Here we are knee deep in June, but I’m thinking about the start of school. How bout you?  This year I will again traverse the Great State of Texas presenting the annual Back to School program—an all-day affair highlighting what busy school administrators need to know about the law.  This year we have A LOT of new laws to talk about. On top of that, we will provide the annual review of important judicial decisions affecting special education, Section 504, personnel issues and all the rest. 

I’m pleased to report that for three of the BTS presentations I will be joined by Sarah Orman, a senior attorney with the Texas Association of School Boards.  Sarah will be able to provide the TASB perspective on new legislation.  TASB staff will be updating your school policies over the summer and Sarah will be able to give us the scoop on new policies and their practical implications. 

Personal note: it’s a particular treat for me to have Ms. Orman join me on these presentations. As many of you already know, her name used to be Sarah Walsh. She’s my Firstborn Child, and now, besides being an excellent lawyer and presenter, the mother of the Most Amazing Grandchildren Ever.

Here’s the Back to School schedule:

September 10:             Region 7                                              Kilgore

September 12:             Region 11                                            Fort Worth (with Sarah Orman)

September 13:             Region 17                                            Lubbock (with Sarah Orman)

September 17:             Region 18                                            Midland/Odessa

September 23:             Richardson Civic Center                    Richardson (with Sarah Orman)

September 27:             Region 2                                              Corpus Christi

October 1:                   Bryan County Expo                            Bryan

October 3:                   Friendswood ISD Annex                    Friendswood

October 10:                 New Braunfels Civic Center       New Braunfels

You can sign up for one of these programs at www.edlaw311.com.  Hope to see you there!

DAWG BONE: 14^Th ANNUAL BACK TO SCHOOL! BE THERE OR BE SQUARE!!

Tomorrow: Toolbox Tuesday!

DEAR DAWG: Snort here.  Rip Snort.  Intrepid Reporter. Friend of the Truth. 

Trouble comes to Serenity Falls ISD, Dawg.  We have two new board members who are stirring the pot, sticking burrs under the saddle, fomenting insurrection.  At the most recent meeting, out of nowhere, board member Heather Soft (yes, that’s her name) made a motion to change the name of the district to SERENITY FALLS INTERDEPENDENT SCHOOL DISTRICT.  This surprise motion was quickly seconded by our other new board member Misty Hope (yep—real name). 

Ms. Soft supported her motion by citing numerous sources for the idea that excessive “independence” is fracturing our society, that we should recognize that no man is an island, that we are all in this together, that the “self-made man” is a myth and that we should recognize that the achievements of one individual person actually reflects the collective efforts of the entire web of interrelated, interdependent entities that work together.  “It takes a village,” she said, which caused a few fellow board members to give her the side eye, wondering if she is, perhaps…..a Hillary supporter.

Ms. Hope joined right in, bemoaning the myth of the rugged individual and how it has led to isolation, drug abuse, depression and suicide at record levels.  She argued that a change of name for the school—from Independent to Interdependent—would send a strong message of support for those seeking healing of our divided society.

To say that the rest of the board was surprised would be an understatement.  Board president I.C. Jones quickly ruled the motion out of order as there was nothing on that night’s agenda about changing the name of the school district. Soft and Hope were heard to grumble afterwards about a “power play” by “the man” to crush those who speak “truth to power.” 

I think this will not be the last we hear of this, Dawg.  Your thoughts?  SNORT.

DEAR FRIEND OF THE TRUTH: Wow! Exciting times in Serenity Falls!  It’s good to see fresh insights on the school board. The Dawg holds it that diversity of thought on the board is a good thing, as long as the board members are respectful of each other.  As far as the legalities, your board president did the right thing in shutting this down.  Changing the name of a school district is a big deal and it would have to be specifically listed as an agenda item before the board could even discuss it.  So it sounds like Ms. Soft and Ms. Hope need a little schooling on the Texas Open Meetings Act.  But their next move, no doubt, will be to ask the board president to put this on the agenda for the next meeting.  When that happens, Mr. I.C. Jones should take a look at board policy regarding how things get put on the agenda. This is probably at Policy BE Local. Many boards require an item to be added to the agenda at the request of two board members.  If that’s your policy, you are headed for an interesting board meeting!  Keep us posted, Snort!

DAWG BONE: SOFT AND HOPE LEADING THE WAY IN SERENITY FALLS. SOUNDS ABOUT RIGHT.

One more week until our summer break, Readers. 

Reporting suspected child abuse is one of the most unpleasant, but important, responsibilities of teachers and administrators.  Our child abuse laws are one of the few instances in which the failure to act might be a crime.  Ever since we’ve had child abuse laws we’ve also had laws designed to protect the person who makes the report, as long as they are acting in good faith. 

HB 621 strengthens those protections.  It amends the Family Code to permit a lawsuit for an injunction and/or damages if a “professional” is punished for reporting—in good faith—suspected abuse or neglect.  We have long had provisions in the Family Code along these lines, but up until now they applied only if the person who reported possible abuse was suspended, terminated or “otherwise discriminated” against. 

The new law, which goes into effect September 1, adds a more specific category of unlawful retaliation: an “adverse employment action.”  Thus a principal who takes “adverse employment action” against the nurse or teacher who, in good faith, reported abuse, may be looking at some serious legal concerns.  Here is the new law’s definition of this important term:

“Adverse employment action” means an action that affects an employee’s compensation, promotion, transfer, work assignment, or performance evaluation, or any other employment action that would dissuade a reasonable employee from making or supporting a report of abuse or neglect under Section 261.101. 

Plaintiffs in cases based on this statute will assert that a change in “work assignment” is an “adverse employment action” even when there is no cut in pay or status. They will also argue that any negative mark in the performance evaluation is “adverse” and illegal if done in retaliation for the good faith report of possible abuse or neglect.

Remember that reports of child abuse are to be made when there is “reason to suspect.”  We are obligated to make that report long before we are certain that it occurred. Thus reports of abuse might turn out to be wrong.   Moreover, the definitions of abuse and neglect leave room for reasonable people to interpret them differently.  Just because a teacher reports abuse when you think it was unnecessary does not mean that the teacher is lacking “good faith.” So let’s be sure that all “adverse” employment actions are based on job related concerns, independent of any good faith child abuse reporting.

DAWG BONE: AS WE OFTEN REPEAT: DOCUMENT, DOCUMENT, DOCUMENT. 

Tomorrow: Trouble in Serenity Falls!

The Governor wasted no time before signing this one into law.  HB 1597 permits the children of military personnel to attend school in the district where the parent has been transferred to a military installation that is either in or adjacent to the school district.  This amends Texas Education Code 25.001 which is our basic statute about residency and school attendance.  Here is the specific new language:

A person whose parent or guardian is an active-duty member of the armed forces of the United States, including the state military forces or a reserve component of the armed forces, may establish residency for purposes of Subsection (b) by providing to the school district a copy of a military order requiring the parent’s or guardian’s transfer to a military installation in or adjacent to the district’s attendance zone.  T.E.C. 25.001(c-1).

The statute goes on to require the parent to provide proof of residence not later than the 10^th day after the arrival specified in the order. “Residence” is defined to include “military temporary lodging facility.” 

Charter operators are also affected by this new law.  It adds one more section of the Education Code that will now apply to charters—Section 25.001 regarding the establishment of residency.

DAWG BONE: DOES A “TEMPORARY LODGING FACILITY” INCLUDE A TENT?

Tomorrow: new wrinkle on child abuse laws.

Are you the campus behavior coordinator for your school?  You are?? Congratulations!! Your name and contact information is going to be posted on the district’s website! This is due to SB 1306:

A school district shall post on the district’s Internet website, for each district campus, the e-mail address and dedicated telephone number of a person clearly identified as: (1) the campus behavior coordinator designated under Section 37.0012.  T.E.C. 26.015.

The Dawg knows what you are thinking about that.  “We don’t like this.  This will overburden our already overburdened CBCs.  We’ll just put a sentence in our District of Innovation plan to exempt ourselves from the requirement to name a CBC.”

Looks like those smarty pants legislators are one step ahead of you.  They added this:

Or, (2) if the district has been designated as a district of innovation under Chapter 12A and is exempt from the requirement to designate a campus behavior coordinator under Section 37.0012 under the district’s local innovation plan, a campus administrator designated as being responsible for student discipline.  T.E.C. 26.015.

Somebody’s name, email address and phone number (work—not cell) is going to be on your district’s website. Congrats, CBCs!

DAWG BONE: PUBLIC RECOGNITION IS A GOOD THING, RIGHT?

Tomorrow: More new laws.

The legislature has repealed a statute that authorizes school districts to join forces to form an SSA—a Shared Services Arrangement. Does that mean districts can’t do this anymore?  Must all districts, no matter how small or rural, operate their special education program alone?

No. That’s not what it means.  The statute, T.E.C. 29.007, was one of several listed in S.B. 1376 for repeal. This bill was the culmination of efforts designed to reduce the size of the Education Code. With regard to SSAs the intent of the statute was aimed not at the first sentence of the statute, but rather, the second. 

*First sentence:  “School districts may enter into a written contract to jointly operate their special education programs.”

*Second sentence: “The contract must be approved by the commissioner.”

While the intent was to get T.E.A. out of the process, the statute was repealed in its entirety. So that specific authorization in the Education Code is gone.

However, there are other provisions in the Code that empower districts to continue to work together to provide special education services.  Like this:

The board of trustees of an independent school district may contract with a public or private entity for that entity to provide educational services for the district.  T.E.C. 11.157. 

And this:

The board may enter into contracts as authorized under this code or other law and delegate contractual authority to the superintendent as appropriate.  T.E.C. 11.1151(c)(4). 

While districts are still authorized to come together with an SSA, there may be provisions in your existing agreement that are no longer needed.  Administrative regulations adopted by the Commissioner or the Agency pursuant to the repealed statute are no longer in effect. So this would be a great time to review your existing SSA if you have one, and get some legal counsel as to revisions that might be necessary, or at least helpful. 

We can help with that.  Let us know if you’d like a Walsh Gallegos attorney to help you navigate your way to a new and improved SSA. 

DAWG BONE: NO MORE T.E.A. OVERSIGHT OF SSAs. 

Tomorrow: Toolbox Tuesday!!

DEAR DAWG: Here in Serenity Falls ISD we are concerned about the basic communication skills of our new in house counsel.  I know that a person must be pretty smart to get out of law school and pass the bar, but still—we wonder what’s going on.  Here is an example of part of a written communication we got from our new lawyer that raised eyebrows:

I’ve examined this from all angels, running the gambit of every possibility.  Based on existing case law, my opinion is that the court will not conclude that the matter is mute, but will take jurisdiction of the case.  The rationale for the decision offered by the district may not pass mustard with the court.  Its possible that we could lose the case and have to pay damages, attorneys’ fees and costs—in other words, the whole kitten caboodle. 

See what I mean?  AT LEAST THE SPELLING IS RIGHT.

DEAR AT LEAST: You have good reason to ring the alarm! This does not at all “pass mustard.”  Perhaps the good readers of the Daily Dawg can help out.  A free extension of your subscription to the first person to email a list of every word that is incorrect in the above.  Send it to jwalsh@wabsa.com.  

DAWG BONE: DOESN’T PASS THE KETCHUP EITHER.

The Dawg barks again on Monday. Enjoy the weekend!

SB 2432 adds a new offense to the list of those that require a DAEP placement.  I predict that this one will lead to a big jump in referrals from teachers asking that students be assigned to DAEP. 

The bill amends Texas Education Code 37.006, which lays out the mandatory DAEP offenses.  It says the student must go to DAEP if the student:

Engages in conduct that contains the elements of the offense of harassment under Section 42.07 (a) (1), (2), (3), or (7), Penal Code against an employee of the school district. 

So is that one new DAEP offense, or four?  The umbrella term is “harassment” but the statute identifies four ways in which a student can commit “harassment.”

The relevant sections of the Penal Code are as follows:

A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(1) Initiates communication and in the course of the communication makes a comment, request, suggestion or proposal that is obscene;

(2) Threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony offense against the person, a member of the person’s family or household, or the person’s property;

(3) Conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;

(7) Sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. 

It’s that first one that is likely to be cited most often.  A student “initiates communication” in the course of which the student utters the famous F-word.  Perhaps the F-word is followed by “you.”  Do we now have evidence of  a “suggestion or proposal that is obscene” done with “intent to harass, annoy, alarm, abuse, torment, or embarrass” the teacher?

I think a lot of teachers will see it that way. Get ready for lot of kids being sent to the office.

DAWG BONE: CHAPTER 37 NEVER GETS SHORTER.

Tomorrow: Will it “pass mustard” with the court?

In 2017 our legislature restricted the authority of school administrators to order an out-of-school suspension for a student below grade three.  Suspensions of those young ‘uns was limited to offenses involving weapons, violence, drugs or alcohol.

This year the legislature put students who are homeless in the same category.  Regardless of age or grade level, a student who is homeless can be suspended out of school only for those same four categories of behavior.   Instead, the new law instructs the campus behavior coordinator to “coordinate with the school district’s homeless education liaison to identify appropriate alternatives.”

This one is HB 692.

DAWG BONE: RESTRICTIONS OF OUT OF SCHOOL SUSPENSION FOR  STUDENTS WHO ARE HOMELESS.

Tomorrow: Is the F-word ever uttered on your campus?

The legislature passed HB 811, which will impact your Code of Conduct.  The bill adds two items to the list of factors that must be considered before a student is suspended or removed to DAEP or JJAEP. Previously the law required that the school administrator must consider:

1. Self-defense;
2. Intent, or lack of intent;
3. The student’s disciplinary history; and
4. A disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct.

As of next school year you can add two more items to that list:

1.  A student’s status in the conservatorship of DFPS; and
2.  A student’s status as a student who is homeless.

Did you know that Walsh Gallegos has a Code of Student Conduct for you to purchase and modify to your district’s specs? We also offer a Student Discipline Guide. Both of these products can be purchased through the firm’s website, and will be updated to conform with new legislation, such as HB 811.

DAWG BONE: IN FACT, IF YOU SUSPEND A STUDENT WHO IS HOMELESS THERE ARE OTHER CONCERNS. TUNE IN TOMORROW!

Tomorrow: Limits on suspensions of students who are homeless.