Many years ago I was involved in an effort to get our state administrative regulations amended so as to require special education hearing officers to dismiss any issue at a due process hearing unless the issue had first been brought up in an ARD Committee meeting.  The Agency declined to adopt such a regulation, believing that it might run afoul of federal law.  So we have no such regulation, either in state or federal law. But judges do take it into account sometimes. 

Consider Banwart v. Cedar Falls Community School District, in which the parents’ request for reimbursement for tuition and other expenses at a private, residential school was rejected.  The court repeatedly pointed out that the parents decided to place their child in this residential school without first asking the school to amend the current IEP.  Key Quotes:

School districts must be notified “of disagreements and given an opportunity to make a voluntary decision to change or alter the educational placement,” and only when “it is likely that no change would be made which would benefit [the student] (if the school district had made it clear that no change in placement would occur), would there be a denial of a [FAPE].”

However, the Banwarts did not notify Bremwood [the school the student attended] of any concerns or dissatisfaction with C.B.’s IEP, did not request changes to the IEP and did not give Bremwood the opportunity to make substantial changes.

Remember: there are only two parties at an ARD meeting—the school and the parents.  One party makes a request or a proposal and the other responds.  Both parties have the right to make requests and proposals.  As this case illustrates, the parents should make their requests for changes to the IEP before doing something drastic, such as moving the student to a private school and asking the public school to pay for it.

The case is Banwart v. Cedar Falls Community School District decided by the federal court for the Northern District of Iowa on September 24, 2020.  We found it on Special Ed Connection at 77 IDELR 126.

DAWG BONE: AS WE HAVE SAID BEFORE: BE REASONABLE!

This is an issue popping up all over.  School is open and most of the teachers are in their classrooms but some are citing the Americans with Disabilities Act and seeking to teach remotely as a “reasonable accommodation.”  Is the school required to grant such a request?  The EEOC addresses this directly in a Q and A and the answer begins with a one-sentence answer: No.  But to put that in context, you have to understand that the question presented is if an employer has to grant such a request “automatically” to “every employee with a disability who requests” it.   

Here are some other salient points in the response from the EEOC:

1.  The employer “is entitled to understand the disability-related limitation that necessitates an accommodation.”  Remember: it is disabilities that need to be accommodated, not general anxieties, fears or preferences.  The ADA requires an interactive dialogue between employer and employee that should help the employer understand the need for the accommodation.
2. Telework need not be granted as an accommodation unless the need for it is related to the employee’s disability.
3. Even if the request to telework is disability-related, if there is some other form of reasonable accommodation at the workplace, “then the employer can choose that alternative to telework.”  Note: the employer, not the employee, can choose.
4. The employer’s response to the request must take into account whether presence in the classroom for teaching is an “essential function” of the job.  That’s because “The ADA never requires an employer to eliminate an essential function as an accommodation.”
5. The fact that all employees were temporarily excused from performing an essential function (such as presence in the classroom), due to the pandemic “does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.” 
6. “These are fact-specific determinations.”

All of that boils down to: 1) consider the request and all of the usual factors that go into an ADA-based reasonable accommodation request; 2) get some legal advice to help you make this fact-specific inquiry.  Obviously an employee who is denied the accommodation requested can file a grievance over it.  I expect we will see more than a few of those.

The entire Q and A is lengthy.  Here’s the link:  https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws 

DAWG BONE: EXPECT SOME REQUESTS FOR “REASONABLE ACCOMMODATION” FOR TELEWORK. 

Tomorrow: the first step in dispute resolution…

We’re keeping an eye on the bills that have been pre-filed in advance of the 2021 legislative session.  One that caught my eye is HB 256, filed by Representative Philip Cortez, a Democrat from San Antonio.  It proposes a new section to T.E.C. 11.1513, which is already a lengthy statute spelling out what needs to be included in a school district’s employment policies. The proposed new section reads:

The employment policy must include anti-bullying measures to address bullying in the workplace, including provisions to address the bullying of a teacher by a parent. 

That seems like a good idea. Certainly our teachers, just like our students, should not be bullied. But how would this be enforced?   A parental ISS room?  Written reprimands?   Suspension from attendance at extracurricular events?

The same bill was introduced in 2019 and did not get too far.  We shall see what happens this year.  However, the best protection for teachers who are being bullied by parents is not a statement in school district policy.  The best protection is 1) the teacher’s enforcement of personal boundaries; and 2) administrative support for those boundaries.  Regardless of what the official school policies say, administrators should “have the back” of their teachers and do what they can to help teachers who are being verbally, electronically, or physically abused.

DAWG BONE: HAVE BOUNDARIES. COMMUNICATE YOUR BOUNDARIES.  ENFORCE YOUR BOUNDARIES.  

Tomorrow: COVID and the Americans with Disabilities Act…

Our firm’s day-long Toolbox Training includes a nifty little laminated card that we call The Thinking Flow Chart.  I had hoped to create one of those colorful charts with diamonds, squares, circles and arrows that would illustrate the sequence of thinking in a student discipline situation. After about three hours in a conference room, trying to outline the whole procedural mess on a white board, I gave up. Couldn’t do it. 

Instead, I created a boring little “flow chart” for the campus behavior coordinator to consider.  The Thinking Flow Chart lacks pizazz, but I do think it’s helpful.

You might think that the Flow Chart would start with Tool #1, and proceed accordingly.  Nope.  The first tool to think about is actually Tool #10: are we going to involve law enforcement?  If the student’s misconduct amounted to a violation of our criminal laws, the referral to law enforcement should be made promptly. So Tool #10 (calling in the cops) should be considered promptly. 

Another reason to consider Tool #10 promptly is that it can be used unilaterally by the principal. Making a report to law enforcement does not require an ARDC meeting or consultation with teaching staff. It’s an administrative responsibility that can be executed by the appropriate administrator. 

Tool #5 is next on the list, for some of the same reasons. Tool #5 involves invoking the “special circumstances” provisions in the law.  This is the principal’s tool. Without approval of anyone else, the principal has the authority to order the removal of a student to an IAES (Interim Alternative Educational Setting) for up to 45 school days if the student has engaged in certain types of misconduct involving drugs, weapons, or the infliction of serious bodily injury.   The principal who uses Tool #5 needs to call for an ARDC meeting to consider what IAES to use, but the order of removal can take place immediately, and unilaterally.

We go from there on the Thinking Flow Chart to the other procedures and the Tools that accompany them. 

We are booking Toolbox Trainings for next calendar year. Let me know if you are interested.

DAWG BONE: WE DON’T TELL YOU WHAT TO THINK…JUST THE SEQUENCE OF YOUR THOUGHTS.  

Tomorrow: Legislative watch….

Misunderstanding the law can be costly.  A school district in California is facing liability for two years of a student’s private school tuition due to what appears to be a simple misunderstanding of the law pertaining to Child Find under IDEA.

The basic rule is that the district where the child lives is responsible for finding the child.  “Finding” under IDEA’s Child Find requirement is not as simple as finding in a game of hide and seek.  Child Find under IDEA means that the school district “identified, located, and evaluated” the child.  This applies to all students who reside in the district, even if they attend school elsewhere.

In this case the parents placed the child in a private, religious school for the 2014-15 school year.  In the spring of 2015 the mother sent a letter to the Bellflower USD where the family still lived.  The letter asked for an IEP meeting and an IEP for the 2015-16 school year. The student still lived in Bellflower but the private school was located in a neighboring district. The district refused to hold the meeting, believing that it was not legally responsible for doing so until the child re-enrolled in the district.  

That was a mistake.  I think when schools make this particular mistake it’s based on the belief that the parent has no intention of returning to the local public school. That was the district’s perception in this case, but the court noted that the facts did not support that view.  “In fact,” the court wrote, “K.L.’s parents’ letters to BUSD in 2015 and 2016 indicate they were still interested in a public school placement for K.L.”  The court noted “multiple requests” from the parents for an evaluation, an IEP Team meeting and an offer of a Free Appropriate Public Education.  The school’s failure to do this denied FAPE and meaningful parent participation.  The parents were entitled to tuition reimbursement for two years.   The religious nature of the private school did not, in the court’s view, render it an inappropriate placement.

Some of the confusion over this issue springs from a federal regulation that specifically applies to private school students: 34 CFR 300.131. That regulation imposes the Child Find duty on the district where the private school is located.  However, it does not relieve the resident district of its responsibility.  Thus there are some students who are supposed to be “found” twice—by the district where they live, and by the district where they attend a private school.   The “finding” is for different purposes.  The resident district has the duty to provide FAPE. The district where the private school is located has the duty to determine if the student is eligible for “proportioinate share” services.  The Commentary to the regulation makes this clear:

We recognize that there could be times when parents request that their parentally-placed child be evaluated by different LEAs if the child is attending a private school that is not in the LEA in which they reside. 

The Commentary goes on to say that “we do not encourage this practice,” but also “there is nothing in this part [of the regulations] that would prohibit” it. 

The case is Bellflower USD v. Lua, decided by the 9^th Circuit in an unpublished opinion on October 26, 2020.  We found it on Special Ed Connection at 77 IDELR 181.

DAWG BONE: FIND THOSE KIDS WHO LIVE IN YOUR DISTRICT, EVEN IF THEY ATTEND SCHOOL OUT-OF-DISTRICT.

Tomorrow: Toolbox Tuesday!!

I learned quite a bit about The Poet X by reading the case of Coble v. Lake Norman Charter School.  This book, by Elizabeth Acevedo, won the 2018 National Book Award for Young Adults.  The book is about a 15-year old girl in a poor neighborhood in Harlem.  The court sums up the story like this:

The self-described “brown and big and angry” Dominican girl furiously confronts catcalling boys, chafes under her Catholic parents’ restrictive rules, endures verbal and physical abuse from her mother, and both adores and resents her “genius” twin brother, who seems to be everything she’s not.

Lake Norman Charter School included the book in the required reading curriculum for 9^th grade.  Not surprisingly, some parents did not approve.  The school allowed any parent to have their child opted out of reading this book. If they did that, they would get an alternative, equivalent assignment.  But the Cobles wanted the book removed from the curriculum altogether, and so they took the matter to court.

The first step was to seek a Temporary Restraining Order. This is a high hill to climb, and the Cobles did not make it to the top.  The court denied the request for the TRO, noting in particular that it was not likely that the parents would succeed on the merits. 

The young girl at the center of the story does express some negativity, even hostility, toward religion.  The court points out that this is not so surprising, given that “her mother quotes scripture to her while abusing her.”  Moreover, the court pointed out that “even figures in the Bible like Job doubted God’s goodness.” In its legal analysis, the court points out that the school merely included this book in the curriculum.  It was not endorsing the thoughts expressed by this fictional character:

To include the work in the curriculum, without further evidence of the school’s endorsement, no more communicates governmental endorsement of the author’s or characters’ religious views than to assign Paradise Lost, Pilgrim’s Progress, or The Divine Comedy conveys endorsements or approval of Milton’s, Bunyan’s, or Dante’s Christianity.

The book sounded just right for 9^th graders to me.  In my day it was The Catcher in the Rye.  Now it’s Poet X who wonders if “Jesus is like a friend who texts too much.”  The court summed it up:

The passages identified by Plaintiffs are references to religion in a work depicting a poor, Afro-Latina, adolescent’s painful process of coming of age. These passages are less theology than anthropology, less commentary on religion than comment prompted by the frustrating confrontation of adolescents with parents, sexual desire, religious doubt, and loneliness. 

The court denied the TRO on November 6, 2020, and the decision can be found at 2020 WL 6545871.

DAWG BONE: JUST FOR THE RECORD: JESUS DOES NOT TEXT TOO MUCH.

Loyal Readers of the Daily Dawg are well aware of the OSEP investigation of the Lone Star State that resulted in a Corrective Action Plan (CAP). This all traces back to the series of articles in the Houston Chronicle alleging that Texas had intentionally denied special education services to students with disabilities.  OSEP conducted an investigation, found Texas out of compliance with Child Find responsibilities, and required a CAP.

In 2019, OSEP monitored Texas for compliance, with review of documents and interviews with educators and other stakeholders.  On October 5, 2020, T.E.A. wrote to OSEP seeking to get approval of its progress on the CAP.  T.E.A. asked for a finding that the state was now “compliant.”  On October 19, 2020 OSEP wrote back and said: no.  In the letter, OSEP cited 79 stakeholder inquiries which broke down as follows: 47 about FAPE, 10 on Child Find, 11 on dyslexia, 11 on T.E.A.

OSEP highlighted a great deal of confusion about how kids with dyslexia are supposed to be served.   It’s not surprising that there is confusion.  There is confusion about dyslexia because we are trying to apply standards from three different laws that overlap.  There is IDEA, which has its definitions of disability categories.  Those categories include Specific Learning Disability, and dyslexia is listed as a condition that can fit that category.  So a student with dyslexia might be IDEA-eligible. 

Then there is Section 504, which avoids categories but covers any physical or mental impairment that substantially limits a major life activity.  Reading is a major life activity.  Dyslexia impairs reading, often “substantially.”  So a student with dyslexia might be 504-eligible. 

Then you have our state laws on dyslexia, which effectively incorporate and give the force of law to the Dyslexia Handbook where we try to sort all this out.  Confusion is inevitable in a situation like this.

However, the Child Find responsibility under IDEA is clear, and can only be satisfied with a referral for an evaluation for IDEA eligibility. This is the point that OSEP has made repeatedly.  Response to Intervention is a good thing, but cannot justify delaying or denying an IDEA evaluation when one is called for. Section 504 has its place, but may not be a safe haven when the student is suspected of having a disability that would entitle the student to services under the superior program—IDEA.

Let’s keep an eye on T.E.A.’s response to this, and keep on keeping on.

DAWG BONE: IF WE SUSPECT IDEA ELIGIBILITY, THE REFERRAL SHOULD BE MADE.

Tomorrow: this generation’s Catcher in the Rye?

It’s important for school districts to have copies of divorce decrees and other legal documents that spell out the rights of parents after they split.  A school district in Ohio was dealing with parents who disagreed with each other over the education of their son.  Mom gave consent for the district to provide special education services to the boy due to his emotional disturbance.  Dad disagreed, and took his complaint all the way to the 6^th Circuit Court of Appeals.  In a short opinion, the Circuit Court pointed out that while the dad was the biological parent, he was no longer “the parent” for purposes of IDEA. 

IDEA anticipates situations in which there may be multiple people who meet the statute’s definition of “parent.”  It could be a grandparent.  It could be a stepparent. It could be someone else. So IDEA sets out a hierarchy of those claiming the title of “parent.”  You might think that the biological or adoptive parents are at the top of the heap. They are, but there is an exception: if the biological or adoptive parent “does not have legal authority to make educational decisions for the child.”

That was the case here. The Domestic Relations Court had given the mom the exclusive power to make educational decisions for the child.  Dad had no authority to pursue this matter.  It’s a good thing that the district had the court order. 

The case is Chukwuani v. Solon City School District, decided by the 6^th Circuit on April 21, 2020. We found it in Special Ed Connection at 76 IDELR 147. 

DAWG BONE: KEEP A COPY OF THE DIVORCE DECREE.  MAKE SURE YOU HAVE THE CURRENT ONE.

Tomorrow: Child Find and dyslexia….revisited.

Our firm’s Toolbox Training is designed to help you serve students with disabilities who engage in disruptive and/or violent behavior. The Toolbox is based on traditional forms of student discipline, but is completely compatible with restorative practices.  I have advocated for the use of restorative practices for many years, and thus was pleased to see HB 62—a bill pre-filed for consideration at the 2021 legislative session by Representative James Talarico. 

The bill would require that restorative practices be available as an alternative to suspension.    Current law (T.E.C. 37.0013) says that you “may” offer an alternative to suspension for students below grade three.  HB 62 makes this mandatory (“shall”) and expands it to include all students, not just those below grade three. 

This bill would not prohibit short term suspensions, but rather, require that there be an alternative available.  Here are some other key components of this bill:

1.  It specifies that the alternative must be available for all suspensions, including those that involve violation of a criminal statute;
2. It requires that the alternative program be “culturally responsive;”
3. It requires “restorative justice practices” and defines that term to mean “practices that emphasize repairing harm caused by a person’s conduct to another person or to the community.  The term includes a victim-initiated conference, a family group conference, a restorative circle, a community conference, or any other victim-centered practice.”
4. It creates a “restorative justice coordinating council” which would have the authority to approve service providers that can assist with the development and implementation of restorative justice programs.

DAWG BONE: HB 62—KEEP AN EYE ON IT.

Tomorrow: apparently being a parent is not always apparent.

Welcome back, Loyal Daily Dawg Readers!!  I hope Thanksgiving was restful, giving you the break you need before this three-week sprint to the next holiday. 

There were predictions of a lot of family strife this Thanksgiving, mirroring the polarization in our country.  Of course there have always been arguments among family members at Thanksgiving, but in the past, they focused on fairly safe topics.  A long, long time ago there was a football game on Thanksgiving Day featuring two major Texas universities. Does anyone else remember that? It was a tradition that (we thought) would go on forever.  Now that’s gone, and we look back nostalgically at the days when the biggest argument was Horns v. Aggies.

And of course there is the perennial: Pumpkin v. Pecan.

Usually it was not too hard to maintain courtesy and civility when we argued over these things.  There was an underlying sense of good humor and family unity.  But this year….oh boy. 

So I suspect that some of you tiptoed past sensitive topics as you buttered the biscuits and scooped up the gravy.  You probably wanted to avoid any verbal outbursts that were “rude,” “uncivil,” “harassing,” or “offensive.” 

That’s exactly what UT-Austin tries to do.  But a group of students, backed by a nonprofit advocacy organization called Speech First, Inc. sued UT, alleging that these efforts to enforce niceness violated the First Amendment.  

The 5^th Circuit did not hold that the University’s speech codes violated the 1^st Amendment, but they sure threw a lot of shade over them. The court was not dealing with the merits of the lawsuit, but rather, the preliminary issue of whether or not the plaintiffs had “standing” to pursue this matter. The lower court ruled that the plaintiffs did not suffer any particular injury, and thus lacked the legal authority to pursue litigation.  Now, the 5^th Circuit has reversed that. Thus the case will proceed to the merits, if it does not settle. 

The court’s opinion is a strong reminder that our Constitution often protects speech that is “rude” “uncivil” and “offensive.”  It’s a little different, however, in K-12 schools where teaching young children the proper way to express themselves and interact with others is a crucial component of the school’s mission.  I don’t think this decision will cast doubt on public school anti-bullying policies or other efforts to enforce a basic level of courtesy.  However, it’s abundantly clear that students who express views on issues of public concern that some people find “offensive” are protected by the Constitution.  Mary Beth Tinker established that a long time ago. 

This one is Speech First, Inc. v. Fenves, decided by the 5^th Circuit on October 28, 2020.  We found it at 2020 WL 6305819.

DAWG BONE: YOU MAY HAVE A CONSTITUTIONAL RIGHT TO BE RUDE, BUT IT’S STILL NOT NICE.  BE NICE.

Tomorrow: Toolbox Tuesday!!