Tuesdays here at the Daily Dawg are saved for the Toolbox—our firm’s one-day training program about special education discipline.  For the next few Tuesdays, I’m going to address the right of the teacher to order the removal of an unruly student, and how that intersects with federal law pertaining to students with disabilities. How does the right of a Texas teacher to order the removal of a student from the classroom fit into the Toolbox?  Good question.

Teachers have had the power to remove an unruly kid from the classroom for decades, but it seems to be drawing more attention these days.  There were several new laws enacted in 2019 designed to protect this right.  More teachers seem to be aware of the rights they have, and to be willing to exercise those rights.

Today: just some basics.  The statute is Texas Education Code 37.002.  It empowers teachers to “send” a student to the office or to “remove” the student from the classroom. “Sending” and “removing” are two different things. 

The power to “send” the student simply puts into law what teachers have done from the beginning of time.  There are no specific standards in the law. It just says this:

A teacher may send a student to the campus behavior coordinator’s office [CBC] to maintain effective discipline in the classroom.  TEC 37.002(a).

The CBC then uses “appropriate discipline management techniques consistent with the student code of conduct…that can reasonably be expected to improve the student’s behavior before returning the student to the classroom.” 

Does this apply equally to the student with an IEP?  Sure.  But as CBCs consider the range of “discipline management techniques,” they should be sure to review the student’s BIP if there is one.

When a teacher orders the “removal” of a student you are dealing with a more complicated situation.  There are “discretionary” removals and “mandatory” removals, and we will deal with those on the next two Tuesdays. But before we finish up today, one more thing: your campus must have a PRC—a Placement Review Committee.  The Dawg has the impression that there are some campuses that have never put this into effect. 

The PRC comes into play when 1) a teacher “removes” a student; 2) the principal orders the student back to that teacher’s classroom; and 3) the teacher refuses to give consent.  That’s when the matter goes to the PRC.

The PRC should be established before it’s needed.  So take a look at T.E.C. 37.003, which spells out how the PRC works. There are three members.  The faculty chooses two teachers and one alternate (in case one of the two regular members is the “removing” teacher), and the principal appoints the third member from “the professional staff” of the campus.

If you don’t have a PRC, you ought to create one at the next faculty meeting.  If you don’t create the PRC until you have a need for one, there is added pressure on the teachers for the selection of the members. So do this now, before a teacher invokes the process.

DAWG BONE: “SENDING” AND “REMOVING”—TWO DIFFERENT THINGS.

Tomorrow: How do you feel when a board member attends the ARD meeting?

Give us our due—we lawyers are a clever bunch.  Only a clever lawyer can take a statute that requires equal treatment of boys and girls and then assert that a teacher who treats the boys and girls the same has violated the statute, seeing as how boys and girls are different.  Clever. But clever does not mean correct.

We told you about this case on September 16, 2019, when the federal court tossed out the case against Dallas ISD and one of its PE teachers.  This is the memorable situation where the teacher required a 5^th grade girl to perform 260 “ceiling jumps” (a.k.a. “burpees”) without a break as punishment for not dressing out properly for class.  Yowza. 

The girl claimed that this was a Title IX violation, but blew her case up when she testified that the teacher treated the boys and the girls the same.  That’s a fundamental problem if your case is based on alleged sex discrimination.  But never fear: the lawyer argued that treating the boys and the girls the same was the problem.  The court tells us that the Petition:

alleged that [the teacher] treated boys and girls the same even though professional standards of care required him to treat them differently.  She asserted that [the teacher’s] P.E. program violated Title IX because it did not consider the physical and metabolic differences between boys and girls. 

It did not work.  The court reaffirmed its earlier decision, noting that this argument “is just another way of alleging disparate impact” which is a theory of liability that Title IX does not permit.  The district was not liable because the district did not violate Title IX.

What about the teacher?  Teachers can be personally liable for using excessive force in the discipline of a student.  However, the suit alleged that the teacher should be liable pursuant to Texas Education Code 22.0511.  That’s a curious position to take.  That statute does not authorize such a suit. In fact, it protects teachers from personal liability, while providing for an exception for excessive use of force.  Thus the court dismissed the suit against the teacher. 

Perhaps things would have been different if the suit had been filed as a simple tort case in state court, arguing that the teacher caused physical injury to the girl by ordering excessive physical punishment.  The teacher would have asserted the immunity protection provided by TEC 22.0511, and the court would have to make a ruling about that.  But that’s not where the case was filed and that’s not the outcome.  Instead, district and teacher are off the hook. 

The case is Poloceno v. Dallas ISD, decided by the federal court for the Northern District of Texas on December 30, 2019.  We found it at 2019 WL 7305216.  The plaintiff has filed a notice of appeal to the 5^th Circuit. We’ll keep our eyes on this one.

DAWG BONE:  TREATING BOYS AND GIRLS THE SAME DOES NOT VIOLATE TITLE IX.  DUH. 

Tomorrow: Toolbox Tuesday!!

On Wednesday we told you about the teacher in Trenton ISD who lost her job due to accusations of tampering with STAAR testing.  But there was a second basis for the termination—failure to account for student activity funds. 

When I read this part of the case it brought back memories of my service (one year) as coordinator of the Girl Scout Cookie sales for the troop.  This assignment brought me face to face with my inadequacies as an accountant.  I think I did not steal any money….but I am sure that my record keeping fell into the “needs improvement” category.   It’s altogether possible that a box or two of Thin Mints slipped through the cracks.  I’m grateful that the statute of limitations is long past.  I have some sympathy for teachers who have to also handle activity funds. 

But let this case stand as a warning: failure to handle those funds can get you fired.  The Commissioner laid out it clearly:

Petitioner’s record keeping was very poor.  Petitioner did not keep records of how much money was raised and did not keep all receipts to show how the money was spent.  Petitioner did not properly use the purchase order system to pay bills. Petitioner failed to properly account for student funds.

That alone is a sufficient basis for teacher termination. That’s what happened in Burk v. Trenton ISD, decided by the Commissioner on December 20, 2019.  It’s Docket No. 018-R2-11-2019.   

DAWG BONE: GOOD TEACHERS WHO ARE POOR ACCOUNTANTS WOULD BE WISE TO AVOID RESPONSIBILITY FOR ACTIVITY FUNDS.

See you next week, Readers!

I did not know what a “whisper phone” is until my 11-year old grandson enlightened me.   I learned that it is a device whereby students can hear themselves reading aloud.  It’s an allowable accommodation for STAAR testing, and was allowed for the student in a case recently decided by the Commissioner.

Here’s how Ms. Sisk explained what happened:

My students had their allowable accommodations on their desks. And if I noticed a student that was off task, daydreaming, playing with their shoes, whatever, that I would pick up the whisper phone, for example, and—without saying anything and hand it to the student as a non-verbal reminder to stay on task because the students that I tested in small group they were very—they were easily distracted.

Question, Readers: How big a deal is that?  She did not directly tamper with the test.  She did not say a word.  Her non-verbal “suggestion” was to use an accommodation that the student was allowed to use.  Should a teacher with a continuing contract be fired over this?

The independent hearing examiner did not think so, but the school board did.  And now the Commissioner has affirmed the board’s decision. So long, Ms. Sisk. 

We learn three things from this decision.  First, when the hearing examiner labels parts of the decision as “Findings of Fact” or “Conclusions of Law” that label is not determinative.  Here, the board changed some things that were labeled as “Facts” to “Conclusions of Law.”  The board can do this, particularly when the “Finding of Fact” is about whether or not the district has established “good cause” to terminate a contract.

Second, “the board retains the authority to make the ultimate decision as to whether the facts establish a violation of board policy.”  The main thing the board did here was to take out the word “not” in several parts of the hearing examiner’s recommendation.  Where the recommendation said that the district “has NOT established that good cause exists to terminate” the contract, the board changed it to say that the district “has established….”  This is kosher.  The facts of this case were not disputed. The disagreement was over the significance of the facts, and that’s where the school board has the ultimate authority.

Third, it’s noteworthy that this was a termination of a continuing contract.  Under Chapter 21 of the Texas Education Code there are three types of contract available to teachers: probationary, term, and continuing.  The continuing contract offers the greatest protection.  A teacher under a continuing contract can be terminated only for “good cause” which is defined as “the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state.”  T.E.C. 21.156(a). 

The case is Sisk v. Klein ISD, decided by the Commissioner on December 16, 2019. It’s Docket No. 013-R2010-2019. 

DAWG BONE: DO NOT—WE REPEAT, DO NOT—MESS WITH THE STAAR TEST.

Tomorrow: activity funds!

As we inch closer to STAAR testing days, the Dawg has found two decisions by the Commissioner that deal with accusations of improprieties in test administration.  We’ll take up one case today and the other one tomorrow.

A teacher in Trenton ISD was terminated based on evidence that she tampered with STAAR test answers, and failed to account for activity funds she was responsible for.  The case is a good illustration of how the “substantial evidence” rule works when a teacher appeals an adverse decision to the Agency.  Consider this:

While the evidence presented does not conclusively prove that [the teacher] changed the students’ answers, a reasonable finder of fact could determine that [she] made the changes. The Independent Hearing Examiner’s determination that [the teacher] changed the Students’ answers is supported by substantial evidence.

In other words: we’re not sure that you did it, but the hearing examiner thinks you did, and there is evidence in the record to support that conclusion. 

The teacher argued that the investigation of STAAR improprieties was poorly handled, but the Commissioner brushed that off, noting that even if the investigation was less than perfect, the teacher had an ample opportunity to defend herself before the independent hearing examiner.

The second basis for the teacher’s termination was her mishandling of activity funds. We’re going to save discussion of that for Friday.  But do tune in on Friday, because this is a textbook case of what can happen when a teacher is sloppy in bookkeeping. 

This one is Burk v. Trenton ISD, decided by the Commissioner on December 20, 2019. It’s Docket No. 018-R2-11-2019. 

DAWG BONE: DON’T MESS WITH STAAR. 

Tomorrow: do you know what a “whisper phone” is?

We save Tuesdays for reminders about the tools in The Toolbox, our firm’s all day training program regarding special education discipline.  Many of the tools are contingent on the ARDC’s decision regarding a manifestation determination.  If the student’s behavior was not a manifestation of disability, the Code of Conduct consequence can be applied, even if it involves a lengthy stay at the DAEP.  If the behavior was a manifestation of disability, the ARDC needs to take a different approach. 

North East ISD placed a student with autism in the DAEP for 45 days after the ARDC determined that the student’s behavior was not a manifestation of his disability.  The parent challenged that decision in an “expedited” due process hearing, but the hearing officer affirmed the district’s decision. 

When T.E.A. releases a decision in a special education due process hearing it does a lot of redacting.  It’s frustrating to read these decisions, trying to piece together exactly what happened when so many crucial details are redacted.   This decision contains only one reference to the behavior under consideration when it notes that the ARDC conducted an MDR (Manifestation Determination Review) “related to Student’s false alarm.” 

Despite the lack of detail, the decision provides a good road map for ARDC’s in making the MDR.  The hearing officer noted that 1) the district first conducted a disciplinary conference in which it was determined that the student had violated the Code of Conduct and that DAEP placement would be the consequence, subject to action by the ARDC; 2) the ARDC reviewed the student’s IEP and BIP; 3) the ARDC reviewed and considered input from the mother; 4) the ARDC adopted an additional goal and behavior accommodations.

The hearing officer agreed with the conclusions of the ARDC—that the student knew what he was doing, knew that it was wrong, knew that he could get in trouble.  Key Quotes:

This incident occurred without any anger, frustration, impulsion or agitation. 

Student has difficulties due to Student’s AU and SI disabilities. But Student is bright, Student works on grade-level TEKS, Student’s teachers like Student, and Student is able to engage in conversation when Student feels safe.  Student does not manifest harmful behaviors towards Student’s peers and teachers. Student is able to describe some feelings and understand the requirements under the Student Code of Conduct. The evidence does not support a finding that the Student’s behavior resulted from the District’s failure to implement Student’s IEP and/or BIP.

So there you have it.  MDR done correctly.  Note also that the district did not just impose a disciplinary consequence—it also made some changes to the student’s BIP in response to this incident.  That is often a wise thing to do. 

The case is Student v. North East ISD, decided by special education hearing officer Deborah McElvaney on October 8, 2019.  We found it on Special Ed Connection at 119 LRP 25656.  On T.E.A.’s website you will find it at Docket No. 401-SE-0819-A.  

DAWG BONE:  MDRs ARE NOT BASED ON THE LABEL. THEY TURN ON SPECIFIC FACTS.

Tomorrow: Tampering with STAAR. 

We don’t know exactly what the 79 pages of documents say.  But we do know that the former superintendent claims that they contain information which is “confidential by law.”  Therefore, the argument goes, they should not be disclosed to the media or the public.   However, the Attorney General issued an opinion stating that the records are not confidential.  Now the Court of Appeals has agreed with the AG’s assessment. 

This began when a school employee filed a sexual harassment complaint against the superintendent, alleging that the harassment occurred at “an out-of-town conference related to education and the employee’s work with the District.”  Now the fight is over many of the documents pertaining to the complaint and the district’s handling of it.

The Public Information Act (PIA) requires the disclosure of public information when requested, but contains numerous exceptions.  This case involves the very first exception set out in the law:

Information is excepted from the requirements of Section 552.021 if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision.  Texas Government Code 552.101.  

Previous cases have interpreted this exception to apply to information that “contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person” if “the information is not of legitimate concern to the public.”  Note: both conditions have to be met for the information to be kept private.  The information must be “highly objectionable” and also, “not of legitimate concern to the public.”  The fact that disclosure may involve “highly intimate or embarrassing facts” is not enough, by itself, to prevent disclosure.

In its opinion, the 14^th Court of Appeals acknowledges that “Personal information about employees that does not shed light on their official actions would not further the purposes of the statute,” and would, therefore, not be disclosed under the PIA.  Public employees do retain a private sphere of activity.  But if the information involves accusations of wrongdoing on the job, it moves out of the private sphere to the public. That was the ruling here.  Key Quotes:

When the information concerns work conduct or job performance of public employees, it is generally not a matter of private affairs, but of public concern.

Matters of workplace harassment, discrimination, and policy violations in a governmental body are, by their very nature, generally not a “person’s private affairs.”

Each of the documents relate to the workplace harassment allegation and do not contain information about [the superintendent’s] private affairs.     

This is not over.  It may go to the Texas Supreme Court. In the meantime, just keep in mind that your sphere of privacy may be smaller than you thought it was.  The case is Roane v. Paxton, decided by the 14^th Court of Appeals on January 28, 2020. 

DAWG BONE:   EMBARRASSMENT IS NOT ENOUGH TO KEEP DOCUMENTS PRIVATE. 

Tomorrow: Toolbox Tuesday!!

I always wonder how judges are effected by their personal experiences in life.  Those impressive figures sitting high above the courtroom in a robe are, after all, naked underneath, just like the rest of us. They all were children. They experienced middle school for themselves.  Were they bullied?  Did they engage in bullying?  Do they have children or grandchildren that tell them how school is today? 

I was shocked to learn that “Slap Ass Friday” is, apparently, a thing among school aged children.  This was going on in Copperas Cove ISD, and, I suspect other places as well.  I learned about it while reading the court’s decision in favor of the district in a Title IX case. 

The plaintiff attended Cove for two years of middle school and filed suit alleging eight incidents that she characterized as sexual harassment.  The court briefly described each of them.  It was all student-to-student, and included verbal insults as well as some physical contact.  Slap Ass Friday was a part of it, and the court’s treatment of that particular allegation is a good illustration of how inappropriate conduct by adolescents does not always amount to sex discrimination under Title IX:

The uncontroverted evidence indicates that Slap Ass Friday was engaged in by all genders, including by [the plaintiff] herself (at least up until September 2015).  Although

indicated during her deposition that more boys than girls engaged in the slapping ritual, this is not sufficient to transform admittedly juvenile teasing into sexual harassment;

The court took a similar approach to the other incidents, noting that they fell short of the type of “severe, pervasive, and objectively offensive” conduct that violates Title IX.  The court offered several examples from other cases of school-based conduct that does violate Title IX:

*A male student being stripped naked, tied up, and having his underwear removed by students on multiple occasions;

*A male student being called “faggot,” “gay,” “queer,” and “man boobs” more than 200 times during his seventh grade year;

*A male student being accosted by a fellow, half-naked male student while enclosed in a bathroom stall and being pressured into oral or anal sex in said bathroom;

*And a female student being involved in a string of incidents with a fellow male student that culminated in the male student being charged with and pleading guilty to sexual battery.

In contrast, this case involved middle school behavior that reflected the “unfortunately typical reality” of middle school.  In short: it was bad. It wasn’t that bad. 

This judicial distinction is well supported in the case law. The court cited this provision from the seminal Supreme Court case on student-to-student sexual harassment:

Courts…must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults….Indeed, at least early on, students are still learning how to interact appropriately with their peers.  It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to students subjected to it.  Davis v. Monroe County Board of Education (1999).

Based on all of that, the court expressed sympathy for the student (“middle school is an extremely tough time”) but tossed the case out of court.  I’m pleased to let you know that our firm represented the district in this case, with Bridget Robinson, Kelly Janes and Haley Turner leading the way.  The case is B.L. v. Copperas Cove ISD, decided by the federal court for the Western District of Texas on January 13, 2020.

DAWG BONE:  COURTS AREN’T GOING TO STOP “SLAP ASS FRIDAYS.”  PRINCIPALS SHOULD.  AND HAPPY VALENTINE’S DAY!!

The Dawg returns on President’s Day!

Things blew up at the 504 meeting.  The dad believed that his daughter needed a 504 plan, but the mom, the girl and the school all disagreed. So there was no 504 plan.   Communication from the dad after that meeting was voluminous and, in the eyes of school administrators, hostile.  So the school imposed a “Communication Plan” whereby two administrators would meet with the man every other week. Other than that, school staff were told not to respond to the dad’s emails or phone calls.  

The dad claimed that this violated his free speech rights under the First Amendment, but the 9^th Circuit said otherwise.  In doing so, the court gives us good guidance on how to deal with that rare parent who abuses lines of communication. 

*There was a basis for singling this dad out.  The school described his communications as “unproductive” and leaving several educators feeling intimidated and bullied. 

*The way the court looked at it, the school was not telling him he could not communicate with school staff—it was only saying that it would not respond to him:

But the plan only set a limit on the amount of communications to which the District would respond.  The only so-called “sanction” in the plan for unapproved communications was that District employees “would not respond to L.F.’s emails or attempts to communicate.” In short, the Communication Plan regulated the District’s conduct, not L.F.’s.

*The restrictions did not apply in an emergency.

*The parent was allowed to attend school activities, and to access school records. 

*The parent could appeal the decision to restrict his communications.

*The plan in no way restricted the content of the dad’s communications. It was about time, place and manner.

With those limitations in mind, the court held that 1) this plan did not infringe on the parent’s right to free speech; and 2) even if it did infringe on those rights, it was a reasonable “time, place and manner” regulation that the First Amendment permits.

If you find it necessary to rein in unproductive communications from a parent, I would add two additional thoughts. First, run this by your school attorney to make sure that you are doing this at the right time, under the right circumstances, with the right language.  Second, no matter how “right” you are, be prepared for an accusation that you are retaliating against the parent. Which brings us right back to the first point: run this by your school attorney. 

This case is L.F. v. Lake Washington School District #414, decided by the 9^th Circuit on January 17, 2020.  We found it at 2020 WL 253572. 

DAWG BONE: DID WE MENTION RUNNING IT BY YOUR SCHOOL ATTORNEY?

Tomorrow: V-Day in the Middle School.  Oh boy.

The Dawg is indebted to Stacy Castillo from our firm’s San Antonio office who recently came across a copy of the “Non-Subversive Oath” signed by a teacher in the Dallas ISD.  Not recently!  Neither Dallas nor any other district is requiring such things today, but the Oath is a reminder of how things were during the Red Scare days of the McCarthy Era. 

This Oath is in the form of an affidavit, authorized by HB 21 of the 1953 legislative session. The signer of this Oath is swearing that he or she “is not, and has never been a member of the Communist Party.”  Moreover, affiants must swear that they have not been a member of any organization which the Attorney General “has designated as totalitarian, fascist, communist or subversive.”

Ye Gods!  Surely this Oath was struck down by a court at some point.  Anyone out there know about that? If so, let me hear from you!

And pass this along to the Social Studies teachers! Good history here.

DAWG BONE: THANKS, STACY!

Tomorrow: can you restrict parent communication with the school?