Yesterday I told you about a ruling from the SPPO that a teacher violated FERPA by disclosing student records to a union representative without parent consent.   This brings up today’s topic: the parent bringing an advocate to an ARD. What to do?

The first thing to do is to say “Welcome! Can we get you a bottle of water?  Cup of coffee?”

But the second thing to do is to make sure that you have parent consent to disclose records to this person.  You cannot have an ARD meeting without disclosing information from educational records of the student.  The school staff who attend the meeting can have access to those records without parent consent because they are “school officials” with a “legitimate educational interest.”  But the lawyer or advocate or friend of the family who accompanies the parent does not fit that category.  Therefore, records cannot be disclosed without parent consent.

I can hear your objections: “But, Dawg, the parent is BRINGING them to the meeting! Obviously, the parent is OK with it!!” 

I agree. That’s why you never hear of a FERPA complaint about this.  Nevertheless, FERPA requires that the consent be in writing.  It’s not a hard thing to ask the parent to sign a simple statement permitting the disclosure of records to the person they are bringing to the meeting.  I think that might send a message to the parent that you take confidentiality regulations seriously.

So put that one in the FWIW category.  Have a good weekend, Readers!

DAWG BONE: FERPA REQUIRES CONSENT IN WRITING, NOT JUST VERBAL.

An Ohio teacher shared an audio recording of a parent-teacher conference with Ms. Lemon, the president of the local teacher union.  The recording included discussions of the student’s grades, attendance and classroom performance. Did the teacher violate FERPA?

Yes. So says the Student Privacy Policy Office (SPPO) in Letter to Bainter, on June 28, 2019. 

FERPA is built on two fundamental rules: 1) parents have access to their children’s educational records; and 2) parents must give consent before records can be disclosed to others. Those are the general rules, subject to multiple exceptions and clarifications.  The most common exception to the requirement of parent consent is the provision that permits disclosure of records to “school officials” who have a “legitimate educational interest” in the records.  Schools could hardly operate without that exception.

The Ohio teacher claimed that the union president was a “school official” with a “legitimate educational interest.” Nope.  SPPO noted that teacher unions “are independent, private legal entities that typically represent a specific teacher’s interest rather than perform a task for the educational agency or institution.”  Even though Ms. Lemon was a teacher in the district, disclosure to her was improper.  Key Quote:

While Ms. Lemon may also be a member of the school staff, disclosure of the audio recording to Ms. Lemon appears to have been in her capacity as LEA president and not any legitimate educational interest that Ms. Lemon may have in accessing the audio recording as a school official.

This has implications for ARD meetings. We will take that up tomorrow. We found this one on Special Ed Connection at 119 LRP 33047.

DAWG BONE:  NOT ALL TEACHERS SHOULD HAVE ACCESS TO ALL RECORDS.

Tomorrow: What does this have to do with ARD meetings?

I bet some of you have said that more than once.  I know I have heard it so often from special education directors that I have come to think of it as the “call the chiropractor” defense. 

Working hard to earn the parents’ trust is important, but sometimes “bending over backwards” can hurt more than your back.  It can come back to haunt you in a legal dispute.  So let’s look at the case from Klein ISD which we discussed on Monday.  In Monday’s Dawg post we focused on Child Find.  Today: let’s talk about collaboration with the parents, and when collaboration becomes capitulation. 

The hearing officer thought the district went too far, capitulating to a parent demand that did not serve the student.  Thus the hearing officer held that the district failed to “collaborate.”  The federal court reversed that ruling:

The mere fact that KISD deferred to the parents and included unnecessary dyslexia services in the IEP does not, in my view, demonstrate a lack of collaboration.  It represents an attempt by KISD to bend over backwards to be accommodating.

The parents were very insistent on dyslexia services, and so the district provided them “despite there being no credible evidence that D.C. had dyslexia.”  Apparently this did no harm, but it also did not benefit the student.   The court then noted that all of the members of the ARD Committee, including the mother, described the process as collaborative. So this part of the decision came out just fine for the district, but it’s a good illustration of the fact that doing what the parent wants is not a failsafe strategy.

This is D.C. v. Klein ISD decided by the federal court for the Southern District of Texas on May 29, 2020.  We found it in Special Ed Connection at 76 IDELR 208.

DAWG BONE:  TWO. FOUR. SIX. EIGHT.  LET US ALL COLLABORATE.

Tomorrow: FERPA

The Toolbox is our firm’s training program regarding the discipline of students with disabilities.  This week Toolbox Tuesday will not directly address any issues along those lines, but rather, we will point out the high cost of violating the mandates of the law.  Consider the following three cases: 

Doe v. East Lyme Board of Education, 76 IDELR 101 (D.C. Conn. 2020)

Just because the attorneys’ fees bill was “substantial” did not mean it was “exorbitant.”  And so the district was ordered to pay $481,103 in fees in the original litigation, plus $56,715 for the legal work done to get the attorneys’ fees award.  That’s $537,818 of your tax dollars at work.   Then to get to the full cost of this case you would also have to add in the fees paid by the district to its own attorneys. Special ed litigation is expensive.  Losing is even more expensive.  Losing and not admitting it is even more costly, as the next case illustrates.

Quatro v. Tehachapi USD, 76 IDELR 99 (E.D. Cal. 2020)

Consider this timeline of events:

1-19-2016: Hearing officer rules against the school district and declares the parent a “prevailing party” entitled to recover attorneys’ fees.

8-16-2016: Since the district has not paid up, parent files suit to recover fees.

5-11-2017: Court awards parent $135,876.75 in fees and $2,805.00 in court costs.

6-8-2017: School district appeals that decision.

11-19-2018: 9^th Circuit affirms the award.

1-8-2019: 9^th Circuit awards an additional $41,267.50 in fees.

“Since that date,” according to the court, “Plaintiff has unsuccessfully sought to recover the monies owed, and Tehachapi has literally done nothing but stall, ignoring its obligations under state and federal law, as well as the Court’s judgment and mandate.”  Thus the court added postjudgment interest to the award, and ordered payment to be made by July 1.  And catch this:

The failure to comply will result in an order to show cause why the individual board members should not be held in contempt.

DAWG BONE: THAT’S WHY THE TOOLBOX IS DESIGNED TO FACILITATE COMPLIANCE WITH THE LAW.

Tomorrow:  Bent over backwards lately?

A recent federal court case involving a Texas district demonstrates the risks of using Section 504 to serve a student who shows signs of a problem with learning.  Learning is the province of IDEA, and the failure to move promptly in that direction can have negative consequences.    

Let’s review some basics about 504.  It covers any and all physical or mental impairments that substantially impair a person in a major life activity.  Obviously from that definition, 504 covers students who are eligible for special education, but also many others.  This case illustrates how risky it is to rely on 504 to serve students whose “physical or mental impairments” impact learning.  504 is the proper remedy for students with physical or health related impairments. But when the impairment affects reading fluency and/or the more general area of learning, why mess around with 504? To do so risks a finding that the district violated Child Find duties.

The court affirmed a ruling by the hearing officer that the district moved too slowly toward a special education referral, thus violating the Child Find duty. The court relied on findings made by the student’s 504 team, which indicated that the “major life activity” of concern was learning.  Based on that, the court concluded: you should have known this kid was a candidate for special ed.  Key Quote:

In D.C.’s 4^th grade Section 504 plan….D.C. was found to have a mental impairment that substantially limited his ability to read, concentrate, learn, and think, and the plan specifically noted that D.C. had “secondary characteristics of dyslexia….

The court also noted similar language in the 3^rd grade 504 plan. Our law firm has long recommended that when considering a student for 504 services the evaluation team should ask about the “major life activity” at the beginning of the process, not the end.  Consider possible scenarios:

Jennifer has asthma. The major life activity of concern is breathing. Carlos must use a wheelchair. The major life activity of concern is walking. D.C. is falling behind in reading.  The major life activity of concern is reading, thinking, learning.

That’s exactly what happened in D.C. v. Klein ISD, decided by the federal court for the Southern District of Texas on May 29, 2020.  We found it in Special Ed Connection at 76 IDELR 208.  We’ll talk more about this case on Wednesday.

DAWG BONE: IF THE MLA IS READING OR LEARNING, IT MIGHT BE BEST TO GO STRAIGHT TO IDEA.

Tomorrow: Toolbox Tuesday!!

The President gave a speech over the 4^th of July weekend in which he claimed that kids in our public schools are being taught to hate our country.  That is certainly not what the TEKS calls for.  It’s certainly inconsistent with the daily recitation of the Pledge of Allegiance, the flying of flags, the existence of ROTC programs, thousands of halftime shows at high school football games, and all manner of other indicators that our public schools encourage patriotism.  

I posted a clip of the speech on Twitter (@jwalshtxlawdawg) and pointed out what I thought obvious—that the man was lying, and that he was no friend of public education.  I got more “likes” and “retweets” to that post than anything I have ever posted on Twitter. So obviously, a lot of people see this as I do. But there were a few who defended Mr. Trump’s remark, and I’ve been thinking about that ever since.

Some people confuse honest appraisal with hatred.  Some people prefer comforting mythology to truth.  When we move from mythology to truth and make an honest appraisal of our history and our present circumstances we can see much to be proud of, much that we are not proud of. 

Isn’t that the case with any institution?  In fact, isn’t that the case with any person?  To speak the truth about those things we are not proud of does not indicate hatred. It indicates maturity.  Teachers are charged with nurturing critical thinking skills.  How do we do that if America’s exceptional righteousness is never questioned?

Just some thoughts for the weekend. 

DAWG BONE: CRITICAL THINKING MOVES US FROM MYTH TO TRUTH.  THAT’S WHAT EDUCATION IS ALL ABOUT.

It’s risky for an ARD Committee to determine that a student is no longer eligible for special education services when the parents disagree with that assessment.  The latest example comes from a federal court case in Hawaii involving a 12-year old with autism. 

The boy did well academically, but as we all know, there is more to “education” than academics.  The court pointed out that he continued to have emotional and behavioral issues and did not satisfy all of his behavioral goals on the most recent IEP.  Moreover, one of the reasons the student was being successful academically is because of the special education services the district provided.  It’s difficult for the district to argue that the student’s performance is so good that he no longer needs special services when the performance is enhanced by the special services the student has been receiving.  If the school can show that the student does well without any special education services it has a good point; but when the school is providing special services, surely those services are contributing to the student’s success.

This case from Hawaii is one where some courts would probably have agreed with the district that the boy no longer needed special services.  But then you have courts that disagree, like this one.  This business of eligibility is hardly a precise science.  Like I said: it’s risky. 

The case is DOE Hawaii v. Acen T., decided by the District Court for Hawaii on April 6, 2020. We found it at Special Ed Connection: 76 IDELR 121.

DAWG BONE: BUCKING THE PARENTS ON ELIGIBILITY IS RISKY.

Tomorrow: are we teaching kids to hate America?

The 5^th Circuit has tossed out a lawsuit based on employee-to-student sexual harassment.  The high school student was sexually harassed by a school district police officer and a teacher.  That’s right—two school employees.  She got pregnant by the teacher.  Both school employees were convicted of crimes in connection with this tawdry episode, but the student’s civil suit against the district was unsuccessful. 

The court repeatedly expressed its disgust with the “repeated, and repulsive” treatment of a young girl, but held that there was no way the student could prevail in light of existing legal precedent.  Case dismissed. 

The main problem for the student was the court’s conclusion that the campus cop did not fit the definition of an “appropriate person” under Title IX.  School districts are not liable for damages under Title IX unless the school responded with “deliberate indifference” after an “appropriate person” knew about the sexual harassment.  The cop knew what the teacher had done and could have arrested him.  Instead, according to the pleadings in the case, he “leveraged” his knowledge to pressure the girl for more sex with him.  Yuck. 

So think about that: a school employee with the power to arrest a sexual offender knows that it is happening and tells no one. In fact, he uses this knowledge to his own advantage.  Talk about police misconduct…..

So why is the district not liable for this?  Because the cop was not the teacher’s supervisor and did not have the authority to fire the man.  Yes, he could have arrested him, but the court held that that power was not enough to “repudiate” the conduct and “terminate” the hostile environment.  To be able to do those things, he would have to be in the direct line of supervision: assistant principal, principal, or superintendent.

Would this case come out differently if the new Title IX regulations were in effect?   Under the new regs (effective August 14) the district has a duty to respond if any employee has knowledge of sexual harassment. However, those regulations will govern how OCR conducts administrative investigations, and will not necessarily change the legal standard for liability applied by the courts. 

The case is Doe v. Edgewood ISD decided by the 5^th Circuit on July 6, 2020.  We found it at 2020 WL 3634519. I’m pleased to let you know that the district got some excellent legal representation in this case from Craig Wood and Katie Payne from the San Antonio office of the Walsh Gallegos Law Firm.

DAWG BONE: LIABILITY UNDER TITLE IX REQUIRES KNOWLEDGE OF AN “APPROPRIATE PERSON.” 

Tomorrow:  The riskiness of eligibility decisions.

In our Toolbox training, we emphasize the importance of a BIP—a Behavior Intervention Plan designed to improve the student’s behavior.  Of the ten tools in the Toolbox, the BIP is the most important. That’s why it’s Tool #1. 

Like all other components of a student’s IEP, a BIP is satisfactory if it is designed to achieve progress.  Perfection is not required.  That’s why a mother’s complaint that the BIP had not eliminated the student’s inappropriate behaviors was not enough for her to win her case.  The court noted that the student’s behavior had improved with the services provided by the school. Good enough. 

The court held that the student received FAPE, even though the school failed to implement one component of the IEP.  The IEP called for a personal aide who would be supervised two hours/week by a BCBA.  The school provided the aide, but for three months failed to provide the supervision by a BCBA. The court held that this did not impede the student’s right to FAPE. The only testimony that the student required the BCBA supervision came from the mother who “is not a behavior or education specialist.”  In contrast, the school produced testimony from a school psychologist that the supervision by a BCBA was not necessary. The court also noted that the student made progress on behavioral goals, albeit less than the parent would have liked. 

The case of A.W. v. Tehachapi USD, was decided by a federal court in California in 2019, and was affirmed in an unpublished decision by the 9^th Circuit on June 25, 2020.  We found it at Special Ed Connection, 120 LRP 19621. 

DAWG BONE: PROGRESS.   NOT PERFECTION.

Tomorrow: new Title IX decision from the 5^th Circuit

I remember seeing many educators wearing lapel pins bearing the inspiring slogan: ALL CHILDREN CAN LEARN.  That slogan reflected more than a lofty goal—it was the law.  The 1^st Circuit Court of Appeals established that in 1989 in Timothy W. v. Rochester, N.H. School District, 875 F.2d 954.  The school district in that case argued that Timothy was so severely disabled that he was incapable of receiving any benefit from education.  The school argued that the boy needed care and medical attention, but “education,” as we understood it, would not do any good. Therefore, the school argued, it was not required to keep trying. 

The court rejected that argument, relying largely on the title of the law at the time: The Education for ALL Handicapped Children Act (Emphasis added).  Key Quotes:

The language of the Act could not be more unequivocal. 

It never speaks of any exceptions for severely handicapped children. 

The language of the Act in its entirely makes clear that a “zero-reject” policy is at the core of the Act. 

Now, 31 years later, a federal court in Minnesota has found a child for whom “zero-reject” does not apply.  The facts of the case are horrific.  As a result of an asthma attack that happened at school and was allegedly very badly handled, the student is now in a permanent vegetative state.  The parents are now seeking damages under the ADA, Section 504, state law and medical malpractice standards.  The legal fight was over whether or not the parents were required to exhaust their administrative remedies under IDEA before filing suit.  The court held that they were not, and in doing so, made some observations that are contrary to the “zero-reject” philosophy of the law.  Key Quotes:

Because of the present condition of [the student]….the Court finds that there are no available remedies under the IDEA that would benefit her as she is unable to receive any form of education. 

Thus the parents were allowed to proceed with their suit, seeking recovery for monetary and other damages they have suffered.  Given the issue at stake, the court’s ruling makes sense.  The parents were not seeking any educational services from the district, so why should they have to pursue such services through a special education due process hearing?  But I suspect that the case would have a different outcome if the parents were seeking a new IEP or some new or different services from the district. In that context, the court would have likely cited Timothy W. and ordered the district to keep on keeping on in an effort to serve this student. 

The case is A.K.B. v. ISD No. 194, decided by the federal district court for Minnesota on March 26, 2020.  We found it at Special Ed Connection, 76 IDELR 129.

DAWG BONE: ALL CHILDREN CAN LEARN—YES, STILL THE LAW.

Tomorrow: Toolbox Tuesday!!