Section 38.030 of the Education Code now requires all school districts and open enrollment charters to “make available a protocol for school employees and volunteers to follow in the event of a traumatic injury.”  Let’s hope you don’t have to use that protocol, but it’s certainly a good idea to be ready. 

The statute also introduces new vocabulary: “bleeding control stations.” These must be “stored in easily accessible areas of the campus” as selected by the school’s safety and security committee. 

The protocol on this must also provide for instruction for our older students:

The protocol required under this section must: (4) require the district or charter school to annually offer instruction on the use of a bleeding control station from a school resource officer or other appropriate district or school personnel who has received the training…to students enrolled at the campus in grade seven or higher.

We’ve gotten some questions about this.  Must all students receive this instruction?  No. The statute says it must be “offered.”  Is this to be done as part of the regular instructional day?  The statute does not say, but it does say that it only has to be offered “annually.”  The bill required TEA to approve a course of instruction about this by October 1.  That’s done—go to TEA’s website and you will find that the Agency has approved two programs: www.bleedingcontrol.org and www.con10gency.com. 

Districts and charters have to have their protocol in place by January 1.  So get ready!

DAWG BONE: GOOD TO KNOW THAT IF I NEED A TOURNIQUET WHILE VISITING YOUR SCHOOL, YOU WILL BE READY!

The Dawg emerges from the Dawg house again on Monday.  See you then.

Phi Delta Kappan magazine has been reporting the results of its annual poll about attitudes toward public education for 51 years.  This year’s results are summarized in the September 2019 issue of the PDK magazine.

The most discouraging piece of data is that for the first time in the history of the poll a majority of teachers (55%) do not want their children to follow in their footsteps.  Half of the teachers polled said that they are seriously considering leaving the profession.  The most cited reason for this was poor pay and benefits. Surprised?  I didn’t think so.

As far as good news, 76% of parents give their child’s school a rating of A or B.  This is up from 70% last year. 

The poll results also including an interesting chart showing what is perceived to be the biggest problem facing our schools.  The answer to that question has changed over the years.

1969 to 1985:  Lack of discipline (every year except one).

1986 to 1992: drugs. 

1993 to 2001: a mixed bag of responses: discipline, drugs, gangs, lack of money.

2002 to 2019: lack of financial support.

You can access the whole thing at www.pdkpoll.org.  Interesting reading for those who care about our public schools.

DAWG BONE:  PROFESSIONAL EDUCATORS SHOULD CONSIDER SUBSCRIBING TO PDK.  GOOD STUFF. 

Tomorrow: Is your bleeding control station ready?

In October, 2016, the ARDC called for a change of placement for a 3^rd grade boy who was having some issues.  The student had autism, ADHD and a speech impairment.  He started first grade in the Learning to Learn classroom which was more restrictive than the mainstream.  He did very well in that setting. So well that the ARDC moved him to the Social Communication program for second grade. This meant most of the time would be in the mainstream classroom, a less restrictive setting than the Learning to Learn classroom.   

Second grade was also a success, and so the plan was to keep the boy in that setting for third grade. 

That’s when the problems began:

At the beginning of the school year, A.B.’s behavior took a turn for the worse.  He increasingly avoided doing his work in favor of various unproductive and sometimes disruptive activities, which ranged from going to the bathroom frequently and playing with the window blinds to flopping on the floor and screaming.  On occasions when he was disruptive, A.B. would be temporarily removed from the general-education classroom.

So the school proposed a move back to Learning to Learn, a more restrictive setting.  Parents objected and sought a due process hearing. This automatically invoked “stay put” which kept the student in the Social Communication program for the rest of the year.  Even though the parties were in litigation, the student had a good year:

During that time, with the assistance of plans put in place by the school district to address some of his struggles, A.B.’s behavior improved substantially.  By spring, he had ceased engaging in most of the misbehavior that had cropped up at the beginning of the school year.  He also continued to progress academically.

Given those fact findings, it’s not surprising that the hearing officer, the federal district court and now the 5^th Circuit all ruled in favor of the family on this one.  After all, if a student is doing well in a less restrictive setting, there is no reason to go to the more restrictive setting. The 5^th Circuit decision does not break any new legal ground, but simply affirms the basic LRE analysis that has been in place since we got Daniel R.R. v. SBOE thirty years ago.

The case is A.B. v. Clear Creek ISD, decided by the 5^th Circuit on October 10, 2019. We found it at 119 LRP 39471. 

DAWG BONE: SUCCESSFUL IN THE LRE?  DON’T MAKE A MOVE.

Tomorrow: the annual PDK poll.

On Tuesdays around here we like to emphasize our firm’s all day training program about the discipline of students with disabilities.  We call it The Toolbox because it provides ten “tools” that are available in various situations.  One of those—Tool #6—can only be used if the ARD Committee concludes that a student’s behavior is NOT a manifestation of the student’s disability.  Tool #6 is a Disciplinary Change of Placement. As that name implies, this is a punitive measure. The student continues to receive appropriate educational services, but in a different and stricter setting.  This is the consequence that is applied to non-disabled students who commit serious violations of the Code of Conduct. If a student with a disability does the same type of thing, and it’s not caused by the disability, the consequence should be the same. 

But what do you do when the members of the ARDC are not in agreement?  For today, let’s just consider internal disagreements.  There are times when all of the school staff members of the Committee are in agreement and the parent dissents. But today we want to talk about disagreements among the school staff.  Here are a few things to think about.

 1. This is to be expected.  The law sets up ARD Committees with a variety of members so that different perspectives can be shared.  The teacher may view the child differently than the assistant principal does. The school psych does not have the day-to-day experience with the child that the teacher does, but she does have more expertise and training about certain issues. So don’t be surprised or alarmed when people see things differently. 

2. You can hold a staffing to discuss this situation in advance of the ARDC meeting.   The federal regulations guarantee that parents have the right to participate in “meetings” about the IEP and placement of the child.  That same regulation goes on to say that this right does not extend to “preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.”  34 CFR 300.501(b)(3). 

3. You should give more weight to the input of the person with the most expertise in the specific area you are dealing with.   On October 30^th in the Daily Dawg we told you about a case where the specific issue was eligibility.  A private psychologist said that the student should be eligible because she had an emotional disturbance.  The ARDC disagreed, largely based on teacher input as to “educational need.” The court agreed with the school. Notice: if you are talking about “educational need” the insights of classroom teachers with personal experience with the student should carry more weight than those of a qualified school psychologist.  That is not the case when you are making a manifestation determination about a student who has already been declared eligible due to an emotional disturbance.  When you are focusing on whether or not a behavior is a manifestation of a disability, particularly with a student who has an emotional disturbance, the school psych will generally have more expertise than a teacher or administrator. Everyone’s input counts, but some more than others.

4. Ultimately, the school does have to speak with a united voice at an ARDC meeting, and that voice should come from the person designated as the representative of the district.  However, that person should not dictate the school’s position, but rather, give voice to it after careful consideration of all of the input.

DAWG BONE: PROVIDING LEADERSHIP AT THE ARDC IS NO SIMPLE TASK.

Tomorrow: 5^th Circuit on Least Restrictive Environment.

The answer to that question is no. The teacher did not do that.  That may be why the U.S. Supreme Court refused to take up the case of Wood v. Arnold, thus leaving in effect the decision of the 4^th Circuit Court of Appeals. If the teacher had really required a student to express personal belief in Islam (or any other religion) SCOTUS probably would have taken up the matter. But that’s not at all what happened.

What happened was that an 11^th grade world history class spent a week on “The Muslim World.”  The curriculum called for a study of the “formation of Middle Eastern empires including the basic concepts of the Islamic faith and how it along with politics, culture, economics, and geography contributed to the development of those empires.” 

There was one worksheet designed to test the student’s understanding of the Five Pillars of Islam.   The worksheet said:

There is no god but _____ and Muhammad is the _______________. 

The correct answers to be filled in were “Allah” and “messenger.”  The plaintiffs argued that this worksheet effectively required the student to profess belief in Islam.

Nope.  The worksheet was simply designed to give the student the opportunity to demonstrate that she had studied the material and knew a little something about one of the world’s major religions. 

The 4^th Circuit wisely pointed out how dangerous it is to take single statements out of context, particularly in a school curriculum:

Manifestly, if courts were to find an Establishment Clause violation every time a student or parent thought that a single statement by a teacher either advanced or disapproved of a religion, instruction in our public schools “would be reduced to the lowest common denominator.”  Such a focus on isolated statements effectively would transform each student, parent, and by extension, the courts into de facto “curriculum review committees” monitoring every sentence for a constitutional violation.

High school graduates should know something about our major religions and how they have influenced our society and culture.  How can you understand today’s news without some foundational understanding of religion?  How can you understand history?  The civil rights movement in our country?  Martin Luther King? 

This lawsuit was promoting ignorance in the guise of upholding our constitutional values.  This lawsuit was not only against the school district where the world history class took place—it also named as defendants the principal and assistant principal.  What is that about?  The suit was supported by a non-profit advocacy group: The Thomas More Society.   Those lawyers should know better.  This case goes on the Sheesh-O-Meter.  The case of Wood v. Arnold was decided by the 4^th Circuit on February 11, 2019. We found it at 915 F.3d 308. 

DAWG BONE: TEACHING ABOUT RELIGION IS NOT TEACHING BELIEF IN RELIGION.

Tomorrow: Toolbox Tuesday!! Whose voice counts the most in an MDR?

I think I’ll just quote from the Petition filed in an SBEC disciplinary case:

The administration found seven empty beer cans, a gallon jug filled halfway with urine, and two coffee mugs that smelled of liquor and beer in a storage cabinet in Respondent’s classroom.  That same day, Respondent was placed on administrative leave. 

Respondent confirmed that the empty beer cans and urine found in Respondent’s classroom belonged to him.  Respondent also stated that there was urine in a milk jug in his classroom because he would urinate in the jug throughout the day and then empty it at the end of the day.  Respondent also stated that he brought two full beer cans with him that morning and…he stated that it had become habitual for him to bring two beers to school every day.

The man is no longer working for a Texas school district, has had his certificate suspended, and is a strong candidate for the Do Not Hire Registry the TEA is developing.

This happened somewhere in Texas. Let’s just leave it at that, and hope that this guy gets some benefit from the substance abuse treatment program he has been ordered to complete. 

DAWG BONE: SCHOOL LAW DOES NOT LACK FOR COLORFUL STORIES.

See you next week, Readers!

I guess you know that it’s Halloween! No doubt this is one of the more exciting and/or challenging days of the year for school administrators.  It’s also a good time to remind you of a provision in the Education Code about parental rights.  Section 26.010(a) of the Texas Education Code says:

A parent is entitled to remove the parent’s child temporarily from a class or other school activity that conflicts with the parent’s religious or moral beliefs if the parent presents or delivers to the teacher of the parent’s child a written statement authorizing the removal of the child from the class or other school activity. 

The statute goes on to say that this parental authority cannot be used to avoid a test or to prevent the child from taking a subject for the entire semester.  And the student must satisfy grade level or graduation requirements of the school. 

I always think about this part of the Education Code on October 31^st.  In my career, that’s the first instance I can recall of parents seeking an exemption from school activities.  Those objections were usually based on a religious view, and they pre-dated the enactment of Education Code 26.010.  But since 26.010 has been in place, it’s been clear that the right of parental exemption applies to any school activity, and the objection does not have to be based on a religious point of view. Thus we have parents who will object to the dissection of animals, or the assignment of particular reading material. 

So Happy Halloween!!

DAWG BONE: MAY THE GHOSTS AND GOBLINS BE FRIENDLY TO YOU.

Tomorrow: One for the Sheesh-O-Meter.

In a lawsuit involving a Texas school district the parents produced a private psychologist who declared that the student qualified for special education services because she had an emotional disturbance.  Two private counselors agreed with that.  Despite all of that professional input, the student’s ARD Committee decided that she did not qualify for special education services.   The dispute ended up in a due process hearing, and then an appeal to federal court.  Both the hearing officer and the federal judge agreed with the school district—the student was not eligible.

The definition of an “emotional disturbance” in our federal special education law requires that the student demonstrate at least one of five characteristics:

1. An inability to learn that cannot be explained by intellectual, sensory, or health factors;
2. An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
3. Inappropriate types of behavior or feelings under normal circumstances;
4. A general pervasive mood of unhappiness or depression;
5. A tendency to develop physical symptoms or fears associated with personal or school problems.

That’s pretty ambiguous.  What are “inappropriate types of behavior or feelings”?  What are “normal circumstances”? 

Fortunately, there is more to the definition.  The student must demonstrate at least one of these characteristics “over a long period of time and to a marked degree.”  OK—so a little mid-winter slump will not do it.   A short blue period after the breakup with the girlfriend is not sufficient.

On top of that is the part of the definition that ties this into school performance. The student must demonstrate one of the five characteristics, for a long time, to a marked degree “that adversely affects a child’s educational performance.”  34 CFR 300.8(c)(4)(i).

That was the sticking point in this case.  The court did not deny that the student had some emotional issues, but also noted that she:

consistently makes A’s and B’s, maintains friendships, and is liked by her teachers.  Accordingly, her educational performance has not been adversely affected by the characteristics of her emotional disturbance, even the ones allegedly only seen at home.  

This is one of the reasons that eligibility is determined by the entire ARDC—not just a psychologist.  If a student receives psychological help in a private setting, the diagnosis of the student as having an “emotional disturbance” would be done by the psychologist.  But for purposes of eligibility under IDEA, the input of teachers is critical.  If the student is doing well in school, the student does not meet eligibility criteria. 

The case is D.H.H. v. Kirbyville CISD, decided by the U.S. District Court for the Eastern District of Texas on August 27, 2019.  We found the court’s decision at 75 IDELR 4, and the recommendation of the magistrate at 119 LRP 33254.

DAWG BONE: ELIGIBILITY IS DETERMINED BY THE ENTIRE ARDC—NOT A SINGLE INDIVIDUAL.

Tomorrow: You know what tomorrow is, right?

In the Toolbox Training, we talk about how to count to ten.  Of course this is “elementary” as Watson might say to Holmes, but in special education law, counting to ten is not so easy.  Counting to ten is important because the school administrator has unilateral authority to remove a student from the placement called for in the IEP for only ten days during an entire school year. We call that ten-day period The FAPE-Free Zone, because the school is not obligated to provide educational services on those days.  So we need to know what days count, which is where bus suspensions come in.

Suppose that Jessica is suspended from the bus for three days due to her misconduct on the bus.  She is still welcome at the school, but the parents will have to provide the transportation. And they do.  Jessica does not miss a minute of instruction. Do we count the three days? 

It depends on whether or not Jessica is receiving transportation as a “related service” called for in her IEP.  If her IEP calls for transportation as a related service, and the school does not provide it, then the school is not fully providing the FAPE that Jessica is entitled to. So those would be “FAPE-Free” days, and they would count toward the ten day limit, even though she got to school anyway.  If, on the other hand, her IEP does not call for special transportation, these days would not count because transportation was not part of FAPE for her.  So counting a day does not always depend on whether or not the student was at school. It’s about whether or not the school fulfilled its obligations under the IEP.

The Office of Special Education Programs affirmed this view in Letter to Sarzynski in 2012. This is one of the legal authorities we cite in the Toolbox book, which is provided to each Toolbox participant.

DAWG BONE:   LET’S KEEP THOSE BUSES ROLLING!

Tomorrow: Why classroom teachers have a say in determining if a student has an “emotional disturbance.”

Dwight named his wife, Alice, as the beneficiary of his TRS benefits in the event of his death.    Then they got divorced.  Dwight never changed the designation of his beneficiary.  Then Dwight died.   When Alice was denied the TRS benefits, she sued. 

TRS denied the benefits to Alice because of a law we have that addresses this situation.  It says that the ex-spouse does not get TRS benefits if the designation occurred while they were married, they later divorced, and TRS receives a certified copy of the divorce decree.  In other words, we have an assumption built into the law that people don’t want the ex-spouse to get their death benefits. Of course a person can override that assumption by designating the ex-spouse as beneficiary after the divorce.  No doubt some folks do that, but Dwight did not.

The very determined Alice appealed the decision to the TRS Manager of Benefits Processing, the Chief Benefits Officer, and the Deputy Director.  Denied at every stage. Then she took her appeal to an Administrative Law Judge with the State Office of Administrative Hearings. Denied.  Then it went to the TRS Board of Trustees. Nope.  Then she sued in Travis County, and lost.  Then she appealed to the Court of Appeals. No luck there either.

The point of the story today is to remind you to update your TRS info!  Since Dwight never did that, his benefits “would be issued in accordance with section 824.103 of the Texas Government Code.” Do you want some obscure section of the Government Code to decide who gets your money?  Or would you rather make that decision yourself? 

Contact TRS. Update that beneficiary designation.

The case is Jones v. TRS, decided by the Texas Court of Appeals in Austin on September 18, 2019.

DAWG BONE:  OR JUST DON’T GET DIVORCED.

Tomorrow: Toolbox Tuesday!!