On Tuesday the Dawg told you about the case from Kentucky where the court criticized the way the district created a BIP for the student.  The court held that the school denied FAPE by failing to conduct an FBA (Functional Behavioral Assessment) properly, thus leading the school to “blindly develop a behavior intervention plan” which failed to produce improved behavior in the student. 

However, the parent’s claim for tuition reimbursement was denied due to the inadequacy of the private school where the parents placed the student.  The court noted that 1) the headmaster of the private school did not know whether any of the students at the school had disabilities; 2) there was no IEP, special education teachers, FBA or OT, all of which the student needed; 3) the student made good grades at the school, but academic success “is not enough to establish Summit as an adequate placement”; and 4) the headmaster was not familiar with state standards for education and lacked an educational degree.  The court also pointed out that the social worker who testified that the student was happy at Summit “never observed L.M. at Summit, had not spoken to her teachers, seen no educational documentation and falsely believed there were no disabled children at Summit.”

It’s difficult for parents to get tuition reimbursement. They have to prove that the public school denied FAPE AND that the private school was a proper one.  Most of the time, they fail the first test. In this case the parent passed the first test but failed the second. 

This one is L.M. v. Henry County Board of Education, 75 IDELR 72 (E.D. Ky. 2019) decided by the federal court for the Eastern District of Kentucky on September 20, 2019.  We found it on Special Ed Connection at 75 IDELR 72.

DAWG BONE: TUITION REIMBURSEMENT CASES: HIGH BURDEN OF PROOF.

One more week until the break, Readers.  Hang in there!

DPL was a new one for me.  You?  Maybe it’s just a California thing.  In any event, a school in California issued a DPL (Disruptive Parent Letter) to Misty Camfield, requiring her to get permission from the principal 24 hours prior to any visit to the campus.  As often happens when a school does something like this, singling out a particular parent, the parent takes exception. This parent sued the district, alleging that she was being unfairly retaliated against. 

Nope.  The court held that the DPL was a reasonable regulation, and not an act of retaliation. Key Quote:

Merely being required to make an appointment one day in advance to enter an elementary school campus does not produce an injury or harm forbidden by federal law, particularly when future advocacy is not banned.

You must be wondering what prompted the school to issue a DPL.  According to the court, Ms. Camfield had used foul language on campus, directly insulting a teacher’s aide, and calling the principal a “f______ bitch” in a classroom in the presence of Ms. Camfield’s husband and a teacher.

That kind of thing. 

The case of Camfield v. Board of Trustees of Redondo Beach USD, was decided by the 9^th Circuit in an unpublished decision on September 18, 2019.  We found it on Special Ed Connection at 75 IDELR 59.

DAWG BONE:  WHAT ELSE MIGHT DPL MEAN?

Tomorrow: the public school did not do well, but the private school was no improvement

DEAR DAWG:  Snort, here.  Rip Snort.  Intrepid Reporter and Friend of the Truth.  Dawg, the State of Ohio has jumped off a cliff.  The legislature in the state is on the verge of adopting a law that will require teachers to give kids credit for WRONG ANSWERS if the answer is based on a religious belief! Can you believe it?  Thought you might want to take a look at HB 164, working its way through the Ohio legislature faster than a Buckeye halfback.  Take a look.   SNORT.

DEAR FRIEND OF THE TRUTH: Wrong, Snort.  That’s not what it says. We have seen numerous headlines making the same claim, but we wonder if the headline writers read the bill before writing the inflammatory headline. 

Let’s all take a deep breath and read what this bill actually says.  The bill does not require teachers to give credit for wrong answers on a science or history test.  It says that grades are to be calculated “using ordinary academic standards of substance and relevance, including legitimate pedagogical concerns.”  It also requires that teachers “not penalize or reward a student based on the religious content of a student’s work.” 

Let’s consider some examples: 

*The assignment is to write an essay on a subject of personal interest, and the student writes of her religious beliefs, (or lack of religious faith).  The bill requires that the teacher should grade the assignment on the quality of the writing, without regard to the religious or anti-religious content. 

*The assignment is to create a work of original art, and the student does a painting with overtly religious symbols.  The bill requires that the teacher grade the art based on its quality, not its message. 

*The assignment is to research and write a paper, supporting a position on a controversial issue. The student writes about same sex marriage and supports his position with citations from the Bible.  The bill requires that the paper be graded based on its content, not its viewpoint or its religious foundation. 

Settle down, Friend of the Truth. 

DAWG BONE: DON’T JUST READ THE HEADLINE. 

Tomorrow: Just what you need: a new acronym!!

The Toolbox is our firm’s day long training program regarding disciplinary options when dealing with students with disabilities who are disruptive or violent.  We spend a lot of time in the Toolbox Training on Tool #1—a BIP.  I often cite the Circuit Court decision that pointed out that there are no legal guidelines for the content of a BIP. Thus the court concluded that it was impossible to develop an “illegal” BIP. You can’t violate legal standards that don’t exist.  

However.  Court cases frequently include the dreaded “however.”  In this situation, the “however” is this:  if the school is sloppy or inaccurate in how it develops a BIP, a court may very well find a way to rule against the district. That’s what happened in Kentucky. 

The court held that the school denied FAPE by failing to conduct an FBA (Functional Behavioral Assessment) properly, thus leading the school to “blindly develop a behavior intervention plan” which failed to produce improved behavior in the student.  The court faulted the district for its imprecise and unmeasurable definitions of target behaviors, and for its faulty data collection methods. 

The school argued that it was not required to conduct a FBA, and so, any errors in the way it was done could not be legally significant. The court dismissed that argument, holding that once the district chose to do an FBA it had to do it properly.  Key Quote:

If Henry County Schools failed to either adequately define the behavior or fails to collect high-quality data, the FBA will be useless.  Here, Henry County Schools was guilty of both failures. As a result, the FBA had no chance of success.

So let’s remember: a BIP has to define the target behavior with accuracy and some degree of measurability.  To do that, you need accurate data from a FBA or some other method of evaluation.

The case is L.M. v. Henry County Board of Education, decided by the decided by the federal court for the Eastern District of Kentucky on September 20, 2019.  We found it on Special Ed Connection at 75 IDELR 72.  Stick around until Friday and we will tell you a bit more about this case.

DAWG BONE: IT’S JUST LIKE YOUR MOM TOLD YOU: ANYTHING WORTH DOING IS WORTH DOING RIGHT.

Tomorrow: We hear from Rip Snort!

Dear Dawg: Snort, here.  Rip Snort.  Intrepid Reporter. Friend of the Truth and STAUNCH DEFENDER OF THE FIRST AMENDMENT IN THIS TIME OF DARKNESS!! 

Dawg, I am delighted to inform you of the victory of the teacher in Fort Worth who was fired for exercising her First Amendment rights!  Ms. Clark sent several tweets to You Know Who, the Tweeter in Chief, seeking more vigorous enforcement of our immigration laws.  For this she was terminated.  There could hardly be a more blatant example of a school district retaliating against a teacher for the exercise of constitutionally protected rights. Now, however, Commissioner Morath has restored the First Amendment to its rightful place of honor, reversing the decision of the Fort Worth ISD school board. 

Thomas Jefferson would be proud.  SNORT.

DEAR FRIEND OF THE TRUTH: 

Thanks for the heads up, Snort.   But the Dawg wonders if you actually read the Commissioner’s decision, or only the reports of it in the media.  The Commissioner did not make a ruling one way or the other on the constitutional issue.  Instead, he reversed the board’s ruling because of the way the board handled the recommendation from the hearing examiner. 

The Commissioner outlined the very interesting issue presented by the facts.  You have a teacher on her own time, using her own resources, communicating with an elected official on a matter of public concern.  That’s protected free speech.  You have a school district with legitimate concerns about the blowback and disruption those communications, which were publicly available on Twitter, would generate in a school district with a large Hispanic population.   Courts apply a balancing test in cases like that. Commissioner Morath describes it this way:

What needs to be weighed is the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.

Having teased us by laying out that very interesting issue, the Commissioner scooted right past it like a running back avoiding a tackle:

However, instead of blazing a new trail in constitutional law by examining this novel question, this case will be resolved based on other issues. (Emphasis added).

That’s a great disappointment to you and other members of the Chattering Class, but that’s the truth, Friend of the Truth. 

The Commissioner then examined how the board handled the recommendation of the independent hearing examiner.  His recommendation included 52 Conclusions of Law, leading to the ultimate recommendation that her actions were protected by the Constitution and she should not be fired for this. 

The board rejected that recommendation and fired the teacher.  In doing so, the board rejected 32 of those 52 Conclusions of Law.  It did not adopt any new ones.  What was left, according to the Commissioner, failed to establish any good cause to terminate a continuing contract:

A school district wanting to adopt changes to a Conclusion of Law or to adopt a new Conclusion of Law must provide a reason and legal basis for any change.  In the present case, Respondent rejected in whole or in part many Conclusions of Law, but it adopted no completely new or partially new Conclusions of Law. This is significant because there is no Conclusion of Law in Respondent’s Decision that finds there is good cause to terminate Petitioner’s contract and there are no Conclusions of Law which are determinations regarding good cause that support the ultimate conclusion that good cause exists to terminate Petitioner’s contract.

Was the teacher’s communication entitled to protection under the First Amendment?  It remains an open question, Snort.  We don’t know. Commissioner Morath does not express an opinion. 

This case is Clark v. Fort Worth ISD, decided by the Commissioner on November 25, 2019.  It’s Docket No. 006-R2-10-2019.

DAWG BONE:  BOARDS HAVE TO BE CAREFUL WHEN REJECTING AN INDEPENDENT HEARING EXAMINER’S RECOMMENDATION.

Tomorrow: Toolbox Tuesday!!

Yesterday we introduced the idea that a comma replacing a period might be a simple way of staying out of legal trouble with regard to efforts to end bullying. Yesterday we talked about the very common expression “boys will be boys.” Today, a few other things that you hear in the context of bullying. 

“These girls are just mean these days.”

“We don’t have time to deal with all this.”

“It’s not our fault. Look at the culture these kids are growing up in.”

“He brings a lot of this on himself.”

Any of these statements could be used as evidence of a “who gives a flip” attitude. The legal term for that is “deliberate indifference.”  If you hear a teacher expressing these views, try replacing the period with a comma and adding a few words.  Like this:

“These girls are just mean these days, which is why we are working as a team to foster a welcoming environment for everyone.”

“We don’t have time to deal with this, which is why we take a team approach, and work our anti-bullying themes into the culture of the school.”

“It’s not our fault, but it’s our responsibility to do something about it. And we are.”

“He brings a lot of this on himself, and so we teach the kids how to avoid doing that, and how to be resilient when provoked. It’s all part of our anti-bullying program.”

DAWG BONE: PUNCTUATION MATTERS!

That’s enough about bullying for this week. The Dawg will be back with new and interesting topics next week!

When we talk about the words and phrases that can cause headaches for school administrators I’d put “boys will be boys” right at the top.  If someone reports bullying, or asks how the school addresses the topic, this common expression should be on the “do not say” list. 

“Boys will be boys” sounds pretty close to “we can’t do anything about this.” Or worse: “we’re not going to do anything about it.”  When schools get sued over bullying, the accusation is that school officials knew what was happening and turned a blind eye to it.  The legal terminology is “deliberate indifference.” 

So it’s a good idea to emphasize in staff training that this is a phrase that should not be uttered.  If you do that, I can predict that more than a few in your audience will have a thought bubble above their heads along these lines: “Yeah, ok, I won’t say it. But it’s true.” 

So how do you handle that? 

I suggest punctuation.  Where there is a period, try subbing a comma for it. Thus the statement becomes “Boys will be boys, but in this school we’re making an intentional effort to teach our boys what authentic masculinity looks like.”

Tomorrow we’ll close out this week with a few more substitutionary commas.

DAWG BONE: TOXIC MASCULINITY BAD.  AUTHENTIC MASCULINITY GOOD.

Tomorrow: Commas to the rescue!

Our law firm has produced an Anti-Bullying toolkit that school administrators might want to take a look at. The Kit includes sample letters, investigation guidelines, a six-step analysis to determine if the conduct fits the definition of bullying, a sample “stay away” agreement and other helpful information.

Go to www.walshgallegos.com, or call one of the lawyers in the firm for more information. It’s good stuff.

DAWG BONE: ANTI-BULLYING TOOLKIT CAN HELP YOU.

Tomorrow: More about bullying.

The Toolbox is our firm’s training program regarding serving students with disabilities who present challenging behaviors.  We offer ten “tools” that are available that should lead to serving the student effectively, while maintaining safety for all.  One of the more difficult tools to use is Tool #3—An Educational Change of Placement Without Parent Approval.

To make a change of placement over parental objection requires the school to justify the move before a special education hearing officer. I recently came across a case that nicely illustrates how to do that.  Testimony from multiple educators demonstrated 1) that the school had made a good faith effort to serve the student in a less restrictive setting; 2) that it was not working well; and 3) that the student would be better served in a more restrictive setting.  Those are the three things the school has to prove.  Note the court’s reference to “multiple educators.” The staff was united on this. 

The parent challenged the move, asserting that a move to an MRE (More Restrictive Environment) was not called for.  But applying the Daniel R.R. test for an LRE/MRE analysis, the court ruled in favor of the district. The school made one mistake.  It failed to provide the parents with a Prior Written Notice informing them of the change.  However, the court determined that this was a  procedural error that did not cause any harm. The parents knew and understood what was happening. 

Tool #3 should be used rarely, and only with full support from the teaching staff and after a legal review.  But as this case shows, it can work. 

The case of Clasen v. Unified School District Sedgwick County Area Educational Services Interlocal Cooperative was decided by the U.S. District Court for Kansas on August 27, 2019.  We found it at Special Ed Connection at 75 IDELR 5.

DAWG BONE: CHANGING PLACEMENT OVER PARENTAL OBJECTION REQUIRES A UNITED STAFF.

Tomorrow: We move from Toolbox to Toolkit!

Every time I speak to assistant principals they tell me how swamped they are with reports of bullying.  I’m told this often comes up when the A.P. contacts a parent about some completely unrelated disciplinary situation. The parent responds with “Well….I know she shouldn’t have done that, but you know they have been bullying her for the past six months.”  This is often the first time the bullying has been reported. 

It’s a good thing that we have gotten serious about eliminating bullying from our schools.  But not every playground fight is bullying.  One of the challenges for school administrators who are charged with investigating bullying allegations is explaining the difference between bullying and other types of misconduct. 

Our legal definition of bullying includes four components. There has to be 1) action; 2) effect; 3) severity; and 3) motivation.  When there is a fight on the playground you may have action and effect, but you don’t necessarily have the severity or the motivation that signifies bullying. 

The definition is in Section 37.0832 of the Texas Education Code.  It defines “action” to include physical, verbal, written or electronic communication. 

It defines the effect as causing physical harm, property damage, reasonable fear of these things, or a major disruption of school or a classroom, or an infringement on the rights of the target of the action.

Severity is incorporated into the definition with words like “severe, persistent or pervasive” such that there is an “intimidating, threatening or abusive educational environment.”  The statute tells us that bullying could occur through a “pattern of acts” but if it is a single act it is bullying only if it is “significant.”  All of this indicates that minor incidents do not amount to bullying.

As for motivation, the statute requires a finding that the bullying “exploits an imbalance of power.”  If there is no exploitation of an imbalance of power, there is no bullying.

Sometimes you have two students going at each other, both verbally and physically, but there is no imbalance of power to exploit. That may be a violation of your code of conduct, but it’s not bullying. 

It’s challenging for A.P.s to have to explain to parents why the incident that they think of as “bullying” may not be labeled as such by school officials.  But remember, just because you’ve concluded that the action did not justify the B label does not mean that you are condoning it.  Minor incidents that do not meet the statutory definition need to be addressed.  The best way to keep things from becoming “severe, persistent or pervasive” is to step up and take action on the minor things. 

DAWG BONE:  IF THERE IS NO IMBALANCE OF POWER TO EXPLOIT, IT CAN’T BE BULLYING.

Tomorrow: Toolbox Tuesday!!