Law Dawg Blog

A student in Arizona kicked his principal in the knee, but not hard enough to cause “extreme physical pain.” Why did that matter? Because in order to justify placing the student in an IAES (Interim Alternative Educational Setting) for 45 days, the school had to show that the principal suffered “extreme physical pain.”

This case involved a student with high functioning autism who was described by the hearing officer as “large and strong” for his age and sometimes “very aggressive in his behaviors.”

Such was the case on September 2, 2009, when the student’s behavior kept escalating despite the school’s use of behavior techniques outlined in the student’s behavior plan. Eventually the rest of the kids were removed from the classroom while educators applied physical restraint to the student.

The principal got involved. But when the principal pulled out his cell phone to call for more help, the student “lunged at Principal and tried to grab the cell phone away from him. During this altercation, Student kicked Principal in the knee and Principal felt a ’sharp pain.’”

The IEP Team met and discussed the matter, concluding that the student’s behavior was a manifestation of his disability. Nevertheless, the school insisted on assigning the student to an IAES for 45 days.

That’s when the level of pain suffered by the principal became relevant. The law authorizes schools to place students in an IAES for behavior that arises from the disability only if the behavior involves drugs, weapons or the infliction of “serious bodily injury.”

There were no drugs or weapons involved in this case, so the issue was: did the principal suffer “serious bodily injury”?

The hearing officer in Arizona said no. The definition of “serious bodily injury” can be satisfied with proof of “extreme physical pain.” But the hearing officer found that the principal’s pain was not “extreme.” Here’s the analysis: “He did not cry out in pain, drop to the floor, become unconscious, call for an ambulance, or do anything else that one would expect when a person is in ‘extreme’ pain.”

It also appeared to be relevant that the principal did not see a doctor about this incident until three weeks later. The principal allowed as how he did not like to take pain medication, but he did take three Aleve and iced and elevated his knee on the day of the incident.

We think that some people experiencing extreme physical pain recall old John Wayne movies and just suck it up without dropping to the floor or crying out in pain. By the logic of this case, such a macho response would limit the school district’s options.

We have long believed that someone could make a fortune if they could invent and patent a PAIN-O-METER to take the subjectivity out of cases like this one. One man’s “sharp pain” is another man’s “extreme pain.”

The hearing officer ended up concluding that the student should not have been sent to the IAES, but he received appropriate services there, so it did not make much difference. The parents did not obtain the award of compensatory education that they sought.

This case is Bisbee Unified School District No. 2 from Arizona and can be found at 54 IDELR 39. It was decided on January 6, 2010.

We wonder if Jerry Hollingsworth and/or Kenneth Anderson still attend ARD meetings. These two gentelemen, principal and assistant principal at Dawson Middle School in Carroll ISD, attended an ARD in the fall of 2003. Six years later they were finally cleared of all charges. SIX YEARS!

What charges? They were accused of libel, slander, malice, gross negligence, malicious prosecution and other assorted sins.

What did Hollingsworth and Patterson do? Well, after attending the ARD, they agreed with the team that the student’s behavior was not a manifestation of his disability. So they assigned the boy to the DAEP.
This sounds an awful lot like a routine day in the life of an assistant principal or principal. They were doing their jobs.

And that’s what brought all those charges down on them in a civil suit alleging all manner of uncivil behavior.

The district court dismissed most of the charges, but the allegation that the two administrators had violated IDEA had to be taken to the Court of Appeals.

That court ruled on New Years Eve, 2009, that there was no IDEA violation and the men were entitled to immunity from liability.

We lawyers often emphasize how much legal protection school officials have, but as this case illustrates, that doesn’t stop people from filing lawsuits. There are probably a few torts that did not get brought up in this case but the plaintiffs alleged a number of them, even though Texas law makes it clear that school officials are immune from personal liability in all but a few situations.

Six years with a civil lawsuit hanging over your head. Probably made Hollingsworth and Patterson a little gun shy about that next ARD meeting. Such is our culture.
You can check this case out at 2009 WL 5184022. We summarize it in the March issue of TSALD. The name of the case is Hollingsworth v. Hackler, decided by the Court of Civil Appeals in Fort Worth on December 31, 2009.

The 5th Circuit Court of Appeals has sent a strong message to parties and their lawyers: be nice! Work cooperatively and don’t bother us unless you have to!

That’s a loose translation of the Court’s holding in el Paso ISD v. R.R., reported in the February issue of TSALD.  The district c court had ordered the EPISD to pay the parent’s attorney $45,000 as the “prevailing party” in a special ed case.  The district argued that the parents were not really the “prevailing party” because the distict had offered them everything they wanted before the case ever went to court.  The 5th Circuit dodged the issue of whether or not the parent was the “prevailing party.”  Instead, the court concluded that it did not matter: even if the parent had prevailed, theyand their attorney had “unreasonably protracted the final resolution of the dispute for over three years.”

The lesson is clear: come to resolution sessions prepared to work in good faith toward a resolution. Don’t turn down a resolution unless you have a good reason to do so.

The Dawg’s Case of the Month in the January issue is A.M. v. Cash, a 5th Circuit decision involving the display of the Confederate flag at Burleson High School. A couple of girls brought purses to school that displayed the ol’ Stars and Bars and were told that this violated school policy. No disciplinary action was imposed, but the girls were told to leave the purses in the office for the rest of the day, or have someone come pick them up. School policy prohibited “inappropriate symbolism.”

Thus we have a juicy First Amendment issue! If it is OK for kids to wear black armbands to school to protest the war in Vietnam, why is it not OK for kids to display the Confederate flag? Isn’t this symbolic expression, protected by the First Amendment? One of the girls asserted that her ancestors fought in the Civil War (presumably for the losing side) and that the flag “is a venerated symbol of my ancestry, a symbol of my Christian religious faith, and a symbol of the South, a symbol of American history and a political symbol, to me, of limited government and resistance to unconstitutional authority.”

No doubt, the First Amendment does protect people who choose to wave, honor and celebrate the Confederate flag or put it on their purses or backpacks. But the court concluded that school officials acted appropriately when they prohibited the display of this particular symbol in this particular school. Tinker v. Des Moines established that students have constitutional rights when they attend school–but they are limited to some degree. Things that can be said at the mall cannot be said in the public school.

School officials can prohibit or penalize student expression when they can reasonably forecast substantial disruption of or material interference with school activities. In this case the girls pointed out that there was absolutely no disruption of school due to their colorful purses. Most likely few people took notice. But the court put the emphasis on a “reasonable forecast” of disruption. The school district produced plenty of evidence of racial tensions and incidents in the past at Burleson High School, some of them directly involving the Confederate flag.

This case seems to me to have been well lawyered. Both sides put forth their strongest arguments–and both sides had strong arguments to make. For the school district, some of the most important evidence was the testimony of the principal and superintendent. The principal recounted the history of the policy and the reasons for it, based on prior racially charged incidents. He testified that “the number of incidents would be higher but for the restriction on visible displays of the Confederate flag.” The superintendent took the same position, noting that “if I did not enforce the Confederate flag ban, then the number and types of confrontational incidents on campus would increase dramatically, resulting in material interference and substantial disruption of the educational environment.”

I was a History major in college and so I find this kind of case fascinating. Of course our view of history is inevitably colored by our backgrounds and beliefs. I grew up in the north, and was taught that the Civil War was a simple case of Good (North) vs. Evil (South). I was amazed upon moving to Texas as a teenager to find so many schools named after Robert E. Lee and not a single one honoring General Sherman. The girls in this lawsuit were taught differently, and they desire to express their beliefs. In a free country, isn’t that OK?

Of course it is. But this case is a reminder that different rules apply in different settings. This case is not about who was right and who was wrong in a 19th Century conflict. It is not about political correctness, or whose heritage is worthy of celebration. It is about school officials tending to their primary purpose–creating an environment conducive to learning for all.

Much to learn from this case.

One nice thing about being a school lawyer is that our clients rarely hit us. They may get angry, or think we have done a poor job. They may even say mean and ugly things to us. But with school officials as your clients, you are rarely going to be physically assaulted.

These thoughts came to mind as I read of the recent decision in Berry v. State, a decision from the Third Court of Appeals in Texas. Mr. Berry slugged his lawyer, Tom Weber of Austin, during the trial of his case for burglary. Despite this indignity, Mr. Weber continued to represent Mr. Berry. The court convicted Mr. Berry and he appealed. In the appeal he claimed that his lawyer was ineffective because he had a conflict of interest–here he was defending the guy who just smacked him in the face.

The Court of Appeals rejected that argument, and upheld Mr. Berry’s conviction.

I guess that’s a good thing. Otherwise, every criminal defendant who felt that the case was going the wrong way could whomp his lawyer up the side of the head and then claim “ineffective counsel.” The lawyers would really not like this. Bad enough to be pummeled by your client, but then to be told you did a lousy job–talk about adding insult to injury!

So among the many blessings of the school law practice is the fact that our disagreements rarely go to fisticuffs.

Zachary Sharples, A 12-year old boy in Pinellas, Florida, has been placed in ISS because he got a Ray-Hawk haircut in support of the local baseball team, the Tampa Bay Rays. This is wrong on so many levels it is hard to know where to begin.

School officials cite their dress code which prohibits hairstyles that are distracting or disruptive. Oh brother. Let’s be realistic about this. Kids are not distracted by weird haircuts. They get over it in about five seconds, especially if the teacher uses it as a teaching lesson.

“Hey, Zachary….I see you got a new ‘do! Tell us what this is about!!”

That’s how they could have handled it, and the kids would have learned something.

But no–into ISS he goes, as if he has used bad language or been disrespectful to a teacher.

Maybe the folks at Lincoln Middle School have not heard the news. The Tampa Bay Rays, doormats in the American League East for over a decade, have catapulted into the AL Championship Series with an exciting brand of baseball. They beat the New York Yankees. They finished ahead of the defending champion Boston Red Sox, and now face the Sox in the AL Championship.

People in Florida should be excited about this. The players are–many of them have gotten mohawk haircuts (Ray-Hawks they call them) as a sign of solidarity, fun and support. Zachary was trying to support his local team. For this he gets punished.

Sad.

We hope the Rays will get this kid a free ticket to the game. Put him on national TV and embarrass these school administrators for making a decision that reinforces whatever negative opinions the general public might have about school administrators.

Please join the Dawg in this campaign.

FREE ZACHARY SHARPLES!! GO RAYS!!

An assistant principal in San Antonio has lost her case against two students and their parents based on a fake myspace page. The kids set up a page that appeared to be created by Anna Draker, the assistant principal at Clark High School. The court said that the myspace page included “explicit and graphic sexual references.” It also claimed that Ms. Draker is a lesbian, which she is not.

The A.P. sued the two boys who did this, alleging defamation, libel, illegal conspiracy and intentional infliction of emotional distress. With regard to the parents, the suit alleged that they were negligent in supervising their children’s use of the internet.

The 4th Court of Appeals in San Antonio tossed the suit out. The court’s opinion primarily addresses the “intentional infliction” claim against the students and holds that such theories are not available unless no other legal theory is available. The court thought the case was really about defamation, and therefore, an “intentional infliction” claim was not available. The fact that the defamation claim also failed did not seem to bother the court. The court said “If the gravamen of Draker’s complaint was defamation, it matters not whether she succeeded on or even made, such a claim.” Gravamen is a legal term meaning “the substantial point or essence of a claim, grievance, or complaint.”

So, since this was really about defamation,

The Department of Education is proposing a major change in our special education regulations. If the proposed change is adopted, it would permit parents to pull their kids out of special education programs just by saying so. “I want my child removed from special ed.” That would do it. No ARD meeting necessary. No third-party review.

This is a bad idea.

It is a bad idea because what the parent wants is not always what is best for the child. Our laws recognize this reality. Parental rights, when it comes to education, are limited. Parents have a constitutionally protected right to put their kids in private schools, but they do not have the legal right to dictate what their children learn, what they are exposed to in school, or how the teacher operates in the classroom. Educational decisions about what is best for kids are traditionally left to the teachers and administrators who are trained to make those decisions.

But this proposed regulation turns that on its head.

The regulations we have had in place for a long time provide a “checks and balances” system that serves kids well. If the parent wants the child removed from special education services, the parent would request an ARD meeting where the matter would be discussed. Many times–probably most of the time, in fact–the ARD Committee will accommodate this request. But there are times when removal from special education services is short sighted and harmful to the student. In those cases, the ARD Committee can refuse the request. The parent can then file a complaint with T.E.A., seek mediation or a due process hearing to deal with this issue.
That way a neutral third-party gets involved and the dispute can be resolved in the best interests of the student.

Those of you who are clients of the Walsh, Anderson law firm will soon receive an email alert with more information about this issue. For all interested readers, we encourage you to take a look at the changes proposed to 34 CFR 300.300, as set out in the Federal Register on May 13, 2008. Get involved in this important issue.

Last night my old Toastmasters Club celebrated its 45th anniversary with a paddleboat cruise on Lake Lady Bird under a full moon. What a terrific night! What a terrific group of people.

Toastmasters is one of the most successful “self help” groups in the world. Are you interested in improving your public speaking skills? Join Toastmasters. Work the program and I guarantee you will see results. I joined the Get Up N Go Toastmasters Club in Austin in the summer of 1981, and attended faithfully, almost every Monday morning at 6:45 a.m. for the next 22 years. Not only did I improve my public speaking skills, I also made a host of friends from diverse backgrounds. In my professional life I have run mostly with lawyers and educators, but in Toastmasters I encountered a diverse group of people with a wide range of skills, interests, abilities and backgrounds.

As I drove home from last night’s celebration, I also came to appreciate the generational mix that Toastmasters provided. This, I believe, is something we need more of in our educational system. When I joined TM I was 31 years old. Many of the members–most, in fact– were men in the 40-60 age group. It was a delight for me to interact with this group of men none of whom were my father, my teacher, my coach, my priest, or my boss. They were, instead, my friends. Peers, engaged in a common effort to help ourselves and each other improve our public speaking skills. I am certain that it was that fellowship that remained one of the strong draws to me, and kept me coming to those early morning breakfast meetings year after year.

Last night it was the same for me…only this time I was 58, and the “old guys” were in their 70’s now. And of course there were those in their 30’s and 40’s who no doubt saw me as one of the old fellas. Fine with me.

We need more adult men in our educational system. Young men need to simply be around older men. There is magic in it. I suspect the same is true for young girls and adult women. I am sure this is one reason why coaches have a disproportionate impact on young people. Kids benefit when they are encouraged by older people. It’s really even simpler than that–I think they benefit when we older people PAY ATTENTION to them.

We need more of that. Just a thought for the day.

The UIL has once again defeated a private, Christian school in court. Cornerstone Christian School in San Antonio was turned down in its application to join the UIL, so it tried to litigate its way in. In a lengthy, well reasoned, and colorful decision, Judge Fred Biery ruled for the UIL. This is the second such suit the UIL has won. The first was filed by Jesuit High School in Dallas. So for those of you keeping score, it is not UIL 2–Christians 0.

You may wonder how it is that Dallas Jesuit and Houston Jesuit are now full fledged members of the UIL. It seems that the UIL won the case in federal court, but while it was on appeal to the 5th Circuit, the parties settled. Part of the settlement was to carve out a small exception to the general rule that keeps private schools out of the UIL. The exception allows into 5A those private schools that are not eligible for membership in a similar league, provided they have also never been suspended or kicked out of a similar private league. The two Jesuit schools met that criteria. They had gotten so big that they were no longer eligible for TAPPS (Texas Association of Private and Parochial Schools). They had never had their membership suspended or revoked. So the UIL let them in at the 5A level.

But remember: the UIL did that voluntarily. The Jesuits lost in court.

And so did the Cornerstone Christians. The judge concluded that Cornerstone did not fit the exception. The case featured a big argument over whether Cornerstone had been “suspended or revoked” by TAPPS, or just “non-renewed.” But the judge ruled that no matter how you looked at it, Cornerstone did not satisfy the two conditions required for UIL membership.

It’s a fascinating decision. The judge clearly enjoyed showing off his knowledge of the Bible as he quoted it several times. He also quoted the Koran, the Book of Mormon, Martin Luther and Hans Christian Anderson. The case also includes a good summation of the rights of parents to direct the upbringing of their children. The judge makes it clear that parents have that right, but it is far from unlimited. Parents do not have the right to dicate how public schools must operate. Parents who choose to put their kids in private school have the constitutional right to do so….but they do not have the right to also claim all of the benefits that flow from enrollment in public schools. This is one example of that basic fact.

So say a prayer for our friends at the UIL. We fear that all these victories over the Christians may cost them somewhere down the line.