A lawsuit over bullying in Wisconsin is particularly timely as more and more schools pursue restorative disciplinary practices.   The case makes two important points. First, schools are not legally liable just because the bullying never ended. Second, some parents will push back against restorative practices. The court ruled in favor of the school district and two principals despite acknowledging that the plaintiff, a student with Asperger’s, was “severely bullied by his classmates throughout middle and high school.”  The court observed that:

The facts of this case are deeply disturbing, and what happened to Connor at the hands of many of his classmates was shameful. 

But there was no liability imposed on the district or the principals.  The school’s liability turns on whether or not it was “deliberately indifferent,” not whether or not the bullying ended.  The court dismissed the suit because of lack of evidence of deliberate indifference.  Plaintiffs did not dispute the fact that the school investigated every reported incident and took corrective action whenever bullying was confirmed. Their argument was that the school was “deliberately indifferent” and should be held liable because the bullying never ended. But as the court noted, that is not the standard for liability. 

It’s apparent from reading the decision that the school district was addressing the bullying through restorative practices.  Many of you know that the Dawg is a big proponent of restorative practices as an alternative to traditional, exclusionary forms of discipline.  But the parents of a kid who is being bullied might not look so favorably on this.  They might prefer a less enlightened, more old school response.  The parents in this case argued that the school inappropriately favored counseling over harsher forms of disciplinary action.  The court noted that:

Defendants certainly favored counseling over other, more severe types of discipline, but it appears to have worked, at least in some instances.

Moreover, the judge expressed reluctance to second guess disciplinary decisions of school administrators:

Continued counseling of a handful of students after numerous instances of bullying might be clearly unreasonable, but the evidence does not indicate that that’s what happened here.  To call these kinds of measures clearly unreasonable would be to engage in the kind of second-guessing of school administrators’ disciplinary decisions that the Supreme Court and the 7^th Circuit have instructed district courts to avoid.

The case of Bowe v. Eau Claire Area School District was decided by the federal court for the Western District of Wisconsin on February 7, 2018. We found it at 71 IDELR 168.

DAWG BONE: RESTORATIVE PRACTICES WILL GENERATE SOME PUSHBACK. BE READY FOR IT.

Tomorrow: did the teacher accuse a student of racism?

Alamo Heights ISD prevailed in a special education lawsuit in which the court addressed three very common issues, ruling in favor of the district on all three.

CHILD FIND.  We are hearing a lot about Child Find these days, in part due to the OSEP investigation of Texas and the Corrective Action Plan now being implemented.  AHISD was accused of failing to “find” a student when it should have, but the court rejected that argument. 

The district promptly responded to a parent request for evaluation when the student was in 10^th grade.  The district had no reason to make a referral prior to that time in light of the fact that the student was passing all classes, including multiple AP or Pre-AP courses, and had performed well on STAAR in 9^th and 10^th grades. The court noted that “This success in general education classes cuts against placement in special education.”

FAPE.  The district did conduct an evaluation when the parent requested it and ultimately found the student to be eligible for services.  The parent alleged that the IEP was inadequate, and that the district failed to provide FAPE.  However, the court upheld the hearing officer’s decision that the district provided FAPE.  The court used the four factors from Michael F. placing emphasis on the fourth factor—evidence of progress:

At the end of the 2014-15 school year, A.L. passed all his classes, including Pre-AP Spanish, Pre-AP English, Pre-AP Chemistry and AP World History, while receiving no incompletes.

That “no incompletes” was important, because the student’s failure to complete work was one of the reasons for the referral.

IEP IN PLACE TO START THE YEAR.  The parent argued that there was no IEP in place at the start of the 2015-16 school year.  The evidence showed that an IEP had been proposed at an ARDC meeting held just prior to the start of school.  But the parties did not come to consensus, so there was no agreed-to IEP in place.  Nevertheless, the court held that the district had an IEP in place at the beginning of the school year, as required by law.  When the meeting recessed without consensus, the district provided Prior Written Notice, informing the parent that the previous year’s IEP would be continued until the ARDC could agree on new goals.  Good enough:

Taken together, this evidence suggests to the Court that there was an IEP in place at the beginning of the 2015-16 school year—the 2014-15 IEP—and Parent had notice of its implementation. 

It’s always good to see the good work of educators being recognized by hearing officers and judges.  Kudos to the folks in Alamo Heights! The case is A.L. v. Alamo Heights ISD, decided by the federal court for the Western District of Texas on October 12, 2018.  We found it at 73 IDELR 71.

DAWG BONE:  PRIOR WRITTEN NOTICE SAVES THE DAY.

Tomorrow: pushback on restorative practices.

Dear Dawg: The undersigned represents Toot Your Own Horn Music Co. which has been unfairly and unscrupulously denied access to the annual Band Night at Milkweed ISD.  We have participated in this event for years. It gives us access to kids and their parents for the sale or lease of our instruments.  Now, all of a sudden, the duplicitous, dimwitted bureaucrats at Milkweed ISD have decided that music companies have to bid for the “privilege” of participating in Band Night.  This year there will be only one music company allowed to participate. My client submitted a bid, while simultaneously protesting this egregious violation of our Constitutional rights. Lo and behold they went with our competitor, Tubas and Things.  We are way better than Tubas and Things, and if we had a chance to participate in Band Night the parents of band kids would have access to better instruments at more reasonable prices than they will get from Tubas and Things.  This is viewpoint discrimination in violation of my client’s First Amendment Rights.  We are hoping that you will straighten out the nefarious nabobs at Milkweed before costly litigation becomes necessary.  POUNDING THE DRUM.

DEAR POUNDING: Your client lost the bid.  That’s not discrimination based on viewpoint. That’s discrimination based on the quality of your client’s bid.  So the “costly litigation” will mostly be costly to your client unless you come up with some other theory.  Take a look at West Michigan Band Instruments, LLC v. Coopersville Area Public Schools, where a similar argument was tossed out of court by the 6^th Circuit. That case was decided on January 16, 2019 and we found it at 2019 WL 211392.

DAWG BONE: AS THE COURT POINTED OUT, BAND NIGHT IS NOT INTENDED TO BE A “PURELY CAPITALISTIC FREE FOR ALL.”

Tomorrow: Toolbox Tuesday!!

We save Tuesdays in the Daily Dawg for stories that illustrate how “the Toolbox” works in practice. The Toolbox consists of ten tools that administrators can deploy to serve students with disabilities who present challenging behaviors. The idea is to serve each student properly while maintaining order and discipline for all.  Today we report a case from our 5^th Circuit that illustrates a principle that undergirds all of the Toolbox. In fact, it undergirds all of the operation of your special education program.

That principle is this: our special education laws assume and depend upon the reasonable, good faith collaboration of educators and parents.  Courts and hearing officers will always be silently assessing the reasonableness of the parties.

The case involved a student who did not attend school for almost an entire semester. As often happens in situations like that, the parties had very different views of why this happened.  It started when the parents reported alleged bullying at the school and sought homebound placement for their son.  The stories of the parties diverge from there.  The parents alleged that the school gave them the bureaucratic run around and unnecessarily delayed providing services, thus failing to respond properly to a report of bullying.  The school claimed that the parents failed to get the necessary homebound documentation back to the school, and were just keeping the boy at home.  This presents what the lawyers refer to as a “fact issue.” That fact issue was decided in favor of the school by the special education hearing officer and the district court. Now the Circuit Court has affirmed that view, largely based on the good faith efforts of teachers and administrators:

From February to June, C.J.’s teacher communicated with his parents nearly thirty times, attempting to convince them to return him to school.  Administrators arranged for C.J.’s teacher to meet him at the car when his parents dropped him off and to escort him inside the school building, so he would feel safe.  School officials also offered to allow C.J. to spend the first hour of the day in the office of student support to ease his transition to the school environment. These facts belie the parents’ claims that teachers and school administrators were callous and unresponsive to C.J.’s fears about bullying.

Considering C.J.’s parents’ failure to follow up with the requested paperwork for five weeks while they continued to withhold him from school, and considering further the school district’s repeated outreach and offers of accommodation, the school district’s behavior was reasonable. 

The case is Renee J. v. Houston ISD, decided by the 5^th Circuit on January 16, 2019.  We found it at 2019 WL 211216.  There is a lot more to this case, all of which was decided in favor of Houston ISD.  Those of you who receive our firm’s special education newsletter, This Just In….can find a more complete report there.

DAWG BONE: ALWAYS BE REASONABLE, AND DOCUMENT YOUR REASONABLENESS.

Tomorrow: another win for a Texas district in special education litigation.

The grievance process is supposed to be simple.  We don’t normally think of a Level I grievance as encrusted with a lot of legal protocol and vocabulary. But a decision from the Commissioner may cause you to reexamine that belief. 

The Commissioner ruled that he did not have jurisdiction to hear a parent complaint about a student’s GPA because the parent did not “exhaust administrative remedies” at the district level.  So the parent complaint was dead on arrival at T.E.A. 

I have read hundreds of local grievance policies and never seen the term “exhaust administrative remedies” in any of them.  But the Commissioner holds that a grievant has to “exhaust” the local remedies and this involves more than simply getting your case before the school board. You have to say the right words.  You have to spell it out for the school board.  And you might have to do that even before it gets to the board at Level III.

Here’s how the Commissioner reached this conclusion:

*The Commissioner has very limited jurisdiction.  In a parent appeal like this, the Commissioner only has jurisdiction to consider possible violations of the “school laws” of Texas—meaning Title I and II of the Education Code.

*The grievant has the responsibility to specifically identify the school laws that have allegedly been violated. 

*The grievant also has the responsibility to explain exactly how the laws were violated, and to  identify the facts that show this to be the case.

*The grievant has to do this at Level III—the hearing before the local school board. 

*The grievant also has to comply with the district’s policy. In this case, the policy said that the Level III hearing was “limited to the issues and documents considered at Level II.”  That is a very common provision in local grievance policies.

So do you see where that puts our grieving parent?  The parent could not bring up alleged violations of “the school laws” of Texas at T.E.A. because she had not done it at Level III, at least not properly.  She could not bring up alleged violations of the school laws of Texas at Level III  because she had not been brought them up at Level II. 

At Level III the parent did use the magic words about the “school laws of Texas,” but still fell short.  The Commissioner said that the parent:

failed to properly describe her claims.  While Petitioner cites five sections of the Texas Education Code, Petitioner did not explain how these cited sections were violated.  Petitioner never placed the school district on notice as to what her claims were.

What this case means in practice is that school district lawyers will likely file Motions to Dismiss appeals before the Commissioner if the complaining party has not appropriately jumped through all of the hoops, beginning as early as Level II. 

The case is Parent v. Eanes ISD, decided by the Commissioner on September 17, 2018, Docket No. 050-R10-04-2018.

DAWG BONE: THE LAW ALWAYS GETS MORE COMPLEX, NOT LESS. 

Enjoy the weekend, Readers!  And get ready for Valentine’s Day before it’s too late!

I expect you have noticed how much hair is hanging out from football helmets these days.  I’m not sure what brave gridiron great first crossed this line, but I’m sure that the late great Vince Lombardi would not approve.  Dreads, ponytails and mullets are visible all over the place. What ever happened to Johnny Unitas?  Where are the crew cuts????

Coach Lombardi would be very pleased with Mathis ISD, where the extracurricular dress code requires that boys’ hair must not touch the collar. And you can’t pin, curl or gel it to get around this rule. 

This presented a problem to Mr. and Mrs. Gonzales, whose sons wanted to play football.  The boys were out of compliance with the dress code, but the parents thought they should be exempted from the code.  Here’s how the court explains the situation:

Parents are Hispanic and practice the Roman Catholic religion. As an expression or exercise of their faith and heritage, and in a promise (promesa) to God, Parents have kept a strand of hair on the back of the Children’s heads uncut since birth.  More recently, the Children [two of them] have adopted that promise as their own affirmation of faith and heritage and continue to maintain the single long braid down their backs.

Many of you readers have heard me tell tales of my 13 years in Catholic school. I’m quite familiar with the teachings, practices and customs of that group, and I had never bumped into this. I can’t recall ever seeing a priest with such a braid. The Catechism says nothing about this.

These parents acknowledged that. They made no claim that this was something their religion required. Nor did they argue that it was representative of Hispanic heritage. They freely stated that this was simply a personal commitment they had made. They could change it at any time. They could choose some other means of symbolizing their commitment to God. But this was the promise they made to God and they took it very seriously.

So did the boys.  One of them testified that “if he cut the hair, he would disappoint Jesus or get punished.” 

Hmmm.  Everybody is in favor of equal application of the dress code, but nobody wants to disappoint Jesus. So this makes for an interesting case! 

The court ruled against the parents on their First Amendment claim, but in favor of them on a claim under state law. Let me explain.

The first claim was that the school’s rule infringed on the free exercise of religion in violation of the First Amendment.  To prove this, the parents would have to show that their SINCERELY held RELIGIOUS belief was UNDULY burdened by the dress code.    The court addressed each of those three requirements: sincerity, religion, and undue burden. 

As to religion, the court noted that it would be improper for the school to question whether or not the parents’ belief was “religious.” Key Quotes:

As a matter of law, MISD is not permitted to challenge whether Plaintiffs’ practice is an approved feature of an established religion.

It is enough that Plantiffs treat the promesa as a promise to God that if broken would be a sin, would disappoint Jesus, and would result in divine punishment.

On the other hand, the court said that it would be acceptable to challenge the sincerity of the belief.  At this stage of the litigation, however, the court held that there was plenty of evidence of parental sincerity, including the fact that the school had granted a religious exemption from its general dress code for several years.

Nevertheless, the First Amendment claim was denied because the court held that the burden on the parents was only “incidental.”  The dress code was a neutral rule—it targeted no individual or group, but applied to everyone—and it imposed only an “incidental” burden on religion. 

The parents had more success under state law—The Texas Religious Freedom Restoration Act (TRFRA).  In a nutshell, the TRFRA imposes a higher standard on governmental entities than does the First Amendment.  Neutral rules that “incidentally” burden religious practices may pass muster under the First Amendment, but they just might fail the TRFRA test. That’s exactly what happened here. 

TRFRA allows for a “substantial” burden on religion only when necessary to further a compelling governmental interest and when it does so in the least restrictive way.  Was this a “substantial” burden? The court said yes:

That measurement is taken from the person’s perspective, not the government’s. And it is a fact-specific inquiry.

Here’s how the courts viewed these facts:

MISD’s hair grooming policy requires cutting the Children’s hair.  This would fully eliminate their religious effort of maintaining a promesa, now 14 years strong….From Plaintiffs’ perspective, it is no comfort that hair can grow back or that they could shift their devotion to some other expression. The damage will have been done. The promise will have been broken. 

The school district cited all of the cases that deal with extracurricular activities and establish that a student has no protected legal right to participate.  Those were the cases our Daily Dawg mentioned in yesterday’s post.  But here, the court distinguished all those cases—none of them addressed a substantial burden on religion like this case does.

This one’s not over but the parents have succeeded in defeating—for now—the Motion to Dismiss. The court did not say that the district violated TRFRA.  It said that the district did not show that the parents can’t win on that theory.  So the case goes on.  The hair grows, the promesa remains intact and the case goes on.

We found the case of Gonzales v. Mathis ISD at 2018 WL 6804595.  It was decided by the federal court for the Southern District of Texas on December 27, 2018. 

DAWG BONE: ONE MAN’S BRAID IS ANOTHER MAN’S PROMESA.  TREAD GENTLY WHEN RELIGION IS INVOLVED.

Tomorrow: taking a grievance to T.E.A. is more complicated than you might think.

Today and tomorrow the Daily Dawg will tell you about two cases that involve student participation in extracurricular activities.  Today we’ll tackle the simple, straightforward case.  Tomorrow we will muddy the water. 

Today’s case arose when a student in New Deal ISD moved from mom’s house in New Deal to dad’s in Lubbock-Cooper.  To make this story easier to understand, let’s call this student The Player. 

The Player had attended school in New Deal for several years, including some after he moved to Cooper.  He also played football for New Deal and is described in the lawsuit as a “talented football player and track athlete.”  However, in January, 2018, the student enrolled in Cooper. 

According to the lawsuit, the New Deal football coach tried to persuade The Player to return to New Deal.  In fact, he allegedly offered to allow another student, The Player’s good friend, to transfer into New Deal with him.  However, The Player’s father nixed the idea and The Player stayed at Cooper.   The suit tells us that the coach was not happy about the loss of his talented player and so he filed a complaint with the UIL, alleging that this move to Cooper was done for athletic purposes.  The UIL agreed with that, and barred The Player from competition for a year.

The father then sued the UIL and New Deal, alleging that this was all an improper effort to punish a student.  The dad argued that the move to Cooper was designed to get The Player, who was also a very good student, into a bigger district where more advanced classes would be available.  On top of that, Cooper was closer. So the dad argued that athletics was certainly not the primary consideration.

The UIL usually wins cases like this, and it won this one.  The father made three arguments, all of which fell short. First, the dad argued that The Player was denied the “equal protection” of the laws.   To prevail on that theory, the dad had to produce evidence of another student who was in a similar situation but was treated differently. The court held that the father had not found a “similarly situated” student to compare The Player with. So this claim failed.

The second theory was a denial of due process. The father complained about the UIL process. He was not allowed to cross examine witnesses. The UIL did not conduct an “evidentiary hearing.”  But the court had little trouble dismissing that argument as it has done numerous times before. The problem here for the dad is that “process” is not “due” unless a property right is implicated.  A student has a property right to attend school, but not a “right” to participate in UIL activities. Key Quote:

The court concludes that UIL did not violate [The Player’s] right to due process, because [his] interest in participating in interscholastic sports is not protected by the Due Process Clause.

The third argument was that The Player had been denied his right to a public education.  Nope. The court pointed out that The Player was making straight A’s at Cooper, and that the father had even acknowledged that he “thrives” at Cooper. So there was no loss of the right to a good education. 

Case dismissed. UIL transfer rule upheld once again.  But tune in tomorrow when we will toss a bit of religion into the mix.  Today’s case is Martinez v. UIL, decided by the federal court for the Western District of Texas on January 7, 2019. We found it at 2019 WL 122058.

DAWG BONE:  WHEN PROCESS IS NOT DUE YOU CAN’T CLAIM A DENIAL OF DUE PROCESS.  

Tomorrow: a “promesa” to God violates the dress code. What now?

On Toolbox Tuesdays we like to highlight court cases that illustrate key features of the Toolbox, which is a set of ten “tools” available to school administrators when dealing with students with disabilities who present challenging behaviors.  Physical restraint is not one of the ten tools, but we talk about it a lot during the full day Toolbox training.  We point out that physical restraint is an emergency option that has to be available, but should be used only in strict accordance with our laws and regulations. 

A case from Pennsylvania illustrates another point: over reliance on physical restraint is not a good thing.  In fact, one could conclude that if physical restraint is used too much, it indicates that the school’s plan for improving the student’s behavior is not working.

That’s what happened in this case.  The court held that “The persistent use of physical restraint over three years suggests that whatever ‘plan’ the district had in place was inadequate.”  Key Quote:

Even accepting the school district’s argument that its use of restraints was always reasonable, the persistent use of such a measure is a red flag.  A tool meant as a “last resort,” deployed dozens of times over three years, is strong evidence that the behavior plan was not working.

The court did not set out any specific boundaries, but simply concluded that using restraint over 25 times in three years is too much.  Perhaps it would be a good idea for ARD Committees to establish some parameters.  It would be foolish for an IEP to prohibit the use of physical restraint. We never know when this emergency measure may be needed. But it would be wise to set out some benchmarks, such as:

If it is necessary to use physical restraint on the student more than ____ times in a semester, the school will initiate an ARDC meeting to discuss the situation with the goal of reducing the need to use restraint.

This case carries one more good lesson for us about BIPs, which are Tool #1 in the Toolbox.  The court faulted the district for including a toileting goal in the student’s IEP without any plan for how the goal would be achieved. Key Quote:

The Court is reminded of the proverb, sometimes attributed to Antoine de Saint Exupery, and lately popularized by Coach Herm Edwards, that “a goal without a plan is a wish.”

There are two components to any good BIP.  You have to have a goal, and then a means of achieving the goal. The first part is easy. Anyone with common sense can articulate the behavioral goal. The hard part is the “how to achieve” part.  Here, the court faulted the district for omitting that part entirely.  So let’s not do that.

The case is Pottsgrove School District v. D.H., decided by the federal court for the Eastern District of Pennsylvania on September 10, 2018. We found it at 72 IDELR 271.

DAWG BONE: IF YOU HAVE TOO MANY “EMERGENCIES” REQUIRING PHYSICAL RESTRAINT, CONSIDER WHAT PROACTIVE STEPS YOU CAN TAKE TO STAY OUT OF EMERGENCY TERRITORY.

Tomorrow: we take a look at a transferring athlete.

Dear Dawg:  I’ve come to Austin for the Midwinter Conference and was planning to attend the Perspiring Superintendents’ Academy. I’ve heard so much about it, and since I hope to be a superintendent within the next couple of years, I thought this would be great for me. But no one seems to know where this group is meeting.  I’ve asked a lot of people and only drawn blank stares, shoulder shrugs and funny looks. Maybe you know, Dawg.  Do you?  Can you tell me where the Perspiring Superintendents can be found?  PERSPIRING MYSELF.

DEAR PERSPIRING:  We think maybe you mean the Aspiring Superintendents Academy, which started yesterday and is going on through Wednesday in conjunction with Midwinter.   If there is a Perspiring Superintendents Academy we suspect it is only available to those who have served as superintendent for enough years that they have at least three board members ready to fire them. That’s when the perspiring really kicks into high gear.

DAWG BONE: PUBLIC COMMENT CAUSES A LOT OF PERSPIRATION ALSO.

Tomorrow: Toolbox Tuesday addresses physical restraint.

When some students moved into Comal ISD from out of state they came with a transcript that recorded their grades with a letter: A, B, C, etc.  Comal converted those to numerical grades, “using [Comal’s] procedures for such situations.”  The parents complained that the resulting grades were inaccurate and carried their appeal to the Commissioner.

The Commissioner ruled that he did not have jurisdiction to hear this appeal. The parents alleged various theories, but none that amounted to a violation of the “school laws” of this state, which is the only thing the Commissioner has jurisdiction over.  The most interesting part of the decision comes in the commentary:

Because grades are so important to colleges, one may wonder why an appeal to the Commissioner would not be permitted in this case.  In the present case, the issue is how grades from a school that used a different grading scale should be valued when translated into Respondent’s [Comal ISD] grading scale. This is a question where there can be a reasonable disagreement.  Perhaps those best able to resolve this question are those who have been entrusted with creating a school district grading policy under T.E.C. section 28.0216.  The Legislature specifies certain requirements for school district grading policies. There are standards for when a classroom teacher assigns a grade. But the Legislature made no requirements concerning grades when students transfer from other school districts.

In other words: there is no state law on this.  The Commissioner suggests that this is a matter of policy that should be decided by those who “have been entrusted” with responsibility under T.E.C. 28.0216.  That section calls on the “school district” to adopt a grading policy.  Presumably that is done by the school board, which very likely delegates some of the details to administrators.

This one is Parents v. Comal ISD, decided by the Commissioner on September 6, 2018.  It’s Docket No. 033-R10-02-2018.

DAWG BONE: MIGHT BE A GOOD IDEA TO EXPLORE HOW YOUR DISTRICT HANDLES THIS.

Coming to Austin for the Midwinter Conference?  If so, I hope to see you!  Our firm’s reception is Tuesday the 29^th at 5pm at Fleming’s.