Texas Football magazine is on the newsstands, and the local newspaper is already counting down the top 25 college teams.  Are “two-a-days” about to begin? 

Whenever practice begins you can bet your tailgating money that some coach somewhere is going to remind the players that it’s really a very simple game. It all comes down to blocking and tackling. 

“Blocking and tackling” has become a shorthand expression denoting the fundamentals.  In any enterprise, we have to get the fundamentals right.  And if we do, we are well on our way to success. 

When schools are confronted with serious allegations of wrongdoing, they need to employ the fundamentals, the “blocking and tackling” of the business.  Those fundamentals are: INVESTIGATE.  TAKE ACTION.  DOCUMENT. 

Good “blocking and tackling” kept the Klein ISD out of trouble when three of its employees were accused of abuse and neglect of a student.  The court cited the district’s response to these allegations, which involved a teacher, an aide, and a bus driver:

…the record reflects that, upon becoming aware of the incidents involving [the aide, the teacher] and the verbally abusive school bus driver, both school principals promptly undertook thorough investigations and notified other pertinent KISD personnel. As a result, [the aide and teacher] were immediately removed from the classroom, their employment ended, and both CPS and the KISD police department were notified. Also, the bus driver was immediately reassigned from [the student’s] route.

It’s Harrison v. Klein ISD, decided by the 5^th Circuit on April 7, 2021, and it can be found on Special Ed Connection at 78 IDELR 212.

DAWG BONE: WOULD BE EVEN BETTER IF WE HAD NO ABUSIVE TEACHERS, AIDES AND BUS DRIVERS.

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

Tomorrow: Some big numbers.

The Texas legislature has made some changes regarding the discipline of students with disabilities, primarily through the passage of HB 785.  The new law addresses FBAs, BIPs, the use of restraint, and time-out.  Accordingly, I’ve made some changes in the content of the Toolbox. 

So we are now up to Toolbox 4.1! The basic content is the same—ten “tools” designed to help you simultaneously serve students appropriately and maintain safety.  So if you are interested in some training along those lines, let me know!

DAWG BONE: AS THE LAW EVOLVES, SO DOES THE TOOLBOX.

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

Tomorrow: the blocking and tackling of school administration.

The Supreme Court gave us three phrases in the Endrew F. v. Douglas County case that continue to resonate.  First, there was “progress appropriate in light of the child’s circumstances.”  That’s what any IEP should be designed to enable the student to achieve.

Second, there was “appropriately ambitious.” That’s what the IEP goals should be, again, taking into account each child’s circumstances. 

The third phrase has gotten less attention but is equally important.  The Court reminded lower court judges and hearing officers that they are not educators. Therefore, they should defer to the judgment calls of educators.  But the Court qualified that statement, by noting:

A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions.  

In other words, the courts are not going to defer to your judgment just because you are a certified educator with 20 years of experience. No—the judge will expect you to be able to explain the decisions that you have made in a way that is “cogent and responsive.” 

This came up in Alexander G. v. Downingtown Area School District.  As the years went along the school district offered IEPs that focused less on reading fluency, and more on other goals.  The parents questioned this.  But the hearing officer sided with the school and the federal district court affirmed.  The court was comfortable deferring to the judgment calls of the educators because they offered “cogent and responsive explanations” for their decisions about IEP content.  Here’s an example:

Additionally, as Alec had transitioned from “learning to read to reading to learn,” fluency was no longer as important to assessing Alec’s reading abilities; far more important were his decoding accuracy and comprehension, which showed strong improvement.

This one was decided on April 26, 2021by the federal court for the Eastern District of Pennsylvania, and can be found on Special Ed Connection at 78 IDELR 213.

DAWG BONE: COGENT: “APPEALING FORCIBLY TO THE MIND, OR REASON.”  MERRIAM-WEBSTER COLLEGIATE DICTIONARY, 11^TH EDITION.

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

Tomorrow: Toolbox Tuesday!!

I don’t know why SB 801 is getting so little attention. Seems like a big deal to me.  It instructs TEA to create an agriculture education program for elementary schools.

DAWG BONE: I’LL SAY IT AGAIN—WHOOP!!

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

Texas has a law that authorizes the use of cameras in self-contained classrooms that serve our most vulnerable children.  In a pending special education due process hearing, the attorney representing the parent sought the disclosure of a considerable amount of video footage from the cameras in the classroom.  The district opposed this, arguing that state law protects the confidentiality of this footage. The Education Code authorizes its release only to certain parties, and only in the context of an accusation of abuse or neglect of the student.  In this case, no one alleged abuse or neglect. The lawyer argued that the videos should be disclosed because they would provide relevant evidence of how the district was serving the student. 

The hearing officer originally assigned to the case ordered the district to disclose the videos.  Believing that this order violated the Education Code, the district (Spring Branch ISD) took the matter to T.E.A., but the Commissioner ruled that he did not have the authority to override a special education hearing officer.  So the district sought a “writ of mandamus” from the district court in Travis County.  Multiple educator organizations, comprising both teachers and administrators, supported that effort.

Then: a surprise.  Before the Travis County judge did anything with the case, the due process hearing was assigned to a second hearing officer who issued an order overruling the original order.  The ruling: the video footage is confidential and should not be disclosed in a special education hearing.

This is likely to come up again, but when it does, the district will cite Order No. 8 in Docket No. 285-SE-0620, signed by Stacy May from the State Office of Administrative Hearings.

DAWG BONE: CONFIDENTIAL, AS WE THOUGHT ALL ALONG.

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

Tomorrow: for the Aggies.

In its recent decision about a cheerleader and her F-bomb laden Snapchat posts the Supreme Court said very little about the fact that the student had signed on for an extracurricular activity and thereby agreed to a stricter set of rules.  This is disappointing. We were hoping that the Court would take that factor into account, and give us some guidance as to what is OK and not OK in a set of rules for extracurricular activities.  Since the decision is silent on that point, coaches and sponsors are confused and a bit anxious about what rules they can apply.  Today I offer some points to consider. 

First, the Court acknowledged that team cohesion was a legitimate concern.  That should mean that schools retain the power to discipline students for activities they engage in off campus that have a notable adverse impact on the team as a whole.  In this particular case the Court just didn’t see any major impact from this very brief social media temper tantrum. 

Second, all parties to this case, and the Court, seem to assume that schools can discipline students for actual threats, harassment or bullying, even when it occurs off campus.  So rules that prohibit students from bullying, threatening or harassing other team members and coaches should be OK.

Third, since the Supreme Court did not directly address the issue, we turn to 5^th Circuit precedent.  San Benito CISD removed a cheerleader from the squad based on a Twitter post that the district deemed to be inappropriate.  The student sued, alleging an infringement of free speech rights, and the case advanced to the 5^th Circuit.  Noting how murky the legal standards are in this area, the court offered some guidance:

1. The fact that the student and her mother signed off on a Cheerleader Constitution that put them on notice that social media activity would be monitored, and might be penalized, was a factor here.  So it’s a good idea for schools to continue to require this.
2. The fact that the Twitter account identified the student as a San Benito cheerleader mattered also.  The Twitter post affected the reputation of the school.
3. “Most notably” the court observed, the girl was not suspended from school, but only from an extracurricular activity.
4. School officials can’t discipline a student for off-campus speech simply because they find it offensive. 
5. As a general rule, the student’s intent for the speech to reach the school community is important.  The court made this observation and then followed it by noting how the Internet muddies the water. Here’s the Key Quote:

Because a school’s authority to discipline a student speech derives from the unique needs and goals of the school setting, a student must direct her speech towards the school community in order to trigger school-based discipline.  We acknowledge, however, that the “pervasive and omnipresent nature of the Internet” raises difficult questions about what it means for a student using social media to direct her speech towards the school community.

One more point: the use of vulgar words in ways that do not involve direct harassment of an individual is probably not a firm basis for disciplinary action.  I recall hearing an interview with a  major league baseball umpire about why ballplayers get ejected from the game. The interview went kinda like this:

Reporter: I image you hear a lot of angry words when ballplayers argue over a call.  Probably a lot of cussing.

Umpire: Oh yes.  And we put up with almost all of that.  But if they utter the magic word, they are out. 

Reporter: What’s the magic word?

Umpire: “You.”

DAWG BONE: THERE’S A BIG DIFFERENCE BETWEEN THE F-WORD USED AS AN EXCLAMATION, THE F-WORD USED AS AN ADJECTIVE, AND THE F-WORD USED AS A VERB WITH AN IDENTIFIABLE DIRECT OBJECT.

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

Tomorrow: how confidential is the video footage from that camera in the classroom?

“Let us fix the error before the Supreme Court decides to fix it for us.” Thus concludes Judge Wiener’s concurring opinion in T.O. v. Fort Bend ISD.  What’s this about?

The suit alleges that a 1^st grader hit and kicked a teacher, whereupon the teacher seized him by the neck, threw him to the ground and held him in a choke hold for several minutes until the student’s aide asked the teacher to release the student so that he could breathe.  The lower court’s opinion in this case disclosed another interesting fact: that the teacher outweighed the student by 205 pounds.  Does it surprise you to hear that the 5^th Circuit dismissed this case early on, holding that the suit failed to allege facts that amounted to a constitutional violation? 

In support of its ruling, the court gave us a list of similar factual allegations that failed to meet the constitutional standard: 

1. The student who was instructed to perform excessive physical exercise as a punishment for talking to a friend;
2. That time a police officer slammed a student to the ground and dragged him along the floor after the student disrupted class;
3. The case of the teacher who threatened a student and threw him against a wall, choking him after the student questioned the teacher’s directive;
4. The student with a disability who was grabbed, shoved, and kicked by a teacher’s aide because the student slid a CD across a table; and
5. The student who was hit with a wooden paddle by the principal after skipping class.

Surely some of these cases had merit. Surely some of these incidents should be classified as a criminal assault. So why is the 5^th Circuit rejecting them?

The 5^th Circuit rejected these claims because they were made under federal law and the Constitution.  Each of them allege misdeeds that could be corrected by state courts applying state law.  So the 5^th Circuit has consistently dismissed claims like this, on the theory that adequate state remedies exist and should be pursued.  As long as the incident arises out of an effort by an educator to take disciplinary action, the 5^th Circuit will not uphold any claims of a violation of federal law.  Key Quote:

Based on the foregoing, we have consistently dismissed substantive due process claims when the offending conduct occurred in a disciplinary, pedagogical setting. 

In this case, the court acknowledged that the teacher may have overreacted, but it was in the context of discipline.  Key Quote:

The aide removed T.O. from his classroom for disrupting class, and [the teacher] used force only after T.O. pushed and hit her.  Even if [the teacher’s] intervention were ill-advised and her reaction inappropriate, we cannot say that it did not occur in a disciplinary context.

Judge Wiener wrote a separate opinion, joined by Judge Costa, expressing the view that the analysis of the 5^th Circuit is “not only unjust, but is completely out of step with every other circuit court and clear directives from our Supreme Court.”  According to Judge Wiener, this case would have been decided differently in the 2^nd, 3^rd, 4^th, 6^th, 7^th, 8^th, 9^th, 10^th and 11^th Circuits. No doubt, the lawyers handling the next case alleging excessive force will need to study this decision. 

It’s T.O. v. Fort Bend ISD, decided by the 5^th Circuit on June 17, 2021.  It’s at 2021 WL 2461233.

DAWG BONE: THE LAW EVOLVES. THIS CASE ILLUSTRATES HOW THAT CAN HAPPEN.

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

Tomorrow: extracurricular codes of conduct?

When the SBOE addresses the TEKS for American History classes it is going to have its hands full.  Or maybe not, as HB 3979 lays out what is to be included in such detail that perhaps no further elaboration will be required.  This controversial bill is on the agenda for revision during the special session.  Of course that assumes that the Democrats return to Austin so that we have a quorum to do business.  Exciting times here in Texas! In any event, here is what we have on the books as of now.

As a result of wildly divergent views as to what should be taught, this law will require that the TEKS address the writings of George Washington, Ona Judge, (all those who know who Ona Judge is, raise your hand) Thomas Jefferson, Sally Hemings, Frederick Douglass, Martin Luther King, and Abigail Adams.  Students will be learning about the Chicano movement, Cesar Chavez, Dolores Huerta, Dr. Hector Garcia and the American GI Forum; the women’s suffrage movement and Susan B. Anthony; some famous court cases, including Brown v. Board of Education, Hernandez v. Texas and Mendez v. Westminster; the history of Native Americans, including information about the Indian Removal Act.  Students will be taught about “the history of white supremacy, including but not limited to the institution of slavery, the eugenics movement, and the Ku Klux Klan, and the ways in which it was morally wrong.” No doubt this will involve teaching about the Fugitive Slave Acts and the Underground Railroad. 

With regard to any social studies course “in the required curriculum” teachers:

may not be compelled to discuss a particular current event or widely debated and currently controversial issue of public policy or social affairs.”

For teachers who choose to discuss such a topic, the teacher must, to the best of the teacher’s ability, strive to explore the topic from diverse and contending perspectives without giving deference to any one perspective.

Schools (including open enrollment charters) may not require, make part of the course, or give course or extra credit to a student’s political activism, lobbying, efforts to persuade public officials, or for any participation in an internship, practicum or similar activity involving social or public policy advocacy.  Moreover, schools may not accept private funding for course development or training for a course that includes such things.

No employee of a school district, open enrollment charter, or state agency may:

be required to engage in “training, orientation, or therapy that presents any form of race or sex stereotyping or blame on the basis of race or sex;”

require an understanding of The 1619 Project;

require, or make part of a course the concept that:

1. One race or sex is inherently superior to another race or sex;
2. An individual, by virtue of that person’s race or sex is inherently racist, sexist or oppressive, whether consciously or unconsciously;
3. An individual should be discriminated against or receive adverse treatment based on race or sex;
4. Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
5. An individual’s moral character, standing or worth is necessarily determined by the person’s race or sex;
6. An individual, by virtue of race or sex, bears responsibility for actions taken in the past by other members of the same race or sex;
7. An individual should feel discomfort, guilt, anguish, or any other form of psychological distress based on the person’s race or sex;
8. Meritocracy or traits such as a hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race;
9. The advent of slavery in the territory that is now the U.S. constituted the true founding of the U.S.; or
10. Slavery and racism are anything other than deviations from, betrayals of, or failures to live up to the authentic founding principles of the U.S, which include liberty and equality.

Will these be forever designated The Ten Forbidden Concepts?

In recognition of the First Amendment, the bill states that students will remain free to discuss the issues that cannot be discussed in social studies class without punishment.  Neither traditional nor open enrollment charter schools may “implement, interpret, or enforce any rules or student code of conduct in a manner that would result in the punishment of a student for discussing, or have a chilling effect on student discussion” of such issues.

So the kids can talk about the Forbidden Concepts, or even float the idea that maybe one race is superior to another, or maybe some individuals should feel guilt about things their ancestors did.  They just can’t do that in the classroom where there would be a trained and certified teacher guiding the discussion. 

Good luck with this! 

DAWG BONE: THE PUBLIC SCHOOL REMAINS GROUND ZERO IN THE CULTURE WARS.

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. Be there!!

You have to tip your hat to those cheerleaders and their parents.  Students had been on a losing streak at the Supreme Court.  After Mary Beth Tinker’s seminal victory in 1969, students lost three straight, in 1986 (Bethel School District No. 403 v. Fraser), 1988 (Hazelwood School District v. Kuhlmeier), and 2007 (Morse v. Frederick).  But Brandi Levy ended this streak with a strong 8-1 decision in her favor in Mahanoy Area School District v. B.L.

Brandi was miffed when she was relegated to JV cheerleading for a second year. She vented her frustration with four F-bombs (aimed at cheer, softball, school, and everything) and a raised middle finger on Snapchat.  Besides the vulgarities, Brandi also complained of the unfairness of being on the JV when a freshman made varsity. 

Of course Brandi had signed off on a set of rules for this extracurricular activity by which she promised to refrain from vulgar expression and be respectful of teammates and coaches.  The cheerleading coaches believed that Brandi had violated her commitment, and so they suspended her from JV cheerleading for a year.  Little did they know that this would later be deemed a violation of the First Amendment. 

This case drew attention far out of proportion to the issue of whether or not Brandi could be a cheerleader.  In particular, the decision of the 3^rd Circuit alarmed educators because it held that schools lacked any authority to discipline students for expressive activity done away from school grounds and school activities.  What about cyberbullying? What about abuse via social media? What about sexting and other forms of sexual harassment done through technology? 

Many lawyers (including the Dawg) expected a landmark decision from the Supreme Court. After all, this was the Court’s first opportunity to wade into the murky waters of student expression off campus, including with social media sites.  But the Court hardly dipped its toes into those waters.  Justice Breyer’s opinion, joined by all but Justice Thomas, noted that “we do not now set forth a broad, highly general First  Amendment rule.” 

Rats. I thought that was exactly what they would do. Wrong again.  Sigh. 

So here are a few things we can derive from this opinion.

1. Schools do retain the power to discipline students for expressive activities off campus, but their authority to do so is “diminished.” 
2. It’s highly unlikely that a court would approve of discipline based on a student’s religious or political activity when done outside of school activities.
3. Since public schools are “the nurseries of democracy” school officials should vigilantly protect students who express unpopular opinions. Justice Breyer notes that “popular ideas have less need for protection.”
4. The Court acknowledges the school’s significant interest in preventing bullying or harassment, the targeting of particular individuals, and threats aimed at teachers or students.

Turning to the specifics of this case, the Court emphasized that Brandi did not target or harass anyone, and did not use “fighting words.” Her Snapchat post was “vulgar” but not “obscene.”  Moreover, this very short temper tantrum took place away from school, on her own time, using her own device, and aimed only at her own friends on Snapchat. 

The Court acknowledged that schools must prevent material and substantial disruptions of school activities but there was scant evidence of disruption here.  A few cheerleaders were upset for awhile.  A few minutes were spent discussing the situation in an Algebra class. 

The Court also acknowledged that maintaining the cohesion and morale of a team is important. But the Court applied the Tinker standard and found no evidence of “any serious decline in team morale—to the point where it could create a substantial interference in, or disruption of, the school’s efforts to maintain team cohesion.”

The disappointing thing is that the Court seemed to completely disregard the fact that this was an extracurricular activity whereby the student had agreed to follow some stricter rules.  The Court’s decision is going to leave coaches and sponsors confused about what rules they can apply. 

We can talk about all that in today’s Zoom call, and then I’ll write some more about it next week.  Hope to see you at 10!

It’s Mahanoy Area School District v. B.L., decided by the Supreme Court, 8-1, on June 23, 2021.

DAWG BONE: BRANDI LEVY AND MARY BETH TINKER: NOW JOINED FOREVER IN SUPREME COURT LORE.

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

HB 1788 provides that school districts, open enrollment charter schools, and private schools are immune from liability for any damages that result from the “reasonable action” taken by “security personnel to maintain the safety of the school campus, including action relating to possession or use of a firearm.  “Security personnel” includes a school district peace officer, marshal, SRO, retired peace officer and volunteers. The same immunity extends for the “reasonable actions” of employees who have written permission from the board or governing body to carry a firearm on campus.  The immunity also extends to the individual “security personnel.”

DAWG BONE: OK. BUT LET’S HOPE WE DON’T HAVE CAUSE TO RELY ON THIS IMMUNITY.

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

Tomorrow: the Supreme Court case