Here’s an interesting and insightful observation I picked up from a superintendent recently who explained why it was more difficult to be a principal than a superintendent. He noted that “for principals, it’s gameday every day.  For superintendents, it’s gameday once a month.”

Good observation! I also liked his description of the monthly school board meeting: “my monthly enema.”

DAWG BONE: WE’LL JUST LEAVE THAT RIGHT HERE WITH NO FURTHER COMMENT.

Whether the Horns beat OU or not, the Dawg will be back at his post on Monday.

Chapter 37 of the Texas Education Code describes several offenses as “mandatory” DAEP offenses. Thus a student who engages in one of those offenses must be assigned, at least for a while, to DAEP.

But in the law, words do not always mean what they mean in the dictionary.  The term “mandatory” in Chapter 37 is misleading. 

The first reason for that is due to federal law regarding special education. Nothing is “mandatory” in the discipline of a student with a disability.  If the student commits an offense that calls for a mandatory assignment to the DAEP, this is what the IDEA would call a “change of placement.” That means the ARDC must make a “manifestation determination.”   This is a formal process by which the ARDC determines if the misconduct was caused by the disability, or by the school’s failure to implement the student’s IEP. If the ARDC concludes that the behavior was a manifestation of disability, the student cannot be assigned to DAEP unless the behavior fits the “special circumstances” provision—drugs, weapons, or the infliction of serious bodily injury.

Then there is a state law, which now requires campus administrators to consider six factors before deciding on a disciplinary action. Importantly, the law says that the six factors must be considered “regardless of whether the decision concerns a mandatory or discretionary action.”   The factors are: 1) self-defense; 2) intent; 3) disciplinary history of the student; 4) disability that impairs the student’s ability to understand the wrongfulness of the conduct; 5) homelessness; and 6) foster care.

So campus administrators should think twice before describing a disciplinary infraction as “mandatory” and they should never use the term “automatic.” The only thing automatic in life is that your AC will go on the fritz in July or August.  Nothing is automatic in Chapter 37.

DAWG BONE: MANDATORY DOES NOT ALWAYS MEAN MANDATORY.

Tomorrow: What is the school board meeting like for the superintendent?

Have any parents brought a “seizure management and treatment plan” to the school?  A bill passed by the legislature this year authorizes parents to develop such a plan in conjunction with the treating physician.  Such a plan will 1) identify the health care services the student may receive at school or school activities; 2) evaluate the student’s ability to manage, and the level of the student’s understanding of the seizures; and 3) be signed by parent and doctor.

This new law, HB 684, will be codified at Texas Education Code 38.032 and .033.  The new law includes language designed to ease the anxieties of school officials when treating a student’s seizures. It says that the care of a student with a seizure disorder as per a treatment plan is “incident to or within the scope of the duties of the employee’s position of employment and involves the exercise of judgment or discretion.”  That language is borrowed from the statute that provides immunity from liability for school officials.

So look for these plans, and online training that will be required for a school nurse as well as any other employee “whose duties at the school include regular contact with students.” That’s just about everybody, isn’t it?

DAWG BONE: WE ARE ONE OF ONLY FOUR STATES WITH A LAW LIKE THIS. GOOD ON TEXAS!

Tomorrow: The misleading word “mandatory.”

When our firm presents The Toolbox we include a laminated card that we call the “Thinking Flow Chart.”  I tried hard to develop one of those nifty looking charts with diamonds, squares, circles and arrows demonstrating the linear process of determining how to handle a student discipline issue.  After hours of effort, I gave up. The backup plan is the Thinking Flow Chart, which guides administrators through a logical and sequential thought process. 

It starts with simple things that should be considered right off the bat.  Is this the type of conduct for which we normally call in law enforcement?  If so, use Tool #10.  Is this a “special circumstances” case?  If so, use Tool #5. 

No more spoilers!! If you are interested in the TFC and the Toolbox, let me hear from you. Have Toolbox, Will Travel.

DAWG BONE:  STILL WISH I COULD COME UP WITH ONE OF THOSE CHARTS…IN COLOR.

Tomorrow: Seizure Management and Treatment.

Thomas Jefferson once proposed what was considered a radical plan for education.  At the time, there was very little public education. Parents who could afford to do so would put their children in private schools or hire tutors.  So Jefferson’s plan to offer a free education to selected students was radical. 

The plan was very limited.  There were 20 parts to the Commonwealth of Virginia at the time, and Jefferson proposed a free ride for one “promising scholar” from each.  So 20 students—only white boys need apply—would be educated at public expense. 

What is most striking about the plan from the perspective of the 21^st Century is Jefferson’s colorful turn of phrase.  As you know, the man was a world class wordsmith.  Thus it is noteworthy that he said that this plan would enable Virginia to “rake from the rubbish” 20 promising scholars.

Would you like to see your district adopt that as a mission statement?  RAKING THEM FROM THE RUBBISH, DAY BY DAY!

I didn’t think so.

DAWG BONE: LEAST YOUR MISSION STATEMENT WOULD BE MEMORABLE!

Tomorrow: Toolbox Tuesday!!

We’ve spent all of this week on a single case.  Decisions from the 5^th Circuit create binding legal precedent for us in Texas, and thus they are particularly important.  Before we conclude the discussion, I want to make an observation that is strictly my own.

We are over legalizing education.  It would be nice if federal judges recognized that classroom teachers need to have the ability to control the classroom, just as much as the judge needs the ability to control the courtroom.   The ability to control requires the exercise of discretion.  This decision turns, in part, on the use of very short cool down periods that were given to a highly disruptive student at teacher discretion.  According to the court, the IEP called for such “cool downs.” But because the word “time out” did not appear in the IEP, the judges deemed the use of this very common disciplinary tool to be a violation of the student’s IEP.  Sharp lawyers, carefully parsing every word in our regulations, convinced the court that the teachers were using a procedure that had to be authorized as “time out” by the IEP.   

Well, I’m a lawyer and I can see how that argument was made, and why it worked.  But I can also see what’s going on here.  Legal formalities and technicalities become more important than results.  In the name of upholding the law, judges clip the wings of educators who struggle to find the formula that will work with our most challenging students. 

It sounds like nothing worked for the student in this case.  The school shortened the boy’s day near the end of the year, and one staff member noted that they were trying to “survive” to the end of the year.  The student’s parents end up placing him in an out-of-state residential facility.  In a situation like that, our special education system goes to fault finding, which plays into the wheelhouse of the legal profession. 

I don’t know why O.W. did not have a successful experience in 5^th grade in Spring Branch.  But I’d be willing to bet that it wasn’t because his IEP did not use the term “time out” to describe the five to ten minute cool downs that his teachers ordered. 

Special education is mired in process rather than results.  In this case, for example, if the court had simply looked at the results, and concluded that the boy did not make any educational progress, the decision would be easier to abide.  Instead, our detailed regulations force the parties to focus on petty issues.  Thus we have a high level court trying to figure out how far a desk has to be physically separated from the rest of the class to be “separated” as that term is used in the Texas Administrative Code.   That’s a silly thing to be arguing about.  Lawyers thrive on stuff like that. It doesn’t help educators much.  It doesn’t help parents. It doesn’t help kids.

Who are we trying to serve?

The case is Spring Branch ISD v. O.W., decided by the 5^th Circuit on September 16, 2019.  We found it at 2019 WL 4401142.

DAWG BONE: DESPITE ALL THAT, LET’S REMEMBER THAT THE MAIN THING IS TO KEEP THE MAIN THING THE MAIN THING. THE MAIN THING IS EDUCATIONAL PROGRESS.

Federal regulations permit parents and schools to modify a student’s IEP without the formality of an ARDC meeting, if there is a “written document” to that effect.  34 CFR 300.324(a)(4).   In its recent decision, the 5^th Circuit cites one modification that was properly done, and one that was not. 

On May 5, 2015, the school called in the cops to deal with a student who had “repeatedly struck his teacher with a closed fist and then charged at her.”  The next day, the school and the mother “without consultation with [the student’s] ARDC, agreed in writing that [the student’s] school day should begin at 9 a.m. instead of the normal 7:30 a.m.”

This shortened the student’s school day by 90 minutes, but the court was OK with it because the “formal written document” that the school and mother signed satisfied the requirements of the law.

Twelve days later the parties agreed that the school day for the remaining 11 days of the school year would be shortened to a mere three hours.  Note: the court’s decision says that the mother “agreed” to this.  However, there was no “formal written document” in place. The only “written” documentation the school could cite was an email from one staff member to another which noted that they had discussed this with the mother, and that a “brief ARD” would be necessary. That ARD was never held.  There was no written confirmation of the mother’s agreement. The court held that this was an “actionable violation” of the IEP.

That email said that this shortened day was needed in order to “survive the last 11 days of school.”  Reading this court decision, even years after these events, the weariness and frustration of school staff is evident. It’s also understandable. This was a challenging student, the year was almost over and everyone was exhausted.  In fact, at the suggestion of an outside counselor the boy was pulled out of school altogether for the final three days. So they did not “survive” the last 11 days. 

Of course emotional exhaustion is not going to factor into a court’s decision. The regulations require a formal written document. There wasn’t one. 

The case is Spring Branch ISD v. O.W., decided by the 5^th Circuit on September 16, 2019.  We found it at 2019 WL 4401142.

DAWG BONE: CHANGES TO AN IEP REQUIRE AN ARDC MEETING, OR A WRITTEN  AGREEMENT BETWEEN SCHOOL AND PARENTS.  NO EXCEPTIONS IN HARD CASES.

Tomorrow: Some opinions.

“Thus, an IEP or BIP which does not authorize the recurrent use of time-outs effectively prohibits its use.” 

Let that sink in.  This is a Key Quote from the 5^th Circuit in a case decided two weeks ago.  The upshot: you can’t use “time out” on a “recurrent” basis unless the IEP or BIP says that you can. 

The student in this case was frequently directed to a “take-desk.” Teachers would do this after redirection and warnings failed to deter the student from inappropriate behavior. The “take-desk” was in the classroom.  The boy would be sent there for five or ten minutes, where he would have the opportunity to “pursue replacement behavior, such as drawing.”

The school district argued that this was not “time out.”  The desk was in the same classroom—he was not sent elsewhere.  Moreover, he could engage in “preferred activities.” 

The court cited the very ambiguous definition of “time out” in our Administrative Code and concluded that the district was using “time out,” even though it didn’t call it that.  Key Quote:

While the School District is correct the desk was in O.W.s classroom and that O.W. was allowed to partake in preferred activities, nothing in the administrative definition of “time out” suggests the definition is limited to placement in a separate room or is inapplicable when the student is allowed certain activities.  Section 89.1052(b) only requires a “separation from other students for a limited period….”

So if the teacher sends the student to a desk, or a comfy beanbag chair that is in the same classroom but physically “separated” from the rest of the class, it’s a “time out.”  If this is done “recurrently” it has to be authorized by the IEP or BIP.  If it’s done recurrently and not authorized in the IEP or BIP, the district may be guilty of failing to implement the IEP.

That’s what happened according to the 5^th Circuit in the case of Spring Branch ISD v. O.W. 

This case has important implications.  It would be a good idea for principals and special education directors to survey teachers and find out if they are using any techniques, regardless of what the teachers call them, that might be characterized as “time out.”  It might also be a good idea to routinely authorize “time out” in IEPs or BIPs, particularly BIPs. If a student needs a behavior plan some short term “separation” from other students might be appropriate.  I hear a lot of references to “cooling down” spaces.  You might call it cooling down, but the 5^th Circuit might call it “time out” and examine the IEP to see if it is authorized.

The case is Spring Branch ISD v. O.W., decided by the 5^th Circuit on September 16, 2019.  We found it at 2019 WL 4401142.

DAWG BONE: IT WOULD BE NICE TO HAVE A CLEARER DEFINITION OF “SEPARATION.”

Tomorrow: More on the Spring Branch case.

I heaved a sigh of relief when I read what the 5^th Circuit said about the use of physical restraint and the intervention of law enforcement when dealing with students with disabilities.   In the Toolbox Training that our firm provides, we address these issues specifically.  A very recent 5^th Circuit ruling is consistent with what we have been saying. 

Let’s take up each issue. 

Issue One: Does the IEP or BIP have to “authorize” the use of physical restraint?  No.  Key Quotes:

Unlike the use of time-outs, the law contains no provision requiring that the use of physical restraints be expressly authorized by a student’s IEP. 

Therefore, so long as the School District’s use of physical restraints complied with state law, the use of restraints did not violate the IEP.

Issue Two: If the IEP/BIP calls for positive interventions, calm interactions and the avoidance of power struggles, is it a violation of the IEP when the school calls in the cops?  The 5^th Circuit said no.  Key Quote:

These strategies are not necessarily violated by a mere request for police presence, particularly to deal with a violent and escalating situation such as a student repeatedly striking a teacher and charging at her, as was the case here.

That’s the ruling in Spring Branch ISD v. O.W., decided by the 5^th Circuit on September 16, 2019.  We found it at 2019 WL 4401142.

DAWG BONE: BUT REMEMBER: PHYSICAL RESTRAINT IS OK ONLY IN AN “EMERGENCY.”

Tomorrow: Did you notice that reference to “time out”?  Tune in tomorrow.

Two weeks ago the 5^th Circuit issued an important decision with implications for general and special educators. Because of the significance of the case, and the number of key legal issues it addresses, we are going to spend all week on O.W. v. Spring Branch ISD.  Today, we take up one specific component of the Child Find responsibility.

The issue is this: once the school has notice that the student may have a disability, how long does the school have to begin the process by making a referral for testing?  We know exactly how long we have to conduct an evaluation after the parent has given consent for it—that timeline is spelled out in the law. But let’s consider what happens before that.  Suppose you have clear indications that the student may have a qualifying disability. Do we have to refer the child that day?  Within a week?   A month?  What’s the timeline?

Courts have the luxury of looking backward and pinpointing a specific date when the district was “on notice.”  In the hectic rush of day to day schooling, it’s rarely that clear.  In this case, the court concluded that the district had notice of a possible disability by October 8, 2014.  That was the date when the school held a 504 meeting, declared the student eligible for a 504 plan and began implementing a BIP (Behavior Intervention Plan). 

The school implemented that 504 plan for the rest of that fall semester, but by January 15, 2015, the school concluded that more extensive services might be needed. Thus on that date the school initiated a referral for a Full Initial Individual Evaluation (FIIE)—the first step toward determining the student eligible for an IEP.

So there is your timeline: we have “notice” of a possible need for special education on October 8^th. We refer for testing on January 15^th.  That’s 99 days.  Is that OK?

The court noted that the law did not provide a specific timeline, so we look to the standard of “reasonableness.”  How long of a delay is “reasonable”?  Courts look to their earlier decisions to decide issues like this.   Here, there were two cases that were relevant.  In Dallas ISD v. Woody the 5^th Circuit held that a delay of 89 days was reasonable.  But in Krawietz v. Galveston ISD the 5^th Circuit held that four months (120 days) was too long.  So 89 days is OK; 120 is not OK. How about 99?

The court did not base its decision on a specific number.  Instead, the overall reasonableness of the actions of the school would be the decisive factor. Here is the key holding:

Taken together, Krawietz and Woody stand for the proposition that the reasonableness of a delay is not defined by its length but by the steps taken by the district during the relevant period.  A delay is reasonable when, throughout the period between notice and referral, a district takes proactive steps to comply with its child find duty to identify, locate, and evaluate students with disabilities. Conversely, a time period is unreasonable when the district fails to take proactive steps throughout the period or ceases to take such steps.    

So what “proactive steps” did the district take from October 8^th to January 15^th?  In accordance with our state regulations, the district attempted regular behavioral interventions—specifically RtI, Response to Intervention.  The Texas Administrative Code requires schools to consider general education interventions, including RtI “prior to” making a referral for special education testing.  

The 5^th Circuit rode roughshod over that regulation, noting that RtI strategies “cannot be used to delay or deny the provision of an “cannot be used to delay or deny the provision of an [evaluation] .”  The court did not say that RtI would never be an appropriate “proactive step” but only that it should have been obvious that it wasn’t going to work in this case.  Key Quote:

The record in this case reflects that as of the October 8 notice date, the School District had attempted to engage with O.W. and his parents for the purpose of offering positive incentives and that such attempts had utterly failed to improve O.W.’s behavior. 

Thus the court concluded that “the continued use of behavioral interventions was not a proactive step toward compliance with the School District’s child find duties and that, therefore, a child find violation occurred.

This is a 5^th Circuit decision that sends a strong message.  A 504 plan is not an adequate substitute for a student who needs “specially designed instruction” under IDEA.  RtI cannot justify the delay of a referral of a student demonstrating signs of a disability under IDEA.    

The case is Spring Branch ISD v. O.W., decided by the 5^th Circuit on September 16, 2019.  We found it at 2019 WL 4401142.  More on this case tomorrow.

DAWG BONE: IT’S SAFER (LEGALLY) TO MAKE THAT IDEA REFERRAL SOONER RATHER THAN LATER.

Tomorrow: the 5^th Circuit addresses some Toolbox issues!