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The Law Dawg has moved!

2010-08-19T12:57:00.002-05:00

Thanks for sniffing around, but you're barking up the wrong tree! The Law Dawg Blog on Blogger is no longer updated. Check out all the new entries (and all the old entries originally found here) on the Law Dawg Blog at Legal Digest.com!

Thanks again!

–Jim Walsh, The Law Dawg

What Is "Inappropriate Symbolism"?

2009-12-15T10:08:00.008-06:00

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.

2009-02-18T13:09:00.002-06:00

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.

2008-10-10T11:37:00.002-05:00

FREE ZACHARY SHARPLES!

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!!

Have You Checked Myspace Lately?

2008-08-22T10:05:00.004-05:00

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,

"I want my child out of special ed!"

2008-06-04T10:58:00.003-05:00

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.

2008-05-20T16:30:00.002-05:00

THE GENERATIONAL MIX

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.

UIL 2--Christians 0

2008-04-03T16:02:00.002-05:00

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.

2008-03-06T11:16:00.003-06:00

JURY SERVICE

So I finally got called for jury service. I have never served on a jury and have rarely been called. I looked forward to the opportunity to perform this civic duty. I thought it would be interesting.

Over 20 of us reported to the Austin Municipal Court on Valentine's Day and were told that six of us would be chosen to hear a Class C Misdemeanor case. We were numbered, and I was Juror Number Six. So I figured I would be picked. I mean.....why not? A Class C Misdemeanor ain't exactly the O.J. Simpson case.

We entered the courtroom and there was the defendant--a lumpy, middle aged white guy in blue jeans who was defending himself. We found out that the maximum penalty he faced was a $200 fine, so I guess it didn't make much sense for him to hire a mouthpiece.

The City of Austin was represented by a very pretty young prosecuting attorney who reminded me of my daughter. I know I'm supposed to be fair and impartial here, but I'm ready to convict this guy and send that young lady home with a victory. Fine him the full two Benjamins.

The pretty young prosecutor asked the jury panel some innocuous questions, nothing that singled me out in anyway. She didn't ask if any of us were lawyers. I still figure I'm on this jury.

Then we found out what the case was about. Jaywalking. JAYWALKING!!!! Can you believe that???? I'm taking time off work to deal with whether or not this bozo pays a $200 fine for crossing the street in the middle of the road?????

So we juror wannabes had do leave for a few minutes while they "selected" the jury. What a joke! Obviously in this petty case they will just take the first six people. Me being Number Six, I'm in. In fact, with all my legal training and experience, I figure I'm a shoo-in to be the foreman. I'm already practicing my lines: "Yes, your honor, we have come to a verdict. We find the defendant GUILTY!"

Very soon we are called back in. The judge then calls the members of our panel who will serve as jurors. "Juror Number One," says the judge, and Number One takes his seat in the jury box. It continues as I expected: Juror Number Two. Juror Number Three. Juror Number Four. Juror Number Five. I'm next! I prepare to rise and take my seat with my fellow jurors, when I hear the judge say "Juror Number Seven."

WHAT!! They don't want me???? I have been passed over. How can this be??? I feel the eyes of all the others in the courtroom boring in on me. They must be thinking, "What's wrong with that guy? What do they know about him? Is he a serial jaywalker? (I am...but how could they know????) Does he have some hidden past? Did they see some shiftiness in his eyes?"

The judge thanks us for our service and we are dismissed. And as this was happening, I figured out what must have happened. When I got the call to jury service I had to fill out a lot of information online. That pretty young prosecutor had read all of that. She knew about me. She knew about my profession. She knew how long I had been practicing law. She didn't want a lawyer on that jury.

Dadgummit. I woulda been a good juror. Maybe next time.

Let the Reader Beware!

2008-02-07T11:38:00.000-06:00

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.

Dressin' Flashy

2008-02-06T09:20:00.000-06:00

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 "no...you 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.

THUMP!! The Texas School Law Bulletin 2008

2008-01-17T16:23:00.001-06:00

The 2008 version of the Texas School Law Bulletin just landed on my desk with a hearty THUMP. 1,721 pages. That's a lot of law.

This tome has been a part of my life for a long time. When I was a pup, trying to find my way in the world of school law, I made sure to carry the School Law Bulletin with me at all times. I carried it prominently, to be sure that people would notice that I was carrying it. The theory was that people--potential clients--would see me, see the book, and make the connection. "Oh," they would think, "that young fella must be a lawyer."

Every profession has its symbols. Preachers carry a Bible. Teachers carry books. Coaches have whistles. I guess baseball players carry syringes. This makes it easy for us to associate the person with the profession.

But I'm not going to lug around this bad boy. The 2006 version was 1,542 pages. The 2008 version is 179-pages longer. My desk sags under its weight. No way does it go in my briefcase.

The book keeps getting bigger because the laws keep coming. If you want concrete proof that your life has become more complicated, the School Law Bulletin will do the job. I think it would be a great service to the education profession for someone to go through all 1,721 pages and count the number of duties the law imposes on someone other than a classroom teacher. This would be a terrific doctoral dissertation.

What would the point of that be? To refute those who say we do not need school administrators. To educate those who do not understand that schools are required to do so many things that cannot be done by the teacher in the classroom.

Critics of public education are fond of criticizing our supposedly "bloated bureaucracies." But if they would take the time to identify the legal mandates that SOMEONE has to comply with, they would see that there is a need. Moreover, they might see that the bureaucracy that exists did not spring up out of a vacuum--it is there to respond to legal mandates imposed by the Texas legislature, state agencies and the feds.

If Texas wants leaner, more efficiently run school districts, it could begin by adopting a moratorium on any new laws or regulations impacting local school districts. But we don't look for that anytime soon.

Furthermore, the School Law Bulletin doesn't even tell the whole story. Its 1,721 pages contain only the statutes passed by the Texas legislature. It does not include the federal laws, or the state regulations.

The good news for us lawyers is that with all these laws, it looks like you will continue to need us. We're grateful for the work. But we won't be hauling this book around with us anymore.

2008-01-09T09:24:00.000-06:00

Greetings, Blogees! I guess that's the right term. If I am the "blogger" I guess you readers are the "blogees." Whatever the term, we here at TSALD decided it was time to enter the blogosphere. So from now on, you can expect regular posts here from the Dawg. We look forward to your responses!

We'll start off with this: BIG NEWS RE: NCLB.

The 6th Circuit has reinstated the lawsuit filed by NEA, TSTA and a variety of school districts (including Laredo ISD) challenging the funding of NCLB. The suit is based on a single sentence in NCLB which says that nothing in the law should be construed to "mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this Act."

This sentence is there for political reasons. It enables politicians to claim that NCLB is neither an unfunded nor an underfunded mandate--everything we require you to do we pay for. If we don't pay for it, you don't have to do it. Senator Gregg (N.H.) said as much as he sponsored the amendment that included this language. He said that the purpose was "to assure that this bill will not become an unfunded mandate...to make it clear that if the Federal Government tells the State to do something or tells the local community to do something, the Federal Government will have to pay for the costs of that mandate."

That's a very reasonable interpretation of the section of the statute in question. It's hard to see how else you could read it. In fact, Rod Paige, former HISD Superintendent and former Secretary of Education, confirmed this. He said "if it's not funded, it's not required. There is language in the bill that prohibits requiring anything that is not paid for."

But the current Secretary of Education is attempting to distance herself from her predecessor's remarks, calling then "stray comments." The Bush Department of Education argues that the statute merely prohibits some rogue federal bureaucrat from imposing additional requirements on the locals, beyond what the statute calls for.

That's a crock. Rogue federal bureaucrats can't impose requirements that are not authorized by statute in the first place--you don't need a section of the law to say that.

The Bush Administration is trying to convince the court that the statute does not mean what it says. Two of the three members of the 6th Circuit panel didn't buy it. They say that Congress has to be very clear about what it requires of states. If it is not willing to pay for the full costs of compliance with its requirements, it has to say so. The feds cannot have it both ways. Congress cannot claim that they are paying for everything they require, and then have the Department of Education argue that "we didn't really mean that."

This case has a long way to go. This preliminary ruling may go to the Supreme Court, and there is no telling what the Big Nine will do with it. If the case does end up in a full blown trial, it will be very difficult to sort out exactly what are the costs of compliance with NCLB. But at a minimum, we can report that we are starting the new year with a very interesting decision with large scale implications for the funding of public education.

Stay tuned. It's going to be interesting.

Woof.