The plaintiff alleged that the teacher would not let her child go to the bathroom to the point that the student suffered a painful urinary tract infection.   The suit was against the district and the teacher. 

Let’s consider that last sentence: “The suit was against the district and the teacher.”  That’s a problem.  If the case alleged a violation of federal law it might be proper for the plaintiff to name both the district and the teacher as defendants. In fact, that happens regularly. But suits under state law in Texas are subject to the “comprehensive election-of-remedies scheme” laid out in the Texas Tort Claims Act.  Look at this: 

If a suit is filed under this chapter against both a governmental unit and any of its employees, the employee shall immediately be dismissed on the filing of a motion by the governmental unit. Texas Civil Practice and Remedies Code 101.106(e).

You have to choose your defendant. Sue the school. Or sue the school employee. Can’t do both. 

So that got the teacher out of the suit. What about the district?   The district was dismissed also. Districts are not liable for personal injuries like this unless a motor vehicle was involved.  No motor vehicle—no liability. 

Isn’t it interesting, though, that the common classroom interaction between a student and the teacher about going to the bathroom can end up in court? 

It’s S. Sanchez and Edcouch-Elsa ISD v. Garcia, decided by the Court of Appeals for Corpus Christi and Edinburg on August 5, 2021.  You may wonder why the teacher and district are named first in the case. That’s because the lower court denied the motions to dismiss, and so the teacher and the district took the appeal to the Court of Appeals.

DAWG BONE:   TAKE NOTE PLAINTIFFS: CHOOSE YOUR DEFENDANT CAREFULLY.

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

Tomorrow: Pronouns….

Mr. Blankenship thought that the local district was violating the law, and so he took his complaint straight to T.E.A.  That does not work. As the Commissioner has repeatedly stated, he has appellate jurisdiction only.  If you have not taken your complaint to the school board, you will not get a hearing at the Agency.  It went down like this:

Petitioner also lacks a valid Texas Education Code Section 7.057(a)(1) claim because all section 7.057 claims are appeals.  The Texas Supreme Court recently acknowledged that a Texas Education Code Section 7.057 case is an appeal.  Davis v. Morath (Tex. 2021).

I’m pleased to let you know that Ali Mosser from our firm’s Irving office obtained this dismissal with the able assistance of Sandi Tarski. The case is Blankenship v. Richardson ISD, decided by the Commissioner on September 7, 2021, Docket No. 042-R10-06-2021. 

DAWG BONE:  SOME ELEMENTS OF LOCAL CONTROL REMAIN IN PLACE.  SOME.  

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

Tomorrow: “Teacher, can I go to the bathroom?”

The Toolbox is our firm’s one-day training program regarding disciplinary options with students who have disabilities.  The goal is to serve all students appropriately, while maintaining a safe and orderly campus.  One of the issues we talk about is the ten-day rule, and the days that “count” toward that ten-day ceiling.  Inevitably the issue arises: do you have to count the days spent in ISS? 

You don’t have to worry about that issue if you simply eliminate ISS.  Is that possible?  I ask you to consider a few things. 

First, we have a “backwards” definition of ISS in the PEIMS.  It tells us that ISS “includes any setting that has not been addressed by an ARD Committee within the placement determination of the student’s current IEP.”  PEIMS Code C164-06.  That means that a student who is sent to the school library or the A.P.’s office and spends the better part of the day there is actually in ISS.  You may be sending students to ISS without realizing it.

But consider: what if the student is temporarily assigned to a setting that is approved by the ARDC as part of the student’s placement?  What if the ARDC declares that the use of such a temporary assignment is necessary for the provision of FAPE?  What if there are certain “guardrails” attached to this part of the IEP to ensure that it is not misused?  What if the district has good documentation to indicate parental agreement to this part of the student’s placement?

There are some districts that are doing this, with a reduction in the use of suspensions, both the in-school and the out-of-school variety.  In the Toolbox, we talk about how this might work. 

Caution: don’t even think about doing something like this unless you are prepared to create a unit that looks very different from a traditional ISS.  Think about creating a unit staffed by a certified teacher who is trained in social and emotional learning and restorative practices and can provide the kind of positive behavioral interventions, supports and strategies that can effectively address behaviors that impede learning.

The lawyers at Walsh Gallegos can help you think through such a plan.  And we can help with the creation of the necessary guardrails.  Let us hear from you if you are interested.

DAWG BONE: CAN YOU ELIMINATE ISS?  MAYBE SO.

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

Tomorrow: T.E.A. jurisdiction….

The passage of SB 3 in the second special session should ease the minds of history teachers and principals.  The earlier version of this bill—HB 3979—was so ambiguous and vague that it left teachers fearful that they would get in trouble for even mentioning some of the darker moments in American history.  SB 3 goes a long way toward correcting that. 

I say this largely because of a word I don’t think I’ve ever seen in a statute: “inculcation.”  SB 3 identifies eight “concepts” that teachers are not to “inculcate” in their students.   Here is the exact language of Texas Education Code 28.0022(a)(4):

A teacher, administrator, or other employee of a state agency, school district, or open-enrollment charter school may not: (A) require or make part of a course inculcation in the concept that: 

It then lists the Eight Forbidden Concepts.  For example, we don’t want teachers to “inculcate” in their students the idea that a person’s moral character is determined by their race or sex.  Or the idea that today’s students should feel responsible or guilty over things that their ancestors did.

“Inculcate” is defined as “to teach and impress by frequent repetition or admonitions.”  So teachers are not to do that with any of these concepts. But they can talk about things. They can say “some historians believe….” They can cite sources that do promote those ideas, so long as they avoid “frequent repetition or admonitions” designed to make sure that their students agree with any of these “concepts.” 

Principals are likely to get complaints from parents about things that teachers say or do in the classroom.  All such complaints need to be addressed. But unless there is evidence of a teacher really pushing the notion that students should believe certain things, there is no “inculcation.”

One more example: the new law says that teachers may not “require an understanding of the 1619 Project.”  That doesn’t say the teachers can’t talk about this New York Times project, or outline its basic assertions. Nor does it prohibit a teacher from giving students credit for reading the material and making a report on it.  The teacher should probably refrain from testing the students on the content, because that would mean that the students were required to understand it, which is what SB 3 prohibits.  The 1619 Project presents an interesting and provocative view of the history of slavery and the role of racism in America’s development. But those same issues are woven into the existing TEKS for American history classes.  Teachers can’t teach the full TEKS without talking about these issues.

DAWG BONE: LET’S LET THE TEACHERS TEACH.

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

Tomorrow: Toolbox Tuesday!!

Zooming with the Dawg at 10:00 this morning!  We’ll be reviewing the newly revised social studies bill.  Open and free to all Daily Dawg Subscribers!! Be there!

It’s supposed to be pretty simple to end the school’s relationship with a probationary teacher at the end of its scheduled term.  The board just has to determine that doing this will serve the “best interests of the district” and make sure that notice of the termination is timely delivered.  The statute concludes with “The board’s decision is final and may not be appealed.”  T.E.C. 21.103(a).

Yes, it does mean what it says, if you understand that it refers to appeals to T.E.A.  That’s why the petition of the teacher from Austin ISD was dismissed. The Commissioner noted that he did not have jurisdiction to hear this case. The board made its decision and that’s final.  The teacher alleged sundry violations of law by the district, but the Commissioner repeatedly focused on the fact that this was a complaint about the termination of a probationary contract at the end of its scheduled term. That’s not appealable…at least, not to T.E.A.

Like all such “final” rules written in the law, there are exceptions.  For example, this teacher alleged that the district discriminated against her based on disability in violation of the ADA.  That might be a valid claim, but it shouldn’t go to the Commissioner of Education.  The Commissioner does not have jurisdiction of federal laws, only the school laws of Texas. The same would be true of any allegations of discrimination based on race, sex, or religion.  Those complaints should start out at the EEOC or Texas Workforce Commission—not the Texas Education Agency.

So it really is pretty simple to end the relationship at the end of its scheduled term, as long as the district sticks to the mantra: “We make all personnel decisions based on job-related, nondiscriminatory, non-retaliatory factors.” 

It’s Baron v. Austin ISD, decided by the Commissioner on June 7, 2021.  Docket No. 010-R10-11-2020.

DAWG BONE: MEMORIZE THAT MANTRA AND PUT IT INTO PRACTICE.

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

Ignorance of the law is no excuse for violating the law.  As Commissioner Morath notes in a recent decision, there is a “legal fiction” that all citizens know about every law that Congress or the state legislature enacts.  If you violate the law, the fact that you did not know that you were doing so is no excuse. But while everyone is charged with knowing what laws have been enacted, they are not responsible for knowing everything that the local school board has done.

How was this relevant in a case where the parent was complaining of the school’s sex ed curriculum?  It came up because the school administration argued that the complaint was untimely.  After all, the board adopted the sex ed curriculum more than three years before the complaint was filed. The local policy, FNG(Local) required that complaints be filed within 10 days of when the complaining party knew or should have known of the matter complained about.  So at all levels of the grievance, all the way to the school board, the complaint was dismissed as untimely. 

The Commissioner reversed that, noting that the complainant did not know what happened at the board meeting three years ago.  Nor would he be responsible for the “legal fiction” of knowing what happened.  So he did not have knowledge of the sex ed curriculum until December 5, 2019 when he watched a video of a talk about the district’s sex education curriculum. He wasted no time after watching the video, filing the FNG complaint that very day.  The district contended he was untimely because he should have known what the school board did way back in 2016 when the curriculum was discussed and approved. Nope.

This case is noteworthy for two other reasons. First, the local policy said that “no new evidence” could be admitted at Level IV—the board level.  This is a common feature of local policy, but the  administration argued that this only applied to the complaining party, not the administration. The Commissioner rejected that idea, noting that “The school board does get to interpret its policies, it does not get to rewrite its policies through interpretation.”

Second, this is a harbinger of things to come.  The complaint was that the district was not in compliance with Texas Education Code 28.004 which spells out the requirements for School Health Advisory Councils (SHACs) and the specifics of education about sexuality.  This decision does not address any of the substantive complaints about the district’s compliance with the law. The district denied the complaint based on timeliness, and so the only issue before the Commissioner was timeliness.  But you can expect a lot more complaints focusing on TEC 28.004. HB 1525 amended it this year with a major emphasis on transparency and parental involvement.

It’s Parent v. North East ISD, Docket No. 006-R10-10-2020, decided on July 7, 2021. 

DAWG BONE: TEACHING ABOUT SEXUALITY?  GET READY FOR COMPLAINTS.

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

Tomorrow: terminating a probationary contract…

The commissioner’s decision in Mason v. Port Neches-Groves ISD never reveals the exact nature of Mr. Mason’s complaint.  It does tell us that Mr. Mason complained that the school mascot violates civil rights laws. But it doesn’t tell us what the mascot is. The Dawg had to do Extensive Research on this (ten seconds on Google) to find that the PNG athletic teams are like the Cleveland Baseball Team—the Indians.

You probably know that the Cleveland Indians will play their final game in a few weeks.  Next year they will be the Cleveland Guardians. That change came after years of complaints and protests, particularly about the depiction of the laughing Chief Wahoo.  Personally, I think they should have changed to the Cleveland Spiders—that was the original name of the baseball team in Cleveland, and I suspect it would sell a lot more T-shirts than “Guardians.” 

But the PNG Indians will continue to be the Indians.  Commissioner Morath dismissed the case, noting that Mr. Mason failed to allege a violation of any school law of the state.  And he certainly does not want to get embroiled in local disputes over mascots.  After all, what is a Wampus Cat anyway????

It’s Docket No. 027-R10-02-2021, decided on June 22, 2021.

DAWG BONE: THE TEXAS EDUCATION CODE SAYS NOTHING ABOUT YOUR SCHOOL MASCOT.

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

Tomorrow: a sign of things to come…

I did my first Toolbox 4.1 presentation two weeks ago, and it reminded me of how “old school” the Toolbox is.  The Toolbox is our firm’s all-day training program for dealing with students with disabilities who may be seriously disruptive or even violent. The Toolbox is based on existing law, and the “tools” it provides to educators to serve this kind of student well, while also maintaining a safe campus. When I present the Toolbox, I also emphasize that restorative practices can be used alongside the traditional tools we have in the Toolbox.  Many of you Loyal Daily Dawg Readers know that I have been a proponent of restorative practices.  That’s why the case of Doe v. Huntsville City School Board of Education (that’s the Alabama Huntsville) was a sad read on so many levels.

It’s a gruesome bullying case involving allegations of repeated physical assaults on an eight-year old boy who was on the autism spectrum and also had Charcot-Marie-Tooth syndrome.  I had to look that one up.  I don’t want to go into detail about the alleged assaults, but suffice it to say it resulted in the loss of one testicle and surgery on the other one.   Yikes.  I expect that many male readers just crossed their legs.  As usual in a lawsuit over bullying, the parents allege that their repeated complaints and warnings were ignored.

All of that will eventually get sorted out in the litigation, which will continue because the court refused to dismiss the case.  Here’s the part of the court’s decision that made me think about the proper and improper use of restorative practices:

Mary Doe [the mom] and her father met with [the principal] and [an assistant principal] before the spring semester began to discuss a plan for keeping the bullies completely away from John Doe. But when John Doe returned to school on January 4, 2017, the defendants did not separate John Doe from the bullies or transfer John Doe to different classes. Instead, [the A.P.] had John Doe meet in her office with [one of the alleged bullies].  She required them to shake hands to make them “become friends.” 

Well, that well intentioned effort did not work. In fact, the suit alleges that the alleged bully took advantage of this “friendship” by continuing to torment John Doe and warning him that “friends don’t tell on friends.”

Was this forced handshake an effort at a restorative approach?  I wonder.  If so, it demonstrates that restorative practices are like many other promising approaches—they have to be done at the right time, under the right circumstances, in the right way.  The court cited this meeting in the A.P.’s office, which came shortly after the parent asked for a separation of the students, as a basis for its refusal to dismiss the suit:

Thus, [the assistant principal] disregarded the danger the bullies posed for John Doe and acted in a way that “rendered John Doe….more vulnerable” to the bullying.”

This case is at a preliminary stage, where the court must accept as true all of the factual allegations. So we don’t know what happened—we only know what the suit alleges.  The case will proceed to discovery, and perhaps, trial, where the full context will be explored.  Nevertheless, this preliminary ruling is one we can learn from.  It’s Doe v. Huntsville City Schools Board of Education, decided by the federal court for the Northern District of Alabama on July 1, 2021. We found it on SpecialEd Connection at 79 IDELR 41.

DAWG BONE: RESTORATIVE PRACTICES ARE GREAT, BUT THEY DON’T FIT EVERY SITUATION.

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

Tomorrow: Can the commissioner make you change your mascot?

We’re Zooming with the Dawg this Friday!! Free for all Loyal Daily Dawg Subscribers.  Be there at 10:00a.m.!  We’ll be talking about SB 3—the revised bill about the teaching of social studies.  You might want to invite the chair of your social studies department!

Our law firm is offering two webinars this week, which provide a great opportunity to get some up to date, practical training in a cost effective way.  Here they are:

September 14 (tomorrow!)  Student Free Speech after Mahanoy

This will be a lively discussion led by Haley Turner and Wesley Nute on the fallout from the SCOTUS decision this year about the cheerleader in Pennsylvania who carpet bombed Snapchat with F-bombs.  SCOTUS held that it was wrong for the local school officials to suspend her from the cheerleading squad.  This is a major decision involving the interplay of the First Amendment, social media, and extracurricular activities.  What does it mean going forward?  As Loyal Daily Dawg Readers know (see Daily Dawg for September 2) we already have one reported court case after Mahanoy involving off-campus drinking by a volleyball player.  You might want to invite your coaches and sponsors to get in on this webinar.  It starts at 10:00 and it’s not too late to sign up.  Go to www.walshgallegs.com and click on Events.

September 15: Let’s Recover from COVID! The Latest on Compensatory Services, Parent-Elected Grade Repetition and Other Legal Side Effects from COVID-19.  

That’s certainly a topic of the day! The webinar will be led by Paula Maddox Roalson and Christina Henshaw.  They will bring you up to speed with how the new legislation on these topics is playing out, including any changes from the special session of the legislature. As usual, the focus will be on practical application.  It starts at 10:00, and you can sign up as noted above at www.walshgallegos.com/events. 

While Paula and Christina are hosting this webinar, I will be at Region 7 for my first IN PERSON Back to School Program! Looking forward to the opportunity to spend the day with the folks from Behind the Pine Cone Curtain, as we explore all of the new legislation and all of the important court cases that will impact your school year.

Then on Friday it’s time to Zoom with the Dawg!  Open and free to all Loyal Daily Dawg Subscribers.  See you there!

DAWG BONE: OPPORTUNITIES FOR PROFESSIONAL GROWTH ABOUND.

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

Tomorrow: Toolbox Tuesday!! 

It’s a fundamental principle of IDEA that students are to be served in the LRE, the Least Restrictive Environment.  Usually that’s what parents want, but sometimes the parents think that their child would be better off in an MRE—a More Restrictive Environment.  This came up in a recent federal court case.

The parents objected to the student being in the mainstream for science and social studies.  The district’s response to that is a textbook example of how to offer a “cogent and responsive” answer to justify its position. For one thing, the student earned good grades, passing both of these subjects.  Furthermore, the teacher testified that the student participated in collaborative projects, learned to be around her peers, improved her social skills, participated in class discussions, and learned by observing how other students navigated the mainstream classroom.  The parents expressed concern about bullying, but it had never been reported to or seen by anyone at the district. 

That’s a good checklist of indicators that the mainstream placement is the LRE.  The court also noted that the student was not disruptive and did not require a disproportionate amount of attention from the teacher.

It’s Thurman G. v. Sweetwater ISD, on SpecialEd Connection at 121 LRP 25687.

DAWG BONE: MRE OR LRE—IT’S AN INDIVIDUALIZED DECISION.

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