The plaintiff in a case pending in East Texas alleges that a school district and its administrators valued the football team at the expense of a female student who was secretly recorded changing clothes.  The court has tossed out several of the legal claims in this case, but the Title IX claim is still alive.

The secret recording occurred off campus in April 2016, but it was not reported to the school until the following February—10 months later.  By that time, according to the suit, the video had been widely shared among students on campus, including by members of the football team in the locker room. The suit alleges that the mother reported the incident to the principal and the superintendent, and further alleges that neither of them made good on their promise to investigate and take action. 

Those bare bones allegations were not enough to allege any possible liability under the U.S. Constitution. Claims of denial of Due Process and Equal Protection against the district and three administrators were dismissed.  However, the court refused to dismiss the Title IX sexual harassment claims against the district. Thus all of the individual defendants in this case—superintendent, principal and football coach—have been dismissed from the case. But the district remains exposed to possible liability for a Title IX violation.

Here’s the standard: the plaintiffs have to prove:

• the plaintiff was sexually harassed;
• it was really bad (the legalese is “severe, pervasive, and objectively offensive”);
• the school knew about it;
• the school’s response was “deliberately indifferent”; and
• the plaintiff suffered as a result.

Here’s how the court viewed the matter:

If, as Plaintiff alleges, (1) Plaintiff reported the continued distribution of the video and resulting harassment, (2) [the principal] and [the superintendent] knew of students viewing the video on campus, and (3) the school undertook no further investigation other than to ask [the football coach] about the incident, it could reasonably be inferred that the school’s actions were clearly unreasonable in light of the known circumstances.

The court also thought the claim of an “unofficial policy” was plausible:

Plaintiff alleges that Carthage ISD employees, acting pursuant to a known and established yet unwritten custom and practice, conspired amongst themselves to hide allegations of sexual harassment in order to protect a football player and the school’s football program and Carthage ISD failed to investigate and report the misconduct and harassment, which involved on-campus occurrences and faculty members.  If taken as true, these allegations support a reasonable inference that Carthage ISD’s policy or custom of inadequately investigating reports of sexual harassment involving football players resulted in Plaintiff’s suffering and the continuous on-campus harassment that she has endured.

This case has a long way to go.  The plaintiff got over this initial hurdle, but still faces a heavy burden of proof. At this stage of the game the court is required to assume the truth of the allegations in the suit, and to give the plaintiff every benefit of the doubt.  Going forward, however, the district will certainly dispute the alleged facts, particularly the accusation of “deliberate indifference.” Whatever documentation the district can produce to show that it took the allegations seriously will be of critical importance.

The case is Harvey v. Carthage ISD, pending in the Eastern District of Texas. The judge issued his order on November 21, 2018. We’ll keep an eye on this one for you.

DAWG BONE: OLD LESSON—DOCUMENT, DOCUMENT, DOCUMENT.

Tomorrow: Toolbox Tuesday!!

Commissioner Morath has ruled that United ISD should have given a group of parents a hearing before the school board about the removal of a banner from the middle school gym.  The parents allege that the banner was removed as an act of retaliation, designed to punish these parents for pursuing complaints of bullying.

Removal of a banner?  Yes—that’s what this was about.  The banner honored the school’s Dance Team which took home national honors in 2014-15.  The banner, which included the photograph of the parents’ child, was replaced with the picture of another team that was less successful.  The parental complaint about this has made it to T.E.A.

The Commissioner expressed no opinion about whether the banner should stay or go.  Nor did he tell us if the district had acted with a retaliatory motive.  All he said was that the board should have heard the matter.

The board refused to hear the complaint, delegating it instead to a committee that was created to hear complaints pertaining to extracurricular activities.  After all, the Texas Education Code now includes this provision:

The board of trustees of a school district is not required….to address a complaint that the board receives concerning a student’s participation in an extracurricular activity that does not involve a violation of a right guaranteed by this chapter [Chapter 26—Parent Rights and Responsibilities]. Texas Education Code 26.011(b).

The first part of that statute seems designed to keep routine gripes about playing time (“you shoulda played my kid at left cornerback!”) or cheerleading (“my girl should be head cheerleader!”) away from the school board. But the last part of the statute guarantees that parents will get a board hearing if they are complaining of denial of their own rights under Chapter 26.  In this case, the Commissioner ruled that the complaint was not about “a student’s participation in an extracurricular activity.” It was about “violation of a right guaranteed” by Chapter 26.   So the board should have heard it.

The Commissioner sent the case back to United ISD for a full hearing on the merits. Bannergate continues, and eventually, perhaps we will find out why the banner was replaced.  Other parental complaints were dismissed. The Commissioner ruled that the folks in United did not act in bad faith; the complaint of unethical action by the principal should have gone to SBEC, and thus, was dismissed; the request for the discharge of the principal and cheerleader sponsor was dismissed.

The case of Parents v. United ISD was decided by the Commissioner on December 15, 2018.  It’s Docket No. 035-R10-03-2018.

DAWG BONE: NOT EVEN THE SIMPLEST DECISION IS BEYOND THE REACH OF THE LAW.

Have a good weekend, Readers. We’ll be back on Monday!

A federal judge in Texas has come pretty close to saying that dyslexia automatically qualifies as a learning disability under IDEA.  This is a case in which the district determined that the 4^th grader had dyslexia, but did not qualify as having a learning disability. This decision was based on a thorough Cross-Battery assessment by a qualified evaluator.  Testing showed that none of the student’s cognitive abilities were below average. The student did not demonstrate the “pattern of strengths and weaknesses” that is a sign of a learning disability. So the district decided that the student did not qualify as SLD. But screening showed the student to have dyslexia and the district did provide dyslexia services to address this.

The court ruled that the district committed a procedural error by not identifying the student as having a learning disability.  The judge noted that the legal definition of “specific learning disability” offers several conditions as examples of an SLD. One of those is “dyslexia.”  So as far as the judge was concerned, this was pretty simple:

The IDEA’s statutory language explicitly includes dyslexia as a disorder included as an SLD.  The District diagnosed [the student] with dyslexia; therefore, the District violated the IDEA by determining in its assessment that [the student] no longer met the eligibility requirements for an SLD and thus was no longer entitled to Special Education or an IEP.

This turned out to be a harmless error. Even though the district did not label the student as having SLD and did not create an IEP to address it, the district continued to provide good services that enabled the student to make progress.  No harm, no foul.  For the district involved in this case, this decision is vindication.  It’s a win.

But the decision is likely to drive educational diagnosticians batty.  The court holds that once a student has been identified as having dyslexia, no further testing is required. Look at this quote:

In the present case, [the student] has already been diagnosed with an eligible condition, thus bypassing both the need for additional testing to determine SLD status and the District’s discretion in making such a determination.

In other words: if the student has dyslexia, test no more: the kid is eligible.  Write an IEP.

This ruling is not consistent with the newly revised Dyslexia Handbook we have. The Handbook tells us that students with dyslexia might be eligible under IDEA, or they might be eligible under 504. The Handbook also suggests that some kids with dyslexia are not “substantially limited” in a major life activity, and therefore, are not eligible under either IDEA or 504.   So we have that, and now we have a federal court telling us that it’s simpler than that: that all kids with dyslexia are eligible as SLD under IDEA.

Confused? You should be.  I think the main point to be made is that the definitions and procedures for testing and identification of students with dyslexia are ambiguous enough that second guessing is inevitable. The case is William V. v. Copperas Cove ISD, decided by the federal court for the Western District of Texas on December 10, 2018.

DAWG BONE: MAKE YOUR PEACE WITH THE AMBIGUITIES.

Tomorrow: have you heard about “Bannergate”?

The 9^th Circuit Court of Appeals has enjoined a school board from complying with its official policy that calls for a prayer to open the school board meeting.  This issue is now nicely teed up for Supreme Court review. Just last year our 5^th Circuit gave its approval to the practices of Birdville ISD.  In Birdville, a student made an opening presentation which, more often than not, was a prayer. The 5^th Circuit held that school board meetings are more like legislative sessions than they are high school football games. While that may seem like a strange comparison, it’s based on prior SCOTUS rulings. The High Court was OK with prayers at a legislative session or a city council meeting, but not with a high school football game.  What’s the big difference?  The presence of young people.

And that’s what was crucial in the 9^th Circuit case. The court pointed out that students, some as young as second grade, were often at school board meetings to either perform or be recognized. Moreover, a high school student served as an active member of the board.  As the court noted, concerns over the Establishment Clause (more familiarly known as the principle of church-state separation) are particularly acute when young, impressionable minds are exposed to government officials endorsing a particular religious view.

So it continues.  We may see a case on this issue decided by the Supreme Court. We now have three circuits that have shot down school board prayer (3^rd, 6^th and 9^th) while the 5^th was OK with it, at least as they did it in Birdville. That kind of disagreement among the Circuit Courts is usually the basis for a decision by our highest court. So stay tuned.

This one is Freedom from Religion Foundation v. Chino Valley USD, decided by the 9^th Circuit on July 25, 2018. We found it at 896 F.3d 1132.

DAWG BONE: SOMETHING TO KEEP THOSE NINE JUSTICES BUSY…

Tomorrow: if the student has dyslexia is she automatically eligible for special education?

A California case from last year illustrates how important it is to evaluate a student in the area of behavior when the circumstances warrant.  There is a federal regulation that mandates an FBA (Functional Behavioral Assessment) under certain circumstances, but an FBA is a good idea at other times as well.  In other words, don’t wait until you have to do an FBA—do one when you should.

And when should you? Well…of course that’s an individualized judgment call, but this case reminds us that your judgment calls are subject to second guessing by hearing officers and judges.

The case involved a kindergarten student who was exhibiting enough problematic behaviors to justify an SST meeting (Student Support Team) in mid-September.  Reviewing all of the information and considering that the student was very young and getting adjusted to school, the team decided not to make a referral for special education testing. However, they did create a behavior contract for the student.

By the following February the district concluded it was time to refer for testing.  Although the school did not conduct an FBA it did conduct evaluations sufficient to classify the student as having an emotional disturbance, and to support various behavioral interventions in the IEP. It’s hard to see what an FBA would have accomplished that the existing evaluations did not.  Nevertheless, the court held that the district failed to conduct a full, individual, initial evaluation by failing to do an FBA. The case is E.S. v. Conejo Valley USD, decided by the federal court for the Southern District of California on July 27, 2018. We found it at 72 IDELR 180.

In the Toolbox training we offer a full day review of special education discipline regulations and the ten “tools” that schools can use to maintain safety and order while serving each child.  In the Toolbox we put much emphasis on the importance of good solid evaluations to support your decisions.  If that sounds interesting to you, let me hear from you!

DAWG BONE: LOTS OF ROOM FOR SECOND GUESSING IN SPECIAL EDUCATION DECISION MAKING.

Tomorrow: Are we going to get a SCOTUS case on prayer at board meetings?

Are you ready to go back to work?  No?  Well…turns out it doesn’t matter if you’re ready.  It’s on.  So welcome back!

This is a great time to sign up for one of our law firm’s excellent HR Symposiums.  We’ve been doing this for several years now, always in February. That’s the time you are preparing to make most of your major personnel decisions for the year. So we will be sending teams of lawyers to eight different locations this year for the annual HR Symposium.  To sign up, just go to our firm’s website, www.walshgallegos.com.   Go to Events and look for the HR Symposium closest to you.

Here’s the schedule:

February 4:    Regions 10 and 11 at NOAH’s Event Venue in Irving
February 5:    Region 20
February 6:    Region 4 at Aldine Child Development Center
February 6:    Region 12
February 11:   Region 13
February 12:   Region 1 at Courtyard by Marriott in Harlingen
February 13:   Region 3
February 14:   Region 6

DAWG BONE: BE THERE OR BE SQUARE!

Tomorrow:  The first Toolbox Tuesday of 2019!  I know that makes you excited, but try to get some sleep tonight.

The Dawg is off for a bit.  We hope you have a restful and enjoyable holiday break. Look for the next Daily Dawg on January 7, 2019.

DAWG BONE: HO! HO!! HO!!!

We are approaching a break in the school year in which we celebrate with loved ones and seek to foster peace on earth and good will toward all.  So I want to start the final week of 2018’s Daily Dawgs with a wonderful affirmation of the good work done by educators in Spring Branch ISD.  Sifting through the dry legal analysis of the 5^th Circuit I could clearly see the professionalism and caring of educational professionals.

The case involved a little girl with significant disabilities and health issues.  Despite the fact that she lived just one block from Frostwood Elementary, she was assigned to Wilchester because that’s where the Life Skills unit was.   Everyone was happy with this arrangement for several years.  In April, 2014, the ARDC met to consider the IEP for 4^th grade.  The IEP was agreed to, including the placement in the Life Skills unit at Wilchester.

One week later the school decided to transfer the girl to Frostwood, where a new Life Skills unit would be opening for the 2014-15 school year. No ARDC meeting was held to discuss this.  Upon being informed of it, the parents were nervous. They were very happy with everything at Wilchester and wondered if this change would be good for their little girl.

To make a long story short, I will just say that there was a lot of back and forth between parents and school during that fall semester at Frostwood.   In January, the parents pulled their child out of Spring Branch, placed her in a private program and sought a due process hearing to recover tuition.  The parents alleged that the district had failed to provide FAPE.

The hearing officer ruled for the school, as did the district court, and as did the 5^th Circuit.  The court’s decision features two legal headlines. First, the court held that the SCOTUS ruling about FAPE in Endrew F. v. Douglas County is not a game changer for us in the 5^th Circuit as it is consistent with the way we have always interpreted what “FAPE” means. Second, the court affirmed that this ARD-less transfer was just a change of location—not a change of placement. Thus, an ARD meeting was not necessary.

Beyond those legal points, though, the court cited many ways in which the school responded to parental concerns professionally.

*At parent request, the school transferred to the new school an aide who was familiar with the child.

*The principal immediately granted the dad’s request for a change in morning drop off procedures.

*In response to parent concerns, the school nurse trained a number of staff members to assist the student in the event of a medical emergency.

*The court cited the extensive and “free-flowing” communication between teacher and parents, including a blog.  The mom and the teacher texted each other “frequently during the day.”

*The teacher agreed to microwave the student’s food to make it more appealing.

*When the Life Skills teacher was going to be absent for a time due to her own medical issues the school held a meeting with all of the parents in that unit.

*In response to the teacher’s absence from the classroom, the father, a lawyer, threatened to sue “with unimpeded professional aggressiveness.”   The district responded to this by reassuring the father that a certified teacher would be in the classroom.  The district’s behavioral coordinator visited the classroom the next day and brought in an instructional facilitator who specialized in teacher training.

Some of these are big things and some small. But overall, the court painted a picture of caring educators addressing parental concerns with patience and professionalism. Do these things factor into the court’s legal analysis?  You bet they do.  The professionalism of the school staff made it easy for the court to see that there was no “predetermination” here:

SBISD had not predetermined the outcome of E.R.’s 2014-15 IEP at the ARDC meeting.  Again, E.R.’s parents agreed with the end result. There is no reason to believe SBISD would not have listened to, and considered E.R.’s parents’ positions about adding more goals to E.R.’s IEP.  The facts are replete with accommodations made by SBISD. From a blog, to emails, to personal meetings, SBISD communicated with E.R.’s parents.

So congratulation to Spring Branch ISD and its staff.  This is how it’s supposed to work.

The case of E.R. v. Spring Branch ISD was decided by the 5^th Circuit Court of Appeals on November 28, 2018.  We found it at 2018 WL 6187765.

DAWG BONE: DO THE RIGHT THING.  YOU’D BE AMAZED HOW OFTEN THAT CONFORMS WITH YOUR LEGAL DUTIES.

 Tomorrow: Well….just tune in tomorrow.

Dear Dawg: Chapter 37 gives us the authority to put a kid in the DAEP for off campus Title 5 felonies, but only if we have a “reasonable belief” that the kid has done this.  How are we supposed to determine that our belief was “reasonable”?  Until I was eight years old I believed that a jolly fat man, assisted by a team of reindeer, traveled all over the world on a single night delivering presents to children who were nice and not naughty.  In fact, I even believed that he could make his way into my apartment which had no chimney. These beliefs seemed “reasonable” at the time, seeing as how the people who brought me into the world and had taken care of me told me that this was how it happened. Turns out that none of what they told me was true. Does that mean that my belief was not “reasonable”?  ‘PRECIATE YOUR HELP.  AND MERRY CHRISTMAS.

DEAR ‘PRECIATE: Merry Christmas to you too!  The Dawg also bought that whole story, even to the point of leaving a snack of carrots for the reindeer and cheese, crackers and a beer for the jolly fat man.  As children, indoctrinated with a lot of hooey from our parents, I think our beliefs were “reasonable.”  But we were gullible children, and there was a vast national conspiracy designed to make us believe this stuff.  Now we are grown up, and should not base our beliefs on any old story someone tells us.

Chapter 37 gives us some good guidance on this at 37.006(e):

In determining whether there is a reasonable belief that a student had engaged in conduct defined as a felony offense by the Penal Code, the superintendent or the superintendent’s designee may consider all available information, including the information furnished under Article 15.27 Code of Criminal Procedure.

That section of the CCP requires law enforcement to notify the school of any arrest of a student.  Oral notice must be given within 24 hours of arrest, with written follow up within seven days. Both the oral and written notices must “contain sufficient details of the arrest or referral and the acts allegedly committed by the student to enable the superintendent or the superintendent’s designee to determine whether there is a reasonable belief that the student has engaged in conduct defined as a felony offense by the Penal Code.” The statute goes on to say that this information from law enforcement “shall be considered” by the superintendent or designee.

So you are supposed to consider “all available information” but you MUST consider the information provided in the oral and written notice required by CCP 15.27.  After reviewing all of that, lean back in your chair, put your feet on the desk and mull it over: based on the information that I have is it “reasonable” to believe that the student engaged in this conduct?  Hope that helps.

DAWG BONE: HOPE THAT SOUNDS “REASONABLE.”

Tomorrow: A big win for special educators at the 5^th Circuit.

The Toolbox is a full day training program our firm offers, designed to help educators serve students who present challenging behaviors.  The idea is to serve each student appropriately, legally and safely.  But sometimes situations call for swift, emergency action.  That’s what happened in a district in Pennsylvania that ended up in federal court defending the actions of its SRO.

The court held that the SRO’s attempted pat down search of the student with autism was not unreasonable and did not violate the 4^th Amendment.  Nor was it unreasonable for the officer to tackle the student when the student attempted to flee the office. The school officials and officer had reasonable, individualized suspicion that the student had a knife and intended to use it.   The student’s autism did not change the legal analysis. Key Quote:

The Court further rejects Salyer’s argument that his autism rendered the search unreasonable.  Salyer failed to cite a single case to support his contention that an individual’s mental illness alters the reasonableness inquiry into whether a search of that individual violates the 4^th Amendment, and the Court is not aware of any such authority.

Notice that the court’s analysis here is limited to the constitutional issues.  Other issues could be presented. Did this action conform with state laws pertaining to the use of force?  Was there anything in the student’s IEP that might be relevant?

That’s the kind of thing we address in the Toolbox training. If you would like to know more, send me an email and we can talk.

This case is Salyer v. Hollidaysburg Area School District, decided by the federal court for the Westerm District of Pennsylvania.  We found it at 72 IDELR 182.

DAWG BONE: ANY DAY WHEN YOU HAVE TO TACKLE A STUDENT IS NOT A GOOD DAY. 

Tomorrow: what does “reasonable” mean?