DAWG BONE: THANKS TO ALL WHO HAVE SERVED OUR COUNTRY. 

Tomorrow: Toolbox Tuesday!!

The Governor has already signed HB 793 and it goes into effect right away. This is an amendment to the law that barred school districts and other governmental entities from contracting with a business unless the business promises not to boycott Israel. 

The law, as amended, now only applies to contracts in excess of $100,000 with companies that have at least 10 full time employees. 

That change does not completely remove the statute from constitutional scrutiny. A federal judge has blocked enforcement of the law, and that injunction remains in effect until further notice. We told you about that in the Daily Dawg on May 8^th.  So stay tuned for more!

DAWG BONE: IF YOU DON’T KNOW THE BACKGROUND OF THIS, TRY GOOGLING “BDS MOVEMENT.”

Enjoy your Memorial Day Weekend, Readers!  The Dawg barks again next week.

A special education hearing officer ruled against Lubbock-Cooper in two cases involving siblings.  One decision was 36 pages long, fortified by 327 footnotes. The other was 34 pages long, with 292 footnotes.  The analysis by the hearing officer was long, but it was also wrong. The federal court reversed both of these decisions.

In both cases the court noted the extensive efforts by LCISD staff to collaborate with the parents. Key  Quotes:

The District relates that it spent an inordinate amount of time dealing with complaints by L.D.’s parents in relation to other parents and students involved in the ARD process.  The record clearly shows that L.D.’s parents were involved in the ARD process and, in fact, helped write the goals and plan for L.D.’s successful year in education. 

…the record shows substantial compliance with the statute’s notice provisions occurred and the parents participated in the lengthy ARD meetings and clearly knew what was going on in relation to the entire process and often dictated and/or controlled the process.

And here’s my favorite quote from this case:

Regardless, the IDEA was not adopted as a “gotcha” procedural trap for those attempting to properly educate students.

Much of the first case was about whether or not the student should  have been identified as having a learning disability. The district carried the student as OHI (Other Health Impaired) and served him in the mainstream.  There the student did very well:

The record indicates, and it is undisputed, that L.D. obtained an “A Honor Roll” average (with the exception of one 89 average in a class) for the relevant school year period (August 2016-May 2017).  Further, L.D. attained this commendable achievement while being educated in the mainstream non-special education classroom setting.

That’s why the school people believed the student did not qualify as SLD. The court agreed.  It’s unfortunate for the district that it had to take this one to the federal court to overturn the erroneous rulings by the hearing officer.  A student who is achieving well in general education classes in all subjects does not demonstrate the kind of “underachievement” or “pattern of strengths and weaknesses” that is characteristic of a learning disability. 

The cases are Lubbock-Cooper ISD v. Sherri D. and Dennis v. Lubbock-Cooper ISD, both decided by the federal court for the Northern District of Texas on March 1, 2019.  We found them at 74 IDELR 17 and 18.   

DAWG BONE:  IDEA IS NOT A “GOTCHA” TRAP.

Tomorrow: Can we now boycott Israel?

A federal court in Georgia has held that three school administrators might be held personally liable for a possible violation of a student’s right of free expression under the First Amendment.  Readers of the Daily Dawg are well aware that students can express political opinions in school as long as there is no reasonable forecast of a material disruption of school. But what if the opinion expressed is not about international, national, or state issues, but rather, about firing the current principal?

The student, soon to be known as “the Plaintiff,” was a freshman at Chamblee Charter High School.  He printed 36 stickers that depicted a headshot of the school’s principal, Ms. Braaten, overlaid on a waving U.S. flag. The text read: Fire Braaten.  He distributed a few of these stickers  to friends.  His lawsuit alleged that he did not place the stickers on district property, but only placed one on his own phone case.  The Assistant Principal thought this behavior was disrespectful and a violation of the Code of Conduct. At first he suspended the student for a week. One day later he reduced this to one day of ISS, which the student served. 

If the A.P. thought this reduced sentence was going to avoid litigation he was mistaken. The family sued the school, the superintendent, the principal and the A.P.  One lesson of this case: punishment in retaliation for the exercise of constitutional rights is illegal, regardless of how minimal the punishment is.

The school tried to get the case dismissed, and also sought dismissal of the three school administrators based on “qualified immunity.”  None of that worked. Based on the allegations in the suit, the court held that there was no indication of a “material and substantial disruption” of school.  Nor were the stickers “lewd,” “vulgar,” “sexually suggestive” or otherwise “plainly offensive.”  Thus, citing Tinker v. Des Moines and Bethel School District No. 403 v. Fraser, the court concluded that the Plaintiff had properly alleged facts that would amount to a violation of his First Amendment rights.

But doesn’t this anti-principal sticker undermine her authority? Is it really ok for a 9^th grader to do that?  The court’s discussion of that argument is interesting. The court noted that there are cases where disrespect of administrators goes too far. For example, in Smith v. Mt. Pleasant Public Schools, 285 F.Supp.2d 987 (E.D. Mich. 2003) the student:

….clearly attempted to undermine the moral authority of the principal and assistant principal by questioning [the principal’s] marital fidelity and [the A.P.’s] sexuality. Spreading such gossip, and calling the school principal a “skank” and a “tramp,” invited discipline, and would have rendered ineffective a school administrator who would not respond to such a display of disrespect.

So the message to principals is: if a student calls you a “skank” you can put the kid in ISS. If the student refrains from such personal insults and just publicly calls for your termination, you cannot do that.

The judge considers the law on this to be “clearly established,” and so the three school administrators are on the hook for potential personal liability.  That strikes me as the shakiest part of this decision.  There are many judges who would rule otherwise, citing the “special circumstances of the school,” the young age of the student and the role of the school to nurture civility and respect for authority.

The case has a long way to go, but so far, the Plaintiff’s case is alive and well.   The case is K.B. v. Dekalb County School District, decided by the federal court for the Northern District of Georgia on April 29, 2019. 

DAWG BONE: YOU CAN ONLY BE LIABLE FOR VIOLATING LAWS THAT ARE CLEARLY ESTABLISHED, BUT WHAT’S CLEARLY ESTABLISHED IS NOT CLEARLY ESTABLISHED.

Tomorrow: Lubbock-Cooper wins two.

We talk a lot about BIPs in the Toolbox Training.  Creation of a BIP is Tool #1, and we make sure that everyone understands that this is the most important tool.  It’s the only one of the ten “tools” in the Toolbox that is intended to improve the student’s behavior.  Implementation of the BIP with consistency is critical. In fact, the failure to implement the BIP may mean that the student’s misbehavior is a manifestation of disability, and thus not subject to any long term punitive consequences.

Let’s review.  The manifestation process requires the team to answer two questions: 

• Was the student’s misconduct caused by the student’s disability?
• Was the misconduct the direct result of the school’s failure to implement the IEP?  

If either question is answered “yes” the behavior must be considered to be a manifestation of disability. In Toolbox terminology, this means that Tool #6—a Disciplinary Removal—is not available. 

A “yes” answer to that second question is rare. That’s why a recent hearing officer’s decision from Georgia caught my attention.  The case involved a student on the Autism Spectrum who unintentionally smacked a coach.  Under the Code of Conduct this called for Tool #6--a long term disciplinary removal to the Georgia equivalent of a DAEP.  That’s what happened.  The district provided the student a hearing, found him guilty, and answered both MDR questions with a “no.” 

However, the parent requested a hearing, challenging the manifestation determination.  The hearing officer ruled in favor of the parent, concluding that the school had not implemented the boy’s BIP, and that failure “more likely than not” led directly to the coach getting smacked.

The BIP directly addressed conflict situations with peers.  That’s exactly what was going on when the coach intervened—a fight between the student and a classmate.  The coach blew his whistle and got the attention of both boys, who complied with his instructions.  So far so good. Things settled down, but only briefly.  Then the other kid “re-engaged” and our plaintiff responded by trying to hit him. That’s when he unintentionally hit the coach instead.

The BIP called for specific steps to be taken when the student got into it with a classmate.  Step One was verbal redirection.  If that did not work, Step Two was to instruct him to go to a “safe place” to settle down.  In the heat of the moment with the two boys and the coach, and a teacher and aide nearby, no one gave the plaintiff the command to go to a safe place. The hearing officer reasoned that the boy had complied with the coach’s initial instructions, and probably would have complied with a direction to go to the safe place.

Also critical to the hearing officer’s reasoning was the fact that three of the four members of the MDR Team did not know that the other kid had re-engaged the fight.  Therefore, they were not aware of the need to implement Step Two in the BIP.

It’s critical that all members of the ARDC be aware of all of the relevant circumstances before making the MDR.  And as we emphasize often here, it’s equally critical that BIPs be implemented with fidelity.

This case is Henry County School District, decided a special education hearing officer in Georgia on December 5, 2018.  We found it at 74 IDELR 28. 

DAWG BONE: ARE COACHES ALWAYS WEARING WHISTLES?  SEEMS PRETTY HANDY.

Tomorrow: 9^th grader seeks principal’s termination.

Thanks to the Financial Litigation Unit of the U.S. Attorney’s Office for the Southern District of Texas and the U.S. Marshall Service, the government has recovered over $4,443,755.69 from the former owners of a charter school in Houston who are now serving time for their crimes.  Yowza.  That’s a lot of money.  A bit over $600,000 of the recovered money will be distributed to the parents of students who were defrauded by the criminal activities of Mr. and Mrs. Cluff. She was the superintendent. He was facilities and operations manager. 

There are some really good, well operated charter schools. And then there are some like the Varnett Charter School, a criminal enterprise masquerading as a public school.  This case shows why regulation of charters is so important, and must be tightened up.  Some folks really believe that parents and students will be best served by the unfettered free market.  As this sad story illustrates, that’s just not true.  Competition is a good thing, but “unfettered” markets unfetter those who would defraud and steal. 

Let us pause a moment to honor the good work of the Justice Department, the federal courts, the U.S. Attorney’s Office and the U.S. Marshall Service. But it’s a shame that any of that was necessary. 

DAWG BONE: SIGH. 

Tomorrow: Toolbox Tuesday!!

Last Thursday we told you about the recent decision involving Highland Park ISD (Region 10) in which the court held that the district provided FAPE to the student. The parties also litigated over Section 504.  Again, the court ruled in favor of the district on this one. In so doing, the court relied on a somewhat obscure legal theory that I would classify as “inside baseball.” But it has implications for future 504 cases.

The legal theory is “issue preclusion.”  The court defines it like this:

Issue preclusion, or collateral estoppel, “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.

Based on that, the court noted that 1) the issue of FAPE has been determined already; and 2) the claims of a “failure to provide” services under 504 involved the same facts; 3) therefore, those claims are “redundant” and are “precluded.”   Key Quote:

The Court concludes as a matter of law that the questions of fact underpinning Plaintiff’s Section 1983 and Section 504 claims have actually been litigated in resolving Plaintiff’s IDEA claim, and therefore, preclude Plaintiff from pursuing his redundant non-IDEA claims.

The court noted that 504 claims can be raised along with an IDEA claim. But if the IDEA claim is resolved in favor of the district, there is no way the parent can prove a 504 violation based on an alleged denial of FAPE or failure to provide needed services.  That does not, however, completely preclude any possible 504 claim. The court noted that a plaintiff may still succeed with a 504 claim raising “an alternative theory of liability.” For example, a claim that the district discriminated against the student by being deliberately indifferent to disability-based harassment and bullying might be viable.  But that’s not what was alleged here. “Here,” noted the court, “Plaintiff’s claims under Section 504 are all based on HPISD’s alleged IDEA violations.” Since there were no IDEA violations, there can be no 504 violation.

The case is R.S. v. Highland Park ISD, decided by the federal court for the Northern District of  Texas on March 22, 2019.  We found it at 74 IDELR 35.  Nona Matthews of our firm’s Irving office took the lead in representing the district in the special education due process hearing, while Meredith Walker handled the appeal to federal court. 

DAWG BONE: “COLLATERAL ESTOPPEL” SOUNDS SO LEGAL……

See you next week when the Dawg barks again.

Dear Dawg: We need to retain an independent person to investigate serious allegations against some of our senior staff.  It has to be someone who is smart, experienced, and tough. Do you think Robert Mueller would accept?  HE’S DONE WITH HIS OTHER JOB, RIGHT?

DEAR HE’S DONE:  I think that’s certainly worth a try!  I suspect the hourly rate would be pretty high, but on the other hand, he might find a gig like this a piece of cake compared to his last one.  Let us know what you find out.  If Mr. Mueller accepts, there may be other districts that want to retain his services. 

DAWG BONE: WHY NOT?

Tomorrow: Inside baseball in a 504 case

Kelsey Boggs and her mom claim they were treated badly by a high school principal in Krum ISD.  Kelsey filed suit against the district and the principal, claiming disability discrimination and unconstitutional retaliation.  We can learn four things from the federal court’s opinion in the case.

First, the district is not going to be liable for a constitutional violation unless there is evidence that the injury was caused by the district’s policy or widely known custom. There was no evidence of that here.  The allegations were about alleged bad behavior by the principal. Even if those allegations are true, they do not implicate the school district. 

Which leads to the second point: what about the principal?  The suit alleged that the principal used his governmental authority to retaliate against the student after her mother went to bat for her.  The court dismissed this part of the lawsuit because the alleged retaliatory acts were simply not that bad.  The judge thought that a person of “ordinary firmness” would not be intimidated by the things the principal allegedly did. Key Quote:

Plaintiff cites no evidence that [the principal] “retaliated” against her in any concrete way….Plaintiff, instead, accuses [the principal] of calling her and her mother “liars,” following her to classes, and openly speculating about her chances to graduate…..A jury could not find that a person of ordinary firmness would be chilled from exercising their free speech rights based on these interactions, however immature.

The third point is a little inside baseball about the legal requirement to “exhaust administrative remedies.” The school asked the court to dismiss the ADA/504 disability discrimination claims on the theory that the plaintiff should have pursued them in an IDEA special education due process hearing. But the plaintiff did pursue such a hearing. It was dismissed based on a “stipulation” drafted by the school district stating that “There are no issues related to IDEA or concerns that the student did or did not receive a FAPE.”  So the court said to the school: you can’t do that.  You can’t “stipulate” that there is no IDEA claim here, and then turn around and argue that the plaintiff should have pursued her IDEA claim. Not fair.  The legalese for that is “judicial estoppel.”  So bottom line on this case: the constitutional claims against the district and the principal were dismissed, but the claim of disability discrimination gets to proceed.  We have no idea if that claim has merit—only that the plaintiff was not required to take it to a special education hearing, and so she can pursue it in this court case.

The final point is for the lawyers more than the educators. It’s usually a mistake to make personal accusations against the other guy in the lawsuit.  This judge was put off by some of what he read in the school’s legal brief:

In their briefs, Defendants levy attacks on Plaintiff’s character that seem to have no or little relevance to the issues to be decided on this motion.  This includes suggestions that Plaintiff is a liar because her Complaint lists an old address rather than her current one—as well as several references to Plaintiff’s personal life, including her dating history, alcohol use, a shoplifting incident, and her mother’s issuance of a bad check.  The Court does not consider irrelevant character evidence when deciding the merits of the motion and reminds Defense counsel of his duty to act professionally in all court matters.

The case is Boggs v. Krum ISD, decided by the federal court for the Eastern District of Texas on March 21, 2019. We found it at 2019 WL 1293851.

DAWG BONE: LITIGATE ZEALOUSLY, BUT DON’T MAKE IT PERSONAL.

Tomorrow: Is Robert Mueller busy?

The 9^th Circuit recently issued a very short opinion about what sounds like a small issue. The IEP Team in a school district in Gilbert, Arizona proposed to provide an additional 20 minutes per day of special education services. This would take the student out of the general education classroom for those 20 minutes.  The parents objected, citing the legal requirement that students be served in the LRE—Least Restrictive Environment. Here we have a school district proposing an MRE—a More Restrictive Environment.

That’s what Tool #3 in the Toolbox is about. It’s an Educational Change of Placement Without Parental Agreement.  Tool #3 might be used to change placement for the full day, or it might be something like this case—just 20 minutes a day.

The court ruled in favor of the school district. It acknowledged that this was a more restrictive setting, but the court noted that “the student’s academic needs weigh most heavily against a mainstream environment.”  The law, according to the court “is primarily concerned with the long term educational welfare of disabled students.”

I found it particularly interesting that the 9^th Circuit cited Endrew F. v. Douglas County in support of its ruling. Endrew is the case in which SCOTUS held that an IEP’s goals must be “appropriately ambitious.”  But the measure of what is “appropriately” ambitious has to take into account the unique strengths and weakness of the student.  The IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (Emphasis added).

Educators would be wise to use some of this language when trying to persuade parents that a move to a more restrictive environment would be a good thing. For example: “We can continue to serve your child in the mainstream classroom, but we won’t see as much progress as we would if we could provide more direct special education services.  We want to set goals for your child that are appropriately ambitious for her.  We can be more ambitious with our goals if we can provide more direct special education services.”

If the parent agrees to the change, you have used Tool #2. If the parent does not agree, you can consider Tool #3. 

The Toolbox is a full day training offering ten tools that empower educators to serve students with disabilities appropriately, while providing a safe and orderly school experience. 

Today’s case is R.M. v. Gilbert USD, decided by the 9^th Circuit with an “unpublished” decision on April 24, 2019.  We found it at 2019 WL 1787368.

DAWG BONE: YOU CAN BE MORE “APPROPRIATELY AMBITIOUS” WHEN YOU PROVIDE MORE DIRECT SERVICES.

Tomorrow:  Principal dismissed from lawsuit.