Three weeks ago the Department of Education issued an updated “Guidance” document addressing prayer and other religious expression in our public schools. The DOE is required by law to do this, and school districts are required to certify that they are honoring the constitutional rights of students and employees with regard to religion.

Guidance on this topic was first issued under President Clinton in 1995. It was updated in 2003 and again in 2020. And now this.

It’s not surprising that DOE would update the Guidance on this topic after last year’s Kennedy v. Bremerton School District Supreme Court ruling. The Kennedy decision is cited in four of the 21 footnotes to the Guidance.

The new Guidance reflects the impact of that decision, noting in several ways that students and employees, even when “on the job,” can offer quiet, brief, private prayers. That’s what SCOTUS concluded that Coach Kennedy was doing at the 50-yard line after each football game. In line with the Kennedy decision the Guidance tells us that schools may not prohibit:

employees from engaging in prayer merely because it is religious or because some observers, including students, might misperceive the school as endorsing that expression.

The Guidance also makes it clear, however, that the Kennedy decision goes no further than that:

For example, teachers, coaches, and other public school officials acting in their official capacities may not lead students in prayer, devotional readings, or other religious activities, nor may they attempt to persuade or compel students to participate in prayer or other religious activities or to refrain from doing so.

It’s all posted for your reading pleasure at https://www.ed.gov

DAWG BONE: OREMUS.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!

Title IX case law has given us new terminology that nicely summarizes one of the main purposes of this historic legislation: let’s get away from the “archaic assumptions” many of us grew up with.  You can watch Nick at Night and find those assumptions on full display in 1950s and 1960s TV shows like Father Knows Best and Leave it to Beaver.  You know: men make the money while women keep house.  Girls are not interested in playing sports.  Girls dress and act a certain way, and so do boys, but they are different.  Looking back on the cultural milieu I grew up in, I can see that I was being indoctrinated to believe certain things about how boys and girls, men and women were supposed to be. Title IX blew all that up and invited us to leave behind stereotypes and assumptions that had grown “archaic.”

This came up in a recent 5^th Circuit decision, Doe v. Rice University based on the complaint filed by Roe.  You know from those pseudonyms that this case involves sexual activity.  Jane Roe accused John Doe of infecting her with herpes. She filed a complaint with Rice University that ultimately led to Doe’s loss of his full-ride football scholarship. 

Before I tell you how “archaic assumptions” fits in here, I need to tell you what Rice University did not decide. It did not decide that Doe engaged in dating violence. Nor did it conclude that he violated the University’s Sexual Misconduct Policy.  The investigation revealed that the sexual relationship was consensual, and that Doe informed Roe that he had had herpes while in high school. 

So what was the infraction?  Rice found him guilty of “reckless action from which mental or bodily harm could result to another person.”   He was disciplined because he “failed to adequately notify [Roe] of the fact that she was at risk of contracting HSV-1 from him if the two of them engaged in unprotected sex.” The disclosure of his previous sexually transmitted disease was deemed inadequate.  He had to go further to make sure she understood the risks.

In other words, Rice required Doe to “mansplain” the situation to a woman two years older than him, and he thinks this is a reflection of an “archaic assumption” which is not consistent with Title IX.  Here is how Doe put it:

“certainly assuming that an adult female college junior is incapable of understanding the risks of sexual intercourse without the male educating her is part of” the archaic thinking our case law prohibits. 

The 5^th Circuit found merit in that argument.  Doe’s suit alleged that he was discriminated against because he is a man in violation of Title IX.  The federal district court found no violation of Title IX here, but a panel of the 5^th Circuit reversed that decision by a 2-1 vote. The majority opinion did not say that Rice violated Title IX, but it held that there were fact issues here that need to be resolved and thus it was too soon to dismiss this case.  Among those fact issues is this one:

A rational juror could conclude that to absolve Roe of responsibility for her own risk-assessments—and to place that burden on her male partner—is to act on archaic assumptions in violation of Title IX. 

The dissenting judge carefully avoided endorsing the University’s policy:

But it is not our place to determine whether the University’s policies or the Code of Student Conduct are wise.  Our job is to determine whether the policy was either motivated by gender bias or enforced in a manner that discriminates on the basis of gender in violation of Title IX.  Doe has overwhelmingly failed to show gender discrimination here.

The dissenting judge emphasized that Doe had not created a fact issue about his gender being the motivating factor for the University’s decision.  Doe did not identify any female student who was in the exact same situation and yet treated differently.

Although the three judges on the panel could not agree on the outcome of this case, it’s clear that they would agree with the notion that we need to drop whatever assumptions we have about men and women, boys and girls, that have grown “archaic.”   This has implications for your athletic department, your dress codes, and how teachers and counselors influence students to pursue different goals in life.

It's Doe v. William Marsh Rice University, decided by the 5^th Circuit on May 11, 2023.  It’s cited at 2023 WL 3373316.

DAWG BONE: MAYBE FATHER DIDN’T KNOW BEST.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Once again on this particular day in the calendar I feel an overwhelming sense of disquiet, discontent, a general sense of unease.  Do you feel it?  We have been, once again, dismayed.

DAWG BONE: AND YET, WE PERSIST.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: got any archaic assumptions?

If Governor Abbott signs HB 567 you will need to be sure that your dress code, including any extracurricular dress code, complies with this new law that is set to take effect on September 1.  It prohibits discrimination based on “hair texture or protective hairstyle commonly or historically associated with race.”  The bill is not only aimed at K-12 schools. It also includes sections covering higher ed, employment, and property rights.

This is sure to raise some opportunities for creative students to push the envelope beyond what the authors of this bill probably had in mind.  I’d call this bill one more reason to limit your rules about hair to allow anything that does not create a safety hazard.

DAWG BONE: WHATCHA GONNA DO, GOVERNOR?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: oh no….

Aloha!  The Dawg happens to be in Hawaii right now, and so I found a Toolbox Worthy case from the Pineapple State.  It involved a complaint from parents that the BIP was not incorporated into the IEP. They were concerned that this would mean that the BIP could be changed without their input. However, the court held that this was not a violation of law, noting that 1) the law did not require a BIP for this student; 2) the parent had plenty of input as to the BIP; 3) there were numerous behavioral strategies and supports that were incorporated into the IEP; and 4) Hawaii regulations provided that a BIP could not be changed without parent notice and input.

The outcome would likely be the same if the case came up in Texas, even if the student did need a BIP. That’s because of Section 29.005(g) of the Texas Education Code:

The [ARD] committee may determine that a behavior improvement plan or a behavioral intervention plan is appropriate for a student for whom the committee has developed an IEP. If the committee makes that determination, the BIP shall be included as part of the student’s IEP and provided to each teacher with responsibility for educating the student. 

This is all covered in the Toolbox in our discussion of Tool #1, which all Toolbox veterans know is The Most Important Tool. 

It’s E.W. v. DOE State of  Hawaii, decided by the federal court for the state of Hawaii and located in the Individuals with Disabilities Education Law Reporter at 83 IDELR 14 (D. Ha. 2023).

DAWG BONE: CARRY ON, LOYAL DAILY DAWG READERS. I’M HEADED FOR THE BEACH.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.  Tomorrow: what will the Governor do?

Personal Privilege Day here at the Daily Dawg because today marks a significant anniversary. Fifty years ago, on May 26, 1973, I took a memorable trip to the laundromat on Post Oak Drive in Houston. I had to get my laundry done that day. I had just gotten home after my first year of law school and I was going out of town the next day. On my honeymoon.

This being my Special Day I was sure that one of the many women rushing about my father’s house getting ready for the Big Event would volunteer to take care of this tedious task for me. I was about to commit matrimony. Surely, someone would take my dirty underwear and other things to be washed. Dad did not have a washer/dryer, so this involved a trip to the coin operated laundromat. I dreaded spending time in the overly hot, boring laundromat with nothing to read but three-month old magazines. So I dropped numerous hints.

“It looks like I need to get some clothes washed before the wedding,” I said. No response.

“I hope there will be enough time to get my clothes washed. The wedding is in a few hours.” Nothing.

Finally, I planted my most self-pitying expression on my face, with laundry basket on my hip and said, “OK….I guess I’ll go up to the laundromat. I hope I can get back in time to make it to the church.”

They just let me walk out the door, get in the car, and drive away. Sheesh.

The OTL (One True Love) and I took the vow later that afternoon. Now here it is a full five decades later and she is Still the One.

Looking back, I think that taking care of my own dirty clothes was exactly the right way to prepare for the commitment I was about to make. One thing I have learned is that marriage is not a 50/50 deal. It’s a 100/100 deal. If that means doing your own dirty clothes, so it goes.

Happy Anniversary, Sweetie!

DAWG BONE: NO DAWG ON MEMORIAL DAY. WE’LL BE BACK ON TUESDAY.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

IT’S “ZOOMING WITH THE DAWG” DAY!! HOPE TO SEE YOU AT 10:00 FOR A LIVELY DISCUSSION OF AI AND ITS IMPLICATIONS.

The court in Pennsylvania cited the usual standard about disputes over educational methodology:

…there is no requirement that it [an IEP] use specific language or terminology to define the method or approach that will be used by educational professionals…. A lack of specific methodology in an IEP is not a procedural error warranting compensatory education or tuition reimbursement.

The court also noted the extensive communication and numerous meetings with the parents, concluding that the parents were “intimately involved in the process of crafting [the student’s] IEP.” They were not denied “their participation rights.”

Standard stuff. But what stood out to me was the casual comment the court made about the testing done by the independent expert retained by the parent:

Along with her battery of testing, Ms. Ganges administered the Dynamic Evaluation of Motor Speech Skill (“DEMSS”); however, she did not administer this test in accordance with publisher guidelines. Ms. Ganges used only 19 of the words out of the 65 from the DEMSS—she did not note this deviation in her expert report.

The publisher guidelines are important. Failure to follow them, or to have a good explanation why you did not do so, will undercut the credibility of the expert’s report.

It’s M.S. v. Downingtown Area School District, decided by the federal district court for the Eastern District of Pennsylvania on October 28, 2022. It’s published in the Individuals with Disabilities Education Law Reporter at 82 IDELR 32.

DAWG BONE: FOLLOW THE GUIDELINES.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: my trip to the laundromat….

The magistrate’s report in a recent case included a discussion of a rarely cited freedom we all enjoy under the First Amendment: the freedom of association. The report divided that freedom into two parts:

The First Amendment broadly protects two types of association: (1) the choice to enter and maintain certain intimate familial relationships and (2) association for engaging in other activities protected by the First Amendment, such as speech, religion, or redress of grievances.

A footnote in the case caught my eye. The footnote was about an assistant football coach at the University of Southwestern Louisiana (USL then, but now known as The University of Louisiana at Lafayette) who alleged that he got canned because his son decided to play football for LSU instead of USL. He lost his case because the court concluded that USL had a legitimate reason to fire him. What was the reason? USL argued that the kid’s decision to play for LSU would adversely affect alumni relations and recruiting efforts for the lesser known school. Kipps v. Caillier, 197 F.3d 765 (5th Cir. 1999).

Really? Like Ragin’ Cajun fans are going to be surprised that a star football player from the State of Louisiana would rather play for LSU????

DAWG BONE: TO SQUEEZE ALL THE JUICE OUT OF THE CASE YOU HAVE TO READ THE FOOTNOTES.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: how important are those publisher guidelines?

Participants in Toolbox Training get a book and two laminated sheets. One of those is a “Thinking Flow Chart.” I have to admit that the existence of this chart represents a failure on my part. I wanted to create one of those colorful diagrams educators are so good at creating with squares and diamonds and circles and different colors and arrows taking you from one decision to the next. I tried to reduce the entire Toolbox to something like that, but eventually gave up on it. The concession prize was the Thinking Flow Chart which contains no color, no shapes, no arrows. It’s visually boring, but the best that I could do.

The idea behind it is to pursue options in a logical sequence. So we start with “Did the student violate the Code of Conduct?” We then proceed to Preliminary Questions, such as “Is this a case involving ‘Special Circumstances’?”

You get the idea.

Want more information about Toolbox Training? Reach out to me at the email below.

DAWG BONE: THINKING FLOW CHART: BORING BUT EFFECTIVE.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: would you rather play for USL or LSU?

WE’RE ZOOMING WITH THE DAWG THIS THURSDAY!! BE THERE AT 10:00. WE’RE GOING TO TALK ABOUT CHATgbt AND THE RISE OF AI.

You can find the first Daily Dawg report on the frog jump case on the April 7th post. The court tossed out the suit then, and now it has tossed it out again. The first ruling was “without prejudice” which meant that the plaintiff’s lawyer was given the opportunity to take another shot at explaining why the case might have merit. The lawyer then filed an amended complaint, but the court tossed this one also. This time the dismissal was “with prejudice.” That doesn’t mean the judge has a prejudice. It means that the plaintiff is not allowed to amend the complaint and take another shot. It's over, unless the plaintiff appeals to the 5th Circuit.

The suit alleged that Northside ISD favored football more than cheerleading. The suit alleged that the district pours resources into football, including significant efforts to provide for student safety, whereas the all-girl cheerleading squad at Clark High School was inadequately supported. According to the suit, this was why the plaintiff was required to do 150 “frog jumps” in sweltering heat, causing physical injuries. All because she was late for practice.

To hold the district liable for constitutional violations in a case like this the plaintiff has to show that board policy, or clearly established custom, led to the student’s injuries. But the term “frog jumps” appears nowhere in NISD policy and in fact, the district’s policies prohibit the use of exercise as a form of punishment. So there was no basis for district liability under the Constitution.

What about Title IX? That’s where the plaintiff alleged that the district favored football more than cheerleading. The plaintiff tried to make a sex discrimination issue out of that, but the effort failed:

…Plaintiff’s allegations at most demonstrate a discrepancy between sports.

The court noted that this same argument (by the same lawyer) had been dealt with previously in a case involving a dance team. The court quoted the earlier opinion:

As there are myriad differences between football and the dance team besides the gender of the majority of each activity’s participants, this is not differential treatment of similarly situated individuals. Title IX liability does not arise based solely on the fact that different sports teams might require different treatment based on the unique training, safety, performance, and other specific factors related to each.

It's Murphy v. Northside ISD, decided by the federal court for the Western District of Texas. The original decision was issued on February 16, 2023. It’s located at 2023 WL 2060744. The “with prejudice” dismissal happened on May 3, 2023, and can be found at 2023 WL 3232614. I’m pleased to let you know that Katie Payne and Craig Wood from our firm’s San Antonio office represented the district on this one.

DAWG BONE: DISMISSAL “WITHOUT PREJUDICE” MEANS YOU CAN TRY AGAIN. DISMISSAL “WITH PREJUDICE” MEANS WE ARE DONE HERE.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!