It must be frustrating for educators to see their papers graded, so to speak, by lawyers.  We have a system whereby disputes between parents and educators over how a child is served are decided by lawyers wielding the blunt instrument of the law.  The process is lawyer-friendly, full of special procedures and jargon and complexity based on lengthy and obscure federal regulations. I’ve often thought the system would be better if due process hearings were more like those in Judge Judy’s court, with a fair-minded educator deciding the case quickly.

It must be particularly frustrating for educators when the people who decide the cases use the law improperly.  In a case from Ohio, the first level hearing officer ruled in favor of the school district, holding that it provided the student with a FAPE.  Ohio has a two-level system, and so the parent  appealed to the SLRO (State Level Review Officer) who completely overturned the decision and ruled in favor of the parents.  Then it went to federal court. 

The court held that the district provided FAPE and in the process ripped apart the decision of the SLRO.  The court noted that the SLRO did not display the “requisite expertise” to serve as a hearing officer, and thus gave the SLRO’s opinion no deference.  The court noted that the SLRO quoted language from a brief filed by a parent advocacy organization and attributed it to the Supreme Court:

Whether the error occurred by an act of intentional bad faith or extreme incompetence, the effect is not a mere citation error. The SLRO’s mistake places the words of an advocacy group in the mouth of the Supreme Court and then applies them to the facts of this case.

Sometime in the future we may report on the substance of this case.  It involved the LRE requirement, and the court held that the SLRO got that all wrong.  But today, just a reminder of how important it is for our hearing officers to be properly prepared and trained.  There is a big difference between the words in a brief filed with the court and the words in the court’s ruling.   Getting them mixed up is what the court describes as either “intentional bad faith or extreme incompetence.” 

We have a good group of special education hearing officers in Texas.  I don’t think any of them would make a mistake like the one that happened in C.K. v. Board of Education of Sylvania City School District, which was decided by the federal court for the Northern District of  Ohio on February 9, 2021. We found it on Special Ed Connection at 78 IDELR 65 (N.D. Ohio 2021).

DAWG BONE: LET’S NOT MISQUOTE THE SUPREME COURT!

Got a comment or question for the Dawg? Reach out: jwalsh@wabsa.com. 

Note: No Daily Dawg on Monday! Enjoy Memorial Day!!

Congress mandated a “resolution session” prior to a special education due process hearing in an effort to encourage settlements rather than lawsuits.  The idea was to make sure that the school listened to the parents’ concerns, and had an opportunity to address them before both sides lawyered up.  A good idea, I suppose, but it assumes good faith cooperation. If you don’t have good faith cooperation, you have Matthews v. Douglas County School District RE-1. 

Mr. Matthews knew about resolution sessions before he requested a due process hearing on behalf of his child. In fact, when he requested the hearing he also informed the district of the dates and times when he would be available for a resolution session. Good for Mr. Matthews!  Ms. Trujillo responded on behalf of the district with a proposed date and time that matched one of the times when Mr. Matthews indicated he would be available.

Mr. Matthews did not see this as a proposal, or confirmation of an agreement, and he did not respond kindly.  He chose to respond not to Ms. Trujillo, but to the principal. He wrote:

Please advise Ms. Trujillo that her unilateral demand, including time and place, for a Resolution session is premature and denied.  You must first answer the complaint.  Upon receipt of such, I will proffer a Resolution meeting time and date with you in attendance.

Three things are worth noting at this point. First, Mr. Matthews was incorrect in his belief that the district was required to answer the complaint prior to the resolution session. Second, the district is responsible for setting up the resolution session, so Ms. Trujillo’s letter was not a “unilateral demand” but rather, just a simple way to fulfill the district’s duty.  Third, when dealing with people who toss around words like “proffer” you need to bring in the lawyers. 

The next fight was over location.  Mr. Matthews expressed his view this way:

You and Trujillo don’t get to dictate whom will attend, the location or time of the meeting….The meeting can take place at either Legend High School or my office. The meeting time will be one that is convenient to me.  However, you must first answer the Complaint….You can accept my gracious offer or not.

Long story short: they never had the resolution session.  They never had the due process hearing  either, and that’s because the hearing officer tossed it out.  The district moved for dismissal of the due process hearing based on 34 CFR 300.510(b)(4) which permits districts to seek dismissal if the district has been unable to obtain the parent’s participation in the resolution session despite reasonable efforts to do so that are documented.

We may never learn what Mr. Matthews complaint was about.  Perhaps he had a valid claim. But his own obstructive conduct kept him from pursuing it.  The court:

Based on the tenor of the parties’ correspondence as a whole, this Court finds that Mr. Matthews imposed the condition of holding the meeting at the school simply in an attempt to frustrate or scuttle the District’s attempts to conduct the meeting.

It was decided by the federal court for Colorado on February 11, 2021.  We found it on Special Ed Connection at 78 IDELR 63.

DAWG BONE: IT’S THAT OLD RULE AGAIN: BE REASONABLE.

Got a comment or question for the Dawg? Reach out: jwalsh@wabsa.com. 

Tomorrow: judge rips state level review officer….

School officials are required to report suspected child abuse. The law recognizes that child abuse reports are based on a “suspicion” rather than a certainty. Thus the person who makes the report may be wrong.  They may be mistaken about the facts, or misinterpreting them.  The law protects the person who makes the report with immunity.  However, none of that prevents a parent from filing suit, alleging that the report was a bad faith act of retaliation.

That’s what happened in Oswego Community Unit School District, just outside of Chicago.  The parents alleged that one day after a contentious two-day IEP Team meeting a social worker conducted an invasive search of the five-year old child, which revealed a bruise.  District officials then reported suspected child abuse. 

The parents alleged that this was all an act of retaliation—an effort to shut up parents who were advocating for their child in a way that school officials did not like.  The parents alleged two theories of liability. The court rejected one of them, but let the other theory proceed. The rejected theory was based on the assertion that the district had a “widespread pattern or practice” of retaliating against parents who advocate for their children.  In support of that assertion, the parent noted one other court case alleging similar behavior in the district.  The court held that this was insufficient to show a “widespread pattern or practice.” Key Quote:

A practice is not widespread if it took place two, three, or four other times.

However, the other theory was based exclusively on what happened with their child. The parents alleged that the district retaliated in a way that amounted to disability-based discrimination in violation of both the ADA and Section 504.  The court allowed the case to proceed since the parents had at least alleged the three key facts they would have to prove: 1) that they engaged in “protected activity” (advocating strongly for their child); 2) the school took “adverse action” (the “invasive” search and subsequent child abuse report); and 3) these two events were causally connected.  Given the timing, with the search and child abuse report coming right after the “contentious” meeting, the court held that it was plausible that the adverse action was taken in response to the protected activity. 

Don’t let stories like this keep you from reporting suspected child abuse.  Just be sure that you are basing your report on facts, and documenting the basis for your suspicion.  Educators are only human, and will have personal likes and dislikes among the parents they work with.  Sometimes you have to report suspected abuse involving a parent you like.  Sometimes you have to report suspected abuse involving a parent you don’t like.  Treat them the same.

The court hinted that this case might not survive a Motion for Summary Judgment, when there is actual evidence to consider. But at this stage it was only about what the parent alleged, and those allegations were sufficient to keep the case going.  It’s Hamilton v. Oswego Community Unit School District 308, decided by the federal court for the Northern District of Illinois on February 26, 2021.  We found it on Special Ed Connection at 78 IDELR 97.

DAWG BONE: OUR CHILD ABUSE LAWS ARE ONE OF THE FEW INSTANCES WHERE YOU CAN HAVE CRIMINAL LIABILITY FOR WHAT YOU FAILED TO DO.

Got a comment or question for the Dawg? Reach out: jwalsh@wabsa.com. 

Tomorrow: is the word “proffer” part of your everyday vocabulary?

Of course it’s important to keep parents informed of what’s going on at school with their child. But that does not mean that every minor incident needs to be reported formally through a “prior written notice.” 

The PWN form is familiar to many educational diagnosticians and other special ed types who fill them out. It’s a long and complicated form, reflecting the long and complicated federal regulation that requires it.  In a PWN you not only have to inform the parent of a decision, but you also have to inform the parent of all the options you considered; why you rejected the other options; and all the data that supports your decision. 

When I taught special education law at St. Edward’s University I wanted to give the students a practical way to understand how PWN works.  I pointed out that all of them had one thing in common: they had chosen to enroll at St. Ed’s.  So I asked them to send a PWN to the college or university that finished second, the one they thought about but rejected.  Here’s what one of them might look like:

NOTICE OF REFUSAL TO ENROLL:

THE DECISION: This notice is provided to THE UNIVERSITY OF TEXAS AT AUSTIN to inform you that JANE DOE will not be enrolling in your school for the 2020-21 school year. 

WHY:  UT is too big for me.  I want smaller classes and more attention from professors.  I got some scholarship money to help with the cost of a private school. 

REPORTS THAT INFORMED MY DECISION: I’ve visited UT, watched the Longhorn channel for various sporting events, read about the history of the place and the current controversy over the school song.  I don’t want any of that. 

OTHER OPTIONS AND WHY THEY WERE REJECTED:  I thought about Texas Tech, but I oppose the NRA and the whole “guns up” thing.  I thought about Baylor….for a few seconds.   I thought about Texas A&M…well….no, I didn’t.  I just thought I ought to say that I did.

OTHER FACTORS: I don’t look good in burnt orange.  I can’t stand Matthew McConaughey.  On top of that, going to a Catholic school will make my mother angry.  I find that very satisfying

You get the idea.  We bring this up today because of a case in California where the parent evidently believed that they were entitled to a PWN regarding any disciplinary action, even minor ones.  Nope.  The court noted that “The ALJ correctly found…that the IDEA does not prohibit disciplining a student with disabilities according to a general education process that does not require prior written notice.”

The parent had asked for two disciplinary referrals to be removed from the student’s file.   One referral was for not completing a test, and the other was for telling a group of kindergarten students to stop looking at him.  The district was not seeking a change of placement based on these minor incidents, and thus, PWN was not required.  The case is Bellflower USD v. Jiminez, decided by the federal court for the Central District of California on February 17, 2021. We found it on Special Ed Connection at 78 IDELR 106.

DAWG BONE: PWN IS REQUIRED WHEN THE SCHOOL PROPOSES OR REFUSES TO CHANGE THE IDENTIFICATION, EVALUATION, PLACEMENT OR PROVISION OF FAPE.

Got a comment or question for the Dawg? Reach out: jwalsh@wabsa.com. 

Tomorrow: child abuse reports and retaliation claims…

How many times have you heard the lawyers tell you that the disability label that you attach to a student’s IEP doesn’t matter, as long as you are providing the services that the student needs?  Many times, I would guess.  The lawyers are citing the numerous court cases that have made that observation.  Most of those cases involve a student who may, or may not, be on the autism spectrum, and the court basically says “we don’t care what you call it…as long as the student is doing well.”

So the label doesn’t matter.  Except….when it does.  And sometimes it does.  In a case from Minnesota the court held that the district’s failure to identify dyslexia and ADHD as the student’s primary disabilities was not a “harmless misclassification.” Instead, it led to an inappropriate IEP that failed to produce good results. The student had average intelligence and worked hard, and yet in 4^th grade was still reading well below grade level. The district identified autism as the primary disability. The court found that to be an erroneous foundation for the student’s program. Key Quote:

The District’s failure to accurately identify and classify Student’s dyslexia and ADHD did not amount to a harmless misclassification.  Instead, the misclassification hindered the proper design of an IEP that would have met Student’s needs.  This resulted in the District’s failure to provide appropriate services to Student to ensure appropriate educational progress. 

In other words, because the diagnosis was wrong, the evaluation was wrong. Because the evaluation was wrong, the IEP was wrong. Because the IEP was wrong, the student was not doing well. Because the student was not doing well, the district was not providing FAPE.

As usual, student progress, or the lack thereof, was decisive. If the student had been progressing well in reading, it’s likely that the court would have found this to be yet another “harmless misclassification” case. But this student was not doing well, and the court traced it all back to an erroneous diagnosis. So sometimes the label matters. The case is Minnetonka Public Schools ISD No. 276 v. M.L.K., decided by the federal court in Minnesota on March 1, 2021.  We found it on Special Ed Connection at 78 IDELR 94.

DAWG BONE: HOW IS THE STUDENT DOING IN SCHOOL? THAT REMAINS THE GOLD STANDARD.

Got a comment or question for the Dawg? Reach out: jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!

We’re Zooming today at 10!  I’ll be joined by Kelly Janes for a discussion of the legal issues surrounding students with dyslexia.  Hope to see you there!

Zoom has been a lifeline during this pandemic, but live presentations are on the horizon. Huzzah!! Real people with entire bodies—not just a small face on a digital square!

We will be doing the Back to School Program live this year in four locations!   Look for information about this soon from ED311, the sponsor. We are going to have A LOT to talk about this year, with scads of new laws, a SCOTUS decision about student free speech, and a host of other legal developments in special education, Section 504, personnel, student discipline, and COVID related issues.

Here’s the schedule for the live events:

September 15: Region 7 in Kilgore
September 27: Arlington Convention Center
October 5: New Braunfels
October 12: Region 17 in Lubbock

I hope you will “save the date”!

See you at 10 this morning for Zooming with the Dawg.

DAWG BONE: BACK TO SCHOOL BACK ON TAP.

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

I know that many educators are big fans of Parker Palmer, so perhaps many of you know of his latest book: On the Brink of Everything. The cover tells us that the book is about “Grace, Gravity and Getting Old.”  My wife gave it to me.  Is she trying to tell me something?

It’s the kind of book you can read out of order.  You can just pick a chapter that sounds promising, which is what I did.  I started with the chapter entitled “Work and Vocation: Writing a Life.”  In the chapter Mr. Palmer lists the many jobs he has had in his 79 years, going all the way back to mowing lawns when he was 13. He’s also been a caddy, and a maintenance man at a public beach, long before he became a “professor, dean, writer, founder of a nonprofit, and workshop and retreat leader.”

The sentence that captured me was this:

The way I’ve earned my keep has changed frequently, but my vocation has remained the same: I’m a teacher-and-learner, a vocation I’ve pursued through thick and thin in every era of my life.

I can relate, as I expect many of you can.  I know that most of the Daily Dawg readers are administrators, but you are still teachers.  As am I.  I hope you don’t find it offensive that I describe myself that way. “But, Dawg,” some of you may be thinking, “you’re a lawyer.”

Yes.  I have the training, credentials, and professional skill set of a lawyer. But I’m a teacher. I figured that out a long time ago.  God made me a teacher. I decided to become a lawyer, and have figured out a way to do what teachers do, with a curriculum based on the law.

What do teachers do?  Four things: first, they learn.  Teachers model lifelong learning. They are curious, hungry for knowledge.  Teachers know that the more they know, the more they know how much they don’t know.

Second, they prepare.  They create materials. They write, they produce art, they modify and interpret existing works, and now more than ever, they learn to use new technologies.

Third, they perform. When I think of the most impactful teachers I have had I see that they were all performers.  That doesn’t necessarily mean they were entertaining. It means they could hold the attention of the class, convey their enthusiasm for the subject. They were energetic, alive.  This was true of Sister Luca in 4^th grade, Mrs. Frizzell in 7^th grade, Father Donovan in high school, Professor Devine at UT, and  Stanley Johanson at UT Law.

Fourth, they take all of that learning, preparation, and performing and use it to teach, to impart to others the essential knowledge and skills in a particular area.

That’s what I’m trying to do here at the Daily Dawg, and since, at my core, I am a teacher, this is what I find most professionally satisfying.  However, I do miss the performing part, and I’m looking forward to the live presentations that are scheduled for the summer and fall! More on that tomorrow.

DAWG BONE: “ON THE BRINK OF EVERYTHING” BY PARKER PALMER.  ON THE RECOMMENDED LIST.

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

Tomorrow: About to be on the road again!

I was asked recently how educators should prepare to give testimony in a hearing.  This is something that is very likely to occur in the trajectory of most educator careers. It might be a hearing before the school board, or an independent hearing examiner. It could be a special education due process hearing, a UIL dispute or (God forbid) a knock down custody fight between parents. It might be a criminal case involving one of your former students.

Regardless of the forum or the subject matter, there are four fundamental rules that apply.  I think these are the things that any good lawyer will tell you.

1. Prepare. Review any notes or records you have to refresh your memory about the events you may be asked about. You will want to convey professionalism, and your preparation before the event will help with this.
2. Tell the truth.
3. Answer only the question you are asked. The best example I know of to illustrate this point is revealed by this exchange:
Q. Do you know what time it is?
Witness glances at watch…
A. Yes, I do.
Q. Well, can you tell me what time it is?
A. I can.

Here’s another example. The lawyer showed the witness a photograph, showing a side view of a cow.
Q. What color is this cow?
A. Brown. On this side.

4. Don’t worry about your testimony. Doing #4 is much easier to accomplish if you fully accomplish #2. Telling the truth is a great stress reliever.

Once you are called to testify, things are well beyond your control.  So don’t worry about the outcome.  The outcome will be decided by the judge or jury and your testimony will only play a part in that.  So chill.

Lawyers generally meet with witnesses before they give testimony.  If the lawyer does not take the time to meet with you that could mean that you are not a very important witness. It could also mean the lawyer is not well prepared. But if you do have the opportunity to meet with the lawyer, that’s the time to ask your questions.

DAWG BONE: ALWAYS GO BACK TO RULE #2: TELL THE TRUTH.

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

Here’s what happened in Comal ISD: at an ARD meeting just prior to the 2020-21 school year the school district proposed a change of placement for a student, moving the student from the general education classroom to a special education setting.  In Toolbox terminology, we would call this the use of Tool #2….if the parent agreed with the move.  However, the parent did not agree, and so the district went with Tool #3—an Educational Change of Placement Without Parental Agreement.

When we talk about Tool #3 in our Toolbox Training we emphasize that the district needs to think about how the “stay put” rule will affect the outcome.  Remember: if the parent disagrees with a proposed change of placement and requests a due process hearing, this automatically invokes “stay put.” Thus the student isn’t going anywhere.

That’s what happened here when the mother requested a special education due process hearing on August 31, 2020.  The student stayed put while the hearing was pending, all the way to March 19, 2021 when the hearing officer rendered a decision in favor of the school district. “Stay put” had been in effect for over six months.  But since the hearing officer agreed with the school that the change in placement was appropriate, stay put is over….right?

That’s what the school district argued. That’s not what the court ruled.  The federal judge ruled that “stay put” was still in effect because the parent had given notice that she intended to appeal the hearing officer’s decision to federal court.  Citing cases that have made the same ruling in the 1^st, 3^rd, 4^th and 9^th Circuits, the court held that “stay put” remains in effect as long as judicial appeals continue.

So let’s be clear about how that could play out.  Consider this hypothetical:

August 27, 2021: District calls for a change of placement from general education classroom. Parent disagrees. ARD concludes in non-consensus.

August 31, 2021: Parent requests due process hearing. STAY PUT GOES INTO EFFECT.  Student stays in general education classroom.

November 5, 2021: Hearing officer rules in favor of the district.

November 8, 2021: Parents inform the district that they intend to appeal to federal court.  THIS KEEPS STAY PUT IN EFFECT.  Parents have 90 days to file that appeal.

February 1, 2022: Parent files appeal.  STAY PUT STILL IN EFFECT.

After that, there is no telling how long your timeline extends.  It may be a year or two before the judge issues a decision, and even then, parents can appeal to the 5^th Circuit. In which case, STAY PUT STAYS IN EFFECT.

It’s not hard to imagine a situation in which a student ages three to six years while litigation continues.  But the “stay put” placement remains in effect.  Of course the “stay put” placement can always be changed by agreement of the parties, and we would hope that in this type of situation the parties would be able to come to agreements that serve the student well.

Do you see how important it is that you always maintain good relationships with the parents?  It’s much harder to serve the student well when the grown-ups are fighting.

This one is H.W. v. Comal ISD, decided by the federal court for the Western District of Texas on April 21, 2021.  We found it at 2021 WL 1566453.

DAWG BONE: BE SURE TO THINK ABOUT “STAY PUT” BEFORE YOU PULL TOOL #3 FROM THE TOOLBOX.

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

Tomorrow: Have you ever been called to testify? 

We’re Zooming again this Friday at 10:00 and I hope you can join us!  I’ll be joined by Kelly Janes from our firm’s Austin office.  We hope to have a lively discussion about serving students with dyslexia.  It’s been a bit of an issue, no?  We know how critical it is that students with dyslexia receive the right kind of services, but the overlapping provisions of state and federal law have sometimes provided more confusion than clarity.  Do we serve the student through Section 504?  IDEA? How does RtI fit in?  Do we risk a “Child Find” claim if we don’t refer to IDEA services? Are general dyslexia services actually “special ed” in disguise?

This topic was requested by a Loyal Daily Dawg Reader, and so we will answer the call! Mark your calendar for Friday at 10. It’s a freebie for all Daily Dawg subscribers. If you are not yet registered for the monthly Zooms, send an email to info@wabsa.com. 

See you Friday!!

DAWG BONE: DYSLEXIA WILL BE THE TOPIC OF THE DAY!

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

Tomorrow: Toolbox Tuesday!!