While the principal searched for the missing Red Doritos, an eight-year old and a School Resource Officer struggled over a Capri Sun juice box.   This all happened in the principal’s office, where the third grader had been brought because of his misbehavior on the playground.  Just a typical day in the elementary school.  Here’s what happened in the office:

[The boy] continued his temper tantrum—flailing at the officers, screaming that he wanted his “red Doritos,” and trying to escape the office. At one point [the boy] dove under a table and unplugged cords from the wall.  According to [the boy], the officers pulled [him] out from under the table by his feet and ankles.

Obviously, the Red Doritos were pretty important to the boy, so the principal went out on a search mission.  Meanwhile, two SROs dealt with the student:  Baez, (The Veteran) and Santora (The New Guy).  According to the kid, The Veteran, without any provocation, “picked up the juice box and sprayed it on” him.  According to The Veteran, the kid intentionally sprayed the juice box on both officers, at which point The Veteran tried to take it back, and in the struggle, the kid sprayed himself.  The court’s opinion does not tell us what flavor of juice it was. 

This incident alone makes this case a candidate for a Made-For-TV movie, but it gets better. The New Guy had a change of heart:

Nonparty Santora [New Guy] originally corroborated Baez’s [Veteran] version in incident reports.  However, Santora later recanted. In his deposition, Santora testified that, in creating the incident reports, Baez had pressured Santora to present the facts in a light favorable to Baez.  But Santora testified that the juice-squirting incident actually transpired as follows:

From what I saw, Tony [the Veteran] put the straw in.  It looked like he may have taken a sip, I’m not sure.  He gave the juice box to the kid. The kid grabbed it with two hands, started spraying it all over Tony, the desk, slightly me.  Tony grabbed it, ripped it out of the kid’s hands, and sprayed it up and down on the kid’s face. (Emphasis added).

Now here is the test, Readers.  Consider the little boy’s version of events.  Assume that it happened exactly as he said it happened.  Is your conscience shocked?  A student in a public school has a right to bodily integrity.  Previous cases have established that certain types of misconduct by adult school employees violate that right.  Sexual molestation is at the top of that list.  But what about a spray of juice to the face?  The standard in the 6^th Circuit, where this case occurred, is if the “conduct is so brutal, demeaning, and harmful as literally to shock the conscience.”

So waddayathink? Is your conscience shocked?  Let me add one more important factor: the boy was diagnosed with anxiety and ADHD and had been a behavior problem since first grade. 

This court held that it was too close a call to toss the case out.  The SRO’s Motion for Summary Judgment was denied.  Moreover, the court held that the law in this area is “clearly established,” meaning that the SRO was not entitled to qualified immunity. Although there are no known cases involving juice-squirting to the face, the court reasoned this way:

…a reasonable school employee knew or should have known that actions taken with the intent to injure a special education student and without any pedagogical purpose were constitutionally impermissible, even if the specific actions in question—such as juice-squirting—had not previously been held unlawful.

This is Toolbox Tuesday, and so I should point out that none of the ten “tools” involve juice-squirting.  The Toolbox puts the emphasis on positive behavioral interventions via a BIP, especially when a young child is out of control.  As this case illustrates, when the grown-ups also lose control, there can be serious consequences.

It’s Kouider v. Parma City School District BOE, decided by the federal court for the Northern District of Ohio on August 19, 2020.  It’s reported in Special Ed Connection at 77 IDELR 71 (N.D. Ohio 2020).

DAWG BONE:  EVEN IF SQUIRTED, DO NOT SQUIRT BACK.

Tomorrow: Good grades don’t always mean good evidence….

Hey, Loyal Readers, I hope you noticed that last week we told you about a teacher contract nonrenewal case recently decided by T.E.A. in favor of the school district (see Daily Dawg, November 5). The week before that we highlighted how a positive evaluation for a weak employee can hamstring your efforts to improve the staff (see Daily Dawg October 29).   These cases illustrate how important it is for administrators to have the Essential Knowledge and Skills to make tough personnel decisions.

We can help with that. On November 17 our firm offers an on-demand webinar about Employment Contract Decisions.  Attorneys Robb Decker and Leandra Costilla Ortiz will lead the discussion with an emphasis on the practical steps that lead to a defensible decision.  Improving the quality of the staff has a direct impact on the quality of the services you provide to the students, and it’s one of the few things that you have a lot of control over.  School administrators select, develop, and evaluate staff in order to make decisions about retention and nonrenewal.   All of that has legal implications, so I hope you will join Robb and Leandra for this informative and practical guide to the key issues.  Sign up at www.walshgallegos.com, or send an email to info@wabsa.com. 

DAWG BONE: THESE DECISIONS ARE MADE IN THE SPRING, BUT PREPARATION BEGINS NOW.

Tomorrow: The Case of the Red Doritos….

Scrolling through www.texasisd.com recently I came across a story about a school board meeting in which the board would be considering renewing its contract with the Walsh Gallegos Law Firm. The story said that this would enable the district to obtain certain “consolation services” for a set fee. 

I’m sure the reporter meant to say “consultation” services, but the typo got me thinking: maybe this is something our clients would benefit from!  I brought it back to the firm for consideration and it was warmly embraced.  We are, after all, an unusually compassionate, kind-hearted and generous group of badass lawyers.

So I’m pleased to let you know that the Walsh Gallegos firm now offers an additional service: CONSOLATION.  Consider the possibilities:

*The STAAR scores went down;

*The football team sucks;

*Your family cat died;

*Four of your board members hate the other three, and the three hate the four;

*Membership in the group of four and the group of three changes every week;

*You are just sick and tired of being sick and tired of 2020.

We have Consoling Lawyers standing by, ready to take your call and offer CONSOLATION.  We have obtained extensive training on this from Recognized Experts.  Some of the lawyers in the firm took to this easily, while the litigators were slow learners.  But we are all there now.  We now know how to look into your eyes with deep sympathy, to utter wordless noises that convey our sincere concern for your well-being.  You will see our heads incline at exactly the right diagonal to indicate without words: “we hear you, we care.”

Check it out.  Our hourly rates for this new service are….well….they may lead to a need for further Consolation. But we can handle that also. 

DAWG BONE: THANKS TO THE REPORTER FOR THE INSPIRATION!

It’s only November, but it’s not too soon to be thinking about personnel decisions you will be making in the spring.  Today we pass along the story of a nonrenewed contract and how T.E.A. dealt with it.

In a brief opinion, Commissioner Morath upheld the decision of the local school board to not renew a teacher’s contract.  In doing so, the Commish made four key points, none of which are new, but all of which are worth remembering as we move toward the spring. 

WHAT HAPPENED LAST YEAR.  First, the general rule is that whatever happened in prior years cannot be used as the basis to nonrenew this year’s contract.  However, evidence of incidents from prior years can be used to show that the employee had been put on notice of performance standards which the employee later failed to satisfy.  This nonrenewal was largely based on the employee’s consistent failure to address issues through proper channels.   It had happened in previous years, and it happened this year.  At the nonrenewal hearing the district introduced reprimands from prior  years for the limited purpose of showing that the employee had been warned about the importance of using the proper channels.  The Commissioner ruled that this was proper. 

REMEDIATION.  The Commissioner put it plainly: “There is no independent right to remediation.”  Here, the Commissioner noted that the district did give the teacher an opportunity to show improvement with regard to some issues, such as using proper channels. But there were other performance problems that did not deserve remediation, such as unprofessional communication with parents that damaged that relationship. The Commissioner noted that the district “was not required to give Petitioner another chance.”

HOW MUCH EVIDENCE IS ENOUGH?  We know what the law says. The decision of the school board must be supported by “substantial evidence.”  But the use of the word “substantial” brings to mind the line from The Princess Bride: “You keep using that word.  I do not think it means what you think it means.” “Substantial” evidence is not a whole lot of evidence.  The Commissioner tells us that “Substantial evidence is not a high standard.”  It’s just more than a “scintilla” which is a word you will only encounter in court cases and legal textbooks.  A scintilla is a little tiny thing.  Substantial evidence is a little tiny bit more evidence than that.

RETALIATION.  The school district argued that the Commissioner should not even consider the teacher’s complaint of illegal retaliation, since that issue is not addressed in the “school laws of Texas,” where the Commissioner derives his jurisdiction.  That didn’t work.  But fortunately for the district, it marshaled sufficient evidence to show that the contract nonrenewal was based on performance, not the teacher’s reports of alleged wrongdoing to T.E.A.

It’s a straightforward nonrenewal decision based on good testimony and evidence from school administrators establishing the real reasons for the adverse personnel decisions. And I’m pleased to let you know that the district was well represented by Haley Turner and Carlos Alferez from the Walsh Gallegos law firm. Carter v. Copperas Cove ISD, decided by the Commissioner on August 24, 2020, Docket No. 043-R1-07-2020.

DAWG BONE: EASIER TO JUSTIFY A NONRNEWAL THAN A TERMINATION.

Tomorrow: New services from the Walsh Gallegos Law Firm!

When I first read a summary of Thomas v. Varnado it omitted a crucial fact.  The summary said that the student sued the district because the district painted over the painting that he put on his parking space in the school parking lot. First thought: students are not allowed to paint the school parking lot however they want.  What’s the problem here?  Then I read the case, and found out that the school had a policy of allowing seniors to paint their personal parking space in the school lot for a fee of $25. Of course there were some restrictions on what they could paint, but none of those restrictions prohibited a painting of Donald Trump trying to channel his inner Bruce Springsteen:

The painting on [the student’s] parking space portrayed President Trump wearing a stars-and-stripes bandana and sunglasses.

The superintendent ordered the grounds crew to cover it up with grey paint.  Lawsuit.  The court granted an injunction in favor of the student.  The painting of Trump returns. 

The school had its reasons for covering up this painting, but the court dismissed them as inadequate under the standard of Tinker v. Des Moines. The school argued that this year’s election was “particularly contentious” and this painting would only add to that.  The superintendent was sure that the painting would be offensive to African American students. There was an increased risk of vandalism.  There were reports of incidents at schools across the country, sparked by pro-Trump messages.

The judge dismissed all of that:

Ultimately, it is clear that school officials in this case acted based upon “an urgent wish to avoid controversy which might result from the expression.”  Tinker v. Des Moines Independent Community School District.

To justify its decision, the school had to come up with “demonstrable factors that would give rise to any reasonable forecast by the school administration of ‘substantial and material’ disruption.”  The school failed that test.

This case comes from Louisiana. As in all southern states, school districts and courts in Louisiana have had to grapple with the use of the Confederate flag as symbolic speech. In this case, the superintendent cited a prior incident in the school involving the Confederate flag.  The flag sparked a major disruption. The superintendent feared that the painting of Trump would do likewise.  But the court drew a distinction, citing a 5^th Circuit case that arose in Burleson ISD in Texas:

[The student’s painting], while it is certainly a stylized and colorful image, depicts a sitting President of the United States. This is not a case involving a symbol such as a Confederate flag, which has an established meaning as a “symbol of racism and intolerance, regardless of whatever other meanings may be associated with it.”  A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 224 (5^th Cir. 2009). 

It's Thomas v. Varnado, decided by the federal court for the Eastern District of Louisiana on October 9, 2020. We found it at 2020 WL 5993156.

DAWG BONE: IF THEY ARE GOING TO HAVE THIS MUCH TROUBLE, MAYBE THE SCHOOL SHOULD BE CHARGING MORE THAN $25.

Tomorrow: Does an employee have a right to remediation before contract nonrenewal?

We take a break from our customary Toolbox Tuesday to note the special significance of this day.  Today we vote.  Actually, I voted early, as I expect most of you did. This is my 13^th presidential election, and this one will break the tie in my personal win-loss column.  I have voted for the winner six times, and the loser six times.  What will happen tonight?

I vaguely remember the 1956 election, mostly because of Mom’s colorful nickname for President Eisenhower: “Old Bubblehead.”  She did not vote for Ike, but Dad did. Four years later my parents were united, as was my entire Irish Catholic neighborhood. That young fellow from Massachusetts was seeking to be the first president to share our religious and ancestral heritage.  I think there was a Nixon supporter or two in the neighborhood, but I’m not sure.  Sister Mary Holywater had to recruit some kid to play the part of Nixon in our 5^th grade mock debate.  I got to be JFK and I lit into the other kid for being soft on Communism.  Nixon! Soft on Communism!!  Looking back into hazy memory I think I won that debate, but it wasn’t a fair fight. Sister Mary Holywater and all of the Kellys, Sullivans and O’Toole’s in my classroom were on my side.

What I most remember about November 8, 1960, was listening to the radio with Mom as we had breakfast.  There was a report from a tiny hamlet in New Hampshire named Dixville Notch, which had a tradition of opening the polls one minute after midnight so that they could be the first to report their results.  The man on the radio reported: Nixon 9—Kennedy 0. 

What?!?!?!  I looked to Mom in panic: “We’re behind!!”  She seemed undisturbed. “There are a lot more votes to be counted.”  Indeed there were.

Let us all be grateful for living in a country where we do get to choose our leaders.  Let us offer thanks to the poll workers, both paid and volunteer, who enable our elections to take place.  Let us all hope that we can come together as a  more united America after this most divisive election season.

DAWG BONE: HOPING MY RECORD MOVES TO 7-6 TONIGHT

Tomorrow: Paint the parking space

Everyone wants the public school to reflect our values.  But we don’t agree on our values.  Thus it is inevitable that the public school becomes Ground Zero in our culture wars.  School board members, superintendents, principals, and other school leaders are bashed from the left and clobbered from the right.  We fight over what to teach, which student groups are allowed to exist, what historical figures we honor, and how we navigate our society’s rapidly evolving views on gender. 

Thus it is not surprising that the ACLU would push the public schools to adopt gender neutral dress and grooming codes.  That would be consistent with the ACLU’s agenda, and when they have a court case that supports their position, they will want to make sure you know about it.  Thus….a letter from the organization to 477 school districts about dress codes. Did you get one?  If not, ask your neighboring district. 

It is also not surprising that Texas Values would push back from the other side.  This advocacy organization describes its mission as “to preserve and advance a culture of family values in the state of Texas.”  Like the ACLU, Texas Values sent a letter to many school districts, encouraging them not to adopt parts of the latest Policy Update issued by the Texas Association of School Boards.

TASB is caught in the middle of this, seeking to provide evenhanded, accurate information to its member districts about legal developments and policy options.  So it is not surprising that TASB also sent out a letter to its members, staking out its position in this kerfuffle.  Here is the one sentence in the TASB letter that stood out to me:

Like the ACLU, Texas Values employs lawyers known to sue school districts.  Letters from sparring advocacy groups should not be substituted for the advice of your district’s school attorney.   

That’s all I have to say for today.

DAWG BONE: WELCOME TO GROUND ZERO.

Tomorrow: Election Day at last!

Have you been trained on the proper use of physical restraint with a student?  Have you had to put that training to use?  If so, you will find the case of Bradyn S. v. Waxahachie ISD interesting. 

The short version of the story is that school officials evacuated an elementary school classroom due to the disruptive behavior of an 8-year old.  The cops were called in, and the student was eventually restrained.  The suit alleges that the force used in the restraint was excessive.  If the case ends up in a trial the plaintiff will have the burden of proving that to be the case.

The plaintiff sued the principal personally, but the court dismissed the case against her, concluding that she was entitled to “qualified immunity.”  School officials are immune from personal liability as long as they do not violate legal standards that are “clearly established.” 

It is “clearly established” that school officials cannot use excessive force in disciplining students.  But the allegations against the principal fell short of that. She was accused of “holding” or “grasping” the student’s head as the police officer physically restrained the student.  The court noted that this did not indicate that the principal used force at all, much less “excessive” force. 

Then there was the matter of the handcuffs on an eight-year old. The court noted that “handcuffing alone does not amount to excessive force.” Moreover, it was the cop who cuffed the kid, not the principal, and the court observed that “Plaintiff has not demonstrated that [the principal] had authority to remove the handcuffs and her failure to advocate for their removal does not amount to excessive force.” 

From there the court went on to observe the special factors that have to be considered when applying the 4^th Amendment in the school setting:

The 4^th Amendment’s reasonableness standard must afford school officials with a relatively wide range of acceptable action in dealing with disruptive students.

It’s Bradyn S. v. Waxahachie ISD, decided by the U.S. District Court for the Northern District of Texas on September 23, 2020.  We found it at Special Ed Connection, 77 IDELR 130.  I’m pleased to let you know that Meredith Walker, Laura McLean and Nona Matthews from our firm’s Irving office represented the district on this one. 

DAWG BONE: QUALIFIED IMMUNITY APPLIES UNLESS YOU VIOLATE LEGAL STANDARDS THAT ARE “CLEARLY ESTABLISHED.”

Most people don’t like confrontation. Most supervisors don’t like to give an employee negative feedback. Educators love to give positive reinforcement, and sometimes fail to say the hard things that need to be said in a performance evaluation. Every now and then a court case shines a bright light on this bad habit.

Consider how Ms. Herron’s situation turned around in just 12 days:

*May 5, 2018: The assistant principal completed Ms. Herron’s evaluation, noting that this teacher’s aide “meets or exceeds the standards and expectations of Trenton Special School District” in all categories and does a “great job.” This was the fourth evaluation of Ms. Herron’s work, and each evaluation included this same language.

*May 10, 2018: Ms. Herron calls the state’s Child Abuse Hotline alleging that IEPs are not being followed due to inadequate staffing.

*May 14, 2018: The state shows up at the district to do an investigation based on Ms. Herron’s report.

*May 16, 2018: Ms. Herron’s supervisors recommend that her contract not be renewed. Note: in Texas teacher aides usually do not have contracts. Apparently in this Tennessee district they do.

*May 17, 2018: Ms. Herron receives notice from the superintendent that her contract would not be renewed.

Wow. Things turned pretty rapidly for Ms. Herron, from “great job” to “don’t let the door hit you from behind.” Given the timeline, and the report of the failure to implement IEPs, it looks like the district may have punished Ms. Herron for advocating for the rights of students with disabilities. If proven, that would be a case of disability discrimination in violation of Section 504.

So when Ms. Herron sued, the district countered by offering some legitimate reasons for the nonrenewal. Ms. Herron complained a lot. She talked about the state investigation when she was told not to. She created a negative environment at the school. The court acknowledged that those would be legitimate reasons to nonrenew the contract of a teacher’s aide. But that’s when those evaluations came back to bite the district. It wasn’t what the evaluations said. It was what they did not say. Key Quote:

Although Defendant asserts that she was constantly complaining about her role and created a negative environment at the school, neither of these problems were noted in her evaluations. Defendant argues that [the special education supervisor] testified that Plaintiff would not take direction from anyone, and [the principal] testified that Plaintiff breached the confidentiality of students with disabilities by discussing their IEPs with other staff members. Despite their testimony that these issues motivated their recommendations that [the superintendent] not renew Plaintiff’s contract, neither of these problems were noted in Plaintiff’s evaluations. (Emphasis added).

Evaluating employee performance is a critical task, with a direct impact on the quality of services your district provides to the students. Tell the truth. This one is Herron v. Trenton Special School District, decided by the federal court for the Western District of Tennessee on June 4, 2020. We found it at Special Ed Connection, 76 IDELR 246.

DAWG BONE: IF THERE ARE PERFORMANCE PROBLEMS THEY SHOULD BE REFLECTED IN THE FORMAL EVALUATION.

Tomorrow: Another qualified immunity case

On October 6^th we told you about the 2^nd Circuit decision holding that an FBA (Functional Behavioral Assessment) is not an “evaluation” that triggers a parent’s right to request an IEE (Independent Educational Evaluation) at public expense.  That same decision included another important legal conclusion: that a parent can request an IEE at any time prior to the next full three year evaluation.  The statute of limitations does not apply.

I probably just lost all Loyal Daily Dawg Readers save for the Hard Core Special Ed Types.  That’s OK.  If your eyes just glazed over, tune in tomorrow when we tell you how to botch a teacher aide’s evaluation.  For today, on to IEEs and such.

The school district argued that the parent’s request for an IEE was too late, barred by the statute of limitations.  To which the court responded: statute of limitations?  What statute of limitations??

The court reasoned this way: the statute of limitations begins when the parent knows or should know about some error by the school district in connection with services to the student.  For example, if the school held an ARD meeting without inviting the parent to attend, the statute would begin to run on the day when the parent found out about that.  But an IEE request is not triggered by any error by the school district.  The district may have dotted every i, crossed every t and met every timeline. The parent can still set the IEE train in motion simply by saying “I disagree with your evaluation. I’d like you to pay for an independent one.”  This turns the tables. It puts the burden on the school district to either 1) comply with that request; or 2) ask for a due process hearing to show that its evaluation was properly done. 

The school district has asked the court to reconsider this part of its ruling, and if that motion is denied, there may be an effort to get this one to the Supreme Court.  For the lawyers, this case is a must read. For Hard Core Special Ed Types, make sure your lawyer is aware of this case. It’s D.S. v. Trumbull, decided by the 2^nd Circuit on September 17, 2020. We found it at Special Ed Connection, 120 LRP 28133. 

DAWG BONE: WE HAVE A ONE YEAR STATUTE OF LIMITATIONS IN TEXAS FOR SPECIAL EDUCATION COMPLAINTS.

Tomorrow: the importance of personnel evaluations