On Tuesdays around here we focus on legal issues surrounding the discipline of students with disabilities.  Our firm’s Toolbox is an all day training program designed to empower administrators to use the ten “tools” that are available to simultaneously provide a safe and orderly campus while serving all students in the LRE.  One of the common dilemmas that administrators encounter in student discipline cases involves sorting out conflicting stories.  Two students engage in a fight, but each one blames the other for starting it.  A student is found to be in possession of something that doesn’t belong at school, but claims that someone else must have put it there.  A student claims a sexual assault, but the other student says it was a consensual encounter.  How do you sort that out?  Certainly this comes up with all of your students, not just those in the special education program. 

The Dawg offers no full proof method for discerning who is telling the truth, and who is shading it. But I came across some language in a recent case that at least points the way to relevant factors.  The parent had  accused the principal of making a child abuse report as an act of retaliation. The witnesses, including the parent and multiple school employees, gave sworn testimony before a special education hearing officer.  The federal court quoted this portion of the hearing officer’s decision:

I found all District witnesses to be credible, based upon the substantial consistency of their testimony with the documentary and testimonial record, their demeanor under oath, and their ways of responding to various questions.

Notice the three factors. First, their testimony was consistent with all of the other evidence.  Second, their demeanor was convincing.  Third, “their ways of responding” must have been straightforward and non-evasive. 

Those are all subjective factors.  It would be nice if you could use a dipstick approach and determine which witness was one quart low on the truth. But it will never be that way.  It’s difficult to hear people relate wildly different versions of the same facts and have to make a determination of who is more credible.  But that’s part of the job.  If you are investigating student misconduct, sexual misconduct, bullying, or other important issues with disciplinary potential, this is a part of the job.  This case is Aponte v. Pottstown School District.  We found it at 76 IDELR 38.

DAWG BONE: CONSISTENCY.  DEMEANOR.  MANNER OF RESPONDING TO QUESTIONS. ALL OF THIS GOES TOWARD “CREDIBILITY.”

 Tomorrow: “I Pledge Allegiance…” But what if I refuse?

The Dawg hopes you are enjoying the third day of a three-day weekend.  However, if you are like me, you are finding it difficult to distinguish one day from the next. 

This being a holiday we will not infringe on your time with legal concerns, but I do want to make an announcement.  This Friday’s Zooming with the Dawg will feature Dr. Kevin Brown, the Executive Director of TASA. I’m delighted that Kevin will be able to join us. We will talk about the current state of the world in light of….you know.  Being the Head Honcho of the Superintendents’ organization Kevin is in a unique position, and will be able to share with us his insights into what our schools will look like this summer and for the 2020-21 school year.

And we will open the Zoom call with a request for recommendations of good podcasts. What do you enjoy listening to?

So please join us on Friday at 10! Open to all Daily Dawg subscribers. If you are not yet on the list to get an invite to the Zoom call please send an email to info@wabsa.com. 

DAWG BONE: JOIN THE DAWG AND KEVIN BROWN FROM TASA THIS FRIDAY AT 10!

Tomorrow: Toolbox Tuesday

The most interesting part of the court’s decision in Pleasant Grove ISD v. Fieldturf USA, Inc. was the disclosure of the internal conflicts within the turf company between the sales team and the management. It reminded me of college and law school days when I worked in the summer for Bekins Moving Co. in Houston.  Most of the time I worked as a packer. We’d get to the house the day before the movers and pack up all of the books, pots and pans, dishes, the good china, the toys in the kids’ room and everything else.  It was a good summer job: $3.15 an hour, with plenty of overtime!

One of the problems we ran into occasionally was the over promising that the Bekins sales team did.  Whatever they had to say to get the job, they would say it.  So we encountered customers who were disappointed to learn that no, we would not watch the baby while the mom ran some errands.  The salesman told you we would do that?  Oh…I’m sorry. He must have misunderstood. Would we clean the kitchen drawers after we got all of the silverware out of them and into boxes? No, ma’am, I’m afraid that’s not one of the services we provide. We pack the utensils. The broken rubber bands, used toothpicks and dead roaches we leave behind.  The salesman said we would clean the drawers?   Oh my….those sales guys!

Apparently the same thing was going on at FieldturfUSA.  In connection with a lawsuit filed by Pleasant Grove ISD over its football field, some internal emails from FieldTurf execs surfaced.   Like this:

As you know our sales and marketing continually make claims that we can’t possibly meet in the real world.  This opens us up to tons of exposure from a legal standpoint….On the marketing side….the claims made regarding the [fiber comprising the turf product] are ridiculous.  Everyday we are putting stuff out there that can’t and won’t live up to the marketing spin.  We have to control this somehow!!

This turf battle ended up in litigation involving the district, its general contractor and a couple of the subcontractors.  The defendants whittled down many of the claims, but the case did produce a jury verdict in favor of the district for $175,000 based on a breach of warranty by FieldTurf.  Both the district and FieldTurf appealed to the Court of Appeals which recently issued a lengthy and very complex opinion and remanded the whole enchilada back to the trial court.

So it goes on. The appellate court’s opinion tells us more about the rules of legal procedure than anything else. But let’s take this away from it: The legal verbiage surrounding a school construction project is dense, complicated, and critically important.  Moreover, the legal issues when public funding is involved are different from the issues in a private construction project. The lawyers in our firm are among those who are well equipped to help you navigate this maze.

The case was decided on April 3, 2020 by the Court of Appeals for the 6^th District, in Texarkana.

DAWG BONE: SALES DEPARTMENT v. LEGAL: MORTAL ENEMIES.

The majority of the board for the Houston Community College System apparently felt that board member David Wilson was out of line.  Voters elected Mr. Wilson to the board in 2013. Four years later he stirred things up, much of this due to the decision by the board to fund a campus in Qatar. 

*He expressed concerns that the board was not following its own bylaws. 

*He gave an interview about his disagreements with the board to a local radio station.

*He set up robocalls to constituents .

*He filed two lawsuits against HCC and his fellow board members.   

*He retained private investigators to investigate HCC and the residency status of one of the board members. 

*He maintained a website where he published his various concerns. 

On January 18, 2018, the board voted to adopt a resolution publicly censuring Mr. Wilson.  The court described it this way:

In the censure resolution, the Board chastised Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The censure, the Board emphasized, was the “highest level of sanction available,” as Wilson was elected and could not be removed.  The Board directed Wilson to “immediately cease and desist from all inappropriate conduct” and warned that “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action by the Board.”

Mr. Wilson sued HCC, alleging that this censure resolution punished him for the exercise of free speech.  In a ruling that is sure to draw considerable attention from school board members, the 5^th Circuit held that Mr. Wilson stated a valid claim.  Key Quotes:

Under our precedent, Wilson’s allegation of retaliatory censure is enough to establish an injury in fact.  Additionally, the Supreme Court has held that a free speech violation giving rise to a reputational injury is an injury in fact.

….a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under Section 1983.

Notice: this suit was not against the individual members of the HCC board.  If it had been, those members would have vigorously asserted various theories of immunity, including legislative immunity which is very broad. Mr. Wilson limited his suit to the HCC itself, rather than the individuals. 

Here's another interesting wrinkle: the board imposed three sanctions on Mr. Wilson in addition to the censure.  He would not be eligible to serve as an officer (sounds like he would not have been elected to an office anyway); he was ineligible for travel reimbursement for a year; and his requests for access to the funds in his Board account for community affairs would have to be approved by the full Board.  Even though these measures were more concrete than a censure resolution, the 5^th Circuit held that they “do not violate [Mr. Wilson’s] First Amendment rights.”  It was only the censure that was legally significant. 

Do you ever have disagreements between board members?  Do some of your board members believe that some other members are out of line? Inappropriate?  Illegal?  This case is an important precedent establishing the parameters for board action that disciplines individual board members.  This is an area where the board would be wise to consult carefully with legal counsel before taking action. 

The case is Wilson v. Houston Community College System, decided by the 5^th Circuit on April 7, 2020.  HCC is seeking to have the decision reviewed by the 5^th Circuit en banc.  So stay tuned.

DAWG BONE: PUBLIC CENSURE OF A BOARD MEMBER MIGHT INFRINGE ON FREE SPEECH RIGHTS. BE CAREFUL.

Tomorrow: the football field did not live up to expectations…

The 5^th Circuit has declared the lawsuit that challenged the Texas law that requires certain contractors to promise not to boycott Israel moot. Thus it has been dismissed. 

Let me refresh your memory about this interesting legal squabble.  It began in 2017 when the Texas legislature enacted a law that required every company that contracts with any governmental entity, such as a school district, to contractually promise not to boycott Israel during the term of the contract. School districts were required to make sure that their contracts with outside service providers included this provision.

The law was part of the pushback against the “BDS” movement which sought to pressure governments and private companies to boycott, divest and sanction (BDS) Israel over its treatment of its Palestinian citizens. It’s a national movement, as is the pushback against it.  Many states have adopted laws similar to the one in Texas.

A speech therapist who contracted with Pflugerville ISD refused to sign the contract that included the “no boycott” clause.  The district terminated the contract. She sued, claiming that the contractual provision infringed on her First Amendment rights to engage in a non-violent boycott based on her political views. 

She was successful. The federal district court agreed that the provision was unconstitutional and issued a statewide injunction against its enforcement.  Pflugerville did not oppose the injunction, but there were other plaintiffs and defendants in the case, and those defendants opposed the injunction and appealed it to the 5^th Circuit.

Then along came the 2019 legislative session and a revision of the law.  The 2019 version limited the application of the law to companies with more than 10 full time employees and a value in excess of $100,000.  The speech therapist in Pflugerville, along with her fellow plaintiffs, were all sole proprietors. They were no longer required to comply with the law.  So the case was moot.

It would have been interesting to see how the Circuit Court would have ruled on the substantive issue presented here, but it’s a fundamental rule of our federal courts that they do not rule on issues unless there is a real live controversy.  Since the plaintiffs were no longer required to comply with the “no boycott” provision, they no longer had a personal stake in the outcome. 

Moot. Despite 14 amicus briefs being filed.  The case is Amawi v. Pflugerville ISD decided by the  Circuit on April 27, 2020.

DAWG BONE: MEANWHILE, THE LAW IS STILL IN EFFECT.

Tomorrow: Is your board thinking about censuring one of its members?  Might want to think twice.

New regulations governing Title IX go into effect on August 14^th.  Most of the media coverage about the regs will focus on the swirling controversy over how these regs address sexual harassment and due process.  Do they adequately protect the rights of the victims of sexual assault?  Do they go too far in protecting the due process rights of the person accused? There will be a lot of controversy over these issues, not to mention litigation. 

However, there is also a provision in the regs that apply to K-12 schools that should cause all educators to snap to attention.  The regs say that if any employee of the school district has knowledge that a student is the victim of sexual harassment or a hostile environment, the school district as a legal entity is then “on notice” and is obligated to do something about it. 

Any employee.  ANY employee. Let that sink in.  Imagine a situation in which a student confides in a trusted teacher aide, who then tells no one about it.  Months pass.  Under these regulations, the district is legally obligated to address the situation, even though the teacher doesn’t know about it, the principal doesn’t know about it, the superintendent doesn’t know about it and the Title IX coordinator doesn’t know about it. 

“Any employee” means just that--bus drivers, paraprofessionals, custodians, food service workers, brand new teachers. If any such person has personal knowledge that a student has been sexually harassed, the school district is obligated to address the issue. 

Training is needed.  Lots of it. At Walsh Gallegos, we are gearing up for this. Look for upcoming Zoom conferences, and let us know how we can help your district prepare for this.

DAWG BONE: BIG CHANGES IN TITLE IX

Tomorrow: Remember the “boycott Israel” case?

We’ll be Zooming again this Friday at 10 in a freebie event open to all Daily Dawg subscribers.  If you are not already registered for Zooming with the Dawg, send an email to info@wabsa.com.

This Friday we’re going to tell you about how one district wisely handled a difficult situation involving the Senior Trip which was canceled, after four years of fundraising efforts by the students.   What to do with that money?  We’ll also talk about a recent case that illustrates how things can get messy when sporting fields fail to live up to the promises of the sales team.  You can read about that case in the Daily Dawg for Friday, and then we’ll provide some more insight in the  Zoom.  You might want to bring along your A.D.  Tony Resendez and Eddy Perez from our firm’s San Antonio office will be on the call to give us some perspective on these issues.

DAWG BONE: SALES GUYS SOMETIMES OVER PROMISE.  CAN YOU BELIEVE IT?

Tomorrow: Toolbox Tuesday

Zoom with the Dawg today at 10! We’ll talk about graduation exercises and the legal issues surrounding it. Open to Daily Dawg subscribers.

The 6^th Circuit Court of Appeals has declared that children in our public schools have a fundamental constitutional right to a level of education that at least imparts literacy. Key Quote:

We hold, therefore, that the right to a basic minimum education—one that can plausibly impart literacy—is “implicit in the concept of ordered liberty.”  When combined with the historical analysis discussed above, this means that access to such a basic minimum education is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment.

Texas educators should take a particular interest in this important decision because it relies heavily on two Supreme Court cases from Texas: San Antonio ISD v. Rodriguez (1973) and Plyler v. Doe (1982).  In the 1973 decision, SCOTUS held that education is not a fundamental right under the U.S. Constitution. That ruling moved the fight over equity in school finance to the state courts where it lasted for decades.  The Plyler case held that undocumented students had a constitutional right to education alongside the children who were born in the United States.  In doing so, the High Court held that education was a particularly important state function, thus entitled to a heightened level of scrutiny from the courts.

This new case arose out of abysmal conditions in five schools in Detroit.  The court noted that the allegations in the suit indicated that there was not even the pretense of “education” going on in those building, thus depriving the students of a chance at literacy, which is fundamental to the exercise of our other constitutional rights.  The majority opinion (this one was 2-1) made the point that education is unlike food, housing or medical care:

Simply put, education is different…..We can think of no other area of day-to-day life that is so directly controlled by the state. With that control must come responsibility, particularly because some minimal education—enough to provide access to literacy—is a prerequisite to a citizen’s participation in our political process.

This decision is historic because it is the first judicial declaration by a high level court of a right to some level of education that is protected by our nation’s founding document—the Constitution. However, the decision alone will not advance the cause of education one iota. This issue is likely to end up before the Supreme Court, and if the composition of the Court remains as it is, the decision is likely to be reversed. 

But in this time of COVID-19 when we see how critical our public schools are in our communities, this is a decision to be celebrated by educators.  So I wanted to be sure you knew about it.  It’s Gary  B. v. Whitmer, decided by the 6^th Circuit on April 23, 2020.

DAWG BONE: A CONSTITUTIONAL RIGHT TO LITERACY.

The English teacher got suspicious about what was going on down the hall in the History class.  She reported to the History Department Supervisor

That “her students were questioning historical accounts of the Holocaust, opining that ‘Hitler didn’t hate the Jews,’ that statistics on the death counts were ‘exaggerated’ and that [the students] ‘got the information from their world history teacher, Mr. Ali.”  Students’ written assignments confirmed the English teacher’s accounts. One student wrote in a paper submitted to Ali’s class that “Adolf Hitler…is looked at as a bad guy but in reality brought Germany out of its great depression.”  Another of Ali’s students expressed a belief that “what they claim happened in the concentration camps did not really happen” and that “Jews…had a much easier and more enjoyable life in the camps.”

Mr. Ali’s alternative views of history came to the attention of the media because he posted links to articles on the school’s website.  Articles like:

U.S. Planned, Carried Out 9/11 Attacks—But Blames Others for Them.

Saudi  Abdailah Al-Yahya: The Jews are Like a Cancer, Woe to the World if they Become Strong.

The superintendent informed the TV reporter that the school would investigate and take disciplinary action if warranted.  That’s exactly what happened, quickly. Mr. Ali’s employment was terminated.

He sued, claiming discrimination, retaliation and an infringement of his free speech rights. On April 22, 2020, the 3^rd Circuit Court of  Appeals ruled against him on all counts. The court opened its opinion with this:

At times there are nuances that arise from history that create equivocation in analyzing how, why, and when certain historic events have occurred.  There are no nuances to be discerned regarding the Holocaust. It is a historic fact. 

That pretty well sealed Mr. Ali’s fate.  A history teacher, like all Americans, can hold alternative views of history, but cannot teach whatever they happen to believe. The court summarized some of the evidence:

Ali does not deny that he never expressly apologized for his conduct…Moreover, evidence such as the students’ assignments and emails to Ali and Ali’s deposition testimony shows that Ali permitted conspiracy-theorist and Hitler-apologist presentations in his class and encouraged students to develop these opinions.  Indeed, Ali did not dispute that he presented sources containing conspiracy-theorist and Hitler-apologist views that appeared in his students’ work product.

Key Quotes:

Teachers do not have a protected First Amendment right to decide the content of their lessons or how the material should be presented to their students.

Ali did not have a right to decide what would be taught in the classroom.

It’s Ali v. Woodbridge Township  School District, decided by the 3^rd Circuit on April 22, 2020.

DAWG BONE: YOU CAN BELIEVE WHAT YOU WANT, BUT YOU MAY NOT BE ABLE TO TEACH IT

Tomorrow: Does the Constitution include a right to literacy?

Dear Dawg:  The High Muckety Mucks in charge of the Serenity Falls ISD seem to think they are not required to comply with the Texas Open Meetings Act. As you know, Dawg, the legislature now requires that every citizen who wishes to speak to the board at a board meeting must be allowed to do so. And they are allowed to address every single item on the agenda. 

Last week the board held a meeting with 15 items on the agenda.  There was a group of Involved and Intelligent Citizens who wanted to speak to each of those items. But the board would not allow it. First, the board informed its subjects that public comment would only take place at the start of the meeting.  Once that was over and the board started to take up its 15 agenda items, the Citizens would be muzzled. Furthermore, each of the Involved and Intelligent Citizens—there were eight of them--was restricted to three minutes. Three minutes TOTAL—not three minutes per agenda item. 

This is a violation of basic norms of Democracy, Dawg.  Please straighten these people out.  SNORT.

DEAR SNORT: Always good to hear from you, Snort.  But I’m not sure you have encountered the Attorney General’s Opinion about these issues. Mr. Paxton opined that it’s perfectly OK for the board to limit public comment to the beginning of the meeting.  His opinion addressed questions posed by a county, but the answer applies to all governmental entities.  Key Quote:

A county may satisfy subsection 551.007(b)’s requirements by having a single public comment period at the beginning of an open meeting to address all items on the agenda.

He also said the board could restrict each speaker to a timeframe as long as it was “reasonable.”  So you had eight people who each wanted to speak to each of 15 agenda items.  If you give each person two minutes, you would then have a public comment period that lasts 240 minutes (8x2x15). That’s four hours. Is that ”reasonable”?  Or would it be “reasonable” for the board to cap each speaker at maybe 3 minutes total?

The AG did not define “reasonable” declaring it to be a factual determination that involves multiple factors. Key Quote:

Pursuant to subsection 551.007(c), a governmental body may adopt a rule capping the total amount of time a member of the public has to address all items on the agenda if the rule is reasonable.

It’s KP-300, issued on April 22, 2020.  Keep coming back, Snort.

DAWG BONE: CAPS ON PUBLIC COMMENT ARE OK IF THEY ARE REASONABLE.

Tomorrow: English teacher blows the whistle on the history teacher.