The Toolbox is an all day training program focused on disciplinary options for students with disabilities. In the Toolbox, we break down the complicated federal regulations into ten “tools” that are available to school administrators.  However, we always emphasize that the main goal is to encourage improved student behavior.  Handling student misconduct exclusively through old school, punitive measures is simply not effective.  So we always emphasize that the most important of the ten tools is the first one: the development and implementation of a good BIP (Behavior Improvement Plan).

This becomes even more evident and important as lawmakers discourage some of the traditional forms of student discipline, such as out of school suspension.   In that context, you need to take a look at HB 674, recently enacted by the Texas legislature and now awaiting the Governor’s signature.  Highlights of HB 674:

1. It prohibits the out of school suspension of a student below grade three unless the student commits an offense involving weapons, drugs, alcohol or violence.   Other offenses that may lead to suspension under your Code of Conduct will have to be treated differently if the student is in Pre-K, K, or grades 1 or 2.

2. It authorizes, but does not require, districts and charter schools to develop disciplinary alternatives for the little kids. Specifically, the bill calls for “alternative disciplinary courses of action that do not rely on the use of in-school suspension, out-of-school suspension, or placement in a DAEP.”

The message we are getting is pretty clear. Let’s move away from exclusionary forms of discipline, and take a more positive, inclusive, restorative approach.  Everything we discuss in the Toolbox training is consistent with that message.

I’ve got Toolbox trainings coming up in Region 16, Region 6 and Del Rio. If you are interested in a Toolbox Training, just let me know.

DAWG BONE: NO OUT-OF-SCHOOL SUSPENSION FOR KIDS BELOW GRADE THREE. 

File this one under: STUDENT DISCIPLINE

Tomorrow: Cameras in the classroom!! A new and improved law.

Yesterday we told you about the 9th Circuit decision upholding school disciplinary action based on sexually harassing comments by a 7th grade boy. Today, we revisit that case and focus on the inconvenient fact that all of this happened off campus and after school.

School officials have more authority to regulate student expression that occurs during the school day and on campus than they do with things that occur elsewhere. In the 9th Circuit case, the sexual harassment occurred on a bike path that went through a park adjacent to the school. The parties to this case agreed that what happened here happened off campus. So how can the school justify suspending the student?

The court cited earlier cases that established two tests in “off campus” cases—the “nexus” test and the “foreseeability” test. As to nexus, the court noted that the harassment that took place on that bike path “was closely tied to the school.” First, only students were involved in this interaction. Second, the kids were in close proximity to the school, and it was literally just minutes after school let out. Third, there was no clear line of demarcation that said THIS IS SCHOOL PROPERTY and THIS IS NOT. In fact, school administrators routinely referred to the entire area as “the back field.” Key Quote:

….but it is clear that it was school itself that brought the children together on the path. Moreover, it is a reasonable exercise of the School District’s in loco parentis authority to be concerned with its students’ well being as they begin their homeward journey at the end of the school day.

As far as “foreseeability”:

Because the harassment happened in such close proximity to the school, administrators could reasonably expect the harassment’s effects to spill over into the school environment.

The ACLU represented the student in this case and made the familiar “slippery slope” argument. If school officials can discipline a student for off-campus behavior, just how far does this extend? The mall? The movie theater? The court did not lay out any hard and fast rule about this, noting that “Our decision is necessarily restricted to the unique facts presented by this case.” Good common sense will have to inform decisions in the future. The court noted that “A school may act to ensure students are able to leave the school safely without implicating the rights of students to speak freely in the broader community.”

This is an important decision supporting school district authority from a court that is generally considered the most liberal of our circuit courts. So how bout that! The case is C.R. v. Eugene School District 4J, decided by the 9th Circuit on September 1, 2016.

DAWG BONE: “IN LOCO PARENTIS” IS STILL ALIVE!

File this one under: STUDENT DISCIPLINE

Tomorrow: Still trying to fire the coach…

Readers of this blog are probably familiar with the basic outline of the “Tinker Test.”  Tinker v. Des Moines is the landmark SCOTUS case establishing that students have a right to free expression during the school day.  The Tinker Test is usually framed in terms of “material and substantial disruption.” That is, the student can express herself freely; but school officials can infringe on that right if they can reasonably forecast a “material and substantial” disruption.

There has always been a second part to the Tinker Test, but it has gotten very little attention.  Since courts have rarely cited it, administrators and lawyers tend to forget it. But now we have an important decision from the 9^th Circuit that revives the second part of the Tinker Test. In upholding school disciplinary action, the court specifically relied on the second part of the Tinker Test.

The second part of the Tinker Test allows school officials to take action if student expression collides with “the rights of other students to be secure and to be let alone.”  Notice that this test does not require a major disruption of school activities. It only requires evidence of an interference with the rights of other students.

The 9^th Circuit case involved 7^th grade boys acting badly.  Just minutes after school let out, on a path that went through a park adjacent to school property, three boys surrounded a 6^th grade boy and girl who were walking home.  The boys gave the younger students fake vulgar names, asked them if they were dating, asked them if they watched pornography, and made sexually suggestive and vulgar comments.  The 6^th grade girl reported that she was very uncomfortable with this. Both of the 6^th graders were identified in the court case as having disabilities, but that did not figure in the decision.

School officials heard about what had happened after school that day, investigated, charged one of the boys with sexual harassment and suspended him from school for two days.  The ACLU jumped in with a First Amendment lawsuit.

There were two key issues here. Today, we will address the Tinker Test issue.  Check out tomorrow’s Daily Dawg for a commentary on the “on school/off school property” issue.

As to the Tinker Test, the court noted that the comments of the 7^th grade boys were properly classified by the school as “sexual harassment,” which the court distinguished from speech that is “merely offensive.”  The court observed that sexual harassing speech “implicates the rights of students to be secure.” It threatens a person’s “sense of physical, as well as emotional and psychological security.”   The age of the students was a relevant factor here as well.  The court noted that “when it comes to sexual harassment, grade schools may exercise a greater degree of control over student speech than colleges.”

So the comments of the boys were not protected as free speech.  But what about the fact that all of this happened after school, and off school property?  We’ll turn our attention to that tomorrow.

The case is C.R. v. Eugene School District 4J, decided by the 9^th Circuit Court of Appeals on September 1, 2016.

DAWG BONE: I WONDER IF THE ACLU GETS TIRED OF REPRESENTING FOUL MOUTHED ADOLESCENTS.

File this one under: STUDENT DISCIPLINE

Tomorrow: Can the school exercise jurisdiction beyond its boundaries?

It took the 10^th Circuit Court of Appeals 94 pages to conclude that Officer Acosta did nothing wrong when he arrested a middle school kid for “fake burping” and other such activities that disrupted a P.E. class in Albuquerque.  The court’s majority could not quite bring itself to conclude that “fake burping” gave the officer “probable cause” to arrest this class clown.  But they held that the cop had “arguable probable cause” which was enough to provide immunity to the officer.  He may have violated the law—but he didn’t violate “clearly established” law. Thus no personal liability.

This all started when P.E. teacher Mines-Hornbeck got frustrated with F.M. for “fake burping” and otherwise calling attention to himself during class.  The opinion does not tell us why the teacher did not send the student to the office, but you have to wonder. Instead, she put him in the hallway. When the boy continued to lean into the classroom and burp, she called in the heavy artillery.

Officer Acosta promptly arrived, took the perp away and eventually arrested and handcuffed him.

Just imagine the conversation down at juvie:

“What are you in here for?” 

“I burped in class.”

“I didn’t know you could get arrested for that!”

“Well…I did it more than once. And on purpose.”

“Oh!”

The statute relied on by the officer made it a criminal offense for anyone to “willfully interfere with the educational process of any public…school by committing, threatening to commit or inciting others to commit any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a public…school.”

We are sure that this would apply to a bomb threat, a loudspeaker blaring into classrooms, cutting off the power supply to the school and other such disruptive activities. Now we know that it also applies to burping. Or at least it “arguably” applies to “fake” burping.

Texas has a similar law entitled Disruption of Classes, but our legislature made sure that it did not apply to 7^th graders burping in class. It says:

A person other than a primary or secondary grade student enrolled in the school commits an offense if…..  T.E.C. 37.124 emphasis added.

Thus the Texas statute specifies that Disruption of Classes is a criminal offense if done by someone other than a student. If it is done by a student, it should be dealt with via student disciplinary proceedings, rather than a criminal charge.

As usual with long court opinions like this one, the dissent is shorter, and more fun.   Here’s what dissenting Judge Gorsuch had to say:

If a 7^th grader starts trading fake burps for laughs in gym class, what’s a teacher to do?  Order extra laps?  Detention?  A trip to the principal’s office?  Maybe. But then again, maybe that’s too old school.  Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant 13-year old to the principal’s office, an arrest would be a better idea.  So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer 94 pages explaining why they think that’s so.  Respectfully, I remain unpersuaded.

The case is A.M. v.  Holmes, decided by the 10^th Circuit Court of Appeals on July 25, 2016.  We found it at 2016 WL 3999756.

DAWG BONE: SOMETIMES YOU HAVE TO GIVE OUR LEGISLATURE CREDIT.  GOOD MOVE, PEOPLE. WE EXPECT NEW MEXICO TO FOLLOW OUR LEAD ON THIS.

File this one under: STUDENT DISCIPLINE

On Throwback Thursdays we like to highlight those “Golden Oldie” cases that established key principles of school law. In the area of student due process that case is Goss v. Lopez. That’s the 1975 case in which the Supreme Court held that the 14th Amendment concept of “due process” applies to a short term suspension. The Court defined “short” as ten days or less. Of course in Texas, out of school suspension is capped at three days.

Most campus administrators are familiar with the notion that a student facing a possible suspension must have the opportunity to “tell his or her side of the story.” That comes from Goss v. Lopez. The Court emphasized that it believed it was announcing a rule that school officials would easily comply with. The Court reasoned that any decent administrator would be doing this anyway. The process, according to the Court, could be short, informal and immediate. Just a simple give-and-take with the student.

What about DAEP? Twenty years after the Goss case, Texas mandated alternative education programs for kids who committed serious offenses. What sort of “due process” would apply here? This came up before the 5th Circuit in Nevares v. San Marcos CISD. The Court surprised a lot of people by holding that young Mr. Nevares was not entitled to “due process.” The Court reasoned that “process” was “due” only when the school district was proposing to deprive the student of his or her right to an education. The opinion said that DAEP was not such a deprivation: “Timothy Nevares was not denied access to public education, not even temporarily. He was only transferred from one school program to another program with stricter discipline.”

So there. No deprivation. No process due.

But be careful. The case was interpreting the constitutional notion of “due process.” We still have statutory law that applies. In particular, Chapter 37 requires a “conference” prior to a DAEP assignment, and that “conference” looks an awful lot like a form of “due process.”

Principals should keep one other important fact of life in mind. Most people are not lawyers, and so when they speak of “due process” they do not mean what the lawyers mean. When lawyers speak of “due process” they are talking about constitutional requirements as interpreted by our courts. But to the average person on the street “due process” just means basic fairness.
In that sense, we think you should always provide “due process” when taking disciplinary action. Principals often note that they spend an inordinate amount of time and energy dealing with the A-B-C-Ds of school life: Athletics, Band, Cheerleaders, Drill Team. Disciplinary action involving these programs does not require “due process” as the lawyers speak of that term.

But woe to you who fail to provide a process that satisfies the streetwise sense of “due process” for a cheerleader.

DAWG BONE: GOSS v. LOPEZ IS THE GOLDEN OLDIE FOR STUDENT DUE PROCESS

File this one under: STUDENT DISCIPLINE

TOMORROW: CAN THE SCHOOL BOARD PUNISH THE BOARD MEMBER WHO GOES BACK ON HER WORD?

On Tuesdays here at the Daily Dawg we like to highlight The Toolbox. This is a one day training program focusing on serving students with disabilities who engage in challenging behaviors.  In the Toolbox we provide ten “tools” that schools can use to serve these students safely and appropriately.

We talk quite a bit about the Code of Conduct in our Toolbox trainings.  The Code provides an important point of reference.  In the Toolbox training we emphasize how the Code of Conduct differs from an individual student’s Behavior Intervention Plan (BIP).  We also encourage you to make sure that parents understand that a BIP does not replace your Code of Conduct. The Code of Conduct applies to all students.

So I want to be sure you are aware of the fact that Walsh Gallegos offers a Model Student Code of Conduct. It’s an interactive product, empowering you to take our framework and customize it to your district. It’s been a popular product for us because it is user friendly and very workable. Our Model Code is simple and straightforward. We update it after each legislative session and keep an eye on developing case law for significant changes as well.

If interested, take a look at our website: www.walshgallegos.com, and then click on Products.

DAWG BONE: SUMMERTIME IS THE TIME TO UPDATE THE CODE.

File this one under: STUDENT DISCIPLINE

TOMORROW: THE STATUTE OF LIMITATIONS COMES INTO PLAY.

We often hear people refer to extracurricular activities as a “privilege…not a right.”  We classify that statement as legally correct…..but professionally naïve.

We say that extras are a “privilege” because, as a general rule, the student’s right to an education does not extend to after school activities.  The Texas Constitution requires that we have a system of public free schools. The courts have held that a student’s right to an education is a piece of property, thus implicating the 5^th and 14^th Amendments to the Constitution. The government (your school) cannot take a person’s property from them (student’s right to an education) without providing “due process of law.”  But case after case has held that the right to an education refers to instruction during the school day—not the fun stuff that happens after that.

But woe to the school administrator who cites this common phrase when dealing with an angry parent.  Your lips may say “It’s a privilege not a right,” but the parents’ ears will process this as “I don’t give a flip about your kid.”  So be careful when dealing with the ABCDs: athletics, band, cheerleaders and drill team.  Be fair.  Moreover, make sure that your process looks fair.

These issues can spin out of control.  I recall the superintendent who asked me if the band boosters were required to register with Homeland Security as a terrorist organization.  So be careful with your phraseology.  That old “privilege, not a right” language might better be left to your lawyer if it comes to that.

DAWG BONE: WITH EXTRACURRICULARS BE FAIR…AND MAKE SURE THAT YOU ARE PERCEIVED AS FAIR.

D.N. initially denied that he was the one who brought the stink bomb to school. But so many kids fingered him that the administrators brought him in for questioning.  The boy finally ‘fessed up and provided a written statement.  The assistant principal then conducted a search.  Looking into the pockets of the student’s hoodie, she found what are commonly called brass knuckles.  This led to more searching, including the deep dive into the pockets, both front and back, of the skinny jeans.

The boy was expelled and assigned to the JJAEP.  He never went.  His parents provided home schooling for two years, and then sued the district claiming constitutional violations. Specifically, they alleged a violation of the 14^th Amendment (Due Process) and the 4^th (Illegal Search).

The court held that the boy was provided all of the due process he was entitled to.  Significantly, though, the court also held that the assignment to JJAEP was not a deprivation of “property.” Thus there could be no 14^th Amendment violation:

Because D.N. was permitted to serve his punishment in an alternative education program, he was not denied access to public education and, accordingly, his 14^th Amendment property interest in a free public education was not violated.

As to the 4^th Amendment, the court held that the A.P. was entitled to qualified immunity.  The court noted that this search was “justified at the inception” by virtue of the boy’s admission of bringing a stink bomb to school. And the discovery of the knuckles justified a further inspection.  Was the search “excessively intrusive”?  The court was dubious:

Plaintiff points to no authority holding under circumstances such as this, that a school principal’s or assistant principal’s search of a male student’s pockets by reaching into them while the student is fully clothed is an objectively unreasonable or unconstitutional search. Although it is highly improbable that the facts as stated here by Plaintiff amount to a constitutional violation, it is clear as a matter of law that the conduct did not violate a “clearly established” right and, at the very least, the Individual Defendants are entitled to qualified immunity on Plaintiff’s 4^th Amendment claim.

The case is Deyo v. Tomball ISD, decided by the Southern District of Texas on November 11, 2015.  We found it at 2015 WL 6971642.  It’s on appeal to the 5^th Circuit, so stay tuned.

DAWG BONE: OK, BUT DON’T GO INTO THOSE POCKETS UNLESS YOU NEED TO. AND DON’T STAY LONG.

Practically every day I read some news story about a student discipline situation that ends up in court and makes me think: “they should have been using Restorative Practices.”  One of the benefits of Restorative Practices is that the risk of litigation will go down.  Fewer district resources will be allocated to legal defense costs.  On the other hand, there is now at least one reported case in which the plaintiffs are asking the court to require the school district to convert from its punitive discipline system to one based on Restorative Practices. That case comes “Straight Outta Compton.”

The plaintiffs in the case against the Compton Unified School District assert that the students in Compton have experienced traumatic events that “profoundly affect their psychological, emotional, and physical well-being.”  The suit describes these traumatic events as “exposure to violence and loss, family disruptions related to deportation, incarceration and/or the foster system, systemic racism and discrimination, and the extreme stress of lacking basic necessities, such as not knowing where the next meal will come from or where to sleep that night.”

This is what I call a “cause” lawsuit.  The plaintiffs in Compton seek no money.  They want a court order requiring the school to become a “trauma-sensitive school.”   They define such a school as exhibiting three core components: 1) TRAINING of educators to recognize, understand and proactively address the effects of complex trauma through building students’ self-regulation and social-emotional skills; 2) RESTORATIVE PRACTICES to build healthy relationships and resolve conflicts peacefully rather than using punitive discipline; and 3) ensuring that CONSISTENT MENTAL HEALTH SUPPORT is available.

Some of you may be wondering: what does this case have to do with Toolbox Tuesday? The Toolbox is a full day training program designed to empower educators to use ten “tools” when dealing with disruptive or violent behavior from students with disabilities. I’m proud of the Toolbox and love doing the training. But I like to remind myself and others that the Toolbox represents a very imperfect solution to the problem. The better solution is to address student misconduct in the context of relationships, and meaningful student accountability.  Restorative Practices move us in the right direction.

The issue of trauma, and its effect on kids, is sure to get more attention in the future, as it should.  And if you think that problems like this are confined to Compton, California, and places like it, let me quote some comments from Amarillo ISD teacher, Shanna Peeples after she was honored as the National Teacher of the Year.  In an interview with The Texas Tribune, she was asked if she sees trauma in her classroom, she said:

Totally.  That is the most woefully underfunded need of students. It is a sort of invisible need that we don’t think about and that is mental health services….We need a dedicated mental health counselor. We see students that have struggled with depression, severe anxiety, what really seems like post-traumatic stress disorder. They have seen horrible things, and that’s not just my refugee students. That includes regular students growing up with domestic violence.

Safety is the number one thing you have to deal with children in trauma. They have to feel physically safe and emotionally safe. You can’t learn when you are terrified.

That is something I hope to bring more attention to in this position. There are particular needs for students in trauma and how trauma is related to poverty.

It would be great if Texas would listen to Ms. Peeples, the National Teacher of the Year. It would be great if we would create and support trauma-sensitive schools without the pressure of a lawsuit.  Moving toward Restorative Practices is the right thing to do.

DAWG BONE: MOVING BEYOND THE TOOLBOX TO RESTORATIVE PRACTICES IS THE RIGHT THING TO DO.