DAWG BONE: SO STAND UP!!

Tomorrow: Toolbox Tuesday!!

How do you feel about kids being taught cursive writing? I’m all for it. My thinking about this is mostly along the lines of: If I Had to Suffer, You Should Suffer Too.

I remember those big fat pencils, the lined paper and the agony in my hand as I struggled to make my letters resemble what Sister Mary Holywater had posted on the wall. But mostly I remember the blow to my self esteem. I wasn’t very good at this. I also noticed that the girls were way better at this than the boys. What was going on here? Is this some sinister plot to make us feel bad about our gender?

I sat next to Leo, and we would occasionally look over each other’s work, sigh, bow our heads in defeat, and try, once again, to handle that loop in the capital S, or to write our names. This may be when I switched from Jimmy to Jim. I found it surprisingly difficult to make my m different from my n. Counting humps was not so easy, so eliminating the m and the y was helpful. At least I had the benefit of a short name. I had kids in my class named Mary Beth Sapienza and Mary Margaret Wojiechowski. Good luck with that!

SBEC has upgraded the curriculum standards for cursive. As of next school year, students will begin working on this task in 2nd grade with the goal of writing legibly by 5th. I will take a keen interest in how my granddaughter does. She will be one of the guinea pigs, entering 2nd grade next year. I suspect she will be a whiz at cursive. She’s already gifted artistically (among many other ways) and has advanced fine motor skills (did I mention she is my granddaughter?). So she will probably do fine and enjoy it.

My sympathy with the boys in her class. My word to them is “Don’t get down on yourselves, fellas! It’s not that important! You will be done with this after 5th grade! Hang in there!”

DAWG BONE: ACTUALLY, IF YOU ARE A SMARTY PANTS 2ND GRADER A BIT OF A BLOW TO THE SELF ESTEEM IS PROBABLY A GOOD THING.

See you next week, readers, and don’t forget to hug Mom on Sunday!!

The decision in the case of R.S. v. Highland Park ISD is long, detailed, and a ringing endorsement of the good work of the staff in the district. There are no villains in the story of this case. The court commended the parents for “acting as fierce advocates for their child and consistently pushing for challenging and meaningful goals to be included in his IEP.” The court was equally complimentary of the school staff, noting that “the record is replete with examples and evidence of the extraordinary efforts the District undertook to collaborate and communicate with [the parents].” The boy at the center of the dispute was described by his parents as a “sweet kid, fun-loving, with a great sense of humor.” The teachers described him as “inquisitive, delightful, a happy child and a hard worker.”

The boy displayed all those positive qualities despite his significant disabilities. He had a visual impairment, cerebral palsy, West Syndrome. He was non-ambulatory and a non-verbal communicator. He required an adult nearby at all times to assist him with mobility, repositioning, toileting, feeding and physical participation in various activities. He had low muscle tone and did not have “protective responses to prevent injury if he falls.” Which he did.

The falls were a big part of the case. In his years at HPISD, the student had five injuries due to falls. Two of those occurred while his mother was at school. But when all of the evidence was presented, the special education hearing officer offered this summary:

The numerous accidents and minor injuries R.S. suffered while attending District schools were unfortunate and troubling; they are also somewhat understandable in the sense that R.S. is an outgoing, friendly, and active child who has multiple physical challenges.

The numerous accidents and minor physical injuries suffered by R.S. at District schools did not threaten R.S.’s health in a manner that undermined his ability to learn and did not rise close to the level of denying R.S. a FAPE.

The federal court agreed with that analysis.

As is often true in special education litigation, this case presents a story of good people, seeking a common goal, looking at the same information and coming to very different conclusions. “Consequently,” the judge wrote, “it appears to the Court that there was disconnect and disagreement between [the parents] and HPISD staff regarding R.S.’ progress, regression, and current ability levels.”

Disconnect indeed. Repeatedly, both the hearing officer and the court noted that the allegations made by the parents were not supported by evidence in the record. Here’s an example:

In early 2012, [the parents] assert that R.S. was sent home with dried feces on his wheelchair after he experienced a significant accident at school. The evidence in the record, however, supports the [hearing officer’s] finding that [elementary] school staff notified R.S.’s mother and asked if she wanted to pick up R.S. from school after the accident, cleaned R.S., had him seen by the school nurse, gave R.S. a fresh change of clothing, cleaned his wheelchair as best as possible, and kept R.S. out of his wheelchair for the remainder of the day.

Did the district work hard to try to meet the high expectations of the parents? You bet. In the student’s 3.5 years in the district there were 15 ARD meetings. The hearing officer had found that the “District went to extraordinary lengths to include [the parents] in R.S.’s entire educational program and satisfied all collaboration requirements.” The federal court agreed with that analysis and added this:

In addition to ARDC meetings, the HPISD staff collaborated with [the parents] and considered parental input during “monthly collaboration meetings.” The District sent draft IEP documents to Plaintiff’s parents prior to his ARDC meetings, and incorporated their feedback into R.S.’s IEPs.

At least one of Plaintiff’s parents participated in every ARDC meeting. In order to collaborate with [the parents] the District typically scheduled R.S.’s ARDC meetings on Fridays so that [the father] could travel in from out of town, even though Fridays were not the usual ARDC meeting day at [the school]. The ARDC meetings lasted up to several days. The ARDC meeting documentation reflects extensive parental input and requests for consideration, which almost always resulted in input being incorporated into R.S.’s IEP.

The hearing officer ruled for the district in this one, and now the federal court has affirmed that decision. The decision does not break new ground in the law, but is noteworthy as an example of “extraordinary efforts” by public school staff to meet the high expectations of parents who were “fierce advocates” for their son. I’m pleased to let you know that lawyers in our firm’s Irving office represented the district in this case. Nona Mathews took the lead in the due process hearing and Meredith Walker handled the federal court appeal. We’re delighted to be able to help the courts see the good and hard work done by our clients.

The case of R.S. v. Highland Park ISD was decided by the federal court for the Northern District of Texas on March 8, 2019. We found it at 74 IDELR 10. The parties also litigated claims under Section 504. We’ll tell you about that next week.

DAWG BONE: HARD WORK PAYS OFF!

Tomorrow: How do you feel about cursive?

Since the last legislative session, school districts and other governmental entities have been required to include a provision in contracts with vendors whereby the vendor promises that the company is not, and will not, boycott Israel. On April 25th, a federal judge in Texas enjoined enforcement of the statute.

This state law is part of a larger national movement to show support for Israel. The idea is to push back against the BDS movement. The BDS movement seeks to pressure Israel to end its occupation of disputed territories and its discrimination against Arab-Palestinian citizens through boycotts, divestments and sanctions (BDS). The Texas House of Representatives passed this bill unanimously and only five members of the Senate opposed it. This made Texas the 26th state to adopt such a law.

The Attorney General cited that broad popular support in defense of the statute, but the court turned that on its head, citing a landmark school law case in the process:

Texas touts these numbers as the statute’s strength. They are, rather, its weakness. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia SBOE v. Barnette, 319 U.S. 624, 642 (1943).

That Barnette case is the original “refuse to recite the Pledge” case. Constitutional rights are there to protect the rights of the minority: the person who expresses the unpopular opinion, the student who does not want to recite the Pledge, the speech therapist who does not support Israel’s policies. So the fact that the statute was passed overwhelmingly does not advance the cause.

You would think that our Attorney General would know that.

This case is Amawi v. Pflugerville ISD, et. al. The preliminary injunction was issued on April 25, 2019 by Robert Pitman, federal judge for the Western District of Texas.

DAWG BONE: THIS ONE WILL LIKELY MOVE UP THE JUDICIAL CHAIN OF COMMAND.

Tomorrow: 15 ARD Meetings in 3.5 years.

In the Toolbox Training we spend a full day reviewing the ten “tools” that school administrators can use when dealing with students with disabilities who engage in disruptive or violent behavior. The school has the legal duty to continue to serve that student, while maintaining a safe and orderly campus for the benefit of all. It’s a tough assignment.

In the Toolbox Training we emphasize the word “unilateral.” That’s because in the one and only SCOTUS case involving special education discipline, the Court emphatically told us that Congress had “stripped” school officials of the “unilateral” power they had historically enjoyed. Background: school officials had “unilaterally” ordered the immediate removal of two high school students because they were dangerous to others. When the parents challenged the removal with a due process hearing, the parents claimed that the “stay put” rule mandated that the students remain in school while that hearing was pending. California school officials disagreed with that.

SCOTUS sided with the parents, noting that principals and superintendents no longer had the “unilateral” authority they used to have. The law no longer permitted a superintendent to order a student’s removal—at least not when the “stay put” rule applied. Instead, the superintendent could seek an order from a hearing officer or court to override the “stay put” rule.

So one of the goals of the Toolbox Training is to make sure that principals know when they can act unilaterally, and when they need some help from someone else. The SCOTUS case was in 1988, and even back then, not all “unilateral” powers were stripped away. For example, the principal could order a three-day suspension from school. In fact, the principal could do this three times before needing help from someone else. We call this Tool #7—the FAPE-Free Zone. But any removal of the student beyond the ten days of the FAPE-Free Zone was beyond the “unilateral” power of the campus administrator, or the superintendent.

After the 1988 SCOTUS case, Congress restored some of the “unilateral” authority of campus administrators. Using what we call Tool #5, the principal can “unilaterally” order a removal of up to 45 school days if the removal is based on a “special circumstances” offense: drugs, weapons, or the infliction of serious bodily injury.

The Toolbox is designed to empower school administrators to carry out their legal duties properly. One important part of that is understanding when power can be exercised “unilaterally” and when it cannot. If you are interested in knowing more about the Toolbox, please let me know.

DAWG BONE: JUST BECAUSE YOU DO NOT HAVE “UNILATERAL” POWER DOES NOT MEAN YOU ARE POWERLESS.

Tomorrow: You may now resume boycotting Israel.

Michael Cohen, former lawyer and “fixer” for Donald Trump is due to report to prison today. You may wonder—how does this merit mention in the Daily Dawg, which is about school law? Good question. The answer is: Mr. Cohen’s previous correspondence on behalf of his client gives us an opening to discuss FERPA—the Family Educational Rights and Privacy Act.

After his relationship with the president went south, Mr. Cohen published a letter he had written on behalf of Mr. Trump to Fordham University in May, 2015. Mr. Trump attended Fordham for his first two years of college before transferring to the Wharton School. There have been rumors that he did not make Fordham great again, and may have even flunked out. We may never know. In any event, some media outlets were seeking Mr. Trump’s educational records. Mr. Trump zealously guarded the confidentiality of his educational records. In fact, his lawyer/fixer was a bit overly zealous.

In his letter, Mr. Cohen claims that FERPA violations may expose Fordham to “both criminal and civil liability and damages, including, among other things, substantial fines, penalties and even the potential loss of government aid and other funding. The criminality will lead to jail time.”

That is wrong on many counts, but the scariest part is “including, among other things.” I mean once the federal funding is gone, the fines and penalties are imposed, damages are assessed and the president of the university is in jail, there are “other things”???? Like what? Your house gets egged? You wake up with a decapitated horse head in your bed?

The letter promises to pursue claims for damages and “criminality” if there is any FERPA violation, and this applies to “any and all of The College Board’s employees, agents, third parties, vendors and any other person or entity acting for or on its behalf.” Yikes! Everyone is going to jail!!

What’s accurate about the letter? FERPA violations can lead to loss of federal funding. It’s never happened, but it could. That’s the only remedy. The Supreme Court has held that FERPA does not permit a “private cause of action.” See Gonzaga University v. Doe (2002). So you cannot obtain damages and there are no fines or penalties. And for sure, no one is going to the clink over disclosure of a confidential educational record.

DAWG BONE: CAMPAIGN FINANCE VIOLATIONS MAY BE CRIMINAL. NOT FERPA VIOLATIONS.

Tomorrow: Toolbox Tuesday!!

T.W. was in the district’s dyslexia program at first, and was later moved to “monitor” status.  The boy made good grades in high school, racking up a 3.45 GPA and achieving satisfactory scores on 11 of 12 STAAR tests.  Nevertheless, the student had significant stress at times, and needed extra support.  The judge who reviewed T.W.’s case noted that the student’s “performance in school was bolstered by support he received from his parent, his teachers, and his coaches.  T.W.’s coaches were particularly attentive to his performance in school because T.W. was a star football player, and when T.W. struggled in a particular class, they would provide support and ensure T.W. received sufficient study time.”

As the saying goes, “no good deed goes unpunished.”  In the lawsuit, the parents alleged that this extra support disguised the boy’s need for special education services that the district never provided.  The parent pursued a special education due process hearing and then an appeal to federal court.  The primary legal issue was Child Find.  The parent alleged that the district violated IDEA when it refused to conduct an evaluation to determine the student’s eligibility.

The parent’s request for a special education evaluation came in February, 2016. The student was on track to graduate in May. The district refused to conduct an evaluation, citing a lack of educational need. By the time the hearing officer heard the case, the student had graduated and received an academic scholarship to Howard Payne University.  All of this helped the hearing officer, and then the court, rule in favor of the district. Key Quote:

Specifically, the Special Education Hearing Officer reasoned that T.W. had passed all his classes, graduated, was admitted to college and had performed satisfactorily on nearly all state assessments and benchmark tests. 

The court also noted that the student demonstrated strong “behavioral progress” and had acquired  “appropriate social skills.” Yes, he received a lot of support and some accommodations, but these were “not highly individualized, but rather, were available to other students as needed.”

The lawyers for the student tried to make the case that our hearing officers lack the authority to determine if a student is eligible. The court shot that down.  The backup argument was that the hearing officer in this case did not have enough information to make his decision.  The response to that:

This is ludicrous.  Before reaching his determination, the SEHO [Special Education Hearing Officer] had the benefit of a multiday evidentiary hearing during which the parties submitted 40 exhibits and called thirteen witnesses.  The resulting administrative record is 2,226 pages. 

Interesting to note that there was never a dispute about the student having dyslexia.  But given the services offered by the school and the student’s own intelligence, he did not need “specially designed instruction.”  Chalk this case up as one that holds that dyslexia can be effectively served through Section 504.

Remember also: a referral can come at any time and should always be responded to appropriately.  But when it comes within months of graduation for a student who is on track to graduate, it’s a lot harder to find an “educational need.”

The case is T.W. v. Leander ISD, decided by the federal court for the Western District of Texas on March 7, 2019. We found it at 2019 WL 1102380.

DAWG BONE: IF A GENERAL EDUCATION STUDENT GRADUATES ON TIME, IT KINDA LOOKS LIKE HE DIDN’T NEED SPECIAL EDUCATION SERVICES.

The Dawg barks again on Monday.  See you then!

We lawyers strive to instill confidence in our clients. We want the client to feel comfortable. We want the client to believe that the lawyer is on top of things, smarter than the other guy, well prepared and eager to support the client’s cause.  Here’s a true story from my early days when I learned an important lesson about this.

I was representing a school district in a special education due process hearing.  The night before the hearing I was spending the night in a hotel close to where the hearing would be conducted. The district’s special education director (let’s call him Bill) had traveled out of town with me, and we were rooming together to save the district some money.  I liked Bill, and considered him a friend, so this was no problem.

Just before we turned out the lights, I pulled out the little book that I had been studying.  Bill saw what I was reading and the following exchange occurred.

Bill: What is that you’re reading?

Dawg: The Easy Way to Win Special Education Hearings, by Jane Slenkovich.

Bill: Now? Tonight?? You are just now reading this book????

Dawg: Well….yeah.  I’ve been reading it for awhile.  I’m just about up to the part about cross examination.

Bill: Yikes!! This is like getting on the airplane and seeing the pilot reading “How to Fly an Airplane.”

Dawg: Oh…I hadn’t thought of it that way.

I have not made that mistake since.  Others, yes—but not that one.

DAWG BONE: INSTILLING CONFIDENCE: LITTLE THINGS MATTER.

Tomorrow: Referral for special ed three months before graduation.

Welcome to May, Readers!  The Dawg is always happy to see May 1 roll around, seeing as how for me it marks the completion of another lap around the track, so to speak.  I’m 69.  Yikes!

It’s also LAW DAY! And this year’s theme, according to the American Bar Association is FREE SPEECH.  FREE PRESS.  FREE SOCIETY. 

As our state legislature rockets toward the deadline on this year’s session, this is a great time for all of us to exercise those rights in an effort to nudge our lawmakers in the right direction. You know what the right direction is.  Let the nudging begin. 

DAWG BONE: NUDGE.  NUDGE. NUDGE.

Tomorrow: How Not to Instill Client Confidence.

The Toolbox Workshop is a full day spent on the legalities of disciplinary action with students with disabilities.  In the “new and improved” 4.0 version of the Toolbox, which we just debuted earlier this month, we practice with some hypotheticals. Here’s one: 

Adam, Baker, Charlie and Diana…..

Adam violated the Code of Conduct in a way that would normally call for 30 days in the DAEP.  There were no “special circumstances” involved.  The ARDC decided his behavior was not a manifestation of disability.  Parent disagrees with this.  Where does Adam go?  What Tool is the school using?  If the parent requests a due process hearing, how does the “stay put” rule come into play?

Baker violated the Code of Conduct in a way that would normally call for 30 days in the DAEP.  There were no “special circumstances” involved.  The ARDC decided that his behavior was a manifestation of disability.   The school officials do not see Baker as a dangerous student.  What happens with Baker? 

Charlie violated the Code of Conduct in a way that would normally call for 30 days in the DAEP.  No “special circumstances.”   The ARDC decided that his behavior was a manifestation of disability.  The parent agrees with this.  The school seeks a change of placement for Charlie to behavior unit, and the parent does not agree to that. What Tool are we talking about?  The school officials do not see Charlie as a dangerous student.  If the parties end up in a due process hearing, how does the “stay put” rule work?

Diana violated the Code of Conduct in a way that would normally call for 30 days in the DAEP. The ARDC decided her behavior was a manifestation of disability and the parent agrees with this.  The school officials have reason to believe that Diana will hurt someone if she remains in her current placement.  What can the school do?  What Tool would it use?  How does the “stay put” rule come into play?

Sound like fun?  Well….maybe “fun” is not the right description. Would it be helpful to have a more confident approach to situations like this?  If so, let me hear from you. Got the tool belt on.

DAWG BONE: PRACTICE MAKES PERFECT.  IN THE TOOLBOX WORKSHOP, WE PRACTICE.

Tomorrow: No more April.  Let’s call it May.