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!

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

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

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.

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.