A recent decision from the 11^th Circuit demonstrates, again, how important it is to follow a student’s IEP.  This suit alleged that the student was “with some frequency, excluded and isolated from his classroom and peers on the basis of his disability.” The teacher’s aide had been taking the wheelchair bound student out of his classroom to the weight room.   The student was not working out.  He was, according to the suit, just “kind of….hanging out” while the aide worked on the computer.  These removals from the classroom were not authorized by the IEP.

The court held that the district could be liable for a 504 violation if an “appropriate person” knew about the violation and was deliberately indifferent to it. In this case, the court held that the principal was an “appropriate person.” She was on notice of what was happening with the student, and failed to take proper corrective action. The same analysis applied to the general and special education teachers. There was some evidence that both of them knew what was happening, could have stopped it, and did not. Two coaches who were aware of what was going on were deemed not to be “appropriate persons” because they did not have supervisory authority over the aide.

The end result of this is that the district faces possible liability for discrimination based on disability.

The case is J.S. III v. Houston County Board of Education, decided by the 11^th Circuit on October 2, 2017. We found it at 70 IDELR 219 and at 877 F.3d 979.

DAWG BONE: WITH LIMITED EXCEPTIONS, KIDS SHOULD BE IN THE CLASSROOM WHERE THE IEP PLACES THEM.

A school district in New York put a kindergartener in the ESL program despite the fact that the parents and the adult sister informed the district that the only language the child spoke was English. The child remained in that program until the 5^th grade. She was not allowed to exit the ESL program because she consistently failed to demonstrate proficiency in English on the state standardized test of English language skills.

Let’s think about that for a bit. It makes sense that a student who needs ESL services should continue to receive them until the student can demonstrate that the services are no longer needed.  But there are many reasons why a student may not show proficiency in English language skills on a standardized test.  Limited English proficiency is one reason. Dyslexia is another.

In this case, the district finally tested the child for special education in 5^th grade. Lo and behold—the girl qualified. She had ADHD and dyslexia.  When the school began providing special education services, the child’s performance improved.

It’s a good thing that the district caught this in 5^th grade, but it would have been far better if they had looked into special education much earlier.  Like in 2^nd grade, when a teacher noted that there might be something other than language acquisition going on here.

The family sued the district, alleging that the child had been placed in ESL solely because she was Hispanic, and thus was the victim of discrimination based on national origin. The family lost the suit—but only for a procedural reason. The court held that this kind of claim should have been presented to a special education hearing officer before going to court.

The case is a good reminder that we need to be sure to separate language acquisition issues from disability issues.  Here we have a student who speaks no language other than English. Over several years, she cannot demonstrate mastery of English. She is falling behind her peers more each year.  At some point, educators should look into other reasons for the student’s problems.

From the court’s opinion it sounds like this little girl was placed in ESL because Spanish was spoken in the home, and the person who conducted the informal interview with the child believed that she needed ESL services.  Maybe that’s kosher in New York, but it definitely isn’t in Texas.  We don’t put kids in ESL based on the language spoken at home. We do it based on the student’s proficiency.

The Home Language Survey is supposed to tell us 1) the language normally used in the home; and 2) the language normally used by the student.  TEC 29.056(a)(1).  The LPAC can classify a student as limited in English proficiency only based on the student’s proficiency in English—regardless of what language is spoken at home. TEC 29.056(c).

One more point: it sounds like this child simply got put into the wrong special program. She never was an English Language Learner and did not belong in ESL. But let’s remember that you do have kids who are ELL, need bilingual or ESL services, and are dyslexic also.  I suspect that in those cases it is difficult to sort out whether the student’s learning problems are more due to dyslexia or to language acquisition.  But the district needs to attend to both problems.

The case is Reyes v. Bedford Central School District, decided by the Southern District of New York on September 27, 2017. We found it at 70 IDELR 223.

DAWG BONE: YOU CAN BE AN ENGLISH LANGUAGE LEARNER AND DYSLEXIC AT THE SAME TIME. 

The Toolbox is a full day training program aimed at campus administrators and special education personnel who deal with students with disabilities who present behavioral challenges.

Here’s a question that sometimes comes up in the Toolbox.  You have an ARD meeting to deal with a possible DAEP placement. The student has violated the Code of Conduct in a way that would normally call for DAEP.  But the parent disagrees about the manifestation determination, or the appropriateness of the DAEP.  The meeting is not going to come to consensus.  Is the parent entitled to a 10-day recess? If so, what happens with the student?

In the Toolbox training we talk about this when we discuss Tool #9—Leadership at the Non-Consensus ARD Meeting.  In Texas we have a regulation that calls for a 10-day recess when the ARD fails to come to consensus.  However, the 10-day recess regulation has some exceptions built into it.  The regulation says:

The opportunity to recess and reconvene is not required when the student’s presence on the campus presents a danger of physical harm to the student or others or when the student has committed an expellable offense or an offense that may lead to a placement in a DAEP.  19 T.A.C. 89.1050(f)(1).

So you don’t have to offer a recess in this situation.  The ARD can come to closure without consensus.  The ARD should decide on what “interim alternative educational setting” (IAES) the student will be served in—which is usually going to be your DAEP.  The parent who disagrees can request an expedited hearing. The student “stays put” but not in the previous placement. The student “stays put” in the IAES.

Want to know more?  Let me bring the Toolbox to your district or ESC! I’ve got two coming up soon—Region 6 this Friday and Region 7 on April 10.

DAWG BONE:  NO RECESS WHEN IT’S A DISCIPLINARY SITUATION.

Parents of a student in Florida filed suit against the superintendent, the principal and a teacher/coach. This came about because the coach, in a basketball scrimmage, committed a “hard foul” against the student.  The kid was knocked to the floor and suffered a concussion. Hard foul, indeed!

Why lawyers file suits like this in federal court is beyond me.  Maybe I’m missing something, but to me this would be a simple case of assault that could be filed in state court where it belongs.  According to news accounts of the plaintiff’s pleadings, there is a bit more to the story. The news accounts say that the plaintiffs alleged that the coach was originally called for a foul and became enraged.  He then, allegedly, told the student “I will show you what a REAL FOUL is!” Whereupon forearm to the head, kid goes down. Concussion.

If those allegations are true, the coach has committed an intentional assault.  This is not part of the “course and scope” of his employment.  If this happened in Texas, a suit could be filed—and could be successful—in state court.  Maybe Florida law is different, but I doubt it.

Instead of a simple suit for assault and battery, the lawyers filed in federal court, added the superintendent and principal as defendants, and tried to make this into a constitutional violation for the failure to provide due process prior to corporal punishment.   Case dismissed.

The case is Sanchez v. Adkins, decided by the federal court for the Middle District of Florida on February 6, 2018. We found it at 2018 WL 733628.

DAWG BONE: DUE PROCESS IS NOT REQUIRED PRIOR TO A FOUL, HARD OR OTHERWISE. 

The Dawg is headed to Florida with son, son-in-law and grandson (No Grils Allowed!!) to see the WORLD SERIES CHAMPION HOUSTON ASTROS prepare for the upcoming season.  So no Daily Dawg next week.  I figure most of you are on spring break anyway.

For today, just my annual reminder of why baseball, of all the sports, is the most like LIFE.

1. They play every day.  You don’t get to practice all week to perform once.  No.  You have to bring it every single day.
2. It’s the only game where the defense is in control of the ball.  You go through your days desperately trying to control the kids, their parents, your boss, your co-workers, the traffic, your spouse….and in moments of clarity come to realize that you do not have the ball.
3. It’s a team game.  You can’t win without the support of others.
4. But on the other hand, when it’s your turn at bat, there is no one who can help you.  Sometimes it’s all up to you.
5. Unlike many sports where people have specialized roles, in baseball everyone has to be able to do all the basic things—hit the ball; catch the ball; throw the ball; run.  I realize that the designated hitter represents an exception to this rule, but that’s why the DH is an abomination in the eyes of God and man.
6. You start out at home, and the basic idea is to get back home safe.

For the religiously inclined I would also point out that God favors baseball.  We know this from the very opening words of Genesis:  “In the big inning, God created the heavens and the earth.”

At least I think it says something like that.

DAWG BONE: DID WE MENTION THAT THE HOUSTON ASTROS WON THE WORLD SERIES LAST YEAR?

Principals: if you hear something like that from a teacher or teacher aide, you might want to take swift corrective action.  I expect you don’t need a lawyer to tell you that, but it takes on added legal significance due to a recent federal court case from New Hampshire.  The court held that the district may face liability for the discriminatory actions of a paraprofessional, even when there is no evidence that the principal, the superintendent or anyone else in authority knew about it.  The case is in its early stages, but the court held that there were enough plausible allegations to allow the case to proceed. Videotapes showed the paraprofessional pulling on the ear of a student with a disability.  Moreover, there were allegations that this was not an isolated incident.  And then there was the statement from the paraprofessional to the special services director that “she thought school district policy permitted ear grabbing and hair pulling as methods of keeping [the student] seated during lessons.”

The student had autism and other disabilities and his IEP called for a one-to-one aide. It was the student’s personal aide who was caught on video grabbing the student by the ear.  When the district found out about this it put the aide on administrative leave and she promptly resigned.

But the lawsuit was brought against the school district, alleging that the district was guilty of discrimination based on disability.  Of course the district launched the “but we didn’t know defense” which is usually successful.  However, the court noted that several Circuit Courts have held that a governmental employer, like a school district, can be “vicariously liable” for acts of intentional discrimination committed by its employees, whether the higher ups knew about it or not.

Vicarious liability is a common concept in the private sector.  It also goes by the name of  “respondeat superior,” which is Latin roughly translated as “let the boss pay for this mess.”  So if a UPS driver negligently runs into my car this afternoon, I can hold UPS liable—not just the driver of the UPS truck.

As a general rule, governmental employers are not held “vicariously liable.” The doctrine of “respondeat superior” does not apply, and so they are not held responsible for the actions of their employees.  But as this case illustrates, there is an exception to this general rule with regard to disability discrimination claims under the Americans with Disabilities Act.

The New Hampshire court cited cases from the 4^th, 5^th, 7^th and 11^th Circuits that have held that the ADA permits vicarious liability.  The 5^th Circuit case is the most important for us. It is Delano-Pyle v. Victoria County, 302 F.3d 567 (2002).   But stay tuned. The issue of vicarious liability under the ADA is now pending before the 5^th Circuit again in a case involving a school district.  Watch the Daily Dawg for a report on the decision in that case when we get it. In the meantime, don’t let teacher aides or anybody else, think that it’s OK to grab kids by the ear or pull their hair.

The New Hampshire case is Fortin v. Hollis School District, decided by the federal court in New Hampshire on September 18, 2017. We found it at 70 IDELR 196.

DAWG BONE: WE HAVE YET TO FIND A DISTRICT POLICY THAT PERMITS HAIR PULLING OR EAR GRABBING.

Tomorrow: Almost spring break!!

It’s a common concern.  A student with an IEP or 504 plan wants to take AP or Honors courses. These courses are designed to be more rigorous than the regular courses.  Some teachers believe that there should be no accommodation of disability—if the student cannot make the grade, so it goes. Others believe that federal law requires that whatever accommodations are in the IEP must be honored in all classes.

This issue came to a head in a case from New Jersey.   The district generally required a teacher recommendation before a student could enroll in an AP or Honors course. If there was no teacher recommendation, the student could still take the course—but the parent and student were required to sign a waiver:

The student understands the requirements and demands of the honors/advanced placement course and is willing to enroll in the course without the recommendation of the faculty and that department.  The student further understands that no accommodations or curricular adjustments will be allowed per academic year.

The parents alleged that this waiver requirement was a form of disability-based discrimination.  They sought an injunction to force the district to retroactively change GPAs and transcripts based on allegations that the district discriminated against students with disabilities in access to AP and honors courses.

The court denied the injunction.  The court did not interpret the waiver as the parents did.  The parent thought the waiver meant that no accommodations of any kind for any student would be permitted.  The court interpreted it to mean simply that academic rigor would not be compromised. Key Quotes:

If the student does not do well, the waiver form warns, NVRHS will not respond by softening the academic rigor of the course.

[The district] intended to inform parents that the “demands” or “requirements” of AP or Honors courses would not be changed or adjusted just because a student struggled in an intentionally difficult class.

The waiver could have been written better. An accurate statement of the law is that accommodations that 1) are needed due to disability, and 2) would not reduce the academic rigor of the course should be permitted. For example, a student may need a service animal. A visually impaired or hearing impaired student may need accommodations for their sensory limitations.   Such students can be expected to perform at the same level as other AP or Honors students as long as these accommodations are provided.

But an accommodation that reduces the rigor of the course would not be required, and a written notice to make sure that parents and students understand that is a good idea.

The case is Leddy v. Northern Valley Regional High School District, decided by the federal district court in New Jersey on September 6, 2017.  We found it at 70 IDELR 201.

DAWG BONE: ACCOMMODATIONS IN AP CLASSES?  SOMETIMES.  NOT ALWAYS.

Tomorrow: Does your policy permit a teacher to pull a student’s hair?

Fundamental rule in student discipline: comply with your Code of Conduct.  I came across a case from New Jersey where they must have a really hard core Code of Conduct.  The school put the student in an alternative setting for the remainder of the school year based on the student’s possession of a small pocket knife and some alcohol.  How would your district handle that?

The New Jersey case is a good illustration of the use of two of the tools in the Toolbox.  Since the knife had a blade of three inches, it qualified as a “dangerous weapon.” This means the school can use Tool #5—a Removal Due to Special Circumstances.  That removal could be for as many as 45 school days.

The tough guys in Jersey wanted to go further than that, though. So they also used Tool #6—a Disciplinary Change of Placement—to justify the removal for the rest of the year.  This is only available when the behavior is not a manifestation of disability.

When I do my Toolbox workshops I often ask principals what penalty would be imposed on a student who had possession of a small pocket knife at school.  Typically they tell me that if the student did not use or threaten to use the knife, the penalty would be very minor.

Principals should not get carried away with Tool #5.  It is the principal’s tool and the law authorizes a removal for up to 45 school days. But first, you should determine what your Code of Conduct says, and how your district has handled similar situations in the past.  So we should be careful when we say that Tool #5 authorizes principals to remove kids for up to 45 school days. A more accurate statement would be: The principal can remove the student for a period of time consistent with the Code of Conduct, not to exceed 45 school days.

The case is Ocean Township Board of Education v. E.R., decided by the federal court in New Jersey in 2014. We found it at 63 IDELR 16.

DAWG BONE: ASSISTANT PRINCIPALS SHOULD SLEEP WITH THE CODE OF CONDUCT UNDER THE PILLOW. 

Tomorrow: Can you refuse to provide accommodations for kids in AP or Honors courses?

Dear Dawg: I confess.  Our district has been encouraging teachers to vote.  Not only that, we’ve even encouraged them to vote for people who will support a good education system. But we haven’t tried to tell them who those people are. We let folks make up their own minds about that.

Anyway, we are being harassed by multiple PIA requests seeking every email, text message, etc. that contains loaded words like “vote” or “culture of voting.”  Some of these folks are publicly saying some nasty things about our board members.  One guy asked us to remove a video that our superintendent made, encouraging people to vote to support public education.  We prepared a response to this guy that we think is good, but we wanted to run it by you before we send it out.  Here it is:

Dear Sir:  Your facts are wrong.  You’re wrong about the law too.  No laws have been violated and so we kindly ask you to retract your stupid letter.  If you don’t, we intend to hit you with a few res ipsa loquitors, res judicata and zenyatta montattas thrown in to be all legal and stuff. We’ve got more important things to deal with, so bug off, buster.

Waddyathink, Dawg?  STRAIGHT SHOOTER.

DEAR STRAIGHT SHOOTER:

We like the attitude, but the tone could be…..toned down.  We suggest you take your cue from Jeff Crownover, General Counsel for Lewisville ISD.  After the AG’s Office went public with criticism of efforts in Lewisville to encourage voting, Mr. Crownover wrote a point by point rebuttal, concluding with this:

In fact, throughout the entire video, Dr. Rogers [Superintendent] does not name a single politician or candidate for office nor does he encourage anyone to vote for a particular candidate. He does not tell anyone to vote for an incumbent or a challenger in any race. Dr. Rogers does not mention a specific political party, or in which party’s primary someone should vote.  As an educator who has given over 30 years of his life to serving kids in public education, of course, Dr. Rogers encourages people to unite behind the cause of public education because of the amazing impact he has seen it have on countless children’s lives. 

As you know, uniting behind the common cause of public education is not a violation of any law, and supporting public education generally is not “supporting or opposing a candidate for nomination or election to public office or office of a political party, a political party, a public officer, or a measure.” Tex. Elec. Code 251.001(a6).  The District believes Dr. Rogers’s comments in this video have not violated any laws, and it maintains there is currently no reason to remove the video from the District website. 

DAWG BONE: GET OUT THERE AND VOTE, FOLKS.  A LOT IS RIDING ON IT.

Tomorrow: Toolbox Tuesday!!

In a suit against the Houston ISD the plaintiff alleges that the district violated Title IX by not reporting an alleged student-on-student sexual assault to CPS or to a state law enforcement agency.  Instead, the district turned the matter over to its own police department.

The court found no problem with this.  The court cited the Texas Family Code:

The Texas Family Code requires a report of child abuse to be made to Child Protective Services or to any “local or state law enforcement agency.”  See Tex. Family Code 261.103(a)(1).

Notice: that statute says the report can go to either CPS or to law enforcement.  But there is an important exception built into the statute. If the alleged abuse was committed by a person who is responsible for the “care, custody or welfare” of the child, then the report MUST be made to the Department of Family and Protective Services.   That term—a person responsible for the care, custody or welfare of the child—applies to school employees and school volunteers.

So to whom do you report?  If the abuse was allegedly committed by a parent, teacher, teacher aide or other school employee the report must go to DFPS.  If, as in this case, the alleged abuse was by a student, the report can go to DFPS or to a state or local law enforcement agency.

The case is Ayala v. Houston ISD, decided by the federal court for the Southern District of Texas on January 22, 2018. We found it at 2018 WL 496898.

DAWG BONE:  IF REPORTING ABUSE BY A SCHOOL EMPLOYEE, MAKE THE REPORT TO DFPS.