On Tuesdays here at the Daily Dawg we like to give you reminders of some of the principles and practices associated with The Toolbox—our firm’s all-day training program regarding discipline of students with disabilities. Today, the story of a district in Tennessee that sent a student to an alternative campus for 180 days based on possession of marijuana.  We can learn several things from this obscure decision by a special education hearing officer. 

First lesson: it’s usually a mistake for the parents to refuse to consent to an evaluation that the school offers to do.  The parents brought a doctor’s note to the meeting where the MDR (Manifestation Determination Review) would be done. The doc reported that the boy had anxiety.  In response, the school offered to conduct an evaluation to look into that more thoroughly.  Parents refused to consent. The hearing officer held that this removed “anxiety” from the category of conditions that the school should have known about.  When the school offers to evaluate, and the parent refuses to consent, the school is relieved of any “shouldaknown” liability.  Plus, it looks bad for the parents.

Second lesson: possession of marijuana is a “special circumstances” offense, which means that a removal of 45 school days is an option.  But if the school wants to order a longer removal, the MDR has to come out right.  In Toolbox terminology, possession of pot is a Tool #5 situation.  But if the school seeks to exceed the 45 days authorized by Tool #5, it has to use Tool #6—Disciplinary Change of Placement.  This school called for a removal of 180 days.  If the removal had been limited to 45 school days, the outcome of the MDR would not have been relevant.  Fortunately for the school, the hearing officer agreed that the boy’s possession of a controlled substance was not a manifestation of disability, so the removal for the full 180 was permissible.  However, it was not proper, which leads to our third lesson.

Third lesson:  If the behavior is not a manifestation of disability, the student can be removed to an Interim Alternative Educational Setting (IAES), but it has to be one where the student can continue to progress on the IEP goals.  The IAES need not perfectly replicate the way things were done under the IEP, but it has to continue to offer FAPE.  The hearing officer held that the district failed to satisfy this standard.  The IEP goals remained the same but some of the services were reduced and there was no good explanation for how the school would still be able to provide FAPE.

We cover all these issues in the Toolbox Training, which we HOPE to continue to provide in its typical in-person, all day format in the fall.  In the meantime, if you’d like to schedule your staff for an overview or update, just let me know. 

This case is from Knox County, Tennessee and can be found in Special Ed Connection at 120 LRP 15185.

DAWG BONE: EVEN AFTER REMOVAL, PROVIDE FAPE.

Tomorrow: Qualified immunity saves the police officer

I’m reading Dreyer’s English by Benjamin Dreyer.  Mr. Dreyer describes his book as “An Utterly Correct Guide to Clarity and Style.”   Since much of my professional life is now about writing, I thought it would be good to get some tips on the subject.  I’m learning a lot from this book. Right away I learned that I rely way too much on the various forms of the verb “is.”  So now I watch out for that.  For example, the entry for Wednesday of this week originally had a sentence that read: “The case is a good illustration of….”  I write sentences like that all the time, and Mr. Dreyer has convinced me that such sentences should be improved. So on Wednesday, you will not see that sentence.  Instead, you will find: “The case nicely illustrates…”

The Dreyer book got me thinking about things we learned in school that, to our utter amazement, we later found out were useful.  Who knew?!  For me, diagramming sentences comes to mind.  As I recall, much of 7^th grade was devoted to this.  Sister Mary Holywater sometimes required us to do the diagramming on the blackboard, so that the rest of the kids could criticize our misplaced gerund or dangling participle.   Being kind of a nerdy kid, I secretly found diagramming sentences satisfying. It was like building a Lego set, only doing it with words that you had to unscramble and then put back together in a different format. But I thought we were spending a lot of time developing a skill that would have no useful application in the world. Can we move on to sex education, please?

Fast forward to the first year of law school as I attempt to untangle complex and overly long sentences in court cases and statutes.  Suddenly I realized that I was mentally back to that blackboard, discerning the meaning of the sentence by breaking it down to its parts: Look! There’s a subject!  Behold: a predicate!! Alas: methinks we’ve found an object!!!  The rest of it relatively irrelevant adjectives, adverbs and prepositional phrases.  It all diagrams!

What comes to mind for you?  This Friday on Zooming with the Dawg, we will dive into this spellbinding topic.  What did you learn in school that seemed completely irrelevant at the time, but that you now have come to value?  Something in science?  Don’t tell me it was math!  A poem? 

I will see if I can get a couple of friends from my law firm to join us.  We look forward to your input—Friday at 10. Zooming with the Dawg. If you’re not already registered for these gatherings, send a request to info@walshgallegos.com.

DAWG BONE: NO ONE WILL BE REQUIRED TO DIAGRAM A SENTENCE.

Tomorrow: Toolbox Tuesday!!

If you have not watched “Mrs. America” on Hulu, I recommend that you do so.  It’s the story of Phyllis Schlafly (Cate Blanchett) who founded the Eagle Forum and led the charge to stop the ratification of the Equal Rights Amendment to the U.S. Constitution.  While the nine-part series is based on actual events, it takes some liberties.  So don’t take it as Gospel truth, but it’s an interesting perspective on the culture wars over equal rights for women. 

The ERA was passed by Congress in 1972.  You know what else happened that year?  Title IX came into law.  Two laws designed to level the playing field between men and women adopted by Congress in the same year.  The ERA, however, was a proposed amendment to the Constitution, and so it required ratification by 38 states.  “Mrs. America” tells the story of how Mrs. Schlafly and her supporters blocked that ratification process.     

Title IX was a simpler matter:  a 37-word law requiring that educational institutions that receive federal financial assistance not discriminate on the basis of sex.   It was overwhelmingly passed by Congress and did not need ratification by the states.  This week in the Daily Dawg we have focused on Title IX and its new regulations that go into effect on August 14^th. We’ll be Zooming with the Dawg at 10:00 this morning to talk more about this along with Sarah Orman, a senior attorney with the Texas Association School Boards.  Between me and Sarah you will be getting the perspective of two generations, both genders, father and daughter. Hope to see your face on a small square on my computer. 

DAWG BONE: GOT HULU?  CHECK OUT “MRS. AMERICA.”

Every report of possible sexual harassment must be investigated and responded to, but not every report will produce a “Formal Complaint.”   Let’s consider a hypothetical. 

Mom contacts the principal of the middle school to report that her daughter, Jane Doe, is being harassed by other students and particularly by members of the band.  She says she has spoken to the band director and felt that she got the brush off.  Jane reports that much of the harassment is sexual in nature, including not just name calling, but the spreading of ugly rumors and even some unwelcome touching of her body.   The principal assures mom that she will look into this and take appropriate action.  The principal immediately notifies the district’s Title IX Coordinator (T9C). 

The T9C promptly contacts the mother and, among other things, informs her that the district has a “Formal Complaint” process.  The Coordinator explains how that process works, that it is not something the mother has to initiate, that the district will investigate and take appropriate action whether a Formal Complaint is filed or not; and that the preference of the mother will be taken into account.  The T9C also offers mom and the student “supportive measures” which are designed to ensure equal access to educational opportunities. This might mean counseling, maybe a schedule change or some other form of support.  “Supportive measures” are defined as non-punitive, non-disciplinary. Mom wants some of those “supportive measures” but does not want to initiate the Formal Complaint process.  It all sounds too complicated, lengthy, and legalistic.   She says “I just want you to know about this, and to do something to protect my daughter.”

What then?  The new Title IX regulations, set to go into effect on August 14^th, require the T9C to “consider” the preferences of the “complainant.”  If the complainant wants to initiate the Formal Complaint process, the T9C should facilitate that. But if the complainant does not want to make a Formal Complaint, the T9C may do so anyway. The wishes of the complainant must be considered, but the T9C has the authority to file a Formal Complaint even when the complainant does not want that done.

We don’t have room here at the Daily Dawg to give you a full rundown on how the Formal Complaint process works, but suffice it to say that it is as formal as Fred Astaire in a tuxedo, as lengthy as July, and as legalistic as the instructions for IRS Tax Forms.  In an effort to make sure that the parties are treated equally, that the presumption of innocence is respected, and that due process is provided, the regulations micromanage this process in ways that will frustrate T9C coordinators and other district decision makers.  It will also open the door to endless lawyerly arguments over process. 

The Department of Education acknowledges that the Formal Complaint process will be time consuming and costly, but it predicts that there will be fewer such complaints than we have had in the past. We shall see. 

DAWG BONE: NEW VOCABULARY: “FORMAL COMPLAINT”

Tomorrow: Been watching “Mrs. America”?

First an announcement:  Are you reading this early in the morning?  If so, there is still time for you to sign up for our firm’s On Demand Webinar: Ten Things to Know About the Title IX Regulations.  It’s at 10:00 this morning.  Haley Turner and I would love for you to join us.  Go to www.walshgallegos.com. 

Now for today’s content.  Let’s think for a moment about the distinction between human beings and school districts.  School districts are legal entities with geographical boundaries and a whole slew of laws that regulate what they have to do, what they may do, and what they can’t do.  There are also many things they can’t do, not because they are forbidden by law, but because…..well…because they are not people. 

Here are some of the things that people do that school districts can’t do: take a nap, eat pizza, daydream, watch Netflix, wonder when we can leave our homes, feel remorse, sing, throw a baseball, swim, smell a flower, dance.  Another thing that people can do that impersonal legal entities cannot do is to know something.  I know a few things, don’t you?  But school districts lack cognitive ability. Like the Strawman in The Wizard of Oz they do not have a brain. They can’t think. They can’t know. 

Title IX ignores all that and speaks of what the district “knows.”  Under Title IX, a school district is not going to be held liable for the sexual harassment of a student just because it happened.  Liability arises if: 1) it happened; 2) the district knew about it; and 3) the district responded to it with “deliberate indifference.”

Prior to the new Title IX regulations the standard for “knowledge” was that someone in the district who had the authority to do something about it “knew.”  The new standard is that the district is deemed to have knowledge if any employee of the district had knowledge. 

Here’s an example of the practical implications of that change.  Buddy and Bobby are fellow coaches, good friends and drinking buddies.  They are equal in the district’s organizational chart—teacher/coaches, neither of them supervising the other.  In fact, Bobby works at the middle school and Buddy is at the high school.  One late night, midway through the second six-pack, Buddy confides in Bobby.  He’s involved in a sexual relationship with a high school girl.  Buddy is the girl’s history teacher and informs Bobby that he is sure that the girl is going to earn an A in the class, along with an excellent recommendation for college. 

What does Bobby do with this information?  If he chooses to keep quiet about it, he will have violated school policy.  He will also have violated the Educator’s Code of Ethics and the moral principles of most people.  He may be liable for a failure to report suspected child abuse.  So by all means, Bobby should speak up. But let’s just suppose he doesn’t. 

Does Bobby’s knowledge of this situation put the school district on notice of a sexual harassment incident that it needs to address?  Under previous standards, the answer is no. Bobby is Buddy’s peer—he is not in a position to take corrective action.  He lacks authority to do so. But under the new regulations, what Bobby knows is imputed to the district.  Thus if the situation with the girl later comes to light, and a Title IX suit is filed, it’s not just Buddy and Bobby who will be in trouble.  The district will be in trouble because it “knew.” 

Students confide in all sorts of people in the school district: counselors, paraprofessionals, substitute teachers, bus drivers, bus monitors.  When any employee “knows” the district also “knows.” 

DAWG BONE: WHAT ANY EMPLOYEE KNOWS IS IMPUTED TO THE DISTRICT.

Tomorrow: The Formal Complaint Process

This week we are concentrating our Daily Dawg entries on Title IX, which will be guided by new regulations as of August 14^th.  Title IX is a deceptively simple law.  On its face the law simply prohibits sex discrimination in educational institutions that receive federal financial assistance.  We are accustomed to thinking of Title IX as it applies to athletics and other extracurricular activities.  There is no doubt that Title IX has accelerated the huge increase in participation and interest in female athletes.  But after the first wave of lawsuits involving sports, we began to see Title IX show up in cases involving sexual harassment. 

It's well established that harassment based on a protected characteristic (race, sex, age, disability, religion) is a form of discrimination.  Thus we have known for a long time that harassment based on sex is a form of illegal discrimination.  There are now hundreds of court cases interpreting the legal standards for sexual harassment under Title IX.  But until now the courts made their decisions based on the simple language of the law along with whatever guidance the Department of Education offered. That guidance came primarily in the form of Dear Colleague Letters, which some courts took seriously and some disregarded. 

The adoption of regulations changes the landscape.  The Department of Education’s Office for Civil Rights has complied with the procedures that our federal laws require when regulations are adopted.  They were published in the Federal Register in “proposed” form; the public had an opportunity to offer comments and recommended changes; the DOE reviewed the comments (almost 125,000 of them!); and now has published the final form of the regulations.  Because the process was proper, the courts will give these regulations considerable deference.

That’s one reason there is already litigation over the final regulations—the ACLU has filed suit, claiming that the regs provide inadequate protection for victims of sexual harassment, and adopt a standard for sex discrimination that differs from the standard for other forms of discrimination, such as race, national origin and disability.

With that in mind, today being Toolbox Tuesday, we offer just a few words about how these regulations will impact the discipline of students with disabilities. The short answer to that question is: not much.  The regs specifically say that they should not be construed in a way that modifies the legal standards for IDEA or Section 504.  Translation: all of the rules regarding 10-day removals, manifestation determinations, changes of placement, and non-discrimination are still fully in effect.

However, there are some concerns.  Special education directors should meet with Title IX Coordinators to talk about the interplay of Title IX and IDEA particularly when it comes to investigations of sexual harassment.  Title IX regs do not require a full blown investigation until a Formal Complaint is filed, but if and when that happens, the regs include a presumption of innocence for the student accused of wrongdoing until the Formal Complaint process is completed, which is going to take a long time.  We all need to think about how students are handled while that Formal Complaint process is going on.

So stay tuned.   Training is coming up on this and many other issues.  Our firm is offering four On Demand Webinars on the Title IX regs this month. The first one is tomorrow: Ten Things You Need to Know About the New Title IX Regulations.  I will be doing that one along with Haley Turner.  Three more follow: 

SO YOU GOT A COMPLAINT ABOUT TITLE IX: NOW WHAT?

June 11                                    Craig Wood and Katie Payne

TITLE IX AND SPECIAL EDUCATION:  

June 15                                    Paula Maddox Roalson and Hank Bostwick

TITLE IX COORDINATOR TRAINING:  

June 16                                    Robb Decker and Melanie Charleston

You can register for one or the entire series at www.walshgallegos.com. 

DAWG BONE: TITLE IX COORDINATORS…SPECIAL ED DIRECTORS…Y’ALL TALK TO EACH OTHER!

Tomorrow: Title IX and “actual knowledge”

It’s June, so it must be summertime, right?  I know that the solstice doesn’t come until later this month, but it’s already hot as hell around here, so I’m going to call it summertime.  Also, school is out.  Oh…wait…maybe it’s back in.  Hard to keep track these days. 

But here’s one thing I know about this summer.  Besides figuring out how we will deal with re-opening of our schools and repairing the damage done, we need to spend some time this summer preparing for the newly revised regulations pertaining to Title IX.  So we are going to spend all week on that here at the Daily Dawg, and the Zooming with the Dawg this Friday will feature Title IX and your school policy. I am pleased to be joined in the Zoom call by Sarah Orman, an attorney at TASB, who can fill us in on what and when to expect changes in school board policy.

This week’s entries on Title IX are not just for Title IX Coordinators.  All campus administrators need to be up to speed on the new regs, so I hope you will be reading this week and Zooming with us on Friday.

On Wednesday I will be doing an On Demand Webinar with Haley Turner: Ten Things You Need to Know About the New Title IX Regulations.  This is the first of four webinars our firm is offering this month on Title IX, and will be a good starting point for you.  Register for one, or the whole series, at www.walshgallegos.com. 

DAWG BONE: BIG CHANGES WITH TITLE IX. 

Tomorrow: Toolbox Tuesday Tackles Title IX.

John Bolton was fired from his position as a principal and attempted to appeal that decision to the Commissioner of  Education.  Mr. Bolton could not claim a breach of contract since he had none. He was employed “at will” by a charter school.  But he did file an appeal, claiming that the termination of his employment violated legal standards. 

The Commissioner summarily dismissed the case noting that he has no jurisdiction over personnel disputes in charter schools.  Charter school employees, of course, could have legal recourse if they have been the victim of illegal discrimination, but those cases would go to the EEOC or Texas Workforce Commission—not T.E.A. 

It's Bolton v. Student Alternative Program, Inc. dba Triumph Public Schools—Lubbock.  Decided on April 16, 2020, Docket No. 028-R2-01-2020.

DAWG BONE: NO, THIS IS NOT THE SAME “JOHN BOLTON.”

You might think that it would be simple to figure out if a teacher should be terminated for using excessive force with a student.  I would guess that everyone would agree that “excessive force” used against a student would be sufficient cause to fire a teacher.  But what is “excessive”? And how do you figure in the unique Texas statute that gives teachers a pass for using force on a student as long as they reasonably believe that the use of force was necessary?   When is a teacher’s belief about this “reasonable”?

So it’s complicated.  And that’s why the case of Edinburg CISD v. Villarreal has taken so many twists and turns.  The administration recommended that Mr. V be terminated for the unreasonable use of force.  The independent hearing examiner agreed with that recommendation.  The school board agreed with it.  The Commissioner disagreed with it and ordered the district to reinstate the teacher. The state district court agreed with the Commissioner. Now the Court of Appeals has disagreed with the district court and with the Commissioner, agreed with the school board, the independent hearing examiner and the administration.  So as of today, Mr. V is fired.

The ins and outs of the court’s decision are too arcane to deal with this close to the end of the school year.  Suffice it to say that schools should tread carefully when taking disciplinary action against a teacher for the use of force with a student. Teachers in Texas have an unusual degree of legal protection in those situations. That’s because of Texas Education Code 22.0512, which gives teachers immunity from any disciplinary action if the force they used was 1) not deadly; and 2) the teacher reasonably believed that the force was necessary to further a special purpose or to maintain discipline in the group. 

Of course the teacher testifying that “I thought it was reasonable” is not the end of the story.  The teacher’s belief about that has to meet the “reasonable person” test. Would the hypothetical reasonable person, facing those circumstances, believe that physical force was necessary?  You can see from the elasticity of those standards how arguments can fester. 

So be careful.  Call your lawyer.  The case is Edinburg CISD v. Villarreal, decided by the Court of Appeals for Corpus Christi-Edinburg on April 9, 2020.

DAWG BONE:  THE ONLY TEACHER “RIGHT” THAT IS EXPANDING THESE DAYS IS THE RIGHT TO USE PHYSICAL FORCE WITH STUDENTS.  HMMM.

Tomorrow:  It’s different in a charter school

I was pleased to be invited to participate in a video project sponsored by the Texas Young Lawyers Association about public schools, students and the First Amendment.    Check it out at: http://yourvoicenow.tyla.org. The project includes First Amendment icon Mary Beth Tinker (Tinker v. Des Moines), several students, teachers and administrators and me.  It would be great to share this website with social studies teachers and principals. 

It would be particularly timely to review the right of students to opt out of the recitation of the Pledge of Allegiance.  There is a case pending about this in Texas. Originally, the suit named as defendants the district, the superintendent, two principals, an assistant principal and four teachers.  The court has now dismissed all of these defendants except for one teacher who remains potentially liable.

So let’s review a few basics about this. First, the right of students to refuse to participate in this patriotic exercise is not up to debate.  The court opened its opinion with this:

There is no shortage of lawsuits against school districts and officials alleging constitutional violations against students, parents, or employees.  But it is rare to see a case alleging that a teacher or school district violated a public school student’s First Amendment right not to salute the flag or pledge allegiance to it. Why?  Because the Supreme Court made it clear in 1943, in West Virginia SBOE v. Barnette, that the First Amendment forbids compelling saluting or pledging allegiance to the flag.

Second, in Texas students cannot opt out of this exercise until they provide a written request for an exemption from a parent or guardian. Texas Education Code 25.082.  Some student somewhere in Texas is eventually going to challenge this statute, arguing that the constitutional right belongs to the student, and is not contingent on parent approval.  At this point, however, no court has struck down the statute. 

Third, punishing or harassing a student for exercising a right of free speech is a violation of that right.  So the responses of teachers and administrators to students who choose not to participate in the Pledge are relevant. 

Some of the educators were dismissed from the case because the actions they took were prior to the mother’s request for an exemption for her daughter.  Others were dismissed based on qualified immunity.  But one teacher was left twisting slowly in the wind.  Why?

The court held that there were too many unresolved factual disputes about this teacher to give a summary judgment to either side.  The specific act of the teacher in question was his assignment to the students that they were to write out the words to the Pledge.   The students were to do this while listening to “Born in the USA” by Bruce Springsteen.  The teacher said that he had used this assignment for years in an effort to “teach students that people sometimes recite things every day out of habit and without thinking about what they are actually saying.”  The student/plaintiff refused to do the assignment and there was a factual dispute over the consequence. Did the teacher give her a zero?  Apparently the record on that was not clear.  Key Quote:

Given the factual disputes and the many reasonable inferences the record evidence could support, a reasonable jury could come out either way on whether [the teacher’s] assignment was an impermissible attempt to promote patriotism.

Let’s pause and reflect on those last few words.  Are teachers not supposed to promote patriotism?  Is this not included in the TEKS?  I suspect the judge, if questioned, would acknowledge that teachers have the right, if not the duty to “promote” patriotism.  However, the teacher here is accused of using his authority to compel students to perform an act of patriotism.  That’s what makes the facts murky and subject to different interpretations by different juries.

So the case continues. But in the meantime, let’s try to avoid any such litigation by training teachers and administrators to respect the right of students, with written parent permission, to refuse to participate in the Pledge.  After all, it’s been the law of the land since 1943. 

The case is Oliver v. Klein ISD decided by the Southern District of Texas on March 25, 2020. We found it at 2020 WL 1646825.

DAWG BONE: IF THE SUPREME COURT SAYS IT, IT’S “CLEARLY ESTABLISHED.”

Tomorrow: Another “use of force” case.