All posts by Jim Walsh

Dawg Bones

SENDING STUDENTS TO THE PRINCIPAL… IS ABOUT TO CHANGE

I send the student to the principal. She sends him right back.  I send the student again.  She sends him back again.  I don’t see any improvement!

Classroom teachers have enjoyed the “right” to send students out of the classroom for disciplinary reasons since the beginning of recorded time.  But the legislature decided to codify this in Texas many years ago.  Now, S.B. 107 makes a subtle change in the dynamics between teacher and principal.

Current law says that when the teacher sends the kid to the office “the principal shall respond by employing appropriate discipline management techniques consistent with the student code of conduct.”   T.E.C. 37.002(a).   The new law, which goes into effect this school year, calls for the teacher to send the student to the CBC—the Campus Behavior Coordinator, rather than the principal.  And it says that the CBC (who will very likely be your principal or assistant principal) is to employ techniques “that can reasonably be expected to improve the student’s behavior before returning the student to the classroom.  If the student’s behavior does not improve, the campus behavior coordinator shall employ alternative discipline management techniques, including any progressive interventions designated as the responsibility of the campus behavior coordinator in the student code of conduct.”

This makes it sound like the CBC needs to have a toolbox of techniques available.  Moreover, they must be “reasonably” expected to bring about a change in behavior.  Think about this as you develop changes to your code of conduct this summer.

DAWG BONE:  CBCs ARE GOING TO NEED SOME TRAINING!

 

 

Dawg Bones

WHO WILL BE THE CBC (CAMPUS BEHAVIOR COORDINATOR) ON YOUR CAMPUS NEXT YEAR?

Nothing is important in education until we attach an acronym to it, so I’m proposing right now that we start using the term CBC—Campus Behavior Coordinator. This term comes from S.B. 107, which adds a brand new section to Chapter 37 of the Education Code, Section 37.0012.  That section requires that each campus in the state must have a CBC.  S.B. 107 does not say that it applies to charter schools, so it doesn’t. But the traditional schools will have to designate someone as CBC on each campus next school year.

The principal can be the CBC.  The law also permits the principal to name “any other campus administrator” to serve as CBC, so we expect this new title will go to principals and assistants. The specific duties of the CBC can be established by campus or district policy, but if you don’t adopt any such policy, the law spells it out for you.

“The campus behavior coordinator is primarily responsible for maintaining student discipline and the implementation of this subchapter.”  T.E.C. 37.0012(b).  The new sets out some of the specifics of that “primary responsibility.”

For example, it’s the CBC who must “promptly notify” a parent whenever a student is placed into ISS, out of school suspension, DAEP, expulsion or JJAEP, or when the student is taken into custody by law enforcement. This notice is to take place by telephone or in person on that day.  Our CBC must also make a “good faith effort” to get written notice to the parent on the day of the disciplinary action.

It’s also the CBC who decides what to do when the teacher exercises her right to dismiss a student from the classroom.  Teachers have had this right for a long time, but many of them complain that nothing much happens when they exercise this right.  S.B. 107 makes a subtle but important change in the law of “teacher removal.” We’ll take that up in tomorrow’s Daily Dawg.

DAWG BONE:  LAST YEAR YOU WERE JUST THE PRINCIPAL. THIS YEAR YOU CAN BE THE CBC!!

 

 

Dawg Bones

LEGISLATIVE ALERT! WHAT DID NOT PASS?

You can’t adequately assess a legislative session unless you look at how your team played both on offense and on defense.  We have been highlighting the offense so far—some of the bills that have been passed. But school advocates also played defense this session. In fact, they played a lot of defense, and did it quite well. When you have a Lieutenant Governor being advised by people who think that Pre-K is a “godless environment” and a member of that Committee calling the public education system a “monstrosity” you need to play a good defense.

So here are some things that did not happen.  Vouchers did not happen.  Tax credit scholarships (aka “voucher lite”) did not happen.  The parent “trigger” law did not make it.  Nor did the so-called “Opportunity School District.”  The effort to tie test scores to teacher evaluation and compensation flunked, as did the effort to junk the minimum salary schedule.  District employees will still have the opportunity to have association dues deducted from the paycheck.  And homeschoolers will not be participating in UIL activities—the Tim Tebow bill was fumbled.

I noticed with interest that ESCs survived another session, but did not get a pay raise. They will be funded with $25 million for the biennium—the same amount as the last two years.  That’s $25 million for all 20 of them, and it’s for two years.  So that’s $12.5 million a year for 20 ESCs. That comes out to $625,000 per ESC per year.  In terms of the overall budget, that’s chump change. When you consider the great work and service that ESCs provide, that’s a terrific bargain for the people of Texas.

DAWG BONE:  WORKING WITH THE LEGISLATURE INVOLVES BOTH OFFENSE AND DEFENSE.

Dawg Bones

A GUY THREATENS TO SHOOT UP A KINDERGARTEN CLASS, AND THE SUPREME COURT THINKS THIS IS OK???

Don’t get alarmed by what you hear about the Supreme Court’s decision in the case involving a Facebook post.  True, the Court overturned the conviction of the man who posted this:

That’s it, I’ve had about enough.  I’m checking out and making a name for myself.  Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined.  Hell hath no fury like a crazy man in a Kindergarten class. The only question is…..which one?

The Court (seven of the nine) overturned the man’s conviction because the jury was given the wrong instructions. The jury was told that the man’s intent was not relevant, that he could be found guilty as long as “a reasonable person” would find this language to be a threat.  Since the Court deemed this to be a serious legal error, they reversed the man’s conviction.

If you are like me, you hear about cases like this and wonder what they mean for your typical public school administrator.  Let’s just suppose that you find words like this on a social media site, and you know that the words are from 1) a teacher; 2) a local adult citizen or 3) a student.   Does this Supreme Court case means that your hands are tied?

Absolutely not.  It’s important to recognize that the man in the Supreme Court case was appealing a criminal conviction.  In that context—and only in that context—the Court held that the prosecution must prove what the man thought he was doing.  The Court said that the “reasonable person” standard “is a familiar feature of civil liability in tort law.” But it is not appropriate for a criminal conviction.

If you are dealing with a teacher, or a student, your first response will probably be disciplinary—either adverse personnel action or a student discipline penalty. This Supreme Court case would not be relevant in those contexts.

If language like this is posted by a citizen, we expect you will contact law enforcement and your school attorney.  If county prosecutors seek to file criminal charges, they will have to study this case carefully. But there are other avenues of recourse available.

The case is Elonis v. United States, decided by the Supreme Court on June 1, 2015.  Justice Alito concurred in part and dissented in part; Justice Thomas dissented.  Chief Justice Roberts wrote the opinion, and was joined by Scalia, Kennedy, Ginsburg, Breyer, Sotomayor and Kagan.

DAWG BONE: KINDA NICE TO SEE THE LIBERALS AND CONSERVATIVES COME TOGETHER ON THIS ONE

 

 

 

Dawg Bones

LEGISLATIVE ALERT! ARDC MEETINGS!!

 S.B. 1259 goes into effect with the start of the 2015-16 school year.  It does three specific things.

First, it specifies that the “regular education teacher” member of the ARDC must “to the extent practicable, be a teacher who is responsible for implementing a portion of the child’s” IEP.  In other words, don’t just pull a random P.E. teacher out of the hall. Get someone there who will be working with the student in the classroom.

Second, it specifies that the written documentation of the ARDC meeting must include the date of the meeting, the name position and signature of each member participating in the meeting, and “an indication of whether the child’s parents, the adult student if applicable, and the administrator agreed or disagreed with the decisions of the committee.”  More on this in a moment.

Third, each member of the committee who disagrees with the IEP developed by the ARDC is entitled to include a statement of disagreement.

We have had a lot of wrangling of late about this “agree or disagree” business.  For many years our rules required “each member’s agreement or disagreement with the committee’s decisions.”  Federal law has no such requirement, but Texas imposed it via 19 T.A.C. 89.1050(e).

This rule was dropped as of January 1, 2015. Thus current rules have no requirement that each member of the group indicate agreement or disagreement.

But now we have a statute that requires a statement of whether or not the parent (or adult student) and the administrator are in agreement with the decisions made.

This makes sense.  The ARD Committee needs to know, at the conclusion of business, whether or not there is an agreement between the school and the parent/adult student.  If there is a disagreement, the parent/adult student has the right to seek legal recourse.  So it is important for the record to reflect clearly whether or not the parent (or adult student) agrees with decisions regarding identification, evaluation, placement and the provision of a FAPE.  The administrator plays a critical role in this because he/she is identified in the regulations as the “representative of the school district.”

DAWG BONE: GET READY TO CHANGE THOSE IEP FORMS AGAIN!

 

 

Dawg Bones

LEGISLATIVE ALERT! CAMERAS IN THE CLASSROOM!!

 SB 507 will require school districts and charter schools to video record what is going on in certain classrooms.  The bill is about student safety for our most vulnerable kids—those who are in self-contained special education classrooms.  Students who are non-verbal, non-ambulatory and of low cognitive ability are usually served in those classrooms. But there are other kids in a self-contained classroom as well.

This bill is very important, but it does not go into effect until the start of the 2016-17 school year. Thus, school administrators have some time to learn about this one and come up with a plan.  And to hold multiple bake sales and car washes.  SB 507 is an unfunded mandate—exactly the type of thing most of the politicians promised they would not do.

The Commissioner will be adopting rules to clarify how this bill will be implemented, including a more precise definition of the type of classroom which must be recorded. Look for those rules to be proposed sometime this next school year.

The bill specifies that it’s about safety—not teacher evaluation or any other purpose. In fact, you may not allow anyone to regularly or continually monitor the video recording of the self-contained classroom. However, you must permit a person to view the video if they ask to see it in response to a complaint that has been made, and they are “involved in the incident” documented on the video. Expect considerable discussion of what “involved in the incident” means.  This would include the teacher or aide who is “involved” as well as the parent of the student who is “involved.”  On top of that, certain identified district personnel must be given access if they are investigating a complaint about a staff person, or a student.

We will be reviewing this one, and all of the other new legislation, at my annual Back to School Tour this fall. Check out the details of that at: https://legaldigestevents.com/legal-digest-events/back-to-school-workshops-with-jim-walsh/.

DAWG BONE: CAMERAS IN THE SPECIAL ED CLASSROOM—IN 2016. 

 

 

Dawg Bones

LEGISLATIVE ALERT! EPIPENS!!

S.B. 66 is about anaphylaxis and epipens.  It does not require a school district to do anything.  The critical language in the new law says that “Each school district and open-enrollment charter school may adopt and implement a policy regarding the maintenance, administration, and disposal of epinephrine auto-injectors at each campus in the district or school.”  T.E.C. 38.208(a).  This is a law with a “may” not a “shall.”  Every mandate in the bill is contingent on the adoption of that policy. So you don’t have to do anything about this unless and until your board adopts a policy.

But it is likely that school boards will want to adopt a policy about this.  After all, anaphylaxis is a critical safety concern.  Certainly the parents of students with serious allergies will want to know that the district is doing everything it can to provide for student safety.

If your board adopts a policy, you will need to study the bill carefully. It requires training of personnel, compliance with regulations to be adopted by the Commissioner of State Health Services along with the Commissioner of Education, ensuring that you have at least one properly trained person on each campus “during all hours the campus is open,” reports on use of the epipens, and record keeping.

The law says that schools can accept gifts, grants and donations, along with local and/or federal funds to pay for this. This is a completely unnecessary provision, as the school districts already have that authority. But the real purpose of this provision is for the Legislature to once again wash its hands of any financial responsibility.  If school administrators complain of this being another unfunded mandate, your local rep is sure to point out that you are not required to adopt that policy.  Thus it may be “unfunded” but it’s not a “mandate.”  You don’t have to do this.

Right. Try telling that to the parent whose child went to the emergency room last week.

DAWG BONE: GET WITH THE PROPER MEDICAL PROFESSIONALS IN YOUR DISTRICT TO DISCUSS S.B. 66.

 

 

Dawg Bones

NATIONAL SEERSUCKER DAY!

Dear Dawg: We had a school board meeting last night, and six of our seven school board members showed up wearing seersucker suits.  Those six officially reprimanded the other guy. What’s this about?  AM I MISSING SOMETHING?

Dear Am I Missing:  Yes!   You are missing out on NATIONAL SEERSUCKER DAY!  You may have noticed from news reports that many members of Congress donned seersucker yesterday. This tradition was started by Senator Trent Lott of Mississippi in 1996. Senator Lott, intended to “bring a little southern charm to the Capitol.”  The tradition was discontinued in 2012, when members of Congress were fearful that they might be perceived as neglecting the nation’s business in favor of trivial pursuits.

Hold your snarky comments about that.

In any event, the tradition is back.  And apparently your board members have gotten in on the fun.

As to the reprimand, we have to point out that it is null and void.  It was not on the agenda.  So  your six seersucker suited board members may have created a problem for themselves by taking action on an item in violation of the Texas Open Meetings Act.  But we expect it was all in fun, so we hope that your district attorney will look the other way on this one.

DAWG BONE: SECOND THURSDAY OF JUNE IS NATIONAL SEERSUCKER DAY.  CAN NATIONAL POLYESTER DAY BE FAR BEHIND?

 

Dawg Bones

IT’S GETTING HOT AROUND HERE. AND FOOTBALL PRACTICE IS NOT TOO FAR OFF . . .

In 2007, the Texas Legislature beefed up safety requirements in connection with extracurricular activities.  Section 33.201, et. seq. of the Education Code spell out a variety of requirements, including such things as adequate hydration for athletes during practices and games.  I remember in my annual “Back to School” tour for that year predicting that these safety standards would be cited in future cases alleging that the school district, or the coaches, should be held liable for a student injury.

So let me introduce you to the case of Ripple v. Marble Falls ISD.  Blake Ripple alleged that he suffered injuries playing football in high school.  In the suit, he alleged that the district failed to identify him as a student with a disability under Section 504, and failed to “keep him safe from harm and failed to provide him an environment that was not injurious to his physical well-being.”

The school district prevailed in the lawsuit.  The coaches never put Blake back into the game when he was hurt, they had a doctor’s clearance for him each year, and they complied with all of the safety requirements.  The legal wrangling is more complicated than we have time for here, but it’s worth pointing out that one of the allegations was that the student became severely dehydrated after an August practice.  Fortunately for the school district, the coaches were able to produce evidence that they provided water breaks and otherwise complied with the safety requirements.

So today’s Dawg just offers a reminder about these things.  Make sure your coaches review the requirements of Subchapter F of Chapter 33 of the Texas Education Code, which begins with Section 33.201.  Full compliance will be important in the event of future litigation. More important than that, full compliance will go a long way toward maintaining safe conditions for all of the kids.

The case is Ripple v. Marble Falls ISD, decided by the federal court for the Western District of Texas on March 27, 2015.

DAWG BONE: KEEP THAT WATER FLOWING DURING TWO-A-DAYS!

 

 

Dawg Bones

IS THE MISCONDUCT OF A STUDENT WITH A SERIOUS EMOTIONAL DISTURBANCE ALWAYS A MANIFESTATION OF THE STUDENT’S DIABILITY?

If a student has a serious emotional disturbance, along with ADHD, I’m guessing that any misconduct is going to be considered a manifestation of the student’s disability. Right?

Some educators have expressed the view that misconduct by a student with a serious emotional disturbance and/or ADHD is always going to be considered a manifestation of disability. A recent case proves that is not so. The case involved a student who was charged with creating a “shooting list” in his English journal.  The district treated this as a violation of the Code of Conduct and assigned DAEP for 35 days.

The ARDC met to make a manifestation determination on April 12, 2012.  The parents were present, along with an advocate and the boy’s pediatrician, who produced a diagnosis of PDD-NOS, and argued that the behavior was a manifestation.  The issue of autism came up, as it had before. The district offered to conduct an evaluation, but, according to the district, the parents declined to provide consent.  The parties did not complete the process on April 12th, and so they recessed and came back on April 23rd.  However, the parents did not participate in the second session. The ARDC concluded that the making of the shooting list was not a manifestation of the boy’s health impairment or emotional disturbance.

The parents requested a special education due process hearing.  The hearing officer ruled in favor of the school district on all issues except for the manifestation determination. The hearing officer concluded that the boy created the so-called “hit list” as a direct result of his disabilities.

Both sides appealed to federal court.

The hearing officer cited the doctor’s testimony in her ruling in favor of the parents.  But the federal court overturned that ruling, and concluded that the behavior was not a manifestation.  As the court pointed out, the school’s psychologist, “a member of the ARD Committee who actually observed Z.H. in a classroom setting,” rebutted the pediatrician’s view. (Emphasis added).   The parents failed to cite evidence in the record to overcome this.

There is no easy shortcut to a proper manifestation determination. Each one must be considered individually, taking into account all of the relevant information available. It is certainly not as simple as automatically attributing certain behaviors to disability; or automatically discounting a causal connection.

The case is Z.H. v. Lewisville ISD, decided by the U.S. District Court for the Eastern District of Texas on March 2, 2015.  We found it at 65 IDELR 106.

DAWG BONE: MANIFESTATION DETERMINATIONS REQUIRE CAREFUL AND INDIVIDUAL ANALYSIS.