This COVID thing has put the Toolbox on the shelf.  As most of you know, the Toolbox is our firm’s all day training program focusing on the disciplinary options when dealing with students with disabilities who engage in disruptive or violent behavior.  I have done Toolbox trainings all over the state, and would love to continue to do so. But it doesn’t make much sense right now.

For one thing, we can’t gather in numbers. We limit Toolbox sessions to 40 or 50 people, but still, that’s way more than is allowed currently.  Furthermore, the school buildings are closed. This just isn’t the time when an all-day, face to face training is feasible.

But I am available for Zoom conferences or webinars of some sort. If your district or ESC is interested in a session of one to two hours, that would be plenty of time to give an overview of the Toolbox, or a refresher for those of you who have had Toolbox training.  The kids will be back next year, you know, so now would be a good time to put some things in place so that you will be well equipped to handle whatever comes your way in the 2020-21 school year.  The goal of the Toolbox training is to give you a framework and vocabulary to better understand your options.  This improves the self-confidence of school administrators when dealing with challenging situations. 

So let me know if you are interested, and we can get something on the schedule. Send an email to me at jwalsh@wabsa.com. 

DAWG BONE: TOOLBOX STILL AVAILABLE!

Tomorrow: why teachers are so important as witnesses

When I was in law school, I was taught that the Latin expression “respondeat superior” means “let the boss pay.”  That’s pretty much the concept.  It comes up in tort cases—cases involving personal injury other than a breach of contract.  It enables an injured party to recover from the guy who has the money, even though the guy with the money is not the one who directly caused the injury. 

For example, if I slip and fall on a wet spot at the H.E.B., it is hardly the fault of Charles Butt or any of the corporate bigwigs who own and operate the H.E.B. grocery chain. It’s probably the fault of some minimum wage worker who didn’t get over to the produce aisle fast enough to clean up the mess.  But with the doctrine of “respondeat superior” I can successfully sue H.E.B. without having to prove that the company did anything wrong. I just have to prove that I was injured due to the negligence of one of their employees.

Having provided that example, I suddenly feel guilty. I should not be using H.E.B. as the example here. They have been heroic throughout this COVID-19 pandemic.  I am grateful for the dedication of the people stocking the shelves, handing out the wet cloths as you enter, ringing up the sales behind a plastic shield, gently guiding the long line of carts to the open register.  Going to H.E.B. has been the highlight of the week for me these past several weeks.  So I am regretful that H.E.B. is what popped into my head to illustrate the legal concept of “respondeat superior.”

So let’s start over. Suppose I slip and fall at Target—a Minnesota corporation.  I don’t have to sue the poor underpaid, overworked employee who failed to clean up the wet spot. I can sue Target.  Let the boss pay!

Obviously, the lawyers who represent injured parties love “respondeat superior.” It makes their jobs so much easier, and more lucrative.  When those lawyers take on a case involving someone who slipped and fell at a public school district they are often shocked to learn that “respondeat superior” does not apply to governmental entities in Texas.  Instead, the Texas Tort Claims Act applies, and it limits school district tort liability to cases arising from the negligent use or operation of a motor vehicle.

The same is generally true under federal law.  But there is an exception: disability discrimination under ADA and/or Section 504.  Thus in I.V. v. Vacaville USD, a federal court in California cited several Circuit Court decisions for the notion that school districts can be liable for the actions of their employees under ADA/504 based on respondeat superior.  Thus the district faced potential liability for the violent assault of a student with a disability by a bus driver who was later charged with felony child abuse. Of particular interest to us is that one of the Circuits cited was our 5^th Circuit.  We found this case at 76 IDELR 45 (E.D. Cal. 2020).

DAWG BONE: THOSE BUS VIDEOS……

Tomorrow: Toolbox Tuesday!!

The principal discovered the problems in the kindergarten class when the teacher, Ms. Riou, went out on FMLA leave.  The substitute could not find a record of benchmark testing or grades.  Upon further investigation, the school administration determined that there was a serious problem.  The superintendent recommended termination of Ms. Riou’s contract. The board approved. 

Years later the case ended up before our state’s highest court.  The teacher asserted that the school district never produced evidence to show that she had violated standards of conduct for the profession “as generally recognized and applied in similarly situated school districts” in Texas.  In the termination hearing the district did not present a witness to testify about how this would be handled in “similarly situated school districts.” This is the standard for termination of a continuing contract as per T.E.C. 21.156(a).  The teacher’s lawyer argued that this fatally doomed the school district’s case.

The case first went to T.E.A.  The Commissioner acknowledged the lack of evidence about “similarly situated school districts” but held that in this case it did not matter.  Ms. Riou’s conduct amounted to “good cause per se” sufficient for the board to terminate her employment.  

The words “good cause per se” are not to be found in the Education Code. But the Commissioner concluded that some behavior is so obviously grounds for termination that the district does not have to present evidence of standards applied in “similarly situated school districts.”

The Texas Supreme Court rejected that reasoning, noting that there is “no support in the law for good cause per se.”  So the teacher wins?   No. The court noted that grading and testing are required of all teachers by state law.  State law provides a standard of conduct that is “generally recognized and applied” in all districts.  Key Quotes:

A state law or regulation imposed generally on ALL districts can be evidence of a “generally recognized and applied” standard of conduct.  (Emphasis in the original).

The district need not have introduced specific evidence that individual districts view grading and testing as indispensable job responsibilities for a classroom teacher, as that standard is incorporated in state law.

Thus the Supreme Court reached the same destination as the Commissioner, but by a different route.  The Commissioner cited “good cause per se” and the court noted that the teacher’s conduct violated standards incorporated by state law. Either way, the teacher is out of a job.

The lesson for the future is that school lawyers in a teacher termination case can present a witness who testifies about the standards in similarly situated districts, or they can present evidence about standards incorporated into the law.  Some of you may be thinking that this case has little impact, since it deals with a continuing contract teacher, of which there are not many.  However, the same standards apply to the termination of a probationary contract prior to its normal expiration date.  So I would call the legal issue here obscure, but in some cases, critical.

The case is North East ISD v. Riou, decided by the Texas Supreme Court on March 27, 2020.

DAWG BONE: SO I GUESS WE WON’T BE HEARING “GOOD CAUSE PER SE” ANYMORE.

Interested in Zooming with the Dawg?  We’re doing that on Monday, April 27 at 10:00.  If you want in, send an email to jwalsh@wabsa.com.  Free.  Only for subscribers.

The cover story in the April issue of Texas Monthly is about a 1978 shooting that occurred at Murchison Middle School in Austin ISD. A bright and popular 8th grader, son of well-connected parents, shot and killed Rod Grayson, a teacher, in front of a room full of students. The TM story recounts the aftermath and the way the horrific incident affected the kids in that classroom, now in their 50s.

One of the things I learned from this article is that there is a Memorial to Fallen Educators where Mr. Grayson is memorialized along with teachers from Sandy Hook, Santa Fe, and other places where teachers have been murdered in the line of duty. This Memorial is at the National Teachers Hall of Fame at Emporia State University in Emporia, Kansas. Did you know there was such a thing?  Me neither.

Just thought you might want to know. Hope you can find the time to read this excellent piece of journalism by Robert Draper at www.texasmonthly.com. 

DAWG BONE:  NATIONAL TEACHERS HALL OF FAME.  WHO KNEW???

Interested in Zooming with the Dawg?  We’re doing that on Monday, April 27 at 10:00.  If you want in, send an email to jwalsh@wabsa.com.  Free.  Only for subscribers.

Tomorrow: court reaches same destination as the Commissioner, but by a different route.

If you visited the Texas Capitol on December 21, 2015 you might have seen an exhibit featuring George Washington, Thomas Jefferson, Ben Franklin and the Statue of Liberty huddled around a manger.  You know, a manger….like where Jesus was born.  Washington was on one knee, and the others looked equally worshipful. But there was no baby in the manger.  The manger contained the Bill of Rights.

The exhibit included a banner that read: HAPPY WINTER SOLSTICE.  AT THIS SEASON OF THE WINTER SOLSTICE, WE HONOR REASON AND THE BILL OF RIGHTS.  KEEP STATE AND CHURCH SEPARATE. 

The exhibit included a disclaimer: “Private display, not endorsed by the state.”  The display was sponsored by the Freedom from Religion Foundation (FFRF, soon to be known as “the Plaintiff”). Governor Abbott ordered its removal the next day.   The governor wrote that the display mocked religious beliefs, promoted ignorance and falsehood by suggesting that our nation’s Founders  worshipped the Bill of Rights, rather than Jesus. Abbott described the exhibit as “tasteless sarcasm.” 

The FFRF applied to exhibit the same display in 2016 and was turned down, based on the governor’s strongly held views expressed in 2015. So….a lawsuit.  FFRF claimed that its First Amendment rights were violated by the governor’s “unbridled discretion.”

This case is important for K-12 leaders because schools sometimes create a “limited public forum.”  For example, if you raise money with a “buy a brick” campaign and allow donors to put a message on the brick, you are probably creating a limited public forum.  This case tells us that district officials can exercise discretion about what can be said in a limited public forum, but that discretion cannot be “unbridled.”

The lower court held that the governor’s order to remove the FFRF’s exhibit was aligned with the state’s “public purpose” policy. It was a reasonable application of the policy, and therefore, it was not “unbridled” discretion.  The 5^th Circuit reversed that decision. The appellate court held that “reasonableness” was only half of the test. The governor’s decision also has to be viewpoint neutral. So the court sent the case back to the district court for a ruling on the neutrality of the governor’s viewpoint.

So let’s think about how this applies to a public school. If your school creates a limited public forum, you can make some decisions about what is acceptable and what is not.  But in making those decisions you must be both 1) reasonable and 2) viewpoint neutral.  You cannot discriminate against a viewpoint because you find it offensive.  What may look like “tasteless sarcasm” to you may, instead, simply be another viewpoint. 

The case is Freedom from Religion Foundation v. Abbott, decided by the 5^th Circuit on April 3, 2020.

DAWG BONE: BRIDLE THAT DISCRETION, COWBOY.

Interested in Zooming with the Dawg?  We’re doing that on Monday, April 27 at 10:00.  If you want in, send an email to jwalsh@wabsa.com.  Free.  Only for subscribers.

Tomorrow: a school shooting you may not have heard about.

The suit alleges that a 260 pound 4^th grade teacher was so incensed by the presence of a 55-pound 1^st grader, sitting in the hallway outside of his classroom, along with his aide, as per his BIP, that she confronted the student, escalated the situation and ultimately threw the little boy to the ground, choking him and yelling that he had “hit the wrong one.”  Yikes. 

In the Toolbox training provided by our law firm we talk a lot about the use of physical restraint. Suffice it to say, this is not the recommended method.  The allegations in this suit are pretty shocking, but the court will not permit the case to go to trial. The federal court tossed it out, without giving the parents the opportunity to prove the truth of their allegations. 

Why would a court do that?  To understand the answer to that question, you have to take into account the role of the federal courts, and their reluctance to step on the toes of state and local officials.  The court reasoned that this was a case alleging excessive corporal punishment by a teacher on duty.  Cases like that can be brought in state court.  In fact, teachers who use excessive force on a student face potential civil and criminal liability.  Therefore, they don’t belong in federal court.

The facts alleged in this case do not align with any method of corporal punishment that I’ve ever heard of.  But that’s what makes it a case of “excessive” use of force in the administration of student discipline. Teachers in Texas are protected from liability for many errors of judgment. But they are not protected from liability for the excessive use of force.  So if these parents bring their suit in state court, they might be able to recover damages for the injuries suffered by the little guy.  This case was brought in federal court, in an effort to turn a case of excessive force into a constitutional issue.  Nope. That doesn’t work.

The case is T.O. v. Fort Bend ISD, decided by the federal court for the Southern District of Texas on March 24, 2020.  It can be found at 76 IDELR 93. The court’s decision upholds the magistrate’s recommendation which is at 120 LRP 11190.

DAWG BONE:   YOU ARE POTENTIALLY LIABLE FOR EXCESSIVE FORCE AGAINST A STUDENT—BUT IN STATE COURT, NOT FEDERAL COURT.

Interested in Zooming with the Dawg?  We’re doing that on Monday, April 27 at 10:00.  If you want in, send an email to jwalsh@wabsa.com.  Free.  Only for subscribers.

Tomorrow: bridles are not just for horses. They are also for governors

NEXT MONDAY WE OFFER OUR FIRST “ZOOMING WITH THE DAWG” OPPORTUNITY.  IF INTERESTED, SEND AN EMAIL TO JWALSH@WABSA.COM. FREE. AVAILABLE ONLY TO DAILY DAWG SUBSCRIBERS.

A student diagnosed with anorexia nervosa sued a journalism teacher, claiming that the teacher “exploited her mental illness” by pressuring her into being featured in a story in the school yearbook. The suit alleges that the journalism teacher assigned other students to interview and photograph the student, without ever contacting the parents to obtain permission.  The suit alleges that the girl subsequently lost 43 pounds and was placed by her parents in an out-of-state institution to address her anorexia.  The suit is against the district, an assistant principal and the journalism teacher.

On March 25^th the court dismissed all claims against the teacher.  The suit claimed disability discrimination in violation of Section 504 and the ADA. The court pointed out that individuals are not exposed to liability under those statutes. School districts are potentially liable for disability discrimination under these statutes, but not individuals. So the teacher is off the hook.

On the way to making that ruling the court made some other rulings that will be of interest to the lawyers.

*First, the court held that the requirement to “exhaust administrative remedies” under Section 504 is not a jurisdictional requirement. 

*Second, the court held that this claim did not require exhaustion.  The court concluded that the student was not claiming a denial of FAPE (Free Appropriate Public Education), but rather, straightforward disability discrimination. The student had a 504 plan. The parents allege that it was implemented at the middle school but never made its way to the high school, thus resulting in a hostile environment. 

*Finally, the court pointed out that when an educator claims “qualified immunity” as the journalism teacher did, the plaintiff is required to negate that claim in pleadings, which the plaintiff here failed to do.

Bottom line: plaintiff did not have to go through a special education due process hearing, but still, her case against the individual teacher lacked merit because teachers are not candidates for liability under ADA or 504. 

The case is S.C. v. Round Rock ISD, decided by the federal court for the Western District of Texas on March 25, 2020. We found it at 120 LRP 11162.

DAWG BONE: NO PERSONAL LIABILITY UNDER ADA/504 FOR EDUCATORS.

Tomorrow:  Toolbox  Tuesday!!

Interested in Zooming with the Dawg?  We’re doing that on Monday, April 27 at 10:00.  If you want in, send an email to jwalsh@wabsa.com.  Free.  Only for subscribers.

I want to tell you a personal story today, but it’s not entirely self-indulgent.  There is a moral to the story that is relevant to educators. So here goes.

My younger child, Devin, began doing poorly in school in 7^th grade.  Some might say that he “struggled,” but that word implies effort, of which there was none. I asked the boy what was going on. Why was he doing so poorly in school?  “Dad,” he told me, “I just don’t give a flip about school.”

When I told my friends about this, many of whom were special ed types, it was suggested that I should have the boy tested.  Maybe he is hiding the fact that he finds the work difficult. He tells you that he doesn’t care, but maybe something else is going on.  Have him tested.

Mrs. Dawg and I followed that advice. We took Devin to an eminent psychologist who was a professor at UT and an expert witness in some of our special education cases. He did the full battery.

I was nervous about the results.  I did not want some smarty pants psychologist to tell me that I had raised a child with an emotional disturbance.  Moreover, I knew how you people (some of you people) talk about that.  “The acorn does not fall far from the tree.”

The exchange with the good doctor went sorta like this:

DAWG:   Does the boy have a serious emotional disturbance?

DOC:      No.  He seems pretty well adjusted on that score.

DAWG:  How about a learning disability?

DOC:      Nope. We tested for that, but found no sign. 

DAWG: Well, then, it must be ADD! Is it ADD or ADHD?

DOC:      No sign of any of that.

DAWG:  Well….you did a lot of testing. What does it show? 

DOC: The testing shows that your boy doesn’t give a flip about school.

So that was it! 

Here is a quick summary of the ensuing decades: at 16 he dropped out of school.  At 17 he got a GED. At 21 he enrolled in Austin Community College where he racked up a 4.0.  From there he went to the University of North Carolina Asheville. He got a Bachelor’s Degree, and then a Masters in Creative Writing from Adelphi University in New York. 

Today Devin is the proprietor of Daymoon Coffee Bar in Asheville where he resides with his wonderful wife. He is a responsible and involved citizen, a thoughtful and well read person, a wise and supportive employer.  He writes prolifically and well. And today is his 40^th birthday.

Some of you have children of your own who fit this profile.  All of you know kids in school who are like this—smart kids, talented kids, who don’t seem interested in what the school has to offer.  My experience is that all flowers bloom at the right time. The right time may not align with mom or dad’s preferred timing.  But blooming time happens.  Just keep providing the support and encouragement.

DAWG BONE: HAPPY BIRTHDAY, DEVIN!

INTERESTED IN ZOOMING WITH THE DAWG? WE’RE DOING THAT ON MONDAY, APRIL 27 AT 10:00. IF YOU WANT IN, SEND AN EMAIL TO JWALSH@WABSA.COM. FREE. ONLY FOR SUBSCRIBERS.

Your district is probably taking a financial hit due to the virus.  Did you know that some of the costs you incur might be eligible for reimbursement from FEMA (Federal Emergency Management Agency)?  Our firm put out an email blast to our clients about this a couple of weeks ago, but if you missed it, here are the highlights.

1. While it’s too early to seek reimbursement, it’s exactly the right time to prepare for it.  Get your ducks in order now.  Start out by appointing a point person.  There were some reports that the deadline to apply for help was coming up soon, but that is incorrect.  The deadline is 30 days AFTER the declaration of disaster is OVER. So there is no deadline yet. 
2. Get acquainted with the Texas Division of Emergency Management (TDEM), the state agency that works with FEMA. 
3. Figure out a way to track costs that might be reimbursable.  This could include equipment, materials, staff pay.  TASBO would be a good resource to help you with this.
4. Walsh Gallegos would be another good resource. We have experience helping districts in the Gulf Coast with this after Hurricane Harvey, and are ready to help you through this process as well. So reach out to one of our attorneys if you need help. 

DAWG BONE: GET FIRST IN LINE WITH FEMA.

Tomorrow: the Dawg takes a personal privilege.

INTERESTED IN ZOOMING WITH THE DAWG? WE’RE DOING THAT ON MONDAY, APRIL 27 AT 10:00. IF YOU WANT IN, SEND AN EMAIL TO JWALSH@WABSA.COM. FREE. ONLY FOR SUBSCRIBERS.

The Texas Education Agency has done us a service by providing a definition of what it means to solicit a romantic relationship. Regulations tell us that this term means “deliberate or repeated acts that can be reasonably interpreted as soliciting a relationship characterized by an ardent emotional attachment or pattern of exclusivity.” 

Of course the regulation looks unfavorably on such relationships, but we must remember the context.  Between educators and students, a romantic relationship is not a good thing.  But let us not throw out the baby with the bath water.  Romantic relationships are a good thing. Thus if we turn the definition around, we can get a roadmap as to exactly what one should do in order to pursue that Special Someone. Thus the Dawg recently sent a card to Mrs. Dawg that read as follows:

Sweetheart: This card is deliberately intended to convey the message that I am seeking a relationship with you that is characterized by an ardent emotional attachment.  Furthermore, I hope you seek an ardent and exclusive emotional attachment to me as well. 

The regulations give examples of signs that a romantic relationship is underway.  We should look for “inappropriate hugging, kissing or excessive touching.”

So I included that in my communication to her:  “I would like to hug you inappropriately. I think it would be mutually advantageous to engage in some excessive touching.”

We’ll see how that goes.  You should try it!

DAWG BONE:  SEE WHAT YOU CAN LEARN FROM STUDYING THE LAW!