Of the ten “tools” in the Toolbox, Tool #4 is used the least.  It takes a rare set of circumstances to justify the use of Tool #4: An Expedited Hearing. You have to have 1) a perception that retaining the student in the current placement would be dangerous; 2) that perception being based on behavior that is a manifestation of disability; 3) no agreement with the parents as to a change of placement; and 4) no use or possession of drugs or weapons and no infliction of serious bodily injury.  When all of that comes together, the school can seek an “expedited hearing” before a special education hearing officer (note: not a district administrator), or an injunction from a local judge.  The school would be seeking an order to keep the student in some placement other than the one called for by the IEP, at least for a period of time.

The Hope Township in New Jersey did not seek such a hearing, and the court held that this was a denial of FAPE authorizing an award of compensatory services. Rather than seeking an expedited hearing, the school unilaterally removed the student from his current placement without parental agreement. For 17 school days, the student received no services at all.  The court held that this was a denial of FAPE.

In other words, the school district did not use Tool  #4 when it should have. 

There are a lot of extenuating circumstances in this case. The student was new to the school district and came in with behavioral issues far more serious than the school was told. The hearing officer and the court noted that the parent was less than candid about the student’s condition, and the previous school failed to forward some of the important records.  Moreover, Hope Township did not sit on its hands during those 17 days, it was “scrambling” to try to find a good placement for the student.  But meanwhile, the school provided no services. 

In the dry, cold record of the legal proceedings it looked like the exact type of thing that the Supreme Court emphatically said schools could no longer do: unilaterally removing a student with a disability from school. The case is Christine C. v. Hope Township Board of Education, decided by the federal district court in New Jersey on February 2, 2021.  We found it on Special Ed Connection at 121 LRP 4760. 

DAWG BONE: FAILURE TO USE TOOL #4 WHEN YOU CAN MAY BE A DENIAL OF FAPE.

Tomorrow: Immunity from suit; immunity from liability. Not the same thing.

If you think about the two factors that determine a student’s eligibility for special education services, you can see that your students fall into four general categories.  To be eligible under IDEA the student must have a disability. And the student must, as a result of the disability, require specially designed instruction (SDI). Thus with these two factors we can classify all students into four groups as follows:

	NO DISABILITY	HAS A DISABILITY
DOES NOT NEED SDI	I   GENERAL ED   Strengths/Weaknesses   May have conditions that do not disable	II   504 Substantially limited in a major life activity
NEEDS SDI	III   AT RISK   ELL SLOW LEARNERS WBFWR	IV     SPECIAL EDUCATION   IDEA ELIGIBLE

 Note:   SDI means “Specially Designed Instruction.”

 WBFWR means "Way Behind For Whatever Reasons"

To make sense of this, you have to take the term SDI in its dictionary definition, rather than the legal definition which is tied to IDEA.  If you think of the dictionary meaning of the terms, I think you will agree that English Language Learners, slow learners, and all those kids “at risk” for a variety of reasons are in need of something special by way of instruction.  Thus Quadrant III students need special help, but not due to a disability. 

That’s all for today. I hope you find it a useful way to think about things.  Might be good for a discussion at a faculty meeting.

DAWG BONE: TWO FACTORS: FOUR QUADRANTS.

Tomorrow: a rare Tool #4 case for Toolbox Tuesday!

Most school districts in Texas have adopted a policy that warns employees that they can face disciplinary consequences if their use of electronic devices interferes with their ability to do the job effectively.  The most interesting case that hinges on this policy is the famous “nude selfie” case. 

This started when a principal took a racy picture of herself, using her own cell phone in the privacy of her own home.  She texted it to her husband, who, we learn from the court’s opinion, was toiling away in the oil fields many miles away.  Thus: a gift from wife to husband. A thoughtful and kind gesture.  She didn’t show it to anyone else, and didn’t post it on social media.  But someone else did. 

The case never reveals who hacked into the woman’s account and disseminated what was meant to be the private communication from wife to husband. But it did get disseminated, and the board was concerned that the middle school principal would forevermore have a hard time being effective after students, teachers, and parents had seen the picture.  The superintendent recommended termination of her employment, and the board did just that. 

I think fair minded people can see both sides of this case.  The board wants the principal to be effective. Anything that gets in the way of that, regardless of whose fault it was, is important.  On the other hand, the principal did nothing wrong here. Is it fair that she be fired because she was the victim of an illegal hack of her phone?

Perhaps that’s why the case bounced back and forth so much.  Since this was a termination case, not a nonrenewal, the principal was entitled to a hearing before an IHE—Impartial Hearing Officer. That’s where the back-and-forth began. It went like this:

*The IHE sided with the principal, and recommended that she be reinstated.

*But the board rejected that, concluding that she had lost her effectiveness and should be terminated.

*The Commissioner of Education agreed with the board. 

*The state district court judge sided with the principal.

*The Court of Appeals went with the board. It upheld the decision of the board and of the Commissioner.  And that was the end of the litigation. The principal was terminated.

The decision of the Court of Appeals was unanimous among the three judges, but one of them, Justice Leticia Hinojosa, filed a concurring opinion that is worth quoting as an epilogue of sorts to this interesting case. She wrote:

This case presents a unique scenario whereby the malicious acts of a third person resulted in a school district’s policy decision that its employee’s effectiveness was impaired. The result is admittedly harsh, but we must respect ECISD’s determination in this regard.  We are now faced with the reality of an “always connected” society with rapidly evolving technologies. It is incumbent upon school districts in this State to continue to review and develop their policies to reflect this reality and to do so in ways that protect educators from the malicious acts of others. 

It’s Edinburg CISD v. Esparza, decided by the Court of Appeals for Corpus  Christi-Edinburg on March 19, 2020.  It’s at 603 S.W.3d 468.

DAWG BONE:  SO BE CAREFUL WITH THOSE CELL PHONES!!

Destiny Cano alleged in her lawsuit that she was injured when she was ordered to attempt a particularly difficult stunt during dance team practice.  Among other legal theories, her suit alleged that the district violated Title IX. The court did not see it that way.

As all of you Daily Dawg readers know, Title IX is about sex discrimination.  The plaintiff struggled to explain how her unfortunate injury was the result of intentional discrimination against girls.  The plaintiff repeatedly pointed to the football team, alleging that the boys on the team had better equipment and better coaches than the girls on the dance team. However, the court did not find this to be the proper comparison.  The court noted that “there are myriad differences between football and the dance team besides the gender of the majority of each activity’s participants.”  Key Quote:

Title IX liability does not arise based solely on the fact that different sports teams might require different treatment based on the unique training, safety, performance, and other specific factors related to each.

It’s conventional wisdom that Texans care more about high school football than any other extracurricular activity.  We love the band, the cheer squad and the dance team.  We love our basketball teams—both of them.  But football still holds a special place.  However, none of that conventional wisdom shows that the school cares more about injuries to the boys than the girls. The court noted that the plaintiffs conclusory statements failed to allege genuine facts showing any sort of discrimination.

The case is Cano v. Harlandale ISD, decided by the federal court for the Western District of Texas on December 16, 2020.  It’s published at 2020 WL 7385843.  I’m pleased to let you know that Harlandale was well represented in this one by Craig Wood and Katie Payne in our firm’s San Antonio office. 

DAWG BONE:  TITLE IX CASES REQUIRE PROOF OF FACTS THAT SHOW INTENTIONAL DISCRIMINATION BASED ON SEX.   

Tomorrow: the denouement of the nude selfie case.

Please be sure your school board members are aware of Governance Camp, Powered by Student Voice which begins today.  This TASB-sponsored annual event provides a great opportunity for trustees to get training, interact with others, and get inspired by the next generation of educational leaders. That’s what “Powered by Student Voice” is all about. This conference provides a wide variety of presentations by professionals, including several on legal issues, but it also incorporates  voices of today’s students. 

In fact, for our firm the highlight of the conference will be the Saturday morning (March 6) panel of student scholarship winners, moderated by my law partner, Paula Maddox Roalson. Paula has interviewed the four scholarship winners (Austin ISD, Beeville ISD, Schulenburg ISD and Seguin ISD) and those interviews will be shown at the Saturday morning panel discussion.  We’re very grateful to be able to sponsor this conference by funding these scholarships. 

You can sign up with an email to registrar@tasb.org.  Trustees who can’t attend this week will be able to view the sessions for 30 days thereafter. 

One more thing: the conference will provide a Zoom with the Dawg opportunity on Thursday evening, March 4, 7:30 to 8:30. Hope to see some of you and/or your board members. 

DAWG BONE:  GOVERNANCE CAMP—NOT TO BE MISSED.

Tomorrow: Is the dance team comparable to the football team?

In our firm’s Toolbox Training, we focus attention on a 1988 SCOTUS decision in which the Court declared that Congress had intentionally “stripped” school administrators of certain powers.  But not all power. It was the “unilateral” exercise of power that was taken away.  In that same case, the Court gave its approval to the federal regulation that gave “unilateral” power to principals to remove a student from the placement called for by the IEP for up to ten school days in the year.  So it would be accurate to say that principals retained “unilateral” power when dealing with those ten days. In the Toolbox, we call this Tool #7: The FAPE-Free Zone. 

As of 1988, then, school administrators had “unilateral” power to remove students from the IEP placement only for those ten days.  Anything beyond that would require the approval of others.  Things have changed a bit since then.  When Congress reauthorized the law, it decided to restore “unilateral” power to principals in three “special circumstances” cases.  If the offense was based on drugs, weapons, or the infliction of serious bodily injury, the principal could order a student’s immediate removal to an interim, alternative setting for up to 45 school days.  In the Toolbox, we call this Tool #5: Special Circumstances Removal.

Those who have gone through the Toolbox Training understand that principals can unilaterally order a student’s removal by using either of these two “tools.” Any removal that does not involve Tool #5 or Tool #7 requires approval of the ARD Committee, or a judge, or a hearing officer, and will be subject to a “stay put” rule. 

I hope that piques your interest in our Toolbox Training.   Right now I’m doing these trainings by Zoom, but I think we’re getting close to being able to meet in person. Let me know if you are interested.

DAWG BONE:  YOU PRINCIPALS ARE NOT POWERLESS, BUT YOUR UNILATERAL POWERS HAVE BEEN CLIPPED.

Tomorrow:  TASB Governance Camp

DEAR DAWG:  Snort, here.  Rip Snort. Intrepid Reporter and Friend of the Truth. Dawg, the Serenity Falls community has been rocked by the revelation that we have a person serving on our school board who has a criminal record based on prostitution.  A hooker on the board, Dawg!!  This started as a rumor, expanded to multiple social media posts, and has now been confirmed through Your Intrepid Reporter’s in-depth investigation.  Ms. Downyshanks is now a respectable member of our community, the mother of two high school students, and currently the president of the Band Boosters. But her conviction for prostitution is a matter of public record, and has now come to light.  I’ve done my research on this, Dawg, and discovered Section 11.066 of the Education Code which reads as follows:

A person is ineligible to serve as a member of the board of trustees of a school district if the person has been convicted of a felony or an offense under Section 43.02(b) of the Penal Code. 

This conviction was a misdemeanor, but it was based on Penal Code 43.02, which is entitled PROSTITUTION.  So how do we go about removing this soiled angel from the board? 

DEAR SNORT: It will have to wait for the next election, Snort.  Please note that the only misdemeanor that makes a person ineligible to serve on the school board has to be based on Penal Code 43.02(b). Note the (b) part, Snort.  Subsection (a) of that statute makes it a crime to offer or agree to accept money for sex.  Sounds like that’s what your board member was convicted of.  But (b) reads as follows:

A person commits an offense if the person knowingly offers or agrees to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another. 

To put this in the language of the street, the hooker can serve on the board.  The john cannot.  Section 43.02(b) applies to solicitation of sex for money, not the consummation of the deal.   Someone should do some research to figure out why the legislature drew this distinction, especially since it has a disproportionate impact on men.  But there it is. So we wish Ms. Downyshanks our best as she continues to serve your community. 

DAWG BONE:  HOOKERS CAN SERVE ON THE BOARD, BUT THOSE WHO PAY THEM CANNOT.   MAKE SENSE TO YOU?  ME NEITHER. 

Tomorrow: Toolbox Tuesday!!

Of the 35 to 40 reasons for possible nonrenewal of contract listed in the policies of most districts, here’s one that leads to interesting hearings:

Failure to maintain an effective working relationship, or maintain good rapport, with parents, the community, or colleagues.

In a hearing based on this reason, the district does not produce evidence of poor teaching or violations of school policy. This one is all about the soft skill of playing well with others. It can be a delicate matter, producing evidence that the teacher has failed to do the things necessary to maintain good working relationships. 

Obviously, we are not going to be loved and respected by everyone, and schools should welcome a diverse set of personalities.  But all employees have the responsibility to offer others basic courtesy and respect so as to maintain good rapport.  It matters.  So when a significant number of parents complain about a teacher’s communication style, that issue needs to be addressed.  When teachers find social media posts from one of their colleagues that are demeaning or rude, the issue needs to be addressed. 

If the failure to maintain good relationships is the basis for a nonrenewal hearing, things can get pretty interesting, especially if the teacher requests an open hearing.  I recall one time when my opposing counsel turned to a packed auditorium (it was about the head football coach) and asked: “Is there anyone who likes this guy who would like to testify?”  One person came forward.

But it’s not about being liked.  No one should be up for a loss of job just because the person is not well liked. It’s about the behavior of the individual.   Does this person do those things that contribute to effective working relationships?  This section of your policy makes it clear that all teachers have the responsibility to maintain effective relationships and reasonably good rapport with others. 

DAWG BONE: IT’S ABOUT KEEPING YOUR SIDE OF THE STREET CLEAN

There are two reasons on the standard list of reasons for possible nonrenewal of contract that produce particularly interesting cases, the kind that might be featured in a made-for-TV movie. Here’s the first one. 

Any activity, school connected or otherwise, that, because of publicity given it, or knowledge of it among students, faculty, or the community, impairs or diminishes the employee’s effectiveness in the District. 

One school district used this as the basis for nonrenewing the contract of a teacher who allegedly had a sexual relationship with a student.  Having a sexual relationship with a student is definitely grounds for the nonrenewal of a contract.  But the district never produced evidence of the relationship.  Instead, in an effort to avoid having students testify about such a sensitive matter, the district produced evidence at the nonrenewal hearing about the widespread publicity, including local TV news.  Everyone in town was talking about it.  Obviously, the argument went, this teacher could no longer be effective. 

The school’s strategy did not work.  The Court of Appeals held that the policy, as written, provided a valid basis for a teacher’s nonrenewal. But the court emphasized the word “activity.”  To rely on this reason the school must produce evidence of some activity that the teacher engaged in that produced the “publicity” and “knowledge” in the community. Without proof of some activity by the teacher, this policy reason could lead to a teacher losing a job based solely on rampant rumors and false reports.  The case is Peaster ISD v. Glodfelty, decided by the Court of Appeals in Fort Worth in 2001.  It’s reported at 63 S.W.3d 1. 

DAWG BONE:  WHAT DID THE TEACHER DO THAT LED TO ALL THAT “PUBLICITY” AND “KNOWLEDGE” IN THE COMMUNITY?

Tomorrow: The importance of good relationships…

As we approach that time of year when districts make decisions about renewal and nonrenewal of teacher contracts, it’s a good idea to review Policy DFBB (Local).  This is where districts list the reasons why a teacher’s contract might be nonrenewed.  When the district informs the teacher of the proposed nonrenewal it must identify the reason or reasons for it, and those reasons must be listed in local policy.  DFBB is where you can find the list.

I don’t think I have ever seen fewer than 35 reasons in a district’s DFBB policy.  I pulled up one district at random and found 38.  Of those 38, however, many are rarely, if ever, used.  Here are a few of the reasons that are most commonly cited, along with some commentary in italics:

1.  Deficiencies pointed out in observation reports, appraisals or evaluations, supplemental memoranda, or other communications; or receipt of an evaluation with an “unsatisfactory” rating in one or more domains or a “below expectations” rating in two or more domains.

That’s pretty broad.  If there are performance problems, surely there is some documentation of “deficiencies pointed out.”  Thus this one is almost always cited as a reason for proposed nonrenewal.

2. Failure to fulfill duties or responsibilities.

As in: this one is a pretty good teacher, but completely messed up the activity funds account.

3. Inability to maintain discipline in any situation in which the employee is responsible for the oversight and supervision of students.

This is the one that came up in the case of the teacher who took the kids to Dick’s Last Resort on the Riverwalk in San Antonio on an overnight school-sponsored trip.

4. Conducting personal business during school hours when it results in neglect of duties.

Everyone has to make a personal phone call on company time sometimes, and people are allowed to sell Tupperware on the side, but you can’t let the side hustle get in the way of your day job.

5. Disability, not otherwise protected by law, that prevents the employee from performing the essential functions of the job.

Disability is protected by law as long as the employee, with reasonable accommodation, can perform the essential functions of the job.

No matter how many reasons your district lists in DFBB it all comes down to one fundamental point: the proposed nonrenewal should be based on job-related, non-discriminatory and non-retaliatory reasons for which there is at least some evidence.  Tune in tomorrow and Friday and we will cite two more reasons that are typically included in the list in Policy DFBB (Local).

DAWG BONE:  JOB RELATED.  NO DISCRIMINATION.  NO RETALIATION.  WE HAVE SOME EVIDENCE. THAT’S THE MANTRA. Tomorrow: what about rumors in the community