The Commissioner’s decision in Doornwaard v. Socorro ISD appears to rely on an insistence that the petitioner has to cite the correct section of the Education Code to justify the Commissioner’s jurisdiction. In this case, the Petitioner cited T.E.C. 7.057(a)(1) when she should have cited 7.057(a)(2). 

OK.  That’s important for the lawyers.  But the Commissioner went on to make a Dawgworthy ruling with important implications for HR directors, superintendents, and board members.

To see if this case is important in your district, pull up your Policy DGBA (Local). That’s the one about employee grievances.  This case involved the legality of a provision that is commonly found in that policy.  The provision gave the board “at its sole discretion” the power to decide if it will actually hear a live presentation of the grievance, or “to allow only the written information.” In other words, the policy did not guarantee that the grieving party would get to present the grievance directly, in person, to the board. The grievant might be limited to having the board review what is submitted in writing. Is that OK?

The Commissioner ruled that it was. In fact, this is the second time that the Commissioner gave his approval to this version of DGBA. The first time was in Parents v. Eanes ISD, Docket Number 037-R10-04-2020 (2020).

This one was decided by Commissioner Morath on November 5, 2021. Docket No. 036-R10-05-2021.

DAWG BONE: CHECK OUT YOUR DGBA.  YOU MIGHT WANT TO DO WHAT EANES AND SOCORRO DO.

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

Tomorrow: Toolbox Tuesday!!

If you get a request from a parent that a book be removed from the library, the first thing to say in response is: “We have a policy about that.”  You can find the policy at EF Local.  I chose three districts at random and looked at their policies.  I found some similarities and some differences in how they address this issue, but importantly, each of those three districts has a policy, and I’m pretty sure that your district does too. So that is the starting point.

All three of the policies I looked at call for some formal review of the request.  In Beaumont, the principal is required to appoint a “reconsideration committee” to review the material “in its entirety” and make a written report.  Lubbock has a similar requirement, but the members of the committee are appointed by the “curriculum and instruction department.”  Frisco draws a distinction between an instructional resource that is selected for a particular campus vs. those selected for the district as a whole.  For campus-selected resources, the principal makes the original decision. For district-selected resources the superintendent appoints a “reconsideration committee.”

In all three districts, policy says that the challenged instructional resource is not to be restricted while this review process takes place.

Board members should be reminded that they have a policy about this subject, and so they should not be making promises about removing or restricting student access to instructional materials.  Instead, the proper response is “we have a policy about that.”  Of course the board can change the policy if they don’t like it, but board members, just like school employees, are required to comply with the existing policy.  

DAWG BONE: SOME OF THE WISEST WORDS EVER SPOKEN ARE: “WE HAVE A POLICY ABOUT THAT.”

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

I’ve written many times in the Daily Dawg about what I call the “Unwritten Rule” in special education litigation—that the judge is always quietly assessing the comparative reasonableness of the parties.  When judges find parents to have acted unreasonably it’s often due to overly aggressive behavior at ARD meetings, or as reflected in communications.  When judges find that the school has acted unreasonably, it’s often due to a nitpicky insistence on compliance with some rule or policy. Judges sometimes call that “elevating form over substance.”  

Here’s a good example.  The district had conducted an evaluation of the student.  After reviewing it, the parent sent an email to the district that included the following:

Maybe an independent evaluation would help shine light on the questions. I do disagree with some parts of the last evaluations, so I’m asking for an independent.

New Jersey has a state law that requires schools to respond to an IEE request within 20 calendar days.  So that timeline should run from the moment the district got this request….right?  After all,  there is no doubt about what the parent is requesting.  I think this could be the very model of how to request an IEE. 

But the district did not respond within 20 days. Why?  Because district policy required that IEE requests had to be done by a signed letter. This communication came via email.   

The court seemed to think that the substance of the parental request was more important than the method by which it was made.  Key Quote:

Given [the district’s] clear understanding that [the parent] was requesting an IEE, its decision to elevate form over substance unnecessarily and arbitrarily interfered with [the parent’s] right to a prompt resolution of their request.

It’s K.K. v. Parsippany-Troy Hills Township, decided by the federal court for New Jersey on August 30, 2021.  It’s reported on Special Ed Connection at 79 IDELR 257.

DAWG BONE:  SUBSTANCE OVER FORM IS THE BETTER DECISION APPROACH.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.  Tomorrow: “take that book out of the library!”

If you are coming to Austin for the Midwinter Conference next week I hope you will be joining us at the Walsh Gallegos Reception.  Monday, January 31 starting at 5:00. Free food, drinks, and fellowship at Flemings. We are delighted to be able to host this gathering LIVE and IN PERSON this year.

Our Midwinter Reception is a long standing tradition.  In 1987 Joe Hairston and I were looking for office space to move into as our little law firm was growing.  We toured some available space on the 5^th floor of a building at Barton Springs and Bouldin.  Joe observed that the Palmer Auditorium was right across the street, and that come January, every superintendent in the state would be there for the Midwinter.  “We could host a reception,” Joe noted. And so we did.

Now the Conference is at the Convention Center and the Reception is at Flemings.  But there will be shrimp. Some things don’t change.  Hope to see you there next Monday.

DAWG BONE: WALSH GALLEGOS RECEPTION: THE PLACE TO BE!

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

Tomorrow: the Unwritten Rule again….this time in Jersey.

Most of our firm’s Toolbox training involves specific disciplinary actions that schools are authorized to use when dealing with students who are eligible for special education.  Tool #9, however, has broader application. Tool #9 is about leadership at the non-consensus ARD meeting.  That’s a tool that will be useful in many situations.  You might have a disagreement over eligibility, the goals in the IEP, the services to be provided, or the placement. Or it might be about disciplinary action.  In all such cases, someone has to step up to provide leadership for the school district.

The ARD Committee has a set of required members that include “a representative of the public agency.”  This is usually the principal or assistant principal. It needs to be someone who has the authority to commit the district to provide the services that the IEP calls for.   This is the logical person to look to for leadership. 

There are two fundamental aspects of ARD meetings that the leader needs to remember. First, there are only two parties at the meeting—the school and the parent (or adult student).  You may have a dozen people sitting around the table, but there are only two parties.  Many viewpoints and opinions will be expressed in the meeting, but ultimately, each party has to speak with a united voice.  It’s up to the administrative representative to give voice to the position of the school district. 

Secondly, special education is upside down compared to everything else in school operations.  Schools operate on a top-down model.  The highest ranking administrator is the one who speaks for the school.   But not so with special education.  In special education, the decisions are made by the ARD Committee which is staffed with teachers, direct service providers and the parent.  When the members of the ARD Committee agree on something, no one in the district can override it. The district is committed.  That’s why we don’t like for people in the ARD to say things like “we’ll have to see if that’s OK with the superintendent.”  If you need the superintendent’s approval, you should have the superintendent at the meeting. 

Taking into account those two fundamental features of special education process and law, the administrative representative should understand that leadership in special education is different from leadership in other areas. The administrative representative states the position of the district, but that position should be derived from the consensus views of the school members of the Committee—the teachers, evaluators, and direct service providers.  The administrative representative needs to be a good listener, someone who can pull together the views of the team members and unite them in a single position.  The administrative representative is the leader, but not the quarterback dictating the play. 

Our Toolbox Training touches on all this as we review Tool #9, but our firm also offers more in depth training specifically focusing on how the administrative representative can provide the kind of leadership the school needs at the ARD Committee meeting. Let us know if we can help you with that. 

DAWG BONE:  A LEADER.  NOT A DICTATOR. 

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

Tomorrow: Midwinter Conference

DEAR DAWG: Snort, here. Rip Snort.  Intrepid Reporter. Friend of the Truth.  Dawg, your Intrepid Reporter confronts you with an error in an earlier post.  On December 6, 2021 you reported that the case involving the Pledge of Allegiance in Klein ISD was over, that all defendants had been dismissed.  Wrong.  The case against the classroom teacher who allegedly required the student to write the words to the Pledge has not been dismissed. This was first reported by Loyal Daily Dawg Reader Joe Ball of the TASB Legal Staff. What say you now?  SNORT.

DEAR SNORT:  We tuck our tail between our legs, Snort.  You are right. Put an E in the score book: “E-Law Dawg.”  Many thanks to Joe Ball who is not only a LOYAL Daily Dawg Reader, but also a diligent one.  To be accurate about the case, all defendants except for that one classroom teacher have been dismissed. The district has been dismissed. Left twisting slowly in the wind is the classroom teacher who assigned the students with the task of writing the words of the Pledge.   His plea for dismissal on the basis of qualified immunity was denied, much to the dismay of many of the 5^th Circuit judges.  So the case continues. 

DAWG BONE:  SNORT GOT ONE RIGHT!

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

Tomorrow: Toolbox Tuesday!!

Hey Loyal Daily Dawg Readers: don’t forget to join us this morning at 10:00 for Zooming with the Dawg.  Hope to see you then!

Hopkinton High School in Massachusetts suspended eight students from the hockey team for their participation in a group chat on Snapchat that targeted and bullied another hockey player.  The Hopkinton Hockey Eight were also suspended from school for various lengths of time, depending on the severity of their misconduct.  Two of the Eight sued, alleging that the school was violating their constitutional rights of free speech.  Besides being suspended from the hockey team, one of the two plaintiffs was suspended from school for three days, and the other for five.

This case gives us another look at how the courts will address social media activity by students after last year’s Supreme Court ruling in favor of Brandi, the cheerleader, who dropped four F-Bombs on Snapchat.  Brandi won her case. The hockey players lost.  Brandi used vulgar and disrespectful language, but she did not bully anyone. The hockey players did.

The two hockey players who sued basically argued that yes, they were part of the Snapchat group, but they were not the main instigators of all this.  There were others in the group who took and disseminated unauthorized pictures and videos of the student who was targeted.  These two plaintiffs did not do that. They argued that what they did was not all that bad.  The court took an interesting approach to that argument, noting that:

Children often bully as a group. The children who stand on the sidewalk and cheer as one of their friends shakes down a smaller student for his lunch money may not be as culpable, but they are not entirely blameless.

The court noted last years’ Supreme Court ruling about the cheerleader, but emphasized that SCOTUS held that the school retains the power to address “serious or severe bullying or harassment targeting particular individuals.”  Key Quote:

Speech or conduct that actively and pervasively encourages bullying by others or fosters an environment in which bullying is acceptable and actually occurs—as in this case—is not protected under the First Amendment.

I suspect that the school’s response to the original bullying complaint was a factor leading to its success in the subsequent litigation. Upon receipt of a complaint from the parent of the targeted student the school took swift and decisive action, including a thorough investigation that produced a nine-page report.  The court began its analysis of the case by noting that “Courts generally defer to school administrators’ decisions regarding student speech so long as their judgment is reasonable.”  Hopkinton High handled it well, and benefited from the court’s deference. 

It’s Doe v. Hopkinton Public Schools, decided by the 1^st Circuit Court of Appeals on November 19, 2021.  The case is published at 19 F.4^th 493.  

DAWG BONE:  DO A GOOD REPORT AND THE JUDGE WILL LIKELY DEFER TO YOUR JUDGMENT.  

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

It seems of late that a lot of cases that are appealed to T.E.A are being dismissed on the basis of a lack of jurisdiction.  In several recent decisions the Commish has pointed out that things changed in 1995 when Chapter 7 of the Education Code was amended.  Prior to that year the Commissioner had the authority to rule on a wider variety of cases. But since 1995 the Commissioner’s authority under T.E.C. 7.057 has been limited to two types of cases: those alleging a violation of a written employment contract that caused monetary harm; and those alleging a violation of “the school laws of this state.” The “school laws” are only those contained in Titles I and II of the T.E.C.

A recent decision from DeSoto ISD points out all the things the Commissioner does not have the power to address. These include:

1. Violations of the U.S. Constitution.
2. Violations of school board policy.
3. Violations of federal law.
4. Violations of the Code of Ethics and Standard Practices for Texas Educators.

Mr. Michael Robinson alleged that DeSoto ISD “improperly reduced his compensation.” But he did not allege that a written employment contract was violated, nor did he properly plead any violation of “the school laws of this state.”  Case dismissed.

It’s Robinson v. DeSoto ISD, decided by the Commissioner on November 15, 2021. I’m pleased to let you know that Sandi Tarski and Wesley Nute of our firm’s Irving office handled this one for the district. 

DAWG BONE: APPEALS UNDER 7.057 ARE LIMITED.

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

Tomorrow:  the Case of the Hopkinton Hockey Eight….

A student with an intellectual disability in the Houston ISD alleges that he was sexually assaulted by another student three times, that he told his teacher about it each time, and that she did nothing about it.  Assuming that all of that is true, is it enough to make the HISD liable for what happened to the student?

No.  The federal court in Houston dismissed the case, noting that “What happened to [this student] is horrific. But Title IX precedent creates a ‘high bar’ to hold school districts liable for the unlawful acts of school employees.”

To clear that “high bar” the student must prove that someone who has the “authority to address the alleged discrimination and to institute corrective measures on the [school district’s] behalf has actual knowledge of discrimination….and fails to adequately respond.”  The narrow issue presented by this case was whether a teacher has that authority.  The student alleged that the teacher knew of the three assaults, and failed to do anything about it.  The court was ruling on a Motion for Summary Judgment, which meant that the court had to assume that those allegations were true. So it came down to this: is a classroom teacher, one who is also the case manager for the student, a person who can “institute corrective measures” to address the situation?

The court said no, and its analysis may surprise a lot of educators. The court noted that there were many things that the teacher could or even must do in a situation like this:

…the record evidence shows that [the teacher] had a duty to report incidents of sexual assault that she learned of, had the authority to send a special education student like [the plaintiff] or [the student who allegedly assaulted him] to [the assistant principal] in the case of a rule infraction, and could recommend changes to [the student’s] IEP.  This is not enough to support a finding that [the teacher] was assigned the authority to rectify the harassment [the student] allegedly reported to her.  (Emphasis added).

What would have been sufficient evidence?

[The teacher] could not make the decision to initiate an investigation, impose increased supervision of [either of the students] during restroom breaks under their Plans, require that they use different restrooms, remove one of them from the school, rearrange their schedules to ensure they remained separated throughout the day, or mandate that either or both attend counseling.

Ask yourself: who does have the authority to do those things?  Assistant principals and principals do.  So if there had been evidence that an A.P. or a principal had been informed of the three sexual assaults, the student would have had a stronger case. 

One more thing is worth mentioning.  As Loyal Daily Dawg Readers know, the Title IX regulations were amended in 2020 to say that a school district is responsible for addressing sexual harassment of a student when any district employee knows about it.  ANY district employee.  So why did that not come up in the court’s analysis?  It did. And the court simply noted that the amended regulation became effective on August 14, 2020. This case involved things that happened well before that, so the amended regulation was not yet in effect.

It’s I.M. v. Houston ISD, decided by the federal court for the Southern District of Texas on November 19, 2021.  It can be found at 2021 WL 5416715. 

DAWG BONE: A DUTY TO “DO SOMETHING ABOUT IT” IS NOT THE SAME AS THE AUTHORITY TO “INSTITUTE CORRECTIVE MEASURES.”

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

Tomorrow: the Commissioner’s shrinking jurisdiction….

Word on the street is that school districts are struggling to have enough staff on hand to keep going.  We are short on teachers, aides, and bus drivers.  This is going to present some legal problems.  Consider the possibility that a brand new substitute teacher deals with a student in a way that is in conflict with the student’s BIP. 

It’s important that substitute teachers have a basic understanding of who they are serving in the classroom.  When the sub reports that “I didn’t know that the student had an IEP” this reflects poorly on the district.  It’s the district responsibility to make sure that classroom teachers—all of them—know what responsibilities they have as set out in a student’s IEP or BIP. 

There is no legal barrier to informing subs of who has an IEP and what it requires.  Take a look at your school’s Policy FL (Local).  There you will probably find a statement like this:

A school official shall be allowed access to student records if he or she has a legitimate educational interest in the records. 

That language comes directly from FERPA, the federal law regarding student records.  And look for the policy’s definition of a “school official.” It likely includes all employees.  Does a sub have a “legitimate educational interest” in knowing which students have an IEP, and what that IEP requires of them?  Of course. This does not mean that subs should have access to all of the information in a student’s special education file. It’s unlikely that a substitute teacher would need to have detailed information from the student’s evaluation, or to review minutes of ARD meetings.  But the basics—what does the IEP require of me? That’s what should be provided.

As we enter what is sure to be a challenging spring semester, keep these things in mind and be sure to provide some basic FERPA training to your substitute teachers. 

DAWG BONE: FERPA: FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT.  ALSO THE NAME OF SOME LITTLE GIRL IN EAST TEXAS.  PROBABLY “FERPA MAE.”

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

Tomorrow: is the district liable for what the teacher failed to do?