Preventive Law

Preventive Law Corner - USERRA – Part II
A district employee had been identified as an established uniformed service member. The time has come for the district to determine its obligations when releasing the employee for military duty and then returning the service member to employment rolls. This installment of our USERRA series will examine the parameters and commitment districts must demonstrate for their military employees when the employee is called for duty. May 9, 2008, 08:32

Preventive Law Corner - USERRA
We have all seen the acronym USERRA in the news and if you are like most people you don’t what it is or how it affects school districts. Over the next few months, we will cut through the complexity and illustrate how this seemingly military act affects public schools. In order to truly understand how USERRA will affect the schools when the troops come home, we need to first examine the very basics of who is covered, what services are covered and for how long. Although, this first part of the series may read like boring stereo instructions, it will provide the necessary background for understanding your obligations when one of your employee’s who is also a service member wants to come back to work. Apr 7, 2008, 08:32

Preventive Law Corner - What Copyright Giveth, License Taketh Away: Resource Sharing and Copyright Concerns
Schools spend many thousands of dollars each year on instructional materials, supplements, library books, and audiovisuals that are housed at individual campuses but used only a few days a year. Not knowing that Campus A owns a particular resource, Campus B may also order that same resource, which is also used only a few days a year. Logic dictates that if Campus A could share its item with Campus B through coordination of scheduling, the District would have additional money available to purchase more supplemental resources or apply to other areas. It sounds like a dream come true! Mar 13, 2008, 08:32

Preventive Law Corner - How Can School Boards Remove Unsuitable Books from School Libraries?
If you have not yet had a book challenge, just wait. In school year 2006-2007, 67 districts had some sort of challenge to library books or teaching materials. Common reasons for challenging library books include profanity, violence, sexual content, and religious viewpoint. Perennially controversial books such as The Adventures of Tom Sawyer and To Kill a Mockingbird are still challenged today, but sticking to “safe” materials won’t always protect a school from challenges. Even Dr. Seuss was challenged in 2006-2007! Knowing the current law and following policies in place to deal with a materials challenge can turn a potentially volatile and divisive situation into one that follows a regular, established procedure. The ultimate goal is to provide high-quality reading and information materials to support student achievement. Feb 7, 2008, 08:31

Preventive Law Corner - Schools Beware: Dinah’s probably going to be blowing her horn more often now!
Brace yourself. At the end of November, the Texas Supreme Court ruled that a mere change in an employee’s schedule can constitute retaliation and an illegal adverse employment action under the Texas Whistleblower Act (“TWA”).[1] School districts have long understood that employees who report to an appropriate law enforcement authority what they in good faith believe to be a violation of law by the district or a district employee are protected against retaliation. It has also long been understood that “retaliation” would have to be in the form of an “adverse employment action” (including but not limited to suspension or termination). Jan 11, 2008, 08:31

Preventive Law Corner - The Fifth Circuit Draws a Line in the Sand for Terroristic Threats
For years school administrators and parents have steamed when reading about courts overturning school administrators’ efforts to maintain a safe environment by punishing students that threaten the safety of others at school. A California trial judge held that a fifteen-year old who told a counselor that she was so angry she “could just shoot someone,” or “[i]f you don't give me this schedule change, I'm going to shoot you,” was not to be suspended for three days because her comments were protected free speech (overturned by the Ninth Court of Appeals in. An Arkansas state judge found that an adjudicated delinquent who threatened a female student’s life in a rap song that he wrote and than handed to her at school (and for which he was sentenced to 24 months supervised probation and seven days in a juvenile detention facility), should nevertheless be allowed to attend school (affirmed by the court of appeals in). An Arkansas federal judge even enjoined a school from punishing a student who wrote a letter to a fellow student that referred to the girl as a “bitch,” “slut,” “ass,” and a “whore” over 80 times in only four pages, used the f-word no fewer than 90 times and spoke frequently in the letter of his wish to sodomize, rape, and kill the girl. The letter even expressed in unconditional terms that the girl should not go to sleep because he would be lying under her bed waiting to kill her with a knife. In defying logic and perspective, the judge held that the letter was only arguably threatening to a thirteen year old girl! Fortunately, the Eight Circuit Court of Appeals disagreed with the federal judge. Dec 7, 2007, 08:31

Preventive Law Corner - Open Forum: How open, and what is it for [um…]?
We have written several articles over the years about the Texas Open Meetings Act (Texas Government Code section 551.001, et seq.), but we continue to see problems arising from the section of the meeting called “open forum” or “public comment,” or whatever nomenclature is selected by the local districts for giving the public the opportunity to speak during a board meeting. This article focuses on what is required and what is prohibited during public comment parts of board meetings. Nov 9, 2007, 08:31

Preventive Law Corner - Skeletons in the Closet and It’s Not Yet Halloween! The School Safety Act and Your District’s Volunteers and Visitors
They arrive from all areas of your community with a heart to serve the District and the children. They are booster club officers and members, long time volunteers of sports activities, parents, grandparents and others who serve in “parental” roles, neighbors, community activists and the like. The new section 22.0835 of the Texas Education Code strengthens the prior sec. 22.083 by requiring that districts conduct criminal background checks for volunteers or those who indicate, in writing, an intent to serve as a volunteer with the district, school, or shared services arrangement. Schools or centers are authorized to obtain criminal history record information from any law enforcement or criminal justice agency. Consequently, a volunteer is required to provide the district or requesting school a driver’s license or other form of identification issued by a United States government entity containing the person’s photograph. A person can not volunteer until all the requirements are met. (Sec. 22.035(d)). The district can require that the volunteer pay any costs related to obtaining the criminal history information. Oct 12, 2007, 08:31

Preventive Law Corner - Giveaways and Gifts: Sometimes it is best to look a gift horse in the mouth!
At the end of this month, many of Texas’ best citizens will travel to Dallas for the annual TASA/TASB Convention. The Convention provides school administrators and trustees with opportunities to learn from one another and to gather ideas to better their communities. For many, convention-going also includes time to socialize with fellow trustees and district vendors. Recent indictments against government officials, including some school officials, have given many cause to re-examine common convention past-times, like nice dinners with vendors and gifts given to convention attendees. Are school officials in danger of being broadcasted while being hauled off to jail by the six o-clock news because their architect took them to one of Dallas’ fabulous steakhouses or because they accepted a gift without completely understanding the ramifications of the transaction? For a quick refresher of the rules, keep reading. Sep 12, 2007, 08:31

Preventive Law Corner - Let’s Get Ready to RRRRRRRRRRRRRRRRRRRRRumble! The RVAA: Religious Viewpoints Antidiscrimination Act
House Bill 3678 or the Religious Viewpoints Antidiscrimination Act (“RVAA”) may be the most controversial school legislation to arise out of this year’s legislative session. Even if it is not the most controversial, it is easy to anticipate it will become the most litigated new statute. Already sides are lining up, with the attorney who helped draft the bill ‘warning” that school districts that pass TASB’s “alternative” policy will be sued. . Aug 15, 2007, 08:33

Eichelbaum - "Final Response Regarding the RVAA"

I certainly did not intend to get into a seemingly unending debate on the subject of the RVAA, but I would like to clarify my position regarding the RVAA’s Model Policy. I do not intend to write again on this issue, but for anyone that would like to discuss the matter further, my number is 1-800-488-9045.

Aug 14, 2007, 08:32

Preventive Law Corner - “BONG HiTS 4 JESUS” and the First Amendment
In the latest clash between students’ First Amendment right to free speech and schools’ interests in maintaining a safe and efficient learning environment, the Supreme Court recently held that schools do not violate the Constitution when they restrict student speech at school events, when that speech reasonably can be viewed as promoting illegal drug use. Jul 13, 2007, 08:31

Preventive Law Corner - Part 5: Avoiding the Leaky Roof and What To Do if You Get One

You sent notice about your leaky roof to the contractor and the architect. They told you that it would be remedied. It wasn’t. You sent notice again and this time they came out and did some work but it did not fix the problem. The roof still leaks. What do you do? For the purposes of this article we will assume that your leak is severe and pervasive, that it is causing damage to the work, and that your contractors have been non-responsive. Self-help can be an option, withholding payment can be an option, and termination can be an option as well.

Jun 29, 2007, 08:31

Preventive Law Corner - Part 4: Avoiding the Leaky Roof and What To Do if You Get One
You walk into your half finished high school after a heavy rainfall and notice several inch-deep pools of water in the center of the building. You recall having paid the pay application that covers the roofing system and you recall that it was warranted to be complete. You then notify the contractor and the architect as described in part 3 of this series and they send their men armed with caulk guns to save the day. Jun 15, 2007, 08:31

Preventive Law Corner -Part 3: Avoiding the Leaky Roof and What To Do if You Get One
Imagine that you are searching for a new high school principal. You review many impressive applications and resumes. You call previous employers to learn about their past performance. Your search committee interviews. You interview. You pick the best one. Then you never need to worry about performance again. Right? If you hire them and they become habitually late, the problem will resolve itself. If they yell at students in front of other students. Don’t worry the problem will solve itself. If they schedule themselves for vacation the week of TAKS testing. No problem. The problem will solve itself. Right? No way. May 25, 2007, 08:31

Preventive Law Corner -Part 2: Avoiding the Leaky Roof and What To Do if You Get One
Hiring the right contractor may be the most important decision of your superintendency. In almost every case, no matter how much lead time you’ve had running up to the actual procurement of the contractor, you will find yourself short on time and long on demands for quick action. Pressure seems to come from every direction. May 11, 2007, 08:31

Preventive Law Corner - Avoiding the Leaky Roof and What To Do if You Get One

I recently took a deposition in a leaky roof case where one of the defendants made the statement that all roofs leak. As far as I can tell all of the school district roofs he installed do leak. So I guess in his world he was right. In the real world, however, schoolhouse roofing systems that leak from the get go are substandard and suffer either from design defects or construction defects. Nobody bargains for a leaky roof.
Note: This is the first of a five part weekly series covering the subject of roof leaks and what you can do when you get one. The first three articles are focused on preventing construction defects. The last two articles will focus on remediating the effects of a leaky roof including whether or not you may be able to get the architect or contractor to pay for the repairs. (Here’s a hint. The statute of limitations for most school district construction defect claims is 10 years.)

May 4, 2007, 08:30

Preventive Law Corner - The Confusion about Student Distribution
Spring is in the air. The flowers are blooming, birds are singing, and students are passing out religious messages on campus. Although the “religious wrestle” is generally associated with the month of December, the Spring could open up its own can of worms. Notable Spring religious holidays include Purim, Passover, Good Friday, and Easter. However, lesser known spring religious holidays are Vernal Equinox, Rama Navami, Naw-Ruz, Mawlid-al-Nabi, and the Ridvan Festival among others. Potential springtime distribution issues can include students passing out information about Islam on Muhammad’s birthday (Mawlid-al-Nabi), students distributing Bibles before Good Friday, or students providing pamphlets about Seder (Passover). How does your district address student distribution on campus? Apr 5, 2007, 08:31

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