We have a system of dispute resolution for special education matters. A parent who disagrees with ARD Committee decisions or is generally dissatisfied with the quality of education their child is receiving can obtain a due process hearing by asking for one. However, some lawyers who represent parents in such matters bypass that procedure and go straight to court. Why would they do that?

They do that because the administrative due process system is limited in the remedies it offers. A parent who wins a slam dunk victory in a special education due process hearing might receive make-up educational services, reimbursement for money the parent has spent on their child’s education, a commitment from the school to pay for private schooling in the future, and payment of attorneys’ fees. What they won’t get and can’t get through the due process system is an award of damages. Only a court can award damages, and only if the court concludes that the district did not just violate IDEA—it also discriminated on the basis of disability in violation of Section 504 and the Americans with Disabilities Act.

So filing suit in court without going through the lengthy administrative process of a due process hearing looks to be an attractive option. But it’s risky. The court might toss the case out for “failure to exhaust administrative remedies.” That’s what happened in W.S. v. Dallas ISD.

The student in this case had autism and Down Syndrome. He was a student who consumed objects not meant to be consumed, and of course, that can be dangerous. The district was aware of this and took numerous measures to keep the student safe, but problems persisted. The parent alleged that the school did not keep objects out of reach and the boy continued to put things in his mouth that were not for eating. The suit alleges that the student ingested six rubber gloves that required emergency surgery for removal.

The suit alleged that the district intentionally discriminated against the student by failing to provide a safe environment. The federal district court tossed the case out, holding that this is the type of case that should have been taken to a special education due process hearing. In an unpublished opinion, the 5th Circuit affirmed.

The court viewed the suit as a complaint that the IEP was not properly implemented and/or did not include the necessary protocols to provide for safety. Thus the complaint was in essence a complaint that the district did not provide FAPE. Key Quote:

Consider the complaint’s specific allegations: W.S. alleges that but for DISD’s failure to constantly supervise him, provide one-on-one supervision, and remove small objects from his environment, he would not have been harmed. DISD’s duty to provide such individualized services arises from the district’s FAPE obligations.

The court noted that an IEP includes both instructional and “related” services and that “related services includes addressing safety concerns such as removing choking hazards.” Administrative remedies were not only available, they were mandatory. The parent did not “exhaust” them. Therefore, the court had no jurisdiction of the matter. Case dismissed.

The 5th Circuit decided W.S. v. Dallas ISD on October 7, 2022. It can be found at 2022 WL 6316442.

DAWG BONE: IF IT’S ABOUT FAPE, EXHAUSTION OF ADMINISTRATIVE REMEDIES IS MANDATORY.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: teacher rant leads to Commissioner ruling

The Department of Education’s Office of Special Education and Rehabilitative Services has updated the Q and A document on student discipline that it released in 2009. Our firm has always included the 2009 Q and A in our Toolbox book, and the latest version of the Toolbox will include the new and improved 2022 version. On Toolbox Tuesdays for the next several weeks I’m going to highlight some of the important points we can glean from this new resource. We’ll do this section by section—so let’s start with Section A.

Section A includes six questions that provide an overview of the school’s responsibility. They tell us that the evaluation of a student should include, “if appropriate, social and emotional status.” They tell us that the FAPE requirement includes addressing a student’s behavioral needs. They tell us that IEP Teams (ARDs) must ask themselves if the student has behaviors that impede the learning of the student or others, and if the answer is “yes” the Team must address the behavior through positive behavioral interventions, strategies and supports.

All of this should sound very familiar to those of you who have been through a Toolbox training. Looking for something new and helpful, I took note of Footnote 12, which provides a veritable “laundry list” of ways that schools can positively support students with behavioral needs. The federal regulations toss out terms like “supplementary aids and services, and program modifications and supports” but Footnote 12 spells that out in a more concrete and helpful way with this list:

1. Counseling services for mental health needs (e.g., anxiety, depression, etc.);
2. Social skill instruction;
3. Explicit reinforcement of positive behavior (such as a classroom token economy);
4. Explicit instruction in stress, anxiety and depression management;
5. Consultation with a professional with expertise in behavioral interventions to create a positive behavioral support plan;
6. Increased access to counselors;
7. Access to targeted strategies based on peer-reviewed research to support social, emotional, behavioral, or mental health needs (e.g., anxiety scaling, mindfulness exercises); changing the student’s class schedule; training staff on additional positive behavioral supports and universal design for learning; and
8. Access to consultation with related service providers and others with specialized expertise.

When I do a Toolbox Training and I suggest that kids that are using drugs at school should have a BIP, I am often asked what such a BIP would look like. This list is a good place to get you thinking about the answer to that question.

DAWG BONE: WE’LL GO THROUGH THIS Q AND A SECTION BY SECTION.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: feeling exhausted?

On Fridays this fall I’m recalling the memorable moments of my time as a volunteer teacher’s aide in 1997. I volunteered to serve in this capacity in several different school districts, each time for just a week. The highlight of the fall tour was the week of September 29 to October 3 when I was in the behavior unit at Smith Middle School in Killeen ISD.

The first thing I noticed about the classroom was the wrestling mats on the floor. I inquired about this and was told “That’s for when we take them down.”

Yikes. Maybe this volunteer gig isn’t such a good idea. The aide who told me about “taking them down” was my fellow teacher’s aide, a skinny young guy a couple of inches shorter than me and weighing in at a good 140 I’d bet.

“We…. we take them down, you say? We do that?” I asked.

“Yeah. These kids…. sometimes you have to take them down.”

The second thing I noticed was the size of one of the students. There were only five or six students (all boys, by the way) and one of them stood out. He was an 8th grader. An Enormous Eighth grader. I wondered if Skinny Aide had actually “taken down” Enormous Eighth Grader. I learned that this boy was on the middle school football team, which did not surprise me. He was big enough to play Offensive Line. Not just one position on the Offensive Line—he could replace the entire line from Left Tackle to Right Tackle. I learned that the school had had to cobble together two pairs of football pants to fit him. The middle school coach came by every day to see if his Offensive Line was ready to be released from the behavior unit. Kids assigned to the behavior unit were not allowed to participate in extracurricular activities.

Let’s pause on that for a moment. I’m not sure I thought about it at the time, but the boys should not have been barred from extracurriculars. This was not a disciplinary placement. This was a self-contained unit where the boys had been placed by the ARD Committee as per their IEPs. That’s an educational placement, not a disciplinary one, and the students should have been allowed to play sports, perform with the band, and all the rest.

I grew to like and admire the teacher of this class. His name was Ed and he had a genuine affection for these students. I did not see anyone “taken down” nor did I witness any serious misconduct by any of the students. But it was very obvious that these boys were doing poorly academically. By this time in the semester, I had spent a week in a 4th grade language arts class, and a week in a middle school Content Mastery room. The students I encountered in those classrooms struck me as bright, capable, and for the most part, well-motivated. It was different in the behavior unit in Killeen. The teacher was working hard, but he was dealing with a group of students who were already far behind their peers. Their frustration with the formality and monotony of schooling was obvious, and understandable.

I had two experiences that week outside of the classroom that left a lasting impression. The kids left school early on Monday and the teachers had a faculty meeting. I attended. They were reviewing the results of the state standardized test—the TAAS, which was the 1997 version of the STAAR test. I could see how these statewide tests served a useful function. When used to diagnose what the students could do, and where they needed help, the tests were useful.

For example, the head of the math department pointed out that the test results clearly showed that doing math calculation was not the problem. Reading was the problem. The multiple-choice math questions always offered one possible answer that was designed to ensnare the student who misread the question. And sure enough, that’s where most of the wrong answers were. The kids did the arithmetic correctly but got the wrong answer because they didn’t read the question right. I learned that the so-called math test was a reading test in disguise.

Standardized tests are not good for evaluating teachers and should not be the sole basis for assessing individual student growth. But at that faculty meeting I saw how the test results told the math teachers something that could help them improve their teaching.

The second experience was the middle school dance, and the unfortunate assistant principal who was assigned to monitor for dirty dancing. Seemed to me there was quite a bit of that, and I decided that it was time for me to thank God for a week of no “taking them down,” and head on home.

Next stop: McAllen.

DAWG BONE: NOT SURE WE HAD RULES ABOUT PHYSICAL RESTRAINT 25 YEARS AGO.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

LOYAL DD READERS: TODAY’S THE DAY TO ZOOM WITH THE DAWG. 10:00. HOPE TO SEE YOU THERE!

The case in Harlingen started out as a proposed mid-year termination of a teacher who served under a probationary contract. It morphed into a termination as of the end of that probationary year. It’s not surprising that this happens periodically.

Here’s why: it takes a long time to terminate a contract in mid-year. When the district proposes termination in mid-year it must give the teacher notice of it. The teacher is entitled to an independent hearing before a hearing examiner appointed by T.E.A. The district bears the burden of proving that there was “good cause” sufficient to terminate the teacher’s employment. The hearing has to be conducted, the hearing examiner has some time to render a decision, and since lawyers are involved, things often get pushed back. Meanwhile, the district continues to pay the teacher.

In this case there were added complications. The Texas Teachers of Tomorrow alternative certification program had informed the district that the teacher had lost his certification status. Based on that, the board voted to terminate the man’s employment since the contract was void. The teacher appealed that to T.E.A. claiming that the TTT relied on a miscommunication from a district administrator.

All of a sudden it’s April and the parties are embroiled in an appeal to T.E.A. Hmmm. That’s when the district chose to cut the Gordian Knot and take a simpler approach. It rescinded the vote to declare the contract void, and voted instead to terminate the teacher’s employment as of the end of the contract term. This does not require a hearing, does not require proof of good cause, and is not appealable. Simpler. Less expensive.

However, it did still go to T.E.A. where the Commissioner ruled that he did not have jurisdiction to hear the teacher’s appeal. The teacher failed to allege any wrongful act by the board. He claimed that a district administrator gave incorrect information to TTT, which led to the “void contract” decision. The Commissioner pointed out that he has jurisdiction over school board decisions—not those of administrators:

The Commissioner lacks jurisdiction to review administrators’ actions unless a school board, by its action or decision as a body corporate (not an individual board member’s action), reviews and affirms the administrators’ actions. Typically, that occurs when an employee files a grievance about the administrators’ actions and the board decides the grievance. Petitioner did not file a grievance….

It's Campbell v. Harlingen ISD, Docket No. 021-R10-03-2022, decided by Commissioner Morath on August 17 2022. I’m pleased to let you know that our firm’s Rio Grande Valley office handled this case, with contributions from Elizabeth Neally, Leandra Ortiz and Priscilla de la Garza.

DAWG BONE: GOT A GRIPE WITH AN ADMINISTRATIVE DECISION? FILE A GRIEVANCE. GOT A GRIPE WITH THE BOARD’S DECISION? TAKE IT TO THE AGENCY.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: my week in the behavior unit…

Thanks to Loyal Daily Dawg Reader Mark Tilley for the heads up about the brief filed by The Onion in Novak v. City of Parma. Not familiar with The Onion? Too bad. Here’s how The Onion describes itself in the brief:

The Onion is the world’s leading news publication, offering highly acclaimed, universally revered coverage of breaking national, international, and local news events. Rising from its humble beginnings as a print newspaper in 1756, The Onion now enjoys a daily readership of 4.3 trillion and has grown into the single most powerful and influential organization in human history.

None of that is true. What is true is that The Onion is hysterically funny. It’s a parody publication that has featured such headlines as: Kim Jong-Un Named the Onion’s Sexiest Man Alive. The brief cites the use of parody going back to the ancient Greeks. Jonathan Swift and Mark Twain are cited, along with several court cases holding that parody and satire are protected as free speech under the First Amendment. As professional parodists, the writers at The Onion claim that they have an interest in protecting Mr. Novak, the plaintiff in this case, from prosecution.

Mr. Novak was arrested for what he posted on Facebook. According to the brief:

Mr. Novak’s spoof Facebook posts advertised that the Parma Police Department was hosting a “pedophile reform event” in which successful participants could be removed from the sex offender registry and become honorary members of the department after completing puzzles and quizzes; that the department had discovered an experimental technique for abortions and would be providing them for free in a police van; that the department was soliciting job applicants but that minorities were “strongly encouraged” not to apply; and that the department was banning city residents from feeding homeless people in “an attempt to have the homeless population eventually leave our City due to starvation.

Do you find that not very funny? Tasteless? The Onion concedes that point, but cites the Supreme Court case involving Larry Flynt’s Hustler magazine for the proposition that “the quality and taste of the parody is irrelevant.”

The brief is asking the High Court to take up this case and reverse the decision of the 6th Circuit. The 6th Circuit ruled against Mr. Novak because he did not include a disclaimer, warning his readers that his posts were not to be taken seriously. The Onion claims that disclaimers would spoil the joke. Here’s how parody works:

The author convinces the readers that they’re reading the real thing, then pulls the rug out from under them with the joke. The heart of this form lies in that give and take between the serious setup and the ridiculous punchline. As Mark Twain put it, “The humorous story is told gravely; the teller does his best to conceal the fact that he even dimly suspects that there is anything funny about it.”

The Dawg has occasionally used parody so I was pleased to see The Onion rise to the defense of this rhetorical art form. We shall see what happens.

DAWG BONE: KIM JONG-UN WAS NOT NAMED SEXIEST MAN ALIVE. MIKE MORATH WAS.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: not fired today…fired later.

One of the more challenging situations you will encounter is when a student commits a serious violation of your Code of Conduct, but the behavior is a manifestation of the student’s disability. What then?

Federal law is actually pretty specific and detailed about this and so we spend quite a bit of time on this in the Toolbox Training. But if you want the shorthand version of what to do, remember the two Don’ts:

DON’T PUNISH IT

DON’T IGNORE IT

That makes sense. If a student’s behavior is directly attributable to the student’s disability, you would not want to punish it. That would be the same as punishing the student for having a disability. We call that disability-based discrimination.

But you can’t ignore inappropriate behavior. So the thing to do is to call for an ARD meeting and discuss what can be done to teach the student more appropriate behaviors. That’s what BIPs are all about.

If you are interested in a Toolbox Training, just let me know.

DAWG BONE: THE BEHAVIOR IS A MANIFESTATION OF DISABILITY: DON’T PUNISH IT. DON’T IGNORE IT.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: surprising Amicus brief….

WE’RE ZOOMING WITH THE DAWG THIS THURSDAY AT 10! BE SURE TO JOIN FOR A LIVELY DISCUSSION.

Seeing as how it’s a Monday in the heart of football season, let’s talk about Monday Morning Quarterbacking. MMQBing is a popular pastime all over America, but should not be done when judges review the judgment calls that educators make. And usually, they don’t.

A good example comes our way via the 5th Circuit. The court dismissed a case in which a former student in Austin ISD accused the district of being deliberately indifferent to racial discrimination. This is not a case in which a teacher or administrator is accused of racial discrimination. The case is about racial slurs and graffiti by other students. In a student-to-student case like this the plaintiff has to prove that the district knew what happened and responded to it with deliberate indifference. The plaintiff here failed to satisfy that standard. Case dismissed.

The court relied on Fennell v. Marion ISD, 804 F.3d 398 (5th Cir. 2015) which it described as “this circuit’s seminal case on Title VI claims for student-on-student harassment.” The Fennell case “teaches that whether a defendant’s response to harassment is reasonable is a contextual inquiry made in light of the severity of the harassment at issue.” The district’s response is to be viewed “in the totality and in light of the severity of the harassment.”

In this case the district simply did not know about some of the incidents that occurred until the suit was filed. There were other incidents that were reported to the school, and they were investigated and dealt with. As is often the case in suits of this nature, the plaintiff argued that the school should have taken stronger action to protect this student from racial harassment by her classmates. The court noted that “Administrators are entitled to make these decisions without second-guessing from courts.”

It's Sneed v. Austin ISD, decided by the 5th Circuit on October 4, 2022.

DAWG BONE: IF THE DISTRICT RESPONDS REASONABLY, THE COURTS WILL NOT PLAY MONDAY MORNING QUARTERBACK.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!

Twenty-five years ago I took some time off from the law firm and volunteered to work as a teacher’s aide for a week at various Texas school districts. I’m relaying my memories of this adventure on Fridays here at the Daily Dawg. Last week I told you about my first stop in Liberty Hill ISD. The next stop was Cedar Park Middle School in Leander ISD.

I was assigned to Content Mastery. Whatever happened to Content Mastery? It was the Big Deal for awhile, but I have not heard that term in a long time. Are schools still doing this? Was it replaced by RtI?

What I recall from my week in Leander is the “regulars”—the kids who came in for some help every day. I remember one in particular. He was obviously a bright kid, with a friendly and engaging personality. I helped him focus on math problems and other assignments. A lot of the work consisted of worksheets, which brought to mind my son’s observation about his public school experience: “Dad, you can’t imagine how boring it is.” The worksheets were boring.

I found it slightly disrespectful that the students never called the teacher by her name. Instead she was referred to simply as “Miss.” I wondered if they didn’t know her name. I guess a lot of other labels could have been used that would have been more rude, but I found it a bit dehumanizing that Ms. Gauna was never called Ms. Gauna. Nor was I Mr. Walsh. I was “Sir.”

We had some downtime in the CM room and so after the first few days I decided to bring along something to read. My regular CM kid saw me reading a magazine and asked what I was reading. The following exchange took place:

KID: Sir, what are you reading?
ME: American Heritage magazine. It’s about American History.
Pause…..
KID: Sir, I thought you were finished with school.
ME: I am.
KID: Then why are you reading a magazine about American History?
ME: Because I find it interesting.
Long pause…..
KID: Sir, you frighten me.

That was satisfying. I felt that my work in Leander was done.

On to Killeen and the behavior unit.

DAWG BONE: THAT KID HAS TO BE ALMOST 40 BY NOW. I WONDER WHAT HAPPENED.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Today’s Daily Dawg case is about the 17-year old who had just arrived in California from Honduras where he only completed the 6th grade. He had very limited English language skills. The enrollment forms, filled out by his aunt/guardian, did not indicate that the student had any injury, illness or disability. Nor had the student ever received special education services. Educational records from Honduras were not available. The school put him in its Newcomer Program where he struggled at first, but started making progress after his first semester. Numerous teachers testified that this pattern was typical for students in the Newcomer Program.

Later, the student’s guardian sought a due process hearing, claiming that the student should have been receiving special education services. The request for hearing prompted the district to conduct an evaluation of the student. The very thorough and bilingual evaluation concluded that the student was not eligible. The evaluation noted the student’s spotty attendance record and the effect this had on his grades. The ultimate conclusion was that whatever educational deficits the student had were “primarily due to limited English proficiency; a lack of instruction in reading or mathematics…or environmental, cultural, or economic factors.” The ALJ (Administrative Law Judge) agreed with that, as did the court.

This is a classic illustration of what I call a Quadrant Three student. He’s “at risk.” He needs special help, but not special education. His inability to speak English, his need to transition to a new country and a new culture, and his lack of educational opportunity all mark this student as “at risk” and a candidate for special attention. But IDEA (and Section 504) are about serving students with physical or mental impairments. There was no indication of that here.

It's Amaya v. Chaffey Joint Union High School District, decided by the federal court for the Central District of California on April 28, 2022. It’s published by Special Educator at 81 IDELR 14.

DAWG BONE: QUADRANT THREE (AT RISK) NEEDS SPECIAL HELP, BUT NOT DUE TO A DISABILITY.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Content Mastery in Leander….

I’m going to quote the testimony of the speech pathologist and the occupational therapist in a recent federal court case from Colorado because I think they both provided the kind of “cogent and responsive” explanations for their recommendations that courts respect. The school recommended changes regarding both speech and OT—less direct therapy and more consult. The parent looked at the overall minutes of service and saw that there was a reduction. Thus the complaint. The court sided with the district, citing the testimony quoted below. The OT:

So increasing that consult time allowed a significant amount of more time for me to work with the educational team, paras and teachers alike, to carry out daily what, in essence, we were doing—I was doing with Alex. So instead of Alex getting therapy one or two times a week in a small setting, now he’s getting it daily through other people doing it. So he’s generalizing the skill. They’re using the skill throughout the entire school day versus an isolated spot with me. So on paper it might look like that is a decrease in services; but in essence, it’s actually an increase because now he’s getting this all throughout the week versus just one time in a therapy session.

The speech therapist:

Indirect minutes are those collaboration, consultation, working with the whole team, training them on the device….expanding his language, what to do if behaviors occur…So it was just a way to spread the wealth, I guess, of what I do and make it accessible for all the paras so that Alex had that consistent teaching throughout his natural environment. That’s the goal of all of our kids. We want them to generalize their skills into their natural environments, whether it be school, home, in the community. We want those skills to go beyond a one-on-one therapeutic box, so to speak.

The student was making progress on speech and OT goals, but had difficulty generalizing his skills. The move from direct to consult was designed to address this. Both of these witnesses spoke of the need to generalize skills, and pointed out that the consult model would improve the rate of progress.

The decision to reduce the amount of minutes was based on student need, not on staffing concerns or any other improper motivation. The decision was based on evaluation data. That’s why the court approved it.

It’s Alex W. v. Poudre School District No. 1, decided by the federal court in Colorado on July 15, 2022. It’s published by Special Educator at 81 IDELR 133.

DAWG BONE: COGENT AND RESPONSIVE IS THE STANDARD.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: a Quadrant Three student shows up