A custodian who works under your supervision is not doing a good job.  You have discussed the matter with the employee, heard his side of the story, and come to the conclusion that corrective action is called for.  You are going to write a corrective memo, setting out your conclusions and your expectations for the future.

Don’t lead off with the conclusions.  The opening sentence should not be: “Your performance as a custodian is unacceptable and needs to change.”  Rather, come to your conclusions only after laying the groundwork with a recitation of facts.  Like a good editorial in the newspaper, the conclusions should rest comfortably on a firm foundation of facts.  A third party reading the memo later (like a judge, your school board, or an EEOC investigator) should be able to see that the conclusions you reached were only logical, given the facts.

For example, your memo to the custodian could reflect that 1) numerous teachers have complained about the condition of their classrooms in the morning; 2) you have personally looked into this, and found that the classrooms are not being properly prepared; 3) you cite specific examples of problems; and 4) you have discussed this matter with the custodian (and give the date for that conversation).

With that factual foundation, you are ready to issue your conclusions and your directives, e.g.:

Your performance as a custodian is unacceptable and needs to change.  I am directing you to have each classroom on your wing properly prepared for class the next morning.  Since most of the problems have been in Mr. Jones’s class and Ms. White’s class, I am directing you to personally meet with those two teachers to be sure that you are aware of their expectations.  I will review your performance again in three weeks, and hope to find a significant improvement.

DAWG BONE:  CORRECTIVE MEMOS LEAD OFF WITH FACTS BEFORE COMING TO CONCLUSIONS.

Tomorrow: Are all of your 9^th graders successful?

On Tuesdays we highlight The Toolbox—a one day training program focused on the students with disabilities who present challenging behaviors.  This involves a detailed look at the federal regulations that pertain to the discipline of students who are receiving special education services.

One of the things we talk about is ISS—in-school suspension.  In that context, I want to make a radical suggestion: maybe it’s time to ditch ISS altogether, and replace it with something more useful.

Education Week recently reported on a Pre-K to 8 school in Cleveland, Ohio that has replaced ISS with a “planning center.”  According to the article, the planning centers “represent a fundamental shift in the approach to student discipline.”  Kids have “an opportunity to cool down, learn coping strategies, and get back in the classroom as soon as possible.”

Does ISS accomplish much?  Do kids come out of ISS with a better understanding of how they got in trouble?  Do they learn any new behaviors?

I wonder.  What I notice is that law and regulation continue to pressure schools to avoid any form of exclusionary discipline, meaning any discipline that takes the student out of the classroom during instructional time.  ISS does that. So does a “planning center.” But I just wonder if the restorative approach used in a “planning center” might be more productive.

Things to think about as we approach the halfway mark in the year.

DAWG BONE: IF DISCIPLINE DOES NOT IMPROVE THE STUDENT’S BEHAVIOR, WHAT’S THE POINT?

Tomorrow: How good documentation resembles a good editorial….

Here it comes again!  The lights are already up all over my neighborhood.  There are plastic reindeer, large candy canes and Santa Claus displays all over the place, and of course, the incessant advertising is well under way.

I’m not ready, but that doesn’t matter.  It’s going to happen.  So we thought it would be a good idea to remind you of the Merry Christmas bill passed by the Texas legislature in 2013. You can find it at Section 29.920 of the Texas Education Code.  The TASB Policy Reference Manual includes a summary of the bill in Policy FNA(Legal).

The law was designed to push back against excessive political correctness, by assuring school officials that it is OK to say things like “Merry Christmas” right out loud in the school.  The law is not very long and you might want to read the entire thing, but we can summarize it as follows:

1. It says that schools may teach kids about “the history of traditional winter celebrations.”  In our culture, Christmas is clearly the predominant “traditional winter celebration.” So the bill tells us that it is OK to teach kids the history of the event; why it is celebrated; what it’s about; why it is such a big deal.  You can do that without encouraging or discouraging religious belief.  In fact, you have to do it that way to comply with the U.S. Constitution. Of course it’s important to remember that while Christmas is the predominant “traditional winter celebration” around here, it’s not the only one.
2. It says that it is OK for kids and teachers to say things to each other like “Merry Christmas” or “Happy Hanukkah” or “happy holidays.”
3. It says that you can have a display on school property to honor the season, as long as it either a) includes symbols of at least two religions; or b) includes a symbol of one religion along with one secular symbol.
4. But it also says that your display “may not include a message that encourages adherence to a particular religious belief.” That provision is a recognition by the legislature of the constitutional issues.

School communities in Texas run the gamut in terms of diversity.  Some of our large, urban districts are a microcosm of the world, including every religion, culture and language you can imagine.  Then there are those small, rural districts where a non-Christian (non-Baptist?) can hardly be found.  The constitutional requirements are the same, regardless of where you live, but the community attitude and the pressure on the school officials will vary from place to place.

We need a large dose of common sense to navigate this sensitive issue.  Advocates on the extremes tend to exaggerate and over-react.  It never was illegal to teach kids about Christmas.  There is no court case holding that a teacher cannot say “Merry Christmas” to her students.  No court has held that you have to call it a “holiday tree,” when we all know that it’s a Christmas tree.

But those who dismiss the concerns over this issue as mere “political correctness” are equally off base.  If the decorations, songs, celebrations and greetings that take place in the public school are indistinguishable from what we see at the local church, then the school is not educating kids about the holidays—it is indoctrinating.  If we teach children about the origins of Christmas, with no reference to the winter celebrations of groups that are fewer in number, we are not teaching properly.

The constitution allows public schools to teach about religion—but prohibits them from  encouraging or discouraging religious belief.  May this month be a useful teachable moment for all of us.

DAWG BONE: HAPPY HANUKKAH (December 12)!  MERRY CHRISTMAS (you know)!  HAPPY KWAANZA (December 26)!  HAPPY BOXING DAY (December 26)!

Tomorrow: A radical suggestion…

G.G.’s day started to go bad when the assistant principal at Cypress Ridge High School woke him up in the classroom.  After a bit of questioning and an “impairment assessment test” school administrators determined that G.G. was under the influence of drugs.  When informed of this, G.G. “forced his way” out of the A.P.’s office.  A school police officer soon intervened, and with the help of another A.P., tried to keep the boy from leaving the building.

When G.G. head-butted the A.P., the cop put the boy in cuffs and took him to the principal’s office. When the police officer’s backup arrived, they proceeded to walk him to their car for transport to the police station.

So imagine that you are G.G.   Your hands are cuffed behind you.  You are being escorted down the hallway—one cop holding your left arm and another one on your right.  Would you consider yourself to be “under arrest”?

In the subsequent litigation, G.G. claimed that he did not understand himself to be under arrest.  Nevertheless, he was clearly not happy with his situation.  He managed to break away from the two cops, streak through a crowded school cafeteria and out the door.  In  handcuffs.

The cops caught him, and charged him with two offenses: assault of a public servant due to the head-butt, and escaping arrest.  The jury acquitted the boy of the assault, but convicted him of illegally escaping.  G.G. appealed the finding of delinquency, and the Court of Appeals affirmed.  The court concluded that a reasonable person in G.G.’s situation would have understood that he was under arrest—not just temporarily inconvenienced.

Makes sense to me.  The case is In the Matter of G.G., decided by the Court of Appeals for the First District of Texas on October 31, 2017.  We found it at 2017 WL 4896723.

DAWG BONE: KID IN HANDCUFFS RACING THROUGH THE CAFETERIA.  JUST ANOTHER DAY AT SCHOOL….

Tune in again next week for more of the Daily Dawg!

When Spring Branch ISD set up a new Life Skills Unit at Frostwood Elementary it made sense that a student named E.R. would be transferred there.  The little girl was happy and well served in the Life Skills Unit at Wilchester Elementary, but Frostwood was closer to home and it was the school that she would have attended if she did not need special services.

But E.R.’s parents were not happy with the move.  It looked to them like Frostwood was simply not well prepared to serve their child, who had complex medical issues.  Moreover, the Life Skills Unit was a long ways from the nurse’s office. The staff seemed unprepared, and in some cases, uninterested.

To address these concerns, the district agreed to transfer the paraprofessional who was most familiar with E.R. She would be with E.R. at all times and would be available to help the Frostwood staff learn how to take good care of E.R.

E.R. stayed at Frostwood for the first semester of that year.  During that semester there was considerable back and forth between the parents and the school.  That paraprofessional was reporting to the parents that things were not going well, with criticisms of the new teacher and other staff. The role of the paraprofessional was a big point of contention in the subsequent litigation.  E.R.’s new teacher at Frostwood testified that the paraprofessional was “a detriment to E.R.’s learning on many days because she was so familiar with her….She treated her like a family member and not like a student. Her discipline wasn’t as professional as what I would expect in a classroom, and often she [the student] wouldn’t work for [the paraprofessional].”

So, as in many cases, there was a certain amount of distrust between the parents and the school.  Concerned for their daughter’s well being, and convinced that the school was not providing appropriate services, the parents pulled her out of Spring Branch and placed E.R. in a private school. They requested a due process hearing, seeking tuition reimbursement.  The hearing officer ruled against them, and now the federal court has affirmed that decision.

The most significant legal issue in the case involved the involuntary transfer from Wilchester to Frostwood. At an ARD meeting in April, 2014, the parents were told that the district might open a Life Skills Unit at Frostwood. But they were told that they expected E.R. to continue at Wilchester.  Moreover, the ARD paperwork indicated that the girl would remain at Wilchester.

All that changed shortly after the ARD meeting.  When the district informed the parents of the girl’s transfer, E.R.’s father responded with a three-page letter expressing his concerns about the move to Frostwood.  That’s when the district agreed to transfer the paraprofessional along with E.R., but otherwise, the district stuck to its position.  Beginning in the fall of 2014, E.R. would be in the new Life Skills Unit at Frostwood.

In the litigation, the parents argued that this was an illegal change of placement, done without an ARD meeting, parental consultation or approval.  Citing 5^th Circuit rulings, the federal court rejected that argument. The key point: this was not a change of “placement.”  The court put it this way:

But this Circuit has stated that “placement” does not mean a particular school.  Instead, it means a setting, such as regular classes, special education classes, special schools, home instruction, or hospital or institution-based instruction.  White v. Ascension Parish School Board, 343 F.3d 373, 379 (5^th Cir. 2003).  Because of this, a district is not obligated to consider parent’s opinions on which school location is appropriate.

That may be the general rule, but E.R. had some very serious health issues that needed to be taken into account. Not every school campus would be able to meet her needs. Does that not matter?

Of course it does. The court put it this way:

Although SBISD might have the right to make a unilateral decision to move E.R. to Frostwood, and to keep her at that location despite the protestations of her parents, it must not do so if that causes a significant disruption in her educational opportunities.

The rest of the court’s analysis, then, was focused on the services provided to E.R. at Frostwood.  The court considered health and safety, the preparation of the new unit, the qualifications of staff, the level of continuity and communication and the level of E.R.’s educational progress.  All things considered, the district satisfied the standard.

There are two takeaways here.  First, the legal point that “placement” means instructional setting—not location.  In this case, there was no change of placement at all.  E.R. was in the Life Skills Unit at both schools, and her IEP was not changed.

Second, the unique needs of a child and the concerns of the parent should always be addressed when the school proposes a significant move. This may not have been a “change of placement” but it was a big deal for E.R. and her parents.  In this case, the court was persuaded that the district appropriately ensured that the move would not harm the child:

The preponderance of the evidence shows that E.R. was making progress and was likely to master each of her IEP goals by the end of the school year, and that those goals were appropriate for her abilities.

The case is E.R. v. Spring Branch ISD, decided by the federal court for the Southern District of Texas on July 14, 2017. The court’s very brief ruling can be found at 2017 WL 3016952. The magistrate’s recommendation, which provides a lengthy analysis, is at 2017 WL 3017282.

DAWG BONE: “PLACEMENT” MEANS INSTRUCTIONAL SETTING, NOT SCHOOL CAMPUS.

If you were handcuffed and being escorted by two cops would you consider yourself to be “under arrest”?

The principal ordered his assistant principal to submit to a drug/alcohol test. The A.P. at first agreed, but later changed his mind.  The district recommended termination of his employment. The Commissioner upheld the man’s termination.

The district ordered the testing based on its Policy DHE (Local), which authorizes principals to order drug/alcohol testing of employees based on “reasonable suspicion.”  In a 2002 case involving a very similar policy, the Commissioner had concluded that such a policy is constitutional.  Here, the Commissioner came to the same conclusion. The policy was legal. The man refused to be tested.  So the issue was: did the district have “reasonable suspicion” sufficient to justify the forced testing?

The Commissioner ruled that the district did have sufficient justification.  Here is how the Commissioner summarized the evidence:

On November 29, 2016, Petitioner arrived late to work at Skyline High School and reported to the Principal that he was experiencing difficulty with his peripheral vision.  The undisputed testimony at hearing established that Petitioner exhibited uncharacteristic behavior including slurred speech, disorientation, and glassy eyes.  The Principal received reports from staff about Petitioner’s uncharacteristic behavior and concerns about his health.  The Principal directed Petitioner to report to the nurse. The nurse reported to the Principal that Petitioner had elevated blood pressure and that he denied having taken any medication.  After consultation with her supervisor and Human Capital Management, the Principal determined that there was reasonable suspicion to direct Petitioner to take an alcohol/drug test.

The decision notes that the “undisputed evidence” showed that the man was “an exemplary Assistant Principal in all other respects.” Nevertheless, this one instance of refusal to comply with a proper directive was sufficient to justify termination.

The case is Johnson v. Dallas ISD, Docket No. 029-R2-06-2017, decided by the Commissioner on August 10, 2017.

DAWG BONE:  WHAT DOES YOUR SCHOOL’S POLICY SAY?  TAKE A LOOK AT DHE(LOCAL). 

Tomorrow: Moving a student to a new campus.  Do we need an ARD meeting?

Tuesdays here at the Daily Dawg belong to the Toolbox. This is a one-day training program designed for campus administrators and special education staff who serve those students with disabilities who present challenging behaviors.  One of the ten tools (Tool #4) is a request for an expedited hearing seeking the temporary removal of a potentially dangerous student.  We don’t see this tool used a lot, but I recently came across a case from Texarkana, Arkansas, in which a school district successfully used Tool #4.

The school district was in the process of doing an FBA (Functional Behavioral Assessment) to revise the student’s BIP (Behavior Intervention Plan), but it was taking longer than expected. Meanwhile, they were very concerned about safety.  The student was identified as emotionally disturbed.   His existing BIP indicated that the behavior of his that impeded learning was “Explosive behaviors toward peers and staff.”

And that’s what they were seeing.  Records indicated that the student had pulled a knife on family members, threatened to kill people, brought weapons to school and pushed and shoved staff members.  On November 4, 2015 the student pushed another student to the ground on the playground.  Later, in the principal’s office, the student started slapping and kicking the same student. Several employees intervened.

There was another incident a month later when the student made “several serious threats” to kill staff and others, and slapped, hit, bit and kicked a teacher.

The law allows districts to remove students unilaterally for only ten days during the course of a school year.  In this case, the district wanted the student removed for longer than that. The school proposed removal to an IAES (Interim Alternative Educational Setting) for 45 school days.

Based on the evidence, showing that the student was “substantially likely” to injure someone if he remained in the current placement, the hearing officer ordered the student removed to the IAES for 45 school days.  That’s the standard that the school has to satisfy to be successful in an expedited hearing.

So it can be done.  It’s a rare set of circumstances that requires the use of Tool #4. You have to have a strong case that the student is likely to hurt someone, and a situation in which other tools are not available.  If the behavior was not a manifestation of disability, the school could use Tool #6—a Disciplinary Change of Placement. If you had parental agreement you could use Tool #2—a Change of Placement with Agreement. If a weapon had been used, or “serious” bodily injury inflicted you could use Tool #5—A Special Circumstances removal. But here, none of those tools were available, and so the school sought help via Tool #4—an Expedited Hearing.

The case is Texarkana (Ark) School District, decided by the hearing officer for the State of Arkansas on March 3, 2016. We found it at 67 IDELR 277.

DAWG BONE: WHEN “UNILATERAL” AUTHORITY IS NOT AVAILABLE, YOU CAN SEEK AN EXPEDITED HEARING.

Tomorrow: Can an employee be forced to take a drug test?

Welcome back, Readers! We greet you upon your return from the Turkey Holiday with a question we do not know the answer to.  Can the elected school board adopt a rule limiting members to a certain number of terms of office?  Neither the Texas Education Code nor the state Constitution address this question.  But we are about to get an answer from the state’s Attorney General.  The Chair of the House Committee on Elections has requested an opinion from Attorney General Paxton.

As the request notes, there have been bills introduced in the legislature addressing term limits for school board members dating back to 2009. None have passed. So now the question is: can a local board impose term limits on its members?  The Committee Chair, Jodie Laubenberg, notes that school boards have “exclusive power and duty to govern and oversee the management of the public schools” along with the power to “adopt rules and bylaws necessary to carry out the powers and duties.”  Ms. Laubenberg, a Republican from Collin County, suggests that the board could do so:

…..it is my understanding that a local school board could choose to enact a policy that would, for their district only, apply term limits to the number of consecutive terms a trustee could serve.

We shall see what Mr. Paxton thinks.  State law currently spells out the qualifications for serving on a school board, and does not limit the length of a person’s service.  We have many trustees in Texas who have served for over ten years, and some for decades.  They serve for free, and without the generous pension benefits that our state representatives enjoy after a certain number of years.  Serving on a school board is a tremendous community service.  Those who serve are accountable to the voters every three years.

But there are those who think it would be good to limit their service.  No doubt the legislature could impose such a restriction by state law, but that has not happened. So we see this effort.

Looking down the road, let’s just assume that the AG says this is perfectly legit.  So District A adopts term limits for its members. If this is done by way of an adopted policy or bylaw, what’s to keep the district from changing its mind next year?  I can foresee some back and forth on this.

But we are getting ahead of ourselves. Let’s see what the Attorney General thinks.  The request has been assigned as RQ-0191-KP.

DAWG BONE: YOU JUST HAVE TO WONDER: IF THEY THINK TERM LIMITS ARE SUCH A GREAT IDEA, WHY NOT START WITH THEMSELVES?

Tomorrow: Toolbox Tuesday and an “expedited hearing” in Arkansas.

T.M. was an 11-year old boy in Quakertown Community School District in Pennsylvania.   He had been receiving special education services since kindergarten due to autism, global apraxia and an intellectual disability.   Fast forward to fourth grade.  That’s when the parents brought in an independent evaluator who was an occupational therapist and board certified behavior analyst (BCBA).

The court offers a succinct summary of the dispute, which sounds like a very common situation:  the parents are dissatisfied with the student’s progress and think that the student should be doing better.  Their independent expert supports that view. School staff think the boy is doing quite well, given his unique circumstances.

The parties ended up in a due process hearing over the IEP for 5^th grade.  The hearing officer ruled in favor of the school district on all points, and was later affirmed by the federal court.  The district comes across as professional and caring.  The court based its decision, to a large degree, on the credibility of the school witnesses.  In terms of experience, education and “time on task” the comparison of the school staff vs. the independent expert was no contest.  The court noted that the independent evaluator “had no four-year college degree. She has no regular or special education teaching degree or experience.” She qualified as an expert on ABA, but “her recommendations about reading, math, speech and language were beyond her specialty areas.”  Since she was neither a certified teacher, psychologist nor speech therapist, she “does not possess the requisite educational background to opine on those topics.”

One more factor limited the weight of the testimony from the independent evaluator: she observed the boy in school for only 16 hours over two days, and on one of those days, a sub was filling in for the special education teacher. In sharp contrast, the school staff had extensive education, numerous advanced degrees, appropriate certifications and had spent 1,440 hours working with the student over two years.  Whose testimony would you believe?

The case is T.M. v. Quakertown Community School District, decided by the U.S. District Court for the Eastern District of Pennsylvania on April 19, 2017. We found it at 69 IDELR 276.

DAWG BONE: THERE IS NO SUBSTITUTE FOR DAILY EXPERIENCE WITH THE STUDENT IN THE SCHOOL ENVIRONMENT.

The Dawg is taking a break next week, folks.  We plan to eat turkey and watch football.  Enjoy yourselves and look for the Daily Dawg back  in your inbox on Monday, November 27. 

Yesterday we told you about a Title IX suit against Richardson ISD.  The district persuaded a federal judge to dismiss a suit that alleged student-on-student harassment.  The key was the court’s agreement with the district’s argument that any pervasive harassment was not gender-related, and any gender-related harassment was not pervasive.

To succeed in a Title IX suit like this the plaintiff has to prove, among other things, 1) that the harassment was based on the victim’s sex; and 2) that the harassment was so severe and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit.

Yesterday we explained how the court concluded that the pervasive harassment was not gender related.  Today, we focus on the specific instances of harassment based on sex, and how the court analyzed those allegations.

The plaintiff alleged two specific instances of gender-based harassment. One was labeled “the Exposure Incident” and the other “The Assault in the Park.”  The court acknowledged that both of these incidents, as alleged, were plausibly based on sex.  But the court held that neither incident was so bad that it satisfied Title IX’s demanding standard. Key Quotes:

The Bullies, among other things, exposed their genitals to [the girl], beat her and threatened to rape her.

But those two instances alone are “not so severe, pervasive, and objectively offensive to deprive [the girl] of access to education.”  Watkins v. LaMarque ISD 308 Fed. Appx. 781, 784 (5^th Cir. 2009).

Does that surprise you?  You may be even more surprised when you read a more complete description of the Assault in the Park as alleged in the suit:

Plaintiffs allege that…the Bullied knocked [the girl] down and held her ankles and wrists….The Bullies then covered [the girl’s] mouth and…dragged [her] to a park fence. The Bullies allegedly pushed [her] into the fence, restrained her, whipped her back with wet sticks, and poured groundwater down her back.

Plaintiffs claim that once the whipping stopped, the Bullies dragged [the girl] to an electric generator box where they threatened to electrocute and rape her, “then leave her body in an adjacent concrete tunnel” that was “full of snakes” so “that she would never make it out alive.”  Next, Plaintiffs say, the Bullies dragged [the girl] to a restroom in Terrace Park and attempted to force her inside, again threatening to rape her.

Wow.  The school saw this incident quite differently.  The principal conducted an investigation and concluded that the boys (aka “the Bullies") had behaved inappropriately, but intended no harm. The principal assigned disciplinary consequences, but the girl’s parents were not satisfied with that.

From a legal perspective the important point here is that the court held that even if the allegations in the suit are completely accurate, this is not “severe” enough to make the district legally liable for what one student does to another, even if it was all done in the line of sight of the teachers.

Texas recently adopted a new law regarding bullying that makes it clear that a single significant act can amount to bullying. It does not have to be a pervasive, long lasting campaign. I would suggest that the description of what this lawsuit labels as The Assault in the Park is a great example of how a single incident can be “bullying.”  If half of what the suit alleges is true, I would think you have “bullying.”

But as this case illustrates, legal liability for that is another matter.

The case is Chavez v. Richardson ISD, decided by the federal court for the Northern District of Texas on August 23, 2017.  We found it at 2017 WL 3620388.

DAWG BONE: IT HAS TO BE GENDER-BASED AND REALLY BAD TO IMPOSE LIABILITY UNDER TITLE IX.

Tomorrow: Who are the leading experts on special education?