics—what does the IEP require of me? That’s what should be provided.

As we enter what is sure to be a challenging spring semester, keep these things in mind and be sure to provide some basic FERPA training to your substitute teachers. 

DAWG BONE: FERPA: FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT.  ALSO THE NAME OF SOME LITTLE GIRL IN EAST TEXAS.  PROBABLY “FERPA MAE.”

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

Tomorrow: is the district liable for what the teacher failed to do?

We’re Zooming with the Dawg this Friday!! I hope you will join me, along with special guest Haley Turner. Among other things, we will talk about the firm’s upcoming HR Symposium. 

Today we honor Dr. King.  That means it’s a good day to re-read some of the reverend’s inspired writings.  The “I Have a Dream” speech gets the most attention, but I encourage you to also read Letter from a Birmingham Jail.  The Dream speech is inspiring with its aspirational vision of the future that Dr. King hoped for.  The Letter from the Birmingham Jail is more thought provoking, more challenging.  It’s unsettling in its blunt criticism of those who counsel endless patience with an unjust system. 

But I have one more recommendation for you.  Last year a Texas native published a book containing a series of short essays about her experiences growing up in East Texas, and specifically about being the first African-American student in the Conroe ISD.  This would be an excellent book study for a school faculty group, or as an assignment to students. The book, On Juneteenth, is a series of short essays by Dr. Annette Gordon-Reed who is now a professor at Harvard.  I hope you’ll take a look at it.

DAWG BONE: “ON JUNETEENTH”: WORTH YOUR ATTENTION.

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

Tomorrow: Toolbox Tuesday!!

Middle school teachers will find this one interesting, particularly math teachers. The student had a hard time with math in 7^th grade, and even harder in 8^th. The school responded with one-on-one assistance from the teacher, and additional help from the school’s “problem solving team.”  The court also quoted the principal as saying that “the academic struggles of 7^th graders in math are a ‘nationwide conundrum.’” 

The mother convinced the district court that the school should have referred her daughter for a special education evaluation sooner than it did. But the court also held that this was only a procedural error and it did not cause any substantive harm.  Thus the mother was not entitled to compensatory services or recovery of attorneys’ fees.  Why was there no substantive harm?   Because of the efforts of those general education teachers to help a student who was struggling with math. 

Math is difficult.  Not every kid who struggles with quadratic equations is showing signs of a disability.  Some are demonstrating natural resistance in the face of a difficult task. Some are showing signs of poor math instruction in earlier years. Math is progressive, so if you don’t get what they teach in 4^th grade, 5^th is going to be a real problem, and 7^th grade math will be impossible.  So teachers should use their experience and good common sense to sort out the nature of the problem. If there is reason to suspect that a disability might be contributing to the problems, then it’s time to make a referral. 

This is a case where good common sense and helpful intervention by general education teachers proved decisive in subsequent litigation.  It’s J.N. v. Jefferson County BOE, decided by the 11^th Circuit on September 10, 2021. It’s reported at 12 F.4^th 1355, (11^th Cir. 2021).

DAWG BONE:  GOOD ON THOSE GENERAL ED MATH TEACHERS!

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

Texas is not the only state with a Paradise School District.  There is one in California also, and it’s the defendant in a case recently decided by the 9^th Circuit.  There was indeed “trouble in paradise.” As is often the case the trouble involved two boys and a girl.  It seems that when Justin observed Cyrus talking with Faith at the football game he overreacted, “punching [Cyrus] several times in the face.  [Cyrus] was seriously injured by the assault.”

In the subsequent lawsuit—against the school, not Justin--Cyrus alleged that this assault occurred because he was a student with a disability, and the school should have protected him better.  The school should have prevented this kind of disability based harassment. 

Cyrus did not have much evidence to support that theory.  Cyrus had never reported any kind of bullying, nor had he or his parents requested assistance in dealing with the complex social relationships of high school. School officials were unaware of any signs of danger.   Due to his ADHD Cyrus had a plain vanilla 504 plan that called for extra time to complete assignments and help in staying organized. It’s unlikely that Justin knew anything about Cyrus’s 504 status, and he freely admitted after the incident that “the attack was motivated by jealousy.”  Cyrus was talking to Faith. Faith was talking with Cyrus.  Justin was not OK with that. It may be Paradise, but it was still high school.

So how does something like that end up with claims of disability discrimination and a failure to prevent harassment?  The sole basis for Cyrus’s case was a series of “Dear Colleague Letters” issued by the Department of Education during the Obama Administration.  But the 9^th Circuit  held that the DCLs did not create binding law, and did not say what Cyrus alleged that they said. The DCLs did not alter the legal precedents that require proof of intentional discrimination or deliberate indifference in order to recover damages. There was no evidence of that here.

It’s Csutoras v. Paradise High School, decided by the 9^th Circuit on September 7, 2021. The case is cited at 12 F.4^th 960 (9^th Cir. 2021).

DAWG BONE: IT MAY BE PARADISE, BUT IT WAS STILL HIGH SCHOOL.

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

Tomorrow: huzzah for math teachers.

Cases go on the Dawg’s Sheesh-O-Meter when I utter an auditory “What??” upon reading the court’s decision.  So here is the first entry of the new year.   A 20-year old plaintiff was the prevailing party in his suit against the state Department of Corrections for its failure to provide FAPE while he was incarcerated.  He incurred over $72,000 in attorneys’ fees. He will not recover them even though he was the prevailing party.  The court denied the claim for attorneys’ fees because the statute speaks of “a prevailing party who is the parent of a child with a disability.”  He’s not the parent, and so he’s out of luck.

Sheesh.  The kid is a hero. He took on a state agency with a righteous cause and he won.  He won because the DOC failed to live up to its legal responsibilities.  I have a suspicion that New York is not the only state where the DOC fails to provide appropriate services to those inmates who need special education.   Prevailing parties are allowed to recover attorneys’ fees because they should not have had to employ an attorney in the first place. If the state had done what it was supposed to do, the plaintiff in this case would not have incurred a big legal bill.  So he should get reimbursed.  Instead, the court issues a pinheaded decision that ignores the other part of IDEA that says that the rights of the parents transfer to the adult student.  I say it again: Sheesh!

It’s J.S. v. New York State Department of Corrections and Community Supervision, decided by the federal court for the Western District of New York.  It’s published in Special Ed Connection at 79 IDELR 165.  (W.D.N.Y. 2021).

DAWG BONE:  IF IT GOES UP ON APPEAL THAT ATTORNEYS’ FEE BILL WILL GO UP AS WELL. 

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

Tomorrow: two boys and a girl at a football game.  Uh Oh. 

“Qualified immunity” has been in the news of late.  There was an editorial in the local newspaper a few weeks ago encouraging Congress to do away with it altogether. This obscure legal doctrine protects governmental officials from personal liability for injuries they cause as long as they did not violate legal standards that are “clearly established.”  The move to abolish qualified immunity picked up momentum after George Floyd’s death while in police custody, and most of the news stories about qualified immunity are about law enforcement officials using physical force.  Many police officers have avoided personal liability in court cases by establishing that what they did was not obviously and clearly a violation of settled standards. 

Qualified immunity does not just protect police officers. It also protects school administrators who make judgment calls that might later be second guessed by a judge. For example, the Supreme Court ruled that an assistant principal in Arizona went too far when he ordered the strip search of a 13-year old girl in pursuit of a prescription pill. But the Court also held that the A.P. could not be held personally liable for this unconstitutional search because the law about strip searches was not “clearly established.”  Safford USD #1 v. Redding (2009). 

Principals would be wise to occasionally remind staff members that they do face personal liability if they violate legal standards that are clearly established.  This reminder should be particularly emphasized with campus police officers or SROs who sometimes use physical force with students.  We have a good example in a recent decision from a federal court in Ohio.  The court denied qualified immunity to an SRO who marched an 11-year old to the office in handcuffs, which remained on the boy for 15 to 20 minutes.  The SRO faces potential liability for unconstitutional seizure and disability discrimination. 

I have to think that it didn’t help the SRO’s cause that his explanation of the incident to the mother was contradicted by school surveillance video. 

In our firm’s Toolbox Training we talk quite a bit about physical restraint, when it should be used, and how it should be documented.  If you are interested in this one-day training program focusing on appropriate discipline of students with disabilities, let me hear from you. Today’s case is M.P. v. Monroe Local Schools, decided by the federal court for the Southern District of Ohio on September 30, 2021. It’s reported in Special Ed Connection at 79 IDELR 219. 

DAWG BONE: QUALIFIED IMMUNITY APPLIES TO BAD JUDGMENT CALLS, AS WELL AS CASES INVOLVING PHYSICAL FORCE.

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

Tomorrow: our first Sheesh-O-Meter case of 2022!

Sometime this month President Biden will deliver his State of the Union address.  I’ve noticed that many school districts have borrowed the concept of the “State of the Union” address.  Some superintendents now deliver an annual State of the District speech.   I expect that most of these school district events are similar to what we hear from the President each year. It doesn’t matter whether the President is a Democrat or a Republican, you can count on four messages in the SOTU address: 

1. Things are good.
2. Things can be better.
3. I know what we need to do.
4. Follow my lead.

Mrs. Dawg and I borrowed the “State of the Union” concept a long time ago.  We established a tradition of each writing a “State of the Union” letter around the first of the year.  In that letter, we write honestly about the state of our little two-person union. What is working? What is not? What can we do better?  What are our hopes for the upcoming year?  We go to a nice restaurant. Being in a public place usually ensures that there will be no major blow up.  Usually.  After ordering, we open our letters and read them. Then we talk.  I’m happy to report that we already had our State of the Union date for this year.  I got my contract renewed. 

It’s a healthy tradition. As with most (all?) of the tools that have kept us happily together for 48 years, she gets the credit for this. But I was the one who dubbed it “the State of the Union.” 

You might want to try this.  And if you find the concept useful, you might want to expand it beyond your family to your co-workers. After all, you spend a lot of time with the people you work with, and they become, in many ways, another family.   You and the people you work with are a “union”—dedicated to serving the kids and the families in your school district. 

So the Dawg’s gentle suggestion is to give this a try.  Get with some of the key people you work with and write up a “State of the Workplace Union.”   What is working? What is not?  What can you do better? 

The start of a new year is a great time to have a good talk about such things. 

DAWG BONE:  THE ANNUAL “STATE OF THE UNION”—BORROW THE CONCEPT!

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

Tomorrow: Toolbox Tuesday!!

Ms. Lyons is the mother of four in the Carmel USD in California. She has sued the district alleging that the district subtly and sometimes not so subtly favors Christianity over other religions, leading children of other faiths to feel excluded, “less than.”  The opening salvo in her suit was an effort to force the district to allow her to display a six-foot inflatable menorah next to the Christmas tree at the tree lighting ceremony that was sponsored by the PTA.  The court did not issue the TRO (Temporary Restraining Order) that she sought.  That is by no means the end of the litigation. 

To get the TRO Ms. Lyons faced a steep burden of proof and the court held that she simply didn’t get there.  In a short opinion, the court held that the tree lighting ceremony did not amount to a government endorsement of a particular religion, and there was nothing about it that infringed on anyone’s freedom of religion.  The court noted a Supreme Court pronouncement from 1989:

The Christmas tree, unlike the menorah, is not itself a religious symbol…..Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas. 

Reading this case (Lyons v. Carmel USD, 2021 WL 586554) made me think about the middle school choir concert I attended last month.  For the second half of the program the kids were wearing symbols of the season—snowflakes, reindeer antlers, and a lot of Santa hats.  After about 50 Santa hats walked onto the stage, out came a tall, good looking boy wearing a very large menorah hat.  As he was the next soloist, he took his place in the front of the stage, calling more attention to himself and his silly hat.  While the hat was ridiculous, the kid wore it with panache. The audience erupted in laughter and applause. 

What would have happened if the choir director had told this student that he could not wear this hat?  I’m quite sure that the student would have a legitimate free speech claim.  It was clear that the choir director had allowed students to choose their own seasonal symbols. Predictably, most of them honored Christmas, but it was a student choice, and thus the one student who chose to honor Hannukah had a right to do so.

DAWG BONE: CONTEXT MATTERS.

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

Consider this sequence of events:

April 13, 2021: the board votes to give Mr. Marshall notice of proposed nonrenewal of his teaching contract.

April 14, 2021: the district delivers the notice to Mr. Marshall. Teachers have 15 days in which to request a hearing to challenge the proposed nonrenewal.

April 18, 2021: Mr. Marshall requests a hearing.  The law requires that this hearing be held within fifteen days of the request, which would be May 3rd.  The district wants to extend the deadline, which can happen when the parties agree to it. But Mr. Marshall does not agree. 

May 3, 2021: the deadline for the hearing comes and goes, with no hearing.

May 11, 2021: the board votes to rescind its April 13^th action, but at the same meeting, again votes to give Mr. Marshall notice of proposed nonrenewal. 

May 18, 2021: The district delivers the second notice to Mr. Marshall.  Mr. Marshall does not request a hearing, thinking he doesn’t need to.

June 8, 2021: the board votes to nonrenew Mr. Marshall’s contract.   There was no hearing because Mr. Marshall did not request a hearing within 15 days of the second notice. 

Waddyathink, Loyal Daily Dawg Readers?  Is that kosher?  According to Commissioner Morath, it is.  The Commish held that there was nothing wrong with how the district handled this situation. Mr. Marshall goofed by not making a timely request for a hearing after the second notice arrived. Key Quotes:

[Mr. Marshall] cites no school law that prohibits [the district] from rescinding a nonrenewal notice and issuing a second notice, even one that contains the same nonrenewal bases. 

While atypical, a school board might rescind and reissue a notice of proposed nonrenewal to, inter alia, cure a procedural defect or to provide additional time for a nonrenewal hearing.  Although [Mr. Marshall] claims his request for a nonrenewal hearing should have carried over from the initial, rescinded notice to the second notice, he cites no school law that so provides.

This clever move by the school district would only work if the relevant notice to the teacher can still be provided by the 10^th day prior to the last day of instruction.  Fortunately for the district, they began the nonrenewal process in April and were still able to get a second notice to the teacher in time to meet that deadline.

It’s Marshall v. Spring ISD, decided by the Commissioner on October 14, 2021.  It’s Docket No. 044-R10-06-2021.

DAWG BONE: NOT READY TO HOLD THE HEARING?  CONSIDER THIS MOVE.

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

Tomorrow: Christmas trees and menorahs….