The federal Office of Special Education and Rehabilitative Services has updated its Q and A document on the discipline of students with disabilities. Special education directors would be wise to devote some time to studying this document. For today, I want to highlight one important point with regard to the students I sometimes refer to as “the shouldaknown kids.”

These are students who have not been determined to be eligible for special education, and yet, they are entitled to the legal protections that IDEA provides. Why would that be? Because the school is “deemed to have knowledge” that the child is a child with a disability. In other words, the school “shouldaknown” that this child belongs in the special education program.

Do you think that might apply if the student is being served via Response to Intervention? Suppose that your campus is implementing a multi-tiered system of supports and you have a third grader who is receiving Tier Two services due to concerns over his reading skills. The student then violates the Code of Conduct. Is the student entitled to IDEA legal protections? Is this a “shouldaknown” kid?

For example, if the child’s participation in the RTI process is based on the parent expressing concern in writing to the child’s teacher that the child is in need of special education and related services, and the parent has not prevented the evaluation from occurring, then the LEA would likely be deemed to have knowledge as of the time of receipt of the parent’s written communication.

So in the example I just gave involving that 3rd grader, my answer would be “maybe.” How did the student get to Tier Two? Did the parent ask for a special education referral, and the school responded with “let’s try RTI first”? If that’s how it went down, that “maybe” becomes “probably so.”

And while we’re on that topic, let’s remember that “let’s try RTI first” is a risky answer unless it’s accompanied by a copy of the Procedural Safeguards document and a Prior Written Notice.

Here’s a link to the Q and A. https://sites.ed.gov/idea/files/qa-addressing-the-needs-of-children-with-disabilities-and-idea-discipline-provisions.pdf

Study up.

DAWG BONE: BEWARE OF WHAT YOU SHOULDAKNOWN.

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

Tomorrow: Teacher and student on the ground….

WE’RE ZOOMING WITH THE DAWG THIS THURSDAY!! PLEASE JOIN ME AND MY SPECIAL GUEST, SARAH ORMAN, FOR A PREVIEW OF THE 10TH EDITION OF THE EDUCATOR’S GUIDE TO TEXAS SCHOOL LAW AND A REVIEW OF THE LATEST “USE OF FORCE’ CASE FROM T.E.A. THURSDAY AT 10:00.

Nonrenewal cases are common in Texas school law, and most of them are decided by the Commissioner. The process is 1) the board proposes a nonrenewal; 2) the educator requests a hearing; 3) the board conducts the hearing and votes to not renew the educator’s contract; and 4) the educator appeals to the Commissioner.

The case of Mull v. Houston ISD is an exception. The story begins when the district proposed not a nonrenewal but a termination of the kindergarten teacher’s contract. This was in January, 2017. Ms. Mull first appealed that recommendation to the Commissioner, but then she withdrew that appeal. By April, as the end of the school year approached, the board evidently decided that the simpler thing to do with Ms. Mull was to propose her nonrenewal. After all, the burden of proof for the district is easier to satisfy with a nonrenewal and the process is simpler. The board followed through on that, voting to end Ms. Mull’s employment with the district on the date when her current contract ran out.

The normal next step would be for Ms. Mull to appeal the board’s decision to the Commissioner, but she did not do that. Instead, she filed suit in federal court alleging that the district had violated various constitutional standards as well as some state laws. That did not turn out well for her.

The federal court dismissed the case, and the 5th Circuit has now affirmed that decision. Ms. Mull cited the Texas Education Code provision that immunizes teachers from disciplinary actions when they use reasonable force to address student misconduct. (This is an issue we will look at later this week). The nonrenewal was based on the district’s view that the teacher’s use of force was not reasonable, but was excessive. This factual dispute could have been sorted out by the Commissioner if Ms. Mull had taken the appeal to him. But the federal court has no business dealing with this issue until the Commissioner does. Key Quote:

In Texas, “if the Legislature expressly or impliedly grants an agency sole authority to make an initial determination in such disputes, the agency has exclusive jurisdiction and a party ‘must exhaust her administrative remedies before seeking recourse through judicial review.’” Here, Mull was required first to appeal the District’s nonrenewal of her contract to the Commissioner of Education….As she failed to exhaust her administrative remedies as to this issue, the district court’s dismissal was proper.

It's Mull v. Houston ISD, decided by the 5th Circuit in an “unpublished” decision on August 4, 2022.

DAWG BONE: NONRENEWAL APPEALS GO TO T.E.A.

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

Tomorrow: Toolbox Tuesday!!

The 9^th Circuit opens its opinion with this:

This case pits two competing values that we cherish as a nation: the principle of non-discrimination on the one hand, and the First Amendment’s protection of free exercise of religion and free speech on the other hand.

The court ruled that the school district’s non-discrimination policy had been selectively enforced to the detriment of a religious group—the Fellowship of Christian Athletes.   The school de-recognized the FCA after a social studies teacher complained that the group’s criteria for leadership positions discriminated against gay and lesbian students.

FCA did not overtly prohibit gay or lesbian students from membership, or from leadership.  However, to be a leader, the student would have to affirm a belief that “God instituted marriage between one man and one woman as the foundation of the family” and “For this reason we believe that marriage is exclusively the union of one man and one woman.”  FCA leaders were also required to profess the belief that “Neither heterosexual sex outside of marriage nor any homosexual act constitute an alternative lifestyle acceptable to God.”

The problem for the school district in this case was that there were other student groups fully recognized by the school that blatantly discriminated against certain students. There was The Senior Women Club, for example.  The court noted that “there may be very good reasons for the Senior Women’s Club to have restricted membership.  A female-only group may enhance membership, camaraderie, and networking for its members.”  But the school district cannot choose which types of discrimination it favors, and which it disfavors.”

It didn’t help the school’s case that key leaders in the school expressed hostility toward the FCA.  One of the judges wrote a concurring opinion to emphasize this factor.  One teacher called the FCA’s beliefs “bullshit” and another described evangelical Christians as “charlatans” who perpetuate “darkness” and “ignorance.”  The judge noted that:

This is not, to put it mildly, neutral treatment of religion.  More than a whiff, a stench of animus against the students’ religious beliefs pervades the Pioneer High School Campus.   

This is another in a string of recent cases in which courts have cited “selective enforcement” of policies that have the effect of infringing on the free exercise of religion. And as the court points out in its opening line, this is a value that we cherish as a nation.

It’s Fellowship of Christian Athletes v. San Jose USD, decided by the 9^th Circuit on August 29, 2022. The decision was 2-1.  The dissenting judge did not address the merits of the case, but concluded that the plaintiff organization did not have standing to pursue the case.

DAWG BONE:  NON-DISCRIMINATION POLICIES MUST NOT BE SELECTIVELY ENFORCED.

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

A school district in Wisconsin responded swiftly and strongly when it learned that a 6^th grade teacher was using materials in the class that were deemed offensive and insensitive to students of color. The district:

1. Began an internal investigation;
2. Put the teacher on administrative leave;
3. Hired a law firm to investigate the matter;
4. Issued a district-wide apology to families and staff;
5. Released the results of the investigation when it was completed;
6. Held mandatory professional training on harmful curriculum content;
7. Reviewed the social studies curriculum;
8. Partnered with an outside organization to provide healing sessions; and
9. Collaborated on a district-wide equity assessment with the African American Parent Network.

What was this about?  Day One of Black History Month coincided with the day the 6^th graders were beginning a lesson on ancient Mesopotamia. A teacher presented a lesson that featured prominent African Americans, such as Rosa Parks, Barack Obama, and Martin Luther King.  So far so good. But when the powerpoint slides moved on to Mesopotamia, they described Hammurabi and Hammurabi’s Code. 

The lesson concluded with an interactive assignment that asked students to apply the Code of Hammurabi to three scenarios. One of them was:

A slave stands before you. The slave has disrespected his master by telling him “You are not my master.”  How will you punish the slave?

Keep in mind the students were not being asked for the morally right response, or how such a scenario would play out under American standards in the 21^st Century. No. The question was about Hammurabi’s Code and the correct answer was “he should be put to death.”

Students were upset.  Parents were livid. The matter went viral.  And then there was the lawsuit.

The court dismissed claims of “hostile environment,” for reasons that are well established in the law.  The court noted that a jury could conclude that the assignment was “offensive, insensitive, and justifiably upset students and their families.  But a hostile environment claim requires much more than a single upsetting episode.”

That’s particularly the case when the district responded as vigorously as it did. Moreover, no school administrator knew that these materials were being used in the classroom and they were not a part of the district’s approved curriculum. 

It’s Ervins v. Sun Prairie Area School District, decided by the federal court for the Western District of Wisconsin on July 1, 2022.  It’s cited at 2022 WL 2390180.

DAWG BONE:  WE CAN EXPECT COMPLAINTS ABOUT CURRICULUM THIS YEAR!

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

Tomorrow: FCA sues California district

I think a “trigger warning” may be in order before you read the 5^th Circuit’s decision in the case involving the “one and only interaction” between the two Aggie sophomores who met through a dating app. That one interaction involved three discrete sexual activities.  The female student alleged that she willingly participated in the first; was forced into the second act; and engaged in the third act out of fear of what might happen if she didn’t.  The University gave notice to the male student of the allegations, and conducted a hearing before a panel of administrators.

The panel concluded that the male student violated A&M policy with regard to that second sexual act.  He was suspended for a semester.  After that he returned to TAMU and graduated in 2019. Then he sued the university and several administrators alleging sex discrimination and an infringement of his constitutional right to due process.

The case is not over, but last month the 5^th Circuit issued an interlocutory order that addresses an important legal point with regard to due process standards. How much due process was the student entitled to under these circumstances?  It’s a university case, rather than a K-12 case, but the court’s decision will influence how public schools handle similar situations.

The sticking point was cross-examination.  Both students were present for the disciplinary hearing and the female student “described her allegations in detail.”  The male student was represented by an attorney who wanted to cross-examine the other student. He was not allowed to.  Instead, the panel allowed the male student to “submit an unlimited number of written questions, subject to the panel’s determinations on relevancy and non-harassment.”

Is that sufficient to provide constitutional due process in this type of proceeding? The 5^th Circuit held that it was.  Key Quote:

Van Overdam [male student] received advance notice of Shaw’s [female] allegations against him. He was permitted to call witnesses and submit relevant, non-harassing evidence of his innocence to a neutral panel of administrators. He was represented by counsel throughout the entirety of his disciplinary proceeding.   He had the benefit of listening to Shaw’s description of the allegations directly. And he and his attorney had the opportunity to submit an unlimited number of questions to the disciplinary panel.

This will be a published decision, meaning that it will establish binding precedent for courts in the 5^th Circuit.  It’s Van Overdam v. Texas A&M University, decided on August 9, 2022. 

DAWG BONE: DUE PROCESS DIFFERS BASED ON CONTEXT.  A DISCIPLINARY HEARING IN A SCHOOL IS NOT THE SAME AS A CRIMINAL CASE.

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

Tomorrow:  the “offensive and insensitive” student activity.

HEY!  IT’S NOT TOO LATE TO SIGN UP FOR OUR FIRM’S WEBINAR ON FBAs, BIPs, RESTRAINT AND TIME OUT—ALL THE STATE LAWS ABOUT DISCIPLINE. THE WEBINAR IS TOMORROW AT 10. SIGN UP TODAY AT WWW.WALSHGALLEGOS.COM. 

Let me tell you about a complicated situation in Maine that nicely illustrates how some of the tools in The Toolbox work.   Here’s the sequence of events:

1.  October 2019 IEP Team Meeting: The Team considered some seriously disruptive behavior by the student.  But because the behavior was a manifestation of disability, the student was supposed to be kept in his current placement.  However, Tool #2 allows the parties to agree to a change of placement under these circumstances. This is what happened here.  Afterwards, the parents argued that they did not understand the process and should have been more directly informed of their right to disagree with the other members of the  Team. The court rejected that, holding that the written notice in the Procedural Safeguards document was all that the law required. So the agreed-to change of placement went into effect.
2. December 2019: After another incident, the director of special education ordered that the student be served at the school’s central office, rather than in a classroom at the middle school.  The parents objected. The school did it anyway. That’s not one of the tools!  Even if the school felt that a move to an interim setting was called for it should have had the IEP Team determine what the interim setting would be. 
3. January 2020 IEP Team Meeting: At parent request, the Team agreed to move the student back to the middle school as of January 30^th.   However, the principal, special ed director and superintendent all disagreed with this decision and on January 29^th filed for an expedited appeal to override the Team’s decision due to safety concerns. This is the proper use of Tool #4 which is designed for cases like this, when top administrators disagree with the decision of the IEP Team due to safety concerns.   
4. While that appeal was pending the school refused to implement the IEP Team’s placement decision. Instead, the school continued to serve the student at the central office.  The court held that this was improper.  It was proper for the school to serve the student in an IAES (Interim Alternative Educational Setting) while the appeal was pending, but that setting cannot be determined by an administrator. It must be determined by the IEP Team. 

This case shows the limits on the unilateral power that school administrators have.  They can seek an expedited hearing to override the IEP Team (ARD) but they cannot dictate placement. That’s a job for the ARD Committee. 

If you sign up for one of our firm’s Toolbox Trainings you will learn more about the ten “tools” that are available to help you serve students appropriately, while maintaining safety.

The case is K..C. v. Regional School Unit 73, decided by the federal court in Maine on July 14, 2022.  It’s cited in Special  Educator at 81 IDELR 93.

DAWG BONE: THE TOOLBOX OFFERS TEN TOOLS.

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

Tomorrow:  Title IX case from Aggieland.

A recent decision from the 3^rd Circuit illustrates how RtI, when properly implemented, can reveal whether a student needs special education services or not.  There were two eligibility decisions made by the IEP Team. When the student was in first grade, the Team determined that he did not have a learning disability and so was not eligible for special education services.  When the boy was in second grade, the IEP Team had a new evaluation that showed he had autism. They declared the student eligible and began providing services. 

But the litigation was over that first determination. The parents argued that the eligibility determination in second grade was 14 months too late. For today’s Daily Dawg, I want to highlight the court’s analysis of the first eligibility determination when the student was in first grade. This is one of the few cases that describe and analyze a district’s use of RtI—Response to  Intervention.

The school began providing interventions to the student early in first grade due to behavioral and academic concerns.  This included extra reading lessons, an after-school basic skills class, and positive behavioral interventions. In late October the parents requested an FIIE which the district did.  The parents also presented a 48-page report from an independent expert who concluded that the student had a learning disability.  That report included testing that revealed a severe discrepancy between achievement and intellectual ability.  Meanwhile, the intervention team continued to meet and continued to report good progress. Taking all of that into account, the IEP Team concluded that the student did not qualify. 

The court held that the district properly determined that the student did not qualify as having a learning disability, despite the severe discrepancy between achievement and ability.  The court held that IDEA allows the use of the “severe discrepancy” method but does not require it: “A school district does not violate its child find obligation by disregarding the results of the severe discrepancy approach.” The court also held that even if the school does use the discrepancy model, it only establishes that the student has a disability. The student may still not qualify due to lack of educational need.

This is where the RtI data came into play.  The school did an excellent job of putting together an intervention team, providing interventions, and monitoring for results, which were good.  This convinced the hearing officer that the student did not qualify.   While this case is an affirmation of the use of RtI, notice that the key to the decision is the way the district implemented RtI with fidelity. There are four critical parts to that:

1. A team to develop the plan.
2. Interventions targeting areas of concern and implemented with fidelity.
3. Monitoring for results.
4. The results were good.

How is your school doing with RtI?  Anecdotally, I hear a lot of reports of districts claiming that they are implementing the procedure with fidelity, when in fact, there is little data to back that up.  If you want to have a solid foundation for your decisions about a student’s need for special education, you have to implement  RtI as it is supposed to be done. Which isn’t easy.  The failure to do so can led to sloppy decision-making that will not hold up when challenged.

It's J.M. v. Summit City BOE, decided by the 3^rd  Circuit on July 1, 2022.  The opinion is cited in Special Educator at 81 IDELR 91.

DAWG BONE: HAVE A TEAM. TARGET AREAS OF CONCERN.  INTERVENE WITH FIDELITY. MONITOR FOR RESULTS. RINSE AND REPEAT.

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

Tomorrow:  Toolbox Tuesday.

Full disclosure here.  I was shocked to hear that my alma mater, our state’s Flagship University, the place where “what starts here changes the world” is offering a class (for credit) in the English Department on the music of Taylor Swift.  My Inner Curmudgeon made harsh judgments about the trivialization of higher education.  No doubt age bias played a part.  I mean I could understand a course on the music of Lennon and McCartney or Billy Joel. But Taylor Swift?

Then I remembered the admonition that the best guarantee of everlasting ignorance is contempt prior to investigation.  Thus I submitted myself to some inner cross examination.

PROSECUTING ATTORNEY: Just what do you know about Taylor Swift?

LAW DAWG: She’s a singer.  Popular with young people.

PROSECUTING ATTORNEY: What else.

LAW DAWG: crickets.

PROSECUTING ATTORNEY: Name one of her songs.

LAW DAWG: more crickets.

PROSECUTING ATTORNEY: How many songs has she written?

LAW DAWG: She writes her own music?

PROSECUTING ATTORNEY: How long of a career has she had?

LAW DAWG: Two years?  Three?

I saw where this cross-x was headed and decided to reach out to people I know and trust who are three decades younger than me. They straightened me out right quick. I called up Ms. Swift on Spotify and found much to like.

Waddyaknow.  Maybe I’ll re-enroll at Hook Em Horns U and sign up for the class.

The entire episode prompted me to wonder: if your university wanted to offer a class in the English Department on the music of some artist from the 20^th or 21^st century, who would be your first pick?

Let me hear from you on this, Loyal Daily Dawg Readers. We’ll keep a running tab and report on the results.

DAWG BONE:  TAYLOR SWIFT. FOR CREDIT.    

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

Olecia James thought she was treated unfairly when she finished third in the rankings of the graduating class at  Cleveland Central High School in Mississippi. It’s understandable that she felt that way. The district botched the situation.  But the 5^th Circuit held that Ms. James did not have a “property interest” in her class ranking, and thus she had no basis to claim a constitutional violation.

The problem arose when two high schools were merged due to a 50-year old desegregation decree. (Just now??)  Now there were more students in the senior class, and Ms. James, a model student, slipped from second to third in the rankings.  However, both of the high schools had made mistakes in awarding credits as called for in the student handbook.  The superintendent discovered the problem several weeks prior to gradation and took corrective action, ordering a review of all transcripts so that grades would be properly aligned with the handbook.

This did not sit well with Olecia or her family because she received fewer “quality points” than she thought she should have. The student and her family complained and the superintendent granted their request to award Olecia the additional points she wanted.

So far so good for Olecia. But then another “disgruntled parent” came forward and the superintendent “backtracked again.” The superintendent issued her final decision, calling it “the fairest outcome for a bad situation.” This moved Olecia, soon to be known as “the plaintiff,” from second place to third.

The court dismissed the case for reasons that are well established.  Yes, students have a “property interest” in their public school education that is protected by the Due Process Clause of the 14^th Amendment.  But that “property interest” is triggered “only by a student’s total exclusion from the educational process.” It does not apply to the exclusion from extracurricular activities. It does not guarantee that a student gets to attend the school they’d prefer to attend. It applies to expulsion and suspension, but not to class rank.

I was personally pleased to see the court repeatedly cite Nevares v. San Marcos CISD, 111 F.3d 25 (5^th Cir. 1997).  That’s the case where the court held that the Due Process Clause does not apply when a student is assigned to the DAEP. My late, great law partner, Eric Schulze, represented San Marcos in that case. 

This case is another in the long line of cases in which federal judges point out that they do not wish to be school administrators.  Key Quote:

It would be a fool’s errand to try to write federal due process rules governing how schools should award honors or how many quality points an Algebra II class should get.  Federal judges have no business constitutionalizing such matters. “If we wanted to do that, we would have run for school board.”

This one is James v. The Cleveland School District decided by the 5^th Circuit on August 17, 2022. It’s cited at 2022 WL 3443916.

DAWG BONE: IT MIGHT HAVE BEEN UNFAIR. IT WASN’T UNCONSTITUTIONAL.

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

Tomorrow: what’s your opinion of Taylor Swift?

The 5^th Circuit characterized Priscilla Villarreal as a “citizen journalist” because she frequently posted about local news items on her Facebook page where she had over 120,000 followers.  It turns out, however, that her status as a citizen journalist was not critical to the outcome of her suit against the City of Laredo and numerous local officials.  The 5^th Circuit refused to dismiss the case, noting that Ms. Villarreal had plausibly alleged that her First Amendment rights had been infringed, and that she had been unconstitutionally “seized” in violation of the 4^th Amendment. On top of that, the court held that she alleged a plausible claim of “selective enforcement” of a Penal Code statute in violation of the Equal Protection Clause of the 14^th Amendment.

What was this about?  It’s safe to say that Ms. Villarreal was not well liked among the officers in the local police department or the district attorneys’ office. They were offended by some of her accusations of wrongdoing, corruption, or incompetence.  Ultimately they obtained a warrant from a state magistrate judge and arrested her, charging her with violating Texas Penal Code 39.06(c). 

That section of the Code makes it a crime to (1) “solicit” from a (2) “public servant” (3) information that the public servant has access to because of the public servant’s position but  has not been made public for (4) the purpose of obtaining a benefit.  The specifics in this case were that Ms. Villarreal had contacted a public servant (police officer)  to confirm what she had heard elsewhere. In one instance this involved the suicide of a Border Patrol agent, and in the other it was about the identity of a family involved in a fatal car accident. Neither the name of the BP agent, nor the identity of the family had been made public.  The city charged Ms. Villarreal with doing this for the purpose of “obtaining a benefit,” specifically, scooping traditional news outlets and thus enhancing her status on  Facebook. 

The 5^th Circuit noted that “benefit” in the state statute was defined as “economic gain or advantage.”  Ms. Villarreal did not seek to obtain an economic gain or benefit. The court had a very simple way of characterizing what happened here:

Priscilla Villarreal was put in jail for asking a police officer a question.  If that is not an obvious violation of the  Constitution, it’s hard to imagine what would be. 

It’s Villarreal v. City of Laredo, decided by the 5^th Circuit on August 12, 2022. It’s cited at 2022 WL 3334699.

DAWG BONE:  GOT A “CITIZEN JOURNALIST” IN YOUR LIFE?  DON’T OVERREACT.

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

Tomorrow: wannabe salutatorian sues….