On Tuesdays at the Daily Dawg we focus on The Toolbox—our firm’s all day training program regarding disciplinary options with students in your special education program.  Today, let’s consider our new law regarding the use of “aversive techniques.” Many questions are swirling around about this.  We will eventually get some guidance from the Agency about the various ambiguities in the law, and that will help.  But the language of the statute is still going to leave considerable room for interpretation. 

In that context, I think the intent of the bill’s author is relevant.  Here are some important excerpts from Senator Lucio’s “Statement of Intent”:

While certain emergency interventions have their place in protecting the safety of students, extreme aversives--behavioral interventions that aim to use negative stimuli to stop or deter a behavior—can cause severe physical, mental, and emotional harm to students and should never be used.  Unfortunately, although the vast majority of educators never use such techniques, interested parties have reported instances where extreme interventions such as electric shock, noxious sprays or gases, or interventions that impair a student’s breathing or circulation have been used due to lack of guidance on prohibited aversives in current law.  (Emphasis added).

This Statement of Intent supports the idea that the word “significant” in the statute is…significant.  The umbrella definition of “aversive techniques” in the new law says this:

In this section, “aversive technique” means a technique or intervention that is intended to reduce the likelihood of a behavior reoccurring by intentionally inflicting on a student SIGNIFICANT physical or emotional discomfort or pain.  (Emphasis added).

Consider the fact that this statute is about disciplinary interventions, which inherently are likely to produce some degree of “emotional discomfort or pain.”  Were you ever sent to the principal’s office?  Do you recall the “emotional discomfort” you experienced as you walked down the hall to meet your fate?  Was your discomfort enhanced by the thought of how your parents would respond? 

This statute is not about that kind of discomfort.  The teacher who scolds a student may produce in the student an unpleasant level of “discomfort.”  But that’s a long way from the “extreme aversives” that Senator Lucio uses as examples.

The same analysis goes with “physical pain.”  The coach who assigns the student 20 pushups as a consequence for being late for practice is intentionally inflicting some degree of physical pain.  Is it “significant”?  I think not.

The statute is going to be interpreted by a lot of people before we get any definitive ruling from a high level court.  Principals and athletic directors are going to have to interpret the statute when a parent makes a complaint.  Some of those complaints will go to the superintendent, and/or the board.  All of those parties will have to apply their interpretation of “significant.”  In doing so, all of those parties would be wise to take into account Senator Lucio’s Statement of Intent and the extreme examples he offers that were the target of this legislation.

DAWG BONE: A LITTLE COMMON SENSE GOES A LONG WAY.

Tomorrow: Are all kids with dyslexia eligible for special education?

Well, here we are on a Friday in “the fall.”  We think “the fall” is a misleading term when it’s 100 degrees, but whatever.  In any event, it’s a Friday during the fall semester and that can only mean one thing: Air up those pigskins!  Football!!

Football coaches—especially defensive coaches—have a lot in common with school district lawyers.  Responding to a lawsuit against the district is a lot like your defensive coach, trying to prevent the other team from gaining yardage.   Before I try to convince you of that, let’s think about defending ourselves in other contexts.

When someone is accused of wrongdoing they can respond in one of four ways.  First, they can admit they were at fault and accept the consequences.  So, for example, the police officer pulls you over for going 30 in a 20 MPH school zone.  You can say: “Yes, I did that, and I am sorry. I am ready to accept the consequences.” 

But if you feel that you are being wrongly accused, there are three other responses available to you.  You can say NO: 

“NO.  I didn’t do that. I’m not guilty.”

Or you can say YES BUT:

“YES, I did what you say, BUT there was a good reason.  Let me explain.”

Or you can say SO WHAT?:

“Yes, I did exactly what you said that I did.  SO WHAT?”

We think these three responses apply across the board, from children in school, to poor drivers, to defendants in lawsuits.       

Of course, lawyers have special labels to describe these three defenses.  The “NO” defense is what we call a “general denial.”  Your lawyer files a response to the lawsuit that flat out denies every allegation the plaintiff has made.  This puts the burden of proof where it belongs—on the plaintiff who is bringing the lawsuit.  You say I was driving 30 in the 20 MPH zone?  I deny it!  Prove it!!

The “YES BUT” defense is referred to as an “affirmative defense.”  It admits the truth of the basic allegation, but then offers a worthy excuse.  For example, “YES, I admit that I was driving 30 MPH in the school zone, BUT the blinking light was not blinking, and besides that my mother was in the emergency room, and I was rushing to be by her side.”   

The “SO WHAT” defense is usually accompanied by a Motion for Summary Judgment.  It acknowledges the truth of the allegation, and then contends that there was no violation of law. 

“Yes, I was driving 30 MPH.  Yes, the light was blinking.  But it was a Sunday afternoon and there was no school.  No school—no school zone. The speed limit was actually 35.   No violation of the law.”

Most good lawyers will offer all three defenses.  “My client didn’t do it, Your Honor. But even if he did, he had a good reason for what he did.  And even if it was not such a good reason, what he did is not a violation of law—so toss this case out!”

It’s kind of like playing defense in football.  Your football team has three lines of defense: the line, the linebackers, and the secondary.  If your linemen stop the play at the line of scrimmage, there is no damage to your team’s cause.  If, however, the linebackers stop the play after a gain of 7 yards, you have paid a price.  And if the runner runs free for 25 yards before the safety makes the tackle, you have paid a heavy price. 

Cases that are dismissed early on are usually dismissed due to the SO WHAT defense.  This is accomplished by a Motion to Dismiss early on, arguing that there is simply no basis for legal liability here.  For the football analogy—this is a sack or a stop by the line.

If your defense is a YES BUT defense, your litigation costs will be higher. You have to marshal facts and evidence to show the court that there is an “affirmative defense.”  In our football comparison, this is that 7-yard gain on first down.

And if that doesn’t work, you are down to a factual struggle over what actually happened.  This is when we have expensive jury trials that are long and costly in every sense, even if you “win.”  It’s like you prevented the touchdown, but you gave up a lot of yardage. 

The big difference between football and litigation is that football is more fun.  So let’s air up those pigskins.   Good luck to your team tonight.

DAWG BONE: DEFENDING A LAWSUIT IS LIKE DEFENDING A FOOTBALL PLAY…..SORT OF. 

We’ll be walking the Dawg again on Monday.

I hope to see many Daily Dawg readers at this year’s Back to School program. We have a lot to talk about this year.  The Legislature was uber productive, enacting many new laws that will have a major impact on the day-to-day operations of the school. And it’s that day-to-day practical application that has always been the focus of the Back to School Program.  Besides the new laws, we will be reviewing important court cases that have implications for you in special education, Section 504, personnel, student discipline and other issues.

This year we are going to nine locations.  You can sign up for the program through ED311. So go to their website: www.ed311.com. 

Here’s the schedule:

September 10:             Kilgore                        Region 7

September 12:             Fort Worth                  Region 11

September 13:             Lubbock                      Region 17

September 17:             Midland/Odessa          Region 18

September 23:             Richardson                  Richardson Civic Center

September 27:             Corpus Christi             Region 2

October 1:                   Bryan                          Brazos County Expo Center

October 3:                   Friendswood ISD       Friendswood Annex

October 10:                 New Braunfels            New Braunfels Civic Convention Center

There’s a new wrinkle this year for three of these. In Fort Worth, Lubbock and Richardson I will be joined by TASB attorney, Sarah Orman. Sarah will give us the inside scoop on how all of the new laws will be addressed in local policy.  As many of you know, Sarah Orman used to be Sarah Walsh.  She’s my daughter, so it is a particular treat for me to get to share this professional experience with her. 

DAWG BONE: HOPE TO SEE YOU THERE!!

Tomorrow: Football!

DEAR DAWG:  I used to be a public school administrator, but I have retired from that business and I’m now serving as principal of a nice little Christian school.  I expect that life will be easier for me now.  So many laws that apply to the public schools do not apply here.  Like Chapter 37. 

So I was preparing a new Student Code of Conduct, and thought it would be a good idea to incorporate Biblical principles.  We teach the Bible, and emphasize it as the core textbook for life its ownself.  So it just seems natural to me that we would also incorporate it into our Code of Conduct. So with that in mind, what do you think about leading off the Code with the following:

If a man has a stubborn and rebellious son who will not obey the voice of his father or the voice of his mother, and, though they discipline him, will not listen to them, then his father and his mother shall take hold of him and bring him out to the elders of his city at the gate of the place where he lives, and they shall say to the elders of his city, ‘This our son is stubborn and rebellious; he will not obey our voice; he is a glutton and a drunkard.’ Then all the men of the city shall stone him to death with stones. Deuteronomy 21: 18-21. 

Do you think that sets the right tone?  WANTING TO DO THINGS RIGHT.

DEAR WANTING:

Well, we think it’s helpful that the Scripture tells us that stoning is to be done with “stones.”  But as far as tone….no, we think you could find something more appropriate.  You are right that private schools have  a lot more flexibility, but we think “stoning” goes a bit too far.  You might run into some problems with the local district attorney on that one.  Furthermore, your private school is subject to non-discrimination laws, and we notice that this provision only targets one gender. What…you’ve got no “stubborn and rebellious” daughters???? So while we think that incorporating Biblical principles is a great idea, we would suggest something that is less likely to lead to constitutional violations and criminal prosecution.  How about: “Train up a child in the way he should go; even when he is old he will not depart from it.”  Proverbs 22:6.   

DAWG BONE: THE AUTHOR OF DEUTERONOMY WOULD MAKE ONE HECK OF AN ASSISTANT PRINCIPAL.

Tomorrow: Back to School time!

Your IEP forms probably include this: 

DOES THE STUDENT HAVE BEHAVIORS THAT IMPEDE LEARNING OF THE STUDENT OR OTHERS?

I’m confident that this question is on your forms because federal law requires the ARD Committee to answer that question at every annual ARD Meeting.  If the answer is “yes” then the Committee is expected to address the behavior in some way. 

We talk about this a lot in connection with the Toolbox training that our firm offers—a deep all-day dive into your disciplinary options with students in your special education program.   Here are three points I try to emphasize about this question when doing the Toolbox.

First, the question is not limited to behaviors that are caused by the disability.  The question is broader than that. ANY behavior that impedes learning, either of this student or of others, should be identified.

Second, the ARDC should make it clear that when it identifies a behavior that impedes learning it does not also mean that the ARD is determining that the behavior is a manifestation of disability. That determination will come later, if needed.

Third, there are many students for whom this question should be asked more than once a year.  For example, if a student commits an assault, or some other serious violation of the Code of Conduct, the school will likely take disciplinary action. Fine. But along with that, the ARDC should ask itself the question again: is this a behavior that impedes learning?  It probably is. So what are you going to do about preventing its reoccurrence?

Interested in Toolbox training?   Let us hear from you.

DAWG BONE: IT’S A GOOD QUESTION. TAKE IT SERIOUSLY.

Tomorrow: a Biblical Code of Conduct

This school year got off to a rousing start due to Whataburgergate: the news from way out west that two superintendents got into a physical confrontation during TASB’s SLI Conference last summer.  At the Whataburger!  It’s amazing that this story did not break earlier. 

Once the story broke, it did not take long for the term “unprofessional” to surface.  But what exactly does that mean?

In workshops I have conducted about employee documentation I have recommended that supervisors think twice before slinging this loaded word around.  There are two reasons for that. First, it is vague.  What you think is “unprofessional” may look like quite different to someone else.  Secondly, the term reflects on character, which means you are likely to get a strong, defensive response.  It is not unusual for the recipient of a memo, charged with “unprofessional” conduct, to throw the term right back at the supervisor.  “Unprofessional, you say! Hrmph!! Let’s talk about your behavior at last years’ coaches’ conference!”

On the other hand, there are times when “unprofessional” just seems like exactly the right descriptor.  So we would not say that this word should never show up in a corrective memo—only that we should think carefully about its use.  If you think the employee’s conduct was “unprofessional” can you point to the specific standard that was violated? Did the employee disparage students?  Was the employee rude to a parent or colleague?  Usually you can cite some local policy or ethical standard that establishes what “professional” means.  Falling short of that standard would be “unprofessional.” So we think it is a good idea to tie this term to a standard. 

Remember: there is GOOD DOCUMENTATION and there is BAD DOCUMENTATION.  Make sure yours is of the GOOD variety. It’s more…..professional.

DAWG BONE: BE CAREFUL WHEN ACCUSING SOMEONE OF “UNPROFESSIONAL” CONDUCT. 

Tomorrow: Toolbox Tuesday!!

Our Constitution requires that governments allow the free exercise of religion, while not endorsing religion.  The government is not supposed to promote religion. But it’s not supposed to be hostile to it either.  Neutrality is the watchword, and that requires some difficult decisions.  Such is the case of American Legion v. American Humanist Association. 

The case involved a 95 foot Latin cross, which sits on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland.  It’s been there since 1925. It was originally constructed and maintained with private funding, but eventually its maintenance was taken over by agencies of the State of Maryland.  So public funds are being used to maintain an immense symbol of the Christian faith in a prominent position on public lands.  Is that constitutional?

Two members of the Supreme Court said no: Justices Ginsburg and Sotomayor.   Justice Gorsuch would have tossed the case out due to the lack of “standing” by the plaintiffs. His view is that being an “offended observer” does not give you enough skin in the game to maintain a federal lawsuit.  Justice Thomas believes that the federal constitution does not even apply to situations like this, where only state and local governments are involved.   Justices Gorsuch and Thomas both “concurred in the judgment” of the court, so we have seven of our nine justices who held that this Christian symbol on public land, supported by public funds does not violate the Constitution. 

Five justices joined in most of the majority opinion, written by Justice Alito.  His opinion reveals an effort to draw that line of neutrality, taking into account all of the factors in each specific case.  The most important factor seemed to be the age of the structure and the public perception of it.  Key Quote:

It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of a “hostility toward religion that has no place in our Establishment Clause traditions.”    

That quote about “hostility” comes from the 2005 case in which SCOTUS OK’d the Ten Commandments display on the grounds of the Texas Capitol, Van Orden v. Perry.

Justice Alito cites four factors that justify a “presumption of constitutionality” for symbols or monuments that are longstanding.  First, it’s difficult to pin down the motivation of those who erected the monument.   Motivation matters. If a religious symbol is maintained by a government agency with the intent to convey an endorsement of that religion, it will not have that “presumption of constitutionality.

Second, when a monument or symbol has been in place for a long time, the purposes associated with it “often multiply.”  This symbol was Christian, but it was also seen as a tribute to soldiers who died in World War I. It morphed, over time, into a representation of “a common cultural heritage.”

Third, over time, the message that a religious symbol conveys may change. Here, Justice Alito cited the recent fire at Notre Dame Cathedral in Paris.  He quoted French President Macron, saying that Notre Dame “is our history, our literature, our imagination. The place where we survived epidemics, wars, liberation.  It has been the epicenter of our lives.” 

Fourth, public perception. Key Quote:

When time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning.

This leads to the part of this decision that I think is most important for Texas school board members:

These four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. 

There is nothing in this opinion that suggests that SCOTUS would approve of the installation of a symbol of a particular religion in a public school building in 2019.

The case is American Legion v. American Humanist Association, decided by the Supreme Court on June 20, 2019.

DAWG BONE: WE LOVE ST. FRANCIS, BUT DON’T PUT HIS STATUE IN THE SCHOOL GARDEN.

Barking again next week, Readers!

The End of Course exam for U.S. history will henceforth include ten randomly selected questions from the test that immigrants must take to become naturalized citizens.  There are 100 questions on this test.  Most of them are pretty easy.  Like this:

When do we celebrate Independence Day?

What is the highest court in the United States? Presumably this refers to the U.S. Supreme Court—not the court where the judges smoke the most pot.

Name one state that borders Mexico.  No one in Texas should miss this one.

But there are some challenging ones:

How many amendments does the Constitution have?

Name your U.S. Representative. 

Then there are some that could lead to some creative answers:

What does the President’s Cabinet do?

Now the expected correct answer is: “advises the President.”  But if you’ve been paying attention for the past few years, you might answer it this way:

Deny the alleged wrongdoing.  Give evasive testimony to Congress about the alleged wrongdoing.   Blame the press. Heap scorn on the cowards who have viciously attacked your character.  Blame the press.  Acknowledge minor mistakes that were made. Deny the alleged wrongdoing.  Blame the press.  Resign.  Blame the press. Thank the President for the opportunity to serve.  Write a book.

That would be accurate, no?

DAWG BONE:  BLAMING THE PRESS IS BIPARTISAN AND NEVER GOES OUT OF STYLE.

Tomorrow: SCOTUS weighs in on a religion case

The kids reported that the substitute teacher was using his cell phone to “take pictures up the skirts of female students.”  Oh boy—here we go. 

The man was brought in for questioning and appeared nervous.  He admitted to the principal that he “had a problem.”  The principal then picked up the man’s cell phone and scrolled through the pictures.   Yep. Some inappropriate pictures of girls who were wearing the school’s uniform. 

The uniform?  Yes—this all happened at a private school, which turned out to be an important factor when the man was prosecuted for attempted production of sexual performance by a child.  The sub teacher sought to exclude the photographs from evidence. His lawyer argued that the search of his cell was illegal.  There was no warrant, nor was there probable cause. Therefore, the argument went, the search violated the 4^th Amendment of the U.S. Constitution.

The trial court agreed with that, and held that the incriminating pictures could not be introduced into evidence.  But now our state’s highest criminal court has overturned that decision. The search was legal.  The evidence can be used in the trial. 

The crucial fact was that this was a private school.  The 4^th Amendment applies to the U.S. government, the states and political subdivisions like school districts. It does not apply to private individuals or private schools. Key Quote:

We reaffirm that the 4^th Amendment is a restraint on government and that it does not apply to private individuals who are acting as such.

If the same thing happened in a public school the analysis would be different. The 4^th Amendment does apply. The court would have to determine if the search was justified under the standards that the courts have established for searches by administrators of teachers in a public school.  I expect that most courts would have held that the search was justified. The principal had reliable information about serious misconduct by a teacher.  If the allegations about the teacher were true, the evidence would be on the cell phone.  So I think most courts would have reached the same conclusion, but for a different reason. 

The case is Ruiz v. State, decided by the Court of Criminal Appeals for Texas on July 3, 2019. 

DAWG BONE: AS I LEARNED FROM SISTER MARY HOLYWATER, PRIVATE SCHOOLS ARE NOT ENCUMBERED BY THE CONSTITUTION. 

Tomorrow: New questions on the EOC for U.S. History

The 4^th Circuit has provided us an excellent example of how Tool #4 works.  There are ten “tools” in the Toolbox, which is a full day training program our firm offers with regard to the discipline of students served through special education.  Of the ten, Tool #4 is probably used the least. It takes a rare set of circumstances to justify the use of Tool #4—which is a Request for Expedited Hearing.

Here’s what happened in the 4^th Circuit case.  The student had an emotional disability. He assaulted a classmate, causing a serious bodily injury.  School officials pulled Tool #5 out of the Toolbox. This is the “Special Circumstances” tool. It empowers a principal to order the removal of a student to an IAES for up to 45 school days if the student commits an offense involving drugs, weapons or a serious bodily injury. This can be done even if the behavior is a manifestation of disability. In this case that was particularly important, because the boy’s IEP Team determined that his assault of the other student was a manifestation of his disability.

Citing what we call Tool #5, the school assigned the student to an IAES for the full 45 days.  So far so good. No legal problems.  However, when the 45 days were up, the school did not want to take the student back.  That was a problem. Since the behavior was a manifestation of disability, the removal was capped at 45 school days.  Mom sought his re-admission and was turned down. Mom immediately sought an injunction asking the court to order the school to re-admit the boy.  The school’s response to this was that the boy continued to present a genuine danger.  If he was let back in, he might hurt someone again. 

In Toolbox terminology, the school was attempting to use Tool #4.  That tool allows schools to seek an order from a judge or a special education hearing officer that would keep a student out of the placement called for in the IEP if the school presents evidence to show that the student is “substantially likely” to hurt someone if placed back in the IEP placement.

Consider: mother seeks an injunction, but the school seeks similar relief—a court order to keep the student out of his regular placement. Who has the burden of proof?

The federal district court held that the mother bore that burden and failed to carry it.  The Circuit Court said that was wrong. The burden should have been placed on the school.   When using Tool #4, the school carries the burden of proving that the student is “substantially likely” to hurt someone if re-admitted to the original placement called for by the IEP. 

It’s rare to find a case about Tool #4 because that tool is used rarely. And that’s a good thing. 

The case is Olu-Cole v. E.L. Haynes Public Charter School, decided by the Circuit Court for the District of Columbia on July 19, 2019. We found it at 119 LRP 26900.

DAWG BONE: TOOL #4 REQUIRES STRONG EVIDENCE OF A SUBSTANTIAL LIKELIHOOD THAT SOMEBODY IS ABOUT TO GET HURT.

Tomorrow: a cell phone search case.