All posts by Jim Walsh

Dawg Bones

Happy Valentine’s Day! The Dawg Bone today is just for fun. Read on!

DEAR DAWG,
I cannot figure out how the UIL puts high schools into classifications. I mean, I know the basics—the 6A schools are big and the 1A schools are small. But how exactly do they do it? Is there a science to it? —STUCK IN THE MIDDLE AT 3A.

DEAR STUCK IN THE MIDDLE:

We just heard a very clear explanation about this, from none other than Dr. Charles Breithaupt, Executive Director of the UIL. According to Dr. B, the UIL can do this classification thing just by driving around the state and looking around in each town. Here’s the criteria:

Your town has no DQ:                                 You are 1A
Your town has one DQ:                               You are 2A
Your town has one DQ and a Sonic:     You are 3A
Your town has a Walmart:                          You are 4A
Your town has a Super Walmart:            You are 5A

We think the new 6A classification is reserved for places with multiple Starbucks.

Hope that clears it up for you, and Happy V-Day to all of you!

DAWG BONE: THE UIL PROCESS MAY SEEM MYSTERIOUS BUT IT ALL MAKES SENSE.

Dawg Bones

THIS ARGUMENT ABOUT VACCINATION IS NOTHING NEW…

The Texas Supreme Court upheld the constitutionality of compulsory vaccination laws in 1972. At that time, the Texas statute (T.E.C. 2.09) authorized two exceptions. Children had to be vaccinated before attending public school unless their parents provided 1) an affidavit from a doctor citing medical concerns; or 2) an affidavit signed by the parent, stating that the requirement “conflicts with the tenets and practice of a recognized church or religious denomination of which the applicant is an adherent or member.”

There was no “conscientious objector” exemption, as there is now. Current law allows an exemption if the parent presents an affidavit citing “reasons of conscience, including a religious belief.” T.E.C. 38.001(c).

If Mr. Itz could have cited “reasons of conscience” he would have won his case against the Fredericksburg ISD. Mr. Itz stated that his daughter had contracted hepatitis as a result of a diphtheria shot. He believed that vaccination is harmful to the health. But he provided neither a medical affidavit, nor a religious one.

In its short opinion, the Texas Supreme Court noted that objections to vaccination had a long and distinguished pedigree in this country. Ben Franklin opposed compulsory inoculations in 1721. George Clinton, colonial governor of New York, forbade inoculations against smallpox in New York City in 1747. Mr. Itz cited these historical precedents in support of his argument that inoculation is “an assault upon one’s body by invidious impregnation with bacteria that is cruel and unusual punishment.” He claimed that mandatory vaccination “interferes with parental control and decisions relating to the health of their children” and “interferes with their children’s constitutional right to a public free education.” In fact, Itz asserted, “Vaccination by compulsion is one of the greatest crimes today, and it is being committed by the Legislature of the State of Texas disguised as Education Code 2.09.”

The Court did not buy it. It asserted that “a much more enlightened view” had emerged. That view—that immunization is necessary to stop the spread of infectious disease—had, even by 1972, been adopted by “a great majority of the states.” The Court noted that “these statutes were the subject of frequent attack in the early years of the century and were universally upheld as proper exercises of the police power for the protection of the health and safety of the citizenry.”

Therefore, the Court concluded, the statute was constitutional. The case of Itz v. Penick was decided by the Texas Supreme Court on January 17, 1973. It can be found at 493. S.W.2d 506.

DAWG BONE: THESE ATTACKS ON VACCINATION REQUIREMENTS ARE NOTHING NEW.

 

 

 

 

Dawg Bones

IS “ZERO TOLERANCE” CONSISTENT WITH FEDERAL LAW?

People use the term “zero tolerance” to mean a lot of different things. In essence, it signals a tough, no excuses, discipline system. It curtails educator’s discretion in favor of simple black and white rules applied across the board.

But that approach is problematic under federal law. Our basic special education law, IDEA, says that students with disabilities may not be removed from their classroom placement as a disciplinary consequence unless the student’s ARD Committee concludes that the behavior was not a manifestation of the student’s disability. You can’t just slap a special ed kid into the DAEP due to a disciplinary infraction. You have to go through the ARD process first. Thus it’s hard to square that legal requirement with a strict “zero tolerance” approach.

Our federal special education law does include three “semi-zero tolerance” provisions. These are known as the “special circumstances” offenses—drugs, weapons and the infliction of serious bodily injury. If a student commits one of those offenses, the school is authorized to order an immediate removal of up to 45 school days. This can be done whether the behavior was caused by the disability or not.   But that’s still not exactly what most people mean by “zero tolerance.”

So be careful in tossing this term around.

DAWG BONE: IT’S HARD TO APPLY “ZERO TOLERANCE” AND COMPLY WITH FEDERAL LAW AT THE SAME TIME.

 

Dawg Bones

ZERO TOLERANCE? I THINK NOT.

Don’t let anyone get away with telling you that Texas has a “zero tolerance” policy with regard to student discipline. We dropped zero tolerance some time ago.

Chapter 37 requires school administrators to consider certain factors before deciding on a disciplinary consequence. These are 1) self-defense; 2) intent, or lack of intent; 3) the student’s disciplinary history; and 4) a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct.

These factors are not considered in a “zero tolerance” system. In that system, administrators have no discretion and take no mitigating factors into account. That’s the essence of “zero tolerance” and that’s why it has led to so much criticism and ridicule. Fortunately, our legislature changed our laws to require the exercise of some discretion. And note: these factors must be considered “regardless of whether the decision concerns a mandatory or discretionary offense.” T.E.C. 37.001 (a)(4).

The truth is, “zero tolerance” was always more of a political slogan than a realistic school policy. That’s because “zero tolerance” was inconsistent with federal law from the outset. But we will save that topic for tomorrow.

DAWG BONE: WE DON’T DO “ZERO TOLERANCE” IN TEXAS.       

 

 

Dawg Bones

STUDENT WITH AUTISM FAILS TO MAKE CHEERLEADING SQUAD: IS THIS A LEGAL PROBLEM?

It’s springtime, and cheerleader tryouts are probably drawing near. A recent decision from the Office for Civil Rights provides school districts a step-by-step procedure for ensuring that your tryout procedures are fair to students with disabilities. The student with autism did not make the squad. But OCR concluded that she was not discriminated against.

The key was the fact that the school district held an ARD meeting to consider what accommodations the student would need in the tryout process. Due to the student’s autism and speech impairment, the ARD Committee determined that 1) they would provide the student a video of the tryout routine on the first day of the cheerleading clinic; 2) they would allow the student’s special education teacher to be with her throughout the clinic and the tryout process; 3) they would allow the parents to be present at the tryout.

The parent asked for one more accommodation. The parent wanted the school to allow “changes to the skills and benchmarks necessary for participation.” The school refused to do this.

The clinic was held, the tryouts were conducted and the accommodations that the school promised to provide were provided. But the girl did not make the squad. Her score was too low.

The parent filed a complaint with the OCR, claiming that the district discriminated against the girl on the basis of her disability. OCR issued its ruling on December 22, 2014, in favor of the district. Key Quote:

OCR found that CSISD convened a group of persons knowledgeable about the Student, the meaning of the evaluation data, and the placement options—as is required by Section 504. The ARD committee identified and implemented modifications for the Student that it determined were necessary to accommodate her disability. The committee determined that changes to the scoring process were not necessary, and further, that such changes would constitute a fundamental alteration of the high school cheerleading program—which is a selective activity requiring a particular level and type of athletic skill.

That same analysis applies to any “selective activity” that requires a particular level and type of skill, whether it be athletics, or music, or some other extracurricular activity. The school considered the matter on an individualized basis, and provided accommodations to make sure that the girl was assessed on the basis of her ability, not her disability. But the school held fast to the scoring criteria.

Kudos to College Station ISD for how it handled this matter.

DAWG BONE: MEASURE THE STUDENT’S ABILITY—NOT THE DISABILITY.

 

 

Dawg Bones

CAN A SCHOOL DISTRICT AND ITS EMPLOYEES “CONSPIRE”?

One of the legal theories that we see more frequently these days is that the school district and some of its employees engaged in a “civil conspiracy” to deprive someone of federal rights. Such a theory was attempted in C.C. v. Hurst-Euless-Bedford ISD. The court’s decision, relying on precedent from the 5th Circuit, tells us that it is impossible for a school district and its employees to engage in a civil conspiracy: “Because defendants are a school district and its employees, plaintiff cannot plead facts sufficient to demonstrate a conspiracy.”

The parents had alleged that school officials “conspired” to “kick [the student] out of school by treating some of his conduct as felonies.” Without sorting out whether or not this allegation is true, the court dismissed the charge because a school and its employees are a “single entity” and a single entity cannot “conspire” with itself.

So you can “conspire” with your friends to throw a surprise party. You can “conspire” to dump a bucket of Gatorade on the coach at the end of the game. But you cannot “conspire” with your school district or your fellow employees to deprive someone of the federal rights protected by 42 U.S.C. 1985. Good to know.

The case was decided by the federal court for the Northern District of Texas on January 8, 2015.

DAWG BONE: A SCHOOL AND ITS EMPLOYEES CANNOT “CONSPIRE” WITH ITSELF.

 

 

Dawg Bones

BUT I DID EVERYTHING YOU TOLD ME TO DO!

So you wrote up the teacher and gave him an official “intervention plan” or “growth plan” or whatever you want to call it. The teacher diligently carried out every task in the plan. But you are still not satisfied with the teacher’s performance. Can you recommend nonrenewal of contract?

Yes. That’s one of the lessons of Kellogg v. Sinton ISD, decided by the Commissioner in August, 2014. Mr. Kellogg appealed his nonrenewal to T.E.A. and argued that since he had satisfied every requirement of his “Teacher in Need of Assistance” (TINA) Plan, he was safe and protected from nonrenewal.

Not so. The ruling tells us that “successfully completing an intervention plan does not protect one from being notice for proposed nonrenewal.”

On top of that, the Commissioner pointed out that Mr. Kellogg had not, in fact, successfully fulfilled the requirements of the TINA. Sure, he had turned in lesson plans and observed other teachers, as the TINA required. But this did not produce the required results. The purpose of a TINA, or any corrective communication an employee is to produce a better result. In this case, the TINA called for periodic walk-throughs to provide evidence that the teacher had improved in classroom management. The walk-throughs provided evidence alright…but not evidence of improved performance.

Kudos to Sinton ISD for writing a TINA that properly focuses on results. I learned a long time ago that the key phrase in a growth plan is “so that.” For example: “the teacher will attend a training session at the local ESC on classroom management SO THAT the teacher’s classroom management skills improve as evidenced by an increase in students being on task when periodic walk-throughs are conducted.” There are many good examples of this in The Texas Documentation Handbook by Kemerer and Crain, published by Park Place Publications.

Another interesting tidbit in this case: how long does the board have to “deliberate” in a nonrenewal case? Here, the board took just 20 minutes to decide the case after four hours of hearing and 500 pages of exhibits. The Commissioner did not have a problem with that.

The case is Docket No. 077-R1-2014.

DAWG BONE: MAKE SURE YOUR GROWTH PLANS FOCUS ON RESULTS!

 

 

Dawg Bones

WOULD YOU WALK 16 MILES TO GET TO WORK?

Think about this one. You are a custodian at a school building, working the night shift. You have fallen on hard times. You are homeless, and have no means of transportation. Well, of course you can walk—and walking was just fine until the district moved you to another building that was 16 miles away. Would you be willing to walk 16 miles to get to work? And another 16 to get to wherever it is you lay your head down to sleep?

According to Webb v. Round Rock ISD, this is the dilemma that Crystal Webb faced. On top of that, Ms. Webb claims that her employer made this move in an effort to punish her. She had previously filed a complaint with the EEOC, alleging racial discrimination. So Ms. Webb alleged in her lawsuit that Round Rock violated federal law by punishing her for engaging in “protected activity”—filing that EEOC complaint.

We don’t know what happened to the EEOC complaint, but we have a recent decision in favor of Ms. Webb from the 5th Circuit on the retaliation claim. The case is important because it sends a clear message to employers.

The legal issue here is this: what action by the employer amounts to an act of “retaliation”? The legal term used here is “adverse employment action.” Employers can do things to employees that run the gamut from trivial to severe. On the severe end, you have termination. On the trivial, you have the boss who never says “good morning.”

But what about this case? Ms. Webb’s pay was not cut. Her duties were not changed. This was a “lateral transfer” in every sense, except for the fact that Ms. Webb had no car, and could not get to the new jobsite without a ridiculously long walk.

The federal district court ruled in favor of the district in this case, holding that “Webb’s new position did not offer less opportunities for promotion or salary increases, did not involve a greater likelihood of termination, or the like.”

The 5th Circuit reversed that decision. The Court cited Supreme Court authority for the proposition that “a lateral transfer can amount to an adverse employment action without affecting these usual terms of employment.” Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006). The issue is not simply pay, or hours, or potential for promotion. The issue is whether the employer’s action was sufficiently severe to dissuade a reasonable employee from taking the protected action. In other words: if you knew that your employer would respond to your EEOC complaint by transferring you to a school that required you to walk 32 miles a day, would you be “dissuaded” from filing that complaint? Would a “reasonable employee under similar circumstances” feel that way?

The court specifically said that the circumstances of the particular employee matter. “Context matters,” the Supreme Court said in the Burlington case. Thus what is “adverse” to one employee is not “adverse” to another. The High Court offered an example: “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”

By that logic, a transfer to another building may be no big deal to many workers, but matters a lot if you have to walk to work.

Two caveats about this case: first, the 5th Circuit ordered that this one not be “published” in the official reports, and thus it is not supposed to serve as a precedent in future cases. Second, the case is in the very early stages. Round Rock sought dismissal of the case on the theory that there was no “adverse employment action” here. The district lost that argument, but Ms. Webb now faces the burden of proving the truth of her allegations. So we shall see.

The case is Webb v. Round Rock ISD, decided by the 5th Circuit on December 11, 2014. The citation is 2014 WL 6980143.

DAWG BONE: A “LATERAL TRANSFER” CAN BE DEEMED AN “ADVERSE EMPLOYMENT ACTION.”

 

 

Dawg Bones

SOMETIMES YOU NEED A LITTLE HELP FROM THE JUDGE

The U.S. Supreme Court has heard only one case that involved the discipline of students with disabilities—Honig v. Doe, decided in 1988. The Court held that Congress had intentionally stripped school officials of the “unilateral” authority to exclude students with disabilities from school. School officials could, according to the Court, suspend kids for up to ten days (cumulatively) during the school year. But anything above that number would require another party to approve the exclusion, usually the IEP Team (ARD). If the school needed immediate assistance in dealing with a dangerous student, it could seek assistance from the local state or federal court.

The Wayne-Westland Community Schools in Michigan did just that, and the case is instructive as to what kind of evidence a school would need to justify the immediate exclusion of a student from the IEP placement. Wayne-Westland got a TRO (Temporary Restraining Order) on October 9, 2014, followed by a Temporary Injunction on October 16. The Injunction will keep the student away from any school facility until the IEP Team can meet and discuss a change of placement. Even if the parent challenges a change of placement and invokes the “stay put” rule, the Injunction will keep the student out of school for awhile.

So what kind of evidence did the school present? In a case like this, the school faces a heavy burden of proof. It must show that maintaining the current placement is substantially likely to result in injury to students or staff. To convince a judge of that, you usually need evidence that the student has already injured someone.

Wayne-Westland had that evidence. The evidence showed that the student was a big kid—6 feet tall, 250 pounds. In one month in the spring of 2014 he 1) physically attacked a student and several staff members, spitting at and kicking them; 2) “menaced” two staff members with a pen held in a stabbing position and refusing to put it down when told to do so; 3) punched a student; 4) punched the principal; 5) threatened to rape a female staff member; 6) punched another staff member in the face. Later in the semester, the student attacked a security liaison. He was told to leave the building. When he attempted to return, four staff members held the door closed to keep him out. Since the student would not leave the school grounds, the entire school was placed on lockdown.

When school resumed in the fall of 2014, the student 1) threatened to bring guns to school to kill staff members; 2) made racist comments toward African American staff members; and 3) punched the director of special education in the face.

That was enough to convince the court that maintaining the student in the current placement posed an imminent threat. The school had plans to continue the boy’s education through Virtual Academy, with a staff member available to help him and answer questions by phone or email. The court found that plan to be sufficient.

Prior to 1988 a student like this one would probably have been expelled from school. That is no longer an option. The school has a continuing duty to provide a FAPE—Free Appropriate Public Education. But as this case indicates, the school can seek immediate assistance from a court to move a dangerous student off campus.

The case is Wayne-Westland Community Schools v. V.S., decided by the U.S. District Court for the Eastern District of Michigan on October 16, 2014. We found it at 64 IDELR 139.

DAWG BONE: IF YOU NEED IMMEDIATE RELIEF, YOU MAY NEED TO GO TO COURT.

 

 

 

 

Dawg Bones

FOLLOW THE AGENDA AT AN ARD MEETING

Dear Dawg: At an ARD meeting can we just jump right into talking about the student’s placement?  That’s what the parent wants to do, so why not?

Jumping right into placement at the ARD meeting can be dangerous, even if the parent is impatient and wants the meeting to move along.  That’s the lesson of P.C. v. Milford Exempted Village Schools, 60 IDELR 129 (S.D. Ohio 2013).  This is one of the many cases in which parents allege that the school improperly “predetermined” the placement by entering into the IEP Team meeting with a closed mind. The hearing officer did not see if that way. Nor did the state review officer. The school district prevailed in the litigation until the case went to federal court. There, however, the parent won.

The court held that the district denied FAPE by engaging in predetermination, thus depriving the parents of meaningful participation in the process.  The court held that the district predetermined placement in its reading program and failed to involve the parents in the discussion of what reading methodology would be used.  The court acknowledged that methodology need not always be included in IEP Team discussions, but in this case, it should have been.  But the most interesting and illuminating part of the court’s decision involves the order in which things are to be decided.  The court held that the Team had decided placement “and then began to decide on what goals to pursue and which methodologies to try.”

The court noted that placement must be based on the IEP, and therefore, the content of the IEP should be decided before the placement discussion takes place.  This is an affirmation of the idea that IEP Team decisions should be made in the correct order: 1) evaluation review; 2) eligibility; 3) IEP; 4) placement.  This decision supports the notion that schools should have an agenda and follow the agenda so as to take things up in correct order. If you decide placement prior to deciding what the IEP will contain, how can you be sure that the placement is in the least restrictive environment?

So we think ARD Committees should come to closure on the content of the IEP—the present levels, the annual goals, and the specific services needed to achieve those goals, including related services. Then, the chair of the meeting can move the group on to the next issue: “Now that we have agreed on what the child needs, let’s talk about the least restrictive environment in which those services can be provided.”

DAWG BONE: ARD COMMITTEES SHOULD TAKE THINGS UP IN CORRECT ORDER.