All posts by Jim Walsh

Dawg Bones

Welcome to the Trump Administration

I thought that today was going to be the day when we inaugurated our first female president.  Alas, that day will have to wait. But in honor of Hillary Clinton and all of the women who have pushed that glass ceiling, we offer a brief commentary on the utterly obscure case of Press v. Pasadena ISD. 

This case arose when an 8th grade girl defied the school’s dress code by wearing a pantsuit to school.  A pantsuit!!  The dress code prohibited the girls from wearing “any type trouser garment.”

I know what you are asking yourself: when was this?????

It was 1971.  Where were you?  Are any of you old enough to remember schools that prohibited girls from wearing “any type trouser garment”?

I know for a fact that in the late 60s girls at Baylor had to obtain “pants permission” if they wanted to wear jeans or any “trouser type garment” on the BU campus.  Sheesh.

Young Ms. Press lost her case. The federal judge said that federal courts ought to steer clear of food fights like this one, but also held that the school had violated no legal standards.  The court did not even bother to address the fact that the dress code treated girls differently from the boys.

Of course this was before Title IX.  It was a time when there were probably zero female school superintendents in Texas.  The idea of a woman president would have been laughed at. So we have come a long way.  We now have laws that prohibit sex discrimination. We have many female superintendents.  No one laughed at Hillary’s run for high office and in fact, she got more votes than the other guy.  Next time, maybe the woman wins.

This wonderfully wacky old case was decided by the federal court for the Southern District of Texas on March 4, 1971. You can find it at 326 F.Supp. 550.

DAWG BONE: PANTS TO PRESIDENT IS A LONG, LONG JOURNEY

Dawg Bones

SCOTUS hears arguments over what FAPE really means

Last week the Supreme Court heard oral arguments in a special education case.  The issue before the court is: what does “FAPE” mean?  How do we know that the school has offered an IEP that meets the standards in the law?

SCOTUS addressed this issue years ago in the case of Board of Education v. Rowley.  In that 1982 decision, the Court construed our federal special education law for the first time.  The decision told us that schools were not required to maximize a child’s education, but had to offer a set of services that would confer some educational benefit.  How much is “some”?  Hmmm.

In the Rowley case, the Court specifically noted how difficult it would be to come up with a single standard that applied to the wide spectrum of students with disabilities. Therefore, the Court confined its analysis to kids like Amy Rowley—students with disabilities (Amy was deaf) who were bright enough to be served in the mainstream, general education classroom. With students like that, the Court said, moving from grade to grade on time with the other students was good enough.  If the student passed from grade to grade, the student was receiving FAPE. The Court deferred to a later day any decision about what “some benefit” means for students not capable of meeting grade level standards.

Now that day has come.  The case before the Court involves a student with autism who is not on grade level and likely never will be.  For a student like that, what does “some benefit” mean?

The lawyers for the student point out that IDEA has been significantly changed since 1982 when the Court last considered this question.  It now includes requirements that all students should be learning “the general curriculum.” It requires planning for postsecondary life.  It requires almost all students to be included in the state’s accountability program at grade level. In other words, the argument is that the early version of IDEA only required that schools open the door to students with disabilities; now it requires a higher level of services.

The lawyers for the school district argued that the Rowley standard has never been overturned by Congress, the definition in the law of “FAPE” is the same now as it was then.

The justices asked a lot of good questions.  They obviously were well prepared to hear these arguments, and were struggling with what precise words would create a proper standard. The problem inherent in this situation is the utter ambiguity of any standard anyone offered. There is much talk in the oral argument about the meaning of words like “meaningful” “significant”  “some” and “more than de minimis.”  Whatever emerges from this case is likely to be a murky, imprecise, ambiguous label that will do little to provide clarity.

We’ll keep you posted on this.  Wanna read the transcript of the argument?  Here it is:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-827_gfbh.pdf

The case is Endrew F. v. Douglas County School District RE-1. 

DAWG BONE: WE MAY HAVE TO UPDATE THAT OLD “CHEVY v. CADILLAC” ANALOGY.

File this one under: SPECIAL EDUCATION

Tomorrow: Our new president….

Dawg Bones

The Potty Bill!!

Our Lieutenant Governor thinks that our womenfolk are in grave danger.  He has made it a high priority for the legislature to enact SB 6, AKA “the bathroom bill” so that male sexual predators will no longer be able to assault women in public restrooms designated for women. I did not realize that this was a major problem.  Perhaps reports of these assaults go directly to the Lieutenant Gov. They sure haven’t made the news much.

The business community has pushed back hard on this, fearing that it will be perceived as discriminatory and lead to boycotts like has happened in North Carolina. Sensitive to business pressures, Dan Patrick’s bill basically leaves private business free to do what they want with their bathrooms, even if they are renting space from the government.  So if Starbucks wants to open their bathrooms to all comers, that’s OK.  If the NCAA rents the Alamodome for the Final Four, it will be able to allow men to go into the women’s bathrooms as much as they want. We don’t want to get in the way of bidness.

Mr. Patrick is not as concerned about pushback from the education community.  Nor is he much of a proponent of local control on these issues.  The bill, oddly, declares that public school districts are not political subdivisions of the state. They aren’t?  That is certainly contrary to numerous other provisions in the law.  Nevertheless, this bill has one set of rules for “political subdivisions” and another for school districts and charter schools. The difference is that political subdivisions, such as cities, can lease space to private businesses that allow transgender people to use the bathroom that corresponds with their gender identity.  This opens the door to the Final Four at the Alamodome.  Schools can’t do that.

The bill does allow a school to accommodate “special circumstances” without identifying what such circumstances are.  In the event of such “special circumstances” a school may allow a person to use a single-occupancy bathroom or “the controlled use” of a faculty bathroom.  But the school may not accommodate the special case by allowing the person to use a multi-occupancy bathroom designated for the opposite sex.

No word yet on school finance. Maybe after the legislature deals with this pressing issue it can turn its attention to that nagging problem.  Stay tuned.

DAWG BONE: KEEP AN EYE ON SB 6—THE BATHROOM BILL.

Tomorrow: SCOTUS hears arguments over what FAPE really means.

Dawg Bones

It’s Toolbox Tuesday!! What do we do when the student’s behavior is a manifestation of disability?

We like to highlight The Toolbox around here on Tuesdays. The Toolbox is a one-day training program accompanied by a book and some laminated charts, all focused on serving students appropriately while maintaining discipline and safety.

One of the more challenging situations you will encounter is when a student commits a serious violation of your Code of Conduct, but the behavior is a manifestation of the student’s disability.  What then?

Federal law is actually pretty specific and detailed about this and so we spend quite a bit of time on this in the Toolbox Training. But if you want the shorthand version of what to do, here it is:

DON’T PUNISH IT

DON’T IGNORE IT

That makes sense.  If a student’s behavior is directly attributable to the student’s disability, you would not want to punish it. That would the same as punishing the student for having a disability. We call that disability-based discrimination.

But you can’t ignore inappropriate behavior.  So the thing to do is to call for an ARD meeting and discuss what can be done to teach the student more appropriate behaviors.  That’s what BIPs are all about.

If you are interested in a Toolbox Training, just let me know.

DAWG BONE: THE BEHAVIOR IS A MANIFESTATION OF DISABILITY: DON’T PUNISH IT. DON’T IGNORE IT. 

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Protecting the women?  Or discriminating against transgender people?

Dawg Bones

Teacher violates school policy. Is fired. Commissioner overturns the decision

If a teacher violates school policy pertaining to the use of physical force with students, the teacher can be fired….right?  That would be especially true if the teacher had been reprimanded and warned previously about the use of force with kids….right?

Apparently not. Commissioner Morath has overturned the firing of Daniel Villarreal, a teacher in Edinburg ISD.  The Commissioner concluded that the board’s action was “arbitrary and capricious” because the school board in Edinburg “did not use the standards set out in the Restatement of Torts, Second Edition or another valid standard to conclude that [Mr. Villarreal did not have an objectively reasonable belief that force was necessary.”

We’re guessing that not too many of you are up to speed on the Restatement of Torts.  No one but law students and law professors read that tome.  But it looks like we need to add Commissioner Morath to that list.  In this decision, the Commissioner points out that the Restatement is “in harmony” with Texas case law regarding the use of physical force in the school setting.  In that context, the following factors should be considered:

(a) The age, sex and condition of the child;

(b) The nature of the student’s offense or conduct, and the student’s motives;

(c) The influence of this student’s conduct on other students;

(d) Whether the force was reasonably necessary to compel obedience to a proper command; and

(e) Whether the force was disproportionate to the offense, was unnecessarily degrading, or was likely to cause serious injury.

We expect that most administrators would think that there are a couple of other relevant factors, such as: did the teacher violate our policy?  Did the teacher disregard a directive?

The Commissioner specifically addresses those factors and blows them off.  Read this carefully:

When an employee is using reasonable force, a district cannot take disciplinary action against an employee because he was directed by an administrator not to use force.  Likewise, when an employee is using reasonable force, a district cannot take disciplinary action against an employee because a policy provides that force can only be used to protect a person from physical injury.  The use of reasonable force cannot directly or indirectly be the basis for taking disciplinary action against the employee.  While school districts can normally take action against teachers for violations of policy, if a teacher’s actions are protected by the immunity for use of force under Texas Education Code 22.0512, a school district cannot take action against the teacher for violating its policy.

So the critical issue is not whether the teacher violated policy or directives. The critical issue is whether the force used was “reasonable.”

The school administration recommended the termination of this teacher. The independent hearing officer supported that recommendation. The board voted to terminate the teacher’s contract. And now the Commissioner has reversed that decision.  The case is Villarreal v. Edinburg CISD, T.E.A. Docket No. 063-R2-08-2016, decided on October 6, 2016.

DAWG BONE: VIOLATING POLICY IS NOT ENOUGH TO GET YOU FIRED IF THE FORCE YOU USED WAS “REASONABLE.”

 File this one under: TEACHER TERMINATION

Tomorrow: Toolbox Tuesday looks at what to do when the behavior of the student is a manifestation of disability.

Dawg Bones

Bet you didn’t know this about Christmas traditions in the Netherlands…..

Did you know that in the Netherlands the Christmas tradition involves Sinterklaas (Santa Claus) accompanied not by elves but by “six to eight black men”? No? Me neither. At least not until I read Melnyk v. Teaneck Board of Education. Let me ‘splain.

This brouhaha started when a high school teacher of Literature and Creative Writing assigned her students to read an essay by David Sedaris entitled “Six to Eight Black Men.” This happened on December 6, 2013—St. Nicholas’ Day. The teacher, a woman of Dutch descent, probably enjoyed teaching the students about the customs in her family’s ancestral home. Those customs include people dressing up as Zwarte Piet, the traditional name for the “six to eight black men” who helped out Sinterklaas with the delivery of presents.

If you do a little Google research on Zwarte Piet you will quickly discover that ZP has become a lightning rod for controversy over racism vs. political correctness in the Netherlands. White people who dress up as black people may find it amusing to do so, but the evidence is pretty clear that many people, of all colors, find such customs to be offensive, insensitive and a cruel reminder of parts of our past we are not proud of. So there have been protests and lawsuits in the Netherlands over this and the custom seems to be evolving toward a more inclusive kind of ZP.

But back to our story. According to the court, Ms. Melnyk told her students that people in the Netherlands still dress up as ZP. Then she pulled out her cell phone to show the kids a picture of her relatives who still live in the old country: white folks in black face.

It did not go over well with at least one student, who promptly told the teacher that she found the picture to be racist and offensive. One can imagine the teacher’s defensive reaction to that—after all, these were not anonymous Dutch people on her cell phone. This was family. Thus she defended the practice as simply an illustration of cultural differences. The student still said the picture was offensive, and the teacher broadened the dispute by pointing out that “the Dutch had abolished slavery long before the United States.”

The student reported the incident to another teacher. From there, it went to an assistant principal, the superintendent, and then the district’s anti-bullying specialist, who conducted a formal investigation. That investigator concluded that Ms. Melnyk had violated the district’s HIB policy (Harassment, Intimidation and Bullying) by displaying a picture that was “reasonably perceived as motivated by race or color” and “created a hostile environment for [the student].” The administration issued a formal reprimand to the teacher.

Ms. Melnyk filed a grievance over this and won. Pursuant to the district’s collective bargaining agreement the matter ended up in front of an arbitrator who ordered the district to remove the reprimand from the personnel file. A New Jersey court affirmed that decision.

You would think that would be the end of our story but it’s not. Ms. Melnyk then filed suit, naming the district, the superintendent, the A.P. and the anti-bullying specialist. In the suit, she alleged that the district’s HIB Policy was an unconstitutional infringement of her rights to free speech.

She lost. The court held that the HIB Policy was carefully crafted so as not to infringe on the right of free speech. As to this particular incident, the court held that Ms. Melnyk’s decision to display that photo on her cell phone was not protected speech, mostly because it happened in the classroom. Key Quote:

Taking form and content into consideration, courts have found that in-classroom speech made by an educator pursuant as part of a curriculum is not speech on a matter of public concern.

Lawyers for the teacher cited cases involving university professors, where academic freedom is more robust, but the court held that those cases were not relevant. The court pointed out four key distinctions between public schools and higher education:

1. K-12 schools are involved in inculcating societal values; universities encourage broader explorations;
2. K-12 teachers and administrators act “in loco parentis”;
3. K-12 schools “face special needs of school discipline; and
4. K-12 schools must consider the maturity level of the students.

So there you have it. An interesting read for a Friday. The case of Melnyk v. Teaneck Board of Education was decided by the U.S. District Court for New Jersey on November 22, 2016.

DAWG BONE: TEACHERS DON’T HAVE MUCH “ACADEMIC FREEDOM” WHEN ON THE JOB AND IN THE CLASSROOM.

File this one under: FREE SPEECH

Dawg Bones

Failure to evaluate: a critical error

We have various ways of making this point—evaluation data is absolutely crucial in special education.  Evaluation data is the rudder that steers the ship.  Evaluation data is to the ARD Committee what evidence is to the jury.  This point was hammered home yet again in a decision from the 9th Circuit.  The court held that the district committed a procedural error that resulted in a denial of FAPE and a failure to provide meaningful parent participation in the IEP process.  The court faulted the district for not evaluating for autism when the student showed symptoms of the condition.  Following 9th Circuit precedent, the court was emphatic:

So that there may be no similar misunderstanding in the future, we will say it once again: the failure to obtain critical and statutorily mandated medical information about an autistic child and about his particular educational needs ‘renders the accomplishment of the IDEA’s goals—and the achievement of FAPE—impossible.’  (Emphasis in the original).

The court cited earlier 9th Circuit cases for the notion that a student “must be assessed by a school district, when the district has notice that the child has displayed symptoms of that disability.”  Key Quote:

…if a school district is on notice that a child may have a particular disorder, it must assess that child for that disorder, regardless of the subjective views of its staff members concerning the likely outcome of such an assessment.  That notice may come in the form of expressed parental concerns about a child’s symptoms….of expressed opinions by informed professionals,….or even by less formal indicators, such as the child’s behavior in or out of the classroom.  A school district cannot disregard a non-frivolous suspicion of which it becomes aware simply because of the subjective views of its staff, nor can it dispel this suspicion through informal observation.

 The case is Timothy O. v. Paso Robles USD, decided by the 9th Circuit on May 23, 2016.  We found it at 67 IDELR 227, and it is now officially cited at 822 F.3d 1105.

DAWG BONE: TWO, FOUR, SIX, EIGHT….LET US NOW EVALUATE

File this one under: SPECIAL EDUCATION

Tomorrow: David Sedaris, a teacher of Dutch ancestry, and a Christmas tradition you may not have heard of.

 

Dawg Bones

Can Kids in Middle School Form a Gay-Straight Alliance Club?

The federal Equal Access Act applies to any “public secondary school which receives Federal financial assistance.”  If your school meets that definition, and you permit any “noncurricular student group” to use your facilities, you must permit any and all such groups, regardless of their religious or political beliefs.  While the Equal Access Act was intended to benefit student prayer circles and Bible studies, its primary beneficiary has been the Gay-Straight Alliance and similar groups that support LGBT students.

A district in Florida received an application to allow a Gay-Straight group to meet at the Carver Middle School.  Carver serves grades 6-8. Is that a “public secondary school”?  According to the 11th Circuit, it is. Therefore, the school must permit the Gay-Straight Alliance group to meet.

The court based this ruling on the state law definition of “secondary education.” That’s because the Equal Access Act defines a “secondary school” as “a public school which provides secondary education as determined by State law.”  Turning to Florida law, the court concluded that a school was “providing secondary education” if it provides courses for which students can obtain high school credit.  Carver MS offers Algebra I.  Kids who take that course in 8th grade get high school credit.  Bingo—Carver is a “secondary school” and the Equal Access Act applies.

What about Texas?  We suspect the answer would be the same. After all, our Administrative Code’s description of a “secondary curriculum” begins with grades 6-8.

The case is Carver Middle School Gay-Straight Alliance v. School Board of Lake County, Florida, decided by the 11th Circuit on December 6, 2016.

DAWG BONE: CHECK OUT STATE LAW TO SEE IF YOUR MIDDLE SCHOOL IS A “SECONDARY” SCHOOL

 File this one under: EQUAL ACCESS ACT

Tomorrow: Another reminder of the fundamentals.

Dawg Bones

Toolbox Tuesday: Counseling. Special Ed Counseling. Is there a difference?

On Tuesdays around here we like to put the spotlight on The Toolbox.  This is a full day training program that our firm provides, focusing on the more challenging behaviors we sometimes see from kids with disabilities.

In the Toolbox training we talk a lot about BIPs and other means of encouraging appropriate student behavior. Often, this involves counseling. And that leads to today’s topic: Is there a difference between “counseling” and “special ed counseling”?

Looking into this recently, I discovered that our laws never use the term “special education counseling.”  However, our laws do refer to two different types of counseling: there is “counseling” and then there is “counseling as a related service.”  I expect when people refer to “special ed counseling” they are referring to “counseling as a related service.”

Counseling as a related service is available under federal law (IDEA) just as any other “related service.”  That means that the services are “required to assist a child with a disability to benefit from special education.”  34 CFR 300.34(a).

But students with a disability can also receive general counseling.  Consider a student with a disability who is pregnant.  Our state laws authorize counseling for that student.  She does not need counseling to benefit from instructional services. She needs counseling to cope with this new and scary reality in her life.  The same might be true for a student whose parents are getting divorced, or the student whose father just got incarcerated.

Take a look at your local policy.  Many of you have adopted a version of EJ Local that authorizes counseling to deal with school attitudes, self-confidence, healthy relationships, life satisfaction and other worthy objectives.  None of these are directly tied to a need to benefit from the special education instruction services offered by the school.

So the ARDC should decide if counseling is needed in order to benefit from the special education services. If so, the IEP should reflect that the student will receive “counseling as a related service.”  That also means that the IEP should specify the frequency, duration and location of services.   But whether “counseling as a related service” is needed or not, the student remains eligible for general ed counseling services, just like any other student.

DAWG BONE: AS USUAL, IT COMES DOWN TO THE ARD COMMITTEE’S CALL.

File this one under: SPECIAL EDUCATION

Tomorrow: Can the middle school have a Gay-Straight Alliance club?

Dawg Bones

Big verdict vs. Keller ISD tossed out

In October, 2013, a jury awarded the Rideau family $1,000,000 in damages.  Keller ISD was ordered to pay that amount to compensate for injuries to a student with a disability and his parents.  But since that time, that big jury award has been whittled down, and now it has been wiped off the books altogether.

The case has a complicated procedural history, but the main point for today is that the court concluded that the evidence the jury heard was not sufficient for them to reach the verdict that they reached.  Some of you may be wondering: can a judge do that?  Can a judge set aside a jury verdict because the judge thinks the evidence was lacking, even though the jury does not?  The answer is yes. Judges can do that, and in this case, the judge did that.

The school district’s argument was that the evidence simply did not show “deliberate indifference.” This is a case in which a teacher was accused of mistreatment of a student with a disability.  The court did not dispute the fact that the teacher mistreated the student. But that fact is not enough to impose liability on the school district. The jury has to have evidence to show that the school knew what was happening and responded with “deliberate indifference.”  After recounting how the various administrators responded to the information they received, the court concluded that “the jury did not have a legally sufficient evidentiary basis to find that Keller was deliberately indifferent.”

“Deliberate indifference” is very hard to prove.   As the court’s opinion in this case points out, you can be “inept” and yet not be “deliberately indifferent.”  Despite that reality, administrators should remember that documentation of what you knew, when you knew it, and what you did about it is the key to showing that you were neither “inept” nor “deliberately indifferent.”

While the standard for avoiding legal liability is low (avoiding “deliberate indifference”) the standard for educator accountability should be high.  If a teacher mistreats a student, the first thing for the school administration to do is to hold the teacher accountable through appropriate consequences.  Let the lawyers worry about the legal standards for liability if it should come to that. Focus on student safety and teacher professionalism…and set a high bar for that.

The case is Plainscapital Bank v. Keller ISD, decided by the U.S. District Court for the Northern District of Texas on November 29, 2016.  We found it at 116 LRP 49954.

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

 File this one under: LIABILITY

Tomorrow: have you ever wondered about the distinction between “counseling” and “special ed counseling”?