You can expect that some parents will deliver a lengthy form to the school at the beginning of the 2023-24 school year entitled Notice and Declaration of Parental Rights. It happens every year. It happened in Richardson ISD at the start of the 2021-22 school year, and later became the subject of a decision from the Commissioner.

The parent delivered the NDPR to the principal of an elementary school. If you Google “Notice and Declaration of Parental Rights” you will find a 16-page form promulgated by the Texas Justice Foundation, a non-profit organization based in San Antonio. The form includes this:

I hereby exercise my right to remove my child temporarily from any and all class or other school activity that presents, covers or discusses the following topics or activities….

That list of “topics or activities” includes 22 topics with two fill-in-the-blanks added.

The parent alleged that the school violated her parental rights when the teacher showed a Disney movie to the class without parent permission. The movie was “Turning Red” and it was rated PG. The parent took her complaint through the system and was heard by the board. The board acknowledged that the elementary school had a policy requiring parent permission for showing a PG-rated movie. The board reminded the staff of the policy and counseled the teacher, who apologized to the parent for the error. That was not good enough for the parent, who then appealed to the Agency.

T.E.A. dismissed the case in its entirety due to lack of jurisdiction. The Commissioner has jurisdiction to hear cases alleging that a decision by a school board has violated “the school laws” of Texas. That means a petitioner has to cite a specific section from Title I or Title II of the Texas Education Code. The closest the parent came in this case to invoking jurisdiction was in the allegation that the district had violated T.E.C. 26.010, which gives parents the right to have their children removed from classes or activities the parent objects to on religious or moral grounds. The parent argued that the NDPR form put the teacher on notice that films like “Turning Red” should not be shown.

That argument did not work. The Commissioner emphasized that 26.010 requires that parents give written notice of their objections to the teacher. The parent gave the NDPR to the principal. Key Quote:

Because Petitioner admittedly did not provide the NDPR to the student’s teacher, she did not comply with Section 26.010(a)’s requirements and cannot establish a potential board violation of Section 26.010(a).

The other argument was that the NDPR was a “legally binding contract” that the district violated. The Commissioner did not express an opinion about that dubious proposition, but simply noted that even if it was a contract, it wasn’t the type of contract the Commissioner has jurisdiction over. The Commissioner hears appeals over violations of a written employment contract.

The parent was on firm ground in asserting that the teacher violated the elementary school’s policy about showing PG movies, but the Commissioner does not have jurisdiction of a claim that a teacher violated the school’s policy. The petitioner has to tie this into “the school laws” of Texas, and the parent failed to do that. Moreover, the Commissioner noted that the district had acknowledged the error and taken corrective action that included the teacher’s apology.

Some teachers and/or principals are sure to receive the latest version of the NDPR before school starts. It would be a good idea to have a conversation with the parent who produces that form to see if you can get more clarity on exactly what activities the parent wants the child to be exempted from. We need to respect the rights that Chapter 26 of the T.E.C. provides to parents, but this form is what the lawyers would describe as overly broad and hopelessly vague. If I were the teacher presented with the NDPR I’d be fearful of teaching anything beyond simple arithmetic. I think simple arithmetic would be safe. But there may be some who read sexual connotations into terms like “multiplication tables.” So who knows….

It's Parent v. Richardson ISD, Docket No. 002-R10-10-2022, decided by the Commissioner on April 24, 2023.

DAWG BONE: WATCH OUT FOR THE NDPR.

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

Dear Dawg: Long time school librarian here, trying to make sense of H.B. 900 and what I need to do to make sure we are in compliance. I’m sure you know about the controversy, Dawg. We have folks who think our school libraries are smut factories, and now our legislators have taken action to fix this problem. I’ve worked hard to keep inappropriate materials out of our libraries, and will continue to do so, but I am a little puzzled by some of the new terminology I’m hearing. What makes a book “sexually explicit”? What makes it “sexually relevant”? I understand that our books are going to be rated based on these terms. Can we put up a curtain in the library, to divide it into these two sections:

SEXUALLY RELEVANT BOOKS SEXUALLY IRRELEVANT BOOKS

Is there a better way to handle this? MARIAN THE LIBRARIAN NEVER HAD TO DEAL WITH THIS!

DEAR MARIAN THE LIBRARIAN NEVER: The good news for you is that you will not be the one to rate the books in your library. H.B. 900 passes this hot potato to the vendors who sell the books to the schools. They will have to identify any material that is “sexually explicit” and they may not sell stuff like that to a school library. Moreover, they have to issue a “recall” notice, like a car manufacturer after a problem with the exhaust system is discovered. If the vendor identifies “sexually explicit” materials that they previously sold to you and that is in “active use” you can expect a “recall notice.”

I hesitate to provide the full definition of “sexually explicit” material in this family friendly publication. But it has to be pretty nasty. It has to describe, portray, or depict sexual conduct in a way that is “patently offensive.” This has to be based on a “contextual analysis” recognizing that there may be “contextual characteristics that may exacerbate or mitigate the offensiveness of the material.”

“Sexually relevant” material is defined as material in any format that “describes, depicts, or portrays sexual conduct” as that term is defined in the Penal Code. Again, I hesitate to be too graphic with the legal terminology, but suffice it to say that there will be a lot of material that fits this definition. If a single act of sexual intercourse is described, depicted or portrayed on one page of a 350-page novel, the entire book is “sexually relevant.” This leads to a lot of questions. What if the act is not described, depicted, or portrayed, but is hinted at…suggested…left to the reader’s imagination?

Like when Rhett picks up Scarlet and carries her up that staircase at Tara. We all know what’s about to happen, don’t we? And when we see Miss Scarlet brushing her hair the next morning, we know what just happened…..don’t we?

So how bout that? Sexually relevant? There are sure to be many lively debates over “sexually relevant.”

We don’t think a curtain separating the material is a good idea, but you are going to have to develop some method of restricting student access to the “sexually relevant” stuff.

There is a lot more to H.B. 900 and I’m sure we will dive into this one in detail at the Back to School tour this fall (www.ed311.com for registration). It will take quite a while before we get standards from the Texas State Library and Archives Commission, regulations from T.E.A., and the ratings from the vendors to help us comply with this Brave New World. (Sexually relevant? If I remember correctly, I think yes).

In the meantime, the most important thing to do is to know your school policy and follow it. Your school board has adopted a policy addressing parent complaints about library materials. Find it. Know what it says. Follow it.

DAWG BONE: IF A PARENT COMPLAINS, SAY “WE HAVE A POLICY ABOUT THAT. LET’S TAKE A LOOK AT IT.”

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

Tomorrow: have you been presented with a Notice and Declaration of Parental Rights?

I’m guessing that the lawyers who represented S.B. thought they had a strong case. In two separate incidents their client, an 11-year old girl with autism, was slapped on the hands by a school employee. The lawyers cited a Louisiana state law that provides that “no form of corporal punishment shall be administered to a student with an exceptionality.” The law specifically includes “slapping” a student and identifies autism as an “exceptionality.”

Did the school employees violate state law? It sounds like it. But the case was brought in federal court citing violations of Section 504, the ADA and the Constitution. The lower court dismissed all claims and the 5th Circuit has now affirmed that decision.

With regard to the constitutional claims the court cited its own previous rulings that have consistently dismissed cases like this. In fact, the court has dismissed cases involving far more severe physical punishment of a student. The rationale goes like this: if state law provides a remedy for this type of conduct, you have to bring your case in state court. Corporal punishment can violate a student’s constitutional rights if it is administered in a way that is “arbitrary, capricious, or wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive to learning.” But as long as the injured student can obtain recourse in state court, there is no constitutional claim to be made.

The 504 and ADA claims were dismissed due to the absence of any indication that the school employees slapped the little girl’s hands because of her disability. The court concluded there was no indication that the student suffered discrimination because of her disability. Instead, the court described the two incidents as involving a student who “behaved violently toward her instructors, who in turn resorted to physical discipline.”

Incident One happened when the student refused to pick up puzzle pieces and kicked at the “behavioral technician” who was helping her. The technician “slapped S.B.’s wrists and scolded her for kicking, stating ‘No, ma’am! No kicking.’”

Incident Two was similar. The student pinched the neck of the “behavioral technician” who then “grabbed S.B.’s hand and slapped the top of it, saying, ‘We do not pinch our friends!’”

The court noted that there were no facts plead from which one could infer a discriminatory motive.

It’s S.B. v. Jefferson Parish School Board, decided by the 5th Circuit on May 30, 2023. The opinion is “unpublished” in the Federal Reporter but can be found at 2023 WL 3723625.

DAWG BONE: NOT ALL CASES BELONG IN FEDERAL COURT.

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

Tomorrow: just what does “sexually relevant” mean?

On Toolbox Tuesday here at Daily Dawg HQ we normally focus on a court case that illustrates one of the “tools” in our firm’s Toolbox. The Toolbox is about the options school administrators have in the discipline of students with disabilities. Today we take a slightly different approach, focusing on a new state law that applies to all students.

H.B. 114 adds the following to Chapter 37 of the Texas Education Code:

Subject to the requirements of Section 37.009(a), a student SHALL be removed from class and PLACED IN A DISCIPLINARY ALTERNATIVE EDUCATION PROGRAM….if the student:

(2) commits the following on or within 300 feet of school property…..or while attending a school-sponsored or school-related activity on or off of school property:

(c-2) POSSESSES, USES, SELLS, GIVES, OR DELIVERS TO ANOTHER PERSON AN E-CIGARETTE, as defined by Section 161.081, Health and Safety Code.

Got that? Possession of a vaping device means mandatory DAEP. Oh boy. By the way, that definition of “e-cigarette” in the Health and Safety Code includes a “component, part, or accessory” for the device, even if sold separately.

This piece of news was not greeted with enthusiasm by the principals and assistant principals who assembled for the annual ED311/TASSP conference last month. I got the impression that we may be seeing a big increase in the DAEP population. In anticipation of that, H.B. 114 provides that if the DAEP is “at capacity” certain students can be sent to ISS instead. Those would be the students whose offense involves marijuana, THC, e-cigs, alcohol, or abusable chemicals.

Presumably it will be up to local districts to decide when the DAEP is full and also up to local administrators to determine the length of placement in DAEP for possession of a vaping device.

One more thing is worth noting, and it’s well known to you Loyal Daily Dawg Readers. “Mandatory” placement in DAEP is a misleading term. For students with disabilities the ARD Committee must meet and make a manifestation determination prior to a removal to DAEP that amounts to a change of placement. I’m dubious about disabilities directly causing a student to vape, but I’m sure you will be confronted with that argument.

Lots of work to do on that Student Code of Conduct! Or you might want to look over your DOI plan and see if this new law is one you’d like to address in the DOI. We can help with that at WG. Let us hear from you.

DAWG BONE: BIG NEWS: MANDATORY DAEP FOR POSSESSION OF A VAPING DEVICE.

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

Tomorrow: does a violation of state law get you into federal court?

Whew! That two-week break from Daily Dawg Duties went fast. We’re back at it now, and will continue with Monday-Friday entries from now until the December break.

The Big News today is about what’s happening tomorrow. Tomorrow at 10, Jameson Baker and Haley Turner will be doing our firm’s webinar to highlight the major changes that have emerged from the 2023 legislative session. It’s not too late to sign up for what is sure to be an informative and helpful session. Go to www.walshgallegos.com.

We have lots of changes to discuss. You may have already heard about new laws regarding student discipline, safety protocols, library books…the list goes on and on. Haley and Jameson will focus on the practical implications of the new laws. Hope you can join in on this one.

The other thing going on tomorrow is our firm’s annual reception for the TCASErs. At Fleming’s in downtown Austin from 5:00 to 6:30. I won’t be there, but the firm will be well represented. If you are in Austin for TCASE, please come on by for hospitality!

DAWG BONE: AND THEY ARE NOT DONE! SPECIAL SESSIONS CONTINUE!

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

Tomorrow: Toolbox Tuesday!!

One more Daily Dawg Classic, AKA a rerun.

When someone is accused of wrongdoing they have the opportunity to 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 basic 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.”

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.

Football season will soon be upon us and so I decided to dust off this old analogy.

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

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

Here’s another Daily Dawg Classic from years past. It came to mind recently when I had the opportunity to introduce my sister to DQ Blizzards. She has lived in Texas for decades and had never had one. Can you believe that???

DEAR DAWG:

I cannot figure out how the UIL puts high schools into classifications. I mean, I know the basics—the 6A schools are big and the 1A schools are small. But how exactly do they do it? Is there a science to it? STUCK IN THE MIDDLE AT 3A.

DEAR STUCK IN THE MIDDLE:
We once heard a very clear explanation about this, from none other than Dr. Charles Breithaupt, former Executive Director of the UIL. According to Dr. B, the UIL can do this classification thing just by driving around the state and looking around in each town. Here’s the criteria:

Your town has no DQ: You are 1A
Your town has one DQ: You are 2A
Your town has one DQ and a Sonic: You are 3A
Your town has a Walmart: You are 4A
Your town has a Super Walmart: You are 5A

We think the 6A classification is reserved for places with multiple Starbucks.
Hope that clears it up for you!

DAWG BONE: THE UIL PROCESS MAY SEEM MYSTERIOUS BUT IT ALL MAKES SENSE.

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

Tomorrow: How practicing law is a little like playing football…

The cafeteria worker finished her shift at 2:30, but failed to “clock out.” Exactly 12 minutes later she struck a student with her car, flipping him into the air. The student had a skull fracture and a traumatic brain injury. The court’s opinion in the subsequent lawsuit tells us that the student has since had multiple brain surgeries and is relearning how to walk, eat, and otherwise function.

The injured student sued the school district and the case largely turned on where the cafeteria worker was headed, and why she was headed there. That mattered because school districts are legally liable for injuries that result from a motor vehicle accident only when the driver of the vehicle was negligent, and was acting within the “scope of employment.” The school district sought to dismiss the case, arguing that the driver was not within the scope of her employment.

She was driving to the school admin building to meet with someone from HR who could answer some questions she had about her health insurance. So the lawyer for the student emphasized that she was driving from one school building to another, and was going into a meeting with a representative of the school district who could clarify some questions about the district-issued health insurance plan.

However, that was not enough to convince the court that the driver was acting within the scope of employment. Her shift was over. She was no longer on the clock and the fact that she failed to “clock out” did not change that. She was not being paid. Her supervisor did not tell her to drive to the admin building, or to meet with the HR representative about the health insurance. In short, the cafeteria worker was on a personal errand when this accident occurred. The school district is not liable.

Notice, however, that the case did not turn on whose car she was driving. She was driving her personal car, but that was not the relevant issue. If her supervisor had directed her to report to another campus due to a shortage in the cafeteria, it’s very likely that the court would have viewed that as being within the scope of her employment.

It’s a sad case all around. The student was seriously injured and the worker was fired and pled guilty to assault with serious bodily injury. It’s Alief ISD v. Velazquez, decided by the Court of Appeals in Houston on May 18, 2023. It’s located at 2023 WL 3555495.

DAWG BONE: MOTOR VEHICLE + NEGLIGENCE + EMPLOYEE IN THE SCOPE OF EMPLOYMENT = ISD LIABILITY.

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

Tomorrow: UIL classifications

Let’s put this one under the category of Daily Dawg Classic. We published this one several years ago, but I’m in a bit of a time crunch, so I resurrected it for today. Enjoy.

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. I attended one of your Toolbox Trainings and appreciate it, but as you know, here in the private sector we have a much bigger toolbox.

So I was preparing a new Student Code of Conduct, and thought it would be a good idea to incorporate Biblical principles. We teach 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 verse 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 at a Christian school, 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. And maybe you could even add another gender to that.

DAWG BONE: THE AUTHOR OF DEUTERONOMY WOULD MAKE ONE HECK OF AN ASSISTANT PRINCIPAL.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: tragic accident leads to litigation

As is often the case, the good things in a stuffy judicial opinion are often hidden in the footnotes. Footnote 4 in a recent Texas Supreme Court case reads as follows:

A “tax ferret contract” has been defined as an agreement to locate property that has been omitted from the tax rolls.” Kinder Morgan wields the term “tax ferret” as a condemnation. Mr. Lemon is eager to assure us that he is no such thing. We assume the parties mean no disrespect to the furry mammal himself, a beloved pet of Queen Elizabeth I, celebrated annually on National Ferret Day, April 2.

This deserves some background, no? Mr. Lemon is a lawyer hired by Iraan-Sheffield ISD to sue the Pecos County Appraisal District, challenging the appraised value of Kinder Morgan’s mineral interests. The contract with Mr. Lemon was a contingent fee arrangement, whereby he would recover 20% of what his lawsuit produced for the district. Kinder Morgan filed a motion asserting that Mr. Lemon should be removed from the suit because the district had no authority to enter into a contingent fee agreement in a tax-related suit.

That’s why Kinder Morgan accused Mr. Lemon of being a “tax ferret” and Mr. Lemon responded by labeling Kinder Morgan as a “tax cheat” and “progeny of Enron.” The Supreme Court gently scolded the parties for the name-calling and declared that it would decide the case based on the provisions of the Texas Tax Code “none of which use mammalian metaphors.”

The court ultimately agreed with Kinder Morgan that the district lacked the legal power to retain a lawyer on a contingent fee basis, at least in this type of litigation. The court carefully noted that it was not addressing the power of local school boards to engage counsel on a contingent fee in other types of cases, such as tort suits. But in cases involving tax appraisal, the court held that a contingent fee was not authorized. So even though the school board had voted to sign off on the contingent fee deal, they were acting “ultra vires” when they did so. In other words, they did not have the power to do what they did—so what they did never happened. That’s sort of a simple explanation of “ultra vires.”

That’s not the end of this interesting case. The Supreme Court held that the lower court went too far when it dismissed the case entirely. The Supreme Court thought the school district should have been given the opportunity to change its agreement with Mr. Lemon, or hire other counsel. However, any lawyer retained to do this work would have to be retained on a regular fee, rather than a contingent fee.

This is an interesting tactic for school districts to employ when they believe that taxable values are way out of whack. The Court’s ruling does not preclude such a challenge, so perhaps we will see more of this. But it will not be on a contingent fee.

It’s Pecos County Appraisal District v. Iraan-Sheffield ISD, decided by the Texas Supreme Court on May 19, 2023. It’s cited at 2023 WL 3556711.

DAWG BONE: CONTINGENT FEES ARE THE NORM FOR CONTRACTS TO COLLECT DELINQUENT TAXES.

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

Tomorrow: Toolbox Tuesday!!