Today would be a good day for you to sign up for our firm’s next audio conference:

Navigating the Difficult Waters of Contentious ARDC Meetings

Captain Denise Hays and First Mate Jamie Turner will guide you through the rocky shoals and fast rising tides of these “difficult waters.”  This audio conference will be full of very practical input from two lawyers with considerable first-hand experience in difficult situations.  The audio conference is February 5 and you can sign up at our firm’s website: www.walshgallegos.com. 

DAWG BONE: AUDIOCONFERENCES: CONVENIENT, INEXPENSIVE, RELEVANT AND HELPFUL.

Tomorrow: In Virginia I had an A.  Here, they tell me I have a 93. Fair?

Consider this one:  The student had autism and epilepsy. After a seizure, her doctor prescribed Diastat, a medication that must be administered rectally after any seizure lasting more than two minutes.  The parents asked the school to provide a trained person on the bus to administer the medication if needed. The school eventually provided the aide, but did not amend the IEP to include this as a related service. Instead, the school listed the aide in the student’s IHP—Individual Health Plan.  The parents sued the district, claiming that the provision of the trained aide on the bus should be guaranteed by an IEP—not a Health Plan. 

The district court ruled for the school district, but the Circuit Court reversed this decision, holding that the IEP should have been amended to include the trained aide.  Therefore, the parents were prevailing parties and entitled to attorneys’ fees.

You must be wondering: “what difference does it make?”  As long as the school provided the service, why did it matter whether it was in the IHP or the IEP?  The court addressed that in a footnote:

Unlike an IEP, which incorporates a “Stay Put” component, meaning a student’s IEP cannot be changed or disregarded at will, an IHP, such as the one presented by the Board to L.H., has no stay-put safeguard.

Of course it also means the parents have now “prevailed” in an IDEA dispute. Attorneys’ fees.  The case of E.I.H. v. Fair Lawn Board of Education was decided by the 3^rd Circuit in an “unpublished” decision on September 5, 2018. We found it at 72 IDELR 263.

DAWG BONE: THAT’S A GOOD ILLUSTRATION OF THE STRONG PROCEDURAL PROTECTIONS AVAILABLE ONLY UNDER IDEA.

Tomorrow: Ever been to a Hard ARD?

On Tuesdays at the Daily Dawg we like to tell you about cases that illustrate how the ten tools in the Toolbox play out in practice. The Toolbox is a full day training program focusing on students with disabilities who are disruptive, non-compliant and/or violent. How can you serve students who engage in dangerous behaviors and maintain safety and order at the same time?  In the Toolbox we offer ten “tools.” I recently came across a case where several of them could be employed.

Consider this scenario, as described in a hearing officer’s decision in Pennsylvania:

On March 1, 2017, J.H. assaulted another student. A different student agreed to film J.H. assault the victim and share the video online. When J.H. approached the victim during lunch to talk, the victim offered J.H. a box of raisins.  Without provocation, J.H. abruptly grabbed the victim’s head and smashed it into his lunch on the cafeteria tabletop.  The victim became upset and struck J.H’s chest.  J.H., “still standing over the [victim], then wound up like a softball pitcher and delivered a fist punch to the left eye socket on the [victim’s] face.”  As a result, the victim suffered a broken nose and eye socket, a collapsed nasal cavity, an air pocket behind the left ear, and a concussion.

Yikes.  What tools might be used in this case?  There are at least four, and they would probably play out in this order:

*Tool #10: Call the cops.  The court’s decision does not tell us if this happened or not, but it certainly could have.  Administrators can report potential criminal activity to law enforcement. 

*Tool #5: Remove the student to an Interim Alternative Educational Setting (IAES) due to the infliction of a serious bodily injury.  We call this one Tool #5—Special Circumstances Removal.  The principal can order such a removal, even if the behavior is a manifestation of disability.  An IEP Team meeting is necessary, and the Team (ARDC in Texas) needs to make a manifestation determination, but the removal can take place regardless of the outcome.  The combination of a broken nose, a concussion and assorted other damage ought to qualify as a “serious” bodily injury.

*Tool #6: Long term disciplinary removal.  This is what the district actually did in this case. The district held an IEP Team meeting, concluded that the behavior was not a manifestation of disability, and then “the School Board voted to permanently expel J.H.”  Keep in mind that there is no such thing as the “permanent expulsion” of a student with a disability. The district still has a legal obligation to serve the student appropriately. This case does not tell us how the district would do that, but the district has to figure out a way.  You cannot “permanently expel” a student with a disability. That issue was not addressed in the court’s opinion, so we don’t know what was done.

*Tool #1: Consider a Behavior Intervention Plan.  IEP Teams are supposed to consider the use of positive behavior strategies when a student’s behavior impedes the learning of the student or of others.  This violent assault certainly “impeded the learning” of the poor kid who got beat up after offering a box of raisins.  Punishing the student who committed the assault may be perfectly appropriate, but the district should also consider what it needs to do to make sure that this never happens again.  A BIP is not required, but consideration of “positive behavior strategies, supports and interventions” would be a very good idea.

The parents in this case challenged the manifestation determination, but the court agreed with the hearing officer that this pre-planned attack was not caused by J.H.’s ADHD or Learning Disability:

It is unapparent to the Court how J.H.’s disability, or its impulsive effects and associated stressors, caused or directly and substantially related to a planned assault on another student.

The case is J.H. v. Rose Tree Media School District, decided by the federal court for the Eastern District of Pennsylvania on September 17, 2018.  We found it at 72 IDELR 265.

DAWG BONE: MDRs ARE ABOUT CAUSATION, NOT SOME DISTANT CONNECTION.

Health Plan or IEP: does it make any difference?

Here’s a common dilemma school administrators face.  Becky’s mom alleges that she has been bullied by Susan.  You’ve looked into it and found these allegations to be true.  Furthermore, the bullying was based on disability.  Your investigation found that Susan bullied Becky based on Becky’s low cognitive ability and the social awkwardness that came with it.  You’ve taken disciplinary action against Susan, assigning her to the DAEP for four weeks.  Now Becky’s mom wants to know what you did to Susan. How much can you say without violating Susan’s right to the privacy of her educational records? Can you say anything without violating FERPA?

The Family Policy Compliance Office (FPCO) addressed this in a letter to “anonymous” in 2017.  The context is important: the OCR had strong armed a school district into changing its policies to require that the complaining party be notified of the outcome of a disciplinary hearing. In other words, the district was required to tell Becky’s mom that Susan had been assigned to DAEP for four weeks.  “Anonymous” asked a logical question: doesn’t that violate FERPA?

FPCO said that it does not.  Key Quotes:

The Department [of Education] has long interpreted FERPA as not conflicting with the requirement in Title IX that a school notify the harassed student of the outcome of the investigation.

The Department also has long viewed FERPA as permitting a school to disclose to the parent of the harassed student….information about the sanction imposed upon the student who was found to have engaged in harassment when the sanction directly relates to the harassed student.

FPCO opines that there is no conflict between FERPA, which requires privacy, and the civil rights laws (504, Title IX, Title VI) which require disclosure.  But the letter goes on to say that even if there is a conflict, the civil rights laws take precedence.  FPCO cites:

Congressional intent that, if there is a direct conflict between the laws, FERPA should not be construed to affect the applicability of these civil rights laws, such as Title V, [disability] Title VI, [race] and Title IX [sex].

One more wrinkle is worth mentioning.  In our hypothetical, we made the bullying into a civil rights issue by positing that the bullying was based on disability. What if it wasn’t? What if Susan bullied Becky but it had to do with taste in music, or fashion, or maybe choice of boyfriend?  In that case, this FPCO letter is not relevant. The FPCO letter is limited to situations that invoke civil rights protection for the complaining party. Thus if the complaint is about discrimination based on race, sex, disability, religion or national origin, the FPCO letter applies.  But not to a garden variety complaint of bullying.

That kind of distinction can lead to some head scratching among school administrators.   Let us know if we can help with that. 

The Letter to Anonymous is dated August 1, 2017. We found it at 117 LRP 46530.

DAWG BONE: GOOD FOR “ANONYMOUS” ASKING THE QUESTIONS WE ARE AFRAID TO ASK.

Tomorrow: Toolbox Tuesday!!

Members of an organization called the Feminist Majority Foundation allege that they were viciously bullied and sexually harassed while attending the University of Mary Washington.  They sued the university under Title IX.  Now the 4^th Circuit has held that the university may face liability. What makes the case particularly interesting is that the harassment was done by anonymous people using an app designed to maintain their anonymity.  The app is Yik Yak, which is no longer available. Here’s an interesting article about it from the New York Times: https://www.nytimes.com/2017/05/27/style/yik-yak-bullying-mary-washington.html

The “yaks” that emanated from Yik Yak were disgusting. In a K-12 context we would call it bullying.  But no one knows who sent them.  The app was designed to be used only in a small geographic area around the sender, so we do know that the “yaks” came from the university campus or nearby. Were they from other students?  Probably—but we just don’t know for sure, and neither did the university administrators.  The plaintiffs in the case alleged that the anonymity of the Yakkers was irrelevant, that there were a lot of things the university could have done to stop the harassment.  The majority of the judges on the 4^th Circuit agreed.

Consider the implications of this decision for K-12 schools.  We do know that schools have jurisdiction over students who engage in cyber bullying, whether that takes place on campus or not. Certainly, if the school can identify who is doing the bullying it can, and must, take corrective action.  Here, the university did not know who was harassing the students, but the court holds the university responsible for its failure to pursue the identities of the bullies more aggressively. 

The issue comes down to a matter of control.  Title IX liability can be imposed on a school only if the school has “substantial control” over the harasser and the context of the harassment.  Thus a school may face liability if the harassment is done by students on school grounds, on the bus, or at a school event.   But here, the university did not know who was doing it, or where they were doing it.  Moreover, the bullies did not use university facilities or equipment to send these hateful “yaks.” They used their own devices, and only had to be within striking distance of the university campus. The majority of the 4^th Circuit judges basically took the position that the school could have and should have done more.

There was a dissenting opinion. The dissenting judge concludes with an invitation for the university to take the matter up with our highest court:

Make no mistake, the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education, until the Supreme Court reaffirms that Davis means what it says. Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims.  The University should not hesitate to seek further review. 

It will be interesting to see if SCOTUS takes this one.  It would certainly shine a spotlight on Justice Kavanaugh after the controversy over his confirmation.  This one is Feminist Majority Foundation v. Hurley, decided by the 4^th Circuit on December 19, 2018.  We found it at 2018 WL 6625847.

DAWG BONE: THIS ONE’S NOT OVER. STAY TUNED.

Enjoy the weekend, Readers!

The court held that the district did not discriminate against the student with Asperger’s in connection with the tennis team.  The coach used “challenge matches” to determine who would participate in tournaments, and the student with Asperger’s lost.  This was not discriminatory.

As this case demonstrates, when there are more students who want to participate on a team than the school has room for, the school can make its decisions based on athletic ability.  This student was not excluded from the team, but she was not eligible for tournament play because she failed to win a “challenge match.” 

It sounds like the coach discriminated based on ability—not disability. That’s what coaches are supposed to do.  The case is Clemons v. Shelby County Board of Education, decided by the federal court in the Western District of Kentucky on March 23, 2018. We found it at 72 IDELR 24.

DAWG BONE:  DISCRIMINATE BASED ON ABILITY—NOT DISABILITY.

Tomorrow: The Yik Yak Case from  the 4^th Circuit.

When the little girl woke up she was in a dark, empty school bus, parked in the bus barn.  She was unable to get herself out of the safety seat.  When her mom showed up at the Head Start program to serve as a chaperone for a field trip, she was surprised to find out that her four-year old daughter had not been dropped off that morning. No one had told her. Mom immediately called the bus driver who responded “Oh my God!....I’ll call you right back.”  Click. 

Whoops.  You can guess how this happened.  The little girl fell asleep on the bus and the driver failed to check to make sure that everyone got off at the Head Start program. The driver then delivered the bus to the barn, and went on about her day.   The four-year old was left alone on the bus for about 75 minutes before she was rescued. 

The lawsuit alleged that this was not only an act of negligence—it was a violation of the U.S. Constitution. Specifically, the allegation is that the school district “seized” the child in a way that is governed by the 4^th Amendment. 

Cases alleging an illegal “seizure” usually involve handcuffs, or other use of force by law enforcement—not buckling a child into a safety seat on the school bus.  Obviously the original “seizure” was simply designed to guarantee safety.  No problem there.  But the court noted that “a seizure under the 4^th Amendment that starts out reasonable….can become unreasonable based on duration or other circumstances.”

The court held that the mom had alleged a plausible case and thus it refused to dismiss the 4^th Amendment claim.  In support of its ruling the court cited the casual remark of the superintendent’s executive assistant that “things like this” happen “four or five times a year.”

They do????  And we have not put in place practices to ensure that it never happens again?

The plaintiff in this cases is urging a creative legal theory designed to take an ordinary tort that should be litigated in state court and turn it into a federal case under the Constitution. I don’t know how this one will eventually come out, but the point is pretty clear.  See the Dawg Bone. 

The case of Pozos Leon v. Tillamook County School District, was decided by the federal court in Oregon on May 11, 2018. We found it at 72 IDELR 61.

DAWG BONE: LET’S JUST WALK AROUND THAT BUS ONE MORE TIME.

Tomorrow: challenge matches in tennis and Asperger’s Syndrome.

I’m looking forward to another year of Toolbox presentations, and in fact, working on the New and Improved Toolbox 4.0!  One of the questions I sometimes get about the Toolbox has to do with parental allegations of “predetermination.”  Three of the ten tools in the Toolbox involve a change of placement.  The question arises: how can the school administration seek a change of placement without being accused of predetermining the outcome?

As we make clear in the Toolbox, all three of the “change of placement” tools (Tools #2, #3 and #6) can only be used by the ARD Committee. The role of the administrator is to recommend a change of placement and foster a healthy and open discussion about it both with school staff and the parent. 

A recent court case from Hawaii makes the point nicely.  The court held that the district did not predetermine placement or deny the parents’ meaningful participation in the process.  Moreover, the LRE decision was properly made. As is typical, the parents who claimed denial of meaningful participation were very extensively involved in the process. They participated in all five (FIVE!) IEP Team meetings and are cited in the court’s opinion as providing input that the team took seriously.  The case is a good one for school staff to study regarding placement in the LRE. The team used a worksheet and made notes on it pertaining to the pros and cons of each possible placement on the continuum. The worksheet was based on the factors for consideration as outlined by 9^th Circuit case law.

A worksheet based on the legal factors!! That’s good documentation, particularly if accompanied by a record of the meeting that demonstrates a healthy and open discussion of all options.  Remember: the administrative rep at the ARDC is not the quarterback calling the play in the huddle.  The administrative rep leads the team, but does so by listening and synthesizing the opinions and recommendations of team members. 

The case is J.G. v. State of Hawaii DOE, decided by the federal court for the State of Hawaii on August 7, 2018. We found it at 72 IDELR 219.

DAWG BONE: PRINCIPALS KEEP REPEATING: I AM NOT THE QUARTERBACK. I AM NOT THE QUARTERBACK.  I AM NOT THE QUARTERBACK.

Tomorrow: a little girl gets left on a dark and empty school bus. 

The plaintiff in a case pending in East Texas alleges that a school district and its administrators valued the football team at the expense of a female student who was secretly recorded changing clothes.  The court has tossed out several of the legal claims in this case, but the Title IX claim is still alive.

The secret recording occurred off campus in April 2016, but it was not reported to the school until the following February—10 months later.  By that time, according to the suit, the video had been widely shared among students on campus, including by members of the football team in the locker room. The suit alleges that the mother reported the incident to the principal and the superintendent, and further alleges that neither of them made good on their promise to investigate and take action. 

Those bare bones allegations were not enough to allege any possible liability under the U.S. Constitution. Claims of denial of Due Process and Equal Protection against the district and three administrators were dismissed.  However, the court refused to dismiss the Title IX sexual harassment claims against the district. Thus all of the individual defendants in this case—superintendent, principal and football coach—have been dismissed from the case. But the district remains exposed to possible liability for a Title IX violation.

Here’s the standard: the plaintiffs have to prove:

• the plaintiff was sexually harassed;
• it was really bad (the legalese is “severe, pervasive, and objectively offensive”);
• the school knew about it;
• the school’s response was “deliberately indifferent”; and
• the plaintiff suffered as a result.

Here’s how the court viewed the matter:

If, as Plaintiff alleges, (1) Plaintiff reported the continued distribution of the video and resulting harassment, (2) [the principal] and [the superintendent] knew of students viewing the video on campus, and (3) the school undertook no further investigation other than to ask [the football coach] about the incident, it could reasonably be inferred that the school’s actions were clearly unreasonable in light of the known circumstances.

The court also thought the claim of an “unofficial policy” was plausible:

Plaintiff alleges that Carthage ISD employees, acting pursuant to a known and established yet unwritten custom and practice, conspired amongst themselves to hide allegations of sexual harassment in order to protect a football player and the school’s football program and Carthage ISD failed to investigate and report the misconduct and harassment, which involved on-campus occurrences and faculty members.  If taken as true, these allegations support a reasonable inference that Carthage ISD’s policy or custom of inadequately investigating reports of sexual harassment involving football players resulted in Plaintiff’s suffering and the continuous on-campus harassment that she has endured.

This case has a long way to go.  The plaintiff got over this initial hurdle, but still faces a heavy burden of proof. At this stage of the game the court is required to assume the truth of the allegations in the suit, and to give the plaintiff every benefit of the doubt.  Going forward, however, the district will certainly dispute the alleged facts, particularly the accusation of “deliberate indifference.” Whatever documentation the district can produce to show that it took the allegations seriously will be of critical importance.

The case is Harvey v. Carthage ISD, pending in the Eastern District of Texas. The judge issued his order on November 21, 2018. We’ll keep an eye on this one for you.

DAWG BONE: OLD LESSON—DOCUMENT, DOCUMENT, DOCUMENT.

Tomorrow: Toolbox Tuesday!!

Commissioner Morath has ruled that United ISD should have given a group of parents a hearing before the school board about the removal of a banner from the middle school gym.  The parents allege that the banner was removed as an act of retaliation, designed to punish these parents for pursuing complaints of bullying.

Removal of a banner?  Yes—that’s what this was about.  The banner honored the school’s Dance Team which took home national honors in 2014-15.  The banner, which included the photograph of the parents’ child, was replaced with the picture of another team that was less successful.  The parental complaint about this has made it to T.E.A.

The Commissioner expressed no opinion about whether the banner should stay or go.  Nor did he tell us if the district had acted with a retaliatory motive.  All he said was that the board should have heard the matter.

The board refused to hear the complaint, delegating it instead to a committee that was created to hear complaints pertaining to extracurricular activities.  After all, the Texas Education Code now includes this provision:

The board of trustees of a school district is not required….to address a complaint that the board receives concerning a student’s participation in an extracurricular activity that does not involve a violation of a right guaranteed by this chapter [Chapter 26—Parent Rights and Responsibilities]. Texas Education Code 26.011(b).

The first part of that statute seems designed to keep routine gripes about playing time (“you shoulda played my kid at left cornerback!”) or cheerleading (“my girl should be head cheerleader!”) away from the school board. But the last part of the statute guarantees that parents will get a board hearing if they are complaining of denial of their own rights under Chapter 26.  In this case, the Commissioner ruled that the complaint was not about “a student’s participation in an extracurricular activity.” It was about “violation of a right guaranteed” by Chapter 26.   So the board should have heard it.

The Commissioner sent the case back to United ISD for a full hearing on the merits. Bannergate continues, and eventually, perhaps we will find out why the banner was replaced.  Other parental complaints were dismissed. The Commissioner ruled that the folks in United did not act in bad faith; the complaint of unethical action by the principal should have gone to SBEC, and thus, was dismissed; the request for the discharge of the principal and cheerleader sponsor was dismissed.

The case of Parents v. United ISD was decided by the Commissioner on December 15, 2018.  It’s Docket No. 035-R10-03-2018.

DAWG BONE: NOT EVEN THE SIMPLEST DECISION IS BEYOND THE REACH OF THE LAW.

Have a good weekend, Readers. We’ll be back on Monday!