I came across a news story in USA Today recently about what it called “informal removal” of students with disabilities. Apparently, there are principals who call the parents and ask them to come get the student and take them home. Could this be a legal issue?

You bet it could. We talk about this in connection with Tool #7 in the Toolbox Training. Tool #7 is The FAPE-Free Zone—those ten school days in which a student might be taken out of the placement called for by the IEP for disciplinary reasons. As long as there are no more than ten of those days in the school year, the student is in the FFZ and the school is still providing a FAPE. If a student is removed for an 11th day, the student has sailed beyond the FFZ and the situation gets complicated for the principal. We go over all of this in detail in the Toolbox Training.

One important part of complying with IDEA’s disciplinary rules is knowing how to count to ten. What days count? If the principal calls the parent and asks (or tells) the parent to take the student home, that day should be counted. Of course we are only referring to situations in which the phone call is prompted by student misconduct. If the student becomes ill while at school, that’s a different story. But if the student has disrupted school or in some way violated school rules and the principal reaches out to the parent with the message of “take this child home” that day should be counted as one of the ten. Euphemisms such as “informal removal” do not change the reality. If the school administration has caused the student to be pulled out of the placement called for by the IEP due to student misconduct, that’s effectively an out-of-school suspension. Count it.

I found it interesting that this obscure aspect of special education law has made it into the mainstream media. Who knows: maybe the term “FAPE-Free Zone” will appear next!

DAWG BONE: TOOLBOX TRAINING: HOW TO COUNT TO TEN!

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

Tomorrow: some great testimony from speech path and OT….

There were two problems with the evaluation conducted by the school psychologist in 2017. The smaller problem was her choice of words. The larger problem was her analysis of the evaluation data. The issue was the child’s eligibility. Did John have a “specific learning disability” that required special instruction? The school psych declared it a “close case” and then added:

In the close calls I tend to go no disability and let’s see what we can provide in general education…Which is my understanding of the law, we have to provide a response to intervention before we go to specially-designed instruction.

I do have a bias of let’s not disable kids and so when I’m writing a report or when I’m speaking to parents or when I’m speaking to teachers, my bias is let’s see if we can give them some supports in the regular education setting that could address this area and see if that helps improve their performance in the achievement area.

The word “bias” was used three times, each time causing the school attorney to cringe. It’s a poor choice of words. On the other hand, her disposition aligns with federal law. If a student can be served effectively through general education programs, that’s how the student should be served. The SLD label should attach only if general education will not serve the student well.

The reference to “bias” was a problem, but the bigger problem was that the court did not see this as a “close call.” Key Quote:

A “bias” in close cases arguably aligns with the IDEA’s purpose, but the record does not demonstrate that John’s diagnosis was a close call—thus a reasonable jury could conclude that Dr. Christie’s stated “bias” was rooted in animus.

Animus? Why are we talking about animus?

The reason for that is that the parent was not just alleging a violation of IDEA, but also of Section 504. It's not necessary to show any bias or animus to prevail on a Child Find claim under IDEA. You just have to prove that the district made the wrong decision. But to recover under ADA/504 the plaintiff must prove the additional element of bias or animus. That’s why the school psych’s choice of words was important.

In this proceeding, the district filed a Motion to Dismiss the 504 claim, arguing that there was no evidence of any bias or animus. The court refused to dismiss the 504 claim. Since the court did not think it was a “close call” it concluded that a reasonable jury could interpret that “bias” to be rooted in some level of animus toward students with disabilities.

It’s Mr. and Mrs. Doe v. Portland Public Schools, decided by the federal court in the State of Maine, on July 14, 2022. We found it in Special Educator at 81 IDELR 134.

DAWG BONE: METHINKS THE COURT READS TOO MUCH INTO THAT WORD.

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 in some of our school districts. On Fridays here at the Daily Dawg I’m going to tell you about my adventures, what I remember, and what I learned.

I started out in an elementary school in Liberty Hill ISD, language arts class, 4th grade. This had the advantage of being within commuting distance for me. Memories:

1. The teacher had her own stash of coffee, and advised me to steer clear of the substandard java in the lounge.
2. I got to attend a faculty meeting after school on my first day. I don’t remember much about the meeting, except for the obvious observation that there were not many men around. More on this later.
3. I got to read to individual students. I remember two in particular—let’s call them The Boy and The Girl. I was told to have The Boy read to me, and he did that quite well. The teacher told me that he could read the words well enough, but that it was unlikely he would be able to tell me much about what he read, and that was spot on. The Boy read fluently, not stumbling over words. But when I asked him a few questions about the passage, it was clear that there was a lack of comprehension.
   I took The Girl to the classroom library for her to pick out a book and I asked her what kind of book she liked. She said “I want a book where the dog doesn’t die.” She added, “Actually, I’d like a book where nobody dies.” That stopped me in my tracks.
4. Every week the teacher gave a short spelling quiz—ten simple words. She showed me one boy’s answers and he had missed six or seven. The teacher told me there was a direct connection between his success on this and his medications. When he took the meds he scored 8-10 correct. Today—no meds. This was the type of data that would be helpful to the parent.
5. The teacher was using a program called Accelerated Reader to track student progress. As a lawyer, I could instantly see how AR information would be good evidence in a due process hearing. Years later I heard educators criticize AR for its simplistic approach. That’s probably a good criticism but for legal purposes of showing that the student is or is not progressing, I thought AR produced the kind of measurable data that hearing officers and judges would understand.

When my son was about five years old and he heard me say something about “Liberty Hill” he thought it was Little Bitty Hill. Thus it has remained in my mind ever since. My calendar notations at the end of my week in the 4th grade in Little Bitty Hill included “I will miss these kids.” I was only with them for four days, but by Friday, I was getting the big eye from some flirtatious little girls, and the boys all wanted to sit next to me at lunch and to throw the football with them at recess. I had done nothing special to deserve such attention. It was the novelty of seeing an adult male, hearing a baritone voice in the classroom. I don’t think there were any other men in that building.

That’s too bad. We could sure use more men in the elementary schools.

DAWG BONE: ELEMENTARY SCHOOL TEACHERS CONTINUE TO SAVE THE WORLD.

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

When a student with an IEP moves into your district, you have a duty to provide services that are “comparable” to the services the student was receiving in the previous district. This makes sense. All IEP decisions are supposed to be based on evaluation data. When that new student shows up on your doorstep, you know nothing about the student. The evaluation data consists of the information the previous district and the parent provide. So the starting point is the existing IEP. Can we come close to replicating it?

A recent decision from a court in New Jersey shows us that sometimes the comparison should include not just the IEP services, but also, the specifics of the placement. The student lived in New York and was placed by the district in a private day school. Then the family moved to New Jersey. The Jersey school district developed a starter IEP and proposed placement for the student in a public school classroom. The parents challenged that and prevailed.

The administrative law judge (ALJ) determined that the New Jersey school did not offer an IEP that was comparable to the one the student had in New York. The district court affirmed that decision. The services in the IEPs were similar, but the main difference was in class size, school size, and student:teacher ratio. The New York placement had the student in a private school with just eight students in a self-contained classroom. New Jersey offered placement in a classroom with about 20 students, in a larger school with a higher ratio of students to teacher. Key Quote:

Therefore, this Court finds, on its own examination of the record and affording due weight to the ALJ’s findings, that the differences between the proposed and current programs in terms of class size, student-teacher ratio, the proportion of classified students per class, and school size indicate the plans were not equivalent.

As a result, the New Jersey school was ordered to continue the student’s placement in a private school that was another branch of the private school the student had attended in New York.

The case illustrates that “comparable” is a subjective term, one of many in our special education laws. Subjective terms (e.g., appropriate, need, comparable, meaningful) permit second guessing by ALJs as happened here.

It’s West Orange BOE v. B.R., decided by the federal court for New Jersey on July 22, 2022. It’s published by Special Educator at 81 IDELR 130.

DAWG BONE: TRANSFER STUDENTS GET “COMPARABLE” SERVICES TO START OUT WITH.

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

Tomorrow: Adventures of a teacher’s aide: Liberty Hill ISD

In our Back to School program this year my law partner, Haley Turner, has been talking about service animals. Haley puts emphasis on the definition of this term that school districts must comply with. A service animal is “a dog” and sometimes a miniature horse. But it’s not a cat, ferret, goldfish, parrot, donkey, or turkey.

Which brought to mind the story I read of the Delta passenger who was allowed to bring a turkey on board the airplane. Here’s the picture:

It’s important to point out that airlines have to be more like Noah than schools do. The federal Air Carrier Access Act requires carriers to permit an “emotional support or psychiatric service animal” on board. The regulation excludes snakes, other reptiles, ferrets, rodents and spiders, but most everything else is permissible, including turkeys. A “service animal” for school purposes can only be a dog or a miniature horse.

Why miniature horses? Who knows?

DAWG BONE: DOGS. OR DAWGS.

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

Tomorrow: student with an IEP transfers in….

In 2017 the Legislature directed the Texas Supreme Court to develop a form that a parent can use to seek an injunction to stop cyberbullying. Five years later, the Court has done its homework. What took so long? I have no idea.

But we have a draft of the form now: https://www.txcourts.gov/media/1454820/229074.pdf The Lege directed that the form be written without the usual legal gobbledygook, and I think that our Supreme Court has done a pretty good job on that. It’s almost informal, using the term “kid” instead of “student” “child” “minor” or “alleged perpetrator.” I did think it odd, however, that the form repeatedly refers to “the bully” rather than “the alleged bully.” What might be even better would be “the student who is alleged to have engaged in acts of cyberbullying.” But to keep it simple, the Supreme Court just calls “the kid” the “bully.”

You can take a look at this form and make comments on it from now until December 1. Then the Court will have to review those comments and, presumably, sometime in the next five years, issue the final form.

DAWG BONE: THE WHEELS OF JUSTICE TURN SLOWLY….VERY SLOWLY AT THE TEXAS SUPREME COURT.

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

Tomorrow: why your school is not much like Noah’s Ark….

The required members of an ARD Committee include a number of school employees along with the parent or adult student. The law refers to the IEP Team (what we in Texas call an ARDC) as a single entity which makes decisions on a consensus basis. But the law also makes numerous references to disagreements at the ARD and provides dispute resolution mechanisms to address them. Those references make it sound like the ARDC consists of two separate parties—the school and the parent/adult student. What gives?

This obscure point was addressed in a footnote in a decision from the 8th Circuit. The parent objected to how the court referred to the “IEP Team” as the school district members of the Team, omitting the parent and her advocates. Is it proper to use the term “ARD Committee” or “IEP Team” when referring only to the school district members of the group? In other words, is it correct to say things like “The IEP Team called for a change of placement, and the parent disagreed.” Isn’t the parent a part of the team?

The court put it like this:

We recognize that the statute defines IEP team to include the child’s parent….But while it is technically inaccurate to use this term to refer only to the District employees on the IEP team, this error has no impact on the outcome of the case. When there is a dispute within the team, the ultimate statutory obligations of the IDEA rest on the school district, and the parent can initiate a due process proceeding to challenge the school’s conclusion.

That makes sense. You may have a dozen people at the meeting, but there are two distinct parties. The school proposes; the parent agrees or disagrees. The parent requests; the school agrees or disagrees. Of course there are often disagreements among the school district members of the Team/Committee, but at some point the district has to speak with a united voice.

It’s J.P. v. Belton School District No. 124, decided by the 8th Circuit on July 26, 2022. It’s published by Special Educator at 81 IDELR 124.

DAWG BONE: WHEN WILL THE REST OF THE COUNTRY JOIN TEXAS IN CALLING IT AN ARD COMMITTEE???

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 a semester off from the law firm and worked as a teacher’s aide at 11 Texas school districts. Let me explain.

Child Number One had already left the nest and Child Number Two had dropped out of high school. Number Two was a smart kid and I found it hard to believe that he had such disdain for formal education. He told me, “Dad, you can’t imagine how boring it is.”

My aunt had died and surprised me by leaving me a sum of money that was just the right amount to support my family for a few months. So I decided to take an unpaid sabbatical from the law firm and see for myself what was going on in our public schools. I reached out to a number of superintendents that I knew and asked if I could spend one week in the district working as an unpaid, voluntary teacher’s aide. My plan was to do this in a wide variety of districts—big and small, urban and rural, and geographically all over the place.

I’m going to spend the next several Fridays here at the Daily Dawg to tell you about what I remember from my adventures. My travels took me to Liberty Hill, Leander, Southwest, Presidio, Keller, Huntsville, Lubbock, McAllen, Hallsville, Killeen, and Houston. I hope you find it interesting.

By the way, if any of you are thinking “he’s making this up”….I’m not. One friend from Region 6 told me that a colleague of hers who she would not name insisted that this must be community service after a DWI conviction. Nope. I did this voluntarily. And I’m glad I did.

We’ll begin our travelogue next Friday. First stop: Liberty Hill ISD in the language arts class of the elementary school.

DAWG BONE: CAN’T BELIEVE IT WAS 25 YEARS AGO.

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

A classroom teacher in South Dakota is facing possible personal liability for violating the constitutional rights of a student with a disability through the habitual use of seclusion. Here is what the plaintiff alleges:

On a regular basis, [the teacher] and her two teaching aides physically picked up and carried students—who sometimes resisted by kicking and screaming—from class to the little room . Once there, students had to demonstrate calm behavior and complete several “task baskets” unrelated to whatever disciplinary infraction led to their visit before they were permitted to leave. Either [the teacher] or an aide would wait outside and hold the door shut until they gained compliance. Students sat in the little room for up to hours at a time, with a few instances extending to as long as an entire afternoon.

The “little room” was 10x10 with a window in the door, a small table, a whiteboard and cupboards. Between October 26, 2015 and March 1, 2016 one student (A.A.) was sent to the little room 274 times. Another student (B.B.) was confined to the “calm down corner” which was in an atrium adjacent to the classroom. Staff made sure the student did not leave. The suit also alleges that the teacher forced B.B. into the swimming pool and once held down a third student (C.C.), forcibly stripped him of his clothes and put his bathing suit on him. The court held that these were unreasonable seizures under the 4th Amendment because they “substantially departed from accepted standards”:

She habitually secluded A.A. and B.B. for minor disciplinary infractions with no evidence that they posed imminent risk of harm to themselves or anyone else. And she restrained B.B. and C.C. to coerce compliance with routine directives to get in a pool and change clothes.

The court held that the right of the students to be free from such harsh treatment was “clearly established” and so the teacher was not entitled to qualified immunity.

The court emphasized that “an ordinary school timeout is not a 4th Amendment seizure.” The court also noted that physical restraint is permitted when necessary to prevent imminent harm. The problem here is that this student presented no such danger and the teacher’s practices, as alleged in the suit, went far beyond professionally accepted standards.

This was all in the context of the teacher’s Motion to Dismiss, which means the court was required to assume the truth of all of these horrific allegations. Now the parent will have the burden of proving the truth of the allegations

But for us in Texas this high level ruling from the 8th Circuit sends a clear message about the limits we should observe in the use of restraint.

It’s Doe v. Aberdeen School District, decided by the 8th Circuit on August 1, 2022. It’s published by Special Educator at 81 IDELR 121.

DAWG BONE: TEACHERS CAN BE HELD LIABLE FOR VIOLATING THE CONSTITUTIONAL RIGHTS OF STUDENTS IF THE LAW IS CLEARLY ESTABLISHED.

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

Tomorrow: launching a new series of Friday Daily Dawg posts.

Those rookie teachers are now almost two months into their great adventure. Have any legal concerns surfaced? New teachers may be in their early 20s, in their first fulltime professional employment. Or they may be coming into the profession from some other line of work. Either way, there is much to learn.

Our firm is offering a webinar to address these topics next Wednesday, October 12. Here are the details:

TITLE: WHAT YOUR NEW TEACHERS AND SUBS NEED TO KNOW
WHEN: Wednesday, October 12 at 10:00 a.m. to 11:30.
PRESENTERS: Andrea Slater Gulley and Jennifer Carroll

This will be a practical session focusing on the most common legal issues that newbies need to know about with a particular emphasis on special education issues. Sign up at www.walshgallegos.com.

DAWG BONE: WHAT THEY DON’T KNOW CAN HURT YOU. AND THEM.

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

Tomorrow: teacher liability.