Imagine this: one set of parents (the Pontrellis) is so upset about the behavior of a child in your school (J.W.) that they go to court and get a TRO (Temporary Restraining Order) to remove J.W. from your school.  Then the parents of J.W. sue the school over this. 

That’s what happened this year in Seattle.  It all came after a stormy year of complaints by the Pontrellis, that their daughter was bullied by J.W.  Some of their complaints were substantiated by the school and some were not.  Dissatisfied with the school’s response, the Pontrellis went to court and found a judge who signed off on the TRO.  Then the other family sued the district. 

The court was sympathetic to the school district caught in the middle of this tug of war:

Given the court order that J.W. be excluded, the District did not act in bad faith or with deliberate indifference in following that order.  Moreover, the record contains numerous indications that the District attempted to challenge the exclusion or lessen the impact on J.W.’s education. The District provided tutoring for J.W. during this time, and provided multiple District witnesses to testify on J.W.’s behalf in further TRO hearings.

The Pontrellis were not parties to this suit, but the court had a few things to say about them:

As for the Pontrellis themselves, Plaintiff fails to cite authority imposing liability on school districts for the actions of other students’ parents. 

There is also little indication the Pontrellis’ actions, while shockingly insensitive to J.W.’s disability, were directed at J.W. because of his disability.  There is little evidence that the District encouraged in any way the Pontrellis unfortunate and misguided attempt to obtain a restraining order against J.W. excluding him from school.

It may have been “unfortunate and misguided” but a local judge issued that TRO at the request of the Pontrellis and then extended it for a further period of time. The original TRO was issued on February 7, 2014; it was re-issued on February 18 and was quashed after a hearing on February 25^th.  And that’s the case of Wong v. Seattle School District, decided by the federal district court for the Western District of Washington on June 7, 2019.  We found it at 74 IDELR 155 (W.D. Wash. 2019).

DAWG BONE: SHEESH.

Enjoy your weekend, Readers. The Dawg barks again on Monday.

We continue to caution you about the high risk of litigation involving anyone in your district named “Doe.”  The latest example happened in Humble ISD where a “John Doe” filed suit against the district alleging that his assignment to DAEP, which he characterized as “School Jail” violated his constitutional rights. 

It didn’t.  The court noted that the 5^th Circuit had long ago established that an assignment to DAEP does not deprive the student of his right to an education.  Moreover, when you allege sex discrimination in violation of Title IX you have to say more than “this was sex discrimination in violation of Title IX.” Courts describe that as a “conclusory” allegation, rather than a factual one. 

Case dismissed.  Doe v. Humble ISD, decided by the Southern District of Texas on July 22, 2019. We found it at 2019 WL 3288385. 

DAWG BONE:  THE DOEs: AMERICA’S MOST LITIGIOUS FAMILY

Tomorrow: A case for the Sheesh-O-Meter.

I have had dual professional citizenship for a long time.  Trained and licensed as a lawyer, but I spend all my time with educators.  As a result of this, I sometimes notice the distinctions between the language that fits the school building vs. the language that fits the courtroom. 

One common illustration of this is the term we read in many court cases—“deliberate indifference.”  Courts frequently dismiss cases brought against school districts because the school was not “deliberately indifferent.” 

Well whoop-dee-doo.  The fact that educators were not deliberately indifferent to a student in need is not exactly inspiring.  You will never see this phrase in a school mission statement.  The principal would be wise not to tell the parents at “back to school night” that our goal is not to be “deliberately indifferent” to student welfare.   “Deliberately indifferent” is a phrase that should be used by your lawyer, and only when necessary.  It’s a low bar, but one that is sufficient in litigation.  So your lawyer may very well acknowledge mistakes and failings by the school while urging the court to rule in its favor because the school was not “deliberately indifferent.”

The 1^st Circuit recently issued a ruling that highlights a phrase that works the other way—it  should be used in the school building, but not so much in the courtroom.  The context was a special education lawsuit.  The parents argued that the court should determine if a student’s IEP is “appropriately ambitious.”  Does the IEP contain “challenging objectives”? 

Those phrases come from Justice Roberts’s opinion in Endrew F. v. Douglas County.  They challenge schools to develop an IEP for each child that sets the bar high…for that child.  However, the 1^st Circuit said that “appropriately ambitious” is not the standard that the courts should apply.  Instead, the FAPE standard requires courts to ask “whether the IEP was reasonably calculated to confer a meaningful educational benefit in light of the child’s circumstances.” Key Quote:

On the parents’ reading, after Endrew F. courts must ask not only whether an IEP offers meaningful educational progress, but also, separately, whether the IEP’s objectives are ambitious and challenging.

The parents misread Endrew F., which did not construe the FAPE standard as two independent tests. 

So the FAPE standard does not incorporate Justice Roberts’s aspirational language.  But the leader at an ARD meeting should.  When sitting at the table with teachers and parents, it would be wise to use “appropriately ambitious” and “challenging objectives.” When the team considers annual goals for the child, the leader should ask the members: “do you think this goal is appropriately ambitious for this child?  Are the objectives we aim for challenging for this student?”  Those high standards from the SCOTUS opinion should make their way right into the school building.  But when that IEP gets challenged in court, your lawyer will not be required to show that the IEP was “appropriately ambitious,” but only that it was calculated to confer benefit that would be meaningful for this child.

The case is C.D. v. Natick Public School District, decided by the 1^st Circuit on May 22, 2019.  We found it at 74 IDELR 121.

DAWG BONE: DIFFERENT PROFESSIONS…DIFFERENT LANGUAGE.

Tomorrow: Has the Doe family moved into your district?

My annual Back to School tour kicks off this morning behind the Pine Cone Curtain at Region 7 in Kilgore. Hello East Texas!!

Meanwhile, it’s Toolbox Tuesday.  The Toolbox is our firm’s one day training program regarding disciplinary options with students who are in your special education program.  To make this complex area of the law more understandable we have broken down the options that schools have to ten “tools.”  We give each of them a name and describe when and how it can be used.

Tool #4 is the tool that is used the least.  Tool #4 involves the school seeking an “expedited hearing” asking a hearing officer or judge to change a student’s placement due to fears of imminent injury.  It’s a pretty desperate move by the school when none of the other tools are available. 

Consider, for example, that if a student inflicts a “serious bodily injury” on someone else at school, the principal can order the immediate removal of that student to an “interim alternative educational setting.”  We call this Tool #5 and it does not require the approval of a hearing officer or judge. It’s a tool that the principal can use unilaterally.  Tool #5 is also available if the student possesses or uses a dangerous weapon or a controlled substance at school,

Furthermore, the school can always seek a change of placement that the parent agrees to.  When that happens, the school is using Tool #2—a Change of Placement with Parental Agreement. 

The school can seek a disciplinary change of placement without parental agreement if the student has violated the Code of Conduct and the ARD Committee concludes that the behavior was not a manifestation of disability. That’s Tool #6—and if that’s the situation, it’s the parent who must seek an “expedited hearing.”

So that leaves us with Tool #4.  It’s your go-to tool only when the others are not available.  You have serious student misconduct but 1) it is a manifestation of disability, so Tool #6 is unavailable; 2) the parent will not agree to a change of placement, so Tool #2 is not available; and 3) it does not involve drugs, weapons or a serious bodily injury—so Tool #5 is not available.  

A school in Ohio used Tool #4 with a second grade student. The court summarized the behavior like this:

The school documented C.L.’s incidences beginning in August 2018 that included: regularly leaving the school building; kicking and punching staff members, throwing objects in the classroom and at staff members; threatening a staff member with a large piece of wood and telling the staff member that he was going to hurt him and kill him; standing on desks, tables, and other furniture; and hitting his head against a window.

Based on all of that, the court held that the district had met its burden of proving that maintaining the current placement was substantially likely to result in injury. 

Interested in a Toolbox training?  Let me hear from you!

The case is N.L. v. Springboro Community City School District, decided by the federal district court for the Southern District of Ohio on May 26, 2019.  We found it at 74 IDELR 161 (S.D. Ohio 2019).

DAWG BONE: WE DO NOT ALWAYS REQUEST AN EXPEDITED HEARING, BUT WHEN WE DO, WE USE TOOL #4.

Tomorrow: Different professions, different vocabulary.

Consider this situation: you are a school administrator in a large high school when something bizarre happens.  A boy plummets over a rail from the second floor. Fortunately (for the boy) his fall was broken by a teacher, and the boy was not seriously injured.  The subsequent litigation does not tell us if the teacher was injured, if she/he sought assault leave, or if this was just chalked up to “other duties as assigned.” 

Why did the boy go over the rail?  The court described it as “an apparent suicide attempt.”  The girl he was interested in was watching. 

Oh my. Now we have two students in distress.  A boy who has (maybe) taken desperate steps to win a girl’s heart. A girl who is getting the kind of attention she does not want.  At a time when educators are being encouraged to be more attentive to student mental health issues, this scenario provides a textbook case: what would you do?

The case ended up in litigation, advancing to the 5^th Circuit. The court noted its reluctance to second guess how school officials handled this messy adolescent drama: 

…second-guessing would be especially inappropriate here as the school faced the difficult task of adopting measures that would both prevent future harassment of [the girl] and address the serious mental health issues that [the boy] was facing.  

It was the girl who filed the Title IX lawsuit, blaming the district for the fact that she felt “deeply uncomfortable and unsafe at school” because of the “harassment” she suffered at the hands of the boy.  The boy, “upset about [the girl] rejecting his romantic advances, engaged in repeated conduct” culminating in his lover’s leap. 

The 5^th Circuit tossed this case out. The court noted that no one who could address this problem knew about it until the boy came crashing down from the second floor.  After that happened, the school took corrective action.  The school provided a safety plan for the girl, including a security guard escort.  It modified the boy’s schedule to minimize encounters of the two students.  It created a specific plan for choir, in which both students participated. The Court:

These proactive measures show that the district was attentive to, rather than indifferent to, [the girl’s] situation once it learned about the problem.

The case is E.M. v. Austin ISD, decided by the 5^th Circuit in an unpublished opinion on May 29, 2019.  We found it at 770 Fed. Appx. 712.

DAWG BONE:  LET’S HOPE FOR A LITTLE LESS DRAMA.   

Tomorrow: Toolbox Tuesday!

When Mr. Hamilton left Socorro ISD he did so with a promise that the district would provide a “neutral reference” to prospective employers.  This reference was to be limited to his beginning and ending dates of employment, positions held, and salary.  Mr. Hamilton later sued the district, alleging that it broke that promise.

Did it? Well….we don’t know.  But we do know that the district is not immune from liability and will have to defend itself on the basis of the facts.  The district filed a Plea to the Jurisdiction, arguing that it was protected from litigation over a claim like this due to governmental immunity.  The Court of Appeals rejected that argument. 

All of this started when the principal of Slider Middle School informed Mr. Hamilton that he planned to recommend the nonrenewal of the man’s contract.  The parties entered into negotiations which led to a Separation Agreement and Release of Claims.   That’s where the district promised to provide a neutral reference. 

For his part, Mr. Hamilton promised to go away quietly.  He released any legal claims that he might have had arising out of his employment with the district, including “any claims or causes of action arising under….the Texas Commission on Human Rights Act [TCHRA] or any other state or federal equal employment opportunity law.”

Mr. Hamilton believed that his nonrenewal was an act of age discrimination, but by releasing any claim that he might make under the TCHRA, he could not pursue that argument.  In fact, Mr. Hamilton released any claim he might make based on anything that happened prior to April, 2015 when he signed the Agreement.  But his suit was about things that allegedly happened after that-- negative references to prospective employers. He had not released that claim.

The court rejected the school’s Plea to the Jurisdiction.  The court reasoned that 1) Mr. Hamilton had a viable age discrimination claim in 2015; 2) the district was not immune from that claim—it faced potential exposure; 3) the district negotiated its way out of that exposure with the Agreement; 4) therefore, the district cannot also claim immunity for violating the terms of the Agreement.

Key Quote:

We therefore hold that because a waiver of immunity was statutorily established on Hamilton’s then-viable age-discrimination claim when he entered into the settlement agreement, Hamilton’s later claim of breach of the separation agreement was not barred by governmental immunity.

The case is Socorro ISD v. Hamilton, decided by the Court of Appeals for El Paso on July 17, 2019. 

DAWG BONE: GOVERNMENTAL IMMUNITY IS A WONDERFUL THING, BUT IT DOES NOT ALWAYS APPLY.

That’s it for this week, Readers. The Dawg barks again on Monday!

Houston ISD’s prompt response to a report of student-to-student sexual misconduct was the key factor in the 5^th Circuit’s ruling in favor of the district.  The court concluded that “no reasonable jury could conclude that the school’s response was clearly unreasonable.”

How did the school respond?  This all started at orientation day at the Houston High School for the Performing and Visual Arts in August, 2014.  A girl reported that she was sexually assaulted by a fellow student.  Here’s what happened next:

* The district “performed an immediate internal investigation while turning over a potential criminal investigation to the district’s police department.”

* “HISD also placed a strict no-contact order on the male student that was largely successful in preventing all contact between him and the victim and prevented any further sexual harassment.”

* An assistant principal informed the male student that if he saw the girl in the hallway “he should go in the opposite direction, that he was not to be alone with [the student] at any time, and that if [she] entered a room he was in he had to leave the room immediately.”

* All of those restrictions were also communicated to the boy’s mother.

*  The A.P. checked up throughout the semester to ensure compliance with these rules.  He met with the male student monthly.

*  The school also supported the girl, offering assistance to her for both academic and attendance problems.

Plaintiffs carry a high burden of proof in cases like this.  Proving that a sexual assault happened is one thing, but proving that the school knew about it and shrugged its shoulders is a lot harder. 

On the other hand, it’s often difficult for the school to get a case like this tossed out of court early.  That’s because if there are important, relevant, unresolved factual issues, the court will not dismiss the case. Instead, the court will deny any “Motion to Dismiss” and force the parties into an expensive and uncertain trial.  When that happens, the cost of settlement goes way up.

In its opinion, the 5^th Circuit sends a signal to lower courts that they should not be timid about granting a school’s Motion to Dismiss when appropriate.  Citing an earlier 5^th Circuit opinion, the court says:

There is no reason why courts, on a motion…for summary judgment…could not identify a response as not clearly unreasonable as a matter of law.

That phrase “as a matter of law” means that the court will take the matter away from a jury on the theory that “no reasonable jury” could conclude otherwise.

One more thing: “That this case involves a single instance of sexual harassment on a school campus is particularly relevant to our analysis.” In a footnote, the court cited the seminal Supreme Court ruling about student-to-student harassment:

The Supreme Court has recognized that single instances of sexual harassment typically do not involve behavior “serious enough to have the systemic effect of denying the victim equal access to an educational program or activity.”  Davis v. Monroe County Board of Education (1999).

The case is I.L. v. Houston ISD, decided by the 5^th Circuit on June 24, 2019.  We found it at 2019 WL 2591696.

DAWG BONE:  A PROMPT AND EFFECTIVE RESPONSE IS YOUR BEST DEFENSE.

Tomorrow: Have you ever promised a “neutral reference”?

The case of William V. v. Copperas Cove ISD stirred things up last year when a federal judge held that students who are identified as having dyslexia are automatically eligible for special education under IDEA.  The judge overlooked the element of “educational need” and focused only on the fact that dyslexia is listed in federal regulations as an example of a condition that can qualify as a learning disability.  In the judge’s analysis it was a very simple equation:

Dyslexia=SLD=IDEA eligible

Now the 5^th Circuit has overturned the judge’s decision.  The Court noted that eligibility hinges on two factors—a qualifying disability and an educational need.  The Circuit Court faulted the lower court for failing “to engage with the second part of the test.” So the case was returned to the lower court for further proceedings.

Educational diagnosticians will likely be relieved by this decision, as it confirms what we have always believed, and what the Dyslexia Handbook says. Dyslexia is listed in federal regulations as an example of a learning disability—but the law still requires some showing of a need for “specially designed instruction.”  Students with dyslexia are on a wide spectrum. Some will need specially designed instruction. Others will not.

The Court dipped its judicial toes into the murky waters of eligibility. Key Quote:

While the line between “special education” and “related services” may be murky, case law suggests that where a child is being educated in the regular classrooms of a public school with only minor accommodations and is making educational progress, the child does not “need” special education within the meaning of the IDEA.

So carry on, evaluating each child individually, with an eye toward what level of services the student needs. The case of William V. v. Copperas Cove ISD was decided in an unpublished opinion from the 5^th Circuit on August 8, 2019.

DAWG BONE: NO ONE IS ELIGIBLE FOR SPECIAL EDUCATION SERVICES WITHOUT A NEED FOR SUCH SERVICES.

Tomorrow: Houston ISD handles a student-to-student harassment case well.

On Tuesdays at the Daily Dawg we focus on The Toolbox—our firm’s all day training program regarding disciplinary options with students in your special education program.  Today, let’s consider our new law regarding the use of “aversive techniques.” Many questions are swirling around about this.  We will eventually get some guidance from the Agency about the various ambiguities in the law, and that will help.  But the language of the statute is still going to leave considerable room for interpretation. 

In that context, I think the intent of the bill’s author is relevant.  Here are some important excerpts from Senator Lucio’s “Statement of Intent”:

While certain emergency interventions have their place in protecting the safety of students, extreme aversives--behavioral interventions that aim to use negative stimuli to stop or deter a behavior—can cause severe physical, mental, and emotional harm to students and should never be used.  Unfortunately, although the vast majority of educators never use such techniques, interested parties have reported instances where extreme interventions such as electric shock, noxious sprays or gases, or interventions that impair a student’s breathing or circulation have been used due to lack of guidance on prohibited aversives in current law.  (Emphasis added).

This Statement of Intent supports the idea that the word “significant” in the statute is…significant.  The umbrella definition of “aversive techniques” in the new law says this:

In this section, “aversive technique” means a technique or intervention that is intended to reduce the likelihood of a behavior reoccurring by intentionally inflicting on a student SIGNIFICANT physical or emotional discomfort or pain.  (Emphasis added).

Consider the fact that this statute is about disciplinary interventions, which inherently are likely to produce some degree of “emotional discomfort or pain.”  Were you ever sent to the principal’s office?  Do you recall the “emotional discomfort” you experienced as you walked down the hall to meet your fate?  Was your discomfort enhanced by the thought of how your parents would respond? 

This statute is not about that kind of discomfort.  The teacher who scolds a student may produce in the student an unpleasant level of “discomfort.”  But that’s a long way from the “extreme aversives” that Senator Lucio uses as examples.

The same analysis goes with “physical pain.”  The coach who assigns the student 20 pushups as a consequence for being late for practice is intentionally inflicting some degree of physical pain.  Is it “significant”?  I think not.

The statute is going to be interpreted by a lot of people before we get any definitive ruling from a high level court.  Principals and athletic directors are going to have to interpret the statute when a parent makes a complaint.  Some of those complaints will go to the superintendent, and/or the board.  All of those parties will have to apply their interpretation of “significant.”  In doing so, all of those parties would be wise to take into account Senator Lucio’s Statement of Intent and the extreme examples he offers that were the target of this legislation.

DAWG BONE: A LITTLE COMMON SENSE GOES A LONG WAY.

Tomorrow: Are all kids with dyslexia eligible for special education?

Well, here we are on a Friday in “the fall.”  We think “the fall” is a misleading term when it’s 100 degrees, but whatever.  In any event, it’s a Friday during the fall semester and that can only mean one thing: Air up those pigskins!  Football!!

Football coaches—especially defensive coaches—have a lot in common with school district lawyers.  Responding to a lawsuit against the district is a lot like your defensive coach, trying to prevent the other team from gaining yardage.   Before I try to convince you of that, let’s think about defending ourselves in other contexts.

When someone is accused of wrongdoing they can respond in one of four ways.  First, they can admit they were at fault and accept the consequences.  So, for example, the police officer pulls you over for going 30 in a 20 MPH school zone.  You can say: “Yes, I did that, and I am sorry. I am ready to accept the consequences.” 

But if you feel that you are being wrongly accused, there are three other responses available to you.  You can say NO: 

“NO.  I didn’t do that. I’m not guilty.”

Or you can say YES BUT:

“YES, I did what you say, BUT there was a good reason.  Let me explain.”

Or you can say SO WHAT?:

“Yes, I did exactly what you said that I did.  SO WHAT?”

We think these three responses apply across the board, from children in school, to poor drivers, to defendants in lawsuits.       

Of course, lawyers have special labels to describe these three defenses.  The “NO” defense is what we call a “general denial.”  Your lawyer files a response to the lawsuit that flat out denies every allegation the plaintiff has made.  This puts the burden of proof where it belongs—on the plaintiff who is bringing the lawsuit.  You say I was driving 30 in the 20 MPH zone?  I deny it!  Prove it!!

The “YES BUT” defense is referred to as an “affirmative defense.”  It admits the truth of the basic allegation, but then offers a worthy excuse.  For example, “YES, I admit that I was driving 30 MPH in the school zone, BUT the blinking light was not blinking, and besides that my mother was in the emergency room, and I was rushing to be by her side.”   

The “SO WHAT” defense is usually accompanied by a Motion for Summary Judgment.  It acknowledges the truth of the allegation, and then contends that there was no violation of law. 

“Yes, I was driving 30 MPH.  Yes, the light was blinking.  But it was a Sunday afternoon and there was no school.  No school—no school zone. The speed limit was actually 35.   No violation of the law.”

Most good lawyers will offer all three defenses.  “My client didn’t do it, Your Honor. But even if he did, he had a good reason for what he did.  And even if it was not such a good reason, what he did is not a violation of law—so toss this case out!”

It’s kind of like playing defense in football.  Your football team has three lines of defense: the line, the linebackers, and the secondary.  If your linemen stop the play at the line of scrimmage, there is no damage to your team’s cause.  If, however, the linebackers stop the play after a gain of 7 yards, you have paid a price.  And if the runner runs free for 25 yards before the safety makes the tackle, you have paid a heavy price. 

Cases that are dismissed early on are usually dismissed due to the SO WHAT defense.  This is accomplished by a Motion to Dismiss early on, arguing that there is simply no basis for legal liability here.  For the football analogy—this is a sack or a stop by the line.

If your defense is a YES BUT defense, your litigation costs will be higher. You have to marshal facts and evidence to show the court that there is an “affirmative defense.”  In our football comparison, this is that 7-yard gain on first down.

And if that doesn’t work, you are down to a factual struggle over what actually happened.  This is when we have expensive jury trials that are long and costly in every sense, even if you “win.”  It’s like you prevented the touchdown, but you gave up a lot of yardage. 

The big difference between football and litigation is that football is more fun.  So let’s air up those pigskins.   Good luck to your team tonight.

DAWG BONE: DEFENDING A LAWSUIT IS LIKE DEFENDING A FOOTBALL PLAY…..SORT OF. 

We’ll be walking the Dawg again on Monday.