All posts by Jim Walsh

Dawg Bones

What really prompted the lawsuit: the “search” of the kid’s sketchpad? Or the “cavity” search by the cops?

Context is important. You may recall that the mass shooting at Sandy Hook Elementary school in Newtown, Connecticut occurred on a Friday.  Here’s what happened in Egg Harbor, New Jersey the next Monday:

Three days after Sandy Hook, one of K.J. Jr.’s teachers saw a drawing in K.J.’s sketchbook that concerned her. When school officials reviewed K.J.’s other drawings they found a drawing of what appeared to be a weapon, which prompted them to detain K.J. and call the police. The police searched K.J.’s home and found parts that might have been used to make the weapon depicted in the drawing. Shortly thereafter, K.J. was arrested and placed in a juvenile detention facility, where he remained for over two weeks. Upon his release, he was placed under house arrest and forced to wear an ankle monitor until, several months later, the judge presiding over his trial dismissed one of the charges entirely and found K.J. not guilty on the remaining counts.

This sequence of events prompted a 103-page lawsuit alleging 25 causes of action against the district and 17 individual defendants. The plaintiff alleged that K.J. lost at least 14 months of education and was subjected to multiple constitutional and state law violations.  Among other things, the suit alleges what while in juvie the boy was strip searched and “cavity searched.”  That does not refer to dental work.

You have to wonder: would any of that have happened if the school was not on heightened alert due to Sandy Hook? We will never know.  But of course the court applies legal principles to the situation regardless of context.  As it turned out, the court tossed out most of the 25 causes of action.  Of particular interest to us in Texas is how the court addressed the constitutional issues.

The court dismissed the claims that were based on an allegedly illegal search of the student’s sketchpad. The court cited the New Jersey v. T.L.O. case for the proposition that school officials only need a “reasonable suspicion” of wrongdoing to justify a search.  The teacher saw a drawing that concerned her. Thus there was an “individualized suspicion” that was reasonable. Moreover, the court made note of the important fact that the vice principal conducted a minimally intrusive search.  He looked at the sketchpad—not at any of the student’s personal belongings.

However, the court held that the suit alleged facts that could support a legitimate 1st Amendment claim against the superintendent, the principal and the vice principal.  The student’s drawings were a form of “expression” protected by the 1st Amendment. The student was suspended because of the content of his drawings.  To justify this infringement on 1st Amendment rights, the school has to convince the court that it could reasonably foresee a material disruption of school.  At this stage of the game, the court was not convinced.  The fact that this happened three days after the worst school shooting incident in U.S. history did not alter that analysis.

DAWG BONE: STUDENTS HAVE CONSTITUTIONAL RIGHTS, EVEN THREE DAYS AFTER SANDY HOOK.

Dawg Bones

Hey! Check out this cool website from the State Bar!

You oughta take a look at www.texaslre.org.  When you see that “LRE” part of the address you will probably assume this has something to do with special education.  Nope.  It has nothing to do with “least restrictive environment.  In this case “LRE” means “Law Related Education.” The State Bar has launched a truly cool website with all manner of age appropriate games for kids to learn about citizenship, geography and government.

How do I know that it’s cool?  Because my 7-year old grandson says so.  So check it out, and be sure to get your social studies teachers to look it over.

DAWG BONE:  THE STATE BAR OF TEXAS IN SERVICE TO THE PUBLIC SCHOOLS!!

Dawg Bones

From Porn Star to Math Tutor to Plaintiff

David Benoit Mech is a math tutor in Florida, operating under the name “The Happy/Fun Math Tutor.” Now that’s a valuable guy—someone who can make math both “fun” and “happy.”  The man is well equipped to provide these services. He has a master’s degree and is enrolled in a Ph.D. program in Florida.  Mr. Mech provided his tutoring services to kids in the Palm Beach County School District, and also supported the district through financial contributions.

The Palm Beach County School District came up with an innovative way to honor and thank people like the Fun Math Tutor.  It adopted a policy to recognize “athletic sponsors and other business partners” by displaying banners on school district property that recognized the sponsors.  The school maintained control over the banners.  They were to be of a uniform size, color and font and would not include photographs or large logos. Just a simple “thank you” to the sponsor.

So the Happy Fun Math Tutor must have been pleased to see his banner hanging on the fences of three schools in the district.  However, some parents did a bit of investigation and found out that the Fun Math guy was also the owner of Dave Pounder Productions, a company that formerly produced pornography.  It turns out the Happy Math guy was himself a former porn star who had appeared in hundreds of films.  This bothered some of the parents in the community, especially when they discovered that the math business shared the same mailing address as Dave Pounder Productions.

The district took the banners down.  The Fun Math guy sued, alleging a violation of the First Amendment.

The court ruled for the school on this one, relying on the Supreme Court’s recent decision,  Walker v. Texas Division, Sons of Confederate Veterans, Inc.  That’s the case in which the Supreme Court ruled that specialty license plates were “government speech” rather than the expression of the owner of the vehicle. Therefore, Texas could ban a specialty plate featuring the Confederate flag.

The federal court saw this case as much the same thing. The banners were “government speech.” If the Palm Beach County School District did not want to be associated with the Fun Math guy, it was permitted to make that decision.  The school banners implicitly indicated that the school approved of the company, and the school maintained control of the message on the banners. Therefore, this was “government speech” and did not implicate, much less violate, Mr. Mech’s constitutional rights.

The case is Mech v. School Board of Palm Beach County, Florida, decided by the 11th Circuit Court of Appeals on November 23, 2015.

DAWG BONE:  FIND WAYS TO RECOGNIZE YOUR BUSINESS PARTNERS THAT DON’T CREATE LEGAL PROBLEMS.

Dawg Bones

Is your website accessible to visually impaired people?

The Office for Civil Rights conducted an investigation about accessibility issues in Silsbee ISD in 2014 and 2015.  Some of the complaints that sparked this investigation are of the usual variety when we hear the term “accessibility.” There were concerns about parking places, access to the playground, and gymnasium seating.  Nothing new there.  But the complaints also focused on 21st Century issues—website accessibility.

The complaint asserted that the district “uses fixed fonts and text sizes, uses low-contrast text, and uses clickable images that do not have verbal descriptors.”  After conducting its investigation, OCR’s “preliminary analysis identified 23 accessibility problems with the SISD’s website.”  This was enough for OCR to conclude that the website “does not provide individuals who utilize assistive technology an equal opportunity to participate in or benefit from the website that is afforded to other individuals who do not need to use assistive technology.” In response to these findings and conclusions, the district submitted a Resolution Agreement to fix the problems.

I have a hunch that OCR could find 23 or more accessibility problems with many district websites.  The standard that districts have to meet is a high one.  The expectation is that people with disabilities will be able to access information on your website with “substantially equivalent ease of use” as non-disabled students.  For example, making a teacher’s aide available to read for the visually impaired student is not sufficient since this means that the information would be accessible only when the aide is around, whereas the sighted student has access 24/7.

Someone in your district needs to get up to speed on this. The relevant law is Section 508 of the 1973 Rehabilitation Act.  No—that’s not a typo. We mean Section 508—not 504.  Section 508 is all about accessibility standards for technology.  To learn more, try this website: https://www.w3.org/WAI/WCAG20/quickref/ Or this one: http://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-section-508-standards

DAWG BONE: GET YOUR WEBSITE UP TO 508 STANDARDS!

Dawg Bones

It’s Toolbox Tuesday! Are there tools that the principal can employ “unilaterally”?

The Toolbox is a day-long training session focusing on the disciplinary options schools have when  dealing with students with disabilities. We usually begin the training with an explanation of the one and only case about this issue that has reached the U. S. Supreme Court. The case is Honig v. Doe (1988).  In that case, the Supreme Court noted that Congress had intentionally “stripped” school officials of the “unilateral” authority they had historically employed to exclude students with disabilities from the school setting.  

It’s important to emphasize the word “unilateral.” While school principals no longer have “unilateral” power to remove students with disabilities from the school setting, they are not at all powerless.  In fact, that’s one of the main themes of the Toolbox—to emphasize what “tools” are available and how they can be used properly.

Long term removals of students with disabilities have to go through the ARD process, and are subject to review by a special education hearing officer. Thus no single school official can “unilaterally” remove a student from the school setting on a long term basis.  But campus administrators retain the “unilateral” power to order short term removals, as long as they don’t accumulate to more than 10 days in the school year.  A short term removal within that 10-day window is what we call “Tool #7” in the Toolbox vocabulary—the FAPE-Free Zone.

Principals can also use Tool #10 “unilaterally.” Tool #10 is a referral to law enforcement in those cases where a student may have committed a crime.

Tool #5 comes close to being a tool that can be used “unilaterally.” Tool #5 enables the principal to order a removal of the student to an “interim alternative educational setting” (IAES) for up to 45 school days in cases involving “special circumstances.”  Those circumstances involve either drugs, or a weapon, or the infliction of “serious bodily injury.”  The principal can order this removal regardless of the outcome of the manifestation determination.  So this is close to unilateral authority, but it still requires the ARDC to determine what “IAES” should be used.  So Tool #5 is not quite as simple (or “unilateral”) as Tool #7 or #10.

Does this sound interesting?  Helpful??  Maybe you should book a Toolbox workshop in your district or ESC.  If interested, contact me (jwalsh@wabsa.com) or Haley Armitage (harmitage@wabsa.com).

DAWG BONE: PRINCIPALS STILL HAVE SOME UNILATERAL POWER—JUST NOT AS MUCH AS IN DAYS OF YORE.

Dawg Bones

New Rules for Special Education!

The Commissioner has adopted new rules pertaining to special education that went into effect last Wednesday.  Among other things worthy of your attention, we would point out two highlights:

1. If the parent is “unable to speak English” written notices must be provided “in the parent’s native language, unless it is clearly not feasible to do so.”

2. It’s the IEP you have to translate for the parent—not the ARD meeting. The rules specify that “all of the text in the student’s IEP in English is accurately translated into the target language in written form. The IEP translated into the target language must be a comparable rendition of the IEP in English and not a partial translation or summary of the IEP in English.”

Here are the rules:

http://tea.texas.gov/About_TEA/Laws_and_Rules/Commissioner_Rules_(TAC)/Adopted/15_11_Adopted_Amendments_to_19_TAC_Chapter_89,_Subchapter_AA

DAWG BONE: MAKE SURE YOUR SPECIAL ED STAFF IS UP TO SPEED WITH THE NEW RULES.

Dawg Bones, Uncategorized

Dear Dawg: Who do they think I am—Lance Armstrong????

Dear Dawg: I try to stay in shape, but you know….it gets tough as the years go by.  Motivation is tough.  Hell—just getting up in the morning is tough. So when the principal asked me to be Billy’s one-to-one “biking aide” I thought this might be just what I needed.  You see, I’m a teacher’s aide in the Rim of the World School District. We are located in the beautiful mountains of California and we pride ourselves on our Mountain Biking Team.  This is a very competitive activity around here.

This year we had a kid named Billy who wanted to participate.  Sweet kid—been here a few years and everyone loves him. Billy’s on the autism spectrum, and so everyone figured that being a part of the Mountain Biking Team would be good for him.  Only problem was that Billy needs an aide to be with him all the time—including on extracurriculars.

So the principal asked me to serve as the “biking aide.”  Sure, I thought!  The scenery around here is spectacular, as is the weather.  And how hard could it be, keeping up with Billy?

Well, it wasn’t so hard at first. But Billy applies himself to everything he does, and pretty soon, he was outpacing me.  I just couldn’t make it up some of the mountains, and even on the flat parts, Billy left me so far behind that I lost sight of him.  He got stronger. I got older.  He got faster.  I got fatter.

Now the parents are making a legal issue out of this. Can you believe that???? A LEGAL issue! They claim that the district is obligated to provide an aide “who can keep pace” with Billy.  Dawg, this kid is a very good bike rider. I’m not sure we have anyone who can keep pace with him.  Is this really something we have to do?  TAKING MY TIRED BONES TO THE HOT TUB RIGHT NOW.

DEAR TAKING MY BONES:  Funny you should ask. It turns out that your very school district was involved in a dispute just like that involving a student named Madison Meares.  The parents alleged that the IEP had not been properly implemented, seeing as how the district had run out of aides capable of keeping up with Madison on the mountain bike.

The court ruled for the district, though.  The court was not convinced that Madison’s IEP required an aide for extracurricular activities, but even if it did, the court held that the district provided aides who were adequately trained for the job.  Moreover, the court made this observation:

The Court questions how far Plaintiffs’ logic might be extended; if Madison was the preeminent mountain biker in Southern California, would the District be required to somehow locate a biking aide to keep pace?

So go soak in the hot tub and don’t worry about this one. The case is Meares v. Rim of the World School District, decided by the District Court for the Central District of California on August 13, 2015. We found it at 66 IDELR 39.

DAWG BONE: TEACHER AIDES HAVE TO BE TRAINED, BUT THEY DON’T ALWAYS HAVE TO BE IN SHAPE.

Dawg Bones, Uncategorized

News Bulletin: Female Coaches Can be Just as Crude and Vulgar as Their Male Counterparts! All Hail Title IX!!

We can’t accurately describe all the comments allegedly made by Coach Anne Monterrubio to Coach Catherine Clark at Alamo Heights Junior High.  It would never get past your school district’s filter. Suffice it to say that there was a good deal of vulgarity, some of it focused on Coach Clark’s female parts.  Coach Clark complained about this to the Athletic Coordinator and later to the principal.  Coach Clark eventually filed a lawsuit alleging sexual harassment and retaliation.  In the suit, she alleges that the district did not respond much, and did not follow its own policies. The district tried to get the case tossed out, asserting that Coach Clark had not properly alleged a genuine cause of action. The Court of Appeals refused to dismiss the case.

That does not mean that Coach Clark has a good case—it just means that she alleged facts that, if proven true, could amount to a legitimate cause of action.  The court was ruling on a preliminary matter—a “Plea to the Jurisdiction.”  That means the court has to give the benefit of every doubt to the plaintiff. Keep that in mind as you read on.  This case has a long way to go.  In fact, the district has filed a Motion for En Banc Reconsideration.  That Motion primarily argues that the court erred in seeing these facts as harassment “because of sex.”  The Motion asserts that Coach Monterrubio dispensed inappropriate remarks to male and female coaches alike.  Behavior like that might be called bullying, but the Motion asserts that is it not “based on sex” and therefore, is not sexual harassment.

We shall see what the court does about that, but in the meantime, we think the case is worth your attention because of the court’s interpretation of a TASB-promulgated local policy that has been adopted by many districts.

The lawsuit alleges that Coach Clark first reported that she was being harassed to the Athletic Coordinator.  The suit alleges that “[The Athletic Coordinator]…failed to report Clark’s complaint to any member of the administration as required by district policy.” (Emphasis added).

Later, Coach Clark reported harassment to the principal.  The principal did exactly what you would expect a principal to do. She investigated the matter by interviewing the key players;  she made a decision; she communicated that decision.   So how did she supposedly fail to follow policy?  The court put it this way:

Instead of reporting Clark’s complaint to the appropriate district official, [the principal] conducted her own investigation….”

After the investigation was complete, the principal sent a letter to Clark including her findings, but the court noted that “[the principal’s] report was not filed with a district official as required by district policy.”  (Emphasis added).

Where does the court get the idea that sexual harassment has to be reported to someone other than the principal?  From Policy DIA (Local). In a footnote, the court notes that this policy in AHISD required that employees should report sexual harassment to the employee’s immediate supervisor or the principal. But it goes on to say that “Any district supervisor who receives a report of prohibited conduct shall immediately notify a District official, including the Title IX coordinator….or the Superintendent.”

The court reads this policy as requiring the principal or supervisor who receives a report to also notify the Title IX coordinator or the superintendent.  When all the evidence is presented, the court may find that the proper parties were, in fact, notified.  But the allegation of a failure to follow policy was sufficient to create a “prima facie” case for the plaintiff.

So take a look at your DIA Local.  We looked up two districts’ policies. They both included the following language:

NOTICE OF REPORT:

Any district supervisor who receives a report of prohibited conduct shall immediately notify the appropriate District official listed above and take any other steps required by this policy.

In both districts the term “District official” was defined to include the Title IX Coordinator, the ADA/504 Coordinator and the superintendent.

The case is Clark v. Alamo Heights ISD, decided by the Court of Civil Appeals in San Antonio on October 21, 2015. We found it at 2015 WL 6163252.

DAWG BONE: MAKE SURE YOUR ADMINISTRATORS REVIEW POLICY DIA (LOCAL).

Dawg Bones, Uncategorized

Let’s add this to the list of “things not to say” about bullying.

J.R. was a student in New York City who was picked on by the other kids. The court case tells us that J.R. had “major depressive disorder, panic disorder with agoraphobia, and borderline personality disorder,” and that he was bullied based on his race, gender and “perceived femininity.”

It was pretty bad for J.R.  He was hospitalized more than once due to depression and suicidal ideation.  The lawsuit filed by J.R. and his parents alleges that the New York City schools should be held legally liable for the bullying of J.R.

Parents have a high burden of proof in a case like that.  They have to prove that the bullying was really bad; that it was based on disability (Section 504 cases) or gender (Title IX); that the district knew about it; and that the district was “deliberately indifferent.”

It’s that last part that presents the highest hurdle. School officials make mistakes, but are rarely “deliberately indifferent.”  Thus most of these cases get tossed out of court for lack of evidence of any “deliberate indifference.”

This case is not being tossed out—largely because of the principal’s response to the student’s request for a transfer to a different bus. The court cited this as the type of evidence that a jury might rely on to conclude that the school was “deliberately indifferent.” Here’s how the court put it:

For example, in response to complaints about the harassment endured by J.R. on the bus, the QCPC principal did not intervene; instead, she told Plaintiffs that the bullying was likely to continue given the violent nature of the student body.  Although the “deliberate indifference” standard does not require that teachers and school administrators successfully prevent or eradicate all bullying behavior, surely some effort to discourage that conduct and announce its unacceptability is required.

So let’s learn from New York’s mistakes.  If a student requests a transfer to another bus, or another classroom, due to bullying, let’s not respond with: “Well, we can do that. But you know these kids today. The bullying is going to continue.”

Let’s say something better than that. The case is J.R. v. New York City Department of
Education, decided by the federal district court for the Eastern District of New York on August 20, 2015.  We found it at 66 IDELR 32.

DAWG BONE: PROOF OF “DELIBERATE INDIFFERENCE” USUALLY COMES STRAIGHT OUT OF A SCHOOL OFFICIAL’S MOUTH. THINK BEFORE YOU TALK.

Dawg Bones, Uncategorized

It’s Toolbox Tuesday!! Our special education director told me there were “mandatory” BIPs and “discretionary” BIPs. Really? What’s this all about?

Tool #1 in The Toolbox is a BIP—a Behavior Intervention Plan.  We call it your most important tool, in part because if it works, you can put the rest of the Toolbox away.  A BIP is the only tool in the Toolbox that is designed to improve the student’s behavior.

The law does not use the terms “mandatory” and “discretionary” with regard to BIPs, but we  know where your director got that terminology, and we think it makes sense.  The law requires a BIP in some cases; and leaves it to the discretion of the ARDC in others. Thus: mandatory, discretionary.

A BIP is mandatory under IDEA only when 1) the student violates the Code of Conduct in a way that would call for a change of placement; and 2) the ARDC determines that the student’s behavior was a manifestation of disability.  For example, a student with autism physically assaults another student.  This is a violation of the Code of Conduct that would normally result in a change of placement to the DAEP. But the ARDC determines that the assault was directly caused by the student’s disability.   IDEA regulations say that in a case like that, the ARDC must either develop a BIP for the student, or review and revise an already existing BIP.  This is mandatory.

In all other cases, BIPs are discretionary.  ARDCs should consider developing a BIP for students “whose behavior impedes the child’s learning or that of others.”  34 CFR 300.324(a)(2)(i). This is one of the “special factors” that ARDCs are required to consider in connection with each IEP. So it should be on your agenda for consideration at each annual ARDC meeting.  Ask the team: does this child’s behavior impede his/her learning? Or that of others?  If the ARDC says “yes” then the team must “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” Notice that it is mandatory that you ask the question: does behavior impede learning? But even when the answer is “yes,” it is not mandatory that you develop a BIP.  It’s discretionary.

Either way—a mandatory or discretionary BIP—Texas requires that the BIP be included in the student’s IEP:

The committee [ARDC] may determine that a behavior improvement plan or a behavioral intervention plan is appropriate for a student for whom the committee has developed an individualized education program.  If the committee makes that determination, the behavior improvement plan or behavioral intervention plan shall be included as part of the student’s individualized education program and provided to each teacher with responsibility for educating the student.  T.E.C. 29.005(g), emphasis added.

So that’s a quick reminder about some of the features of Tool #1—a BIP.  The Toolbox is a one day training program for school administrators and special education staff, providing 10 tools designed to enable you to maintain safety, while serving each student appropriately and in the least restrictive environment. Interested in a Toolbox training?  Contact me (jwalsh@wabsa.com) or Haley Armitage (harmitage@wabsa.com).

DAWG BONE: TOOL #1 IS, AND SHALL FOREVER BE, YOUR MOST IMPORTANT TOOL!