HB 1645 has been passed by the legislature and signed by the governor. It’s a short one. It simply requires that if you give letters to students who participate in high school activities, you have to give a letter to the kids who participate in Special Olympics.
Everybody in the legislature got on board with this one. Good to see that our politicians can agree on a few issues.
DAWG BONE: UNITY AMONG THE DEMS AND REPUBS!
File this one under: LEGISLATION 2017
SB 748 deals with transition. The transition provisions do not go into effect until the 2018-19 school year. They are:
1. Districts are required to be sure that parents and students are aware of “supported decision-making agreements” that are now available under the Texas Estates Code. This is a form of assistance many families will be interested in, as it is easier and less costly than obtaining guardianship or limited guardianship;
2. Issues to be discussed in conjunction with transition will include the use and availability of appropriate supplementary aids, services, curricula and other opportunities to help in developing decision-making skills. “Supported decision-making agreements” come up again in this context.
3. The Transition and Employment Guide is to be updated “in plain language” and parents and students must be notified of its availability. By the way—this Guide is supposed to be available on your district’s website. Is it?
4. State law now spells out the notice requirements for parents and students one year prior to age 18. TEA is to develop forms for this, and remember—all of this goes into effect in 2018-19, not this year.
DAWG BONE: MAY ALL STUDENTS MAKE A SMOOTH TRANSITION!
File this one under: Legislation 2017
The Education Code applies to public schools. However, every once in a while the legislature includes the private schools. Such is SB 579, which requires private schools to handle epipens in the same manner as the public schools.
DAWG BONE: NUTHIN’ NEW FOR THE PUBLIC SCHOOLS IN THIS ONE.
File this one under: LEGISLATION 2017
We normally declare Tuesdays to be Toolbox Tuesdays around here, and we write about the Toolbox. But we are now inundated with new legislation that needs to be ‘splained. So we’re taking a break from the Toolbox Tuesday routine.
But this is at least somewhat related because it’s about what happens when you get completely crosswise with the parent of a student with a disability. You end up in a special ed due process hearing! And it may be that the parent will be represented by a self-proclaimed “advocate” who is not a lawyer, but acts kinda like one. Well…there is a new law that applies to those situations.
SB 2141 will require non-lawyer advocates who receive monetary compensation for representing parents in due process hearings to abide by a “voluntary code of ethics.” The Commissioner is required to develop rules about this, so presumably, that’s where the “voluntary code of ethics” will be. Moreover, such advocates must have a written agreement with the parent that includes a method for resolving disputes between parent and advocate.
School lawyers have sometimes complained about the behavior and tactics of non-lawyer advocates because there is no way to hold them accountable. A lawyer is subject to the ethical standards of the legal profession and may be called to account before the State Bar. No such mechanism exists with the non-lawyer advocate. That’s why we got this bill.
Some have wondered out loud how a code of ethics can be simultaneously “voluntary” and “required.” We’ll let Commissioner Morath figure that one out.
DAWG BONE: SB 2141: CODE OF ETHICS FOR PARENT ADVOCATES WHO ARE PAID.
File this one under: LEGISLATION 2017 and SPECIAL EDUCATION
This week we will be looking at new bills that have been signed into law. Let’s start with HB 657.
Let’s say that Caleb is a 5th grader who is served in your special education program. He failed the STAAR math test that is required for promotion to 6th grade. What happens now?
That’s the subject of HB 657, a bill that the governor has signed into law. The new law provides a way for the ARD Committee to promote Caleb without him having to go through a second administration of the test. Under prior law, the ARDC had to meet and determine if the student would be promoted or retained. The law also required the ARDC to decide how the student would participate in an accelerated instruction program.
HB 657 makes four important changes in the law.
1. It sets the timing of that ARDC meeting. It must take place prior to a second administration of the STAAR test.
2. It gives the ARDC the standard it should apply in determining whether or not the student should be promoted. The student can be promoted “if the committee concludes that the student has made sufficient progress in the measurable academic goals” in the IEP.
3. It makes it clear that if the ARDC decides to promote the student, the student does not have to take the STAAR again.
4. The school must give notice to each parent of the ARDC’s options when a student fails a STAAR test. This must be given by September 1 of each year.
DAWG BONE: ARDC CAN PROMOTE EVEN WHEN THE STUDENT FAILED A REQUIRED STAAR TEST.
File this one under: SPECIAL EDUCATION
The 7th Circuit has ruled that a school in Wisconsin must permit a transgender boy to use the boys’ bathroom. The court held that offering the student the use of a private, gender neutral bathroom was not adequate. The court held that the school’s policy about bathroom use amounted to discrimination based on sex in violation of Title IX, and a denial of equal protection in violation of the 14th Amendment to the U.S. Constitution.
The arguments made by both sides in this case are, by now, very familiar. The student claims that he is being stigmatized, singled out for no good reason, discriminated against. The school cites the desire for privacy for other students as they use the bathroom.
Different courts are going to come to different conclusions on these issues until the Supreme Court settles the matter. This might be the case that goes to the Supreme Court. The 7th Circuit seems to tee it up nicely for SCOTUS, relying heavily on the SCOTUS decision from 1989, Price Waterhouse v. Hopkins. That’s the case where the Court held that discrimination based on “gender non-conformity” was a form of sex discrimination. Here’s a quote from the 7th Circuit:
A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.
The court dismissed the school’s argument about the privacy rights of its other 22,160 students:
What the record demonstrates here is that the School District’s privacy argument is based upon sheer conjecture and abstraction. For nearly six months Ash used the boys’ bathroom while at school and school sponsored-events without incident or complaint from another student.
And the court drew a distinction between concerns of the adults vs. those of the students:
In fact, it was only when a teacher witnessed Ash washing his hands in the restroom that his bathroom usage once more became an issue in the School District’s eyes.
…neither party has offered any evidence or even alleged that the School District has received any complaints from other students. (Emphasis in original).
This is the first transgender case I have read that looks beyond the law, into biology. Look at this:
Further, it is unclear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex. The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex. Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another.
The decision is not binding here in Texas, but will be important in any litigation Texas schools get involved in. And, of course, we await further developments on this from the legislature. Stay tuned!
The case of Whitaker v. Kenosha USD was decided by the 7th Circuit on May 30, 2017. It can be found at 2017 WL 2331751.
DAWG BONE: MAYBE WE ALL NEED TO GO BACK TO BIOLOGY 101.
File this one under: TRANSGENDER STUDENTS
We knew this one was coming. SB 160 tells the Commissioner that he must never again implement a system of monitoring schools by measuring how many, or what percentage, of students in the district are receiving special education services. Thus we mark the end of the controversy about the PBMAS indicator that targeted any district that identified more than 8.5% of its kids.
Thus we return to a fundamental principle of special education law: eligibility must be decided case-by-case, ARD meeting by ARD meeting, based exclusively on the evaluation data pertaining to that child. There should be no pressure, direct or indirect, from the district administration or from the state agency to make a particular child eligible, or not.
No one makes a child eligible for special education but the members of the ARD Committee. Not the parent. Not the principal. Not the president. Not the pope.
DAWG BONE: SO LONG, PBMAS INDICATOR #10!
File this one under: SPECIAL EDUCATION and LEGISLATION 2017
Tomorrow: A new and important decision about transgender students
The legislature passed two bills dealing with cameras in the special education classrooms—SB 1398 and HB 61. We don’t know which one the governor will sign, but it doesn’t make any difference. As to cameras in the classroom, the two bills are identical. The difference in the two bills is that HB 61 includes some other provisions as well.
So even though we don’t know which one Governor Abbott will sign, we are pretty sure he will sign off on one of them. So here is a quick summary:
This is one of the new laws I will be featuring in my annual Back to School Tour this fall. We are bringing the BTS to nine locations in September and early October. You can register at www.legaldigestevents.com. Hope to see you there.
DAWG BONE: BE GRATEFUL: IT’S AN IMPROVEMENT.
File this one under: SPECIAL EDUCATION and LEGISLATION 2017
Tomorrow: new law orders TEA to never again use that 8.5% indicator.
The Toolbox is an all day training program focused on disciplinary options for students with disabilities. In the Toolbox, we break down the complicated federal regulations into ten “tools” that are available to school administrators. However, we always emphasize that the main goal is to encourage improved student behavior. Handling student misconduct exclusively through old school, punitive measures is simply not effective. So we always emphasize that the most important of the ten tools is the first one: the development and implementation of a good BIP (Behavior Improvement Plan).
This becomes even more evident and important as lawmakers discourage some of the traditional forms of student discipline, such as out of school suspension. In that context, you need to take a look at HB 674, recently enacted by the Texas legislature and now awaiting the Governor’s signature. Highlights of HB 674:
1. It prohibits the out of school suspension of a student below grade three unless the student commits an offense involving weapons, drugs, alcohol or violence. Other offenses that may lead to suspension under your Code of Conduct will have to be treated differently if the student is in Pre-K, K, or grades 1 or 2.
2. It authorizes, but does not require, districts and charter schools to develop disciplinary alternatives for the little kids. Specifically, the bill calls for “alternative disciplinary courses of action that do not rely on the use of in-school suspension, out-of-school suspension, or placement in a DAEP.”
The message we are getting is pretty clear. Let’s move away from exclusionary forms of discipline, and take a more positive, inclusive, restorative approach. Everything we discuss in the Toolbox training is consistent with that message.
I’ve got Toolbox trainings coming up in Region 16, Region 6 and Del Rio. If you are interested in a Toolbox Training, just let me know.
DAWG BONE: NO OUT-OF-SCHOOL SUSPENSION FOR KIDS BELOW GRADE THREE.
File this one under: STUDENT DISCIPLINE
Tomorrow: Cameras in the classroom!! A new and improved law.
Sue Ann Easterling had experience coaching gymnastics, softball, basketball, volleyball and track. Then she applied for a job as head football coach/athletic director. She had never coached football and never served as A.D.
She didn’t get the job. In fact, she didn’t get an interview. The school district offered the job to one guy, who turned it down at the last minute, and then they promoted their interim coach to the job.
Ms. Easterling sued and took it all the way to the 5th Circuit. But she lost her case. The district offered several good reasons for its decision not to hire her. The district saved money by hiring the interim guy who was already an employee. Plus, this contributed to continuity in the football program. But I suspect that the main reason they passed on Ms. Easterling was because of her lack of experience as either a football coach, or an A.D.
What’s noteworthy about this very simple case is how the district did not muck it up by saying things that, perhaps, some of the people in the district thought. Apparently, nobody said things like:
*But you are a woman—you can’t coach football.
**Hah!! Are you crazy?!?!
***Our boosters would never accept a woman in that position.
****There are no female football coaches in Louisiana and we don’t want to be first.
Nope. They stuck to the basics. We want someone who has some experience, and you don’t have it.
The case of Easterling v. Tensas Parish School Board was decided by the 5th Circuit on March 20, 2017. We found it at 2017 WL 1065531.
DAWG BONE: JUST WONDERING: DO WE HAVE FEMALE FOOTBALL COACHES IN TEXAS? FLORIDA HAS ONE. SO DO THE ARIZONA CARDINALS.
File this one under: LABOR AND EMPLOYMENT
Tomorrow: Toolbox Tuesday and a new piece of legislation!