LOYAL DAILY DAWG READERS: WE’RE ZOOMING THIS THURSDAY AT 10:00 A.M.  HOPE YOU CAN JOIN ME AND MY SPECIAL GUEST, HALEY TURNER.  HALEY IS JOINING ME ON THE ANNUAL “BACK TO SCHOOL” TOUR THIS YEAR.  WE’LL GIVE YOU A PREVIEW OF WHAT TO EXPECT.

Mr. Romero, a teacher/coach, admitted to some inappropriate behavior.  Late at night, while intoxicated, he sent some “non-work related electronic communications to female students.” The court’s opinion tells us that some of these communications were “sexually suggestive.” He also “invited two female students to his home to drink alcohol.”

The district accepted the man’s resignation which would be effective as of the end of the 2018-19 school year.  But since the resignation was submitted on March 1, there was still a good chunk of the school year to go.  The contract ran to the end of the year.  The district did not want to pay Mr. Romero for the remainder of the year, and so it suspended him “without pay.”

It’s that “without pay” part that became a legal issue.  After receiving notice of this action, Mr. Romero requested a hearing as per Chapter 21 of the Texas Education Code. Teachers are entitled to a hearing when the school proposes to terminate a term contract. They are also entitled to a hearing when the school proposes to “suspend without pay.” Notice that the district suspended Mr. Romero prior to any hearing. 

The Court of Appeals for the First District of Texas ruled in favor of Mr. Romero.  Citing prior rulings the court said:

We agree with the Commissioner’s position that, once a teacher has requested a hearing, the provisions of subchapter F, including the holding of an IME [we’re pretty sure the court means IHE, Independent Hearing Examiner] hearing, must be complied with before the District can suspend the teacher’s pay.

This puts school boards in an awkward position sometimes. Consider this situation, where the teacher has admitted to conduct that clearly amounts to “good cause” sufficient to justify termination of employment.  Consider the fact that it could have been worse. What if the students had joined the educator for a few drinks? What if the facts showed not just “sexually suggestive” comments, but sexual misconduct?  Regardless of any of that, this case holds that districts cannot cut off the teacher’s pay until a formal hearing has been conducted. That takes time.

But that’s the ruling of a Court of Appeals. It’s Sheldon ISD v. Romero, decided by the Texas Court of Appeals for the First District on July 14, 2022.  It can be found at 2022 WL 2720462.

DAWG BONE: WANT TO SUSPEND WITHOUT PAY?  CALL YOUR LAWYER!

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

Tomorrow: Toolbox Tuesday tackles bullying…

If the boys had been at the Friday night football game, maybe none of this would have happened. But they were not there. They were goofing off at a thrift store, taking pictures of themselves as they tried on costumes.  One picture showed the boys wearing hats that “resembled a foreign military hat from the WWII period.”  A student identified as C.G., soon to be known as “the Plaintiff,” posted this picture on his private story line on Snapchat with this caption:  “Me and the boys bout to exterminate the Jews.”

The public school expelled C.G. for this. The student sued the district, alleging that his free speech rights had been violated.  The federal district court did not see it that way. It upheld the district’s decision.  But then the U.S. Supreme Court decided the case of B.L. v. Mahanoy Area School District, known here on the Daily Dawg as The Case of the Foul Mouthed Cheerleader.  That case laid out some new guidelines for school officials when dealing with off-campus speech.  C.G. appealed his case to the 10^th Circuit, relying heavily on The Case of the Foul Mouthed Cheerleader.  And he won.

The result is no surprise, especially in light of the Mahanoy case.  Here are four things worth noting about this case.

1.  It wasn’t a “true threat.”  True threats are not constitutionally protected, but the court held that this sophomoric attempt at humor was not a true threat. The court noted that language amounts to a “true threat” only if is a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.  The age of the students, and the context of the picture lacked that level of seriousness.  Moreover, the court pointed out that the student was allowed to return to school the following Monday.  So it didn’t look like the school took it as a genuine threat.
2. Like Brandi, the Foul Mouthed Cheerleader, C.G. did this off campus on a weekend, using his own device and sending the Snap only to his friends.  He didn’t aim it at the school or at any individual in the school.
3. The school cannot claim to be acting “in loco parentis” in these circumstances. The court noted that “That doctrine applies ‘where the children’s parents cannot protect, guide, and discipline them.’” 
4. There just wasn’t enough evidence of a “substantial disruption.” The Snapchat post was widely circulated and covered by local media.  The principal testified that the educational environment had been “impacted.”  Maybe so, but the court pointed out that “impact” is not the same as “disruption.” Key Quote:

We cannot consider CCHS’s choice to discuss C.G.’s post during an advisory period (a schedule block twice a week implemented specifically for dealing with such matters) substantial disruption.  Neither can news reports nor four emails from parents be evidence of substantial disruption.  These facts fall short of “Tinker’s demanding standard.”

C.G. quickly regretted his Snapchat post.  Within hours of its posting he deleted it and apologized for it.  He said it was intended as a joke. After that, C.G. wrote a letter to the school accepting full responsibility for the post.  In the letter he noted that he had learned from the experience. He said that he had spent time learning about Jewish history and talked with Jewish members of the community.  

It’s important to note, however, that none of this factored into the court’s decision.  For the court, it was a simple matter of applying the standards we got from the Supreme Court in the Mahanoy case.  Of course there were people who were angry and even some who were frightened.  The Holocaust was not that long ago.  It’s understandable that in the eyes of Jewish people it would not be so easy to dismiss this as a stupid lapse in judgment by an ignorant adolescent.

The student’s remorse was not weighed as a factor by the court, but it should have been a factor for the school.  Discussing this at the advisory period was exactly the right thing to do. This incident presented a golden opportunity for a teachable moment.  How many of our students are as ignorant and insensitive about anti-Semitism as C.G. was? How many would think that a comment about exterminating Jewish people was just a joke?  We’ve all seen a nationwide rise in overt and blatant anti-Semitism.  This is why we have a Holocaust Remembrance Week built into the school calendar each year. Let’s take that seriously.

It’s C1.G v. Siegfried, decided by the 10^th Circuit on July 6, 2022. It’s published at 2022 WL 2447526. 

DAWG BONE: HOLOCAUST REMEMBRANCE WEEK WILL BE JANUARY 23 TO 27, 2023.

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

The same parties generated three separate Circuit Court decisions in California. Today we tell you about the third and final installment of N.F. v. Antioch USD.  It’s another very short and “unpublished” decision from the 9^th Circuit that makes one relevant point.  Yesterday’s Daily Dawg dealt with the legal status of the student when he was enrolled in a charter school.  Today’s decision addresses things that occurred when the student was still attending the traditional public school.

There were conflicting evaluations about whether the student met eligibility criteria as a student on the autism spectrum. The school’s evaluation concluded that the student did not qualify. The parents obtained an independent report concluding that he did.  The parents then asserted in the lawsuit that their independent report should have prompted the public school to conduct a fresh evaluation of the student. The Circuit Court ruled in favor of the school on this one, largely based on this timeline:

*January 2017: the parents obtain an independent report that concluded that the student met the criteria for being on the autism spectrum.

*October 2017: this is when the parents first informed the school of the independent report. Notice that this is nine months after the parents obtained the report. They shared it with the district at an IEP Team meeting.  The parents informed the school of the report but did not ask for a new evaluation.  The Team, including the parents, agreed to review the student’s BIP at the annual IEP Team meeting that was scheduled for November.

*November 2017: the school attempted to convene the Team but the parents were not available.

*December 2017:  the parents “declined to conduct an IEP review” at the IEP Team meeting.  Then there was a disciplinary incident, leading to the district seeking an expedited hearing to justify a change in placement in January, 2018. 

*February, 2018: the parents pulled the child out of the traditional school and enrolled him in the charter school.

Given those facts, the court held that there was no “actionable violation” of IDEA here. Without expressly saying so, the court seems to be telling us that if the parents wanted a new evaluation they should have said so more directly, or more promptly. The nine-month gap between when they obtained the private evaluation and when they shared it with the school seemed to be important.

Schools are required to consider independent reports that are relevant to the child’s educational needs, but obviously, parents have to share the report with the school. 

N.F. v. Antioch USD decided by the 9^th Circuit on May 2, 2022. It’s published in Special Educator at 81 IDELR 6.

DAWG BONE:  EVALUATIONS MUST BE SHARED BEFORE THEY CAN BE RELIED UPON.

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

Tomorrow: another off campus speech case….

It’s rare to see a case involving the same parties result in three separate Circuit Court rulings, but that’s what’s happened in Antioch USD in California.  Each of the decisions is short and makes one relevant point. Thus they are perfect fodder for the Daily Dawg! So yesterday I told you about the Circuit Court decision that had “Toolbox” implications. Today and tomorrow we will dive into the other decisions involving the same parties.  

What, exactly, are charter schools?  Are they public schools? Are they private schools?  Issues like that are decided by state law, but this case seems relevant for us because California, like Texas, considers charter schools to be public schools. That means that when a child is enrolled in a charter school, it’s the charter school that takes on the duty to provide FAPE. 

If parents enroll their child in a private school, the local traditional school district retains the duty to “find” the child.  The public school is not responsible for providing FAPE until the child enrolls in the public school, but parents have the right to see what FAPE would look like in the public school. Thus upon request, the school is required to develop an IEP for the parents to consider.

But that didn’t help these parents when they sued the traditional public school district for an alleged denial of FAPE.  The problem for the parents was that they had enrolled their child in a charter school. The court cited the federal regulation that requires a traditional school district to “locate, identify and evaluate” children who attend a private school that is located in the geographical boundaries of the school district, and then noted that:

These regulations have no application here because it is undisputed that N.F. was enrolled in a public charter school, not a private institution.

Texas law is equally clear on this point. Charter schools are part of the public education system. Thus a child enrolled in the charter should be receiving FAPE from the charter, and should not look to the traditional school to provide FAPE. 

It’s N.F. v. Antioch USD, decided by the 9^th Circuit on April 15, 2022. It’s published in Special Educator at 80 IDELR 267.

DAWG BONE: CHARTER SCHOOLS ARE EXEMPT FROM MANY STATE LAWS, BUT NONE OF THE FEDERAL LAWS.

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

Tomorrow: one more from Antioch…

The Circuit Court’s decision in the case from California gives us little information about exactly what happened when the relevant parties got together to make a manifestation determination.  In the litigation, the parents alleged that they were not given proper notice of the meeting. 

Is that true? We don’t know. The court held that it didn’t matter. 

Why would the court say that? Isn’t it pretty important to let parents know when the MDR will take place?  Yes. It’s very important. 

But in this case the court held that any error committed by the district fell into the “harmless” category. That’s because:

At the January 18 MDR, AUSD concluded that N.F.’s behaviors were a manifestation of N.F.’s disability. This conclusion meant that no disciplinary action would be taken against N.F.  N.F.’s educational placement was not changed as a result of the MDR. Because the MDR did not affect either the educational opportunities or placement of N.F., it did not deprive him of a FAPE.

In Texas, Parents are entitled to five school days’ notice of the meeting when an MDR will be conducted. The school is also required to provide the parent with a new copy of the Procedural Safeguards document so that the parents can be well prepared for the meeting.  Meeting those procedural requirements is important. But as this case illustrates, procedural safeguards are there to protect substantive rights. If those substantive rights (FAPE, and meaningful parent participation) are not infringed, then the procedural error will be deemed harmless.

In our firm’s Toolbox Training we encourage you not to rely on that “no harm, no foul” standard. The better practice is to comply with all procedural requirements. 

It’s N.F. v. Antioch USD, decided by the 9^th Circuit on May 2, 2022. It’s published in Special Educator at 81 IDELR 7.

DAWG BONE: MAKE SURE THE PARENTS HAVE THE OPPORTUNITY TO PREPARE FOR THE MDR.

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

Tomorrow: another decision from Antioch….

It’s the first day of school for my grandkids as it is, I suspect, for most of the children in the Texas public school system. So here we go again!

Are you ready?  I hope so, but the fact is that your readiness or lack thereof will not factor into what is about to happen. Ready or not, it’s going to happen!  So take a deep breath, express gratitude for the opportunity to serve our children, and show up. 

On the First Day of School I always envision that first year teacher, facing a class full of students for the first time. That new assistant principal, dealing with discipline issues and family drama as an administrator.  That new superintendent. That new school lawyer. And, of course, that veteran who has agreed to stay on for one more lap around the track.

At Walsh Gallegos we are committed to helping the people who help the kids. We do so with enthusiasm and gratitude for the opportunity to work alongside great people, and to help preserve our public school system.  Let’s do this.

DAWG BONE: GOOD WISHES FOR ALL AS WE LAUNCH 2022-23!

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

Tomorrow:  the 9^th Circuit offers a Toolbox lesson…

I recommend the new Elvis movie. I don’t know how true to the facts it is, but it’s very entertaining. And isn’t that what the movies are about? 

Seeing the movie inspired me to learn more about the King of Rock ‘n Roll.  I want to pass along two things I’ve learned about Elvis’s experience in public school.  First, his debut public performance was at a high school talent show in Memphis where he sang “Old Shep,” a miserably sad ballad about the day the dog died.  He won the talent show and later remarked that it was amazing how popular he suddenly became after that. 

The second thing is something I learned many years ago when I toured the Rock n Roll Hall of Fame in Cleveland. It just so happens that they had a special exhibit on display about Elvis.  The display included the handwritten notes from his high school guidance counselor.  Her notes described him as a polite young man who hoped to get a job dealing with a lathe or some other heavy machinery.  She only had one concern about Elvis, expressed in the final line of her notes: “Dresses a little flashy.”

DAWG BONE: “A LITTLE FLASHY?! LADY—YOU AIN’T SEEN NOTHIN YET.

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

In a case from Virginia, the parent sought three years of private school tuition.  The student had been attending the Lab School which focused exclusively on students with learning disabilities. I am guessing the Lab School is a very good school, but in the litigation the parent learned the hard lesson—being a really good school is not enough to justify tuition reimbursement from the public school. 

The court denied the request for tuition reimbursement because the public school offered FAPE in a less restrictive environment, and thus, the parent was not entitled to reimbursement.  The court noted that the student did receive benefit from the private school, but that alone did not entitle the parent to reimbursement.

The IDEA requires that students be offered as much mainstream education as possible. Accordingly, as long as [the public school] offered [the student] a FAPE for the school years at issue, the Lab School cannot qualify as the “least restrictive environment” mandated by the IDEA because it does not provide [the student] access to her neurotypical peers.

This case is typical. It’s very difficult for a parent to justify reimbursement for a private school, no matter how good the school is, when the school serves only students with disabilities.

It’s A.P. v. School Board of Fairfax County, 80 IDELR 277 (E.D. Va. 2022).

DAWG BONE: LRE MATTERS.

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

Tomorrow: change of pace…

It was 18 years ago when the 6^th Circuit took a bad set of facts and created the theory of “predetermination” as a valid claim under IDEA.  The case was Deal v. Hamilton County BOE and parent lawyers have been citing it ever since. They are rarely successful with those claims. Today I’ll tell you about two recent decisions that are typical.  

The first is from Virginia.  It’s clear from the court’s opinion that the parent was very involved in the IEP process. The team made changes to the IEP based on parental input.  But the school held a staffing prior to the IEP Team meeting, and the lawyer representing the parent hauled out the Deal case and claimed this was the same thing. 

Nope.  Key Quote:

…the hearing officer correctly found that it is “standard procedure for school staff to meet prior to IEP meetings and prepare a draft IEP for discussion.”

The second case is from Tennessee.  Again, the parent alleged that the IEP was “predetermined.” Much of the dispute between the parties was about the specific reading program to be used. The parent preferred Wilson and the school preferred “Language!” 

The court held that the IEP was not predetermined and the parent had a meaningful opportunity to participate in the process.  The court noted that the parent actively participated in the meeting along with an advocate from Ignite Dyslexia, asked questions, and influenced changes in the IEP.  There was no predetermination:

The case law tends to demonstrate that predetermination is a high bar. If courts were quick to hold that a school’s actions are predetermination, it could encourage schools to come to IEP meetings with no plan at all, creating an incentive for inadequate preparation.

Both of these cases are from district courts which cannot overrule a Circuit Court case like the Deal case. But these cases, like many others, have isolated the “predetermination” theory to the facts of that case.  Educators need to always be prepared for accusations of “predetermination” but if they provide proper notice to parents, accommodate their needs at the meeting, listen respectfully and take parental input seriously, there should be no problem.  In other words, if you treat parents the way the law expects you to treat parents, you will be fine.  These are not the first cases to make the distinction between “predetermination” and “preparation.”  Having a staffing to gather information and compare notes is not “predetermination.”

The Virginia case is A.P. v. School Board of Fairfax County, 80 IDELR 277 (E.D. Va. 2022). The Tennessee case is C.M. v. Rutherford County Schools, 80 IDELR 239 (M.D. Tenn. 2022).

DAWG BONE: DON’T BE INTIMIDATED BY CLAIMS OF “PREDETERMINATION.”

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

Tomorrow: why the parent did not get the tuition reimbursed…

Teachers and aides who work with students with disabilities are often subject to physical contact with students that other educators don’t have to deal with. It comes with the territory.  But sometimes a teacher or paraprofessional will claim that the contact amounts to sexual harassment.  That’s what happened in Webster v. Chesterfield County School Board, recently decided by the 4^th Circuit. 

Ms. Webster was assigned to work with an eight-year old boy diagnosed with ADHD and Down’s  Syndrome.  Ms. Webster alleged that the boy sexually harassed her on an “almost daily basis” for months.  He put his hands up her dress, and touched private parts of her body.  He grabbed her by the crotch or buttocks. That kind of thing.  The suit does not allege any physical injuries, but claims that she was required to work in a hostile environment. She sued the district for not being adequately attentive to this. 

She lost.  The court based its decision on the testimony of two expert witnesses. The experts testified that whatever inappropriate behavior occurred, it was not motivated by Ms. Webster’s sex.  Nor was it bad enough to create a hostile environment. Both of these assertions by the experts were specifically based on the fact that Ms. Webster was a special education paraprofessional, assigned to a student with significant disabilities. Here are two key excerpts from the expert testimony:

Any special education Instructional Assistant (IA) should have known, and should have expected, that [the student] might grab various parts of a person’s body (including “sexual” areas), or lift shirts solely in order to get attention, as a distraction, or to get someone to “back off.”  This is part of the understanding of the special education profession and is not specific to any one school district.

It is not reasonable for a special education IA to conclude that a young child with Down’s Syndrome and ADHD, who responds negatively to instructions or commands by grabbing and squeezing body parts, is engaged in sexually harassing behavior. The student is merely trying to escape the instruction or command….this is what any objectively reasonable special education IA would conclude based on [the student’s] behavior and his disabilities.  His behavior had nothing to do with Ms. Webster’s gender. 

This case is a perfect illustration of the entire basis for the Toolbox. Educators face a dilemma. Here’s how the court describes it:

This appeal…brings to light the difficult balance that schools must find between ensuring that all students have access to a public school education while simultaneously maintaining a non-hostile environment for all employees—the impact of which is felt by special educators serving at the intersection of these two rights.

It’s Webster v. Chesterfield County School Board, decided by the 4^th Circuit on June 28, 2022.

DAWG BONE: GOTTA DO TWO THINGS AT THE SAME TIME AND IT WON’T BE EASY. THAT’S WHY YOU NEED A TOOLBOX.

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

Tomorrow: the aging “predetermination” theory….