The recent decision of the 4^th Circuit about the dress code at a charter school in North Carolina is going to get a lot of attention, mostly because of what it says about dress codes and Title IX. We’ll tell you about that tomorrow.  Today, we want to address the other issue in this case: Is a charter school a public school?

I thought we already knew the answer to that question, at least here in Texas. Charter schools are established by state law and funded by taxpayer money.  They help the state fulfill its constitutional obligation to provide public education to all children.  On top of that, Texas has a statute that removes all doubt: “An open-enrollment charter school is part of the public school system of this state.” T.E.C. 12.105.

North Carolina has a similar setup, with a similar statute: “A charter school that is approved by the State shall be a public school….” 

The majority of the 4^th Circuit’s panel just blew right through all of that, described charter schools as “nominally public schools” (emphasis added) and proceeded to declare them private schools.    This meant that the charter school was not a “state actor.” This meant it was not bound by the U.S. Constitution. So even if the dress code violated some other laws, it did not violate the constitution. 

That’s a big deal with a lot of implications, and there was a strong dissenting opinion.  This case drew amicus briefs from a gazillion advocacy groups.  But those advocacy groups were mostly focusing on the other issue in the case—did the dress code violate Title IX? Does Title IX even apply to a school dress code? 

Tune in tomorrow for that!  It’s Peltier v. Charter Day School, decided by the 4^th  Circuit Court of Appeals on August 9, 2021.  We found it at 2021 WL 3483288.

DAWG BONE: STATE LAW SAYS THAT CHARTER SCHOOLS ARE PART OF THE PUBLIC SCHOOL SYSTEM.  THAT OUGHTA SETTLE IT.

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

Tomorrow: does Title IX apply to your dress code?

In our firm’s Toolbox Training we present 10 “tools” that are available to deal with disruptive behaviors from students with disabilities.  The law requires the school to address any behavior of the student that “impedes the learning” of the student or others.  Many of the behaviors that impede learning are caused by the student’s disability. What tools are available in that case?

All of them, except for Tool #6, which is a Disciplinary Change of Placement.  Tools #2 and #3 involve a change of placement to a more restrictive environment (MRE).  Moving a student to a more restrictive environment should always be based on the nature or severity of the student’s disability.  The idea of the MRE is that the student needs services that can only be provided in the MRE.

Tool #4 is about seeking an expedited hearing out of safety concerns. Those safety concerns would normally arise out of concern over behaviors that are caused by the student’s disability.  If they weren’t, the school would use Tool #6. 

Tool #5 is about a removal due to the special circumstances of drugs, weapons, and the infliction of serious bodily injury. The law specifically permits the use of Tool #5 when the behavior is a manifestation. 

Tool #7 is the removal of the student while in the FAPE-Free Zone—the ten days in which campus administrators have unilateral authority.  A manifestation determination is not necessary because these short term removals do not create a change of placement.

Tool #8 is a short term removal, ordered by a campus administrator, after the FAPE-Free Zone.  Services must be provided to the student, which is what distinguishes it from Tool #7.  It cannot be used if the cumulative actions taking during the year create a change of placement, which would require a manifestation determination. So if Tool #8 is used properly, there is no change of placement, no manifestation determination. 

Tool #9 is about leadership at the ARD meeting.  That’s required for all students at all times.

Tool #10 involves bringing in law enforcement. This can be done at administrator discretion, even if the underlying behavior is caused by disability. This tool is used for safety purposes. 

And then there is Tool #1, which is #1 for a reason. The creation and implementation of a behavior plan (BIP) is the most important tool, as it is the only one designed to encourage an improvement in student behavior.  Obviously, this might be used to address behaviors that are caused by the student’s disability.

Toolbox 4.1, incorporating the latest changes in state law, is at the printing press. Let us know if you are interested in learning more.

DAWG BONE:  TEN TOOLS. NINE OF THEM AVAILABLE FOR BEHAVIORS THAT ARE CAUSED BY THE DISABILITY.

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

Tomorrow: is a charter school a public school?

As we continue to debate how controversial issues should be discussed in the classroom, it might be a good idea to review the current TEKS.  In fact, it would be a very good idea for social studies teachers, this year more than ever, to be sure that every lesson plan is anchored in the TEKS. 

I took a look at 19 T.A.C. 113.41—the TEKS for U.S. History after 1877.  It’s impossible to teach this course as described by the TEKS without bumping into some controversial issues. American History is full of them.   Hoping to avoid the discussion of racial issues?  Teachers won’t be able to do that.  Consider 19 T.A.C. 113.41(c)(9):

History.  The student understands the impact of the American civil rights movement. The student is expected to:

(A) Trace the historical development of the civil rights movement from the late 1800s through the 21^st century, including the 13^th, 14^th, 15^th and 19^th amendments;

(B) Explain how Jim Crow laws and the Ku Klux Klan created obstacles to civil rights for minorities such as the suppression of voting;

(C) Describe the roles of political organizations that promoted African American, Chicano, American Indian and women’s civil rights;

(D) Identify the roles of significant leaders who supported various rights movements, including Martin Luther King, Jr., Cesar Chavez, Dolores Huerta, Rosa Parks, and Betty Friedan;

(E) Compare and contrast the approach taken by the Black Panthers with the nonviolent approach of Martin Luther King, Jr.;

(F) Discuss the impact of the writings of Martin Luther King, Jr. such as his “I Have a  Dream” speech and “Letter from Birmingham Jail” on the civil rights movement;

(G) Describe presidential actions and congressional votes to address minority rights in the United States, including desegregation of the armed forces, the Civil Rights Act of 1964, and the Voting Rights Act of 1965;

(H) Explain how George Wallace, Orval Faubus, and the Congressional bloc of southern Democrats sought to maintain the status quo;

(I) Evaluate changes in the United  States that have resulted from the civil rights movement, including increased participation of minorities in the political process; and

(J) Describe how Sweatt v. Painter and Brown v. Board of Education played a role in protecting the rights of the minority during the civil rights movement.

Noticeably absent from that list is any reference to gays, lesbians, and transgender individuals who have also been a part of the civil rights movement. But despite that omission the existing TEKS require history teachers to dive into issues that are likely to stir strong opinions.  The bill passed during the regular session (HB 3979) requires them to do that as evenhandedly as possible, which is what a good teacher would do anyway.   Students are a captive audience in the public school, and good teachers do not take advantage of that to push their own view of controversial issues.  But they are also not afraid to teach about what really happened, and to point out the different perspectives different people have on events of the past. 

Best of luck to our social studies teachers. 

DAWG BONE: ANCHOR EACH LESSON IN THE TEKS. 

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

Tomorrow: Toolbox Tuesday!!

Hey, Loyal Daily Dawg Readers! We’re Zooming at 10:00 this morning! Hope to see you there.   I’ll be joined by my partner, Kelley Kalchthaler, and we’ll be talking about COVID…and a few other things. 

At the Walsh Gallegos Law Firm we seek to “help the people who help the kids.” One of the ways we do that is by helping to get cases dismissed when the tribunal lacks jurisdiction.  The Commissioner has limited jurisdiction, and yet, he does not dismiss cases on his own motion.  The Respondent school district has to do something, has to point out why the case should be dismissed.   

Wesley Nute, from our Irving office, did that for Lake Dallas ISD.  A paraprofessional who was terminated from employment filed a Petition for Review with T.E.A., seeking to appeal the school board’s denial of her grievance. But as Wesley pointed out in the district’s response, you can’t get a hearing at T.E.A. unless you at least allege a violation of the “school laws of Texas” or a breach of contract that caused monetary harm.  There were no such allegations and the Commissioner dismissed the case.  It’s Perkins v. Lake Dallas ISD, Docket No. 033-R10-04-2021, decided on August 3, 2021. 

Morgan Beam and Melanie Charleston from our Houston office got a similar result for Fort Bend ISD.   This one involved a teacher who resigned, and wanted to file a grievance over various issues. But she never did file that grievance, alleging that she was told that grievances were not being accepted due to COVID.  Over a year later, she filed a Petition for Review with T.E.A. As Morgan and Melanie pointed out: 1) there was nothing to review, since the board never heard any grievance; 2) it was filed way late; and 3) there was no allegation of a violation that would give the Commissioner jurisdiction.  Case dismissed on August 4. It’s Amentini v. Fort Bend ISD, Docket No. 029-R10-02-2021.

DAWG BONE: IF THERE IS NO JURISDICTION, WE’LL POINT IT OUT. 

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

There were parent complaints about the way Ms. Cooper was teaching American History.  She had the kids engaged in the Sunshine Project, a role-playing simulation based on rural America in the 1870s.  This was the Reconstruction era after the Civil War era with much upheaval of the way things had been.  In those years in America there was a lot of racial tension and considerable violence.  The Sunshine Project stirred things up, and some of the parents in the small Texas community didn’t like it. 

Ms. Cooper was called into the principal’s office twice to discuss this. The HR director was present for the second meeting and instructed the teacher “not to discuss Blacks in American history” and that “nothing controversial should be discussed in the classroom.” 

Contract renewal time came around and both the principal and the superintendent recommended that Ms. Cooper’s contract be renewed. They were aware of the complaints and the controversy, but they rated her as “outstanding” in her formal evaluation, noting that she was “thoroughly satisfactory” in every category of performance.  The school board disregarded those recommendations and voted not to offer Ms. Cooper a contract for the next school year. 

Does this sound like something that could happen in Texas after the passage of HB 3979?  Maybe so.  But all of this came down in the spring of 1972, leading to a lawsuit that culminated in a 5^th Circuit decision from 41 years ago: Cooper v. Kingsville ISD.  Lots of lawyers are going to want to refresh their memories about this case.

Deposition testimony from the board members made it clear—they nonrenewed Ms. Cooper’s contract because of the Sunshine Project.  So we have a clear cut First Amendment case. Does the teacher have any constitutional protection for things said in the classroom?

The 5^th Circuit concluded that “Classroom discussion is protected activity.”  The district, through improperly motivated board action, had infringed on Ms. Cooper’s First Amendment rights.    The court held that the district could overcome this only if it presented evidence that her use of this simulation technique “overbalanced her usefulness as an instructor.”  The district could not do that. Let’s remember: the direct supervisors rated her as “outstanding.” 

The Supreme Court restricted public employee First Amendment rights with its decision in Garcetti v. Ceballos in 2006.  The Court ruled in that case that public employees do not enjoy First Amendment protection when the words they utter are spoken as part of their job duties. That would seem to completely squash any claim of academic freedom for public school teachers, but the Court anticipated that issue and put it off to another day:  “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” 

That leaves Janet Cooper’s case as the highest authority we have on free speech as applied to classroom discussions.

Somewhere in Texas this school year some teacher is going to get in trouble for things said in the classroom that run afoul of the restrictions in HB 3979.  That teacher’s lawyer is going to dust off Cooper v. Kingsville ISD.  At Walsh Gallegos we’re ready to help you navigate these issues.     

DAWG BONE: AND KEEP AN EYE ON SPECIAL SESSION #2 FOR FURTHER DEVELOPMENTS!

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

Tomorrow: Sometimes it’s a matter of jurisdiction.

This morning I saw a video clip of a self-righteous young politician in North Carolina berating a school board during “public comment.”  Apparently the board has mandated that children have to wear masks in school.  The man strongly disagreed with the requirement that children be required to wear masks.  But rather than simply presenting his view, he went on a personal attack. As the news cameras rolled, he accused the board of pushing a political agenda and ignoring science.  And the applause line was the accusation that the board members were abusing children. 

Abusing children.  It takes a lot of arrogance to accuse school board members of child abuse. School board members serve the community by making tough decisions. Those decisions are sure to please some people and displease others.  That’s inherent in the job.  Board members have an incredibly difficult job, for which they receive no pay and little thanks.  They deal with three things that people hold dearly—their children, their money, and their values. 

It takes a bit of humility to acknowledge that there are good arguments on all sides of this mask-wearing debate.  School board members, with rare exceptions, are doing their very best to make those decisions in the best interests of the school district.  It would be nice to see the rhetoric cool down a bit. It would be nice to see people publicly acknowledge the service that our school board members offer.  It would be nice to see people thank them for doing their best…even when they make decisions we don’t like. 

DAWG BONE:  THANK A SCHOOL BOARD MEMBER TODAY.

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

Tomorrow: Cooper v. Kingsville ISD….relevant again.

I came across an interesting factoid about the State Office of Administrative Hearings (SOAH).  SOAH employs hearing officers who hear administrative cases involving many state agencies.  A few years ago, SOAH took on special education due process hearings. 

SOAH is required to file a HARP (Hearings Activity Report) with the Legislative Budget Board and the Governor twice a year. I took a look at the report for SOAH’s activity from September 1, 2020 to February 28, 2021. 

The HARP itemizes the number of billable hours spent dealing with cases from various agencies. More billable hours are spent on DPS license revocation cases than anything else, by a wide margin. This report shows 15,016 hours spent on those cases.

But guess what comes in second????  Special education due process hearings, at 4400 hours. SOAH also conducts hearings for T.E.A. on non-special ed matters, but that amounted to only 927 hours.  The HARP breaks down the costs of special education hearings like this:

Thought you might find that interesting.  

DAWG BONE: PRESIDENT FORD PREDICTED THAT IDEA WOULD CREATE A LOT OF PROCESS AND PAPERWORK.  HE WAS RIGHT.

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

Tomorrow: Sheesh-O-Meter.

We’re Zooming with the Dawg this Friday—at 10:00a.m.  Be there!  I’ll be talking to my partner, Kelley Kalchthaler, about COVID and the legal issues that are popping up as school begins.

Is today the first day in your school?  I’m guessing it’s sometime this week, although I know that some districts have already started.  We were all hoping that this year’s “first day” would be different from last year’s.  We were hoping that the scourge of COVID would be over by now and we would just happily return to real live in-person school without masks, without distancing, and without fears.  But we’re not there. 

So it’s likely to be a more stressful opening day than usual.  Nevertheless, here we go!

On the first day, you begin to create the story that will be The School Year of 2021-22.  So the Dawg is sending Positive Vibes to that brand new teacher who courageously stands in front of a roomful of children for the first time. Who knows—it could be the start of a 35 year career!

And Positive Vibes to that 57-year old teacher who almost retired last year but decided to give it One More Lap Around the Track before gassing up the RV with the spouse for that tour of America’s national parks.  Retirement can wait one more year.  Make it a good one. 

Positive Vibes to all of the seniors as they begin their final year of public education.  They will create the story of this year for the Class of 2022, along with many memories to be recalled when they gather in 2032 for the 10-year reunion. 

Positive Vibes to all of the bus drivers—the Secretaries of First Impressions.  Swing that door open and look to your right with a big smile as the children climb on board.

Positive Vibes to that brand new assistant principal who has been in the classroom for six years, and now faces a new challenge.  An administrator!  I also pass along my usual advice to A.P.s: about halfway through this school year you should re-watch Ferris Bueller’s Day Off and see if you aren’t a little more sympathetic with Principal Ed Rooney this time.

Positive Vibes to the brand new superintendent, and to the oldtimer who was persuaded by the board to hang on until the construction project is completed.

Positive Vibes to that new lawyer, taking the first phone call from a school administrator seeking advice.

Let’s make it a good one, Loyal Daily Dawg Readers. We can do this.

DAWG BONE: HAPPY NEW SCHOOL YEAR!

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

Tomorrow: Toolbox Tuesday!!

Another lesson on the difference between a conclusion and a fact…

“It’s too cold.” That’s a conclusion.

“I feel cold.”  That’s a fact.

“It’s 27 degrees here.”  Fact. 

Today’s Daily Dawg offers a little inside baseball for the lawyers and lawyer wannabes out there.  When a plaintiff files a lawsuit, the plaintiff has to allege FACTS that, if true, amount to a valid legal claim.  Thus sometimes cases get tossed out at the outset because the plaintiff’s lawyer alleges only conclusions rather than facts. 

“The school district violated the First Amendment.”  Conclusion. 

“The school district suspended the student from cheerleading because of the student’s Snapchat post.”  Fact. “This violates the First Amendment.” That’s a valid legal assertion based on the alleged facts.

This distinction came up in a recent case alleging constitutional and Title IX claims against the district, the board, the superintendent and the principal.  The court dismissed the case due to the failure of the plaintiff to allege facts to show that any of them knew about the sexual harassment of the student by two security officers. 

So what do you think about this:  “The principal knew that the security officers had sexually harassed the student.”  Fact or conclusion? 

I’d classify that as an allegation of fact, but the court didn’t. The court said it was “conclusory” because it failed to allege how the principal knew.  It did not allege that someone told them, or that they had witnessed it personally. Thus the assertion that the principal “knew” was a conclusion, not a fact.  Case dismissed.

Just one more comment about this one: I think you’ll be pleased to know that both security officers were fired.  The case is Sterling v. BOE of Evanston Township High School District, decided by the federal court for the Northern District of Illinois in 2021.  We found it on Special Ed Connection at 78 IDELR 134.

DAWG BONE: SOMETIMES IT’S EASY TO TELL THE DIFFERENCE BETWEEN A FACT AND A CONCLUSION. SOMETIMES NOT SO EASY.

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

It’s not unusual for situations that happen in the school to also involve police interaction.  Sometimes student misconduct may violate both school policies and criminal law, and in those cases, it’s not unusual for the police to ask the school not to investigate, for fear that the school’s efforts will somehow sabotage the criminal case. 

That very scenario led to accusations that the school was deliberately indifferent to student safety.  The background was a sexual assault of a girl by two boys.  Parents of the girl sued the school and three administrators alleging violations of Title IX and Section 1983.  But the court held that the district was not deliberately indifferent even though it did delay investigating the matter until the police completed their investigation. 

The court noted that “under the circumstances it was not unreasonable for the District to respect the police’s instructions to delay its investigation.” The delay was for about two weeks, and during that time the school took interim measures designed to keep the students apart.  It’s interesting to note that the school was sued by one of the boys involved in the incident as well. He claimed that the way the district handled the matter violated Title IX and due process.

It's Roe v. Lincoln-Sudbury Regional School District, decided by the federal court for Massachusetts. We came across it on Special Ed Connection at 78 IDELR 156.

DAWG BONE: CHECK YOUR LOCAL POLICY ABOUT THIS. BETTER YET, FOLLOW IT.

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

Tomorrow: when is a “fact” “conclusory”?