Our firm is offering a webinar on the Evolving Standards for Sex Discrimination next Tuesday. I can hardly think of a more timely or relevant topic.  We had a major Supreme Court decision last year about discrimination based on sexual orientation or transgender status.  We have cases pending at all levels of the judiciary about transgender students.  Title IX regulations regarding sexual harassment have been in place for over a year now.  So we offer this webinar for superintendents, HR directors, principals and Title IX coordinators.  Here are the specifics:

This is a cost effective way to receive training on this important topic.  Sign up at www.walshgallegos.com. 

DAWG BONE: THOSE STANDARDS CERTAINLY ARE EVOLVING!

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

Tomorrow: Toolbox Tuesday!!

It’s a fun day here at the law firm.  On Halloween we like to take the opportunity to express our creative selves, and I can assure you, the lawyers in our firm are very creative. The associate attorneys in the Austin office show up for our Halloween festivities in costume, and it’s always built around a theme.  One year they were characters from The Handmaid’s Tale. One year they were from Toy Story. But I think my favorite continues to be the year when they were dressed as the characters from Clue—all the way from Colonel Mustard to Miss Scarlett.  We never did figure out who committed the murder, but we’re pretty sure it was with a lead pipe in the library. This year—who knows?  But I’m looking forward to it.

Today is a good day to remind you of the right of parents to pull their children out of activities that they object to.  This is spelled out in Texas Education Code 26.010. The statute authorizes the parent to give a written statement to the teacher to authorize the removal. The removal is only temporary, and cannot be done to avoid a test or to prevent the child from taking a subject for an entire semester.  But there are many parents who object to Halloween activities, so you are likely to see a higher than normal number of requests for exemption. 

Some parents object to Halloween because of their religious beliefs. Others find some of the activities morally offensive.  In either case, the child should be exempt.  The statute puts it this way:

A parent is entitled to remove the parent’s child temporarily from a class or other school activity that conflicts with the parent’s religious or moral beliefs if the parent presents or delivers to the teacher of the parent’s child a written statement authorizing the removal of the child from the class or other school activity.

Your district may have added some local policy provisions about that. If so, you will probably find those policies at EMB (Local).

DAWG BONE: REMEMBER TO HAVE FUN!

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

My Torts professor at UT Law told us once that if the court’s opinion refers to the plaintiff not as “Mrs. Jones” but rather, “the widow Jones” she’s going to win the case.  Ever since then, I have looked for that telltale tip in the court’s opinion. So the opening line of McDavid v. Houston ISD caught my eye:

This case began as a high school grade dispute. 

There is another clue at the end of the first paragraph:

There is a happy ending.   McDavid [the plaintiff] is a college student at the University of Hawaii.

McDavid lost. 

The case was about alleged discrimination based on disability.  The plaintiff persuaded the court that the HISD did not, in fact, completely implement all elements of the student’s 504 plan. But the court held that this fact was not enough to show the kind of “intentional discrimination” that plaintiffs have to show to prevail in a 504 case. 

I’ve written about this issue before here in the Daily Dawg, and have cautioned readers that some courts more quickly will infer that the failure to implement a 504 plan does show “intentional discrimination.”  Some courts have held that if district personnel know what is in the 504 plan and fail to provide the required services, that this alone is enough to show “intentional discrimination.” This court takes a different approach, citing 5^th Circuit precedent that “A failure to implement accommodations, without more, does not amount to professional bad faith or gross misjudgment.” 

What to make of that?  Jurisprudence is not a precise science.  Our laws require interpretation, and different judges will interpret things differently.  That is for the lawyers to worry about. At the local school district level the message is simpler: failure to implement 504 accommodations may well lead to litigation, and may, in some cases, lead to liability. 

We can’t control how judges will interpret the law. So let’s focus on what we can control: implementing 504 plans with fidelity to the best of our ability.

McDavid v. Houston ISD was decided in favor of the district by the federal court for the Southern District of Texas on October 5, 2021.  We found it on Special Ed Connection at 121 LRP 34084.

DAWG BONE: IMPLEMENT WITH FIDELITY.

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

Tomorrow: Boo!

Over half of the school districts in Texas have adopted DOI plans (District of Innovation) by which they can opt out of some of the requirements in the Texas Education Code.   I had not seen this come up as an issue in a court case or a T.E.A. appeal….until now.  So let me tell you about Parent v. Northwest ISD.

The school district issued one of those “trespass notices” to the parent in this case, restricting him from entering district property or attending school activities for one year, other than dropping off and picking up his child.  The district cited the parent’s “harassing conduct and inappropriate communications and conduct…over a period of months.”  

The parent filed a grievance, claiming that the district issued that trespass notice without first giving him the warning and written notice required by T.E.C. 37.105.  The district’s response to that was twofold: first, we did give the man the notice; second, we didn’t have to. 

The Commissioner decided the case based on the second argument, which is what makes this case a first.  The district did not have to comply with 37.105 because it exempted itself from it in the DOI.  Key Quote:

The DOI specifically exempts Respondent from section 37.105 and provides, alternatively, that “[Respondent] would allow designated staff members the authority to remove parents or visitors whose behavior is deemed inappropriate without warning or written notice.”  Petitioner complains that Respondent’s trespass notice to him violated section 37.105 but does not dispute that Respondent is a District of Innovation exempt from section 37.105.  Because under its DOI plan, Respondent is exempt from section 37.105, Petitioner has not stated a potential violation by Respondent of section 37.105 for which he would be entitled to relief. In addition, the Commissioner lacks jurisdiction over an alleged violation of a school law of this state from which a DOI is exempt. Accordingly, this claim should be dismissed.

Decided by Commissioner Morath on September 20, 2021. It’s Docket No. 032-R10-04-2021.

If you are interested in creating a DOI plan or revising the one you have, let us know.  We can help. 

DAWG BONE: DOI’s CAN, INDEED, BE INNOVATIVE.

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

Tomorrow: finding hints in the opening paragraph…

Because of a violation of federal law that occurred in Fiscal Year 2012, Texas is going to receive less federal money for special education services in future years. This error by the state is going to cost us $33,302,428.   Ouch. 

Today I’m going to repost what I wrote about this in 2018 when we got the 5^th Circuit decision about this issue. Tomorrow, some comments on what happens next.  Here is my entry from 2018:

Oh no….special ed funds to be cut $33 million. 

The 5^th Circuit has affirmed the decision of the Department of Education that Texas is ineligible for over $33 million in special education federal money.  That’s going to hurt.  The state asked the Circuit Court to issue a ruling on this quickly so that the 2019 Legislature will know what it is dealing with. The Circuit Court did rule quickly. So now we know where we stand:  $33 million in the hole.

This was entirely avoidable.  The Court held that the weighted student model that Texas uses for funding of special education is fundamentally flawed.  In effect it enables individual ARD Committees to determine the overall level of state funding for special education.  Funding in Texas is tied to student need. Student need is determined case by case as ARD Committees write IEPs and determine placement.  Under the Texas model if a student needs less intense services, the state provides less funding.  So if a thousand ARD Committees reduce services by just a little bit for each student, it has a cumulative effect on state funding. Then consider what happens when the percentage of students receiving special education services drops, as it did in Texas.  Fewer kids in special ed, and many of those kids receiving less intensive services. It adds up.  Thus in 2012 Texas allocated $33 million less for special education than it had in 2011. 

Our model, which has been in place since 1995, is broken.  Texas argued that every child in Texas still received an appropriate education.  For purposes of this case that was not disputed. But the Circuit Court said that it didn’t matter. The statute is pretty simple. It looks at the total amount of money you allocate for special ed from year to year. Did it go up or down? If it went down, you broke the law. Simple.

The court pointed out that Texas could have sought a waiver of the requirement. If it could produce “clear and convincing evidence” that every eligible child in Texas was receiving an appropriate education, it could obtain a waiver from the Secretary of Education to justify reduced funding. But T.E.A. did not do that. Instead it relied on the complex “weighted student” formula that had the effect of reducing funding.

The court pointed out how the Texas formula empowered ARD Committees to do what only the Secretary of Education is authorized to do:

The weighted-student model circumvents the waiver process by allowing a state to reduce its amount of financial support whenever the state—rather than the Secretary—determines that special education needs of children with disabilities are adequately funded.  Indeed, Texas claims to have funded special education according to the diverse instructional arrangements that its students need to succeed. But the state admits that those needs are determined by an “individualized education program” team.  Conversely, the IDEA entrusts that discretion to the Secretary, permitting a waiver only if she concludes that all disabled children enjoy a free appropriate public education.  Thus, the weighted-student model undermines the waiver process by enabling a state to decide, on its own initiative, that it sufficiently funded the needs of children with disabilities.  

Some of you may be thinking: isn’t the ARD Committee supposed to determine student needs?  The answer to that is yes—absolutely. But that does not give the ARD Committee the power to determine the funding.  The state is obligated to fund special education with at least the same amount of money that it allocated the previous year.  If state officials believe that there is a good reason to deviate from that in a given year they are supposed to explain that to the Secretary of Education and get approval for the reduction. 

T.E.A. did not do that. T.E.A. let us down.

The case is Texas Education Agency v. U.S. Department of Education, decided by the 5^th Circuit on November 7, 2018. We found it at 118 LRP 46003.

DAWG BONE: ANOTHER CHALLENGE FOR OUR GOVERNOR AND LEGISLATURE.

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

Tomorrow: more on the funding snafu….

We’ve now updated the firm’s Toolbox training to Version 4.1, which incorporates the statutory changes we got from the past legislative session involving FBAs, BIPs, restraint, and time-out.  One of the questions that is coming up is about doing an FBA within the time frame laid out in HB 785. 

But remember: there is no time frame in that law for DOING the FBA. The time frame (10 school days) is for SEEKING CONSENT to do an FBA.  From what I hear, an FBA, if done properly, is likely to take longer than 10 days. So it’s a good thing that the legislature did not impose a requirement about when the FBA is to be completed.  The statute just say you have to “seek consent” within 10 days. That’s not hard to do. 

Another issue concerns the validity of an FBA if the only instructional environment in which we can observe the student is the DAEP.  That’s a good question, but one that you should pose to your evaluation experts rather than your lawyers.  Ask the experts: if we don’t have the opportunity to observe the student in the regular school environment, will we get a good sense of the function of the behavior?  Will we have a reliable and valid FBA?  I don’t know the answer to that question, but I know it’s a good one.  I’d go to your evaluation experts. 

But also remember this: you can always gather what information you can, and supplement it later. 

DAWG BONE:  GOT A LEGAL QUESTION?  ASK A LAWYER.  GOT A QUESTION ABOUT HOW TO DO AN EVALUATION?  ASK AN EVALUATION EXPERT.  

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

Tomorrow: DOI to the rescue….

Mr. Bieze thought he had a contract with Manor ISD.  There was an email from an employee in the HR Department stating “You have been offered the position of Detective Sergeant” with the district’s newly created police department.  On top of that, he was given two written contracts, one for 2019-20 and one for 2020-21. Each contract was entitled Administrator Contract and contained the signatures of a board member and the district’s superintendent.  However, the school board did not approve the contract, the district did not hire the man, and the Commissioner has ruled that he did not have a valid contract. 

This is an old lesson: you don’t have a contract until the board says you have a contract. 

There are some exceptions to that general rule. The board can delegate final hiring authority to the superintendent.  In this case, after a careful review of board policy DC Local and the minutes of two board meetings, the Commissioner concluded that the Manor ISD had never delegated to the superintendent the authority to hire police officers.  What about the signature on the contracts of a board member? The Commissioner noted that there was no evidence in the record that the board had delegated its authority to a single board member. 

Delegation of authority generally has to be explicit, meaning there should be a motion, a second and a vote of the board at a duly called board meeting.

This one is Jimenez and Bieze v. Manor ISD, decided by the Commissioner on September 16, 2021.  It’s Docket No. 015-R10-12-2020.   

DAWG BONE:  DELEGATION SHOULD BE SPECIFIC AND DULY RECORDED.

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

Tomorrow: Toolbox 4.1!

Child Find cases often hinge on the specific criteria for the disability that the student might be demonstrating. In this case the disability that might have been suspected was a serious emotional disturbance. The court reviewed the specific criteria for SED and determined that the district was not obligated to refer for an IDEA evaluation until there was evidence of problems in schooling despite general education interventions.  

The court held that the district did not violate the Child Find standard. The school was aware of the student’s depression and hospitalization, but responded with appropriate interventions, and the student continued to perform adequately academically while taking a heavy load of advanced classes.  The Child Find duty was not triggered until the district was informed of the student’s threat to “shoot up” the school. That did it, but the district responded to this with a threat assessment and a referral for a special education evaluation. That satisfied the Child Find duty.

The case is D.T. v. Cherry Creek School District No. 5,  decided by the U.S. District Court for Colorado on June 23, 2021, and found on Special Ed Connection at 79 IDELR 74.

DAWG BONE: GENERAL RULE: PROBLEMS AT HOME DON’T TRIGGER CHILD FIND DUTIES. 

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

What are you supposed to do if the district gives you notice that your one-year contract will not be renewed for the next year?  Well, of course you can resign.  You can move to Tahiti.  You can fire up the ol’ RV and hit the road.  You can try another career.  But if you want to continue to work for the district you have to ask for a hearing before the school board. Then you have to show up for the hearing. If you don’t do those things, you are sort of up the proverbial creek. 

Lesley Johnson maintains that Dublin ISD violated the Texas Open Meetings Act by failing to properly post the agenda for the meeting.  Is she right about that?  We don’t know.  What we do know is that the Commissioner will not hear her case.  This sounds very straightforward, but the Commissioner’s decision goes into a bit of detail as to why he would not hear this case.

For one thing, the local record of the nonrenewal made no mention of the teacher’s claim about the TOMA. That’s because the teacher did not bring it up. In fact, she didn’t show up.  So the Commissioner has to base his decision on the local record and the local record said nothing about this issue. So that’s one reason.

Second, the teacher failed to “exhaust her administrative remedies.” She was required to pursue a hearing before the local board, but did not do so. Again, she didn’t show up. That’s a failure to exhaust. 

Third, complaining of a TOMA violation does not give the Commissioner jurisdiction when “those issues were not raised at the school district level.”  You see the pattern? It all comes down to showing up.

Fourth, it is exceptionally well established that teachers who are up for possible nonrenewal are not entitled to constitutional due process.  In support of that proposition, the Commissioner cites earlier cases from Los Fresnos, Killeen, Marshall, Austin, and Aldine.  Just to make sure we all understand, the Commissioner added that “even if Petitioner’s due process rights could have been violated, Petitioner has waived that issue and failed to exhaust administrative remedies by not raising it at the local level.” 

Got that?  Ya gotta show up.  It’s Johnson v. Dublin ISD, Dkt. No. 043-R2-06-2021, decided by Commissioner Morath on July 3, 2021. 

DAWG BONE: UP FOR NONRENEWAL?  SHOW UP!!

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

Tomorrow:  triggering the Child Find duty…

With the World Series just around the corner, let me remind you of the baseball analogy the Dawg has used to explain how a plaintiff pursues a claim of illegal retaliation.  First, the plaintiff has to establish that they engaged in “protected activity,” such as advocating for my child with a disability. If the plaintiff does that, the plaintiff is on first base.

Then there has to be an “adverse action.”  If the plaintiff was an employee of the school, the adverse action is likely to be a firing or demotion.  If the plaintiff is the parent of a student, the adverse action might be a report of suspected child abuse.  If that happened, the plaintiff is on second base.

Most plaintiffs get to second base.  It’s not that hard. But getting around third base and coming home to score is the hard part. The plaintiff has to prove causation.  In other words, they treated me badly because of my protected activity. I spoke truth to power and The Man smacked me down. 

The plaintiff in J.P. v. Belton School District 124, got to second base, but no further.  There were six reports of child abuse and none of them were sustained by the investigators.  That sounds promising for our plaintiff, but the district did a good job of marshaling the facts to support its position. Four of the six reports were made by school officials who did not know who the plaintiff was, or that she had filed for due process against the district.  How can you retaliate for someone doing something that you did not even know that they did? 

The other two reports were made five months after the due process hearing was requested, a length of time that the court said was too long to indicate causation based on “temporal proximity” alone. There would have to be something more.  There wasn’t. Nothing in the reports was false. There were indications of possible abuse or neglect.   The fact that none of the complaints resulted in a finding of abuse or neglect was not relevant, given the fact that the reports were based on reasonable suspicion, and state law and public policy required such reports to be made.

It’s good to see a court recognize the fact that the law requires educators to make these reports based on a reasonable suspicion of abuse or neglect.  But I expect cases like this to continue. So keep your documentation to support the reason you reported abuse or neglect.  The case was decided by the federal court for the Western District of Missouri on August 13, 2021, and can be found on Special Ed Connection at 79 IDELR 92.

DAWG BONE: PROTECTED ACTIVITY + ADVERSE ACTION + CAUSATION = RETALIATION CLAIM.

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

Tomorrow: a nonrenewal case from the Commissioner…