Today I will be at the Kalahari Resort (which seems to be the go-to place for educational conferences these days) at the annual ED311/TASPA Conference on personnel issues. My topic is about terminations and nonrenewals. One of the cases I will be talking about is Monte Alto ISD v. Orozco.  The decision is….let’s just say “surprising.” 

I say that because it departs from the conventional wisdom.  Ever since the legislature created a set of laws pertaining to the nonrenewal of a term contract there has been a big distinction between the PROPOSAL to nonrenew the contract and the actual DECISION to do so.  Districts that gave the employee a notice of nonrenewal that omitted the word “proposed” have found themselves in trouble.  The sequence of events for the proper nonrenewal of a term contract flows like this:

Step One: board votes to give the employee notice of proposed nonrenewal, usually based on the superintendent’s recommendation.

Step Two: the employee is given written notice of this proposed action. 

Step Three: the employee requests a hearing; or fails to do so within the timeline.

Step Four: if the employee requested a hearing, the board conducts the hearing and then decides about the nonrenewal. If the employee did not request a hearing, the board takes formal action to nonrenew the contract. 

Ask any experienced school lawyer when the employee’s contract is nonrenewed and they will tell you that this happens at Step Four.  Everything prior to Step Four is preliminary.  But that’s not how the Court of Appeals in Corpus Christi-Edinburg sees it.

The Monte Alto ISD board voted to propose the nonrenewal of Ms. Orozco’s contract on April 24, 2018 (Step One).  Written notice of this decision was given to Ms. Orozco on May 1, 2018 (Step Two).  She requested a hearing in timely fashion (Step Three). The hearing was conducted almost four months later on August 29, 2018, after which the board voted to nonrenew the contract (Step Four).  Rather than appealing this decision to TEA, Ms. Orozco filed a claim of discrimination with the Texas Workforce Commission on February 25, 2019, which was just short of 180 days later.  The timing was important.  Crucial.  Jurisdictional.   

You have to file a claim with TWC within 180 days after the act of discrimination allegedly occurred. The district argued that Ms. Orozco filed too late, and thus the court did not have jurisdiction to consider her case. The court pinpointed the issue:

Thus, as the parties correctly discern, the key inquiry in this case is whether the 180-day countdown for purposes of filing a claim with TWC began on May 1, 2018, when Orozco was notified of her proposed nonrenewal, or August 29, 2019, when the Board voted to finalize its nonrenewal decision.

Ignoring decades of decisions from TEA about how term contract nonrenewal works, the court held that the decision to “propose” nonrenewal was actually a decision to nonrenew, subject only to reconsideration upon request.  Here’s the Key Quote:

In other words, per the education code a “proposed nonrenewal” acts as a notification of the Board’s decision of nonrenewal, which may or may not be reconsidered through the relevant hearings or administrative review process if the educator seeks such a review.

This isn’t the first court to go down this road.  An earlier case applied the same logic in a case involving contract termination, Reyes v. San Felipe Del Rio CISD, 2018 WL 1176487 (Tex. App.—San Antonio, 2018).

I’m not saying the court got it wrong.  I’m just surprised, like a batter who gets a curveball when he expects a fastball. It’s Monte Alto ISD v. Orozco, decided by the Court of Appeals for Corpus Christi-Edinburg on November 4, 2021.  It’s cited at 2021 WL 5114040.

DAWG BONE: CURVE BALLS HAPPEN.

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

Tomorrow: interesting application of qualified immunity.

The 5^th Circuit has issued a published opinion in favor of Riesel ISD that touches on a number of common special education issues.  These include Child Find, what an IEP ought to look like, and student discipline. Since today is Toolbox Tuesday, we’ll tell you about the discipline issue. 

The school proposed placing the high school student in DAEP for 40 days due to an alleged assault.   The district held an ARDC meeting to conduct a manifestation determination in August, 2017.  At the time the ARDC meeting was held, the student was banned from school grounds, so he did not attend. This was particularly unfortunate because he had just turned 18. That meant that the rights of the parent under IDEA had transferred to him. He should have been at the meeting.  However, the district quickly corrected this error by holding a second meeting about a week later. With the student in attendance, the ARDC decided that his behavior was not a manifestation of disability. The student disagreed, and this became one of the issues in the subsequent due process hearing

The school district prevailed on all levels in this case—with the hearing officer, the federal district court, and now the 5^th Circuit.  At the Circuit Court level the argument over the manifestation determination was strictly about procedure, rather than the facts.  The student argued that his exclusion from the ARDC meeting was a fatal error, a denial of his opportunity to participate in the process in a meaningful way. 

Nope. The court did not see it that way. The student was present at the second meeting and had his opportunity to participate.  Therefore this falls squarely in the “no harm, no foul” category.

We’ll have more to say about this case, but that’s it for today.  Except to add that the case of Leigh Ann H. v. Riesel ISD was decided by the 5^th Circuit on November 22, 2021, and will be published in the Federal Reporter, meaning that it can be cited as a binding precedent in future cases.  Hats off to the district staff, and the team effort at Walsh Gallegos led by Gigi Driscoll, Jennifer Carroll, Craig Wood, Nona Matthews and Meredith Walker.  Until it’s published in the Federal Reporter, the opinion can be found at 2021 WL 5444726. 

DAWG BONE: REMEMBER TO INCLUDE THE 18-YEAR OLD STUDENT IN THE ARD MEETING.

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

Tomorrow: a curveball from the court.

We start this week with a report on the Pledge of Allegiance case from Klein ISD.   The Daily Dawg has reported about this case numerous times going back to 2018.  A student claimed that she was being forced to recite the Pledge, and hassled when she refused to do so.  Texas law allows students to refrain from reciting the Pledge if they have written permission from a parent. 

The case started out with numerous named defendants, but all except one were dismissed from the case early on. The one who remained was the teacher who assigned all of the students in his class to write the words of the Pledge.  The student (plaintiff) refused to carry out the assignment.

So consider: if a teacher assigns the students to write out, by hand, the words to the Pledge, is that teacher forcing the student to recite the Pledge?  The 5^th Circuit said “no.” The opinion is very short and omits all of the interesting background which you can get from earlier Daily Dawg posts (May 29 and 30, 2018; August 29 and 30, 2018; and May 27, 2020).  Here is the critical ruling:

Despite [the student’s] belief otherwise, a reasonable jury could not return a verdict in her favor. Even if her mother complied with the parental opt-out provision, the record demonstrates that none of the Defendants ever compelled [the student] to recite the pledge.

Thus it ends not with a bang, but a whimper.

Nevertheless, educators should remember that the right of students to refuse to recite the Pledge is solidly established in the law.  It goes back to a 1943 Supreme Court decision.  Let’s remember to respect those students who choose to exercise this right.  Failure to do so violates a constitutional right that is “clearly established,” meaning that personal liability in a civil suit is a distinct possibility.

It’s Oliver v. Champion, decided by the 5^th Circuit on October 26, 2021 in an unpublished opinion. 

DAWG BONE:  STUDENTS CAN OPT OUT WITH PARENT PERMISSION.  BOTH PLEDGES.

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

Tomorrow: Toolbox Tuesday!!

Reading the case of Maxwell v. Mesquite ISD we never do learn exactly what Mr. Maxwell posted on social media. And that’s one of the main reasons his First Amendment case fell flat.  The district terminated Mr. Maxwell’s employment as an instructional aide after he posted things on social media that the district deemed to be racist and inappropriate. Relying on its policy regarding use of social media, district administrators terminated the at-will employee. 

School employees have First Amendment protection when they speak out as citizens on matters of public concern.  They should suffer no retaliation as a result of exercising those constitutional rights. That’s what Mr. Maxwell said he was doing, and he acknowledged that his posts “dealt with race.” 

Social media posts addressing racial issues certainly could be constitutionally protected, but a lot depends on exactly what is said.   Mr. Maxwell’s lawyers did not introduce the social media posts into the record. So the court was left with what it characterized as conclusions rather than facts.

Compare:  “My social media posts addressed racial issues and were matters of public concern.”

With this: “Here’s what I put on social media:  …….

The first is a conclusion. The second is a statement of fact.  To sustain his suit, Mr. Maxwell had to allege facts that showed that he was speaking on matters of public concern.  Since that didn’t happen, the court dismissed the case.

It was decided by the federal court for the Northern District of Texas on September 19, 2021. We found it at 2021 WL 4260756.

DAWG BONE:  WHETHER THE EMPLOYEE WAS SPEAKING ON “MATTERS OF PUBLIC CONCERN” IS ALWAYS A FACTUAL ISSUE THAT WILL DEPEND ON THE SPECIFICS.

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

A federal court in Texas has declared two sections of the Texas Election Code unconstitutional.  Both sections address “electioneering” during a voting period. Citing a 2018 SCOTUS decision, (Minnesota Voters Alliance v. Mansky) the court held that the Election Code’s prohibition of any “political” signs or apparel was “unmoored from any objective, workable standard that an election judge could use to reasonably apply the statute.” 

The case arose when the wife of a firefighter in Houston was told to turn her t-shirt inside out before voting. The bright yellow t-shirt supported Houston firefighters and had been widely displayed for months as the firefighters sought a referendum to amend the City Charter to require compensation for firefighters equal to the compensation for the police.  The woman complied with the election judge’s order, and after a short delay, was allowed to vote. But she then sued, claiming that the Election Code provisions addressing this issue were unconstitutional.

She lost on one issue and won on the other.  The court held that the election judge had the discretion to order her to turn the t-shirt inside out. That’s because TEC 61.110 bars people from displaying signs that relate to “a candidate, measure, or political party appearing on the ballot.”  (Emphasis added).  In this case the ballot included Proposition B—the one that would raise the pay of the firefighters. Her t-shirt clearly supported the firefighters, and, presumably, Proposition B. The court held that this section of the Code was constitutional and the election judge’s application of it was reasonable.

However, the other provisions in the Election Code prohibit any “political” signs during the entire early voting period, whether such signs address an issue on the ballot or not:

Unlike section 61.010, these provisions are not limited to candidates, measures, or political parties appearing on the ballot.  Moreover, sections 61.003(b)(2), and 85.036(f)(2) provide that electioneering includes political signs and literature, which suggests that these statutes allow election judges to ban voters from wearing ‘political’ apparel.  This is problematic.

Election officials will need to study this case carefully and adjust the training of election officials accordingly. It’s Ostrewich v. Hudspeth, decided by the federal court for the Southern District of Texas on September 30, 2021.  The judge’s decision is very short, simply approving and adopting the recommendation of the magistrate. The magistrate’s more thorough decision was issued on September 14, 2021 and can be found at 2021 WL 4170135.

DAWG BONE: WE MIGHT SEE MORE T-SHIRTS DURING OUR NEXT ELECTION.

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

Tomorrow: was it free speech?

Students with disabilities do not lose their right to a Free Appropriate Public Education (FAPE) when they are detained by law enforcement. In fact, if the students are going to be detained for any significant length of time, the law enforcement officer responsible for the facility has duties under IDEA.  So if you have a facility in your district, you might want to have a conversation with whoever is in charge. Tell them about T.H. v. DeKalb County School District. 

That case is a class action seeking relief for students who have been detained in the county. The court held that the sheriff is responsible for Child Find with regard to detained students and had failed to provide a practical method for identifying students who needed special education services.  The court noted that the sheriff controlled access to the students and had blocked the school district from the students. This is an IDEA violation:

Because the Sheriff is solely responsible for managing DCSD’s access to students, any IDEA violation resulting from DCSD’s lack of access renders both DCSD and the Sheriff liable.

Evidence showed that even when access was provided, it did not call for full implementation of the IEP.  One plaintiff had an IEP that called for 360 minutes of instruction per week, but the jail only permitted 180 minutes.  The court found this to be a material failure to implement the IEP.

While the court held that the plaintiffs had established a violation of IDEA, their claims based on ADA/504 were denied.  The court held that actions taken by the sheriff in response to staff shortages and the pandemic were not “deliberately indifferent” to students with disabilities.

If you are having trouble accessing students with IEPs who are being detained, do not just shrug your shoulders and blame it on the sheriff.  Reach out.  Emphasize the importance of serving these students, and the consequences of not doing so.  Document your efforts.

This one was decided by the Northern District of Georgia and can be found on Special Ed Connection at 79 IDELR 196.

DAWG BONE:  THE RIGHT TO FAPE CONTINUES WHEN BEHIND BARS.

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

Tomorrow: the firefighter’s wife wins one, loses one.

Texas requires schools to give parents notice of an ARD meeting five school days prior to the meeting. That sounds simple.  Just count to five.  But you can stub your toe on this requirement if you don’t count the days the way TEA says you should count the days.  Consider this one:

The school delivered notice of the ARD meeting to the parent on Friday, August 20, 2021.  What is the earliest date the ARD can be held?  If you said one week later, Friday, August 27^th, you are wrong, according to TEA. In a ruling in a complaint investigation the Agency stated that you don’t count “the day of the event that triggers the [five-day] period.”  In this case, the “event that triggers” the period was the notice of ARD.  The day that was delivered to the parent was August 20^th. 

YOU DON’T COUNT THAT DAY!  Instead, the first day you count is the next school day, which in this case was Monday, August 23^rd.  That means that the fifth day is Friday, August 27^th.  The ARD cannot be held until all five days have elapsed. So the soonest you can have this ARD is Monday, August 30^th.  

Let’s look at the calendar today. Supposed you give notice of ARD today—November 30^th.  Remember, you don’t count that day.  You start counting to five tomorrow. So your count is:

Day One: December 1.

Day Two: December 2.

Day Three: December 3—a Friday.

Day Four: December 6.

Day Five: December 7.

You can’t hold your ARD until December 8^th.

DAWG BONE: NITPICKY, BUT IMPORTANT.

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

Tomorrow: got any kids in jail?

Welcome back, Loyal Daily Dawg Readers!  I hope your break was restful and enjoyable, empowering you to handle the three-week sprint to the next holiday. 

We’ll open this week with a review of a case from Katy ISD that addresses what rules coaches and sponsors can impose on students who participate in extracurricular activities.   Background: last summer the SCOTUS held that the F-bombs dropped by Brandi Levy on her Snapchat account amounted to free speech, protected by the First Amendment.   Therefore, the Court reasoned, it was improper for the school to suspend her from JV cheerleading.  Mahanoy Area School District v. B.L. (2021).

That left a lot of coaches and sponsors nervous about what rules they could impose.  We’ve always thought that schools could hold athletes, cheerleaders, and others who volunteer for extracurriculars to a higher standard. Is that still true?  SCOTUS left it pretty vague. 

Exactly what happened at the Whataburger after the football game in October, 2019 is in dispute, and I’m not going to try to sort it out here.  What mattered, once it ended up in court, was that the school concluded that the team captain and starting quarterback had posted an inappropriate video on social media, taunting a student on the other team.  That was the basis for disciplinary action.  The captain/QB sued. Among other issues, the student (now the plaintiff) alleged that he was disciplined based on language in the Athletic Code of Conduct that was too vague. 

The court listed three examples of language from the Code that the plaintiff claimed were vague to the point of being unconstitutional:

*Athletes should “display/model behaviors associated with positive leaders both in the school and in the community.”

 *Athletes should “exhibit good citizenship at all times.”

*Athletes should “conduct themselves as gentlemen and ladies at all times, demonstrating respect for their administrators, teachers, and fellow students.”

Here is the legal definition of “unconstitutionally vague:” 

A law is unconstitutionally vague if it (1) fails to provide those targeted by the statute a reasonable opportunity to know what conduct is prohibited, or (2) is so indefinite that it allows arbitrary and discriminatory enforcement.” 

So wadddyathink, Loyal Readers?  Applying that definition, is Katy’s Athletic Code too vague? 

It turns out there is no wrong answer to that question. The court did not answer it, so you don’t have to guess at it either. Instead, the court ruled that vagueness did not matter:

Most importantly here, a void for vagueness challenge is ultimately a due process claim.  To state a void-for-vagueness claim, a plaintiff must allege that he was deprived of a property or liberty right.

The student in Katy (the plaintiff) was not deprived of a property or liberty right.  He was suspended from the football team for two games and stripped of his status as captain.  It’s well established in the law that neither of those disciplinary measures deprive a student of property or liberty. 

This won’t be the last challenge along these lines, so it is a good idea to review your rules for the students who participate in extracurricular activities.  Pay particular attention to any rule that might be used to discipline a student for expressive activities. That’s where the legal challenges will arise.  This one is McClelland v. Katy ISD, decided by the federal court for the Southern District of Texas on November 1, 2021.   It’s cited at 2021 WL 5055053.

DAWG BONE: REVIEW THAT ATHLETIC CODE!  THINK LIKE A LAWYER AS YOU DO!!

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

Tomorrow: Toolbox Tuesday!!

WE’RE ZOOMING WITH THE DAWG AT 10:00 THIS MORNING!! JOIN ME AND SANDI TARSKI.  AND BRING YOUR LIST OF “GRATITUDES” AS WE HEAD INTO THIS SEASON OF GIVING THANKS.

You Loyal Daily Dawg Readers are right near the top of my list of Gratitudes. Thanks for subscribing, for reading, and for participating in the monthly Zoom calls.  I look forward to seeing you today at 10. 

Next week we take off.  That’s because most of you do that, so why should I send you work-related content?  Take it easy for a week.  Binge on turkey and pie and football games.  Try not to argue with family members no matter how wrong they are politically. 

We’ll be sending out the Daily Dawg again on Monday, November 29^th. 

DAWG BONE: PECAN OR PUMPKIN?  LET’S TAKE A POLL.

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

In the process of upholding the decision of the ALJ (Administrative Law Judge) in favor of the school district, the court noted the basis for the ALJ’s conclusion that testimony from school officials was more credible than the testimony from the parent’s experts. The court noted that both sides presented good witnesses:

Each side presented well qualified witnesses who contemporaneously assessed the child’s educational, behavioral, and psychological needs.

So why were the school’s witnesses more credible? For the usual reasons…

….the Parent’s child psychologist, Dr. Rao had never observed R.S. in school; had only interviewed R.S. in her office; and never even read R.S.’s IEPs.  Likewise, the ALJ found that the Parent’s education expert, Mounce, based her opinions on her limited interaction with R.S…..In contrast, the ALJ underscored that MCPS witnesses more reliably grounded their opinions in formal assessments, records review, and personal observations.

It's R.S. v. Smith, decided by the federal court for the state of Maryland on August 17, 2021.  It’s published in The Special Educator at 79 IDELR 135.

DAWG BONE: THIS IS WHY MILD CROSS-EXAMINATION SKILLS ARE IMPORTANT.

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

Tomorrow:  Gobble Gobble Gobble.