Thursday, February 7, 2008

Let the Reader Beware!

You have to be careful when you read things about the law. Today I perused some websites pertaining to Section 504 and students with ADHD. On the site of one nationally recognized organization, I found a quote attributed to the Department of Education's Office of Civil Rights. I was surprised at the quote, because it did not comport with my understanding of OCR's position on the issue. So I checked out the citation given on the website, and found that the quote was actually taken from a special education hearing officer's decision in New Jersey in 1997.

We lawyers need to be careful when we teach or write about the law. What a hearing officer in New Jersey said 11 years ago in an obscure special education due process hearing may be interesting, but it is hardly authoritative. No way should it be mistaken for an official pronouncement from the Department of Education.

Be careful when you listen to us lawyers, or read what we write! There is a hierarchy of legal authority. Not all cases are of equal value. Pay particular attention to rulings from the Supreme Court, our 5th Circuit, the Texas Supreme Court and the federal district courts of Texas.

Pay attention to how recent the ruling is. A lot has changed since 1997 with regard to Section 504.

Enough for today. Just had to get that off my chest and into the blogosphere.

Wednesday, February 6, 2008

Dressin' Flashy

Yesterday I did my annual presentation for assistant principals who were in town for their TASSP-sponsored conference. I love talking to that group. They keep me informed about what is actually going on out there. Assistant principals have a firmer grasp on reality than any other group I know of. They deal directly with teachers, parents, students, and are the first to know about new trends.

This year the questions were, as usual, cutting edge. Text messaging. Cell phone cameras. Ambiguous family situations. But the question that stuck with me the rest of the day was "What do we do about the boys who want to come to school dressed like girls? What does the law say about something like that?"

When it comes to dress and grooming issues, the courts are quite supportive of school district authority. I think that is, in part, because judges just don't want to mess with stuff like that. Not every disagreement should have to be resolved by a judge. Disagreements about appropriate dress and grooming standards for kids in school can be resolved by local school administrators and school boards.

But, of course, we live in a litigious society, and one in which one's preferences are often characterized as "rights." I have a right to dress as I please, don't I? I have a right to look as I please, don't I?

There is plenty of legal authority to say " really don't have that 'right.'" In fact, the Texas Supreme Court went so far as to say that a school policy that treats boys different from girls (long hair on girls OK; not on boys) is not a case of sex discrimination. Bastrop ISD v. Toungate, 958 S.W.2d 365 (Tex. 1997).

So when students and parents challenge a school's dress and grooming standards the school usually wins. but you have to ask yourself--at what cost? When we say "at what cost" we do not refer just to the attorneys' fees, but also the lost time and energy by school administrators.

Some things are worth fighting over. Some are not. Many dress codes prohibit styles of dress and grooming that are "distracting" or "disruptive," but if you ask a group of A.P.s about that they will acknowledge that the students are rarely distracted or disrupted by how someone is dressed. Kids get over "distractions" in milliseconds. Teachers may have a harder time with it, but they are professionals, expected to deal with a wide variety of kids.

Besides, if you squash some kid for dressing a little over the top, you may be doing more harm than you can imagine. When I toured the Rock and Roll Hall of Fame in Cleveland they had a special exhibit in honor of Elvis. It included the handwritten notes of the high school counselor pertaining to Elvis's vocational interests. She noted that Mr. Presley enjoyed working with machines, and was a polite and well mannered young man. But, she noted, "he dresses a little flashy."

Well, DUH! He was ELVIS! I, for one, am glad that school authorities did not crush the creative spark that brought us the King of Rock 'n Roll.