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Grateful

by Mike Leasor

Normally in this space someone from Leasor Crass, P.C. extols the lessons to be learned from the latest court case, statute passed by the legislature, or edict from the federal government.  Today though, I wanted to express my gratitude to you, our clients, for what you do each day.  George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897).

As an educator, my heart is grateful for the work each of you reading this will perform today, performed yesterday, and will perform in the future.  Your dedication to the students of each of your districts is noticed each time myself or one of my partners speaks with you.  Even after a long day, it is always evident that you want to do what is in the best interests of the students in your district.

As a father, I am grateful that you are in charge of educating the students of this great state.  These students will interact with my children and my grandchildren.  If your dedication to your students will positively impact my family and its future, is there more for which a father can be grateful?  Alas, I am eternally grateful for the educators who provided the best education to me and my children.

As an attorney, I am grateful for the opportunity to practice school law.  I will never be rich, but it is a righteous cause.  I am grateful for each and every one of you, who allow me and the other attorneys at Leasor Crass the opportunity to assist and provide guidance each day as you truly do the most amazing job one could ever do.  Thank you.

Rule Action Regarding Proposed New TAC § 61.1020: “These Aren’t the Rules You’re Looking For”

by Dean Micknal

by Dean Micknal

As you may know, a rule action involving the “cameras in the classroom” legislation was published in the Texas Register on Friday, a copy of which can be reviewed here.

It is important to understand that this rule action relates to the secondary issue of establishing a grant program to assist with the cost of implementing SB 507.  It does not adopt the rules that were previously proposed in April.  Nor does it propose revised rules for implementing the new law itself.

Our office understands that ESC 11 is reporting TEA to have said that they are currently working to “finalize the package for adoption.”  This is a pretty ambiguous statement.  However, it may be an indication that TEA has finished, or is close to finishing, the review of feedback gathered during the public comment period for the previously proposed rules.

While this indication of progress is promising, at this time TEA has yet to take any official action to file the proposed rules as adopted OR file a new rule action with revised proposed rules for publication.  Either of these actions will require publication in the Texas Register.  Based on earlier conversations with the Rulemaking Unit and this “finalize” statement it is possible that such publication may happen as early as this Friday.

Importantly, even if the rules that were proposed in April are adopted, the earliest those rules will become effective would be 20-days from the publication of that adoption.  Similarly, if a rule action is filed with revised proposed rules, the rule action would include a public comment period that would likely end sometime in late-July or early-August.

We will continue to update you as more information becomes available.  In the meantime, please do not hesitate to contact the attorneys at Leasor Crass, P.C. if you have additional questions or concerns.

The Pay Is What the Pay Is (With Proper Notice)

by Mike Leasor

by Mike Leasor

As we move through the holidays and into the new year, I know that most school districts are already pondering staff changes for the 2015-16 school year.  With this in mind, it is important to reemphasize a case that was decided this past summer.  In Worthy v. Port Arthur ISD, Docket No. 016-R10-12-2014 (Tex. Comm. of Educ. 2015), the teacher complained about her reassignment from assistant athletic director to assistant principal.  Additionally, she complained that her salary was improperly reduced to reflect her new position.

Ms. Worthy was employed as Assistant Director of Athletics for the 2012-13 school year.  On August 12, 2013, the District notified her that she would be reassigned to the position of middle school Assistant Principal.  Further, she was notified at that time that her compensation would remain the same for the 2013-14 school year as it was the previous year.  She was also notified that the number of months employed as well as any extra duty stipend or travel allowance would remain the same.  Ms. Worthy authored and sent a strongly worded letter to the Executive Director of Human Resources.  The Director responded on August 22, 2013.

On February 17, 2014, the Superintendent sent Ms. Worthy a letter stating that her compensation for the 2014-15 school year would not be the same compensation as the current year but would instead be based on the salary schedule for her new position.  Then, on July 10, 2014, the Superintendent sent an additional letter with the appropriate pay information for the 2014-15 school year that he would recommend the Board approve.  The Board approved his recommendation on August 21, 2014 and voted to adopt the Superintendent’s recommendations on salaries and budget.

Ms. Worthy filed a grievance on July 31, 2014.  She asserted that the District improperly demoted her and then reduced her salary when she could not unilaterally resign from her contract.  The District first argued that the Commissioner did not have jurisdiction as the complaint was filed outside the timelines specified in policy.  It also argued that Ms. Worthy had sufficient notice of her impending salary reduction prior to the unilateral resignation date.

The Commissioner first addressed jurisdiction and timelines regarding the wrongful reassignment claim.  The District argued that Ms. Worthy was given notice on August 12, 2013 that she would be reassigned and that she did not file her grievance until July 31, 2014; thus, that portion of the grievance was untimely.  Although the Commissioner did side with the District on this argument, it should be noted the he did so only after pointing out that the timeline did not actually begin until August 22, 2013, the date of the HR Director’s response.  The Commissioner determined that Ms. Worthy was still participating in the informal resolution process until the August 22, 2013 date.

Next, the Commissioner addressed whether Ms. Worthy met the timeline for filing her reduced salary complaint.  The District argued that the timeline should have begun to run with the February 17, 2014 letter.  The Commissioner said:  “Not so fast.”  Based on previous decisions, the Commissioner ruled that the Superintendent did not have the authority to set salaries in this instance.  Therefore, the timeline did not begin to run until August 21, 2014, and Ms. Worthy’s grievance, dated July 31, 2014, was in fact timely—even though it was filed prior to the Board’s official vote.

Once the Commissioner determined that he had jurisdiction over the salary reduction claim, he turned to the merits of this part of the grievance.  The question in this case thus becomes whether the District gave Ms. Worthy sufficient notice of the salary reduction prior to the 45th day before the first day of instruction. In Brajenovich v. Alief Indep. Sch. Dist., Docket No. 021-R10-1106 (Comm’r Educ. 2009), the Commissioner created a two-prong test for the sufficiency of notice regarding an upcoming salary reduction that requires the notice be both formal and specific enough to give teachers a meaningful opportunity to decide whether to continue employment with a district.  To be sufficiently formal, a warning must come from a high district source such as the board of trustees, the superintendent, or the office of human resources and be in writing or be delivered at a meeting called for the purpose of informing teachers of a possible reduction in salary.  To be sufficiently specific, a warning would result in a teacher knowing the amount salary could be reduced or would result in a reasonable teacher knowing the amount salary could be reduced.

In the case at hand, the Commissioner ruled that the Superintendent’s February 17th letter was sufficiently formal warning that her salary may be reduced for the 2014-15 school year.  With regard to specificity (the second prong of the Brajenovich test), the February 17th letter gave Ms. Worthy a range of salary that she could be paid for the coming school year, but promised that her base annual salary will not be less than $53,957.  This letter met both sufficiency prongs of the notice test.  Thus, the Commissioner denied Ms. Worthy’s complaint regarding the reduction of her salary due to the fact that she was given a sufficiently formal and specific warning well before the penalty resignation date.

In conclusion, there are three lessons to take away from this decision:

  1. Any informal communication or attempt to resolve the complaint initially may toll the timelines for filing the informal grievance;
  2. The timeline for filing a grievance based on a reduction in salary does not begin to run until the Board takes action on the final salaries for the school year; and
  3. Provided the employee is provided sufficiently formal and specific warning prior to the penalty free resignation date, the District may reduce the employee’s salary.

If you wish to discuss this topic more in depth or are considering reassignments or a reduction in salary for employees in your District, please contact the attorneys at Leasor Crass so we may assist you.

A Tale of Two Cases

by Mike Leasor

by Mike Leasor

In today’s world, school administrators are expected to be experts on the First Amendment of the U.S. Constitution.  In particular, issues involving off-campus speech are extremely difficult for principals and other administrators to maneuver.  Following is a discussion of two cases: one decided in favor of the student, the other decided in favor of the school district, which could take place in any school district on any day.  While reading the facts of each, think about your process for determining whether the student(s) in each case would be disciplined in your district.

In January, 2014 a senior at Rogers High School responded to an anonymous posting on the website Roger Confessions.  The original post stated, “did @R_Sagehorn3 actually make out with [female teacher]”.  The student, with that Twitter handle, responded “yes”.  The student maintains throughout this ordeal that his response was meant in jest and that he never actually made out with the teacher in question.

Two weeks later, a parent saw the post and contacted the school with concerns.  The principal responded by suspending the student for five days for damaging the teacher’s reputation.  The reason given citing the student handbook was that the offense was “threatening, intimidating, or assault of a teacher, administrator, or staff member.”  Not once in the notice was it determined that there had been a disruption to school activities due to the post.  Eventually, the principal came back and added an additional five days of suspension and stated that the student would be expelled.  Not shockingly, the parents then sued for a violation of the student’s First Amendment rights.

The district first argued to the court that the student’s claim should fail because his post was obscene, and as a general rule, obscene material is not protected speech under the First Amendment.  Initially the court agreed that the district had a right to regulate obscene speech.  However, the court decided that this was not obscene.

Next, the district put forth the argument that the discipline was justified under the Tinker standard, which states that speech may be regulated if it would materially and substantially interfere with the operation of the school.  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).  In the case at hand, the court stated that a school may only regulate speech under the “substantial disruption” exception if the speech is both (1) reasonably calculated to reach the school environment and (2) so egregious as to pose a serious safety risk or other substantial disruption in that environment.  Finally, the court determined that the student’s off-campus speech reached the schoolhouse, but did not substantially disrupt same.  Therefore, the student’s First Amendment claim was held to be valid.  Sagehorn v. Independent Sch. Dist. No. 728, No. 14-1930 (D.Minn. Aug. 11, 2015).

In a case closer to home, the Fifth Circuit has determined that a Mississippi district did not violate a student’s First Amendment free speech rights when school officials disciplined the student for a video he created and posted online off-campus that contained threatening language directed at two teachers/coaches.  Although the speech may have been considered a true threat, the court provided a Tinker analysis and determined that the off-campus speech did cause a substantial disruption to the school.

In this case, the student was suspended and sent to an alternative school for five weeks after he posted on Facebook a rap song he had composed and recorded accusing two IAHS coaches of flirting with and maintaining inappropriate contact with female student.  The song was produced off campus, not performed on campus, and the student did not use school resources.  School administrators still considered the song to be harassment and intimidation of school teachers and possible threats against teachers.

There were no fact issues in this case; thus, the District Court decided the case through summary judgment motions.  The District Court ruled that school officials did not violate Bell’s free speech when they disciplined him for posting a “rap” song he composed and performed off-campus, and then posted on his Facebook page. The court concluded that Tinker specifically held that school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.

However, a three-judge panel of the Fifth Circuit ruled that the District violated the student’s free speech rights.  The panel concluded that the District court had applied Tinker incorrectly and that the district could not reasonably forecast a substantial disruption of school activities.  Upon a motion from the district, the Fifth Circuit agreed to rehear the case en banc (the whole court).

The majority pointed out that at the time Tinker was decided “the Internet, cellphones, smartphones, and digital social media did not exist.” The court further stated that technology gives students “the ability to disseminate instantaneously and communicate widely from any location via the Internet.” The court stated additionally that, “off-campus threats, harassment, and intimidation directed at teachers create a tension between a student’s free speech rights and a school official’s duty to maintain discipline and protect the school community.”  Bell v. Itawamba Cnty. Sch. Bd., No. 12-60264 (5th Cir. Aug. 20, 2015) (en banc).  The court concluded the student’s First Amendment claim did not take into account the world’s new technology.  Id.  Thus, the student in this case failed to prevail on his freedom of speech claim.

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness…”  Charles Dickens, A Tale of Two Cities, Book 1, Chapter 1.  In this tale of two cases, it is important to note the facts.  School administrators should be aware that each case involving a student’s freedom of speech rights is very fact-specific.  There are some bright line rules where speech may be regulated, such as obscene speech or threats.  However, the devil is in the details and in an age of great wisdom with the advent of the internet, there is also great foolishness.

 If you should find yourself in a situation where a student’s First Amendment rights are at issue, the best thing you can do is show wisdom in this time of foolishness.  Recognize the issue, contact the attorneys at Leasor Crass, P.C. if you should need assistance, and fight the urge to react quickly and swiftly, unless of course safety is a concern.

 

 

Ready, Aim, Sign: What Your School Signs Must Say About Guns on Campus

by Dean Micknal

by Dean Micknal

The Texas Legislature recently passed House Bill 910. This piece of legislation, which becomes effective January 1, 2016, allows license holders to openly carry holstered handguns. The Legislature also passed Senate Bill 273, which makes it unlawful to wrongly exclude concealed handgun license holders from property owned or leased by a governmental entity.

What do these changes mean for public school districts? The following Q&A attempts to answer some common questions and help districts make sense of the new legislation.

Does the new legislation make it legal to carry a handgun onto district property?

No. It is important to understand that Section 46.03 of the Penal Code criminalizes carrying any “prohibited weapon” (openly or otherwise) in certain locations, which include:

  • The physical premises of a school or educational institution (“premises” means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area);
  • Any grounds on which an activity sponsored by a school or educational institution is being conducted;
  • Any building in which an activity sponsored by a school or educational institution is being conducted;
  • Passenger transportation vehicle of a school or educational institution; and
  • Premises of a polling place on the day of an election or while early voting is in progress.

Does this mean it is now legal for a person with a concealed handgun license to carry a concealed handgun onto district property?

No. Section 46.03(f) of the Penal Code specifically states that it is “not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code.”

Does this mean that it will be legal for a person with a concealed handgun license to openly carry a handgun onto district property beginning January 1, 2016?

No. HB 910 does not repeal Section 46.03(f). Rather it broadens it so that beginning January 1, 2016 it will apply to anyone who is licensed to carry a handgun.

What’s the difference between Section 46.03 and 46.035?

Section 46.03 applies to any prohibited weapons. This includes firearms, as well as more interesting sounding items, including, but not limited to…illegal knives, clubs, machine guns, “knuckles”, armor-piercing ammunition, and tire deflation devices.

Section 46.035 is focused on concealed handguns that individuals are licensed to carry under Subchapter H, Chapter 411, Government Code. Basically, 46.035 added some additional circumstances in which license holders are specifically prohibited from carrying concealed handguns. These included:

  • The premises on which a high school, collegiate, or professional sporting event or interscholastic event is taking place; and
  • Any meeting of a governmental entity.

How did the new legislation change 46.035?

First, the new legislation makes the prohibitions applicable regardless of whether the license holder conceals or openly carries the handgun. Additionally, SB 273 limits the prohibition regarding government meetings to “the room or rooms where a meeting of a governmental entity is held and if the meeting is an open meeting subject to Chapter 551, Government Code, and the entity provided notice as required by that chapter.”

So if we don’t properly post notice of our board meeting, 46.035 won’t apply?

That is correct.

But if our board meets on the physical premises of a school or educational institution, isn’t it illegal to carry any firearm under 46.03?

Isn’t this fun? Yes, 46.03 still prohibits anyone (including license holders) from carrying any prohibited weapon (regardless of whether the weapon is concealed or openly holstered) in the locations listed above.

What does the district need to do to make it illegal under 46.03 or 46.035 for someone to carry a weapon on district property?

Nothing! A violation of Penal Code section 46.03 is a third degree felony, while a violation of the relevant portions of Penal Code section 46.035 is a Class A misdemeanor, respectively.

So why do we have to post signs?

Signs must be posted to enable a district to pursue criminal trespass charges against license holders who carry handguns under Subchapter H, Chapter 411, Government Code.

What specific language must be posted?

Beginning January 1, 2016, the following language must be displayed to lawfully prohibit a license holder from carrying a concealed handgun pursuant to Section 30.06:

“Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun”

Because licensees will also be able to openly carry holstered handguns, HB 910 adds section 30.07 to address “trespass by license holder with an openly carried handgun.” Consequently, Section 30.07 requires a separate posted sign that includes the following language:

“Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly”

Are there any specific requirements regarding the manner in which the language is posted?

Both signs must meet the following requirements:

  • The language must not deviate from what is described above;
  • The notice must be presented in both English and Spanish;
  • The text must appear in “contrasting colors” (i.e., dark text on light background, or vice versa);
  • The text must be printed in block letters at least one inch in height; and
  • The notice must be displayed “in a conspicuous manner clearly visible to the public.”

Where can/should we post the signs?

Senate Bill 273 prohibits school districts (and other governmental entities) from posting 1) the notice described in Section 30.06 and/or 2) any sign expressly referring to Section 30.06 or to a concealed handgun license unless the license holders are actually prohibited from carrying a handgun on the premises or other place by Sections 46.03 or 46.035 of the Penal Code. Under the new law, the District could be liable for a civil penalty each day it posts notice that concealed handguns are prohibited in a place where concealed handguns are not actually prohibited by Sections 46.03 or 46.035 of the Penal Code. Consequently, signs should only be posted in those locations identified as prohibited under Sections 46.03 and 46.035 of the Penal Code, as detailed above.

Because the new legislation is somewhat less than crystal clear, it is reasonable to expect that befuddled governmental entities might seek clarification from the Attorney General’s office in the future. In the meantime, if you should have additional questions about the new laws and/or how to make a good faith effort at compliance, please contact any of the attorneys at Leasor Crass, P.C.

 

 

Appraisal Basics

by Mike Leasor

by Mike Leasor

As principals and other administrators who appraise teachers return from summer vacation, it is important to remember that the appraisal process starts the first day teachers return to work. Administrators can take valuable guidance from a recent decision by the Texas Education Commissioner, Camara v. Dallas ISD, Tex. Comm’r of Educ. Decision No. 003-R10-09-2012 (2015).

In Camara, the teacher claimed that the appraiser improperly relied on a parent complaint and student statements without sharing the statements with her. However, the administration documented the complaints as part of a reprimand issued to the teacher within 10 days of the complaints during the school year. As a part of the annual summative appraisal, the appraiser relied on the letter of reprimand to support the below expectations ratings in the teacher’s summative annual appraisal report. The teacher complained that the appraiser erred in failing to share the actual documentation behind the reprimand.

Regulations state that:

Any third-party information from a source other than the certified appraiser that the certified appraiser wishes to include as cumulative data shall be verified and documented by the certified appraiser. Any documentation that will influence the teacher’s summative annual appraisal report must be shared in writing with the teacher within ten working days of the certified appraiser’s knowledge of the occurrence.

19 Texas Administrative Code section 150.1003(f). Thus, not only must third-party claims be verified, they must also be documented by the appraiser. However, the regulation does not require the appraiser to share with Petitioner the underlying documentation.

The Commissioner states that the requirement for verification is an important requirement. An appraiser cannot just document that a parent, student, or staff member said that a teacher did something wrong. The appraiser is required to verify that the claim is true. If an appraiser cannot verify that a claim is true, the appraiser cannot mark down a teacher based on a third-party claim. Further, the Commissioner has held that “Cumulative data will be found to be verified if substantial evidence indicates that the appraiser attempted to establish the truth, accuracy, or reality of the data.” Martinez v. Mission Consolidated ISD, Docket No. 004-R10-0907 (2010).

In Camara, the Commissioner reiterates that cumulative data needs to be documented. If information comes from a third party, the appraiser is required to verify and document the information. If documentation will influence a summative annual appraisal report, the documentation must be shared with the teacher within 10 working days of the appraiser’s knowledge of the occurrence. The dispute in the present case is over just what sort of documentation needs to be shared with a teacher. The teacher contends that appraiser was required to share a written parent complaint and written student statements. The District, on behalf of the appraiser, argues that a reprimand is the only document that is required to be timely given to the teacher because the reprimand describes the incidents in the parent complaint and the student statements.

The Commissioner ruled that when an appraiser documents and verifies information that was first provided by a third party in writing, the appraiser is not required to share with the teacher the writing provided to the appraiser by the third party. The appraiser did not violate regulations when the appraiser relied on the letter of reprimand to support the below expectation ratings in the Summative Annual Appraisal Report. Underlying documentation is not required to be provided to a teacher. See Camara v. Dallas ISD.

To summarize, the Commissioner ruled that third-party claims or other cumulative data that is to be used as a part of the appraisal process must meet these requirements:

  1. The claims must be verified;
  2. The data must be presented to the teacher within 10 working days;
  3. The issue must be shared in writing;
  4. The summative annual appraisal report is to be based on incidents that occurred during the school year in question, per 19 TAC §150.1003(a); and
  5. The appraiser does not have to share the underlying documentation, but a written reprimand or summary may be relied upon as part of the Summative Conference.

If you should have additional questions about the appraisal process or would like to schedule a training on evaluation and documentation, please contact any of the attorneys at Leasor Crass, P.C.

Leasor Crass in Action in Our Community!

Our school lunch progra1ms ensure that kids in need have a healthy breakfast and lunch throughout the school year.  But what happens to these kids when school is out for the summer?  Each summer, the Common Ground Network in Mansfield provides healthy, prepared food for kids through their program, Feed the Kids for Summer. They collect donations and prepare meal kits, which are distributed at nine food pantries all summer long.  Every kid receives a meal kit with enough food and snacks for the next week.

The Leasor Crass team was thrilled to join the Common Ground Network this morning as they prepared their final meal kits for the summer.  We salute the work they do to make sure kids in our community grow strong and return to school ready to learn.  If you’d like to join the Common Ground Network in their work, please visit www.commongroundmansfield.org/home to see where you can plug in.

 

 

 

Are Your Hiring Practices Legal? Should You Be Asking About Religion? The Supreme Court Rules on an Employer’s Hiring Decision and Religious Accommodations.

by Joe Tanguma

by Joe Tanguma

The U.S. Supreme Court Decision

 As it comes to the close of its term, the United States Supreme Court issued a significant decision that will impact school districts in a case titled EEOC v. Abercrombie & Fitch Stores, Inc.[1]

In this case, Samantha Elauf, an applicant for employment at Abercrombie & Fitch, was denied employment by the company because the headscarf she wore as a practicing Muslim was deemed to violate the company’s dress code for employees. Elauf applied for a position with the company and was interviewed by the assistant manager, Heather Cooke, who gave her a qualifying score to be hired and passed it along to the company, albeit with the concern that her headscarf would conflict the company’s policy. Abercrombie had a “Look Policy” that imposed a dress code upon its employees and prohibited “caps,” which were not defined by policy. Cooke sought advice from the store manager to clarify if the headscarf was a prohibited “cap.” Cooke also stated her belief to the district manager that Elauf wore the headscarf because of her Muslim faith. The district manager informed Cooke that the headscarf would violate the Look Policy and directed her not to hire Elauf. At no time did Elauf inform Abercrombie that her headscarf was due to religious beliefs. Elauf was not hired and sued for religious discrimination. The case ultimately made its way to the highest court for a ruling.

The Supreme Court ruled in favor of Elauf, reversing the Tenth Circuit’s decision in favor of Abercrombie, and held that an applicant need show only that his or her need was a motivating factor in the employer’s decision, not that the employer had actual knowledge of his or her need for any accommodation.

What does this mean for school districts?

First, this does not mean that school districts should adopt a practice of directly asking applicants or employees about their religion or religious practices as part of the hiring process. However, this decision opens the door to applicants’ challenges to decisions made by school districts based on religious discrimination, without regard to whether the district even had knowledge of an applicant’s religion during the decision-making process. An applicant is therefore not obligated by law to inform an employer that he will require an accommodation based on his religious tenants or beliefs to be able to perform the job. With this ruling however, the Supreme Court has stated that an employer cannot make an applicant’s religious practices, confirmed or otherwise, a factor in employment decisions. As school districts head into the summer and continue filling their staffing needs, a review and consultation with legal counsel regarding your hiring practices may be appropriate.

What should school districts do in light of this decision?

  1. Review your hiring procedures.
  • Do you have written standards in place for screening initial applicants and continuing throughout the interview and hiring process?
  • Could any of your existing criteria and listed factors for consideration for employment be construed or applied in a manner that would disqualify a person based on unknown religious needs for accommodation?
  • When you do interviews, do you use a set list of uniform written questions for each applicant?
  • Do you describe to applicants the essential functions of the job and have them confirm whether or not they can perform them?
  • Do you provide written documentation as to the basis for any rejection of employment?

The attorneys at Leasor Crass can help you with reviewing and modifying your practices and procedures as necessary to avoid the potential liability involved now considering this Supreme Court decision.

  1. Document the basis for hiring decisions and ask for the basis for any applicant’s stated inability to perform the job as stated. The reasons underlying a decision not to hire an individual should be documented and based upon who is the most qualified for the job, without regard to any dress code restrictions—unless you can prove that an undue burden would occur otherwise. And if you seek to disqualify a qualified individual based on their stated needs or requests, you should understand that the undue burden defense will likely be difficult for a governmental entity to prove. Simply put, employers need to avoid rejecting a qualified applicant because they are unable or unwilling to adhere to a dress code or otherwise perform part of your job description, without first determining whether there is a legitimate, non-discriminatory basis for that decision. In circumstances in which an applicant seeks to deviate from dress code policy, additional documentation should be sought from the individual to inform the employer as to why the applicant cannot meet the dress standards and determine if it is a sincere belief. If a religious belief is expressed, you may want to contact your legal counsel for additional assistance.
  1. Review your stated job descriptions. Review your job descriptions and requirements for hire before posting for applicants. If the job requires a particular dress code because of safety concerns or other legitimate, non-religious purposes, they should be indicated in the job description. Assess what essential functions for the job would serve as disqualifying factors if an applicant was unable to perform that function. Have a form that lists these functions and asks the applicant whether they can perform the essential functions of the job, and if not, require them to provide a written explanation. A simple questionnaire listing these functions and asking an applicant whether they can perform the essential functions of the job and requiring explanation as to the basis for any applicant’s inability to perform these functions will help alert the District of a potential religious accommodation complaint and the need to seek legal assistance on how to proceed.
  1. Give us a call! You are not alone in this process. The attorneys at Leasor Crass are ready to assist you, particularly as you begin looking to fill your remaining open positions over the summer. Let us help you make wise decisions about employees who may not be directly requesting religious accommodations, but who may still qualify for them.

 

[1] http://www.supremecourt.gov/opinions/14pdf/14-86_p86b.pdf

Protecting Our Most Vulnerable Students: OCR’s Guidance on Bullying and Special Education

by Dean Micknal

by Dean Micknal

October was a busy month for the U.S. Department of Education’s Office for Civil Rights (“OCR”). As we discussed earlier,  OCR issued a Dear Colleague Letter at the beginning of the month regarding the obligation to provide students with equal access to educational resources. On October 21, 2014, OCR released a second Dear Colleague Letter (“Letter”) concerning the bullying of students with disabilities.

The Letter is best read as a companion to a Dear Colleague Letter issued by the Office of Special Education and Rehabilitative Services (“OSERS”) in August of 2013. This guidance clarified that the bullying of a student with a disability can result in a violation of a school’s obligation to provide a free, appropriate public education (“FAPE”) under IDEA, regardless of whether the bullying was based on the disability.

The new Letter reiterates that OCR would similarly find a disability-based harassment violation under Section 504 and Title II when:

  • A student is bullied based on a disability;
  • The bullying creates a hostile environment;
  • School officials know or should know about the bullying; and
  • The school does not respond appropriately.

The Letter also clarifies that OCR has jurisdiction to investigate whether bullying impacts a student’s receipt of FAPE under IDEA or Section 504 and that this impact is actionable regardless of whether the bullying conduct itself is related to a student’s disability. Consequently, OCR advises schools to convene a meeting to review and revise a student’s IEP or 504 Plan when there is any reason to believe that the student’s receipt of FAPE may have been affected by bullying. Failing to do so could result in a determination that the school denied FAPE by not taking steps to remedy the hostile environment.

Administrators are strongly encouraged to review the three hypothetical scenarios that OCR analyzes in the Letter. Not only do they effectively illustrate the relatively low threshold of conduct that may trigger an investigation and provide insight into how OCR might analyze a district’s response, the first hypothetical provides an answer to one of the more common questions we receive regarding Section 504…what happens if OCR finds a violation? OCR explains that when an investigation results in a finding that bullying resulted in disability-based harassment and FAPE violations, the resulting resolution agreement could require the District to perform the following:

  • Convene a Section 504 or ARD meeting to determine what services (including compensatory services) should be provided;
  • Offer counseling to the student to remedy the harm;
  • Monitor and take corrective action to address any subsequent incidents;
  • Develop and implement a school-wide bullying prevention strategy;
  • Devise a school climate survey for student and parents to assess the presence and effect of bullying and to respond accordingly;
  • Revise the school’s anti-bullying policies;
  • Implement staff and volunteer training; and
  • Provide continuing education to students on the district’s anti-bullying policies.

In short, a failure to adequately address a report of bullying could result in significant and costly intervention by OCR. If you have questions involving the bullying of a student with a disability the attorneys at Leasor Crass, P.C. stand ready to assist you.

Armchair Quarterbacking: OCR Announces its Expanding Role in Title VI Investigations

by Mike Leasor

by Mike Leasor

On October 1, 2014, the U.S. Department of Education’s Office of Civil Rights (“OCR”) issued a Dear Colleague Letter (“Letter”) regarding resource comparability. In this letter OCR announced guidance intended to assist states, school districts, and schools comply with their obligation to provide students with equal access to educational resources.

OCR states that there is a need to draw attention to disparities in various groups of students’ ability to access educational resources. OCR believes that equal access to educational resources will provide better teaching, better facilities and quality instructional programs and supports.

Title VI of the Civil Rights Act of 1964 (“Title VI”) requires school districts to address disparities and provide students with equal access to resources without regard to race, color, or national origin. The Letter states that, in enforcing Title VI, OCR will investigate school districts and analyze the evidence found under both theories of discrimination (intentional discrimination and/or disparate impact) to ensure that students are not subjected to unlawful discrimination.

With this guidance, OCR can now find a district in violation of Title VI if it determines a school district could have implemented a comparably effective strategy that would result in a less discriminatory impact. It appears that OCR is taking a more expansive view of its authority to regulate conduct in local school districts.

Francisco M. Negrón, Jr., the National School Board Association’s General Counsel, noted that this new approach “ultimately puts OCR in the position of being able to dictate to a school district what education instrument or approach is comparably effective, a job that is squarely within the purview of school districts and not OCR or the federal government. OCR will always be able to force its position by declaring an alternative educational approach could have resulted in a less discriminatory impact. ”

OCR’s Letter continues by strongly recommending that school districts meet the obligations identified in the Letter by:

  1. self-assessing policies and practices;
  2. identifying barriers preventing the equitable provision of educational resources; and
  3. swiftly and deliberately taking action to eliminate inequities and put remedies in place.

While presented as recommendations, the result appears to be an attempt on the part of OCR to obligate (require) school districts to perform additional assessments and potentially modify programs. Full compliance with the recommendations places a burden on districts to make the necessary budget revisions to pay for these things.

OCR, through this Letter, has put school districts on notice that it will be taking a more active role in investigating Title VI complaints. Should you receive notice from the OCR that a Title VI complaint has been filed in your district, the attorneys at Leasor Crass, P.C. stand ready to assist you in responding.