All posts by Jim Walsh

Dawg Bones

How does your LSSP stack up against Ph.D. psychologists?

In a special education case recently decided by a federal court in Texas, the parent’s attorney argued that the private evaluations of the child were superior to the evaluation conducted by the school. Why?  Because the people who did the private evaluation on behalf of the Ziggurat Group had doctorates. The school’s evaluation was conducted by a Ph.D.-less Licensed Specialist in School Psychology.  The court did not view the credentials of the experts to be the key issue:

And Plaintiff has cited to no authority to show that the Court (or the SEHO) [Special Education Hearing Officer] should give greater weight to an expert opinion merely because of the degree held by that expert. The Ziggurat Group’s opinions are entitled to no greater deference than the opinions of [the LSSP] or other District officials.

Background to this: the hearing officer (Lucius Bunton) put into his ruling that the district’s evaluation was “more substantial, thorough, and credible than those of the Ziggurat Group.”  This finding was instrumental in Mr. Bunton’s ruling in favor of the district. Thus on appeal, the parents argued that the hearing officer had it wrong.  People with Ph.D.’s, they argued, were superior experts, entitled to greater deference.

The court first noted that the parent had identified no legal authority to back up this argument.  Beyond that, the court also noted previous cases that put more emphasis on contact with the student as opposed to degrees and credentials:

School personnel often have greater contact with a handicapped child than does a treating physician.  Teague ISD v. Todd L., 999 F.2d 127 (5th Cir. 1993)

Indeed, many courts have recognized the deference that should be given to a school district’s professionals in considering whether a school district has complied with the IDEA. See M.S. v. Poway USD, 2013 WL 4401673…(noting that “any differences of opinion between [the plaintiff’s] expert and the [school district’s] expert, without something more such as….discriminatory intent…[is] insufficient to overcome that deference”;

Then there was DiRocco v. Board of Education of Beacon City School District, 2013 WL 25959:

Finding that “the [c]ourt is not at liberty to favor [the] opinion…of a privately hired expert, over the deference that should appropriately be afforded to the [school] [d]istrict in matters of educational policy.”

Here’s one more from E.S. v. Katonah-Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010:

The mere fact that a separately hired expert has recommended different programming does nothing to change [the]…deference to the district and its trained educators.

Thus the court concluded that the hearing officer was well within his authority to find the school’s evaluation to be the better one.  The parent’s claim of a denial of FAPE fell short, as did the request for reimbursement for private school tuition.

The case is T.C. v. Lewisville ISD, decided by the federal court for the Eastern District of Texas on March 18, 2016.

DAWG BONE: IT’S GOOD TO HAVE A DOCTORATE. BUT IT DOESN’T AUTOMATICALLY MAKE YOUR EVALUATON THE BETTER ONE.

File this one under:  SPECIAL EDUCATION

READERS!! The Walsh Gallegos Student Code of Conduct for 2016-17 is now available! Make sure to get your district prepared for next school year with the latest version of this essential product.  Our web-based, user friendly product provides students and parents clear information while giving administrators a critical tool for dealing with difficult issues. 

Subscribe to the Student Code of Conduct, or renew your subscription today!

TOMORROW IS TOOLBOX TUESDAY.  WE LOOK AT A CASE INVOLVING HANDCUFFS ON A SEVEN YEAR OLD.

Dawg Bones

Kid jumps from moving school bus. Gets hurt. Sues district.

The suit filed by Idolinda Salinas on behalf of her son was not as silly as it sounds.  When you read that a student jumped out of a moving school bus, I’m guessing that your first reaction is that this one is completely frivolous.  But if you read the entire opinion from the Texas Court of Appeals for Austin, you may change your mind. The court ruled against Ms. Salinas, holding that the district was entitled to immunity.  But the court came to that conclusion only after a careful analysis of some good arguments.

Here’s what Ms. Salinas alleged occurred.  The driver drove past her son’s bus stop. The boy asked the driver to pull over and let him out, but she refused.  The student tried to climb out the window, but that did not work. So he walked to the back of the bus, stood by the exit door for a “significant amount of time” and then opened the back door. This triggered a buzzer, which was designed to alert the driver that someone was trying to open the back door.  The suit alleged that the boy then jumped out and sustained injuries.  The suit alleged that the driver did not see him at the rear of the bus, did not respond to the buzzer, did not see him jump out, and continued to accelerate as he did. Then she saw the boy on the ground, and pulled over.

That’s what was alleged.  Many of those alleged facts would likely be in dispute if the case went to a trial. But it did not go to a trial. The district moved for dismissal of the suit based on its immunity. Under those circumstances, the court is required to treat as true all of the facts as alleged.

So the case presents this question: if a school bus driver negligently fails to supervise the kids, fails to notice that a student is trying to open the rear door, fails to respond to the buzzer that goes off when the rear door is ajar, and fails to see a student actually jump out of the bus, is the school district liable?  The court said “no.”

Texas school districts are liable when a bus driver is negligent in the “use or operation” of the bus and the injury “arises from” that negligence.  Here, the plaintiff accused the driver of negligence in supervising the kids, but not in the “use or operation” of the bus.  Moreover, there was an insufficient “nexus” to show that the injury of the student “arose from” the alleged negligence of the driver. After all, the direct cause of the injury had nothing to do with a buzzer or an open rear door. The direct cause was the jump from a moving vehicle.

We don’t know from this opinion how badly hurt the student was.  However, the court’s final paragraph tells us that the plaintiff “suffered terrible injuries.”  By way of a semi-apology, the court noted that “the legislature has enacted only a narrow waiver of governmental immunity.”  This case failed to make it through that narrow waiver.

The case of Austin ISD v. Salinas was decided by the Third Court of Appeal in Austin on April 14, 2016.  We found it at 2016 WL 1566707.

DAWG BONE: NEGLIGENCE IN SUPERVISING THE KIDS ON THE BUS IS NOT THE SAME AS NEGLIGENCE IN THE “USE OR OPERATION” OF THE BUS.

 

Dawg Bones

Transgender students and the bathroom: new federal guidance

The bathroom wars are intensifying.  One day the Lieutenant Governor stirs the pot in Fort Worth, seeking the dismissal of the superintendent because of the guidelines he issued about transgender students.   The next day the Department of Education’s (DOE) Office for Civil Rights (OCR) issues another of their “Dear Colleague” letters on this topic. What to make of this?

The main thing to know about the new letter is that it makes the federal government’s position crystal clear: “When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.”   The letter puts it plainly: “The Departments [meaning Department of Education and Department of Justice] treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”  The letter asserts that “The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination.”

What this means in practical terms is that if a parent or student files a complaint with the DOE alleging that a student has been denied access to the bathroom or locker room that corresponds with the student’s gender identity,  the DOE’s Office for Civil Rights will rule for the parent/student and against the district.

Elected leaders at the statewide level in Texas are pushing back aggressively on this issue.  Thus, once again, schools get caught in the culture war crossfire.  Opinions in your district will probably run the gamut, but one thing they will have in common is that they will be strongly held.

The Dawg encourages calm voices, common sense and good legal advice on this issue.  Please note that the DOE letter does not require any changes to policy for those districts that have TASB model FFH (Local) in place.  Rather, the letter spells out how districts should respond to specific requests from a parent or student.

Here at Walsh Gallegos we are ready to help you navigate this situation.

DAWG BONE: THE LATEST VENUE FOR THE CULTURE WAR: THE SCHOOL BATHROOM

TOMORROW: KID JUMPS OUT OF MOVING SCHOOL BUS.  YOU GUESSED IT: LAWSUIT!

Dawg Bones

Supreme Court issues school finance decision

Friday the 13th was indeed unlucky for the many school districts that alleged that our school finance system is unconstitutional.  The Supreme Court of Texas came together on this—unanimously upholding the current system, warts and all.  Herewith just a few quotes from the opinion, written by Justice Willett:

For the seventh time since the late 1980s we are called upon to assess the constitutionality of the Texas school finance system, a recondite scheme for which the word “Byzantine” seems generous.

In this round, more than half of the State’s 1000 plus school districts have brought the most far-reaching funding challenge in Texas history. We are presented with a court reporter’s record exceeding 200,000 pages and a trial court judgment accompanied by 1,508 findings of fact and 118 conclusions of law. Dozens of briefs, many filed by new parties raising new claims, frame the intricate arguments now before us.  The depth and breadth of Texans’ attention is understandable—and commendable: Good education is good policy. 

The money quote comes in the next paragraph:

Despite the imperfections of the current school funding regime, it meets minimum constitutional requirements.

Then the court tells us just how “imperfect” the current regime is:

Texas’s more than five million school children deserve better than serial litigation over an increasingly Daedalean “system.”  They deserve transformational, top-to-bottom reforms that amount to more than Band-Aid on top of Band-Aid. They deserve a revamped, nonsclerotic system fit for the 21st century.

I think this marks the end of school finance litigation in Texas.  When the Supreme Court unanimously slams the door on “the most far-reaching challenge in Texas history” I think it is telling us: go away and don’t come back.

If I’m right about that, then all of us who care about the success of public education need to double our efforts with the Texas Legislature.  There will be no “transformational, top-to-bottom reform” via litigation. It can only come through the legislature.

The case will be known as Morath v. The Texas Taxpayer and Student Fairness Coalition, decided May 13, 2016.

DAWG BONE:  NEXT SESSION STARTS IN JANUARY

TOMORROW: A WORD OR TWO ABOUT THE BATHROOM ISSUE

Dawg Bones

It’s Toolbox Tuesday! Why is it a bad idea to put “suspension” or “ISS” in a student’s BIP?

We like to celebrate the Toolbox around here on Tuesdays. The Toolbox is an all day training program, outlining 10 “tools” available to school administrators when dealing with disruptive behavior from students with disabilities.

Tool #1—a.k.a. “The Most Important Tool”—is a Behavior Intervention Plan (BIP).  Schools have a lot of discretion as to how to write a BIP.  If you want to put things like ISS and out-of-school suspension in a student’s BIP there is no law to stop you.  So take this as just one Dawg’s opinion. But we think it’s a bad idea to do this. Why? Let’s enumerate.

First, a BIP is supposed to be about POSITIVE behavioral interventions, strategies and supports.  Kicking the kid out of the classroom for a while is not “positive.”  It’s a management tool. There are times when it may be necessary…but it’s still not “positive.”

Second, putting these options into a BIP is inviting an argument with the parent that you don’t need to have.  Remember that the BIP is developed by the ARD Committee. The parent, as a member of the ARDC, may object to the inclusion of these options. What then?  You could say, “Well, sir, we’re going to do it anyway. We just thought we’d ask for your permission.”

Third, putting these options into a BIP is redundant. Your Code of Conduct already includes these short term disciplinary consequences as an option.

Some might point out that it’s important for the parent to understand that ISS and suspensions are possible.  Agreed.  It’s important to be very clear with parents about this point.  But the document that makes that clear is the Code of Conduct—not an individual student’s BIP.  So reference to ISS and suspension should be in the Code of Conduct—not a BIP. What you list in a BIP are the positive behavioral interventions that you think will reduce the likelihood that you will have to enforce the Code of Conduct.

In other words, make sure the parents understand that the student with a BIP remains subject to the Code of Conduct. The BIP is intended to help the student comply with the Code of Conduct.

DAWG BONE: THE BIP IS ALL ABOUT POSITIVE INTERVENTIONS—NOT EXCLUSIONARY DISCIPLINE.

TOMORROW: THE LONG AWAITED SCHOOL FINANCE DECISION

Dawg Bones

The jury ruled in my favor. Then the court ignored that, and ruled for the other guy. How can that be?

On TV and the movies, the jury verdict is always the climactic moment.  But here’s a little known fact: the judge can overrule the jury.  The losing party can file a Motion for Judgment Notwithstanding the Verdict (JNOV), which is exactly what it sounds like. It essentially says: “Your honor: the jury got it wrong. There is no evidence in the record to support the conclusion that they came to.”

Trinidad Rivera just learned this the hard way. Mr. Rivera got a verdict in his favor ($42,000) against the Port Arthur ISD. Mr. Rivera claimed that he was moved out of his coaching position and reassigned to a less favorable position as an act of retaliation for the lawsuit he had filed against the district several years earlier. This made sense to the jury. But the judge overturned it, finding that there was no more than “a scintilla” of evidence that the earlier lawsuit had anything to do with the reassignment.  Mr. Rivera appealed the decision, but the Court of Appeals affirmed the judge’s ruling.  Thus that nice verdict goes poof.

The case is Rivera v. Port Arthur ISD, decided by the Court of Appeals for Corpus Christi and Edinburg on April 21, 2016. We found it at 2016 WL 1613285.

DAWG BONE: TALK LIKE A LAWYER: USE “SCINTILLA” IN A SENTENCE TODAY.

READERS!! The Walsh Gallegos Student Code of Conduct will be released on May 20th! Make sure to get your district prepared for next school year with the latest version of this essential product.  Our web-based, user friendly product provides clear information to students and parents while giving administrators a critical tool for dealing with difficult issues. 

Subscribe to the Student Code of Conduct, or renew your subscription today!

Dawg Bones

Dear Dawg: Are we required to offer “PAWternity Leave”?

Dear Dawg: We have an employee who wants to take “PAWternity leave.”  You read that right, Dawg. This is not related to paternity. It’s about his new cat. He claims that he needs some time—just one day—to get this feline “settled in” to his new surroundings.  He claims that enlightened employers have been providing this kind of leave for years.  Now we try to be as enlightened as the next district, but REALLY?  Plus, this guy is completely out of leave. So if he misses another day of work, we’re going to dock him.  Have you heard of this?  I figured if anyone has heard of PAWternity leave, it would be the Law Dawg.  SHEESH.

DEAR SHEESH:

Yes, the Dawg has heard of this, but only across the pond.  There are employers in England who provide this kind of leave. But I don’t think we want to model ourselves after the Brits.  What would be next: tea and crumpets in mid-afternoon?  References to “the loo”?  “God Save the Queen” instead of “I Pledge Allegiance”?  If you want to do this, I’m sure that the good folks at TASB will help you write a local policy to accommodate it. But the Dawg does not recommend it. And certainly not for cats.

DAWG BONE: PAW-TERNITY LEAVE IS A MATTER OF LOCAL DISCRETION.

Dawg Bones

Dear AG: The school is violating my rights by telling me I can’t bring my gun into the administration building. Set them straight!

A citizen complained to the Attorney General that the Elgin ISD was violating the law by excluding handgun license holders from carrying their guns into the school administration building. The school had posted the appropriate signs just inside the two front entrances of the building.  Everyone knows that guns are prohibited in the building where the teachers and the kids are. But what about the admin building?

The AG concluded that the district did not violate the law:

Having concluded that the district is an educational institution pursuant to Penal Code Section 46.03(a)(1), the OAG determines the signage at the front entrance of the district’s administration building is not in violation of section 411.209 of the Government Code.  The OAG is closing this complaint.

This is from a letter dated April 29, 2016, signed by Assistant Attorney General Matthew Entsminger, closing out OAG Complaint No. 23.

DAWG BONE: THE A.G. VIEWS THE ADMIN BUILDING AS A PLACE WHERE GUNS ARE PROHIBITED.

TOMORROW: A TYPE OF EMPLOYEE LEAVE YOU MAY NOT KNOW ABOUT!

 

Dawg Bones

Should UT have fired Major Applewhite?

Today’s Daily Dawg has nothing to do with football, but it does involve former UT quarterback and assistant coach, Major Applewhite.  I expect most readers will remember that name.  Major was the guy right before Vince Young.  Major’s name has come up in a lawsuit filed by former UT track coach, Beverly Kearney.

In 2012, UT informed Coach Kearney that it was planning to terminate her employment due to her inappropriate personal relationship with a student a decade earlier.  Coach Kearney admitted this indiscretion.  Rather than being fired, she resigned.

Then she filed suit.  Coach Kearney had been extraordinarily successful at UT. She coached the women’s track and field team for about 21 years and regularly lit up the orange tower with conference and national championships.  In her suit, she alleges that she won more competitions than any other African-American coach in the history of NCAA sports.  Moreover, at the time of her termination, she was the only African-American head coach in UT’s history.

It did not escape Coach Kearney’s attention that the University was planning to fire an African-American woman, but it did not fire white males who she believed had engaged in similar behavior.   In her suit Coach Kearney mentions a volleyball coach, various professors, a department chair and a high level administrator. But it was the assistant football coach who was mentioned most prominently.  UT did not fire Assistant Coach Applewhite after he acknowledged that he had a one-night stand with a student trainer after UT’s victory over Ohio State in the Fiesta Bowl.  The University imposed some disciplinary consequences on Coach Applewhite, but he remained on the staff, and later got a pay raise. In the lawsuit, Coach Kearney alleges that Applewhite and she engaged in similar misconduct. UT was about to fire her.  Not him.

But was their misconduct “similar”?  That is the big issue that this case will have to address before it is over.  UT filed a Plea to the Jurisdiction, seeking to get the case tossed out.  That Plea was partially successful.  The Court of Appeals in Austin ruled that some of Coach Kearney’s claims should be dismissed.  However, the Court did not dismiss the “disparate treatment” claim.

A termination case based on “disparate treatment” requires proof of four key facts: 1) the plaintiff was a member of a protected class; 2) she was qualified for her position; 3) she was terminated; and 4) she was treated less favorably than similarly situated members of the opposing class.  The University’s Plea to the Jurisdiction argued that Coach Kearney and Coach Applewhite were not “similarly situated.” But the court pointed out that UT offered no evidence to back up that assertion.  “Instead,” the court notes, “the University asserts only arguments as to what the evidence would show had it offered any.”  (Emphasis in the original).

Thus: Plea to the Jurisdiction denied. The case moves forward.

We expect UT will take another shot at getting this case dismissed prior to a trial, this time bolstering its assertions with evidence to compare Coach Kearney and Coach Applewhite.  If the pre-trial motions fail, this one will be decided by a judge or jury who will answer the question: were these two employees “similarly situated”?  If they were—why were they not treated the same?

For our purposes, the case is a good reminder of the importance of applying the same standards to employees who are similarly situated.  Furthermore, employers need to be able to articulate the rational basis for any distinctions.

The case of The University of Texas at Austin v. Kearney was decided by the Court of Appeals, Third District in Austin on May 3, 2016.

DAWG BONE: IT’S OK TO TREAT EMPLOYEES DIFFERENTLY, AS LONG AS YOU CAN EXPLAIN THE RATIONAL AND NON-DISCRIMINATORY REASON FOR THAT.

 

TOMORROW: CAN YOU BRING A GUN INTO THE SCHOOL ADMINISTRATION BUILDING?

Dawg Bones

It’s Toolbox Tuesday! Let’s go over the drug offense rules.

On Tuesdays, we like to highlight the Toolbox—a one-day training program designed to equip school administrators with the ten “tools” they can use to maintain a safe campus while serving each student appropriately.  Tool #5 involves “special circumstances.”  Congress has identified three types of offenses that are serious enough that principals are given the authority to order a removal of the student to an “interim alternative educational setting” (IAES) for up to 45 school days. The principal can order the removal, but the ARDC must choose the IAES.  Most of the time, a district’s DAEP will be able to provide appropriate services, and so, it can be designated as the IAES.

But let’s back up a step.  The principal cannot use Tool #5 until it is established that the student has committed one of the three offenses. The shorthand version of the three offenses is: drugs, weapons, and serious bodily injury. But let’s take a closer look at the one about drugs.

The law says that “school personnel” can order the removal of the student:

in cases where a child….(ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function….

Let’s focus for a moment on “KNOWINGLY possesses.”  So a student is brought to the assistant principal because a quantity of marijuana was found in the student’s backpack, or locker, or car.  Have you ever encountered the student who responded: “I had no idea! I don’t know how it could have gotten there!”

You may be inclined to blow that off.  Many administrators have told me, “Kids always say that.” Maybe they do. But the statute puts the burden on the school to determine that the student’s possession of drugs was “knowing.” We think the best way to do that is to provide the student the same due process procedures that are afforded to the general education student. Hear the student out. Consider the evidence.  Make a finding based on the evidence that you heard that the student’s possession was “knowing.”  Your conclusion, after hearing both sides of the story and considered the evidence, will carry a lot of weight.

DAWG BONE: YOU HAVE TO READ EVERY WORD IN THE STATUTE.

TOMORROW: SHOULD THE LONGHORNS HAVE FIRED MAJOR APPLEWHITE?