On Tuesdays around here we like to talk about the Toolbox—an all day training program designed to help schools serve all students appropriately and safely. The Toolbox features ten “tools” that school administrators and ARD Committees can use to serve the students who present challenging behaviors.

The student who later became the plaintiff in a case from Alamo Heights ISD does not sound like one of those students.  In recounting the student’s history in the district, the judge never mentions a single day of suspension, DAEP placement or the use of physical restraint. The student was taking mostly AP classes while participating in band and working toward Eagle Scout status. He graduated on time and, at the time of the court decision, was attending college.

Nevertheless, the parent argued that the school violated the law by failing to conduct all necessary evaluations. The parent argued that there should have been an FBA (Functional Behavioral Assessment).  The court made short work of that argument.  IDEA only requires an FBA when a child has been removed from the current placement for more than 10 days due to disciplinary infractions.  Even then, the law calls for an FBA “as appropriate.”  In this case, the student was not removed for disciplinary reasons at all, much less for more than 10 days. So no FBA was required.

As noted by the court, ARD Committees are required to at least consider behavioral strategies whenever the student engages in behavior that “impedes the learning of the student or others.”  But that was not the case here.

In the Toolbox training we emphasize that the most important of the ten tools is the first one: the development of a Behavior Intervention Plan (BIP). That’s the only one of the ten tools that is designed to improve the student’s behavior.  A good BIP has to be supported by accurate, comprehensive and current evaluation data. That’s where an FBA comes in.

If you are interested in the Toolbox, let me know—I’d be happy to come to your district or ESC to provide this training.

The case discussed today is A.L. v. Alamo Heights ISD, decided by the federal court for the Western District of Texas on October 12, 2018. We found it at 2018 WL 4955220.

 DAWG BONE: BIPs ARE NOT REQUIRED UNTIL AFTER TEN DAYS OF DISCIPLINARY REMOVAL.

 Tomorrow: a missed deadline.

When A.L. (aka “the plaintiff”) was a sophomore at Alamo Heights High School he was placed in the district’s special education program.  His first IEP went into effect in mid-April of that year, and set out four goals: self advocacy, task prioritization, task management, and a study goal.

That sounds like a set of goals that would be good for teachers, lawyers and other professionals!  A.L. is apparently a very bright student. He was taking many A.P. classes and eventually passed the STAAR tests, graduated and went to college.  So you must be wondering: what was the lawsuit about?

The parent argued that the district failed to “find” him on time, failed to evaluate the student thoroughly, and failed to provide FAPE. The hearing officer rejected all of those arguments and now the federal court has agreed with that.  However, the case is worth mentioning because of what the court did not do: the court did not declare the case “moot” because the boy had graduated.

Citing a recent 5^th Circuit decision, the court noted “that a claim for compensatory relief under IDEA may not be mooted by expiration of special education eligibility.”  The parents sought compensatory relief in the form of tutoring to help the student in college. They did not get it, but only because they failed to prove a denial of FAPE or any other violation of IDEA.   Graduation in and of itself did not end the dispute.

The case is A.L. v. Alamo Heights ISD, decided by the federal court for the Western District of Texas on October 12, 2018.  We found it at 2018 WL 4955220.   We’ll talk about this one again tomorrow for Toolbox Tuesday.

DAWG BONE: GRADUATION DOES NOT MEAN THAT IT’S OVER.

 Tomorrow: Toolbox Tuesday talks about FBAs.

Mr. Martinez had a three-year contract as a “Certified Professional Administrator.”  Up until the summer of 2017, he was assigned as the district’s Director of Parental Involvement.  Then the superintendent reassigned him to be a Truancy Officer.  His salary and benefits would remain the same.

Mr. Martinez filed a grievance over this and obtained some relief, but not what he wanted.  He wanted to be put back in his previous job.  That did not happen, but his title was changed to Attendance and Adjudication Administrator.

Still dissatisfied, Mr. Martinez took his complaint to the school board (grievance denied) and then to the T.E.A.  Now the Commissioner has tossed the case out for lack of jurisdiction.  The decision points out that the Commissioner has jurisdiction over personnel disputes if they 1) involve a breach of contract that caused monetary harm; or 2) if the term contract employee was not renewed in the same professional capacity.

There was no monetary harm here:

If an employee does not lose salary or benefits based on an alleged violation of a written contract, the employee has not suffered monetary harm.

And the term contract was not being nonrenewed.  The contract was just beginning the third of its three years:

The requirement in T.E.C. section 21.206(b) to employ a teacher in the same professional capacity is triggered only when a contract is about to expire and timely notice of proposed nonrenewal is not given.

Thus the Commissioner lacked jurisdiction and the reassignment was upheld. The case is Martinez v. Rio Grande City CISD, decided by the Commissioner on September 17, 2018.  It’s Docket No. 040-R3-03-2018.

DAWG BONE: TOUGH TO PREVAIL ON A REASSIGNMENT CASE.

 Enjoy the weekend! We’ll be back with more Daily Dawg next week.

Schools can limit their legal exposure in a special education dispute by making a settlement offer in writing, at least ten days before a due process hearing.  The law encourages the school to make a generous offer, and encourages the parents’ to accept it.  This “encouragement” comes in the form of consequences for not settling.

Specifically, if the school does not make a good settlement offer, and ends up losing the case, the school will be responsible for paying fees to the parent’s lawyer.  On the other hand, if the parent rejects a good offer and does not end up recovering more than what was offered, the parent will not recover attorneys fees.

A case from California points out that a good settlement offer should include reimbursement for attorneys’ fees incurred to date.  The court held that the parent was justified in rejecting the school’s settlement offer because the amount of attorneys’ fees offered ($10,000) was too low.  Key Quote:

MDUSD does not dispute that it made no effort to learn the amount of attorneys’ fees counsel had incurred as of the date of the offer. Nor is there any evidence in the record suggesting that MDUSD came up with the figure in the offer based on its expectation of what Plaintiff’s counsel was likely to receive if Plaintiff prevailed.

Given the IDEA’s goal of encouraging counsel to represent plaintiffs in meritorious challenges to school districts’ policies and practices, the Court concludes that Plaintiff was substantially justified in rejecting MDUSD’s settlement offer.

The case is S.H. v. Mt. Diablo USD, decided by the federal court for the Northern District of California on January 23, 2018. We found it at 71 IDELR 126.

DAWG BONE: REMEMBER: A GOOD SETTLEMENT USUALLY LEAVES EVERYONE A LITTLE UNHAPPY.

 Tomorrow: a reassignment case.

Parents of students in Boyertown Area School District in Pennsylvania claimed that the district was violating their children’s constitutional rights by allowing transgender students to use the bathrooms that corresponded to gender identity, rather than original biological sex. The case drew considerable interest from advocacy groups on both sides of this cultural issue as it worked its way to a Circuit Court.  The three-member panel of the court ruled decisively against the parents.

The district changed its policy in the 2016-17 school year.  Prior to that, all students were required to use the facility that matched their birth sex. But in 2016-17 the district allowed transgender students at the high school to use the facility that matched their gender identity.  For districts dealing with this issue, the court’s description of how the school went about this would be worth studying:

In initiating this policy [the high school] adopted a very careful process that included student-specific analysis.  Permission was granted on a case-by-case basis.

The District required the student claiming to be transgender to meet with counselors who were trained and licensed to address these issues and the counselors often consulted with additional counselors, principals, and school administrators. Once a transgender student was approved to use the bathroom or locker room that aligned with his or her gender identity, the student was required to use only those facilities. The student could no longer use the facilities corresponding to that student’s sex at birth.

Moreover, the high school was well equipped to handle this:

[The high school] has several multi-user bathrooms. Each has individual toilet stalls. Additionally, [the high school] has between four and eight single-user restrooms that are available to all students, depending on the time of day.  Four of these restrooms are always available for student use.

The court relied heavily on expert opinion about the difficulties transgender students face:

…transgender students face extraordinary social, psychological, and medical risks and the School District clearly had a compelling state interest in shielding them from discrimination. There can be “no denying that transgender individuals face discrimination, harassment, and violence because of their gender identity.”  [That quote is from an earlier 7^th Circuit case].

As this case illustrates, schools that make decisions about accommodating transgender students can be sued regardless of which decision is made.  The plaintiffs in this case claimed that their children’s right to privacy was being invaded.  The court did not see it that way, and particularly viewed any possible incursion on privacy as small potatoes compared to the harm that might befall a transgender student who was not accommodated.

Rumor has it that the Trump Administration may propose new Title IX regulations that would define “sex” as strictly limited to biological equipment bestowed at birth. If that happens, you can expect spirited litigation.  In fact, you can expect spirited litigation over this issue regardless.  So stay tuned.

This case is Doe v. Boyertown Area School District, decided by the 3^rd Circuit Court of Appeals on July 26, 2018. We found it at 897 F.3d 518.

DAWG BONE: SURELY THIS ISSUE WILL REACH THE SUPREME COURT.

 Tomorrow: how do you feel about paying the fees of the lawyer who sued you?

It’s Toolbox Tuesday, folks!! More importantly, it’s ELECTION DAY!!  If you did not vote early, the Dawg encourages you to STOP READING RIGHT HERE  and GO VOTE!

Pause. Pause.  Pause.  (Paws?).

OK—you’re back?  Good. Congratulations on performance of your civic duty.

On Tuesdays we highlight the Toolbox—an all day presentation designed to help you better understand the complicated morass of regulations that govern special education discipline.  Today we have an excellent case to share with you. It’s a case that focuses on what I call “the shoulda known kids.”

The “shoulda known kids” are general education students who are entitled to the procedural protections of our special education laws.  How can that be?  How can a student not identified and eligible for special education be entitled to the protections that apply to the students who are identified and eligible?

The short answer is that 34 CFR 300.534 tells us that there are such kids.  The regulation extends protection to a student if the school “had knowledge….that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.”  In other words, you “shoulda known.”

The regulation then outlines three categories of students who meet the “shoulda known” criteria.  Then there is an exception: if the parent has not allowed the district to conduct an evaluation of the child, or has been offered and refused services, then the parent cannot claim “shoulda known” status for the child.

That’s what happened in a recent case from California.  Here is the critical sequence of events:

September 15: mom gives the school a written request for an evaluation for special education.  Note: this puts the student into the “shoulda known” category.  But keep reading.

September 22: district agrees to do the evaluation and provides mom with the consent form to sign.

November 18: the district expelled the student without providing a manifestation determination or any other of the procedural protections that special education students would have. The district treated the student as a general education student because the mother had not signed the consent.

January 5: mom signed the consent.

The September 15^th request for an evaluation put the student into the “shoulda known” category, but mom’s failure to sign the consent for the evaluation that was offered pulled the boy out of that category.  Thus the court ruled that the district was not obligated to do a manifestation determination.

The court noted that the district made repeated efforts to obtain consent, going “the extra mile.”   The parent was evidently bilingual, as some communication came to the school in English and some in Spanish. The district communicated back to the mother in both languages, offering the consent form in both English and Spanish. Mother did not sign.  Key Quote:

To the extent that Plaintiff’s mother requested that he be evaluated for special education services by letter dated September 15, 2014, a basis for knowledge exists.   Nevertheless, the District is not deemed to have knowledge if the parent has not allowed an evaluation of the student. What the District must do is to make reasonable efforts to gain a parent’s informed consent for such evaluation.  As long as those reasonable efforts are made, a parent’s failure to consent to special education evaluation means that his or her child can be disciplined in the same manner as students without disabilities who engage in comparable behavior.

The case is A.V. v. Panama-Buena Vista Union School District, decided by the federal court for the Eastern District of California on January 8, 2018. We found it at 71 IDELR 107.

DAWG BONE: YOU CAN BE RESPONSIBLE FOR WHAT YOU “SHOULDA KNOWN.”

 Tomorrow: High level court weighs in on transgender students.

In the heat of the 2016 presidential campaign, the school board in San Diego, California directed the superintendent to “bring back to the board a plan to address Islamophobia and the reports of bullying of Muslim students....at a future date.”

Boom. Lawsuit.

You might think that any proactive effort by a school board to address the bullying of students would be greeted favorably.  But a couple of groups in San Diego saw a dark motive behind the board’s action.  The suit was filed by Citizens for Quality Education San Diego, the San Diego Asian Americans for Equality Foundation and six parents.

The plaintiffs alleged that the board was engaged in a “subtle discriminatory scheme” to promote Islam at the expense of other religions.  Much of the focus of the suit was on the district’s relationship with CAIR—the Council on American-Islamic Relations.  A federal judge in California recently issued a 54-page decision, denying the request of the plaintiffs for a preliminary injunction.  The organizations lacked “standing” to pursue the matter, as did most of the individual plaintiffs. The court did allow one plaintiff to proceed with the case based on allegations that a parent and child were:

‘spiritually affronted’ by [the school’s] conduct, which has chilled their participation in District activities; additionally, one Plaintiff alleges that [the school’s] conduct will cause the Plaintiff to remove the Plaintiff’s child from the District.

The district tried to avoid a lawsuit.  When the plaintiffs threatened legal action over the board’s original directive to the superintendent the district took corrective action.  It revised its policy to remove references to any specific religious group and, instead, more generally prohibited bullying of any student on religious grounds.  But the district still collaborated with CAIR and purchased materials recommended by CAIR. So the plaintiffs still thought the district was improperly singling out Muslims for special treatment. The suit was filed.

This entire episode would provide an excellent case study of how the culture wars come into play in the public schools.  In the era of “identity politics” those who govern are confronted with accusations of favoring one group at the expense of others.  In this case, the plaintiffs alleged that the district “‘lavishes’ Muslim students with ‘benefits’ not received by students of other religions.”  The judge rejected this “zero-sum view of who ‘benefits’ from the District’s efforts to address Islamophobia and anti-Muslim bullying.”  As the court noted, the effort to address the bullying of this particular group of students “accrues to all of the students at the School District by learning about the world.”

We all want the public schools to reflect our values.  As soon as we all agree on those values, things will be a lot easier. As Citizens for Quality Education San Diego v. Barrera demonstrates, that day of agreement is a long way off.  The case was decided on September 25, 2018 by the federal court for the Southern District of California. We found it at 2018 WL 4599700.

DAWG BONE: NO GOOD DEED GOES UNPUNISHED.

Tomorrow: Toolbox Tuesday and the “shoulda known kids.”

Dear Dawg: We have a conflict coming up among our board members about prayer at our meetings.  One member wants to pray, but only if the prayer is “nonsectarian and nonproselytizing.” I’m not sure what that means, and I sure don’t know how to deliver a prayer that meets those standards.  Another member thinks we can pray as much as we want and in any way that we want. What do you think?  HEAVEN HELP US.

DEAR HEAVEN:  Well, the 5^th Circuit has held that prayer at school board meetings is OK. The court concluded that a school board meeting is more like a legislative session than a football game, which is an interesting way to look at it. That analysis came from earlier SCOTUS decisions that concluded that prayer at a state legislative session is OK but prayer at high school football game is not.  So the 5^th Circuit decided that your school board members are more like legislators than football coaches and gave the green light to prayer.  See American Humanist Association v. Birdville ISD, 851 F.3d 521 (5^th Cir. 2017).   In that decision the court specifically said that you don’t have to make the prayer “nonsectarian.”

You still ought to be careful, thoughtful and respectful about how you do this.  There are limits to what a school board can do regarding prayer at the meetings and if a district were to push the envelope too far, courts would likely strike down certain practices.

If you want to know what “nonsectarian and nonproselytizing” would sound like, we can offer you this lame offering which was recited at a recent school graduation:

Please bow your heads.  We just want to say that we’re real happy today. This is a great day.  And if Anyone or Anything Out There had anything to do with us getting to this graduation day, why, we’re mighty grateful for whatever You did and however You did it, which we don’t know, and wouldn’t begin to try to persuade anyone else of, even if we did have a clue. So, like, have a nice day.

 We don’t think that “prayer” reached the heavens. In fact, we doubt that it cleared the cloud cover.   

DAWG BONE: PRAY FOR A GOOD OUTCOME FOR PUBLIC EDUCATION AT THE ELECTION NEXT WEEK.

“Unprofessional” is a word we hear pretty often in the world of education.  It often shows up in written form.  But I want to suggest three reasons why it might be wise to pause before describing an employee’s conduct as “unprofessional.”

First, the term is vague.  It’s subjective.  There are, no doubt, certain kinds of employee conduct that are so far across the line that we could get close to universal agreement that the employee has behaved “unprofessionally.” But there is a vast middle ground of questionable employee behavior.  Public schools employ a widely diverse group of people. We differ in age, ethnicity, background, culture, religion, values.  What is “unprofessional” to one person is not to another. So the inherent subjectivity of this vague term makes it a bit dangerous.

Second, accusations of “unprofessional” conduct go directly to character.  All employees will admit to having room for improvement, for making the occasional mistake or error in judgment. But nobody likes to be accused of behaving unprofessionally because it speaks to character, or lack thereof. Thus the person accused of being unprofessional is likely to be defensive, and we know that defensive people often go on the attack.

My third reason to suggest caution in the use of this term is tied into the first two. Because it is subjective, vague and goes to character, “unprofessional” is a term that often boomerangs right back on the person who used it.  It can go kinda like this:

Principal to teacher: Your behavior was unprofessional.

Teacher to principal: Unprofessional?!?!  UNPROFESSIONAL?!?!  You wanna talk UNPROFESSIONIAL???? Can we talk about you at last year’s Christmas party!?

When documenting employee performance you find your fingers poised over the keys that spell out “unprofessional,” pause and think about it. Is there another way to get your point across?  You might be able to simply say “you failed to comply with district policy.” Or: “you failed to comply with my directive.”  Or: “your conduct in this instance falls short of our district’s standards for teachers.”  Sometimes you can cite a specific provision in the Educator’s Code of Ethics, or in district policy.

There usually is another way to say it, and the other way is usually better.

DAWG BONE: AND THAT’S MY PROFESSIONAL OPINION.

 Tomorrow: a lame prayer.

It’s a fun day here at the law firm.  We like to take the opportunity to express our creative selves, and I can assure you, the lawyers in our firm are very creative. Last year the associate attorneys in the Austin office showed up at the office as the characters from Clue—all the way from Colonel Mustard to Miss Scarlett.  We never did figure out who committed the murder, but we’re pretty sure it was with a lead pipe in the library. This year—who knows?  But I’m looking forward to it.

Today is a good day to remind you of the right of parents to pull their children out of activities that they object to.  This is spelled out in Texas Education Code 26.010. The statute authorizes the parent to give a written statement to the teacher to authorize the removal. The removal is only temporary, and cannot be done to avoid a test or to prevent the child from taking a subject for an entire semester.  But there are many parents who object to Halloween activities, so you are likely to see a higher than normal number of requests for exemption.

Some parents object to Halloween because of their religious beliefs. Others find some of the activities morally offensive.  In either case, the child should be exempt.  The statute puts it this way:

A parent is entitled to remove the parent’s child temporarily from a class or other school activity that conflicts with the parent’s religious or moral beliefs if the parent presents or delivers to the teacher of the parent’s child a written statement authorizing the removal of the child from the class or other school activity.

Your district may have added some local policy provisions about that. If so, you will probably find those policies at EMB (Local).

DAWG BONE: REMEMBER TO HAVE FUN!

 Tomorrow: What do you think of the word “unprofessional”?