Dear Dawg: Snort, here.  Rip Snort.  Intrepid Reporter and Friend of the Truth.  Dawg, the Serenity Falls ISD has hired a new teacher for the elementary school. Nothing newsworthy about that except for the fact that this teacher is a Catholic nun.  I have done the background research on this woman and have satisfied myself that she is properly qualified and certified for the position.  However, we have learned that she is insisting that the students refer to her with her religious name: Sister Mary Margaret. Requiring students in a public school, forced to be there by compulsory attendance, assigned to a teacher who is herself a symbol of religion…is it not improper to require these minor children to refer to her as “sister”?  Does this not force these young people to endorse religion in general and the Catholic Church in particular?  It strikes your Intrepid Reporter as unconstitutional, Dawg.  I look forward to your opinion.  SNORT.

DEAR SNORT:  It strikes the Dawg as a common courtesy, Snort. The new teacher’s professional name is Sister Mary Margaret. Children should be taught to respect her title and position and her preferred mode of address.  The Dawg is perhaps not as objective on this topic as he should be, having been taught by Sisters and Fathers for 13 years.  So take that into account. You are correct that public schools are not allowed to endorse religion. But they are also not allowed to be hostile to religion.  The good Sister is asking for a common courtesy.   To deny it strikes me as borderline hostility. 

If I gave you any other response, my blessed mother, who worked beside the good sisters for many years, and affectionately referred to all of them as Sister Mary Holywater, would haunt me from the Great Beyond.  So if you want to get crosswise with the Sister, find yourself another lawyer. 

DAWG BONE: NEUTRAL TOWARD RELIGION.  NO ENDORSEMENT.  NO HOSTILITY.

We have been predicting for some time that the Supreme Court would take up the issue of transgender students.  Maybe so. But last month they turned down an opportunity to do that by declining to hear an appeal from the 9^th Circuit. 

The 9^th Circuit ruled in favor of an Oregon school district that adopted a policy (the Student Safety Plan) to accommodate transgender students by allowing them to use bathrooms, locker rooms and showers that match the student’s gender identity, rather than their biological sex.  It was a unanimous ruling from the three-judge panel in a 55-page opinion.  The suit was filed by parents and students who opposed the plan.   The plaintiffs alleged that the district’s Student Safety Plan policy violated four legal standards. 

First, the 14^th Amendment right to privacy.    There is such a right, but the court held that it was not broad enough to cover this situation.   The 14^th Amendment “does not provide high school students with a constitutional privacy right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different from theirs.”

Second, Title IX.  The court rejected the Title IX claim for several reasons. First, the Safety Plan treated boys and girls alike. Thus on the face of it, there was no discrimination based on sex. Second, although Title IX permits sex-segregated facilities, it does not require them. Third, the claim of a “hostile environment” lacked evidence of anything that met the standard of “severe, pervasive and objectively offensive.”  There was no evidence in the record of any conduct by transgender students that amounted to “harassment.”  Key Quote:

Plaintiffs allegedly feel harassed by the mere presence of transgender students in locker and bathroom facilities. This cannot be enough.  The use of facilities for their intended purpose, without more, does not constitute an act of harassment simply because a person is transgender.

Third, the right of parents under the 14^th Amendment to direct the upbringing of their children.  This well-established Constitutional right permits parents to choose a private school.  It does not permit parents to dictate curriculum or policy in the public school. Key Quote:

While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child.  (Emphasis in original).

Fourth, the Free Exercise of Religion clause in the First Amendment.   The court concluded that the Student Safety Plan was neutral regarding religion. It did not “force any Plaintiff to embrace a religious belief and did not punish anyone for expressing their religious beliefs.” Moreover, it applied across the board to believers of all kinds, and non-believers as well.  Since it was “neutral” and “generally applicable” it would be deemed constitutional as long as it was rationally related to a legitimate governmental objective. The court held that it was:

The Student Safety Plan is rationally related to the legitimate purpose of protecting student safety and well-being, and eliminating discrimination on the basis of sex and transgender status.

Let’s put this in perspective.   The court did not say that schools must adopt a policy like this one. It says that they may.  Moreover, this decision is not a binding legal precedent in Texas, but can, and will, be cited by Texas courts as “persuasive authority.” By refusing to hear the appeal, the Supreme Court leaves this precedential opinion in place.

Second, as this case illustrates, schools can get sued regardless of what decision they make about accommodating transgender students. There are cases where schools limit all students to bathrooms that match the biological sex. Schools can be sued in cases like that by the transgender student.  Here we have a school district that accommodated the transgender students and got sued by parents who objected to the policy. 

Third, public schools are ground zero in our nation’s culture wars, as evidenced by the number of advocacy groups that filed briefs in this case. They included: ACLU, Transgender Students and Allies, the National Women’s Law Center, National PTA, GLSEN, American School Counselor Association, National Association of School Psychologists, the American Academy of Pediatrics, the American Medical Association, the American Public Health Association, 13 other medical, mental health and other health care organizations, the National Center for Lesbian Rights, the Transgender Law Center, PFLAG, Inc., Trans Youth Equality Foundation, Gender Spectrum, Gender Diversity, the Transactive Gender Project, the National Education Association, the State of Oregon, the Lambda Legal Defense and Education Fund, school administrators from 30 states and the District of Columbia, the Anti-Defamation League, Americans United for Separation of Church and State, Bend the Arc Jewish Action, Central Pacific Conference of the United Church of Christ, Corvallis Area Lavender Women, Greater Seattle Business Association, Hadassah, the Women’s Zionist Organization of America, Human Rights Campaign, Jewish Council for Public Affairs, Jewish Federation of Greater Portland, Keshet: For LGBTQ Equality in Jewish Life, National Center for Transgender Equality, National Center for Youth Law, National Council of Jewish Women, National Queer Asian Pacific Islander Alliance, OCA-Asian Pacific American Advocates, People for the American Way Foundation, Public Counsel, South Asian Americans Leading Together, Union for Reform Judaism and the Central Conference of American Rabbis.

The case is Parents for Privacy v. Barr, (yes, it’s that Barr), decided by the 9^th Circuit on February 12, 2020.  We found it at 2020 WL 701730.  The Supreme Court decided not to hear the case on December 7, 2020.

DAWG BONE: AND THE BEAT GOES ON….

Tomorrow: We hear from Rip Snort!!

The Land Ordinance of 1785, enacted by the Continental Congress before we had a constitution, spelled out detailed plans for how townships in the Northwest Territories should be laid out.  There would be 36 lots in a nice orderly 6x6 arrangement.  The lots would be available for sale, except for four which would be reserved for the federal government, and Lot 16. Lot 16 was set aside for a special purpose:

There shall be reserved the lot No. 16 of every township for the maintenance of public schools within the said township. 

Consider: in the 6x6 arrangement Lot 16 would be smack in the middle.  That’s where the public school was supposed to be.  Consider: the Continental Congress had very little power within the 13 colonies. Each of those colonies were sovereign states. The Congress had no power to do anything on a national scale unless all 13 colonies agreed. But in the vast territory west of the Appalachians and north of the Ohio River, the Continental Congress had real power.  How interesting that the Congress used that power to recognize the fundamental importance of public education.

Today we welcome President Biden and Vice President Harris, along with Miguel Cardona, their designee to head up the Department of Education.  Let’s hope these leaders carry on the legacy of Lot 16.

DAWG BONE: THE FOUNDERS KNEW THAT PUBLIC EDUCATION WAS THE FOUNDATION OF GOVERNMENT BY THE PEOPLE.

Tomorrow: The latest on transgender students…

The case I’m going to tell you about today is the kind that will drive lawyers who represent parents in special education disputes right up the wall.  Based on the bare facts laid out in the court’s opinion it certainly sounds like the student was not served well. And yet the hearing officer ruled in favor of the school and now a federal court has affirmed that ruling.

The reason I decided to feature this case is because it illustrates a key point about IDEA—that the most important of those four letters is the I, standing for “Individual.”  It’s the INDIVIDUALS with Disabilities Education Act.  In this case, the district took some unorthodox steps, but because they were designed to meet the unique needs of this student, the district’s course of action passed muster with the courts. 

What happened?  In February, 2018 the IEP Team reduced the student’s class load from four to two classes, both of which he failed.  And one of those was P.E.!  The court was OK with this, noting that the IEP was to be assessed as of the time it was created, not based on hindsight and performance.  Key Quotes:

Thus, a student’s progress (or lack thereof) after implementation of an IEP is not definitive evidence of a failure to provide FAPE.

[In the Endrew F. case the [Supreme] Court reiterates that the scrutiny must be placed on whether the IEP was reasonably calculated to result in progress, not whether it actually did.

What were the student’s unique needs that would justify such a move?  The student was refusing to attend school and threatening to drop out.  Therefore the sole focus of the IEP was to reduce his stress and get him to attend school. The court approved:

In other words, the February IEP was reasonably calculated to provide Student an educational benefit because it aimed solely on getting him to school.

And the fact that Student ultimately failed the two classes he was taking does not necessarily mean the reduction in his course load was not reasonably calculated, at the time the plan was created, to help progress Student in school.  It was certainly reasonable for Defendant to believe that having Student only take two classes, rather than four, would reduce his school aversion.

A few cautions about this case are in order.  First, the court’s view that progress on the IEP is completely irrelevant conflicts with the four-part test the 5^th Circuit uses to determine if FAPE has been provided.  Part four of the test is the demonstration of academic and non-academic progress. Second, reducing a student’s course load is a backwards step.  The school here offered less education rather than more.  This is not a good idea. 

But meeting individual and unique needs is the trump card with IDEA.  So I tell you about this case on Toolbox Tuesday, when we focus on serving students with serious behavioral issues.  Like this kid. This case reminds us that sometimes you have to postpone academic progress until you get behavioral issues under control.  This might be particularly relevant for bright students who are fully capable of catching up.

Don’t try this at home, at least not until you have good current evaluation data and a thorough legal review. 

The case is Teters v. Peoria USD, decided by the federal district court in Arizona on September 30, 2020.  We found it on Special Ed Connection at 77 IDELR 162.

DAWG BONE: IDEA ENCOURAGES THINKING OUTSIDE OF THE BOX.

Tomorrow: The legacy of Lot 16….

“Everybody can be great, because everybody can serve.  You don’t have to have a college degree to serve.  You don’t have to make your subject and your verb agree to serve.  You don’t have to know about Plato and Aristotle to serve.  You don’t have to know Einstein’s theory of relativity to serve.  You don’t have to know the second theory of thermodynamics in physics to serve.  You only need a heart full of grace, a soul generated by love.”

DAWG BONE: EDUCATORS ARE GREAT.

Tomorrow: Toolbox Tuesday!!

Looking forward to Zooming with Loyal Readers today at 10! If you are not yet registered, send an email to info@wabsa.com.  This morning we’re going to hear from a couple of friends who are keeping track of proposed legislation.  My guests will be Kristin McGuire from TCASE, and Mark Terry from TEPSA.  Both Kristin and Mark advocate for their respective organizations, but also for all teachers and students in our public schools.  So I look forward to their perspectives on what is sure to be an important and interesting session. 

We’ll also hear from my law partner, Haley Turner, with a preview of this years’ Walsh Gallegos HR Symposium. 

On the subject of public policy, let me recommend Diane Ravitch’s new book: Slaying Goliath: The Passionate Resistance to Privatization and the Fight to Save America’s Public Schools.  This simple comparison from the opening chapter caught my attention with regard to the folly of privatization:

When people are not satisfied with the police, we do not use public funds to hire private security guards for them.  When people do not like their community pool, we do not give them public funds to build their own private pool. When people do not like the local public school, they may transfer to another public school, or they may decide to send their child to a private or religious school, which is their right, but not the responsibility of the public. 

As a product of 13-years’ of Catholic schooling, I also appreciated her next statement:

I admire Catholic schools, which have a long history of providing good education to poor and middle-income students, but I do not believe it is in their interest or the public interest for such schools to be funded by the government. 

DAWG BONE: MAYBE YOUR SCHOOL COULD FORM A BOOK STUDY….

The opening line of the court’s opinion:

Ordinances of the City of San Antonio, Texas, provide that no child or other person shall attend a public school or other place of education without having first presented a certificate of vaccination. 

Wow.  Did you know about that?  Probably not, since it happened almost a century ago. That line is from Zucht v. King which was decided by the U.S. Supreme Court on November 13, 1922.   Different century, different pandemic. 

Even though it was decided a long time ago, the Court’s decision remains what the lawyers call “good law.”  It’s never been overturned and has been cited as lawful authority as recently as 2019 in a case from the 9^th Circuit, South Bay United Pentecostal Church v. Newsom, 959 F.3d 838, 942 (9^th Cir. 2019). 

So what was the holding of the Zucht case?  The Court held that San Antonio’s ordinance did not violate the U.S. Constitution.  Therefore: submit to vaccination or don’t come to school.  The court noted that “it is within the police power of a State to provide for compulsory vaccination.”  Moreover, “a State may, consistently with the Federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.” 

School boards this year are going to be considering how to handle the COVID vaccine as applied to attendance at school.  The board should get legal advice on that issue. This long ago case does not settle the matter. It’s the starting point for the legal analysis, not the finish line.  A lot has happened in the law since 1922 that has to be taken into account, including federal laws prohibiting discrimination based on disability or religion, and state laws about other vaccination requirements, and parent rights.

So call your lawyer. But if you want to impress your lawyer, you might want to open the conversation with “How does Zucht v. King fit in to your analysis?”  The lawyer will instantly know that you are a Loyal Reader of the Daily Dawg!!

Thanks to Alert Lawyer Blake Henshaw from our firm’s Houston office for tipping me off to this interesting SCOTUS decision, which can be found at 260 U.S. 174. 

DAWG BONE: IT MIGHT BE AN OLD CASE, BUT IT’S A GOOD CASE.

Tomorrow: Zoom Zoom Zoom!

Readers of the Daily Dawg are well aware that the 5^th Circuit has issued a lot of important decisions regarding special education.  Courts and hearing officers are required to follow the precedential holdings of the 5^th Circuit.  So we lawyers study those cases carefully and try to make sure that you are aware of them and understand them.   That’s why we’re providing a webinar on this subject one week from today.  I hope you will sign up:

WHAT DOES THE 5^TH CIRCUIT HAVE TO SAY ABOUT SPECIAL EDUCATION?

Presenters: Nona Matthews and Andrea Slater Gulley

Date/Time:  January 20^th, 10:00 a.m.

I promise that we did not schedule this to deliberately conflict with the inauguration of our new President and Vice President.  And actually, it doesn’t conflict. They take the oath at 11:00 our time, and we’re doing the webinar at 10. So there.

So join us.  You know you can count on thorough analysis and practical applications from Nona and Andrea.  You can sign up at www.walshgallegos.com/events   or with an email to info@wabsa.com  or by calling 800-252-3405. 

DAWG BONE: WHAT ARE YOU DOING ON JANUARY 20^TH?

Tomorrow: vaccination issues…..

We highlight The Toolbox on Tuesdays around here—our firm’s all day training program about the discipline of students with disabilities.  Today I want to tell you about a case that was not about discipline, but has implications for all manner of experts who make recommendations to schools. This would include those who advise what should or should not go into a student’s BIP, for example. 

The case was recently decided by the 5^th Circuit in favor of the school district.  Yesterday we told you how the case illustrates the “unwritten rule” in special education litigation.  Today, we focus on how to assess conflicting recommendations from experts. 

The issue was dyslexia. The ARD Committee got conflicting recommendations from experts about how to serve a student with dyslexia. As you know, there are many divergent expert opinions about that.  How is the ARD Committee to decide? 

This case first went to a special education hearing officer who put more stock in the testimony of the school district’s Assessment Facilitator than the testimony of Dr. Morrison, the independent expert retained by the parent. The federal district court did the same, and now the Circuit Court has concluded that “the district court did not err in discrediting Dr. Morrison’s testimony.” 

Why would the court “discredit” testimony from a person with training, experience and credentials as an expert?  Here’s why:

Dr. Morrison testified that she had no training in dyslexia instruction or intervention, never reviewed [the student’s] initial dyslexia diagnosis records, and never reviewed the instructional strategies used in Northwest’s dyslexia program.  She also testified that she had never taught or directly studied the LiPS program. [That was one of the programs she recommended.]

Considering Dr. Morrison’s lack of experience in the dyslexia field, failure to review [the student’s] initial dyslexia diagnosis records, and inability to articulate deficiencies in Northwest’s dyslexia program, coupled with Ms. Beagle’s testimony regarding Northwest’s compliance with Texas standards for dyslexia instruction, the district court did not err in discrediting Dr. Morrison’s testimony. 

(Please note that “Ms. Beagle” was the district’s Assessment Facilitator and is in no way related to the Law Dawg.) 

Now, how did the hearing officer come to that conclusion about the comparative value of input from experts?  Someone did a good job of cross-examination.  You can do that at an ARD Committee meeting.  In fact, you can do that in advance of an ARD Committee meeting.  This type of cross-examination is not ugly, belligerent, or designed to trick someone into lying.  It’s just a matter of examining the foundation for the expert’s opinion. 

The case is P.P. v. Northwest ISD, decided by the 5^th Circuit on December 14, 2020.  I’m pleased to let you know that Meredith Walker from the Irving office of the Walsh Gallegos firm handled this appeal on behalf of the district. 

DAWG BONE: AN INCREASINGLY ESSENTIAL SKILL: MILD CROSS-EXAMINATION.

Tomorrow: Preview of coming attractions!!

Hey Readers! We’re Zooming with the Dawg this Friday at 10! This is a freebie for subscribers. If you are not yet registered, just send an email to info@wabsa.com and we’ll get you signed up.  Hope to see you there!

Today we revisit the “unwritten rule” in special education litigation.  Ruling in favor of Northwest ISD, the 5^th Circuit offered this observation about the comparative reasonableness of the parties:

The record confirms that [the parents] rejected several remedial services offered by Northwest, including a dyslexia class, individualized tutoring, and further evaluations.  Additionally, [the parents] stymied Northwest’s efforts to correct deficiencies in P.P.’s initial IEPs by refusing to meet with the ARD Committee while the IEE was pending and refusing to adopt agreed-upon revisions in the proposed May 2017 IEP.

The lawyer for the parents argued that whenever the school district fails to fulfill one of the legal obligations under IDEA, the parent is always and automatically entitled to compensatory education.  Nope.  It doesn’t work that way.   This is not a legal game of “gotcha.”  The court cited a SCOTUS ruling that said “equitable considerations are relevant” in a situation like this.  “Equitable considerations” include a comparative analysis of the reasonableness of the parties as they worked together. IDEA assumes that parents and school staff will collaborate and work cooperatively toward the goal they hold in common: a good education for the student.  It’s this comparative analysis of reasonableness that I call “the unwritten rule.” 

This is a good illustration of how the “unwritten rule” works.  It is almost always a mistake for parents to turn down the district’s offer to do an evaluation or to hold an ARD. 

The case is P.P. v. Northwest ISD, decided by the 5^th Circuit on December 14, 2020.  I’m pleased to let you know that Meredith Walker from the Irving office of the Walsh Gallegos firm handled this appeal on behalf of the district. 

DAWG BONE: SO BE NICE.  AND DOCUMENT YOUR NICENESS.

Tomorrow: One more point about this case.