The district’s failure to complete a promised evaluation was the basis for the court’s conclusion that the district denied FAPE.  The opinion underscores the importance of evaluation data.  The district had promised to do an evaluation of the student’s need for assistive technology.  Due to a variety of circumstances, an entire school year elapsed before the evaluation was completed. On that basis alone, the court upheld the hearing officer’s determination that FAPE had been denied. Key Quotes:

But as the Hearing Officer rightly observed, “satisfaction of the student’s right to a FAPE requires an IEP based on data obtained through evaluations and progress monitoring.”

Having deprived itself, the Family, the Hearing Officer, and this Court of this promised yardstick, the District cannot maintain that it measured up. 

Evaluation data is the rudder that steers the ship in special education matters.  All of the ARDC’s decisions should be based on solid, relevant, accurate and timely observations and evaluations.  As this case shows us, failure to keep up with promises of an evaluation can be costly. It’s Downingtown Area School District v. G.W., decided by the federal court for the Eastern District of  Pennsylvania on October 8, 2020.  We found it on Special Ed Connection at 77 IDELR 155. 

DAWG BONE:  EVALUATION DATA: THE RUDDER THAT STEERS THE SHIP.

HB 589 seems well intentioned.  It would require schools to adopt a policy “that requires a school counselor to spend at least 80% of the school counselor’s work time on duties that are components of a counseling program developed under T.E.C. 33.005.”  Sounds good? It’s all about letting the counselors be counselors, rather than test administrators.   Just to be clear about that, the bill goes on to say that “time spent in administering assessment instruments or providing other assistance in connection with assessment instruments, except time spent in interpreting data from assessment instruments, is not considered time spent on counseling.”  There is an exception from the 80% rule for districts in which the board determines that “staffing needs” require an exception. 

Similar bills were introduced last session. The Senate passed its version, but the one in the House died before passage.  This bill is well intentioned, and designed to address the critical need for schools to address the mental health of students with properly qualified staff.  Let the counselors counsel!  But it’s the wrong solution coming from the wrong people.

The law is a blunt instrument.  It’s not the best way to address allocation of staff time.  We have administrators with that responsibility who have a much better grasp on how staff time should be allocated.  This bill, if enacted into law, would create paperwork and produce employee grievances.  It would limit the authority of the principal to assign duties to staff.  It would focus energy and time on process rather than results.

There is a simpler solution, and it’s one that is in the wheelhouse of our legislators. They could allocate more money for school counselors, social workers, psychologists and others who can address student mental health.   If they are concerned that school counselor time is being wasted on STAAR, they could waive STAAR, at least for this year of heightened student, parent, and teacher stress. 

DAWG BONE: KEEP AN EYE ON HB 589.

Tomorrow: the rudder that steers the ship….

Yesterday we told you about the Pennsylvania case in which a district convinced the hearing officer and the court that moving a student to a more restrictive environment was a good idea.  The parent’s lawyer offered the testimony of two expert witnesses, but the court gave them little credence.  Here’s why:  

First, the decision noted that Dr. Harty “presumed that full inclusion is appropriate for every child regardless of unique individual need.”  Second, the decision noted that Dr. Harty’s conclusions about J.W.’s reading abilities were based on a single assessment conducted over a two-hour period…..Third, the decision noted that Dr. Harty did not adequately explain why her assessment of J.W.’s reading ability differed so significantly from the vast amount of evidence suggesting that J.W.’s reading ability was below benchmarks for his age and grade level.  

The law favors serving students in the mainstream setting, but above all other considerations the law requires an individual analysis of each student’s proper placement.  The court noted that “Dr. Harty’s opinion was afforded less weight because it had insufficiently considered J.W.’s individual needs…”

The other expert testified about assistive technology needs.  The man knew the field, but not the student:

The decision acknowledged that Lytton [the A.T. expert witness] had expertise in the field of assistive technology, but found that his opinion should be afforded less weight because he did not interview J.W.’s educator or observe J.W. in the classroom.

Educators should keep these factors in mind when parents bring experts to ARD meetings or present evaluations with recommendations for the child’s education.  Having credentials and experience is good, but not enough. How well does the expert know this student?  The leader of the ARD meeting should be prepared to engage in mild cross-examination.  How much time have you spent with the student? Have you talked to the teachers who are currently working with the student?  Have you observed the student in the school setting?  Are you familiar with the current IEP? The progress reports?

If it ends up in court your lawyer is going to ask all those questions.  You can do the same at the ARD meeting. 

The case is Wishard v. Waynesboro Area School District, decided by the federal court for the Western District of Pennsylvania on August 21, 2020.     We found it on Special Ed Connection at 77 IDELR 65.

DAWG BONE:  DON’T GET CARRIED AWAY.   KEEP IT AT MILD CROSS EXAMINATION.

Tomorrow: A bill to watch….

Tool #3 in our firm’s Toolbox is an Educational Change of Placement Without Parental Agreement. The Toolbox is about serving students appropriately when they engage in inappropriate behavior. So we speak of Tool #3 most often in the context of a student whose disruptive behavior warrants a change of placement.  But sometimes it’s as much about academics as behavior, or the two are intertwined. 

A district in Pennsylvania used Tool #3 to move a student to a more restrictive environment. The parent objected, took the case to a hearing officer and then to a federal court.  The court upheld the ruling of the hearing officer in favor of the change of placement to a more restrictive setting. The court held that the district based this on years’ of data showing that 1) the student had struggled to perform in the mainstream classroom; 2) the district provided an array of supplementary aids and services; and 3) the student’s presence in the general classroom led to greater distraction for him and others.  The main point was the lack of academic progress.  Key Quote:

…the district determined that J.W. should spend less time in a regular education classroom only after years of data showed that he struggled to make progress in such an environment and that his academic achievement continued to lag further and further behind that of his peers.

Notice how the district proved the three essential facts in a Tool #3 case: 1) this is not working; 2) we’ve tried; and 3) what we are proposing will be better for the student.  It’s Wishard v. Waynesboro Area School District, decided by the federal court for the Western District of Pennsylvania on August 21, 2020.     We found it on Special Ed Connection at 77 IDELR 65.

One more aspect of this case is Dawg-worthy.  Tune in tomorrow. 

DAWG BONE: TOOL #3 REQUIRES CAREFUL THOUGHT AND LEGAL ADVICE.

Tomorrow: Why the court disregarded the expert’s input….

We can now view 2020 with 20/20 hindsight!  Let us hope that this new year will bring an end to this horrific pandemic and a return to family gatherings in person, full stadiums for our sports, movie theaters, open restaurants, and children attending public schools in person, every day. 

Let’s also hope that the past year will serve as a reminder of the unique place of public education in our country.  There are well financed and powerful interests that seek to treat education of the public as a commodity to be handled through the private market.  There are those who believe that education would be better for our children if the schools were run by private entities, forced to compete with each other for every dollar.  They tout parental choice and the magic of the free market as the panacea for all that is wrong with our schools. 

After all, they point out, competition and the free market has led to better cars, grocery stores, forms of entertainment, electronic gizmos, airline travel, etc.  They are right about that.  Free market economies and robust competition benefit consumers.  But here’s the catch: free markets also create winners and losers.  So if we turn our education system entirely over to the private, free market, we will see winners and losers.  We tolerate winners and losers among airlines, grocery stores and software companies.  But is that acceptable when we are talking about the education of our children?  What percentage of losers are we willing to accept?

It’s up to us who understand and appreciate our public school system to remind our fellow citizens that education is not a commodity, like laundry detergent, to be purchased by individual choice.  Our country was founded on the radical notion that people could govern themselves….but only if the people were properly educated.  Public education is the foundation stone of our democracy.  Therefore it is our responsibility to support it, nurture it, value it, and pay for it.  And of course, none of that means that public education is above criticism.  We know there are problems, but junking the whole system is not the solution.

We will be spending some time in the Daily Dawg developing this theme this year.  This will include some interesting American history. I’m learning that public education was very much on the minds of our founders.  I will be sharing what I’m learning from time to time.

DAWG BONE: WE CAN’T HAVE A DEMOCRACY WITHOUT AN EDUCATED PUBLIC. SO LET’S NOT TRY.

Tomorrow: Toolbox Tuesday!!

The bricklayer worked steadily in the summer heat.  Mortar. Brick.  Scraper.  Plane.  Mortar. Brick.  Scraper. Plane.  It was painstaking and physically taxing work.  If at the end of the day you asked what had been accomplished, the worker might say, “I laid bricks.  Brick by brick by brick.” 

Another laborer doing the same work might answer differently: “I built a wall today.   One brick at a time.  Brick by brick by brick.”

Ask a third worker and you might hear a different response: “I helped to build a cathedral that will soar into the heavens and be a place of peace and community for generations to come.  This place will celebrate births.  It will honor the lives of those who have passed.  It will see many weddings.  My part was to finish this wall. I did it one brick at a time.  Brick by brick by brick.”

I hope the Loyal Readers of the Daily Dawg see themselves as the cathedral builders that they are.  You are not just laying bricks out there.  This crazy year has showed us the indispensable value of our public schools and of the people who make them work.  There is nothing our society does that is more important than the transmission of knowledge, skills and values from one generation to the next.  That’s what you are doing, day by day, student by student. Brick by brick by brick. 

So congratulate yourself on making it to the end of 2020. Take a deep breath.  Then let’s all go home for awhile.  Let’s be with family and friends. Let’s rest.  Let’s give thanks for all that we have survived. 

The Daily Dawg will bark again on Monday, January 4^th.   

DAWG BONE: MERRY CHRISTMAS!  HAPPY NEW YEAR!!

If SB 89 passes it will require school districts to create a new document describing how COVID-19 has affected students with disabilities.  The document would require answers to four questions:

1.  Was the first evaluation of the child’s eligibility for special education done during the 2019-20 or 2020-21 school years?  If so, was the evaluation completed on time? 
   
2. Was the child’s initial IEP developed during the 2019-20 or 2020-21 school years?  If so, was it completed on time?
   
3. Were services called for by the child’s IEP “interrupted, reduced, delayed, suspended, or discontinued” during the 2019-20 or 2020-21 school years?
   
4. Based on the answers to these first three questions, are “compensatory educational services under Subchapter C” appropriate?

Notice that the first two questions are only focusing on those students who were new to special education in the two COVID years (let’s hope there will only be two COVID years).  But the third question is a doozy.  It applies to every student who has an IEP, and I think we all know that the answer to the question it poses, for just about any child, is “yes.” Consider the verbs: “interrupted, reduced, delayed, suspended, or discontinued.”  Is there any child whose services were not, at the least, interrupted? 

The reference to “compensatory” services in the 4^th question is not using that term as special ed types normally do.  In IDEA-land we speak of “compensatory services” as those required to make up for a failure to provide a FAPE (Free Appropriate Public Education).  However, S.B. 89 refers to “compensatory” services under Subchapter C of Chapter 29 of the Education Code.  That takes us to Texas Education Code 29.081, which calls for “compensatory, intensive, or accelerated instructional services…that enable the students to be performing at grade level at the conclusion of the next regular school term.”

“Compensatory services” as S.B. 89 uses the term are aimed at the general education students who have fared poorly on STAAR and EOC tests and need extra help to perform “at grade level at the conclusion of the next regular school term.”  Thus compensatory services, under the T.E.C.,  have a goal, but it’s hardly “individualized” as an IEP goal would be.  Instead, the goal is grade level performance. Period.

This bill would make more sense if it were aimed at the general student population.  It’s convenient to target a bill like this at students with IEPs, but it misses the mark.  All students have been adversely affected by COVID.  Services for just about every student in Texas have been “interrupted, reduced, delayed, suspended, or discontinued.”  This bill does not require any assessment of the educational harm those students have suffered, and does not call for any “compensatory services” for them. Instead, it targets only a small percentage of our students.  Moreover, it imposes burdens on educators in the special education department that are unnecessary.  Consider: the duty to provide FAPE, to monitor for progress, to assess whatever damage COVID has wrought, and to offer services to make up for a failure to provide FAPE is already required by federal law.  Special educators don’t need state law to require them to do what federal law already requires.  They also don’t need state law that requires redundant paperwork.

On the other hand, there is no state or federal mandate to examine the damage done to the 90% of our students who do not have IEPs.  There is no mandate for compensatory services for the general education students who have suffered harm. What about that?

DAWG BONE: S.B. 89: COMPENSATORY SERVICES FOR STUDENTS WITH IEPs.  KEEP AN EYE ON IT.

Tomorrow: Merry Christmas!!

According to the 5^th Circuit, the plaintiff made two procedural errors in the suit alleging disability discrimination.  The plaintiff, a student with a disability acting through his parent, 1) missed the deadline for seeking a special education due process hearing which meant that he 2) failed to “exhaust his administrative remedies.”   If the lawsuit is mostly about an alleged denial of a FAPE (Free Appropriate Public Education) you have to go through the special education due process system first, and you have to do it on time. Then you can take your case to court.

The lawyer for the plaintiff tried to get around this by arguing that his lawsuit was not really about FAPE, but the court disagreed.  The court pointed out that the plaintiff had started out with a request for a due process hearing, albeit a tardy one.  This was “a strong indicator that the gravamen of his complaint is in the denial of a FAPE.” 

It takes good lawyering to make sure that the court notices these procedural errors and rules on them.  I’m pleased to let you know that Meredith Walker from our firm’s Irving Office was the lead attorney on this case, with strong support from our entire litigation team, including Houston attorney Morgan Beam. 

The case is T.B. v. Northwest ISD, decided by the 5^th Circuit on November 23, 2020. 

DAWG BONE: GOOD LAWYERS DON’T LET PROCEDURAL ERRORS SLIP BY.

Tomorrow: Legislative watch…

Tool #9 in our firm’s Toolbox is Leadership at the ARD Meeting.  When I talk about this one, I often make the point that an ARD meeting is sorta like a marriage.  This is a comparison you don’t want to take too far. There are more differences than similarities. For starters, marriages last longer than ARD meetings. Usually. 

But one major similarity is that you have multiple people but only two parties.  You don’t think there are multiple people in your marriage?  Take a moment to think about that.  I hold it that I am like Walt Whitman—I contain multitudes.  As for my wife, like most women, she contains multiples of multitudes.  We each bring a lot to the table, but ultimately it’s just the two of us who have to make decisions.  When there are two, and they are supposed to come to consensus, you have the possibility of a tie vote.  What do you do then? 

At the ARD meeting, you have the parent (or adult student) and the school. Those are the two parties.  Each must, eventually, speak with a united voice.  So you have two parties, who might end up in non-consensus. A tie vote, so to speak. 

Fortunately, the Texas Administrative Code tells us what to do.  It tells us that when you reach the end of the road, the school is supposed to do what it believes to be the right thing to do, while giving the parent the opportunity to challenge that decision.  That’s a paraphrase. The Code section is 19 T.A.C. 89.1050(f)(3). 

So the school needs a leader who can bring the non-consensus meeting to closure without rancor or belligerence, but just a clear, calm explanation of what we are going to do and what options the parent has.  There is one major exception to that general rule: a student cannot be initially placed in your special education program without parent consent. 

Just imagine if you had a similar how-to-break-the-tie rule in your marriage!  How much easier things would be!  If some of you want to try drafting such a rule, I’d love to see it.  Meanwhile, enjoy your ARD meetings and your marriage! 

DAWG BONE:  MARRIAGE.  ARD MEETING. MORE SIMILAR THAN YOU MIGHT THINK!

Tomorrow: Texas district prevails at the 5^th Circuit

S.B. 215: Senator Bettencourt has nine co-sponsors for this one: Creighton, Hancock, Hughes, Lucio, Nelson, Paxton, Seliger, West, and Zaffirini.  That adds gravitas and gives SB 215 a good shot at passage, at least out of the Senate.  It got out of the Senate last session, but died in the House.  The bill is an attack on those age old enemies of good government: Fraud!  Waste!! Abuse!!!  And it’s entirely aimed at public education.

The bill would create the office of “inspector general” at T.E.A, with the IG to be appointed by the Commissioner.  Here’s the IG’s charge:

The office is responsible for the investigation, prevention, and detection of wrongdoing and of fraud, waste, and abuse in the administration of public education by school districts, open enrollment charter schools, regional education service centers, and other local education agencies in this state.

The bill gives the IG sweeping powers, including the right to initiate investigations or reviews on its own initiative or in response to a complaint “from any source.”  The IG would be empowered to issue subpoenas, and to attend closed sessions at school board meetings, other than those involving attorney-client communication. The IG would have access to all records, even those normally shielded from public disclosure. There is one exception to that—the IG would not have access to any document or file “that is a privileged communication between an individual and the individual’s attorney.”  I find it curious that this attorney-client privilege is limited to “individuals.” What about the school district as the client? 

There are at least two other major concerns with this bill. First, it has the IG appointed by the Commissioner and reporting to the Commissioner.  So I guess we won’t see any inspections of fraud, waste and abuse at T.E.A.  It would be better if the IG reported to an elected body, such as the State Board of Education. 

Secondly, let’s consider the ancient trio of “fraud, waste, and abuse.”  We know what “abuse” is and the statute includes a definition of “fraud” limiting it to intentional deception or misrepresentation designed to produce an “unauthorized benefit” to someone.  But “waste”?  As applied to government spending? The term is wickedly subjective. 

Most of us would agree that in any large scale operation with a multi-million dollar budget there is probably some wasteful spending.  But precisely what is “wasteful”?   What’s essential to me may be wasteful to you, and vice versa.  There are people who think all extracurricular spending is wasteful. There are people who think all standardized testing is wasteful. 

There are people who think any administrative salary above a certain amount is wasteful.  I guess in theory we would all agree with that as a general proposition, but what precise dollar pushes a superintendent’s salary from “that’s pretty high” to “wasteful”?  This statute would create a high powered office with the ability to cripple political opponents with intrusive investigations.    Not a good idea.

It will be interesting to follow this one through committee hearings. I expect we may hear some things about private jets and luxury boxes at Spurs basketball games for charter school muckety mucks.   We will also hear about questionable spending by traditional school districts.   We will hear about superintendent salaries, and even more, superintendent buyouts. 

There is wasteful spending in public education, as there is in every large scale operation, public or private.  But in the traditional public schools we already have guardrails in place.  Did the board spend too much to buyout the superintendent?  There is already a law in place to exact a price for this.  Moreover, the board members are democratically elected and hold all of their meetings in the open.  There is far less oversight of privately operated for-profit charter schools.  Maybe this bill should have a more narrow target.    

Stay tuned. 

DAWG BONE: PARLOR GAME: DEFINE “WASTEFUL” GOVERNMENT SPENDING.

Tomorrow: Toolbox Tuesday!!