A student identified as A.H. was a senior at Evanston Township High School in Illinois and a gifted athlete, participating in swimming, cross country and track.  He had been on the track team throughout high school and never missed a track meet.  However, A.H. never qualified for the state track meet or the prestigious 5K Road Race. He was not fast enough.

That was probably because he had spastic quadriplegia related to cerebral palsy.  While A.H. was considered an elite athlete in the disabled community and he competed in the U.S. Paralympic Trials in 2016, he was never going to qualify for the Illinois State Track Meet. We can be pretty sure about that.  A.H.’s combination of disabilities put him in the T-36 category of disability.  As the court noted, “world record holders in the T-36 classification would be unable to achieve any of the qualifying times” for the state track meet.

Illinois, like Texas, offers wheelchair events at the state meet. But A.H. did not compete in a wheelchair. He was a runner. In fact, he ran the 1600 meter race for his high school team at Sectionals and throughout his cross country career he had never finished last.  That is pretty impressive.  So the argument here was not about the student’s participation on the team.  It was about making it to the State Track Meet.

A.H. requested three accommodations: 1) a modified starting block in short races; 2) creation of separate time standards for para-ambulatory athletes to qualify for the state meet; and 3) a separate division for para-ambulatory athletes in the state’s 5K Road Race.  He got the modified starting block but was turned down on the other two requests.

The 7^th Circuit held that A.H. was not entitled to separate time standards or a separate para-ambulatory division. The closest argument was over the separate division.  The court noted that many states have such a division, but that does not mean that they have to.  The court concluded that creating a separate division for athletes like A.H. would make it easier for him to qualify for the state meet. Thus it would give him an unfair advantage over other athletes. Therefore, it would be a “fundamental alteration” of the program.  Key Quote:

The Supreme Court and this Court have recognized that lowering particular eligibility or qualifying requirements established by an entity can be substantial modifications that are unreasonable.

 These are always difficult cases. There is a natural sympathy in favor of the student with a disability who wants to participate in athletics.  This is balanced against a desire to ensure fair competition.  Any accommodation that would guarantee a student’s success in athletics is probably “unreasonable.”  There are no guarantees in athletic competition for anyone.  Guaranteed success goes against the very nature of competition. That’s why it’s considered a “fundamental alteration.”

There was a strong dissent in this case. The dissenting judge did not perceive that A.H. was seeking guaranteed success, but rather, a chance to compete against similarly situated athletes. The dissenting judge pointed out that Illinois offered several separate divisions: boys competed only against boys; girls against girls; wheelchair athletes against those similarly situated. In fact, Illinois even offered a separate division for small schools. So this judge did not think it at all “unreasonable” for A.H. to have a separate division for athletes like himself.

The case of A.H. v. Illinois High School Association was decided by the 7^th Circuit Court of Appeals on February 2, 2018. We found it at 881 F.3d 587 and 71 IDELR 121.

DAWG BONE: WHAT’S “REASONABLE” IS OFTEN HARD TO FIGURE OUT.

Tomorrow: A principal wields “unilateral” power on Toolbox Tuesday!

In the process of ruling in favor of a school district in a special education dispute, the 3^rd Circuit Court of Appeals had little good to say about some guidance from the Department of Education.  The case was about just how ambitious an IEP should be.  The little girl at the center of the dispute was below grade level, making slow progress.  The parents relied on a guidance letter issued by OSERS in 2015, to support their belief that a proper IEP would call for the student to achieve at grade level. The court summarizes and quotes from the letter:

“Research has demonstrated that children with disabilities who struggle in reading and mathematics can successfully learn grade level content and make significant academic progress when appropriate instruction, services, and supports are provided.”  It also instructs that “the annual goals…should be sufficiently ambitious to help close the gap” between the child’s current and grade level achievements.

The court concluded that the parents “overread the letter.”  Key Quote:

The letter sets forth research and aspirational goals, which may be helpful for some children. But while it aspires to “close the gap,” it does not specifically require grade-level goals for children who are not and cannot be fully integrated into regular classrooms. It never mentions a presumption.  Nor does it suggest that all (or even most) disabled children can advance at a grade-level pace.

On top of that, the court noted that a “guidance letter” from the Department of Education carries no legal weight:

Even if the letter could be read as relevant, it would neither bind nor persuade us.  Guidance letters do not enjoy Chevron deference.  And this guidance letter does not address the IDEA’s language, let alone parse it.

The Circuit Court affirmed decisions by the hearing officer and the district court that the student received FAPE and thus the parents were not entitled to tuition reimbursement.  The court held that Endrew F. did not change the standard for FAPE in the 3^rd Circuit.  By this time, the Endrew decision had sparked a national debate over what FAPE means, with many parents and advocates arguing that the SCOTUS ruling had significantly raised the bar.  After all, the Supreme Court told us that all special education students should have IEP goals that are “appropriately ambitious.”  Is it OK for a student to continually lag behind her peers?  Here’s what the Circuit Court said:

IEPs must be reasonable, not ideal. Though her parents argue otherwise, K.D.’s slow progress does not prove that her IEPs were deficient.

While courts can expect fully integrated students to advance with their grades, they cannot necessarily expect the same of less-integrated students…..[K.D.] received supplemental learning support for much of the day. So there is no reason to presume that she should advance at the same pace as her grade-level peers.

We should take seriously the admonition from SCOTUS to develop IEP goals that are “appropriately ambitious.” But as this case illustrates, sometimes parents may be seeking an IEP that is overly ambitious.  If it is overly ambitious it is inappropriately ambitious.

The case of K.D. v. Downingtown Area School District, was decided by the Third Circuit Court of Appeals on September 18, 2018. We found it at 72 IDELR 161.

DAWG BONE: IT’S THE GOLDILOCKS RULE: IEP GOALS THAT ARE NOT TOO HIGH OR TOO LOW, BUT JUST RIGHT.

Five police officers in San Benito CISD thought that the school district was violating the Fair Labor Standards Act (FLSA) by failing to calculate overtime pay properly. They filed a complaint about this with the U.S. Department of Labor (DOL).  While that complaint was pending, the officers had their pay cut.  Hmmmm. They saw a connection, and filed suit, accusing the district of retaliating against them for filing the DOL complaint.

But the court ruled in favor of the school district and now the 5^th Circuit has affirmed that ruling. The case is a good illustration of how budget cuts from the state lead to hard decisions at the local level, which might lead to litigation.  The case also provides a great example of how districts can marshal the evidence to prove that the real reason for a tough decision was a good one.

San Benito, like every other school district in Texas, was hit hard by budget cuts from the state after the 2011 legislative session.  The state reduced funding to the district by $5 million.  Meanwhile, insurance costs were on the rise.  The district had to make some tough decisions.  The court described the district’s response to the financial crisis:

It cut funds to and reduced eligibility for the pre-kindergarten program.  It dissolved 23 teaching positions. It left nine maintenance positions vacant. It cut the day care program.  It eliminated employee convenience leave.  And, while the officers’ DOL complaint was pending, it reduced the work days for all the officers in its police department from 226 days to 187 days, essentially cutting the officers’ summer hours.

It was largely the sweeping cuts that the district made in multiple departments, including cutting the hours of all of its police officers, that convinced the court that this was not an act of retaliation. Key Quote:

The School District offered legitimate reasons for why it made cuts to the police department in particular. Importantly, it cut the hours of all the officers in the department, not just the ones who had engaged in FLSA protected activity.  (Emphasis in original).

A plaintiff in a retaliation case is like a baseball player trying to get around the bases and score.  Our plaintiff gets to first base by showing that he has engaged in “protected activity.”  Here, the DOL complaint was protected activity.  He advances to second base by showing that he has suffered some “adverse employment action.”  These five cops were reduced from 226 days to 187—that’s a pretty large pay cut. So our runner is now on second base.

Almost all plaintiffs in retaliation cases make it to second base. But that accomplishes nothing.  You have to get around third base and come home safely. To do that, you have to prove causation—that the adverse employment action happened to you BECAUSE you engaged in protected activity.  That’s where the five police officers fell short.  The district persuaded the court that these five police officers were simply swept up in a much larger budgetary adjustment.  It wasn’t retaliation.  As Michael Corleone once observed (in a very different context) “it wasn’t personal. It was business.”

The case of Espinoza v. San Benito CISD was decided by the 5^th Circuit Court of Appeals on October 12, 2018.  We found it at 2018 WL 5018491.  I’m pleased to report that the excellent lawyering in this case was done by Mike Saldaña, Stacy Castillo and Leandra Ortiz of our firm’s Rio Grande Valley office.

DAWG BONE: PROVING CAUSATION IS THE HARD PART.

 Tomorrow: can an IEP be overly ambitious?

The 5^th Circuit has affirmed the decision of the Department of Education that Texas is ineligible for over $33 million in special education federal money.  That’s going to hurt.  The state asked the Circuit Court to issue a ruling on this quickly so that the 2019 Legislature will know what it is dealing with. The Circuit Court did rule quickly. So now we know where we stand:  $33 million in the hole.

This was entirely avoidable.  The Court held that the weighted student model that Texas uses for funding of special education is fundamentally flawed.  In effect it enables individual ARD Committees to determine the overall level of state funding for special education.  Funding in Texas is tied to student need. Student need is determined case by case as ARD Committees write IEPs and determine placement.  Under the Texas model if a student needs less intense services, the state provides less funding.  So if a thousand ARD Committees reduce services by just a little bit for each student it has a cumulative effect on state funding. Then consider what happens when the percentage of students receiving special education services drops, as it did in Texas.  Fewer kids in special ed, and many of those kids receiving less intensive services. It adds up.  Thus in 2012 Texas allocated $33 million less for special education than it had in 2011.

Our model, which has been in place since 1995, is broken.  Texas argued that every child in Texas still received an appropriate education.  For purposes of this case that was not disputed. But the Circuit Court said that it didn’t matter. The statute is pretty simple. It looks at the total amount of money you allocate for special ed from year to year. Did it go up or down? If it went down, you broke the law. Simple.

The court pointed out that Texas could have sought a waiver of the requirement. If it could produce “clear and convincing evidence” that every eligible child in Texas was receiving an appropriate education, it could obtain a waiver from the Secretary of Education to justify reduced funding. But T.E.A. did not do that. Instead it relied on the complex “weighted student” formula that had the effect of reducing funding.

The court pointed out how the Texas formula empowered ARD Committees to do what only the Secretary of Education is authorized to do:

The weighted-student model circumvents the waiver process by allowing a state to reduce its amount of financial support whenever the state—rather than the Secretary—determines that special education needs of children with disabilities are adequately funded.  Indeed, Texas claims to have funded special education according to the diverse instructional arrangements that its students need to succeed. But the state admits that those needs are determined by an “individualized education program” team.  Conversely, the IDEA entrusts that discretion to the Secretary, permitting a waiver only if she concludes that all disabled children enjoy a free appropriate public education.  Thus, the weighted-student model undermines the waiver process by enabling a state to decide, on its own initiative, that it sufficiently funded the needs of children with disabilities.

Some of you may be thinking: isn’t the ARD Committee supposed to determine student needs?  And the answer to that is yes—absolutely. But that does not give the ARD Committee the power to determine the funding.  The state is obligated to fund special education with at least the same amount of money that it allocated the previous year.  If state officials believe that there is a good reason to deviate from that in a given year they are supposed to explain that to the Secretary of Education and get approval for the reduction.

T.E.A. did not do that. T.E.A. let us down.

The case is Texas Education Agency v. U.S. Department of Education, decided by the 5^th Circuit on November 7, 2018. We found it at 118 LRP 46003.

DAWG BONE: ANOTHER CHALLENGE FOR OUR GOVERNOR AND LEGISLATURE.

Tomorrow: Cuts in funding lead to cuts in personnel, lead to litigation.

How important is it for your coaches and sponsors of extracurricular activities to know about a student’s disability? According to a recent court case from California: very important.

Students and their parents sometimes file lawsuits after a coach dismisses a player from a team. Those lawsuits are rarely successful. Courts are not likely to intervene in such disputes. Moreover, while kids have a legally protected right to get an education, they have no “right” to participate in extracurricular activities.  So cases over athletics, cheerleading, and debate team are usually tossed out of court quickly.

That’s not what happened in Elk Grove, California.  The district asked the court to dismiss the case but the court refused to do so.

While there is no “right” to be on the basketball team, there is a “right” not to be discriminated against on the basis of disability.  In this case the parents allege that their son was left off the varsity basketball team because of his disability.  From the court’s opinion it sounds like the school is basically conceding that point.  The student was kept off the team not because of a lack of talent, but due to behavioral issues.  The student had an IEP due to his emotional disturbance.  The school basically argues that it can keep him off the team due to his behavior, even if the behavior is a manifestation of disability.

At this early stage of legal proceedings the court rejected that argument.  Key Quote:

Although the evidence may later prove plaintiff’s behavioral outbursts meant he did not meet the requirements for temperament of a Varsity basketball player, plaintiff’s allegations, construed in his favor, plausibly show he “met all of [Varsity’s] requirements in spite of his handicap.”

I’ll offer a prediction on this one. I think the school will ultimately prevail in this case.  Controlling your temper is a legitimate requirement for participating in varsity sports.  I expect you could line up coaches from here to the Super Bowl to testify to the truth of that statement.  So even if the emotional outbursts are part of the student’s disability, they would prevent him from being “otherwise qualified” for varsity sports, which is the standard the student must meet as per Section 504.

But let me offer another observation. The school will be wise in this case to demonstrate the steps the coaches took to “reasonably accommodate” the student.  Think about it. If a blind student or a wheelchair bound student wanted to be in the band, and could play an instrument properly, you would expect the band director to make “reasonable accommodations” to enable the student to participate. But the student would still have to play the instrument properly.

It’s no different when the student’s disability affects behavior.  Here, the district had identified the student as emotionally disturbed and had an IEP for him.  The coaches knew this, or they should.  So, just as in the case of the blind or wheelchair bound student, the coaches need to make “reasonable accommodations” before they apply their rules of behavior. If, after reasonable accommodation, the student is not capable of abiding by the rules, the student can be removed from the team.  But if reasonable accommodation is not provided….no telling what the court might say.

This is the kind of thing we talk about in Toolbox presentations.  The Toolbox is a full day training program focused on the rules for taking disciplinary action with students with disabilities.  If interested, let me know—we are booking dates for next calendar year.

This case is Brown v. Elk Grove USD, decided by the federal court for the Eastern District of California on February 20, 2018. We found it at 71 IDELR 163.

DAWG BONE: NO RIGHT TO BE ON THE TEAM, BUT A RIGHT NOT TO BE DISCRIMINATED AGAINST.

 Tomorrow: federal special ed funding cut by millions due to T.E.A.’s error.

On December 4, our firm will be providing an audio conference addressing the legal issues that pertain to Section 504.  This would be an excellent opportunity for 504 coordinators, special education directors, curriculum directors, superintendents and principals to learn the latest on this very important topic. Schools are being bombarded with requests for 504 services and parent complaints about non-compliance are on the rise.  Eric Rodriguez and John Muniz from our firm’s San Antonio office will walk you through many of the common concerns, providing practical suggestions for staying legal.

Go to our firm’s website to sign up: www.walshgallegos.com. This is an excellent and very affordable way to stay up to date.

DAWG BONE: ON 12-4 LET’S DO 504. 

 Tomorrow: what do coaches need to know about special ed and 504?

The Dawg is eating turkey and watching football this week and encourages you to do the same.   Oh, and let’s not forget the pumpkin pie.  We’re taking a break this week.  See you next Monday, November 26^th.

DAWG BONE: I SUPPOSE SOME OF YOU PREFER PECAN, BUT I’VE NEVER UNDERSTOOD THAT.

I found a case from Arizona in which a school “unenrolled” a student because he was absent for ten consecutive days.  This later became an issue in a special education dispute between the parent and the school. The court held that the “unenrollment” was not a violation of the student’s right to FAPE: a Free Appropriate Public Education. The case is Pangerl v. Peoria USD, 73 IDELR 49 (D.C. Ariz. 2018).

How would a thing like this play out in Texas?  Can you simply “unenroll” a student due to lack of attendance?  I scoured the Student Attendance Accounting Handbook (SAAH) in search of an answer to this question and I think I’ve found it.  It’s at Section 3.4.3:

3.4.3 Students Whose Whereabouts Are Unknown

Your district should decide the withdrawal date for a student who never officially withdrew from school, but whose whereabouts can no longer be determined, according to applicable local policies. For example, local policy may state that a student is withdrawn 10 days after he or she last attended if his or her whereabouts are unknown. Once withdrawn, a student in grades 7 through 12 must be reported as a school leaver on a 40203 Record and will possibly be considered a dropout according to Section 2 of the TSDS PEIMS Data Standards.

I take that to mean that you cannot withdraw a student unless 1) your board has adopted local policies permitting you to do so; and 2) you can’t locate the kid.  However, there is one other wrinkle on this, based on one of the “examples” that is provided in the SAAH:

3.11.31 Example 31

A student enrolled in your district has left the district to act in a movie that is being filmed in another state. The student’s parent said that the student would be in the other state for several months but might return before the end of the school year. District staff members would like to withdraw the student for the duration of the student’s absence.

Because your district has become aware that the student no longer resides in the district, your district may withdraw the student.

 To summarize: first, look at your local policy. If your board has adopted policies that authorize a withdrawal, you will probably find it at FEA (Local).  It will likely track the SAAH.  Second, if you know where the student is, you cannot withdraw the student unless you have been notified that the student no longer resides in your district.  Your FEA Local may require diligent efforts to locate the student.  If you have the local policy, and you make diligent efforts, and you cannot locate the student, you can administratively withdraw the student.

Legal questions can come up about this, and “withdrawal” is a fairly harsh thing to do. So when in doubt, give you school attorney a call.

DAWG BONE: CAN YOU BELIEVE THERE ARE 31 EXAMPLES OF THIS IN THE STUDENT ATTENDANCE ACCOUNTING HANDBOOK?

Dear Dawg:  I thought you might be interested to hear about our recent ARD meeting.  It was for our representative in the state legislature.  After reviewing his performance over the years we came to suspect that the man may be suffering from a disability that calls for intervention.  We referred him to our ARD Committee and asked the Committee to review the data, consider eligibility and develop an IEP for the upcoming session.  Here are the minutes:

The Committee convened on October 15, 2018 to consider the referral of Representative Foggybottom.  Present were representatives of all constituencies: Teachers; Administrators; School Board Members; Students; Taxpayers.  Representative Foggybottom was also present.

Review of Evaluation Data:  Our Full Individual Evaluation of the Representative showed that he has served in the legislature for eight years. During that time he has spoken eloquently of his support for the public schools. He has attended many school events—graduations, football games and other celebratory occasions where his picture has been taken with smiling students or teachers.  He has consistently voted to pour more state money into charter schools. He has supported every scheme that the Lieutenant Governor has proposed for diverting state funding from public schools toward private schools.  He has bemoaned rising local property tax rates and vowed to find a way to lower them. However, he has supported state budgets that rely on increases in local property values to justify lower funding by the state.

Eligibility: After reviewing the FIE, the Committee found the Representative ELIGIBLE for an IEP.  His primary disability is HYPOCRISY. The Committee considered a second category--IGNORANCE.  However, after considering the Representative’s educational background (B.A., J.D.), and eight years of experience in the legislature the Committee concluded that he did not satisfy eligibility criteria as a Person with Ignorance.

The finding of HYPOCRISY was based on a severe discrepancy between the promises of the Representative and the performance.  Some members of the Committee referred to the Representative as a “hypocrite” but the chair admonished them to use “person first” language. Thus we refer to the Representative as a “Person with Hypocrisy.”

Present Levels: Representative Foggybottom serves on the Education Committee, is well respected by his colleagues and has demonstrated an ability to advocate effectively for things he believes in.  His strong advocacy for the “bathroom bill” last session almost resulted in its passage.  Thus Representative Foggybottom has many strengths.  He could be a great supporter of public education if he can overcome the effects of his disability.

Annual Goal:  By the conclusion of the 2019 session, Representative Foggybottom will have advocated and voted for 1) full pre-K funding; 2) a reduction in statewide testing; 3) meaningful teacher pay increases; 4) a moratorium on new charters; 5) a rejection of any program that diverts state funding to private schools; and 6) a complete overhaul of the school finance system with a 20% increase in funding from the state.

Services:  Educators will redirect the Representative away from acts of Hypocrisy by saying things like “Now, that’s your disability showing up again.  Let’s ask ourselves: what would a person with Integrity do instead?”  Educators will stay on his case relentlessly.  Every action that manifests Hypocrisy will be challenged.

Measures of Success: By the end of the legislative session, Dan Patrick will say something along the lines of “I don’t know what happened to Foggybottom.  He used to do what I told him to do.  Don’t know what happened.”

Well, Dawg, we know the Supreme Court has said that an IEP should be “appropriately ambitious.”  This one is. We hope it works.

DAWG BONE: MAYBE WE SHOULD SEE MORE OF THIS!

 Tomorrow: Absent for more than 10 days. Now what?

Teachers facing possible nonrenewal of contract have 15 days to request a hearing.  So imagine this scenario:

May 9, 2017: district hand delivers notice of proposed nonrenewal to teacher. Fifteen days after this is May 24.

May 22, 2017: Teacher requests a hearing by letter sent certified with proper address and proper postage.

May 24, 2017: Deadline arrives. The letter is in the custody of the USPS.

May 26, 2017: Letter arrives.

Has the teacher requested the hearing in timely fashion?  Commissioner Morath says no.  The district never gave the man a hearing and the Commissioner ruled that they didn’t have to. He was too late with his request.  The “mailbox rule” whereby a notice is deemed to have been delivered when it is properly placed in the mailbox does not apply to a teacher’s request for hearing in connection with a proposed nonrenewal.

The case is Gilmore v. North East ISD, Docket No. 026-R10-01-2018.  Commissioner Morath signed off on this one on September 24, 2018.

DAWG BONE: THE MAILBOX RULE APPLIES ONLY WHEN A STATUTE AUTHORIZES NOTICE BY MAIL.

Tomorrow: An IEP for our state rep!