The inspiration for today’s Daily Dawg comes from Kahlil Gibran who wrote:

Your children are not your children.
They are the sons and daughters of Life’s longing for itself.
They come through you but not from you,
And though they are with you yet they belong not to you.

So when they turn 18 and want nothing to do with special education, there’s not much the parent can do about it.  That’s why Elizabeth Harris’s suit against the Cleveland City Board of Education was dismissed.  She said the district violated IDEA by serving her son poorly.  The young man declined to participate in the suit. The court dismissed the case in prose, not poetry:

When Michael turned 18 on March 31, 2017, all rights under the IDEA transferred to him. Therefore, when Michael declined special education services during the April 25, 2017 meeting with school personnel, his position was controlling.

As Gibran puts it:

You are the bows from which your children as living arrows are sent forth. 

Ms. Harris’s arrow has left the bow.  The case is Harris v. Cleveland City Board of Education, decided by the federal court for the Eastern District of Tennessee on March 1, 2018.  We found it at 71 IDELR 189.

DAWG BONE: MIGHT BE A GOOD IDEA TO READ THIS POEM AT EVERY TRANSITION MEETING.

The 6^th Circuit Court of Appeals has opened the door to school district liability for a horrific bus crash that killed six students.  The case is important for us in Texas because the theory of liability is not based on state law (Tennessee), but federal law. Thus a court in Texas could apply the same reasoning.

Let’s first review some basics of tort liability for Texas school districts.  If a school bus driver is negligent in operating the bus, and someone gets hurt, the school district faces liability.  This is the only tort for which a school district can be liable under state law.  The amount of liability is capped by state law at $300,000 per occurrence.  That figure would not begin to compensate for the death of six children.

I don’t know what the law is in Tennessee, but I’m guessing they have similar protection for public school districts, which may explain why the plaintiffs are bringing their case under federal law.  There are no caps there.

The lower court dismissed the case, concluding that there was no basis for liability here under federal law.  The appellate court agreed with that decision in one respect—that Durham Transportation should be dismissed from the case.  But the court held open the possibility that the district could be held liable. The district contracted with Durham, a private company, to provide bus service.

DURHAM: Since this is a case alleging a violation of the U.S. Constitution, the plaintiffs have to prove that the harm was caused by “state actors” as opposed to private parties. The court held that Durham Transportation was a private party, even though it had a contract with the district and received considerable funding from the district.  Thus Durham might face liability under state law, but not under the U.S. Constitution.

THE DISTRICT: The court held that the pleadings in the case alleged facts that might be enough to impose liability on the district under the “state created danger” theory.  According to the plaintiff, there were “numerous complaints” about reckless driving by the bus driver. The district allegedly knew about these complaints, but did nothing about it.  Here is the plaintiff’s case in a nutshell:

Plaintiffs have alleged that (1) the principal committed affirmative acts by instructing the schoolchildren to board Walker’s bus; (2) this direction endangered the students because of Walker’s dangerous driving; (3) this danger was specific to those students; (4) the principal was sufficiently culpable because she knew that Walker’s driving was dangerous.

The court held that if the plaintiff could prove the truth of these allegations, liability might be proper.  Might be.  The case has a long way to go and the plaintiffs face a heavy burden of proof. At this stage the court is only telling us that it was too early to toss this case out.

The case is M.S. v. Hamilton County DOE, decided by the 6^th Circuit on November 1, 2018.  We found it at 2018 WL 5734642.

DAWG BONE: IF THERE ARE COMPLAINTS ABOUT A BUS DRIVER BE SURE THERE IS A PAPER TRAIL TO PROVE THAT YOU DID SOMETHING ABOUT IT.

In the Toolbox training we emphasize that physical restraint should always be available as an option for schools to deal with unexpected emergencies in which serious physical injury or property destruction is threatened.  But if physical restraint of a particular child is used repeatedly, it’s time for the school to come up with a better plan. Failure to do so can lead to legal consequences.

In a California case, the court held that individual educators were potentially liable for an unconstitutional seizure of the student due to 112 instances of physical restraint over a three year period.  Restraint was authorized by state law and consented to by the parents. But the school failed to follow some of its guidelines and the court was bothered by the sheer number.  The court refused to grant qualified immunity to the educators. Key Quote:

Here, Plaintiff has alleged a minimum of 112 instances of restraint  and containment, and 2,719 minutes of isolation over the course of three years.  At the most basic level, then, Plaintiff’s allegations are not necessarily that every individual instance of restraint or containment was unconstitutional but that the totality of the number of such uses of therapeutic containment coupled with Defendants’ failure to inform the parents of what they were doing, as well as their failure to prepare behavioral emergency reports, failure to hold IEP meetings, and/or failure to conduct functional analysis assessment reports has resulted in a violation of [the student’s] right to be free from unwarranted or unreasonable seizure at school.  That right was clearly established at the time of the alleged violations.

Notice: it was not the use of restraint alone, but the failure to keep the parents informed or to take proactive measures to come up with a better plan that caused the problem.  The educators have appealed this ruling to the 9^th Circuit where the case is pending.

We talk about things like this in the Toolbox Training provided by our law firm. If interested, let me hear from you.

The case of A.T. v. Dry Creek Joint Elementary School District, was decided by the federal district court for the Eastern District of California on June 19, 2018.  We found it at 72 IDELR 122 and 316 F.Supp.3d 1204.

DAWG BONE: PHYSICAL RESTRAINT IS NEVER A GOOD THING.  DON’T LET IT BECOME A CONSTANT PRACTICE.

The word “discrimination” hangs out in a bad neighborhood.  It gets tossed around so loosely that we sometimes forget that discrimination is not always a bad thing.  Treating employees differently is legal, as long as there is a legitimate reason for the differential treatment.  So when an employee, (a.k.a. “the plaintiff”) alleges that he’s the victim of “discrimination” he might be right, and yet, lose his case.  When an employee (plaintiff) alleges that he is paid less than others, he might be right…but not victorious in his lawsuit.

This is one of the lessons of the recent decision of the federal district court in Crain v. Judson ISD. Mr. Crain alleged that he was discriminated against and that he was paid less than other employees in the district. He was right about that.  But his case broke down when the district provided the reasons for the differential treatment.

The best example of this was Mr. Crain’s comparison of himself with Ms. Beitel.  Both were special education teachers.  Mr. Crain had more years of experience, and yet he was paid less than Ms. Beitel.  Mr. Crain alleged that this proved sex discrimination.

Nope.  Mr. Crain’s total compensation was $55,450.  Ms. Beitel made $55,750, despite the fact that he had 16 years of experience and she had only five.  But the district produced evidence that explained the difference:

Mr. Crain                                                    Ms. Beitel

Base salary:              $53,450                                                       $50,750

Stipend:                            2,000                                                             2,000

Master’s degree:                                                                                   1,500

Department Chair:                                                                              1,500

TOTAL:                           55,450                                                          55,750

Due to his greater experience Mr. Crain had a bigger base salary. They both received the $2000 stipend for teaching a particular special education class.  But Ms. Beitel had a Master’s degree and served as department chair.  So she made more than he did, and it had nothing to do with sex.

Mr. Crain’s sex discrimination claim was just one of many allegations he made against the district.  There were also claims of racial discrimination and retaliatory actions by the district.  However, the district marshaled strong evidence to refute every claim.  As with the claim about Ms. Beitel, Mr. Crain was able to produce evidence that other employees were treated differently than he was, but the district consistently produced the legitimate, non-discriminatory and non-retaliatory reasons for differential treatment.  Mr. Crain was not the victim of illegal discrimination or retaliation.

The case of Crain v. Judson ISD was decided by the federal court for the Western District of Texas on October 26, 2018.  We found it at 2018 WL 5315219.  I’m pleased to let you know that Craig Wood and Katie Payne from our firm’s San Antonio office represented the district on this one.

DAWG BONE: DISCRIMINATION’S NOT A BAD THING.  DISCRIMINATION BASED ON RACE, SEX, DISABILITY, RELIGION OR AGE IS A BAD THING.

The Department of Education has published its proposed new regulations concerning Title IX investigations and hearings.  Now is the time for educators and their professional organizations to speak up.  Of course everyone is free to comment about anything, but the DOE has specifically identified nine areas where they solicit feedback, and the first one is about the application of these regs in the K-12 world.  Key Quote:

The Department is interested in whether there are parts of the proposed rule that will be unworkable at the elementary and secondary school level…

My first response to that is: where shall we start?  Unworkable?  Yes—unless the DOE is going to provide a massive infusion of money to retain and train coordinators, investigators and decision makers.  The formality of the process laid out in the regulations is designed to ensure due process.  Maybe it does that, but it also creates a legalistic, formal, costly process.  The grievance procedures required by the proposed regulations are every bit as legalistic, formal and costly as are the procedures for special education due process hearings. Thus we can safely predict that a cottage industry will rise up to advise and train school personnel regarding all this process.

So now is the time to study the impact of the proposed regulations, and provide comments. I feel sure that the national Council of School Attorneys will be making some comments.  I will stay on top of that and let you know what the COSA lawyers think about all this.

DAWG BONE: GO TO WWW.REGULATIONS.GOV TO MAKE COMMENTS ELECTRONICALLY.

See you next week!

The proposed new Title IX regulations include complex, formal procedures for schools to investigate allegations of sexual harassment.  Here are the highlights in Section 34 CFR 106.45 of the proposed regulations.

EQUITY.   A consistent theme in the regulations is equity. Treat the complaining party and the complained-of party the same.  Failure to do so can be considered a Title IX violation.

BURDEN OF PROOF.  The proposed regulations put the burden of proof and the burden of gathering evidence on neither party.  Instead, it’s the school’s responsibility to gather enough evidence and have a sufficient foundation for its decision.

PRESUMPTION OF INNOCENCE.  The school’s procedures would be required to “Include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.”  This is the familiar notion of “innocent until proven guilty.” That standard is required by law only in criminal cases, but here, proposed Title IX regs incorporate it.

STANDARDS FOR YOUR PROCEDURES.  For the first time, the DOE proposes specific procedures that all Title IX recipients must have in place.  To say that they are complicated is an understatement.  The procedures require a process that involves 1) a formal complaint; 2) written notice of the allegations to the respondent, prior to any initial interview; 3) equal opportunity for both parties to present witnesses and evidence, to examine the evidence, and to be accompanied by an advisor of their choice.

INVESTIGATIVE REPORT.  The school would be required to produce a written “investigative report” prior to any hearing.  But you can’t write the report until you share the evidence with both parties and give them a chance to respond.  Then you can write a report, which must be provided to the parties prior to a hearing.

TO SUMMARIZE.  So the process involves 1) notice; 2) gathering of evidence; 3) sharing of evidence; 4) writing a report; and only after all of that 5) a hearing.  The hearing would then be followed by a final written determination, including any sanctions imposed on the respondent and any remedies offered to the complaining party.  The proposed regulations allow for the hearing at the K-12 level to be less formal than a hearing in higher education.

If these regulations go into effect we are going to have to learn some new vocabulary. The regs draw a distinction between 1) the Title IX Coordinator; 2) investigators; and 3) decision makers (DM).  The DM cannot be the Coordinator or the investigator.  The investigator investigates and writes the report for consideration by the DM.  It’s complicated. It’s going to be expensive and difficult to implement.

DAWG BONE: THIS WILL BE DIFFICULT FOR LARGE DISTRICTS.  IMPOSSIBLE FOR SMALL ONES.

Tomorrow: Some Friday thoughts about these proposed regulations.

The Department of Education has issued proposed regulations pursuant to Title IX.  These proposed regs have a long way to go. There will be a 60-day public comment period, following which the DOE will sift through all of the comments before making changes and finalizing the  regulations.  The primary focus of the proposed regulations is to provide guidance to schools, colleges and universities about when and how they are required to investigate complaints of sexual harassment.  Today we will hit the highlights of proposed new regulation 34 CFR 106.44, and tomorrow we will do the same with 106.45.

Section 34 CFR 106.44, as proposed, is titled RECIPIENT’S RESPONSE TO SEXUAL HARASSMENT. Here are six key points included in this one regulation:

1. WHAT YOU KNEW. NOT WHAT YOU SHOULD HAVE KNOWN.  When does your legal duty arise?  DOE proposes to stick to the standard used by the Supreme Court, rather than the more aggressive approach promoted by DOE under President Obama.  The Supreme Court standard imposes a legal duty on a school district only when the school has “actual knowledge of sexual harassment in an education program or activity.”
2. HOW TO RESPOND. Again, sticking with SCOTUS rulings, the DOE only requires the school to avoid being labeled “deliberately indifferent” in its response to complaints of sexual harassment.
3. A SAFE HARBOR. Schools are guaranteed to avoid the “deliberately indifferent” label with regard to “formal complaints” if they comply with the procedures set out in 106.45, which we will talk about tomorrow.
4. EMERGENCY REMOVAL. A school may order the emergency removal of a student. But there are four important limitations on this authority.  First, the school must conduct “an individualized safety and risk analysis”; second, the school must make a determination that “an immediate threat to the health or safety of students or employees justifies removal”; third, the school must provide the respondent with notice and an opportunity to challenge the decision immediately following the removal.  Fourth and most important for K-12 schools: “This provision shall not be construed to modify any rights under the IDEA, Section 504 of the Rehabilitation Act of 1973, or title II of the Americans with Disabilities Act.”  So if an IDEA or 504 eligible student is charged with sexual harassment, any “emergency removal” would have to conform with the usual procedures.  The proposed regulations do not override those protections.
5. ADMINISTRATIVE LEAVE. The “emergency removal” provision appears to be about students, rather than employees, because the very next provision assures schools that they can still put employees on administrative leave “during the pendency of an investigation.”
6. WHO KNEW? The proposed regulations state clearly that “constructive knowledge” (what you should have known) does not create a legal duty.  Nor does the fact that someone who works for the school knows about sexual harassment.  The legal duty arises when “the school” knows. So what does that mean?  The proposed regs set out three categories of employees whose knowledge of sexual harassment would be imputed to the school. They are 1) the Title IX Coordinator; 2) “any official of the recipient who has authority to institute corrective measures on behalf of the recipient”; and 3) “a teacher in the elementary and secondary context with regard to student-on-student harassment.”

Tune in tomorrow for some comments about 34 CFR 106.45.

DAWG BONE: WHAT DID YOU KNOW? WHEN DID YOU KNOW IT? WHAT DID YOU DO ABOUT IT?

Tomorrow: More on the new Title IX regulations.

The Toolbox is an all day training program for school administrators and special education staff to better serve students with disabilities who present challenging, sometime violent, behaviors.  We offer ten “tools” that the law authorizes.  Only one of those tools authorizes a campus principal to order a long term removal unilaterally: Tool #5—a removal due to “special circumstances.”  Specifically, the law allows the immediate removal of a student to an “interim alternative educational setting” if the student violates the code of conduct through 1) the use or possession of drugs; 2) use or possession of a weapon; or 3) the infliction of “serious bodily injury.”  Today we highlight a case from Washington, D.C. involving serious bodily injury.

The student, who had an emotional disturbance, repeatedly punched another student in the head, causing a concussion.  Even though the IEP Team concluded that this violent outburst was a manifestation of the boy’s emotional disturbance, the principal ordered the student removed from the placement called for in his IEP.  Because the incident involved a bodily injury that was “serious” the principal had the authority to do this. We refer to this as Tool #5.  The principal can order the removal, but an IEP Team meeting (ARD) is necessary to select the “interim alternative educational setting” that will be used.

So far so good. But a Tool #5 removal is capped at 45 school days, and in this case, the school  refused to allow the student to return after the 45 days.  The school continued to believe that the student’s presence would be dangerous to others, and thus it would not re-admit the student.

That was a mistake.  After a careful review of the regulations, the court noted that after the 45 days, “the School cannot unilaterally continue to exclude [the student].”   Instead, the school would have to get approval from a judge or a hearing officer to extend the student’s exclusion due to safety concerns.

In Toolbox training we put a lot of emphasize on the word “unilateral.”  In the only Supreme Court case involving special education discipline the High Court noted that Congress had deliberately stripped schools of the authority to “unilaterally” remove students from school due to misconduct.  However, Congress has since restored that unilateral authority in the three “special circumstances.”

This case illustrates a principal using his unilateral authority to the max—the full 45 days.  But when the principal tried to go beyond the 45 days the court stopped him, and reminded him that he would need the approval of a court or hearing officer to do that.

In Toolbox terminology, the principal successfully used Tool #5 and was stopped short from extending the student’s removal. There is another tool that authorizes that (Tool #4) but it requires judicial or hearing officer approval.

Sound interesting?  Sound useful? If you want to know more about the Toolbox, let me hear from you! This case is Olu-Cole v. E.L. Haynes Public Charter School, 71 IDELR 194; 292 F.Supp.3d 413 (D.C.D.C. 2018).

DAWG BONE: TOOL #5 IS THE PRINCIPAL’S TOOL, TO BE USED WISELY, RARELY, AND CAREFULLY.

Tomorrow: Our first look at the proposed Title IX regulations.

A student identified as A.H. was a senior at Evanston Township High School in Illinois and a gifted athlete, participating in swimming, cross country and track.  He had been on the track team throughout high school and never missed a track meet.  However, A.H. never qualified for the state track meet or the prestigious 5K Road Race. He was not fast enough.

That was probably because he had spastic quadriplegia related to cerebral palsy.  While A.H. was considered an elite athlete in the disabled community and he competed in the U.S. Paralympic Trials in 2016, he was never going to qualify for the Illinois State Track Meet. We can be pretty sure about that.  A.H.’s combination of disabilities put him in the T-36 category of disability.  As the court noted, “world record holders in the T-36 classification would be unable to achieve any of the qualifying times” for the state track meet.

Illinois, like Texas, offers wheelchair events at the state meet. But A.H. did not compete in a wheelchair. He was a runner. In fact, he ran the 1600 meter race for his high school team at Sectionals and throughout his cross country career he had never finished last.  That is pretty impressive.  So the argument here was not about the student’s participation on the team.  It was about making it to the State Track Meet.

A.H. requested three accommodations: 1) a modified starting block in short races; 2) creation of separate time standards for para-ambulatory athletes to qualify for the state meet; and 3) a separate division for para-ambulatory athletes in the state’s 5K Road Race.  He got the modified starting block but was turned down on the other two requests.

The 7^th Circuit held that A.H. was not entitled to separate time standards or a separate para-ambulatory division. The closest argument was over the separate division.  The court noted that many states have such a division, but that does not mean that they have to.  The court concluded that creating a separate division for athletes like A.H. would make it easier for him to qualify for the state meet. Thus it would give him an unfair advantage over other athletes. Therefore, it would be a “fundamental alteration” of the program.  Key Quote:

The Supreme Court and this Court have recognized that lowering particular eligibility or qualifying requirements established by an entity can be substantial modifications that are unreasonable.

 These are always difficult cases. There is a natural sympathy in favor of the student with a disability who wants to participate in athletics.  This is balanced against a desire to ensure fair competition.  Any accommodation that would guarantee a student’s success in athletics is probably “unreasonable.”  There are no guarantees in athletic competition for anyone.  Guaranteed success goes against the very nature of competition. That’s why it’s considered a “fundamental alteration.”

There was a strong dissent in this case. The dissenting judge did not perceive that A.H. was seeking guaranteed success, but rather, a chance to compete against similarly situated athletes. The dissenting judge pointed out that Illinois offered several separate divisions: boys competed only against boys; girls against girls; wheelchair athletes against those similarly situated. In fact, Illinois even offered a separate division for small schools. So this judge did not think it at all “unreasonable” for A.H. to have a separate division for athletes like himself.

The case of A.H. v. Illinois High School Association was decided by the 7^th Circuit Court of Appeals on February 2, 2018. We found it at 881 F.3d 587 and 71 IDELR 121.

DAWG BONE: WHAT’S “REASONABLE” IS OFTEN HARD TO FIGURE OUT.

Tomorrow: A principal wields “unilateral” power on Toolbox Tuesday!

In the process of ruling in favor of a school district in a special education dispute, the 3^rd Circuit Court of Appeals had little good to say about some guidance from the Department of Education.  The case was about just how ambitious an IEP should be.  The little girl at the center of the dispute was below grade level, making slow progress.  The parents relied on a guidance letter issued by OSERS in 2015, to support their belief that a proper IEP would call for the student to achieve at grade level. The court summarizes and quotes from the letter:

“Research has demonstrated that children with disabilities who struggle in reading and mathematics can successfully learn grade level content and make significant academic progress when appropriate instruction, services, and supports are provided.”  It also instructs that “the annual goals…should be sufficiently ambitious to help close the gap” between the child’s current and grade level achievements.

The court concluded that the parents “overread the letter.”  Key Quote:

The letter sets forth research and aspirational goals, which may be helpful for some children. But while it aspires to “close the gap,” it does not specifically require grade-level goals for children who are not and cannot be fully integrated into regular classrooms. It never mentions a presumption.  Nor does it suggest that all (or even most) disabled children can advance at a grade-level pace.

On top of that, the court noted that a “guidance letter” from the Department of Education carries no legal weight:

Even if the letter could be read as relevant, it would neither bind nor persuade us.  Guidance letters do not enjoy Chevron deference.  And this guidance letter does not address the IDEA’s language, let alone parse it.

The Circuit Court affirmed decisions by the hearing officer and the district court that the student received FAPE and thus the parents were not entitled to tuition reimbursement.  The court held that Endrew F. did not change the standard for FAPE in the 3^rd Circuit.  By this time, the Endrew decision had sparked a national debate over what FAPE means, with many parents and advocates arguing that the SCOTUS ruling had significantly raised the bar.  After all, the Supreme Court told us that all special education students should have IEP goals that are “appropriately ambitious.”  Is it OK for a student to continually lag behind her peers?  Here’s what the Circuit Court said:

IEPs must be reasonable, not ideal. Though her parents argue otherwise, K.D.’s slow progress does not prove that her IEPs were deficient.

While courts can expect fully integrated students to advance with their grades, they cannot necessarily expect the same of less-integrated students…..[K.D.] received supplemental learning support for much of the day. So there is no reason to presume that she should advance at the same pace as her grade-level peers.

We should take seriously the admonition from SCOTUS to develop IEP goals that are “appropriately ambitious.” But as this case illustrates, sometimes parents may be seeking an IEP that is overly ambitious.  If it is overly ambitious it is inappropriately ambitious.

The case of K.D. v. Downingtown Area School District, was decided by the Third Circuit Court of Appeals on September 18, 2018. We found it at 72 IDELR 161.

DAWG BONE: IT’S THE GOLDILOCKS RULE: IEP GOALS THAT ARE NOT TOO HIGH OR TOO LOW, BUT JUST RIGHT.