All posts by Jim Walsh

Dawg Bones

IF THIS IS TUESDAY, IT MUST BE TOOLBOX TUESDAY! TELL US ABOUT TOOL #2…

The Toolbox is a framework for school administrators to use to comply with IDEA while serving students appropriately and safely.  Last Tuesday we focused on Tool #1—a BIP.  This week we turn our attention to Tool #2—an Educational Change of Placement with Parental Agreement.

The “placement” of the student basically refers to the instructional arrangement.  We hope to serve as many students as possible in the mainstream, general education classroom. But the law anticipates that some students will require a more restrictive placement.  Thus ARD Committees always have the authority to change a child’s placement.   A change of placement can be done the easy way, or the hard way. The easy way is with parental agreement.  If the teachers, administrators and parents are all in agreement that a student would be better served in a different type of classroom, the ARD Committee can make that change, fill out the paperwork and sing Kumbaya.  Easy.

But can this happen after the student has committed a violation of the Code of Conduct?  Can the student be assigned to a disciplinary setting, such as DAEP, that would normally be used as a punitive measure?  Federal law makes it clear that this is perfectly permissible—but the key to it is genuine, authentic, voluntary, knowing, fully informed parental agreement.

The Department of Education issued a set of FAQs about discipline and IDEA in 2009. The very first question addressed this issue:

Q. A-1: When the parent(s) of a child and the school personnel are in agreement about the child’s change of placement after the child has violated a code of student conduct, is it considered to be a removal under the discipline provisions?

A. No, if the parent(s) of a child and the school district agree to a change in the current educational placement of the child.

This scenario came up in an 8th Circuit case: Doe v. Todd County School District, 55 IDELR 185 (8th Cir. 2010).  The court held that the school did not violate the student’s constitutional rights to due process by failing to hold a school board hearing to consider the student’s long term disciplinary penalty. The court noted that the IEP Team (ARD) changed the placement of the student to an interim alternative educational setting, with parental agreement. When the parent later changed her mind about this, she should have requested an IEP Team meeting rather than a hearing before the school board.  The school board was powerless to override the IEP Team’s decision, and so a hearing before the board would have been pointless.  Key Quote:

Once the IEP team changed Doe’s placement with Dorothy Doe’s consent, the IEP team, not the school board, became the decision-maker authorized to change his placement again.  Given the IDEA’s stay-put mandate, even if the District had held a Goss hearing at which Doe persuaded the school board that a long-term suspension was not warranted, the board could not have ordered Doe’s reinstatement at [the regular high school].

Tool #2 is usually employed when parents actively seek out a change to a more restrictive, or even a disciplinary placement. Absent that level of parental support, Tool #2 is risky, as questions can always arise as to whether or not the parent’s agreement was genuine, voluntary and fully informed.

We don’t think a simple check box (“I Agree”) at the end of an ARD meeting is sufficient to verify parental agreement with this kind of change of placement.  If you want to employ Tool #2, it’s best to run it by your school attorney. At Walsh Gallegos, we’d be happy to help you with that.

Next week, Toolbox Tuesday will look at the hard way to change a placement—when the parent disagrees.

DAWG BONE: YOU CAN CHANGE PLACEMENT THE EASY WAY OR THE HARD WAY.  THE EASY WAY IS WITH AGREEMENT.

Dawg Bones

WE DON’T HAVE MUCH TO SAY TODAY. WE’RE STANDING IN LINE TO BUY BLUE BELL. BUT WE DID NOTICE THAT FOOTBALL SEASON HAS STARTED!

So long, Ben and Jerry.  Hit the road, Haagen-Dazs.  The Brenham Beauty is Back.  We think all public schools should celebrate this afternoon with Blue Bell for everyone.

Let us review the Texas pledge: Honor the Texas Flag; I pledge allegiance to thee, Texas, one state, under God, one and indivisible and with Blue Bell for all.

As for football, here’s the scene at Austin’s historic House Park last Thursday, as the Anderson Trojans got ready to do battle with the McCallum Knights in the 14th Annual Taco Shack Bowl.

Woo Hoo!!

football

DAWG BONE: I’M GOING TO GO WITH THE BBHMVIC—HOW BOUT YOU?  (BLUE BELL HOME MADE VANILLA ICE CREAM).

Dawg Bones

MY FAVORITE “START OF THE SCHOOL YEAR” STORY…

The call came in to our office shortly after lunchtime on the first day of school—not this year, but several years ago.  It seems that the 15-year old had just showed up that morning—no phone call, no personal visit, no registration before that.  Of course it’s chaos on the first day, so they just tossed the boy into some classes and planned to figure it out later.

Then the teacher marched him to the office after lunchtime, and charged him with urinating on the playground. Investigation ensued, which revealed that: 1. His family just moved here from somewhere in Central America; 2. He’s never attended school before—any kind of school; 3. He speaks no English and understands “poquito” at best.  4.  He peed on the playground because he didn’t know there was an alternative, having not encountered indoor plumbing.

The district was calling because they wondered if they should classify this student as eligible for services under Section 504. The answer to that is: NO.  This student is what I call WBFWR—Way Behind for Whatever Reason.  He needs special help, but not special ed, and not 504 either.

Obviously this student needs a lot of assistance.  I call kids like this WBFWR, but truthfully, it’s easy to figure out why this student is behind. He is 15 and never been to school.  He is at a cultural disadvantage in our country. And even if he had been properly educated in a good Central American school, the language issue alone indicates that the student needs special attention.

But not special ed.  Special education is for students who need special help because of a disability.  There is no indication of a disability here. As for 504, it is designed to accommodate students who need accommodation due to a physical or mental impairment.  Again, no indication of that here.

DAWG BONE: KIDS CAN BE WBFWR AND NOT NEED SPECIAL EDUCATION OR SECTION 504 SERVICES.  

Dawg Bones

I ADMIT THAT I DON’T LIKE THIS GUY. BUT THAT’S NOT THE REASON I FILED THE CHILD ABUSE REPORT.

The 6th Circuit Court of Appeals has held that the making of a child abuse report is an “adverse action.” According to the court, this is true whether the report is true or false. Thus if the report is made in retaliation for the exercise of protected rights, it is an act of illegal retaliation. The critical question then becomes motivation.  Key Quote:

Under this rule, then, a report of child abuse—even if it is not materially false and there is evidence in the record that could support a “reasonable basis” to suspect child abuse—is actionable if the reporter made the report “at least in part” for retaliatory motives.

This is a decision sure to cause some anxiety among educators who are legally required to report child abuse.  The court took that into account, but still held that even a truthful report of child abuse is “actionable” if improperly motivated.

How would the court conclude that your report is improperly motivated?  In this case, the court was required to assume the truth of the allegations in the complaint. That’s because the Director of Pupil Services/defendant in the case had filed a Motion to Dismiss based on an assertion of “qualified immunity.”   To assess a MTD, the court assumes that the allegations in the complaint will turn out to be true. The court also is required to review the evidence in the light “most favorable” to the party opposing the Motion.  The question then becomes: is there any possibility that the plaintiff can prevail in this case?  Is there a legitimate “cause of action” here?

Here, the court said that there was a case.  The complaint alleged that the report of child abuse was embellished and in some parts entirely fabricated.  Furthermore, the court cited a few emails the defendant had sent that “suggest that she harbored animus against [the plaintiff] as a result of his advocacy about [the child’s educational plan.” The court held that the complaint should not be dismissed. Moreover, since the law on this is “clearly established” the director of pupil services who reported the alleged abuse was not entitled to qualified immunity.

This case may go to the Supreme Court.  NSBA (National School Boards Association) has filed a brief asking the Court to take up the case and reverse this decision.  The Circuit Court’s decision is the first high level court to identify a non-malicious report of child abuse as an “adverse action,” thus opening the door to retaliation lawsuits.  The Supreme Court will consider taking up this case on September 28th.

Here in Texas we live in the 5th Circuit, and this decision by the 6th Circuit does not create a binding precedent for us. Nevertheless, the case should serve as a caution.

You have to report suspected child abuse. You have to do it if the parent is your best friend.  You have to do it if the parent is a constant thorn in your side.  But let this case be a caution: be sure that your report sticks to the facts. Do not embellish or fabricate those facts. Relay the facts that caused you to make the report honestly, completely, and promptly.

 

The case is Wenk v. O’Reilly, decided by the 6th Circuit on April 15, 2015.  We found it at 65 IDELR 121.

DAWG BONE: YOU HAVE A LEGAL PROBLEM IF YOU DON’T REPORT CHILD ABUSE.  SOMETIMES YOU HAVE A LEGAL PROBLEM WHEN YOU DO.

Dawg Bones

T.E.A.’S ANNUAL LETTER ON ATTENDANCE, ADMISSION, ETC. IS A MUST READ!

On August 11, T.E.A. General Counsel Von Byer issued the Agency’s annual letter spelling out all you need to know about admission, attendance, enrollment records, tuition and all of that.  Very timely. Very helpful.  I always print this dude out and keep it handy, especially for the questions that come up at the beginning of the year.

It seems to me that this letter gets longer every year.  Not surprising. We keep adding laws, rules and exceptions to rules. This year the letter is 22 pages, with 89 footnotes.  We’re not even going to try to summarize. But we do recommend that you find it and print it. It’s good stuff.

And for you charter folks, you have your own letter, also issued August 11. Three pages, 11 footnotes.

http://tea.texas.gov/About_TEA/News_and_Multimedia/Correspondence/TAA_Letters/Attendance,_Admission,_Enrollment_Records,_and_Tuition__2015-16/

http://tea.texas.gov/About_TEA/News_and_Multimedia/Correspondence/TAA_Letters/Charter_Admission_Enrollment_Withdrawal_2015-2016/

DAWG BONE: HOORAY FOR T.E.A. AND THE ANNUAL LETTER.

Dawg Bones

TOOLBOX TUESDAY: WHICH ONE IS THE MOST IMPORTANT TOOL?

The Toolbox consists of ten tools that school administrators can use in dealing with students with disabilities whose behavior may be challenging.  Last week on Toolbox Tuesday we made note of the fact that the law requires you to do two things at the same time: serve all kids appropriately, and in the least restrictive environment; and at the same time, maintain safety.  The Toolbox provides a framework and common vocabulary to help you fulfill those two duties.

Of the ten tools in the Toolbox, we consider Tool #1 to be the most important. Tool #1 is a behavior plan, most commonly called a BIP (Behavior Intervention/Improvement Plan).  It’s the most important tool for a simple reason. If Tool #1 works, you can put away the rest of the Toolbox. You won’t need to change the child’s placement, or order short term removals, or call the cops.  If Tool #1 works, you won’t need to use any of the other nine.

The law tells us very little about how a BIP is to be created.  Thus, you have a lot of flexibility, and should rely on people with expertise in crafting behavior plans that really work. But we do know that a BIP is not simply a student’s individualized code of conduct. The code of conduct lays out the basic rules for all students—ALL students, and is full of negative consequences.  It puts kids “on notice” of what the rules are, and what the potential penalties are. Fair enough.

A BIP serves a very different function. When we develop a BIP, we are addressing a specific behavior that is impeding the learning of the student or of others.  A BIP targets that behavior with positive behavior interventions, strategies and supports designed to reduce or eliminate the inappropriate behavior, and replace it with more productive behaviors.

You don’t need a lot of expertise to address the first part of a BIP—the identification of the inappropriate behavior. Nor do you need any particular expertise to figure out the goal.  Let’s say we have a student whose colorful vocabulary is disrupting the learning environment on a regular basis.  It only takes common sense to figure out that 1) too many F-bombs during class time is a problem; and 2) the goal is to reduce and/or eliminate that particular behavior.

The harder part is figuring out how to do that.  Of course administrators have the authority to impose short term disciplinary consequences as per the code of conduct. But will that improve the student’s behavior?  Will that reduce or eliminate the behavior that impedes learning?  Short term disciplinary consequences, such as ISS and/or out of school suspension, are methods of managing a student’s behavior, but I would not put them in the category of improving behavior. The law speaks of positive behavior interventions, strategies and supports. So how do you teach proper behavior?  What “strategy” will you use to “intervene” in a way that really works? That’s what a BIP does, and thus it should be a part of the program for any student whose behavior impedes learning.

Next Tuesday we will look at Tool #2—a change of placement with parental agreement. But keep in mind that Tool #1 is listed first for a reason. It’s your most important tool, and should be the one you use the most.

DAWG BONE: TOOL #1 IS THE MOST IMPORTANT TOOL.  IF IT WORKS, YOU CAN PUT THE TOOLBOX AWAY.

Dawg Bones

READY OR NOT: HERE THEY COME!!

Scissors?  Check.
Crayons?  Check.
Pencils?    Check.
Elmer’s Glue?  Check.
Ready and eager to learn?  Check.

BEST WISHES TO ALL WHO MAKE OUR PUBLIC SCHOOL SYSTEM WORK!

0824

 

DAWG BONE: WE THINK THE FIRST DAY OF SCHOOL IS A QUASI NEW YEARS’ DAY. LET’S CELEBRATE!!

Dawg Bones

DEAR DAWG: OUR BOARD PRESIDENT RECENTLY HAD THE EMBARRASSING EXPERIENCE OF HAVING HIS CREDIT CARD REJECTED AT A NICE RESTAURANT. I’M AFRAID HE WANTS REVENGE.

Dear Dawg:  After our board president had his credit card rejected at the local Fancy Schmancy Restaurant, he started making inquiries about the prepaid meal cards that kids use in our schools.  He wanted to know what happens when the meal card balance goes to zero. Is the kid publicly embarrassed about it? Denied lunch?  Our president seems to think it would be a good learning experience for the little ones to suffer some public shaming now, while they are young, so that they will never screw up about this as an adult.  We think that’s not such a good idea. WADDYASAY?

DEAR WADDYASAY: We think virtually everyone has had a credit card rejected at some point.  Maybe the expiration date passed, or there is some glitch in the system. Or maybe you haven’t paid your bill in a while.  And we see the connection with those prepaid meal cards and your board president’s American Express. But it turns out that the Texas Legislature has weighed in on this.

HB 3562 says that if your district uses a prepaid meal card or account, you must allow the student a grace period when the card is exhausted.  You must notify the parent and you may not charge a fee or interest for the overdrawn account.  The new law does not specifically prohibit public humiliation, but we think that’s the idea.  So tell the board president to get over it, and not take this out on the kids.

DAWG BONE:  WE CALL THIS ONE: GRACE AFTER MEALS.  

Dawg Bones

ABOUT THAT HANDCUFFED KID IN KENTUCKY…

You have probably seen the video of the little boy in Kentucky who was handcuffed for acting out at school. Actually, it would be more appropriate to call it “arm-cuffed.”  They had him cuffed above the elbows, with his arms behind his back. That’s got to be very uncomfortable.  I saw the video on CNN as Nancy Grace spewed righteous indignation.

I was sorry to see this sad video clip, as I’m sure you were.  I’m sorry to see this happen in any public school, but relieved that at least it wasn’t in Texas.   But this episode provides a good opportunity to review the basics about physical restraint.

We use physical restraint only in an emergency.  That term has a narrow definition and clearly does not apply just because a student is rude, uncooperative, noncompliant, foul-mouthed and frustrating to deal with.  An “emergency” is a situation in which a student’s behavior poses a threat of “imminent, serious physical harm to the student or others” or “imminent, serious property destruction.”

We use restraint only for as long as the emergency lasts.  End of emergency…end of physical restraint. We only use as much force as is necessary to address the emergency.

Restraint is done only by people who have been trained to use it; or if an emergency requires someone else to restrain a student, we provide training to that person within 30 school days. We document each instance of restraint and notify the parent of it promptly.

These rules and restrictions and more are spelled out in the Texas Administrative Code, 19 T.A.C. 89.1053. The written rules are about the restraint of students with disabilities, since that is what the authorizing statute addresses—see Texas Education Code 37.0021.  However, the rules make good sense for all students.

The rules were recently revised to clarify that they apply to a “peace officer” if the peace officer is “employed or commissioned by the school district or provides, as a school resource officer, a regular police presence on a school district campus under a memorandum of understanding between the school district and a local law enforcement agency.”  Furthermore, the data reporting requirements concerning restraint apply to “any peace officer performing law enforcement duties on school property or during a school-sponsored or school-related activity.”

Here’s hoping you can navigate the upcoming school year without ever having to use physical restraint on a student.

DAWG BONES:  VERY IMPORTANT FOR TEACHERS AND ADMINISTRATORS TO KNOW THE RULES RE: PHYSICAL RESTRAINT

Dawg Bones

LEGISLATIVE ALERT—THE NEW TRUANCY BILL!

No doubt you have heard that the legislature “de-criminalized” truancy.  Here are the highlights from HB 2398, a major overhaul of our laws pertaining to truancy.

1. The court may dismiss a complaint alleging that the parent contributed to nonattendance if dismissal would be in the best interest of justice because 1) a low likelihood of recidivism; or 2) there is sufficient justification for the failure to attend school.

2. All records of “truancy offenses” including convictions, shall be expunged by order of the court, even when not asked for. This includes records held by the school district.

3. 18 year olds are subject to compulsory attendance. 19 year olds are not.  Students are subject to compulsory attendance at age six, but may not be referred to truancy court until they are 12. Students from 6-11 are subject only to TPM—Truancy Prevention Measures.

4. Those 19 and above may be disenrolled after accumulating six or more unexcused absences in a semester, but this may not be done on a day when the student is physically present at school. Schools must issue a warning letter after the third unexcused absence. As an alternative to disenrollment, the district may “impose a behavior improvement plan” as set out by statute.

5. Truancy matters involving students will no longer go to juvenile, county, justice or municipal courts. They will go to “truancy courts.” Complaints against parents can still go to other courts.

6. A peace officer serving as attendance officer may not take the child into custody. Attendance officers who are not peace officers may not enlist the assistance of law enforcement to take a student into custody.

7. TPM must be used if a student fails to attend school without excuse for three or more days or parts of days within a four-week period. As one such TPM, the district must either impose a BIP or refer the student to counseling, mediation, mentoring, a teen court program, community-based services or other in-school or out-of-school services.

8. Schools must offer “additional counseling” and may not refer to truancy court if the school determines that the truancy is the result of pregnancy, being in the foster program, homelessness or being the principal income earner for the family.

9. Districts must either employ a “truancy prevention facilitator” or “juvenile case manager” or designate an existing employee to implement TPM. At least annually, the designated person must “meet to discuss effective TPM with a case manager or other individual designated by a truancy court to provide services” to students of the district.

10. E.A. will develop rules regarding minimum standards and best practices for TPM, and for sanctions for districts that fail to comply.

11. If the student has 10 or more unexcused absences (days or parts of days), within a six-month period in the same school year, the parent is subject to prosecution and the student is subject to referral to truancy court. Referral of the student must be done within 10 school days and is “mandatory”—sort of. The school can delay the referral, or just not make one, if it is applying TPM, determines that they are working, and believes that delay or non-referral would be in the best interests of the student.  Thus it’s not really mandatory.  Prosecution of the parent is discretionary, and requires evidence of “criminal negligence.”

12. The bill creates a new chapter in the Family Code, Chapter 65, which sets out in detail the procedure for these courts. “The best interest of the child is the primary consideration in adjudicating truant conduct of the child.”

13. In a truancy adjudication hearing, a parent and any court-appointed guardian ad litem must attend. An employer may not terminate the employment of a permanent employee who is thus required to attend a hearing.

DAWG BONE: THE EMPHASIS IS GOING TO BE ON TRUANCY PREVENTION —NOT PUNITIVE MEASURES.