A federal judge has ordered Barbers Hill ISD to release a student from ISS even though the student is not in compliance with the school’s dress code.  The student’s hair, at least when not held up by headbands, clips, or ribbons, extends below his ears, below the collar in fact.  The dress code in Barbers Hill prohibits that….but only for some of the students.  For boys.

The court held that the student was substantially likely to be successful with his claim of sex discrimination.   Citing Supreme Court precedent, the court held that the school could justify differential treatment of boys and girls only if there was a very strong reason to do so.  The school bore the burden of making an “exceedingly persuasive” case that its gender-based distinction served “important governmental objectives.” The school cited all the usual reasons for old-fashioned dress codes.  Hygiene.  Discipline. Respect for authority. A nice, clean cut look.  The court found none of that very compelling, citing the testimony of several school administrators who could not cite any disruption or other trouble that long hair on boys had produced.

There are many school districts with similar dress codes.  Leaders in those districts should be asking themselves the question we emphasize in Toolbox training: Is this worth fighting over?  In the Toolbox training our firm offers, we emphasize that litigation over discipline issues is costly in every sense of the word. It costs money, expends energy, uses up valuable time and resources, and damages important relationships.  We have a long history of litigation in Texas over boys’ hair.  Maybe this one will be the last.

Sex discrimination was not the only issue in this case, and not the only reason the case has drawn so much attention.  There were also racial and cultural heritage issues at stake. Come back to the Daily Dawg on Thursday for that.  The case is Arnold v. Barbers Hill ISD, decided by the federal court for the Southern District of Texas on August 17, 2019.     

One more personal note today: Happy Birthday to Walsh Gallegos Treviño Russo & Kyle P.C.!  We opened for business 37 years ago today. Still going strong, helping the people who help the kids. 

DAWG BONE: ALWAYS ASK YOURSELF: IS THIS WORTH FIGHTING OVER?

Tomorrow: Does the lawyer speak for the board?

Pat yourself on the back if you recognized that quote from Bluto Blutarsky in Animal House.  Perhaps the more famous part of the quote was the next line: “Was it over when the Germans bombed Pearl Harbor? Hell, No!”

This came to mind as I read the Commissioner’s decision in a grievance appeal from Grand Prairie ISD.  The district said that the employee’s grievance was “over” at Level One.  The district believed it had granted the relief requested, and so any further appeal would be moot.   The grievant’s response to that would have made John Belushi proud: “This isn’t over until I say it’s over!”

The Commissioner agreed with the grievant: the Level One decision was just like the Germans bombing Pearl Harbor. It didn’t end anything. 

Let’s back up and provide some context.  The grievant was laid off from her position as a non-contractual Office Manager in the Food Services Division.  The layoff was due to budget cuts, but the employee alleged that she was targeted because of her previous complaints about a hostile work environment and questionable billing practices.  She asked to be reinstated in “the same professional capacity” and to be relieved of any further contact with two named employees.

The Level One decision granted the relief requested….sort of.  The district offered her a position as Elementary Case Services Worker, which would keep her at the same pay and eliminate any contact with the two employees she wanted to avoid. The grievant accepted the new position. As far as the district was concerned, that ended the matter.  Thus when the employee took the grievance to Level Two it was denied, and the board declined to hear the case at Level Three. 

The Commissioner held that the district goofed.  Key Quote:

Respondent believes that Petitioner’s requested relief was granted because she was given a new position at the same pay as her previous position.  Although pay is an important factor, it is not the only factor that determines whether two positions are in the same professional capacity.  Duties and responsibilities must also be considered. Petitioner’s complaints about her current position concern the duties and responsibilities of her new position, and as such, related directly to her original grievance and whether her requested relief was granted. 

The Commissioner ordered the school board to grant the grievant a hearing.  There is one more aspect of this case that is worth comment, but we’ll save that for Wednesday.  The case is 032-R10-02-2020, decided by the Commissioner on July 24, 2020.  It’s DeLaGarza v. Grand Prairie ISD.

DAWG BONE:  YES, WE KNOW IT WASN’T THE GERMANS.  BUT BLUTO THOUGHT IT WAS. SO THERE.

Tomorrow: Toolbox Tuesday

You supervise an employee in your school district who is accused of wrongdoing.  If what you have heard turns out to be true, the employee has not only violated school policy—the employee has committed a crime as well.  The employee could be fired, and could face criminal prosecution.   You are responsible for conducting an investigation into this matter, including an interview of the employee.

It would be a real good idea for you to contact your school attorney and inquire about Garrity v. New Jersey.  This case, cited as 385 U.S. 493, was decided by the U.S. Supreme Court in 1967.  The case established the general legal principle that a public employee can invoke the 5^th Amendment right to refuse to self-incriminate when the employee’s wrongdoing  might lead to criminal prosecution.  Thus, a “Garrity Warning” is due. The warning would advise the employee of the distinction between criminal prosecution vs. administrative proceedings leading to job termination.  The 5^th Amendment applies to the criminal aspect only.  If you refuse to answer your employer’s legitimate questions, you might lose your job. But your silence should not be used against you in a criminal case. 

Call your attorney about this.  The specific wording of a Garrity Warning is important, and may vary depending on the circumstances. But if you start that conversation by telling your school lawyer that you need help with a “Garrity Warning” I can guarantee that your lawyer will be impressed.  The lawyer will instantly know that you are a Daily Dawg reader!

DAWG BONE: H.R. DIRECTORS NEED TO ADD “GARRITY WARNING” TO THEIR VOCABULARY.

A student violates your Code of Conduct and is summarily sent to the DAEP for six weeks.  Lawyer B.J. “Bullfrog” Throttlebottom shows up in your office complaining that the student, his client, was deprived of the Due Process owed to him under the 14^th Amendment to the U.S. Constitution.  

You call your school district attorney, and relay the conversation with Throttlebottom. Your attorney promptly sends a letter to Bullfrog informing him that “It is impossible to violate your client’s rights to Due Process under the 14^th Amendment. He doesn’t have any right to Due Process under the 14^th Amendment.  He’s not entitled to ‘due process.’” 

Is that so? 

It is.  This first came up in Texas shortly after the passage of Chapter 37 in the Education Code in 1995.  That’s when the legislature first mandated what we now call DAEPs.  San Marcos CISD assigned Timothy Nevares to DAEP (called AEP back then) and was sued over the Due Process clause of the 14^th Amendment. The case went to the 5^th Circuit. The court ruled that Nevares was not denied “due process” because no process was due.  “Process” is “due” only if the state (or school district) deprives a person of “life, liberty or property.” Those are the three things protected by the 14^th Amendment.  The court held that “Timothy Nevares was not denied access to public education, not even temporarily.  He was only transferred from one school program to another with stricter discipline.”  Nevares v. San Marcos CISD, 111 F.3d 25 (5^th Cir. 1997).

This does not mean that school administrators should be cavalier about assigning students to the DAEP.  Constitutional due process is not required, but there are procedures required by state law that are designed to ensure that the student and/or parent is given an opportunity to be heard.   So follow your procedures and provide for a fair consideration of the case. 

By the way, I’m pleased to let you know that our law firm handled the Nevares case and helped to establish this important precedent.  My former partners Dorcas Green and Eric Schulze deserve the kudos for that one.

DAWG BONE: THE 5^TH CIRCUIT TELLS US THAT SENDING A STUDENT TO THE DAEP DOES NOT TAKE AWAY “LIFE, LIBERTY OR PROPERTY.”  

Tomorrow: Garrity warnings.

I’m not proud of it, but it has made for a good story.  It was a long and ard-uous ARD meeting, mostly due to the fact that the honorable opposing counsel insisted on asking the same question over and over and over and over. I think many of you have been in such situations.  The guy was messing up my vision for the day.  The meeting was in a district about two hours east of Austin. It was a gorgeous fall day.  My plan was to drive back to Austin, into the sunset, enjoying the fabulous fall weather. I had my soundtrack ready to play.

But the meeting went on and on and on and on.  I saw the sun slipping down in the western sky, my vision for the day setting along with it. That’s when I spoke up.  I don’t recall the exact words except for the last two: “….you bozo.” 

There followed this exchange:

OPPOSING COUNSEL:  Am not.

LAW DAWG: Are too.

OC: Am not.

LD: Are too.

HIM: Not.

Me: Are.

PRINCIPAL:  Let’s take a little break!

I felt embarrassed at my sudden loss of professional decorum.  Bozo and his client had left the room, so it was just me and the school staff there. I apologized, hoping I had not embarrassed the district. And the principal said, “Not at all, counselor.  We liked it.” 

This gave me a good insight into the heart of today’s Texas educator.  However, I have refrained from such personal insults since that day.

DAWG BONE:  DECORUM DOES MATTER.

Tomorrow: Due process and the DAEP.

It’s getting tough to talk about the Toolbox on every Tuesday when school as we traditionally know it is not happening. The Toolbox, as most Loyal Readers know, is our firm’s one-day training program for dealing with disruptive and/or violent behavior from students with disabilities.  I’ll get back to the Toolbox on future Tuesdays but for today, I offer a different kind of “toolbox.”

You have a citizenship toolbox.  The tools in that toolbox involve learning about important issues in your community, studying the positions of candidates for office, expressing your views to elected representatives.  And the most important tool you have is the right to vote.  It is, of course, a right—but it’s also a duty. 

A city councilman in a town not far from Austin recently stirred up the proverbial hornets’ nest when he referred to teachers as “leeches” and expressed the view that they should not be paid if they don’t return to regular in-person teaching despite the….you know….the thing that’s been happening.  Specifically he said “Stop catering to the leeches….Fire them and rehire new teachers.”  And then there was this: “America’s parents do not have to put up with being held hostage by union leaders demanding unreasonable and imprudent continuations of ruinous lockdown policies.” 

This guy has made it obvious that he’s anti-public education.  Oftentimes, however, you have to dig a little deeper to figure that out. Most politicians will at least give lip service to teachers and the value of public education. 

So we have an election ten weeks from today.  Don’t let the presidential election suck all of the oxygen out of the air.  As far as public education is concerned, the races for the state legislature matter more than anything else.  Our representatives in Washington influence public policy regarding public education but the folks we elect to represent us in Austin have a more immediate and direct impact. That’s where most of the funding comes from. That’s where the Education Code gets revised. 

I encourage you to use your citizenship toolbox. Find out who is running in your district and check out their views on public education.  It matters.

DAWG BONE: GOOD TEACHERS ARE ALSO GOOD CITIZENS

Tomorrow: True confessions

DEAR DAWG:  I used to be a public school administrator, but I have retired from that business and I’m now serving as principal of a nice little Christian school.  I expect that life will be easier for me now.  So many laws that apply to the public schools do not apply here.  Like Chapter 37. 

So I was preparing a new Student Code of Conduct, and thought it would be a good idea to incorporate Biblical principles.  We teach Bible, and emphasize it as the core textbook for life its ownself. So it just seems natural to me that we would also incorporate it into our Code of Conduct. So with that in mind, what do you think about leading off the Code with the following:

If a man has a stubborn and rebellious son who will not obey the voice of his father or the voice of his mother, and, though they discipline him, will not listen to them, then his father and his mother shall take hold of him and bring him out to the elders of his city at the gate of the place where he lives, and they shall say to the elders of his city, ‘This our son is stubborn and rebellious; he will not obey our voice; he is a glutton and a drunkard.’ Then all the men of the city shall stone him to death with stones. Deuteronomy 21: 18-21.  Do you think that sets the right tone?  WANTING TO DO THINGS RIGHT.

DEAR WANTING:  Well, we think it’s helpful that the Scripture verse tells us that stoning is to be done with “stones.”  But as far as tone….no, we think you could find something more appropriate.  You are right that private schools have  a lot more flexibility, but we think “stoning” goes a bit too far.  You might run into some problems with the local district attorney on that one.  Furthermore, your private school is subject to non-discrimination laws, and we notice that this provision only targets one gender. What…you’ve got no “stubborn and rebellious” daughters???? So while we think that incorporating Biblical principles is a great idea, we would suggest something that is less likely to lead to constitutional violations and criminal prosecution.  How about: “Train up a child in the way he should go; even when he is old he will not depart from it.”  Proverbs 22:6.   

DAWG BONE: THE AUTHOR OF DEUTERONOMY WOULD MAKE ONE HECK OF AN ASSISTANT PRINCIPAL.

Tomorrow: Toolbox Tuesday!

The annual Back to School program, sponsored by ED311 is just around the corner. This year we are presenting remotely on four consecutive Wednesdays in September.  Yesterday I gave you a sneak preview of the content for the first two sessions, which are devoted to two legal issues that are particularly timely: how to cope with Covid-19, and how to implement the brand new Title IX regulations. 

The other two sessions will feature the typical content of the BTS program—what lessons can we learn from the court cases that have been decided over the past year.  Here’s the preview:

September 23:   THE MOST IMPORTANT CASES OF THE PAST YEAR AND WHAT THEY MEAN FOR TEXAS EDUCATORS.  We have important rulings from the U.S. Supreme Court, the 5^th Circuit and elsewhere that will have a direct impact on the day-to-day operation of your public school.  In this lively and informative presentation, the Law Dawg will explain the judicial rulings with an emphasis on practical application.  Topics to be addressed include student free speech, student discipline, liability of educators, and the latest on gay, lesbian, and transgender employees and students.

September 30:  OUR ANNUAL REVIEW OF CASES INVOLVING SPECIAL EDUCATION AND SECTION 504.  High level courts continue to issue important rulings interpreting IDEA and Section 504.  This presentation will feature the Law Dawg providing a review of the most important cases and their implications for day-to-day school operations.  The emphasis will be on the practical aspects of student discipline, ARD Meetings, evaluations, serving students with dyslexia, the meaning of “FAPE” and other issues, including potential areas of liability.

Court cases are to lawyers what Biblical parables are to preachers. They tell a story and carry a lesson.  That’s what we will emphasize in these presentations: what lessons can we learn? 

Hope to see you there. Sign up via ED311 at www.ed311.com. 

DAWG BONE: LOTS OF STORIES THIS YEAR.  LOTS OF LESSONS.

This year we are doing the Back to School program remotely on four consecutive Wednesdays in September.  Here is a preview of content for the first two:

September 9:  A SCHOOL YEAR UNLIKE ANY OTHER: HOW DO WE DO THIS?  We kick off the BTS 2020 with the myriad legal issues surrounding the opening of our schools in the midst of a pandemic.  How do we serve students safely and effectively?   What to say to staff members nervous about returning to work?  We are dealing with a tangle of federal, state and local guidelines along with the policies and directions of the school board: the Law Dawg will help untangle all of that….as much as possible.

September 16:  NEW REGULATIONS FOR TITLE IX: ARE YOU READY?  The Law Dawg will be joined by Sarah Orman, Lead Attorney with the Texas Association of School Boards, for a review of the new regulations implementing Title IX.   The new regulations provide definitions of “sexual harassment” and lay out the specifics of how districts are expected to respond to reports of such behavior by staff or students.   These regulations will require significant changes in district practices.  The emphasis in this presentation will be on policy as well as practice. Title IX Coordinators, superintendents, HR Directors and campus administrators are encouraged to attend. 

As always, the content of these presentations will focus on the practical application of the law in the day-to-day operation of your school.  Hope to “see” you there! Sign up through ED311 at www.ed311.com. 

DAWG BONE:  TWO TIMELY TOPICS FOR 2020.

Tomorrow: More on BTS 2020

You will not be surprised to learn that my annual Back to School program will be different this year!  We will not be traveling all over Texas providing the same full-day program in multiple locations.  Instead, we will provide four webinars on four consecutive Wednesdays in September.  I will miss visiting the ESCs and seeing “the usual suspects” who gather at these events, but I’m grateful that ED311 has figured out a way to deliver this content.  We do have a lot to talk about this year!

So here’s the schedule:

SEPTEMBER 9: COVID-19 AND ALL THE LEGAL ISSUES IT PRESENTS

SEPTEMBER 16: TITLE IX: IMPLEMENTING NEW REGULATIONS

SEPTEMBER 23: THE MOST IMPORTANT SCHOOL LAW CASES

SEPTEMBER 30: SPECIAL EDUCATION AND 504: THE LATEST LEGAL DEVELOPMENTS

You can sign up right now through ED311.  Go to www.ed311.com.  Each of these webinars will be focused on practical application in the day-to-day operation of your school.  The content will be aimed at campus principals and assistants, HR directors, Title IX directors, special education staff, superintendents and board members.   We have so much to talk about this year—don’t miss this opportunity!

DAWG BONE:  IT’S BACK TO SCHOOL TIME…..READY OR NOT!

Tomorrow: BTS 2020 preview