Here’s a short and simple point to keep in mind. If you appeal a school district’s decision to T.E.A. you have to identify the DISTRICT as the respondent.  In a recent case, an anonymous “child” acting through the equally anonymous “parent” complained about nine named employees without identifying the school district they worked for.  The Commissioner put it succinctly: “The only proper respondent in a Texas Education Code section 7.057(a)(2) case is a school district.”  No school district, no jurisdiction. Case dismissed.

If that sounds overly harsh, you should also know that the Commish gave the Petitioner an opportunity to fix this problem, but the Petitioner failed to do so.

So there. The case is Child b/n/f (by next friend) Parents v. Rogers, et al.  Docket No. 020-R10-03-2016, decided by Commissioner Morath on November 17, 2016.

DAWG BONE: IT’S IMPORTANT TO PAY ATTENTION TO DETAILS

File this one under: PRACTICE AND PROCEDURE

Tomorrow: Have you issued a “no trespass” letter to a parent?

The Dawg takes a particular interest in any litigation involving his fellow canines.  Thus we have been closely monitoring the Supreme Court (SCOTUS) awaiting a decision about WONDER the Service Dog.  We’ve got the decision now. But it doesn’t tell us much about Wonder, or the school’s obligation to accommodate a request for a service animal.

Instead, the decision is all about “exhaustion of administrative remedies.”  Thus you can file this one under BORING, BUT IMPORTANT.

The Court ruled that the parent of a student with a disability can file a lawsuit without first seeking a special education due process hearing if the “gravamen” of the suit is something other than the denial of FAPE (Free Appropriate Public Education).  “Gravamen” is a great word to work into your daily vocabulary.

This case arose when the parents asked the school to allow Wonder to come to school with the little girl.  The school turned down the request, largely because the school was already providing a one-to-one aide.  Who needs a dog when you have a person?

That would have been a winning argument if this case was about whether or not the school was providing FAPE.  But the case was not about FAPE--it was about discrimination under Section 504 and the ADA.  Thus the Court came to its ultimate conclusion: that if the case is not about FAPE, but is instead, about alleged discrimination, then you don’t have to “exhaust” those administrative procedures.

So how do you tell what the case is really about?  This is where the word “gravamen” comes into play.  The Court described it this way: “What matters is the crux—or in legal-speak, the gravamen—of the plaintiff’s complaint, setting aside any attempts at artful pleading.”

Justice Kagan wrote the Court’s opinion and offered four ways in which lower courts can discern the “crux” of the suit.  First, what does the lawsuit itself say?  Here, the Court pointed out, the key is not labels, but substance.   Exhaustion is required “when the gravamen of the complaint seeks redress for a school’s failure to provide a FAPE, even if not phrased or framed in precisely that way.”

Second: could the plaintiff bring the same complaint if the setting for the complaint had been some public facility other than a school?  Here, the complaint was about the denial of a service dog in the public school. Could the plaintiff have filed suit if the city library had denied entry to the service dog?  If so, it sounds like the “gravamen” is not about FAPE.

Third, could an adult file the same complaint? If Grandma was not allowed to bring her service dog to the high school graduation, could she file suit under ADA/504?  If so, it sounds like this is not really about FAPE.

Finally, what’s the history of the proceedings?  Did the parents begin the process of exhaustion and then abandon it? If they requested a special education due process hearing, it is more likely that the “gravamen” is about FAPE.

The Court did not decide whether the Frys have to exhaust their remedies or not.  There were some unanswered questions in the record, and so the Court sent it back to the 6^th Circuit for further consideration. But it sure looks like exhaustion will not be required. The “gravamen” of this complaint is equal access—discrimination—not the denial of FAPE.

This is an important decision, as are all decisions by the U.S. Supreme Court. However, it is not one that will have an immediate impact on the day-to-day operation of your school district.  “Exhaustion of administrative remedies” is of more concern to the lawyers than the educators.   If suit is filed, it will be up to your lawyer to determine whether or not it is wise to seek dismissal based on the failure to exhaust.  Justice Kagan’s opinion will guide that decision.

But before we leave this case, let’s consider one more aspect of it. What about Wonder?  The case has now been through all three levels of our federal judicial system and the core issue has yet to be addressed—did the school discriminate against the family by denying access to the service dog?   All three judicial opinions address only the procedural issue of “exhaustion of administrative remedies.”

However, the implication of the ultimate (SCOTUS) decision is clear.  Claiming that a service animal should be allowed at school involves more than a FAPE analysis.  It also involves consideration of whether or not a denial of that claim would open the door to a federal suit under ADA/504.  So ask yourself two questions: Is it required for FAPE?  If so, write it into the IEP.  If not, ask yourself the second question: Is it required as an element of equal access?  If so, then permit it as a reasonable accommodation.

The case of Fry v. Napoleon Community Schools was decided by the U.S. Supreme Court on February 22, 2017.  The judgment was rendered unanimously, with six justices signing off on Justice Kagan’s opinion, and two (Alito and Thomas) adding a concurring opinion addressing one part of Kagan’s opinion.

DAWG BONE: THE DAWG IS SECRETLY SUPPORTIVE OF WONDER

 File this one under: PRACTICE AND PROCEDURE

Tomorrow: T.E.A. is not the place to go with a complaint about an individual.

The Texas Supreme Court has held that homeschooling parents who allege that the district has violated their constitutional rights do not have to file a complaint with the local district, or appeal the school board’s decision to the Commissioner. Instead, they can go directly to court with their lawsuit.

The case involves parents in El Paso who refused to sign the form the district asked for that would verify that they were providing a bona fide home school. Not only did the parents refuse to sign that simple form—they also filed suit, alleging that the district was violating their constitutional rights.

Notice that the district did not initiate litigation. The parents were never charged with a crime, nor were the students prosecuted for truancy. The parents filed the suit, seeking damages of over $800,000, because they claimed that the district was infringing on constitutional rights by requiring them to sign a form.

We thought that this case would lead to an answer from the Supreme Court about the key issue here: Is it OK for a school to require some sort of verification that home schooling is really taking place? The Court’s answer to that question is: WE DON’T KNOW. Instead of answering the question the court sent the case back to the El Paso District Court for a ruling.

Sheesh. You see the Court of Appeals had ruled against the parents on the theory that they should have taken their issue up with the El Paso school board, and then the Commissioner. The lawyers call this “exhaustion of administrative remedies.” The theory is that if there are administrative remedies available, (such as an appeal to the Commissioner) then you have to go through that process before you go to court. Since the parents had filed suit without complaining to the board or appealing to the Commissioner, the Court of Appeals tossed the case out for lack of jurisdiction. The Texas Supreme Court has now reversed that decision. The majority of the Court held that the parents were not complaining about the “school laws of Texas” but rather, an infringement of their constitutional rights. The majority held that such claims need not, and indeed, cannot be decided by Commissioner Morath’s office.

The dissenting opinion thought that this was flim flam: “Yet the Court today…holds that homeschool parents can avoid that exhaustion requirement simply by cloaking their school-law claims in constitutional language.”

This is an important decision, but not for the reason we were expecting. We thought the decision would be a significant ruling regarding the rights of parents to home school their kids and the responsibilities of school officials to make sure that all kids are being educated. Instead, the case is important because of how it clips the wings of the Commissioner’s office. You can expect more disgruntled parties to go directly to court now. If they allege that the district somehow violated the state or federal constitution, they can bypass administrative avenues.

The case is McIntyre v. El Paso ISD, decided by the Texas Supreme Court, 6-3, on June 24, 2016.

DAWG BONE: IF THE SUIT ALLEGES VIOLATION OF TEXAS OR U.S. CONSTITUTION, IT CANNOT GO TO THE COMMISSIONER

File this one under: PRACTICE AND PROCEDURE

Some decisions from the 5^th Circuit make grand pronouncements about the law. Others deal with more mundane matters, like deadlines. Such is the decision in Lozano v. Donna ISD.  This is a case filed by the parent of a student who was allegedly sexually assaulted by a DISD teacher.  The suit alleged that the district should be held liable for this as a violation of Title IX.  But the district court dismissed the suit because the parent “failed to plead facts showing that Donna ISD had actual knowledge” that kids were at great risk of being sexually harassed.  You have to plead FACTS—not just conclusions.  Saying that the district “should have known” is a conclusion. The plaintiff has to allege FACTS that show why the district “should have known.”

However, the district court gave the parent an opportunity to fix this problem and keep the case alive. The court allowed the parent to file an amended complaint, but it had to be done within seven days.  It wasn’t.  So when the district then asked the judge to completely dismiss the case, the judge did so.

Then the parent appealed to the 5^th Circuit, arguing that the lower court had abused its discretion and after all, the 7-day deadline was a “mere technicality.”  The court did not see it that way:

…failing to file an amended complaint pursuant to an order by the district court does not constitute the sort of “mere technicality” discussed [in an earlier case].

Case dismissed.

This case carries an obvious lesson for the lawyers. When the judge says you have seven days to file something, you need to file it within seven days. In fact, six would probably be a good idea.  As for legal principles, the case is yet another illustration of the fact that a school district is not liable just because an employee does a bad thing.  There has to be some evidence to show that the higher ups had at least an inkling of something.

The case is Lozano v. Donna ISD, decided by the 5^th Circuit on May 13, 2016.  The court ordered that the opinion go “unpublished” in the official legal reporters, but we found it on the 5^th Circuit’s website, Docket No. 15-41493.  And here it is!  http://www.ca5.uscourts.gov/opinions/unpub/15/15-41493.0.pdf

DAWG BONE: ENFORCING A DEADLINE IS NOT AN ABUSE OF DISCRETION

 File this one under: PRACTICE AND PROCEDURE

Tomorrow is Toolbox Tuesday! We take a look at the things the principal can do unilaterally.

Mary King-White alleged that her daughter was sexually abused by a dance instructor employed by Humble ISD.  The lawsuit alleged that this started in the spring of 2009, when the girl was 16, and continued until she graduated in 2011.   More than two years later, the mother and daughter sued the dance instructor, the district and certain district officials.

Last year, the 5^th Circuit held that was too late to pursue a suit against the district or its officials under Title IX or 42 U.S.C. Section 1983. See King-White v. Humble ISD, 803 F.3d 754 (5^th Cir. 2015).  Thus the district and its officials were dismissed from the suit without the court ruling on the substance of the allegations. Instead, the case was decided pursuant to the statute of limitations.

Now, the 5^th Circuit has reached the same conclusion with regard to the dance instructor.  The case against her was also dismissed due to the statute of limitations.

Neither Title IX nor Section 1983 contain a federal statute of limitations, and so the courts apply a comparable state statute.   In particular, courts are supposed to use the “general or residual” statute of limitations under state law.  Here, that is Section 16.003 of the Texas Civil Practice and Remedies Code, which calls for a two-year timeframe for personal injury cases.

The plaintiffs argued that the case did not “accrue,” and thus the two-year countdown did not start until long after the girl’s graduation when they obtained more information about HISD policy and practice. The court disagreed.  The case “accrued,” according to the court, when 1) the plaintiff became aware of the injury; and 2) the plaintiff became aware of “causation, that is, the connection between the injury and the defendant’s actions.”   This means that the plaintiff is aware of “circumstances that would lead a reasonable person to investigate further.”

The court pointed out that the girl certainly knew that she was being abused by a teacher.  And the mother had complained about the relationship to school officials while the girl was still in school—so she must have known something was amiss. On top of that, as the court emphasized, the daughter actually lived with the dance instructor, with the mother’s consent.  Thus the court concluded that the cause of action accrued long ago. The statute was “tolled” until the girl turned 18, but the suit was filed more than two years after that. Case dismissed.

The decision about the suit vs the dance instructor is also styled King-White v. Humble ISD. It was decided by the 5^th Circuit Court of Appeals on May 6, 2016.

DAWG BONE: TITLE IX AND SECTION 1983 CLAIMS IN TEXAS HAVE A TWO YEAR STATUTE OF LIMITATIONS.

File this one under: PRACTICE AND PROCEDURE

On TV and the movies, the jury verdict is always the climactic moment.  But here’s a little known fact: the judge can overrule the jury.  The losing party can file a Motion for Judgment Notwithstanding the Verdict (JNOV), which is exactly what it sounds like. It essentially says: “Your honor: the jury got it wrong. There is no evidence in the record to support the conclusion that they came to.”

Trinidad Rivera just learned this the hard way. Mr. Rivera got a verdict in his favor ($42,000) against the Port Arthur ISD. Mr. Rivera claimed that he was moved out of his coaching position and reassigned to a less favorable position as an act of retaliation for the lawsuit he had filed against the district several years earlier. This made sense to the jury. But the judge overturned it, finding that there was no more than “a scintilla” of evidence that the earlier lawsuit had anything to do with the reassignment.  Mr. Rivera appealed the decision, but the Court of Appeals affirmed the judge’s ruling.  Thus that nice verdict goes poof.

The case is Rivera v. Port Arthur ISD, decided by the Court of Appeals for Corpus Christi and Edinburg on April 21, 2016. We found it at 2016 WL 1613285.

DAWG BONE: TALK LIKE A LAWYER: USE “SCINTILLA” IN A SENTENCE TODAY.

READERS!! The Walsh Gallegos Student Code of Conduct will be released on May 20^th! Make sure to get your district prepared for next school year with the latest version of this essential product.  Our web-based, user friendly product provides clear information to students and parents while giving administrators a critical tool for dealing with difficult issues. 

Subscribe to the Student Code of Conduct, or renew your subscription today!

We are all eagerly awaiting the decision of our state Supreme Court in the school finance case.  In the meantime, the Court has already decided another school finance case….sort of. This one is from Clint ISD.  Parents sued the district claiming that internal inequities in funding violated the Texas Constitution. On April 1, the Supreme Court dismissed the case for lack of jurisdiction. The court held that the plaintiffs should have taken the issue up with T.E.A. before filing suit.

It would have been interesting if the court had ruled on the merits of this one. The plaintiffs alleged that the school board spent a disproportionate amount of the district’s funds in the town of Clint, to the detriment of the schools located in Montana Vista and Horizon City.  Rather than addressing that issue, the court tossed the case out on procedural grounds. The legal term is: exhaustion of administrative remedies. The plaintiffs were required to take their case to the Commissioner. Until they did that, the courts lacked jurisdiction.

It’s a lengthy opinion and lawyers will want to study it carefully.  This case provides a detailed analysis of T.E.C. Section 7.057 and the meaning of the term “the school laws of this state.”  In a nutshell, the court held that although the plaintiffs had alleged that the funding scheme violated the Texas Constitution, in reality, all of the violations tied into statutory provisions. Thus the court viewed the case as a challenge to decisions about “the school laws of this state” and so, Commissioner Morath would have jurisdiction, but the courts do not.

The case is Clint ISD v. Marquez, decided by the Texas Supreme Court on April 1, 2016. We found it at 2016 WL 1268000.

DAWG BONE: CASES INVOLVING “EXHAUSTION OF ADMINISTRATIVE REMEDIES” COME UNDER THE CATEGORY OF “BORING…BUT IMPORANT.”

It’s a real dilemma for the Dawg when a court case pits a school district against one of his canine friends.  The Dawg loves school districts. But how can the Dawg go against his fellow dawg? Especially when that dawg’s name is Wonder.  Thus the Dawg was conflicted while reading about the case of Wonder the service dawg and the school district in Michigan.

The parents of a little girl in Michigan wanted to have Wonder at school with her, to serve as her service animal.  The little girl had significant disabilities, and Wonder was trained to assist her. But the school district was already providing a human being as an aide for the little girl, and thus deemed Wonder unnecessary.  The school turned down the request.

The parents filed suit, even though they had moved their little girl to another district which welcomed Wonder. They sued the original district, alleging that its refusal to allow Wonder to help out was illegal.  They sought money damages, among other things, for the violation of their daughter’s rights.   Since the suit was based on Section 504 and the Americans with Disabilities Act (ADA) the lawyers evidently thought that they did not have to go through the special education due process hearing system. They went right to court, without requesting a special education due process hearing.

That turned out to be a mistake.  The school district filed a Motion to Dismiss the lawsuit, arguing that the parents were required to “exhaust administrative remedies.”  That’s legalese for “you have to get a special ed due process hearing first. You can’t go to court until you do that.”

The 6^th Circuit agreed with the school district, and tossed the case out of court.

This case sheds no light on the issue of when a school is obligated to permit a service animal to accompany a student to school.  The decision is purely procedural, and thus will be of more interest to the lawyers than the educators.

Nevetheless, the Dawg finds this very satisfying. The court did not have anything bad to say about the school or Wonder.  It did not say that the school violated the law. Nor did it say that Wonder was anything other than wonder-ful.  It just said that the parents failed to jump through one of the procedural hoops you have to jump through.

Got a service animal question?  Call your lawyer.  The case is Fry v. Napoleon Community Schools, decided by the 6^th Circuit Court of Appeals on June 12, 2015.

DAWG BONE: EVEN WHEN YOU SUE UNDER 504, YOU MIGHT NEED TO ASK FOR A SPECIAL ED HEARING FIRST.