We celebrate the Toolbox on Tuesdays around here. The Toolbox is a full day program aimed at campus administrators and special education staff. The goal of the training is to empower school staff to use ten “tools” designed to serve students appropriately while maintaining discipline and good order.

Today, let’s talk about a situation that is quite common, especially when the student displays disruptive behaviors.  The teacher thinks the ARD Committee has made a big mistake.  Perhaps the teacher thinks the student should not be in her classroom at all. Or perhaps the teacher disagrees with parts of the student’s behavior plan.  Maybe the teacher finds some of the modifications and accommodations unnecessary or unduly burdensome. What’s a good teacher to do?

Here are eight possible steps to take:

1. Implement the current IEP completely and faithfully, including modifications and accommodations that the teacher disagrees with.
2. Give it some time.
3. Meet with the parents.
4. Seek assistance from special education staff or an experienced teacher.
5. Document all of the above.

If the desired improvement is not evident, move on to the final three steps:

6. Ask the principal to call for an ARD.
7. Prepare a written report for the ARD.
8. Ask to attend the next ARD.

This brief outline recognizes that the ARD is the architect of the building and the teacher is the contractor.  The IEP is the blueprint.  A building contractor makes a big mistake by ignoring parts of the blueprint. On the other hand, if the blueprint is flawed, the contractor is likely to be the first to notice.  The contractor should speak up….but only after following the existing blueprint faithfully.

DAWG BONE: IT’S OCTOBER.  THE STUDENT SHOULD BE SHOWING SOME PROGRESS BY NOW.

 Tomorrow: some suggestions on the definition of “boundary violations.”

Before we address substantive matters, can we all just bow our heads and express gratitude for OCTOBER!!  This is everyone’s favorite month, is it not? The weather is nice.  In northern climes the leaves turn to all manner of color.  Major football games occur. The World Series.  There is much to love about this month, and I’m pleased to kick it off Behind the Pine Cone Curtain in Region 7.

Now…as to our legal topic today.  It seems the litigious Doe family sometimes enrolls a child in a private school. The Doe Family is notorious for the volume and the scope of litigation they are involved in.  The Does file suit over religion, sex and other hot topics. But in this case, the dispute was over the expulsion of a high school student from the Episcopal School of Dallas.

Since this took place at a private school, the Does could not assert any claims under the U.S. Constitution.  Private schools are not encumbered by the Constitution, and thus are not required to respect freedom of speech or to provide due process of law.  But that did not deter the Does from asserting 12 (Count ‘Em-12!!) possible causes of action, to wit: 1) breach of fiduciary duty; 2) aiding and abetting fiduciary breaches; 3) breach of express warranties under the Texas Deceptive Trade Practices Act; 4) negligent misrepresentation; 5) fraud; 6) negligent hiring and supervision; 7) negligence and gross negligence; 8) tortious interference with a contract; 9) breach of contract; 10) promissory estoppel, unjust enrichment, money had and received/assumpsit; 11) intentional infliction of emotional distress; and 12) respondeat superior and vicarious liability.

The Court of Appeals ruled on none of that. Instead, the court held that it lacked jurisdiction to consider the case because such consideration would have interfered with the management of the affairs of a faith-based institution.  This ruling relied on the “ecclesiastical abstention doctrine.”  That doctrine is designed to protect the free exercise of religion by keeping the courts out of church business.

The case arose from the expulsion of young Mr. Doe.  The parents asserted that the expulsion was illegal for the above cited 12 reasons. In a nutshell, they argued that the boy was treated unfairly and differently than other students who had committed similar infractions. The Court bypassed all of that, rising above the fray:

The facts, however, conclusively establish that this dispute derives solely from the calculus of the school’s internal policies and management of its internal affairs, all directed at the school’s decision regarding whether Doe should be a member of the school community. Thus, this dispute fits entirely within the parameters of a dispute for which the ecclesiastical abstention doctrine applies.

The case is In Re: The Episcopal School of Dallas, Inc., decided by the Court of Appeals in Dallas on October 11, 2017. We found it at 2017 WL 4533800.

DAWG BONE: BEWARE THE DOE FAMILY.

 Tomorrow: Toolbox Tuesday and goofs by the ARD Committee

Wikipedia says that “inside baseball” is a phrase mostly used in the United States, referring to something that is understood by only a small group of insiders.  Today, the Dawg offers a little inside baseball about litigation, and some provisions of Texas law.

Parents of a student in Fort Worth ISD sued the district and a teacher over alleged physical injuries their child suffered at school.  The court dismissed all claims.  Here’s how it went:

Qualified immunity for the teacher:  The federal claim against the teacher was dismissed because the teacher asserted his “qualified immunity” and the plaintiffs failed to respond to it.  If you don’t respond, the court deems your claim “abandoned.”

Federal claims against the district: The same thing happened here. The lawyers for the district filed a detailed Motion to Dismiss this claim.  The plaintiffs did not adequately respond.  The claim is deemed “abandoned.”

Notice that the court has not told us that the claims against the teacher or the district lacked merit; the court has said that the plaintiffs failed to vigorously pursue the matter.

Intentional infliction of emotional distress (IIED): This claim was made against the district and the teacher. But there is a statute that says you can’t get away with that. The statute says that it you file suit against a governmental unit it constitutes “an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.”  So the IIED claim against the teacher had to be dismissed.

Assault:  This claim against the teacher was also dismissed.  Again, there is a statute in Texas: if you sue an employee over a claim that could have been brought against the governmental unit, the suit is automatically considered one that is brought against the employee in the “official capacity.” So the claim against the teacher as an individual was dismissed. Suits against an employee in “official capacity” is really a suit against the employer.

ADA claim against the district: This claim was dismissed because it should have been the subject of a special education due process hearing.   The court held that the “gravamen” of the complaint was about lack of educational opportunity for a student with a disability.  That must go to a due process hearing officer before it goes to court.

Thus all claims were dismissed for a variety of reasons having nothing to do with the merits of the claim. Was the boy injured by school personnel? We may never know. What we do know is that the district’s lawyers displayed a good understanding of some fairly obscure legal provisions and doctrines. Inside baseball.

The case is Colin v. Fort Worth ISD, decided by the federal court for the Northern District of Texas on August 27, 2018. We found it at 2018 WL 4078272.

DAWG BONE: ALMOST AS COMPLICATED AS THE INFIELD FLY RULE.

Imagine that your school district has employed a teacher to work in the Life Skills unit. The teacher, it turns out, is not a good guy.  You eventually discover that he has sexually molested some of the children at school, taking advantage of their low cognitive ability.  When the police get involved, they find a large number of pornographic images and videos on his computers.  The parents of the boys who were abused sue the district, alleging several causes of action, including a violation of Section 504.

The federal court in Texas recently concluded that behavior like this does not amount to a violation of Section 504.  Section 504 is about discrimination against people with disabilities.  The statute describes three types of discrimination: 1) being excluded from a program due to your disability; 2) being denied the benefits of a program due to your disability; or 3) being otherwise discriminated against due to your disability.  The notion of “otherwise discriminated against” is pretty broad, but not broad enough to cover this situation.  Key Quote:

What allegedly occurred—[the teacher’s] physical and sexual assault of the children—is jarring, but Plaintiffs’ amended complaint does not state facts that would lead the Court to reasonably infer that MISD subjected the children to discrimination because they were disabled.

This suit is not over. The plaintiffs also sued pursuant to Title IX and Section 1983, and those claims have not been dismissed. But the case illustrates that Section 504 does not cover every bad thing that might happen to a student with a disability.  The case is Strange v. Mansfield ISD, decided by the federal court for the Northern District of Texas on August 17, 2018. We found it at 2018 WL 3950219.

 DAWG BONE: SECTION 504 COVERS ACTS OF DISCRIMINATION, BUT NOT ALWAYS ACTS OF ABUSE.

 Tomorrow: how bout a little “inside baseball”?

Many court cases hold that the identification of a student’s special education label is not that big of a deal. As long as the district provides appropriate services to the student, it usually does not make much difference which disability category the district has placed the student in.  But as usual, for every “general rule” there is the exception.

A district in California learned that lesson when it concluded that a student’s hearing loss made the child eligible in the “speech or language disorder” category.  The district considered a second category, but concluded that the student did not qualify as hearing impaired because, with her hearing aids, she could hear adequately.  The court held that this was a mistake.

There are two important lessons here.  First, there are two IDEA categories that address hearing loss.  A student qualifies as “deaf” if the loss is so severe that, even with amplification, the child’s educational performance is adversely affected.  In other words, hearing aids do not help a deaf student very much.  However, a student can qualify as “hearing impaired” with a loss that is permanent, or fluctuating, that adversely affects performance, but is not severe enough to qualify as “deafness.” The court concluded that this student should have been considered for eligibility as “hearing impaired” even though she was not deaf.

Why does that matter? After all, the school did qualify the student, and did provide appropriate services. So why should the label matter? That’s the second lesson of this case.  The court pointed out that there are special provisions in the law for students identified either as “hearing impaired” or as “deaf.” Those special provisions directly address the content of the student’s IEP:

“In the case of a child who is deaf or hard of hearing,” the IEP must “consider the child’s language and communication needs, opportunities for direct communications with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs.”

So when the child might meet the definition of “deaf” or “hearing impaired” the district should specifically evaluate for the condition and make a decision. It matters.

The case is S.P. v. East Whittier City School District, decided by the 9^th Circuit Court of Appeals on June 1, 2018. We found it at 72 IDELR 88.

DAWG BONE: DON’T ACCUSE YOUR GRANDFATHER OF BEING DEAF WHEN HE IS ONLY HEARING IMPAIRED.

 The teacher’s behavior was “jarring” but not discriminatory.

The Toolbox is a full day training program addressing the legal requirements in serving students with disabilities who violate the school’s Code of Conduct.  In the Toolbox we offer ten “tools” that are available to administrators, all of which comply with the law and are designed to help you serve students appropriately.

Corporal punishment is not one of the tools.  But since it remains legal in Texas, I wanted to make a few points.

1. Corporal punishment is legal in Texas public schools. Most of the states have abolished this practice, but not us.  However, many school districts have prohibited it through local policy.
2. Parents can opt out of the use of corporal punishment by giving written notice to the school district. Many districts go further than that, and require affirmative parent approval.
3. An educator who applies corporal punishment to a student runs the risk of personal liability. The immunity that protects educators from personal liability for personal injuries does not apply if the educator is negligent or excessive in the use of force in the discipline of a student.
4. District policies on the subject vary, and educators are wise to be sure they know exactly what the policy says.
5. There is no federal or state law that makes any distinction between general education and special education students when it comes to corporal punishment.

When I’m asked about this, my bottom line (pun!) is that corporal punishment is legal, but risky.  I don’t recommend it.

It sometimes comes as a shock to parents who have moved here from other states to find out that Texas still permits this controversial practice.  One time I got a phone call from a dad who had moved here from Michigan, and was skeptical when the school administrators explained to him that Texas permits paddling.  I told him how it was, and reminded him that he was now in the Confederacy.  He said he would take the matter up with his realtor, who had assured him that he was moving into a “progressive and enlightened school district.”  I said, “Sir, you missed ‘progressive and enlightened’ by about three counties.”

DAWG BONE:  CORPORAL PUNISHMENT: LEGAL.  RISKY.  NOT RECOMMENDED.

 Tomorrow: Does the disability “label” matter?

The TASA/TASB convention is in Austin this year! So I hope some of you are headed our way.  Our law firm will have a booth in the Exhibit Hall, so all you Daily Dawg subscribers should come on by and say hello.  And we have a reception at Flemings Restaurant, just blocks from the Convention Center from 5:30-7:00.  If you are attending the Convention, come on by.

Lawyers from our firm will be doing presentations during the Convention:

SCANDAL IN PUBLIC COMMENT!

Christine Badillo and Haley Turner

8:45 Friday morning.

            2018 UPDATES TO YOUR CONSTRUCTION CONTRACTS

Winnie Dominguez

10:15 Friday morning

I’m not doing any presenting, but I have been asked to warm up the crowd for the annual TASB Legal/Comedy skit on Saturday morning.

Hope to see you in Austin!

DAWG BONE: ANNUAL TASA/TASB CONVENTION: ALL THE COOL KIDS WILL BE THERE.

 Tomorrow: Toolbox Tuesday!! What about corporal punishment?

Friday in the fall means high school football!  So tonight we know that hundreds of players will take to the gridiron and battle it out.  In many stadiums, the pre-game hullabaloo reaches a crescendo as the band strikes up the fight song and the hyped up players crash through a paper banner held by the cheerleaders.  This year, those banners might contain some interesting messages.

The Texas Supreme Court decided not to hear the case involving the Kountze ISD cheerleaders and their overtly religious banners.  This has the effect of affirming the decision of the Court of Appeals, which was that the words expressed on the banners were the words of the cheerleaders in their private capacity. Thus the words on the banner were protected by the Free Speech Clause of the First Amendment.  The fact that the cheerleaders were wearing school uniforms and serving as the official representatives of the school was not deemed to be relevant. It’s free speech.  So if the banner espouses overtly Christian viewpoints, that’s OK.

So kids wearing uniforms bearing the name of the school, representing the school in athletic competition are free to express their personal points of view at the moment when thousands of eyes are upon them.  Question, readers: can anyone come up with a logical distinction between the cheerleader and the football player? Between the words of the banner and the symbolic gesture of taking a knee during the National Anthem?

Good luck at your game tonight.

DAWG BONE: WE LOOK FORWARD TO THE PUBLIC REACTION WHEN THE BANNER PROCLAIMS “ALLAH BE PRAISED!”

In 2017 SCOTUS decided Fry v. Napoleon Community Schools, which was about the boring but important legal doctrine of “exhaustion of administrative remedies.” The case was about the tangled relationship of IDEA with Section 504. Can you sue under 504 without first asking for a special education hearing under IDEA?  After the Court’s decision, some people predicted that the “exhaustion” doctrine had been blown to smithereens, and plaintiffs would be able to take virtually any complaint straight to court.

That has turned out not to be true.  The 3^rd Circuit Court of Appeals has decided a case in which a student served under a 504 plan was tossed out of court because he could have sued under IDEA.  You got that? The kid was never under IDEA and never had an IEP. He had a 504 plan, so you can understand why his lawyers figured they could sue under 504 and bypass the IDEA proceedings.  But the court disagreed. The lawyers for the student argued that he would not even have been eligible under IDEA, but the court disagreed with that as well. The student had asthma, which could qualify under “Other Health Impairment” as an IDEA disability.

The case is S.D. v. Haddon Heights Board of Education, decided by the 3^rd Circuit in an unpublished decision on January 31, 2018.  We found it at 71 IDELR 143 and 722 F. App.x. 119.

DAWG BONE: IF THE “GRAVAMEN” OF THE COMPLAINT IS ABOUT THE DENIAL OF A FAPE, YOU HAVE TO GO THROUGH IDEA PROCEEDINGS.

Tomorrow:  Can you put “Beto for Texas” on a cheerleader banner?

Mr. Holguin missed the deadline for filing a grievance by more than 11 years.  Whoops!  He submitted a resignation in March, 2006 after the superintendent confronted him about pornography on his work computer.  Mr. Holguin denied responsibility for this, and knew that there were others who had access to his computer.  But he chose not to press that argument at the time.  Confronted with the superintendent’s intention to seek his termination, he chose to resign.

Eleven years later Mr. Holguin came back to the school board with more explosive allegations: not only was he innocent, but the superintendent knew it.  He claimed that his resignation was coerced.

The Commissioner ruled against Mr. Holguin, without ever getting into the substance of the complaint. Did the superintendent knowingly pressure an employee to resign based on false information?  The commissioner does not say. What he does say is that Mr. Holguin could have, and should have, argued this point 11 years ago.  Key Quote:

Petitioner states on his complaint form that at the time the Superintendent confronted him, he knew he had not placed the pornography on the computer and he knew that others had access to his computer.  Based on Petitioner’s own rendition of the facts, he denied responsibility for the pornography but chose to resign rather than face a report to the authorities and termination.  This indicates that he unequivocally knew that the Superintendent was basing her decision on false information. And yet, he made no attempt to convince the Superintendent that she was mistaken or to ascertain facts to establish that the allegations against him were false. He could have spoken to the computer technician who tracked him down and contacted him eleven years later. He could have done any number of things in the exercise of reasonable diligence as required by the policy.  But he chose to resign. (Emphasis in the original).

That reference to “reasonable diligence” comes from District Policy DGBA(Local). It requires grievances to be filed “within fifteen days of the date the employee first knew or with reasonable diligence should have known, of the decision or action giving rise to the complaint or grievance.”  Mr. Holguin, according to the Commissioner, knew he was being falsely accused in March, 2006, and could have pressed the point at the time. Since he chose not to, his 2017 grievance was untimely.

The case is Holguin v. Mexia ISD, decided by Commissioner Morath on March 28, 2018.  It’s Docket No. 035-R10-08-2017.

DAWG BONE: 15-DAY DEADLINE FOR GRIEVANCES IS VALID.

Tomorrow: Can you sue under IDEA when you are a 504 student? Do you have to?