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newsletterEducation Group

Fall 2013

pg 1 TheBanon“I♥Boobies!”Braceletsisan“Open-and-ShutCase,”AccordingtotheThirdCircuit

pg 2 ConstitutionalityofEmployeeLedPrayeratSchoolConvocations

pg 3 LegislaturePassesNewSpecialEducationLaws

pg 4 WhentheLawCatchesUptotheElectronicAge

pg 4 NewAttorneyJoinsTheEducationGroup

in this issue

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by Ronn P. Garcia

A year ago, the Underwood Law Firm reported that the U.S. Court of Appeals for the Third Circuit (the “Court”) had decided to rehear the B.H. v. Easton Area School District case before its full 14-judge court in order to answer the question of whether a school reasonably and properly banned “I ♥ Boobies!” bracelets as lewd or vulgar speech.

In a 9-5 decision, recognizing its charge to find the balance between students’ rights to free speech and a school’s need to control its educational environment, the Court found that the First Amendment free speech rights of students were violated because the ban on the bracelets could not be justified under either the traditional the “vulgar, lewd, profane, or plainly offensive speech” standard of Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) or the “substantial disruption” standard of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). See B.H. v. Easton Area Sch. Dist., 2013 U.S. App. LEXIS 16087, *2-4 (3d Cir. Pa. 2013).

The Court agreed with the Pennsylvania District Court’s 2011 decision that neither Fraser nor Tinker could sustain the school’s ban on the bracelets. Starting from a position that “the scope of a school’s authority to restrict lewd, vulgar, profane, or plainly offensive speech under Fraser is a novel question left open by the Supreme Court,” the Court worked to “resolve” the issue. Specifically, the Court held that Fraser, as modified by the Supreme Court’s later reasoning in Morse v. Frederick, 551 U.S. 393 (2007), set up the following framework:

“(1) plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues (speech that may clearly be restricted);”

“(2) speech that does not rise to the level of

plainly lewd but that a reasonable observer could interpret as lewd, may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues (speech that may be restricted);” and

“(3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues, may not be categorically restricted (speech that may NOT be restricted).”

See Easton, 2013 U.S. App. LEXIS 16087, *3-4. Because the Court concluded that the bracelets “were not plainly lewd” and that they commented “on a social issue,” the Court ruled that the bracelets may not be categorically banned under Fraser. See id. at *4 (emphasis added). The Court also highlighted that because the school failed to show that the bracelets threatened to “substantially disrupt the school,” its ban of the bracelets failed under Tinker as well.

Recognizing that “school administrators have a difficult job” that is “not getting any easier,” the Court did express that the school was not unreasonably concerned that permitting “I ♥ Boobies!” bracelets might require it to permit other messages that were sexually oriented in nature. The Court, however, reasoned that just because “one idea might invite even more difficult judgment calls about other ideas,” that alone “cannot justify suppressing speech of genuine social value.” See id. at *81-82.

At this point, it is too early to know if the school will pursue a petition for writ of certiorari before the U.S. Supreme Court.

For questions regarding this case, please contact a member of the Underwood Law Firm, P.C.’s School Law Section.

Business and legal transactions are increasingly becoming paperless, and smart phones and tablets make ordering and negotiating goods and services instantaneous. In response, courts are adapting case law to grant e-mails and electronic signatures the same authority as old fashioned paper and pen exchanges.

Whether transacting for the sale of goods, purchasing property or negotiating employment or service contracts, courts will find a binding agreement exists when the parties manifest the intent to form a contract, regardless of whether that intent is conveyed via hard copy or electronic communication. Invariably, use of e-mails and other electronic communication makes conducting business faster and convenient, but there are pitfalls.

“Electronic communication” includes e-mails, texts, instant messages and any other technology capable of being stored and retrieved. These forms of communication are typically more informal than paper communication, so it is important to use the rules of formality in order to avoid an unintended contract.

For example, if negotiating via e-mail use words such as “pending” or “to be approved”; whereas words such as “offer” “accept” or “agree” may imply the intent to be bound. Further, courts will read multiple electronic communications together to determine intent.

So be consistent in the tone throughout, and be aware of prior discussions in e-mail strings to prevent misperceptions.

Another potential pitfall is allowing employees without contracting authority to e-mail vendors. An e-mail sent by an employee in the business office may bind the school district if the language manifests an intent to be bound, and the recipient reasonably believes that employee is able to sign contracts. This is so, even if your district’s Policy CH (LOCAL) contains a provision to the contrary. Therefore, it is important to clarify who is able to bind the district with third parties, use disclaimers in the text of e-mails, and follow your policy when placing orders to avoid clothing an unauthorized employee with apparent authority.

Also, be careful with the electronic exchange of student education records and medical information. E-mails are more susceptible to errors by way of using “auto-fill” for recipient names or mistakenly hitting the “reply all” button. If an unauthorized person receives the e-mail, there could be a violation of HIPPA or FERPA.

Overall, electronic communication offers an efficient way to conduct business. Without disclaimers and oversight, however, transacting business electronically can present more problems than benefit.

The Ban on “I ♥ Boobies!” Bracelets is an “Open-and-Shut Case,” According to the Third Circuit

When the Law Catches Up to the

Electronic Age

by Fred Stormer

Electronic communication can

present more problems than benefit.

Melissa Kates is the newest shareholder in Underwood Law Firm’s Fort Worth office. Her practice includes civil litigation, as well as representation of municipalities, school districts and other governmental entities.

While obtaining her degree at Texas A&M, Ms. Kates worked for the A&M Board of Regents. Prior to starting law school at SMU, she worked as a research assistant covering Public Education and Higher Education Committees for Texas Speaker of the House, Pete Laney.

Ms. Kates serves as the Chair of the Tarrant County Bar Construction Law Section; on the Arlington Chamber’s Commercial Real Estate Advisory Council; on the Board of Directors for the Texas Federal Credit Union; and is in the State Bar of Texas Leadership Class of 2013-14. Ms. Kates was recently named “40 Under 40” by the Fort Worth Business Press. She also founded the “Underwood Law Leadership Series” bringing leaders of the community into local schools to mentor and inspire the leaders of tomorrow. Melissa is married to Ged Kates, a football coach and athletic coordinator in Birdville ISD, and they have three boys.

NEW ATTORNEY JOINS THE EDUCATION GROUP

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The Rationale:

The First Amendment Establishment Clause, “Congress shall make no law respecting an establishment of religion…” prohibits school districts and their employees from establishing religion and from advancing, coercing, or endorsing a particular religion or religion over no-religion.

The three-part test used to evaluate Establishment Clause claims was established by the United States Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Under this test, government action violates the Establishment Clause if it has any of the following characteristics: (1) a non-

secular purpose; (2) the principal or primary effect of advancing or inhibiting religion; or (3) fostering an excessive government entanglement with religion. Additionally, the Supreme Court has held that, “the appearance of endorsement of religion alone sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community…” Lynch v. Donnelly, 465 U.S. 668 (1984)

In Mercier v Fraternal Order of Eagles, 395 F.3d 693, (7th Cir. 2005), the Court ruled that “a government practice can also violate the Establishment Clause if a reasonable person, apprised of the circumstances surrounding the [challenged government act] would conclude that [it] amounted to an endorsement of religion.”. The court focused on whether the action in question would lead a reasonable person to perceive that the action was an endorsement of religion. As part of its analysis, it utilized the United States Supreme Court’s decision in Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), to illustrate what a reasonable person would perceive to be “an endorsement of religion”. In Santa Fe, the Supreme Court determined that a student-led invocation delivered before a football game created the perception of endorsement because the invocation was “delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property”; the “…ceremony was clothed in the traditional indicia of a school event”; and “the crowd included many who displayed the school colors and insignia.” The Court concluded

that based on the above factors, “members of the listening audience must perceive the pregame message as a public expression of the views of the majority delivered with the approval of the school administrator.”

In Warnock v. Archer, 380 F.3d 1076 (8th Cir. 2004), Warnock claimed that prayers conducted by school officials at mandatory teacher meetings and mandatory in-service training were a violation of the establishment clause. The Court held the practices unconstitutional, “not because they offended Mr. Warnock but because they endorsed religion…The government, of course, may speak on a large number of different issues. The Constitution, however, forbids it from conveying the message that it decisively endorses a particular religious position. We believe that prayer at mandatory teacher meetings and in-service training conveys such a decisive endorsement.” The ruling went on to state that incorporating prayer into required meetings violates employees’ rights and that a public sector employer may not have prayer as part of a meeting agenda as that act would be an official “endorsement” of a religion and violate the Constitution’s Establishment Clause.

Applying the above criteria to the scenario of a prayer delivered by a school district employee during the district’s back-to-school convocation, a mandatory event for all school staff, would result in a finding that a reasonable person would perceive it to be an endorsement of religion by the school district. Regardless of whether or not any employee in attendance was offended by the prayer, the inclusion of prayer into a school district’s convocation “conveys a decisive endorsement of religion’ which violates the Establishment Clause. See Id.

One question often asked this time of year is, “Can one of our school district employees open our school district’s employee convocation with a prayer?”

The Answer: “No!”

Constitutionality of Employee Led Prayer at School Convocations

SB 709 – Representation by Non-Attorneys at a Special Education Due Process Hearing. A person in a due process hearing may be represented by an attorney or by an individual who is not an attorney licensed in Texas, but who has special knowledge or training with respect to problems of children with disabilities. The Commissioner of Education will adopt rules relating to this new law and qualifications of representatives. The rules will prohibit an individual from being a representative if the person has prior employment experience with the district, and the district raises an objection to the representation. The rules will also require that the representative have knowledge of special education due process rules, hearings, and procedures, as well as federal and state special education laws. NOTE: This change in law was not much of a surprise, given that in 2012 the Texas Attorney General was asked to address the issue of whether non-attorneys may represent parties at special education due process hearings conducted by the Texas Education Agency. The Attorney General determined that a non-attorney could not practice law at a due process hearing, but could not determine whether the particular conduct of an individual who is not an attorney at a special education due process hearing constitutes the practice of law. See Tex. Att’y Gen. Op. No. GA-0936 (2012). Proposed rules were released on September 4, 2013.

SB 816 – Relating to Deadlines for Requests for Evaluations. A written report of a full individual and initial evaluation of a student for purposes of special education services shall be completed not later than 45 school days following the receipt of written consent for the evaluation, signed by the student’s parent or legal guardian. However, if the student has been absent from school during that period on three or more days, that period must be extended by a number of school days equal to the number of school days during that period on which the student has been absent. (For students under five years of age by September 1 of the school year and not enrolled in public school, and for students enrolled in private or home school, the report on the full individual and initial evaluation is due the 45th school day following the date on which the district receives written consent for the evaluation, signed by a student’s parent or legal guardian.) If a school district receives written consent signed by a student’s parent or legal guardian for a full individual and initial evaluation of a student at least 35 but less than 45 school days before the last instructional day of the school year, the evaluation must be completed and the written report of the evaluation must be provided to the parent or legal guardian not later than June 30 of that year. The student’s ARD committee must

meet not later than the 15th school day of the following school year to consider the evaluation. If a district receives written consent signed by a student’s parent or legal guardian less than 35 school days before the last instructional day of the school year or if the district receives the written consent at least 35 but less than 45 school days before the last instructional day of the school year, but the student is absent from school during that period on three or more days, that period must be extended by a number of school days equal to the number of school days during that period on which the student has been absent. “School days” does not include a day that falls after the last instructional day of the spring school term and before the first instructional day of the subsequent fall term. The Commissioner may determine days during which year-round schools are recessed that are not considered to be “school days.” If a parent or legal guardian makes a written request to a school district’s director of special education services or to a district administrative employee for a full individual and initial evaluation of a student, the district shall, not later than the 15th school day after the date the district receives the request: (1) provide an opportunity for the parent or legal guardian to give written consent for the evaluation; or (2) refuse to provide the evaluation and provide the parent or legal guardian with notice of procedural safeguards. NOTE: Districts responding (or, rather, allegedly not responding) to requests for evaluations is a frequent issue in due process hearings. Administrators need to pay careful attention to this new 15-day deadline, and promptly (and appropriately) respond to written requests for evaluations.

HB 590 – Relating to determining a child’s eligibility for a district’s special education program on the basis of visual impairment. When determining a child’s eligibility for special education, the full individual and initial evaluation must include an orientation and mobility evaluation conducted by a person who is appropriately certified as an orientation and mobility specialist. The evaluation must be completed in a variety of lighting conditions and in a variety of settings, including the student’s home, school and community, and in settings unfamiliar to the students. An appropriately certified person must also participate in the students’ ARD team meeting at which the determination of the child’s eligibility is based, as well as re-evaluation ARDs. NOTE: A common reaction to this new law is that orientation and mobility specialists can be difficult to locate, particularly in rural areas. Administrators need to be prepared for a potential shortage of specialists and have a plan in place to secure these services when needed.

Legislature Passes New Special Education Laws

By Andrea Slater Gulley