Quick question: what’s the difference between stealing a cookie and stealing an ATV (All Terrain Vehicle)?  Perhaps the first distinction that comes to mind is the value of the stolen item.  Criminal law would treat the ATV theft more seriously, since it has greater monetary value.  But a federal court made note of another distinction in the process of upholding the Manifestation Determination made by an ARD Committee in Wimberley ISD.  The court pointed out that a student who is plagued by impulsivity might very well grab that cookie without much thought.  Riding off in someone else’s ATV, on the other hand, requires a bit of stealthy planning.  Therefore, it’s less likely to be a product of impulsivity. 

ARD Committees often discuss impulsivity, especially with students who carry a diagnosis of Attention Deficit Disorder.  The argument is that the student does not think things through, does not anticipate consequences, does not plan.  The ARDC in Wimberley concluded that the student’s theft of the ATV required a level of premeditation that was inconsistent with “impulsivity.”    Members also observed that the district served many students with ADHD, and yet most of them did not steal things.  The ARDC’s conclusion was that this was not a manifestation of disability, nor the result of the failure of the district to implement the IEP.  The parent disagreed, and thus, litigation ensued.

The special education hearing officer ruled in favor of the district and now the federal district court has affirmed that decision.  The district handled this situation well. They had the right people at the meeting, they listened patiently as the student’s advocate engaged in what the court described as a lengthy and hostile cross-examination, they had a solid basis for their conclusions, and they were able to demonstrate that the DAEP would be able to provide an appropriate education to the student for his 45-day assignment.

In Toolbox terminology, this is a Tool #6 case: a Disciplinary Change of Placement.  The student was charged with felony theft. Even though this happened in the summer when school was out, Chapter 37 authorizes DAEP if the district determines that the student’s presence in regular classrooms would be “detrimental to the educational process.”  The district made those findings, properly handled the MDR and successfully defended its decision in the court case. I’m pleased to let you know that Kelly Janes and Jamie Turner of our firm’s Austin office represented the district on this one.  It’s Gloria V. v. Wimberley ISD, decided by the federal court for the Western District of Texas on February 26, 2021. The court’s decision is on SpecialEd Connection at 78 IDELR 96 and the magistrate’s Report and Recommendation is at 121 LRP 8057. 

DAWG BONE: THE DAWG HAS SNATCHED A COOKIE OR TWO…..IT WAS IMPULSIVE.

Tomorrow: T.E.A. turns it around

You may recall the case of the Fort Worth ISD teacher who reached out to President Trump asking him to “remove the illegals” from the district.  This was done on Twitter. The teacher did not understand how Twitter works, and thought that she was communicating privately with the president.

The district terminated the teacher’s employment with the district, but the Commissioner overturned that decision.  The Commissioner did not make a ruling one way or the other on the constitutional issue: was this protected free speech?  Instead, he reversed the board’s ruling because of the way the board handled the recommendation from the hearing examiner. 

The Commissioner outlined the very interesting issue presented by the facts.  You have a teacher on her own time, using her own resources, communicating with an elected official on a matter of public concern.  That’s free speech.  You have a school district with legitimate concerns about the blowback and disruption those communications, which were publicly available on Twitter, would generate in a school district with a large Hispanic population.   Courts apply a balancing test in cases like that. Commissioner Morath describes it this way:

What needs to be weighed is the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.

Having teased us by laying out that very interesting issue, the Commissioner scooted right past it like a running back avoiding a tackle:

However, instead of blazing a new trail in constitutional law by examining this novel question, this case will be resolved based on other issues. (Emphasis added).

The Commissioner then examined how the board handled the recommendation of the independent hearing examiner (IHE).  The IHE’s recommendation included 52 Conclusions of Law, leading to the ultimate recommendation that the teacher’s actions were protected by the Constitution and she should not be fired for this. 

The board rejected that recommendation and fired the teacher.  In doing so, the board rejected 32 of those 52 Conclusions of Law.  It did not adopt any new ones.  What was left, according to the Commissioner, failed to establish any good cause to terminate a continuing contract:

In the present case, Respondent rejected in whole or in part many Conclusions of Law, but it adopted no completely new or partially new Conclusions of Law. This is significant because there is no Conclusion of Law in Respondent’s Decision that finds there is good cause to terminate Petitioner’s contract and there are no Conclusions of Law which are determinations regarding good cause that support the ultimate conclusion that good cause exists to terminate Petitioner’s contract.

That was the decision of T.E.A. on November 25, 2019.  The case is Clark v. Fort Worth ISD,  Docket No. 006-R2-10-2019.

Now the Travis County District Court has reversed T.E.A.’s decision and reinstated the decision of the school board.  The Travis County judge did not issue an opinion that explains the reasoning—just an order that the T.E.A. decision is reversed and the school board’s decision is “reinstated.” This happened on March 23, 2021. 

So the scoreboard so far looks like this:

            IHE:                Teacher should not be fired.

            Board:             Teacher should be fired.

            T.E.A.             Teacher should not be fired.

         District Court: Teacher should be fired.

It’s not over! The next round will be the Court of Appeals.  Stay tuned, Loyal Readers!

DAWG BONE:  TWITTER IS NOT PRIVATE.  I THINK WE ALL UNDERSTAND THAT NOW. Tomorrow: Cookies….ATVs….how are they different?

Charter schools have the opportunity to be creative in what they call themselves, as opposed to our traditional schools which follow the tried and true method of naming the school district after the town it’s located in.  There is one exception to that general rule that I’m aware of: Goose Creek CISD is the rare district named after a body of water rather than a town.  Are there other exceptions?

One charter school operator in Texas set a high standard for itself by calling itself Golden Rule Schools.  To follow the Golden Rule is a mighty fine goal, but when you call yourself by that name you open the door to complaints that you are not living up to your stated goal.  Perhaps Leslie Sharp would make that complaint. 

Ms. Sharp was employed by Golden Rule as a principal for the 2019-20 school year.  She had no contract.  Charters are not required to offer contracts, and so Ms. Sharp was an “at-will” principal.  Just before the start of the 2020-21 school year she was shown the door.  What to do?

Ms. Sharp was not in a position to claim breach of contract, since she had none.  She could not seek a hearing from an independent hearing examiner, because charters are not required to follow that process. So she pursued a grievance.  Her grievance was denied at Level One and Level Two, and then appealed to Level Three.  No decision was made at Level Three, so Ms. Sharp took the matter to T.E.A.

The Commissioner dismissed the appeal, noting that he lacks jurisdiction.   People can appeal the decisions of local school boards to T.E.A. pursuant to Section 7.057 of the Education Code. But that section does not apply to charter schools.  Thus, a swift end to the matter:

The Commissioner does not have jurisdiction to hear appeals of actions or decisions by open-enrollment charter schools. 

Three things are noteworthy here. First, professional educators at charter schools can be employed without a contract, and therefore, without due process protections.  Second, charter school employees cannot obtain relief from T.E.A.  Third, charter schools can have creative and interesting names.

It’s Sharp v. Golden Rule Schools, Inc., Docket No 013-R10-11-2020, decided by the Commissioner on January 26, 2021.

DAWG BONE: CHARTER SCHOOLS ARE DIFFERENT.

The 5^th Circuit issued one of its “unpublished” opinions in Amanda P. v. Copperas Cove ISD.  “Unpublished” is a misleading term.  It’s published.  You can read it. However, it is not going to be published in the Federal Reporter, which is the official source for opinions that lawyers cite and judges rely on for precedent. 

It’s a short opinion in favor of the school district.  Without providing much analysis, the Circuit Court agreed with both the hearing officer and the lower court: the district did not violate IDEA procedures, and provided an education that satisfied the standards for FAPE (Free Appropriate Public Education).  What’s noteworthy about the decision is the substance and the tone of the decision’s one and only footnote:

Amici curiae in this case battle over the impact of the Supreme Court’s decision in Endrew F. ex. Rel. Joseph F. v. Douglas County School District RE-1 (2017), on our four-factor test for evaluating the sufficiency of a child’s program (first articulated in Cypress-Fairbanks ISD v. Michael F.  But this court has already held multiple times that the Michael F. factors align with the interpretation of FAPE outlined in Endrew F.

The footnote goes on to cite cases from Northside ISD, Houston ISD, and Spring Branch ISD, all of which say the same thing: that Endrew F is not a game changer in the 5^th Circuit.  I think the message is: HOW MANY TIMES DO WE HAVE TO TELL YOU THIS?????

The 5^th Circuit issued this decision on March 1, 2021, and it’s published at 2021 WL 794768.  I’m pleased to let you know that Copperas Cove was represented in this one by Jennifer Childress and Bridget Robinson from the law firm of Walsh Gallegos Trevino Kyle & Robinson P.C.  Note the name change!!  Bridget Robinson now represents the R in WGTKR! 

DAWG BONE: 5^TH CIRCUIT TO LAWYERS: WE’RE NOT GOING TO SAY THIS AGAIN!

Tomorrow: Creative names for charter schools.

Tomorrow we make it official, and it’s no April Fools’ joke.  Our law firm changes its name to WALSH GALLEGOS TREVINO KYLE & ROBINSON!  This is due to Bob Russo’s retirement from the firm.  Bob promised to stay in touch as he travels, scuba dives with the grandkids, and takes great photographs.  But he’s retired. So it was time to make the change.  Paige Kyle moves up a notch, and Bridget Robinson gets added to the name.

This is a well-deserved recognition for Bridget, who joined our firm in 1993, bringing with her the desire and ability to lead our litigation section.  She’s a proud graduate of Seminole High School (Valedictorian!), and a 1988 UT Law graduate with experience briefing at a court of appeals, and litigating in the Attorney General’s Office before joining our firm.  She is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization.  Bridget is a lawyer’s lawyer, who has always pushed all of us in the firm to elevate our practice to the highest standards.  I’m very proud to call her my partner, and to see her name added to our firm’s official name.

Congratulations to Bridget Robinson!  And tune in tomorrow to read about Bridget’s latest victory at the 5^th Circuit.

DAWG BONE: WALSH GALLEGOS TREVINO KYLE & ROBINSON P.C.  THAT’S THE NEW NAME.

Tomorrow: 5^th Circuit getting testy?

Our firm is providing a webinar two weeks from today that will be valuable for anyone who regularly attends ARD Committee meetings.  Here are the specifics:

TITLE: FIVE THINGS YOU MUST DO AT YOUR NEXT DIFFICULT ARD

DATE: April 14, 2021

TIME:  10:00 a.m.

PRESENTERS: Elvin Houston and Priscilla de la Garza

I’m curious to see what “five things” Elvin and Priscilla choose to highlight.  They haven’t asked me, but herewith some unsolicited input:

1.  Don’t leave.
2.  Don’t cry.
3. Don’t curse.
4. Don’t roll your eyes.
5. Don’t roll your eyes as you curse and walk out of the room in tears.

But like I said, they didn’t ask me.   

Our firm’s Toolbox Training includes Tool #9: Leadership at the Non-consensus ARD Meeting. That’s what Elvin and Priscilla will be talking about, and I’m sure it will be worth your time.  Sign up at www.walshgallegos.com. 

DAWG BONE: FIVE THINGS YOU MUST DO AT THE HARD ARD: BE THERE!

Tomorrow: Changing the law firm name.

It’s a lot harder to settle a case that’s driven by a cause.  When the case is about money, there is always a place where the parties can come to an agreement.  There is always a number that the defendant will be grudgingly willing to pay and the plaintiff will be grudgingly willing to accept.  But when the case is driven by a cause, by an effort to make a point, it’s a lot harder to come to terms. That’s why the recent SCOTUS case from Gwinnett College in Georgia is likely to lead to more difficult cases for school districts.

The Court held that the plaintiff could continue to pursue his lawsuit even though 1) he was no longer a student at the college; 2) the policies that the suit challenged had been revoked; and 3) he was not seeking money damages for any injury.  In light of those three factors, Chief Justice Roberts considered the case moot, but all of the other eight justices disagreed. The plaintiff was still seeking “nominal damages” and that was enough to keep his case alive.

The media reports on this case have emphasized the oddity of the Chief being the lone dissenter.  Perhaps this is no longer “the Roberts Court.”  But I think there is another newsworthy aspect to this case.  If plaintiffs can keep a case alive by seeking “nominal damages” public school districts are likely to see more litigation in support of a cause.  Justice Roberts puts it this way:

Today’s decision risks a major expansion of the judicial role.  Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes.  Going forward, the Judiciary will be required to perform this function whenever a plaintiff asks for a dollar.

Justice Roberts can be a bit snarky:

The Court sees no problem with turning judges into advice columnists.

This decision will open the door to suits from students who have graduated or moved out of district, challenging policies that are no longer in effect, as long as they seek nominal damages.  Justice Roberts points out that defendants will presumably be able to end such disputes by giving the plaintiff the “nominal damages” they seek, but he thinks this is not a good outcome:

The scope of our jurisdiction should not depend on whether the defendant decides to fork over a buck.

That’s the Gwinnett College case. And it will likely be forever known as “the Gwinnett College case.” That’s because the actual name of the case, Uzuegbunam v. Preczewski does not trip lightly over the tongue.  Whatever you want to call it, the case was decided by The Supremes on March 8, 2021.

DAWG BONE: NOMINAL DAMAGES CAN KEEP A CASE ALIVE.

Tomorrow: Toolbox Tuesday!!

There have been three stories in the local media of late, about three different school districts where   parents have objected to a book in the school library or included in the curriculum.  What to do when that happens?

The first thing to do is to consult Policy EF and EF Local.  In the Local version you will probably find a carefully worded description of a carefully crafted process that could lead to an appeal to the school board.  When it reaches the board, you may run into some dangerous attitudes.  I’ve heard a few board members over the years express the view that “it’s our library. We will decide what goes into it.”  But it’s not that simple.

 Many policies include this caution:

The major criterion for the final decision on challenged resources is the appropriateness of the resource for its intended educational use. No challenged instructional resource shall be removed solely because of the ideas expressed therein. 

There are First Amendment issues when schools consider removing books from the library or the curriculum.  Take a look at the EF Legal and you will see this:

Students’ First Amendment rights are implicated by the removal of books from the shelves of a school library.  A district shall not remove materials from a library for the purpose of denying students access to ideas with which the district disagrees.  A district may remove materials because they are pervasively vulgar or based solely upon the educational suitability of the books in question.

That language comes from a Supreme Court decision in 1982: Board of Education, Island Trees School District v. Pico.  So it’s not as simple as “It’s our library and we can decide what goes into it.” 

DAWG BONE: COMPLAINT OVER A BOOK?  CHECK OUT POLICY EF.

I don’t know how I missed the story behind the case of Jane Doe v. Dallas ISD. It’s been all over the newspapers and is featured in a lengthy story in Sports Illustrated.  The story is about the 25-year old who passed himself off as a 17-year old, rendered homeless by Hurricane Harvey.  Based on that, and his assertion that all of his records were lost, Dallas ISD let him in to school, despite the absence of the customary paperwork. After all, that’s what the McKinney-Vento Act requires. 

The student transferred from one Dallas high school to another where he became a star basketball player. The scam unraveled when a coach from Mesquite recognized him as one of his former players, one who was way too old to still be playing high school hoops. The Mesquite coach tipped off the Dallas coaches, and the district took corrective action.  The student was charged with tampering with a government record and indecency with a child.  He was convicted and given a sentence of six years’ probation.

What might have been a colorful story, illuminating the unintended consequences of the legal protection that homeless students have, became a more serious matter with that “indecency with a child” charge. That’s where Jane Doe comes in.  She alleges that Mr. Sidney Bouvier Gilstrap-Portley groomed her 14-year old daughter for a sexual relationship and harassed her, leading to the girl’s embarrassment, humiliation, and transfer to another school.  She blames the school district for this, alleging that they should have taken note of all the “red flags” about this guy with the manly build and “excessive tattoos.” 

The court dismissed the principal from the suit, but refused to dismiss the suit against the district.  This was a preliminary ruling based exclusively on the facts as alleged in the suit. The court held that the allegations plausibly alleged the five critical facts that the plaintiff would have to prove:  1) the district knew of the sexual harassment; 2) the harasser was under the school’s control; 3) the harassment was based on sex; 4) the harassment was so severe, pervasive and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit; and 5) the district was deliberately indifferent to the harassment.

The most difficult thing for plaintiffs to prove in a Title IX case of sexual harassment is the fifth factor—deliberate indifference.  Here’s why the court held that the alleged facts, if proven to be true, could support a finding of “deliberate indifference:”

Plaintiff asserts that DISD ignored the numerous “red flags” regarding Gilstrap-Portley.  In addition, the Complaint alleges that DISD failed to verify the accuracy and completeness of Gilstrap-Portley’s records prior to enrolling him and failed to conduct a mandatory home visit to Gilstrap-Portley’s residence.

But federal law expressly requires schools to enroll students who are homeless immediately “even if the child or youth is unable to produce records normally required for enrollment, such as previous academic records, medical records, proof of residency, or other documentation.”  See 42 U.S.C. 11432(g)(3)(C).  As this case goes forward, the plaintiff will likely have to focus not on that initial enrollment, but rather, what happened after that.

Take a look at your school’s policy about serving students who are homeless.  It’s at FDC in the TASB Policy Manual.  The Legal policy tracks McKinney-Vento and the Local may add a few wrinkles.  Among other things, these policies require the appointment of a homeless liaison officer. Do you know who that is? 

DAWG BONE:  FIVE FACTORS IN A TITLE IX SEXUAL HARASSMENT CASE.

Tomorrow: Fighting over books…

If the principal had relied on grammar and spelling errors when she censored the 4^th grader’s essay she might not have ended up in federal court.  The teacher assigned students to write an “essay to society” on any topic of their choosing. The essays would be compiled into a book and sent home to the parents.  Here is the essay that sparked the lawsuit, as set out verbatim in the 4^th Circuit’s opinion:

To society,

I don’t know if you know this but peoples view of Tran’s genders is an issue.  People think that men should not drees like a women, and saying mean things. They think that they are choosing the wrong things in life.  In the world people can choose who they want to be not being told that THEIR diction is wrong.  I hope people understand that people can hurt themselves from others hurting their feelings.  People need to think before they speak because one word can hurt someone’s feelings.  We need to fix this because this is getting out of hand!

Rather than taking the safe, diplomatic option, the principal rejected the essay because of its content.  The principal deemed the essay on this culture war issue to be not age-appropriate.  The parents sued the principal in her individual capacity, claiming that she infringed on the little girl’s right to free speech. 

The court ruled for the principal, dismissing the case.  First, the court held that the essay amounted to “school-sponsored speech.”  Citing the Supreme Court’s ruling in Hazelwood School District v. Kuhlmeier (1988), the court noted that “school-sponsored speech” could be censored by school officials as long as the reason for the censorship is “reasonably related to legitimate pedagogical concerns.”   This is why school officials retain a good deal of control over yearbooks, school newspapers, halftime shows by the band, and the selection of the one-act play.  Expressive activity is considered “school-sponsored” if “students, parents, and members of the public might reasonably perceive [them] to bear the imprimatur of [a] school.”  This booklet of essays was deemed to be school-sponsored because it was being compiled and sent out to all parents of 4^th graders as an example of the good work done by the students:

It would be reasonable, then, for the students’ families to view the essay booklet as bearing the imprimatur of Anderson Mill Elementary School and the School District.

As far as a “legitimate pedagogical concern” the principal’s mention of age-appropriateness did the trick:

…it cannot be denied that maintaining the age-appropriateness of school-sponsored expressive activities is a pedagogical concern that passes muster under Hazelwood.

The court noted that “school-sponsored” applies to more than the major productions of the school, like the yearbook. It also includes any activity that can be “characterized as part of the school curriculum” and “are supervised by faculty members and designed to impart particular knowledge or skills to student participants.”

Finally, the court noted that this was not a case of viewpoint discrimination.  The court viewed the principal’s actions as based on the subject matter, not the position the student was advocating.  If some other student had submitted an essay that criticized the LGBTQ movement the principal would have presumably rejected that one as well. 

This one is Robertson v. Anderson Mill Elementary School, decided by the 4^th  Circuit Court of Appeals on March 2, 2021.  We found it at 2021 WL 786631.

DAWG BONE: BUT THE SAFE COURSE IS TO RELY ON GRAMMAR AND SPELLING.

Tomorrow: The latest Jane Doe case….