Today’s Daily Dawg is going to be longer than usual.  I want you to get the full picture of the facts behind the court case I will tell you about.  The case involves a preliminary ruling by a federal court holding that an SRO, an assistant principal, and the school district all face potential liability due to police questioning of the student at school.  This happened in Missouri, but it could happen in Texas.  Please read on.

Let’s play word association.  What comes to mind when you hear the word “seizure”?  That question separates those who think more like doctors from those who think more like lawyers.  For medical purposes, a seizure is a serious event that happens to a person.  For the lawyers, a seizure invokes the 4^th Amendment to the Constitution. That’s the one that protects us from unreasonable searches and seizures.  We are seeing claims of “unreasonable seizure” by police officers operating in public schools on the rise.

Let’s play word association again.  Consider the word “seizure” in its Constitutional sense.  What comes to mind?   A police officer handcuffing a suspect?  Yes—that’s a seizure.  The classic Good Cop/Bad Cop questioning in the small, windowless room while a single naked light bulb swings ominously overhead?  That’s a seizure.  But how about this: two police officers quietly questioning a 16-year old, straight-A student for 10-20 minutes in an office at the school with the door shut and no one else present.  No force was used.  No one touched the student.  No one told her she could not leave.  Is that a “seizure”?

The court noted that a “seizure” occurs when government actors have “by means of physical force or show of authority…in some way restrained the liberty of a citizen.”  Given all of the circumstances, would a reasonable person have felt free to just walk away?  If not, you have a “seizure.”  In this case the SRO pulled the student out of class and told her to report to an office for questioning by two police officers.  The court put it this way:

L.G. has alleged that she did not feel free to leave, and it is reasonable to infer that a minor student who was directed not to attend class so that she could be questioned by police officers, and who was then left alone with those two officers, would not have felt free to ignore [the SRO’s] directions.

So it was a “seizure.”  Next issue: Was this seizure “reasonable”?  The court noted that seizures are considered “reasonable” if they are supported by a warrant, or “exigent circumstances.”  There was no warrant here.  Nor did the circumstances appear to require the immediate questioning of this student during the school day.  The cops were not looking into an imminent bomb threat or some immediate threat.  If they had, perhaps the court would have deemed this to be a case of “exigent circumstances.” Instead, they were questioning this student about allegations that another student was sexually assaulted outside of school. The police questioned L.G. as a potential witness, not as a suspect.  She was being questioned because she had the same first name as the victim.

Thus the court concluded that this was a “seizure” in the absence of a warrant or the type of circumstances that would justify the seizure.  The student had plausibly alleged a violation of her 4^th Amendment rights.  The case would not be dismissed.  The parties would proceed to develop evidence and prepare for trial.

Things got decidedly worse for the SRO and an assistant principal when the court turned to the issue of their personal liability.   The student did not just sue the two officers who questioned her—she sued the SRO who told her to report for questioning, and the A.P. who did not intervene. As the SRO escorted the student to the room for questioning, the A.P. asked the SRO if he was needed, and the SRO said no. So the 16-year old girl went into the room for questioning alone.  Note: the court held that it was the SRO who “seized” the student even though the SRO did not participate in the questioning and was not in the room when it happened.  Key Quote:

L.G. has alleged that [the SRO] was the one who directed her out of her class room and told L.G. that two CPD officers had come to the school to question her, and who led L.G. into the room with the other two officers and left her there after closing the door.  In short, the complaint alleges that [the SRO] seized L.G.  The fact that [the SRO] did not herself question L.G. does not mean that she cannot be sued for unconstitutional seizure.  (Emphasis added).

So it’s not the questioning that is the “seizure.” It’s the directing, telling, leading and leaving her there alone with the door shut.  It’s the SRO who faces personal liability for an unconstitutional seizure.

What about the A.P.? The claim against him is one of negligence and is governed by state law.  The A.P. sought dismissal of the claim against him on the basis of “official immunity,” which protects government officials in Missouri from liability when they are using their discretion.  Texas applies a similar standard.

The court refused to dismiss the claim against the A.P. because he is charged with flat out violating a local policy. That policy says that when the police question a student at school “the school principal or designee will be present.”  Recall that the A.P. asked the SRO if he was needed, was told that he was not, so he went about his business.  Perhaps he forgot the school policy that left no room for discretion: “the school principal or designee WILL BE PRESENT.”  No room for a  judgment call there.

What about the school district?  That case remains alive as well, although the plaintiff bears a heavy burden to show that the district has a widespread custom or practice of ignoring its own policy and permitting seizures of students without a warrant, exigent circumstances or the presence of a school official.

This is a good case to think about on Toolbox Tuesday.  The Toolbox is our firm’s one-day training program dealing with discipline of students with disabilities.  Tool #10 is “calling the cops” or otherwise involving law enforcement.  Schools can use Tool #10, but as this case reminds us, the tool needs to be used properly.

The case is L.G. v. Columbia Public Schools, decided by the U.S. District Court for the Western District of Missouri on May 12, 2020. We found it at 76 IDELR 179.

We’re going to talk about this in detail at our Zooming with the  Dawg this Friday.  I’ll be joined by Blake Henshaw from our Houston office. Hope to see you there!

DAWG BONE: TAKE A LOOK AT YOUR SCHOOL’S POLICY ABOUT POLICE QUESTIONING STUDENTS DURING THE SCHOOL DAY.

Tomorrow: Let’s talk more about local policy.

Quick: how many days does it take to get from May 9 to November 10?  Answer: 185

How many days does a person have to file a complaint of discrimination with the EEOC or Texas Workforce Commission?  180. 

Do the courts offer any lenience on this deadline? Apparently not.  Former school police officer Castillo missed her deadline by five days. Based on that, the court held that it did not have jurisdiction to even consider her complaint of sex discrimination.  Officer Castillo had complaints over other alleged acts of discrimination or retaliation, and those were filed in timely fashion. But the complaint over sex discrimination was untimely. Tossed out. 

The case is Donna ISD v. Castillo, decided by the Texas Court of Appeals for the 13^th District on August 13, 2020.

DAWG BONE: COUNT YOUR DAYS!

Tomorrow: Toolbox Tuesday!!

Next Friday we will resume (ReZoom?) Zooming with the Dawg for Daily Dawg subscribers.  We are going to do these Zoom meetings once a month, on the third Friday of each month at 10:00a.m.  So the first one will be next Friday, September 18. 

Zooming with the Dawg is a freebie for all Daily Dawg subscribers.  To get the Zoom invite, send an email to info@wabsa.com.  Sign up once and you’ll be on the list for all sessions. Our Client Services team will send a reminder with the link before each one.

Our September Zoom call will highlight some of the recent Daily Dawg posts, with a particular emphasis on SROs, local police, and how and when we allow them to question kids at school. There is a recent court case from Missouri that offers a cautionary tale. I’ll be writing about that case next week, and we will focus on it during the Zoom call.   Invite your SROs and/or local gendarmes to join us! 

We will also talk about long hair litigation.  Many districts have received a lengthy letter from the ACLU about this.  Let’s talk it over. 

Hope to see a bunch of you on Friday the 18^th!

DAWG BONE:  10:00 NEXT FRIDAY: BE THERE!

Next week our firm offers two on-demand webinars, each providing timely and relevant information on issues that matter.  Check this out:

SEPTEMBER 15: Redrawing the Lines: Redistricting and Your School Board Elections. Presented by Christine Badillo and Jenny Hall. 

SEPTEMBER 16: Covid-19: Where Are We Now? This one will focus on special education concerns and will be presented by Denise Hays and Kelly Janes.

These on-demand webinars focus on practical issues, with time for Q and A.  Sign up at www.walshgallegos.com. 

Tomorrow: Zooming with the Dawg soon to ReZoom!

The 11^th Circuit has now joined the 7^th Circuit in holding that a school bathroom policy that bars transgender students from using the facility that matches the student’s gender identity violates the Constitution.  The court also held that such a policy violates Title IX, noting that “Every court of appeals to consider bathroom policies like the School District’s agrees that such policies violate Title IX.”

As far as the Title IX issue went, the recent Supreme Court decision of Bostock v. Clayton County was decisive.  The court understated when it said “Bostock has great import for Mr. Adams’s Title IX claim.”  Yep.   Since SCOTUS held that discrimination based on transgender status is always a form of sex discrimination, the 11^th Circuit held that this standard applies to student issues as well as employment. 

I have been predicting that the issue of bathroom use by transgender students would reach the Supreme Court, but maybe I’m wrong about that.  The Supreme Court takes up cases when the Circuits Courts disagree with each other. So far on this issue the Circuits are in alignment. 

If you have a transgender student in your school, the best practice is as it always has been.  Meet with the student and family.  Discuss all of the issues: the student’s name, pronoun use, dress code, bathroom, lockers, extracurriculars.  If everyone can agree on a plan, count your blessings.  If not, contact your school attorney, who can help you navigate this evolving legal landscape.

This case is Adams v. School Board of St. Johns County, Florida.  It was decided by the 11^th  Circuit on August 7, 2020. 

DAWG BONE:  COURT SAYS RESTRICTIVE BATHROOM POLICY IS UNCONSTITUTIONAL AND VIOLATES TITLE IX.

Tomorrow: Opportunities for you next week!

On Tuesdays here at Daily Dawg HQ we highlight issues involving discipline and students with disabilities. Our firm’s Toolbox Training is an all-day program illuminating the ten “tools” that school administrators have in their Toolbox. Today we take a slightly different tack: looking at the appeal of a DAEP assignment by a general education student.

The student was charged with possession of marijuana in her car on school grounds on Valentine’s Day, 2020.  In accordance with the Code of Conduct, the school assigned her three days of suspension and nine weeks of DAEP. She was also removed from the drill team for the remainder of the year and all of the next.

The parents appealed the decision.  A meeting was scheduled for February 20^th to discuss the matter, but before that meeting took place the parents went to court and obtained a TRO (Temporary Restraining Order). The judge who issued the TRO ordered the school to release the girl from DAEP and allow her to continue on the drill team. While the court proceedings were moving along, the administrative appeals within the district also occurred.  The end result was a decision by the school board to allow the girl to return to drill team after one calendar year, but otherwise to affirm the DAEP placement and drill team suspension.

The school district challenged the TRO by arguing that the courts had no jurisdiction over this dispute.  This was based on the Texas Education Code, which could not be more clear: decisions about DAEP placement are “final and may not be appealed” as per T.E.C. 37.009(b).  Period.  The judge who issued the TRO did not see it that way, but the appellate court did:

Texas courts have interpreted this section to mean just what it says—district and appellate courts have no jurisdiction to review the decision to place a student in DAEP.

So what’s with the judge ignoring this and issuing a TRO?  Does the judge not have to apply the law as written?

Yes, the judge has to apply the law as written, but here, the judge believed there was an exception to the Education Code’s clear language.  The parents alleged that the DAEP assignment violated the U.S. Constitution.  The judge believed that allegation conferred jurisdiction.

So in order to get this case dismissed, the school district’s lawyers had to convince the court that there were no constitutional issues at stake.  They did that.

*The free speech claim was based on the Texas Constitution, rather than the First Amendment. The appellate court noted that our state constitution only protects speech on “matters of public concern.” There was none of that here.

*The court cited numerous cases holding that participation in extracurricular activities is not a constitutional right. The fact that the parents had spent money on drill team activities does not change that.

*The court cited caselaw holding that the transfer of a student to a DAEP does not deprive the student of “liberty” or “property” and thus due process is not implicated.

*Alleged damage to the student’s reputation was insufficient to require due process procedures.

Bottom line: there were no constitutional issues, and thus, no reason to override the provision in Chapter 37 that tells local judges to steer clear of DAEP appeals.   On top of that, the court noted that even though “due process” was not required, the school district did, in fact, provide a hearing and an appeal all the way to the school board.  That was more than sufficient procedural protection for the student.

In a footnote, the court cited a U.S. Supreme Court decision that reminds us of the general rule that judges are not supposed to meddle in the decisions of educators:

Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.  Epperson v. Arkansas, 89 S.Ct. 266, 270 (1968).

The case is Northwest ISD v. K.R., decided by the Court of Appeals for the Second Appellate District on August 20, 2020.  The Walsh Gallegos litigation team provided excellent advocacy on this one, led by Meredith Walker, along with Katie Payne and Ali Mosser.

DAWG BONE: DAEP APPEALS END IN THE SCHOOL DISTRICT—NOT THE COURTHOUSE.

Tomorrow:  Transgender students win another one.

ED311 LAUNCHES ITS ANNUAL “BACK TO SCHOOL” PROGRAM THIS WEEK WITH A WEBINAR ON WEDNESDAY FOCUSING ON COVID AND ALL THE LEGAL ISSUES THAT COME WITH IT. SIGN UP FOR THIS OR FOR ALL FOUR BTS SESSIONS AT WWW.ED311.COM.  THE SCHEDULE IS AS FOLLOWS:

September 9: Covid

September 16: Title IX

September 23: Important Court Cases

September 30: Special Education Update

When district administrators were informed that a teacher had been mistreating some of the more seriously disabled students, the response was swift and forceful, including a CPS report and criminal charges.  The teacher eventually plead guilty to those charges.  The collective actions of the school administrators saved the school district from legal liability.  More importantly, they prevented any further mistreatment of students.

Previous court cases have made the law in this area well established.  The district is not legally liable for having employed someone who hurt children.  The district faces liability only if the district’s policy or longstanding, well established and well known custom caused the injury.  Obviously, that was not the case.

The court characterized the teacher’s actions as corporal punishment.  Teachers can be liable for excessive corporal punishment both civilly and criminally.  As noted above, this teacher was found guilty of a crime.  If a state allows for such remedies against the teacher, the school district itself is not liable for excessive corporal punishment.  Thus the court dismissed all claims against the district.

This case brought to mind the Texas law that permits parents of students who are served in self-contained classrooms to request that a camera be installed to monitor what is happening.  That law is a well-intentioned effort to guarantee the safety of the students who are most vulnerable—those who are non-verbal and with limited cognitive ability.   But it is not the most effective way to guarantee the safety of these students. The most effective way to do that is to: 1) be very careful about hiring staff to work in the self-contained classroom; 2) monitor that classroom personally, with frequent unannounced visits; and  3) cultivate a relationship with both teachers and the paraprofessionals so that they will speak up promptly if they see wrongdoing.  

The case is Alcala v. Los Fresnos CISD, decided by the U.S. District Court for the Southern District of Texas on August 20, 2020. I’m pleased to let you know that the Walsh Gallegos Law Firm brought a team effort to this one, headed up by Leandra Ortiz and Elizabeth Neally, with support from Katie Payne and Priscilla De La Garza.   

DAWG BONE: CULTIVATE RELATIONSHIPS WITH THE STAFF IN THE LIFE SKILLS UNIT.

Tomorrow:  Toolbox Tuesday!!

I’m pleased to let you know that we will soon resume (ReZoom?) Zooming with the Dawg for Daily Dawg subscribers.  We are going to do these Zoom meetings once a month, on the third Friday of each month at 10:00a.m.  So the first one will be two weeks from today: September 18. 

Zooming with the Dawg is a freebie for all Daily Dawg subscribers.  To get the Zoom invite, send an email to info@wabsa.com.  Sign up once and you’ll be on the list for all sessions. Our Client Services team will send a reminder with the link before each one.

Hope to see a bunch of you on Friday the 18^th!

DAWG BONE: SEPTEMBER 18—ZOOMING WITH THE DAWG! BE THERE!!

On Tuesday we told you about Arnold v. Barbers Hill ISD and the federal court injunction against the district.  The court granted the injunction based on three potentially valid legal claims: sex discrimination (see Tuesday’s Daily Dawg), racial discrimination, and infringement of the First Amendment.

The racial discrimination claim was upheld based on some evidence of unequal enforcement of the dress code.  The plaintiff provided some statistical evidence to support his assertion that students of color were hassled over the long hair issue more than the white students. The court’s decision is a preliminary one, not the final word. But the court found that the plaintiff was substantially likely to succeed on this claim. Therefore, to preserve the status quo pending a full trial, the court issued its injunction ordering the school to serve the student in regular classes, rather than ISS.

It's not unusual for students to assert that dress codes are discriminatory based on sex.  It’s also not unusual for students to assert that school rules are enforced unevenly, with racial minorities getting the short end of the stick. With proper evidence, either of those theories can be successful in court.  But this is the first case in the Dawg’s memory in which a court extended First Amendment protection to a hairstyle associated with African-Americans.  There are previous rulings extending First Amendment protection to Native American hairstyles.   In general, however, the courts have held that one’s choice of hairstyle may be a matter of individual preference, but it is not “suffienctly communicative” to warrant First Amendment protection. The plaintiff wore his hair in dreadlocks, although the court used the term ‘locs, explaining that the more common term, “dreadlocks” was coined by slave traders.  Citing expert testimony from Professor D. Wendy Greene, the court noted that ‘locs were an identifiable reflection of cultural heritage, and thus, they sent a message of reverence for one’s West Indian ancestors.

One other word of caution about this case and its implications for your district. The court noted that the dress code, particularly with regard to long hair on boys, was amended in mid-year. The court noted that this was unusual, and took it as an indication that there may have been a racial motive to the change.  So whatever you do about your dress code, it might be wise to do it next summer as per normal, rather than right now.  That is, unless you want to scrap any reference to hair length…..

The case is Arnold v. Barbers Hill ISD, decided by the federal court for the Southern District of  Texas on August 17, 2020.

DAWG BONE: SCRAPPING ANY REFERENCE TO HAIR LENGTH LOOKS SMARTER EVERY DAY.

Tomorrow: Zooming with the Dawg ReZooms!

Monday we told you about the case from Grand Prairie where the Commissioner ordered the school board to give a grievant a hearing.  The district thought the matter was moot, but the Commissioner disagreed.  That was Monday’s discussion. Today—one other aspect.  The school district also argued that the grievant’s appeal to T.E.A. was untimely.  That argument also failed.

A complaining party has 45 calendar days in which to file a Petition for Review with T.E.A.  That 45-day timeframe begins to run “after the decision, order, or ruling complained of is first communicated to the Petitioner.”  In this case the argument was over when the “decision, order, or ruling” was communicated. 

On December 17, 2019, the school district’s lawyer sent a letter to the employee’s lawyer explaining that the board was not going to schedule a hearing because the matter was moot.  The district argued that this letter started the 45-day timeframe, and the employee filed her Petition too late.

Nope. The Commissioner reasoned that a letter from a lawyer is not the same thing as a “decision, order, or ruling” from the board.  Key Quotes:

Petitioner’s appeal is not untimely because a letter from district counsel is not an action or decision by the Board that triggers the timeline to file a Petition for Review. 

A letter from counsel does not substitute for a board decision, order, or ruling. The Board may not delegate its decision-making authority.

So apparently the 45-day timeline has still not even begun. The appeal was, therefore, timely.  A good lesson for the lawyers.  The case is DeLaGarza v. Grand Prairie ISD, Docket No. 032-R10-02-2020, decided by Commissioner Morath on July 24, 2020.

DAWG BONE:  NO SUBSTITUTE FOR A BOARD DECISION.

Tomorrow: The other part of the Barbers Hill decision