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.
Friday, October 10, 2008
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!!
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!!
Friday, August 22, 2008
Have You Checked Myspace Lately?
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 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,
Wednesday, June 4, 2008
"I want my child out of special ed!"
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.
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.
Tuesday, May 20, 2008
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.
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.
Thursday, April 3, 2008
UIL 2--Christians 0
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.
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.
Thursday, March 6, 2008
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.
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.
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