All posts by Jim Walsh

Dawg Bones

“It’s a privilege….not a right.”

We often hear people refer to extracurricular activities as a “privilege…not a right.”  We classify that statement as legally correct…..but professionally naïve.

We say that extras are a “privilege” because, as a general rule, the student’s right to an education does not extend to after school activities.  The Texas Constitution requires that we have a system of public free schools. The courts have held that a student’s right to an education is a piece of property, thus implicating the 5th and 14th Amendments to the Constitution. The government (your school) cannot take a person’s property from them (student’s right to an education) without providing “due process of law.”  But case after case has held that the right to an education refers to instruction during the school day—not the fun stuff that happens after that.

But woe to the school administrator who cites this common phrase when dealing with an angry parent.  Your lips may say “It’s a privilege not a right,” but the parents’ ears will process this as “I don’t give a flip about your kid.”  So be careful when dealing with the ABCDs: athletics, band, cheerleaders and drill team.  Be fair.  Moreover, make sure that your process looks fair.

These issues can spin out of control.  I recall the superintendent who asked me if the band boosters were required to register with Homeland Security as a terrorist organization.  So be careful with your phraseology.  That old “privilege, not a right” language might better be left to your lawyer if it comes to that.

DAWG BONE: WITH EXTRACURRICULARS BE FAIR…AND MAKE SURE THAT YOU ARE PERCEIVED AS FAIR.

Dawg Bones

Pitchers and catchers have reported to spring training! Play ball!!

The Texas Longhorns open their baseball season tonight.  Pitchers and catchers for the Astros, the Rangers and all the other teams have reported to Florida or Arizona for spring training.  It begins again—this long sporting season that replicates the seasons of nature.  It gives us hope in the spring; wears us down in the heat of the summer; and then we earn our harvest of bounty or famine in the fall.

Thus my annual reminder to you school administrators of how school administration is like baseball. We will just emphasize one part of that this year: the part about you not controlling the action.  You don’t have the ball.

Baseball is unique in this respect.  It is the only game in which the defense has the ball. The offense is left with the near impossible task of hitting a round object, traveling at very high speed, with a rounded off piece of wood (or aluminum).  It is no wonder that the offense usually fails. In what other endeavor is success 300 times out of 1000 chances considered exemplary?

But that’s baseball for you, and that’s life also. And that’s school administration.  We don’t have the ball, and we don’t control the action. We just have to be ready at all times, alert, in good shape and able to react and respond.

Let’s hope you bat better than .300 this spring.

Dawg Bones

5th Circuit Upends Conventional Wisdom About IEEs

The 5th Circuit has issued an important decision regarding IEEs for parents of students with disabilities.  Under our federal special education law, IDEA, parents are entitled to an IEE if they disagree with the evaluation conducted by the school.  Parents frequently request that the IEE be conducted at school district expense.  Lawyers have typically advised school administrators that when parents request a publicly funded IEE, the school must either pay for the IEE or request a due process hearing to show that its own evaluation is appropriate.  Reluctant to invoke the formal, expensive and legalistic due process mechanism, schools more often than not simply pay for the IEE.  Now, the 5th Circuit is telling us that it doesn’t have to work that way.

The court pointed out that districts can decline to pay for an IEE for two possible reasons: first, because its own evaluation is appropriate; or second, because the IEE fails to satisfy the district’s criteria.  The court held that the district is required to initiate the hearing process ONLY if it relies on the first reason.  If, on the other hand, the district objects to paying for the IEE due to its non-compliance with the district’s criteria, it can simply refuse to pay for it. This puts the burden on the parent to request a due process hearing.

The court affirmed the notion that an IEE must satisfy the district’s criteria for such an evaluation. However, it put a twist on that by holding that “substantial compliance” is all that is required.  School district lawyers argued that this puts us on the proverbial “slippery slope” toward the day when districts will be required to reimburse parents for shoddy or skimpy “evaluations.” The court tried to assuage these fears:

Although the slippery slope is always a concern when the law accepts a less-than-perfect compliance, we find the risk acceptable here, given the strong statutory interests favoring a substantial compliance standard and the use of such standards elsewhere in the IDEA case law. We do not suggest that “a couple of paragraphs” or a “prescription pad” notation will now pass muster.  Indeed, the determination will necessarily turn on the particular facts and agency criteria at issue in each case. “Substantial compliance,” allowing reimbursement in this context, means that insignificant or trivial deviations from the letter of agency criteria may be acceptable as long as there is substantive compliance with all material provisions of the agency criteria and the IEE provides detailed, rigorously produced and accessibly presented data.

This is an important precedent for us in Texas.  Directors of special education will want to take a fresh look at their IEE criteria and procedures.  If you have a request for IEE reimbursement, by all means talk to your school district lawyer about how to proceed in light of Seth B. v. Orleans Parish School Board. The case was decided by the 5th Circuit on January 13, 2016.  We found it at 116 LRP 1452.

DAWG BONE: TWO WAYS TO DENY IEE REIMBURSEMENT. 

Dawg Bones

Dear Dawg: My child’s charter school has one of those pictures of Jesus, right there in the front hall. You can’t miss it. Now don’t get me wrong, I’m a good Christian, but this is one of those pictures where his eyes followed you wherever you went. Yikes! Is this OK in a public school?

My Uncle Frank and Aunt Eileen had one of those pictures.  I remember that whenever we went to visit at their house, Jesus was right there, on the wall right above the TV, with those disapproving eyes following my every move.  At least it seemed to me they were disapproving eyes. Guilty conscience maybe?  In any event, it was creepy.

So can you have one of these artistic renderings in a public school?  No. What about a public charter school?  The answer to that is also “no.”  What if the charter school is renting space from a church?  No.

That’s the main point in the TO THE CHARTER SCHOOL ADMINISTRATOR ADDRESSED letter dated December 9, 2015.  The letter is from Heather Mauze, Director of the Division of Charter School Administration.  It’s a short, to the point letter. Key Quotes:

As you are aware, charter schools are public schools that receive public tax dollars….

As such, it is not appropriate for any public schools to have religious iconography present in its classrooms or in any public spaces used by the school.

The state realizes that some of our charter schools have entered into lease agreements with churches and consequently are tasked with providing an assurance that all religious iconography has been removed or covered during the school day and during any after-hour school events.

So there you have it. No beating around the burning bush here.

DAWG BONE: RELIGIOUS ICONS: TAKE THEM DOWN OR COVER THEM UP.

Dawg Bones

It’s Toolbox Tuesday! Are there any guidelines for DAEPs?

We like to address special education discipline issues here on Tuesday, thus highlighting The Toolbox. The Toolbox is a full day workshop that provides ten “tools” available to school administrators when dealing with disruptive and/or violent behavior from students with disabilities (SWD).  Today, we’re focusing on Tool #6: a disciplinary change of placement to the DAEP.

Texas law has required alternative education programs for the kids who commit serious offenses since 1995. That year our legislature mandated what were then called “AEPs”—Alternative Education Programs. With the proliferation of other “alternative” campuses it seemed logical to add the D to that designation. Thus we now have Disciplinary Alternative Education Programs—DAEPs.

We have raised the standards for these programs over the past 20 years.  A four-hour program supervised by a teacher’s aide will not suffice.  The Texas Administrative Code lays out detailed standards at 19 T.A.C. 103.1201.  That’s a fairly long regulation and we are not going to repeat the whole thing here. But we think those of you responsible for DAEPs should not only read the regulation. You should study it.

For today, we are just going to highlight one provision in that regulation.  It requires “written contracts between students, parents or guardians, and the DAEP that formalize expectations and establish the students’ individual plans for success.”

Are you doing that?  Notice that this contract for “individual” success is not limited to the students with disabilities.  This is required for each student at the DAEP.  But with the student with a disability, the ARDC should have some voice in the development of these individual plans.  Thus when using Tool #6, the student’s proposed change of placement will come to the ARDC. The ARDC must 1) conduct a manifestation determination; and 2) if the behavior of the student is not a manifestation of disability, make sure that the DAEP can provide appropriate services. Among other things, this should include making sure that the DAEP satisfied state standards.

That’s where the regulations come into play, and the written contract. So take a look at the regulations and be sure you are fully in compliance.  And if you are interested in Toolbox training, shoot me an email at jwalsh@wabsa.com.

DAWG BONE: DON’T SKIMP ON THE DAEP.  MAKE IT A STRONG PROGRAM.

Dawg Bones

HAPPY PRESIDENTS’ DAY!

Well of course today is about Washington, Lincoln and those guys, but it reminded the Dawg that school boards have presidents also!  The selection process for board president is—thankfully—a lot simpler and cheaper than the process we inflict on ourselves as a nation every four years.  The board president is chosen by the members of the board, so there is not a lot of campaigning or debating to be done.  But there can be legal challenges.

In fact, one of the early Attorney General opinions interpreting the Texas Open Meetings Act involved the selection of a board officer, presumably the president, by secret ballot in closed session.  Attorney General John Hill expressed the opinion that you can’t do that.  It would be OK to talk about board officers in closed session, as that is a “personnel” matter, but no straw votes or secret ballots. The vote must take place in open session.

Practically speaking, if you participate in the closed session when an issue is being discussed, you can usually figure out how each board member is going to vote. After all, the purpose of closing the meeting to the public is to allow the board members to discuss freely the more sensitive issues, such as personnel matters, behind closed doors. But no voting. Not even for president.

That AG Opinion is H-1163 from 1978.

DAWG BONE: SOMETIMES I WISH THE ENTIRE PRESIDENTIAL ELECTION WOULD MOVE INTO CLOSED SESSION.

Dawg Bones

It’s a fact. I’m more buff than your typical principal. So what’s wrong with that???

Dear Dawg: I guess the teachers thought it would be amusing to put that picture of me, the principal, on the wall in the teacher’s lounge.  But I think it would have been better if they had used a more professional picture. They caught me shortly after my afternoon workout on the track, dripping with sweat, shirtless.  The caption read: “OUR RIPPED PRINCIPAL AND FAVORITE VALENTINE!  WE LOVE YOU!!”

Well….on the one hand, I am honored, and being loved by the teachers is a good thing.  On the other, this sort of smacks of sexual harassment, doesn’t it?  What should I do?  IT IS A GOOD PICTURE. WANT ONE?

DEAR IT IS:  No, you don’t need to send the picture. I will take your word for it. We congratulate you on your buff appearance and the fact that your teaching staff holds you in high esteem. But yes, we think you should take down the picture and put it in your personal files.  No doubt you will want to show it off someday to your fellow residents at the Linger Longer Assistive Living Facility.

The Dawg wishes all readers a happy V-Day!  But keep it platonic, people!

DAWG BONE: WE LOVE V-DAY, BUT IT DOES OPEN A CAN OF SEXUAL HARASSMENT WORMS.

Dawg Bones

Hardin-Jefferson wins one in federal court. Hearing officer decision reversed.

A federal district court has reversed the erroneous decision of a Texas special education hearing officer, confirming, once again, that there is nothing wrong with centralizing services for low-incidence populations.  The case involved W.M., a middle school student.  Everyone agreed that W.M. was properly placed in a LIFE skills unit, a self-contained classroom. The argument between the school and the parents was about the location of services.

W.M. lived in Hardin-Jefferson ISD, one of three districts that participated in the Gulf Coast Co-op for the provision of special education services.  The problem was that there were not enough kids who needed placement in LIFE skills to justify such a unit in each district. Thus the Shared Services Agreement inked by the three districts stated that the middle school LIFE skills classroom would be in Hamshire-Fannett.  W.M. would have to ride a bus 18 miles to get to school.  His parents disagreed with this arrangement and requested a due process hearing.

The special education hearing officer ruled in favor of the parents.  There are four factors courts and hearing officers apply in determining whether or not a district has provided a student a FAPE (Free Appropriate Public Education). The hearing officer ruled in favor of HJISD on three of the four. But based solely on one of those four factors—LRE (Least Restrictive Environment), the hearing officer ruled that the district denied FAPE by offering services to W.M. only at Hamshire-Fannett.

The district appealed that decision and obtained a reversal of it. This not only validates the district’s actions. It also blocked the parents’ request for payment of their attorneys’ fees.  The federal court noted that the hearing officer went wrong by getting “location” and “placement” confused.  They are distinct things, but the hearing officer treated them as the same. In this case, the “placement” was a self-contained LIFE skills unit. The “location” was Hamshire-Fannett Middle School. The “location,” or as some courts have put it, the “site selection,” was not in the student’s home school district.  But parents do not have as much say-so on “location” as they do “placement.”  This is not a new concept.  The federal judge cited 5th Circuit authority from 20 years ago in support of her decision:

That parents must be involved in determining “educational placement” does not necessarily mean they must be involved in site selection….Schools have significant authority to determine the school site for providing IDEA services.  Flour Bluff ISD v. Katherine M. 91 F.3d 689 (5th Cir. 1996).

This distinction between “placement” and “site selection” enables districts to allocate resources properly.  That 5th Circuit case, for example, was about hearing impaired students.  There are not that many of them.  To serve such students appropriately, the law recognizes that school districts must manage their scarce resources efficiently.  Providing high quality services at a central location is usually the better choice.

The case is W.M. v. Hardin-Jefferson ISD and Gulf Coast Special Education Cooperative. It was decided by Judge Marcia Crone of the Eastern District of Texas on January 13, 2016.

DAWG BONE: REMEMBER THIS AT YOUR ARDC MEETINGS: DECIDE PLACEMENT FIRST—THEN LOCATION.

Dawg Bones

Can a female A.P. reach into the pants pockets of a boy’s skinny jeans?

D.N. initially denied that he was the one who brought the stink bomb to school. But so many kids fingered him that the administrators brought him in for questioning.  The boy finally ‘fessed up and provided a written statement.  The assistant principal then conducted a search.  Looking into the pockets of the student’s hoodie, she found what are commonly called brass knuckles.  This led to more searching, including the deep dive into the pockets, both front and back, of the skinny jeans.

The boy was expelled and assigned to the JJAEP.  He never went.  His parents provided home schooling for two years, and then sued the district claiming constitutional violations. Specifically, they alleged a violation of the 14th Amendment (Due Process) and the 4th (Illegal Search).

The court held that the boy was provided all of the due process he was entitled to.  Significantly, though, the court also held that the assignment to JJAEP was not a deprivation of “property.” Thus there could be no 14th Amendment violation:

Because D.N. was permitted to serve his punishment in an alternative education program, he was not denied access to public education and, accordingly, his 14th Amendment property interest in a free public education was not violated.

As to the 4th Amendment, the court held that the A.P. was entitled to qualified immunity.  The court noted that this search was “justified at the inception” by virtue of the boy’s admission of bringing a stink bomb to school. And the discovery of the knuckles justified a further inspection.  Was the search “excessively intrusive”?  The court was dubious:

Plaintiff points to no authority holding under circumstances such as this, that a school principal’s or assistant principal’s search of a male student’s pockets by reaching into them while the student is fully clothed is an objectively unreasonable or unconstitutional search. Although it is highly improbable that the facts as stated here by Plaintiff amount to a constitutional violation, it is clear as a matter of law that the conduct did not violate a “clearly established” right and, at the very least, the Individual Defendants are entitled to qualified immunity on Plaintiff’s 4th Amendment claim.

The case is Deyo v. Tomball ISD, decided by the Southern District of Texas on November 11, 2015.  We found it at 2015 WL 6971642.  It’s on appeal to the 5th Circuit, so stay tuned.

DAWG BONE: OK, BUT DON’T GO INTO THOSE POCKETS UNLESS YOU NEED TO. AND DON’T STAY LONG.

Dawg Bones

“Straight Outta Compton” it’s Toolbox Tuesday!!

Practically every day I read some news story about a student discipline situation that ends up in court and makes me think: “they should have been using Restorative Practices.”  One of the benefits of Restorative Practices is that the risk of litigation will go down.  Fewer district resources will be allocated to legal defense costs.  On the other hand, there is now at least one reported case in which the plaintiffs are asking the court to require the school district to convert from its punitive discipline system to one based on Restorative Practices. That case comes “Straight Outta Compton.”

The plaintiffs in the case against the Compton Unified School District assert that the students in Compton have experienced traumatic events that “profoundly affect their psychological, emotional, and physical well-being.”  The suit describes these traumatic events as “exposure to violence and loss, family disruptions related to deportation, incarceration and/or the foster system, systemic racism and discrimination, and the extreme stress of lacking basic necessities, such as not knowing where the next meal will come from or where to sleep that night.”

This is what I call a “cause” lawsuit.  The plaintiffs in Compton seek no money.  They want a court order requiring the school to become a “trauma-sensitive school.”   They define such a school as exhibiting three core components: 1) TRAINING of educators to recognize, understand and proactively address the effects of complex trauma through building students’ self-regulation and social-emotional skills; 2) RESTORATIVE PRACTICES to build healthy relationships and resolve conflicts peacefully rather than using punitive discipline; and 3) ensuring that CONSISTENT MENTAL HEALTH SUPPORT is available.

Some of you may be wondering: what does this case have to do with Toolbox Tuesday? The Toolbox is a full day training program designed to empower educators to use ten “tools” when dealing with disruptive or violent behavior from students with disabilities. I’m proud of the Toolbox and love doing the training. But I like to remind myself and others that the Toolbox represents a very imperfect solution to the problem. The better solution is to address student misconduct in the context of relationships, and meaningful student accountability.  Restorative Practices move us in the right direction.

The issue of trauma, and its effect on kids, is sure to get more attention in the future, as it should.  And if you think that problems like this are confined to Compton, California, and places like it, let me quote some comments from Amarillo ISD teacher, Shanna Peeples after she was honored as the National Teacher of the Year.  In an interview with The Texas Tribune, she was asked if she sees trauma in her classroom, she said:

Totally.  That is the most woefully underfunded need of students. It is a sort of invisible need that we don’t think about and that is mental health services….We need a dedicated mental health counselor. We see students that have struggled with depression, severe anxiety, what really seems like post-traumatic stress disorder. They have seen horrible things, and that’s not just my refugee students. That includes regular students growing up with domestic violence.

Safety is the number one thing you have to deal with children in trauma. They have to feel physically safe and emotionally safe. You can’t learn when you are terrified.

That is something I hope to bring more attention to in this position. There are particular needs for students in trauma and how trauma is related to poverty.

It would be great if Texas would listen to Ms. Peeples, the National Teacher of the Year. It would be great if we would create and support trauma-sensitive schools without the pressure of a lawsuit.  Moving toward Restorative Practices is the right thing to do.

DAWG BONE: MOVING BEYOND THE TOOLBOX TO RESTORATIVE PRACTICES IS THE RIGHT THING TO DO.