At home on a Friday night, H.K. set up a fake Instagram account that appeared to belong to his biology teacher. The account was, at first, “benign” according to the court. But when H.K. told his two buddies about it as they played online games late at night, things escalated. H.K. gave his friends access to the account and they posted pictures and words that were vulgar, threatening, sexually inappropriate, and harassing. Moreover, they targeted an English teacher, a coach, and a student along with the biology teacher. The court’s opinion never tells us what happened to the other two students, but here’s what we know about H.K.’s involvement:

He set up the fake account. He gave his friends access to it. He monitored it and knew what they were posting. He joked with his friends about it and chose not to delete the posts when he could have. He accepted requests from 18 others to follow the account.

This did not last long. By Monday morning the biology teacher was aware of the account. He asked the principal for help. The principal launched an investigation and quickly identified the three boys who were responsible. Meanwhile, H.K. deleted the entire account during his lunch break.

The principal immediately suspended H.K. for five days, but after completing her investigation, she recommended expulsion. The superintendent conducted a hearing and chose to go with a lighter penalty—a ten day suspension. Still, that was enough to provoke H.K’s father to sue the district, the superintendent and the principal, claiming that the school was infringing on his son’s First Amendment rights.

Nope. The 6th Circuit had little trouble distinguishing this case from the Case of the Foul-Mouthed Cheerleader decided by the Supreme Court last year. That case (Mahanoy Area School District v. B.L.) involved off-campus F-bombs on Snapchat in a brief teenage temper tantrum. The Foul-Mouthed Cheerleader did not threaten or harass anyone and only made vague accusations of poor judgment by the cheerleading coaches. In contrast, H.K’s fake Instagram account “involves serious or severe harassment of three teachers and a Freeland student.”

What about the fact that H.K. did not actually write or post the more troublesome content? The court put it this way:

Like the First, Fourth, and Ninth Circuits, we hold that when a student causes, contributes to, or affirmatively participates in harmful speech, the student bears responsibility for the harmful speech. And because H.K. contributed to the harmful speech by creating the Instagram account, granting [the other two boys] access to the account, joking with [the other two] about their posts, and accepting followers, he bears responsibility for the speech related to the Instagram account.

It's Kutchinski v. Freeland Community School District, decided by the 6th Circuit on June 2, 2023. It’s cited at 69 F.4th 350.

DAWG BONE: CAUSED, CONTRIBUTED TO, AFFIRMATIVELY PARTICIPATED IN: REMEMBER THOSE WORDS.

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

Tomorrow: Toolbox Tuesday!!

You can expect that some parents will deliver a lengthy form to the school at the beginning of the 2023-24 school year entitled Notice and Declaration of Parental Rights. It happens every year. It happened in Richardson ISD at the start of the 2021-22 school year, and later became the subject of a decision from the Commissioner.

The parent delivered the NDPR to the principal of an elementary school. If you Google “Notice and Declaration of Parental Rights” you will find a 16-page form promulgated by the Texas Justice Foundation, a non-profit organization based in San Antonio. The form includes this:

I hereby exercise my right to remove my child temporarily from any and all class or other school activity that presents, covers or discusses the following topics or activities….

That list of “topics or activities” includes 22 topics with two fill-in-the-blanks added.

The parent alleged that the school violated her parental rights when the teacher showed a Disney movie to the class without parent permission. The movie was “Turning Red” and it was rated PG. The parent took her complaint through the system and was heard by the board. The board acknowledged that the elementary school had a policy requiring parent permission for showing a PG-rated movie. The board reminded the staff of the policy and counseled the teacher, who apologized to the parent for the error. That was not good enough for the parent, who then appealed to the Agency.

T.E.A. dismissed the case in its entirety due to lack of jurisdiction. The Commissioner has jurisdiction to hear cases alleging that a decision by a school board has violated “the school laws” of Texas. That means a petitioner has to cite a specific section from Title I or Title II of the Texas Education Code. The closest the parent came in this case to invoking jurisdiction was in the allegation that the district had violated T.E.C. 26.010, which gives parents the right to have their children removed from classes or activities the parent objects to on religious or moral grounds. The parent argued that the NDPR form put the teacher on notice that films like “Turning Red” should not be shown.

That argument did not work. The Commissioner emphasized that 26.010 requires that parents give written notice of their objections to the teacher. The parent gave the NDPR to the principal. Key Quote:

Because Petitioner admittedly did not provide the NDPR to the student’s teacher, she did not comply with Section 26.010(a)’s requirements and cannot establish a potential board violation of Section 26.010(a).

The other argument was that the NDPR was a “legally binding contract” that the district violated. The Commissioner did not express an opinion about that dubious proposition, but simply noted that even if it was a contract, it wasn’t the type of contract the Commissioner has jurisdiction over. The Commissioner hears appeals over violations of a written employment contract.

The parent was on firm ground in asserting that the teacher violated the elementary school’s policy about showing PG movies, but the Commissioner does not have jurisdiction of a claim that a teacher violated the school’s policy. The petitioner has to tie this into “the school laws” of Texas, and the parent failed to do that. Moreover, the Commissioner noted that the district had acknowledged the error and taken corrective action that included the teacher’s apology.

Some teachers and/or principals are sure to receive the latest version of the NDPR before school starts. It would be a good idea to have a conversation with the parent who produces that form to see if you can get more clarity on exactly what activities the parent wants the child to be exempted from. We need to respect the rights that Chapter 26 of the T.E.C. provides to parents, but this form is what the lawyers would describe as overly broad and hopelessly vague. If I were the teacher presented with the NDPR I’d be fearful of teaching anything beyond simple arithmetic. I think simple arithmetic would be safe. But there may be some who read sexual connotations into terms like “multiplication tables.” So who knows….

It's Parent v. Richardson ISD, Docket No. 002-R10-10-2022, decided by the Commissioner on April 24, 2023.

DAWG BONE: WATCH OUT FOR THE NDPR.

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

Dear Dawg: Long time school librarian here, trying to make sense of H.B. 900 and what I need to do to make sure we are in compliance. I’m sure you know about the controversy, Dawg. We have folks who think our school libraries are smut factories, and now our legislators have taken action to fix this problem. I’ve worked hard to keep inappropriate materials out of our libraries, and will continue to do so, but I am a little puzzled by some of the new terminology I’m hearing. What makes a book “sexually explicit”? What makes it “sexually relevant”? I understand that our books are going to be rated based on these terms. Can we put up a curtain in the library, to divide it into these two sections:

SEXUALLY RELEVANT BOOKS SEXUALLY IRRELEVANT BOOKS

Is there a better way to handle this? MARIAN THE LIBRARIAN NEVER HAD TO DEAL WITH THIS!

DEAR MARIAN THE LIBRARIAN NEVER: The good news for you is that you will not be the one to rate the books in your library. H.B. 900 passes this hot potato to the vendors who sell the books to the schools. They will have to identify any material that is “sexually explicit” and they may not sell stuff like that to a school library. Moreover, they have to issue a “recall” notice, like a car manufacturer after a problem with the exhaust system is discovered. If the vendor identifies “sexually explicit” materials that they previously sold to you and that is in “active use” you can expect a “recall notice.”

I hesitate to provide the full definition of “sexually explicit” material in this family friendly publication. But it has to be pretty nasty. It has to describe, portray, or depict sexual conduct in a way that is “patently offensive.” This has to be based on a “contextual analysis” recognizing that there may be “contextual characteristics that may exacerbate or mitigate the offensiveness of the material.”

“Sexually relevant” material is defined as material in any format that “describes, depicts, or portrays sexual conduct” as that term is defined in the Penal Code. Again, I hesitate to be too graphic with the legal terminology, but suffice it to say that there will be a lot of material that fits this definition. If a single act of sexual intercourse is described, depicted or portrayed on one page of a 350-page novel, the entire book is “sexually relevant.” This leads to a lot of questions. What if the act is not described, depicted, or portrayed, but is hinted at…suggested…left to the reader’s imagination?

Like when Rhett picks up Scarlet and carries her up that staircase at Tara. We all know what’s about to happen, don’t we? And when we see Miss Scarlet brushing her hair the next morning, we know what just happened…..don’t we?

So how bout that? Sexually relevant? There are sure to be many lively debates over “sexually relevant.”

We don’t think a curtain separating the material is a good idea, but you are going to have to develop some method of restricting student access to the “sexually relevant” stuff.

There is a lot more to H.B. 900 and I’m sure we will dive into this one in detail at the Back to School tour this fall (www.ed311.com for registration). It will take quite a while before we get standards from the Texas State Library and Archives Commission, regulations from T.E.A., and the ratings from the vendors to help us comply with this Brave New World. (Sexually relevant? If I remember correctly, I think yes).

In the meantime, the most important thing to do is to know your school policy and follow it. Your school board has adopted a policy addressing parent complaints about library materials. Find it. Know what it says. Follow it.

DAWG BONE: IF A PARENT COMPLAINS, SAY “WE HAVE A POLICY ABOUT THAT. LET’S TAKE A LOOK AT IT.”

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

Tomorrow: have you been presented with a Notice and Declaration of Parental Rights?

I’m guessing that the lawyers who represented S.B. thought they had a strong case. In two separate incidents their client, an 11-year old girl with autism, was slapped on the hands by a school employee. The lawyers cited a Louisiana state law that provides that “no form of corporal punishment shall be administered to a student with an exceptionality.” The law specifically includes “slapping” a student and identifies autism as an “exceptionality.”

Did the school employees violate state law? It sounds like it. But the case was brought in federal court citing violations of Section 504, the ADA and the Constitution. The lower court dismissed all claims and the 5th Circuit has now affirmed that decision.

With regard to the constitutional claims the court cited its own previous rulings that have consistently dismissed cases like this. In fact, the court has dismissed cases involving far more severe physical punishment of a student. The rationale goes like this: if state law provides a remedy for this type of conduct, you have to bring your case in state court. Corporal punishment can violate a student’s constitutional rights if it is administered in a way that is “arbitrary, capricious, or wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive to learning.” But as long as the injured student can obtain recourse in state court, there is no constitutional claim to be made.

The 504 and ADA claims were dismissed due to the absence of any indication that the school employees slapped the little girl’s hands because of her disability. The court concluded there was no indication that the student suffered discrimination because of her disability. Instead, the court described the two incidents as involving a student who “behaved violently toward her instructors, who in turn resorted to physical discipline.”

Incident One happened when the student refused to pick up puzzle pieces and kicked at the “behavioral technician” who was helping her. The technician “slapped S.B.’s wrists and scolded her for kicking, stating ‘No, ma’am! No kicking.’”

Incident Two was similar. The student pinched the neck of the “behavioral technician” who then “grabbed S.B.’s hand and slapped the top of it, saying, ‘We do not pinch our friends!’”

The court noted that there were no facts plead from which one could infer a discriminatory motive.

It’s S.B. v. Jefferson Parish School Board, decided by the 5th Circuit on May 30, 2023. The opinion is “unpublished” in the Federal Reporter but can be found at 2023 WL 3723625.

DAWG BONE: NOT ALL CASES BELONG IN FEDERAL COURT.

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

Tomorrow: just what does “sexually relevant” mean?

On Toolbox Tuesday here at Daily Dawg HQ we normally focus on a court case that illustrates one of the “tools” in our firm’s Toolbox. The Toolbox is about the options school administrators have in the discipline of students with disabilities. Today we take a slightly different approach, focusing on a new state law that applies to all students.

H.B. 114 adds the following to Chapter 37 of the Texas Education Code:

Subject to the requirements of Section 37.009(a), a student SHALL be removed from class and PLACED IN A DISCIPLINARY ALTERNATIVE EDUCATION PROGRAM….if the student:

(2) commits the following on or within 300 feet of school property…..or while attending a school-sponsored or school-related activity on or off of school property:

(c-2) POSSESSES, USES, SELLS, GIVES, OR DELIVERS TO ANOTHER PERSON AN E-CIGARETTE, as defined by Section 161.081, Health and Safety Code.

Got that? Possession of a vaping device means mandatory DAEP. Oh boy. By the way, that definition of “e-cigarette” in the Health and Safety Code includes a “component, part, or accessory” for the device, even if sold separately.

This piece of news was not greeted with enthusiasm by the principals and assistant principals who assembled for the annual ED311/TASSP conference last month. I got the impression that we may be seeing a big increase in the DAEP population. In anticipation of that, H.B. 114 provides that if the DAEP is “at capacity” certain students can be sent to ISS instead. Those would be the students whose offense involves marijuana, THC, e-cigs, alcohol, or abusable chemicals.

Presumably it will be up to local districts to decide when the DAEP is full and also up to local administrators to determine the length of placement in DAEP for possession of a vaping device.

One more thing is worth noting, and it’s well known to you Loyal Daily Dawg Readers. “Mandatory” placement in DAEP is a misleading term. For students with disabilities the ARD Committee must meet and make a manifestation determination prior to a removal to DAEP that amounts to a change of placement. I’m dubious about disabilities directly causing a student to vape, but I’m sure you will be confronted with that argument.

Lots of work to do on that Student Code of Conduct! Or you might want to look over your DOI plan and see if this new law is one you’d like to address in the DOI. We can help with that at WG. Let us hear from you.

DAWG BONE: BIG NEWS: MANDATORY DAEP FOR POSSESSION OF A VAPING DEVICE.

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

Tomorrow: does a violation of state law get you into federal court?

Whew! That two-week break from Daily Dawg Duties went fast. We’re back at it now, and will continue with Monday-Friday entries from now until the December break.

The Big News today is about what’s happening tomorrow. Tomorrow at 10, Jameson Baker and Haley Turner will be doing our firm’s webinar to highlight the major changes that have emerged from the 2023 legislative session. It’s not too late to sign up for what is sure to be an informative and helpful session. Go to www.walshgallegos.com.

We have lots of changes to discuss. You may have already heard about new laws regarding student discipline, safety protocols, library books…the list goes on and on. Haley and Jameson will focus on the practical implications of the new laws. Hope you can join in on this one.

The other thing going on tomorrow is our firm’s annual reception for the TCASErs. At Fleming’s in downtown Austin from 5:00 to 6:30. I won’t be there, but the firm will be well represented. If you are in Austin for TCASE, please come on by for hospitality!

DAWG BONE: AND THEY ARE NOT DONE! SPECIAL SESSIONS CONTINUE!

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

Tomorrow: Toolbox Tuesday!!