Our firm is providing one of its On Demand webinars next week that will be of particular interest to special ed types, such as directors, diags, school psychs, speech therapists and behavior specialists. It’s one of our perennial topics:

TOPIC: LEGAL UPDATE FOR SPECIAL EDUCATION EVALUATION PERSONNEL
DATE: March 29, 2023: 10:00 a.m.
PRESENTERS: Paula Maddox Roalson and Christina Garcia-Henshaw

This one is a perennial offering for us because there are so many legal issues to discuss. Moreover, there is nothing more important to the quality of your special education program than ensuring that evaluations are done properly, timely, and with proper involvement of the parents.

Paula and Christina will be discussing evaluations, re-evaluations, the procedural safeguards that surround these events, and related issues with an emphasis on practical strategies to ensure compliance with the law. Sign up at www.walshgallegos.com.

DAWG BONE: REMEMBER: ALL DECISIONS ABOUT IEP CONTENT MUST BE BASED ON EVALUATION DATA.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

We’re Zooming with the Dawg today at 10!! Hope you will join me along with special guests Andrea Chevalier (TCASE) and Mark Terry (TEPSA) for an update on what’s happening at the Capitol. Free for all Loyal Daily Dawg Readers.

Patricia Mayers sued United ISD alleging that the district discriminated against her based on her sex, her age, and her national origin. However, two of those claims were dismissed by the court on procedural grounds. The court noted that Ms. Mayers original complaints with the EEOC and the Texas Workforce Commission failed to mention age or national origin. They only cited sex discrimination. That charge was allowed to go forward, but the age and national origin complaints were tossed out.

Many people would describe this ruling as based on a technicality. The court never got to the substance of the matter, so it made no fact findings and came to no conclusions about how Ms. Mayers was treated by the district. Instead it held that the courts lack jurisdiction to even consider her allegations about age and national origin because she did not include them in her original charge.

Technicality? The Dawg takes no position on that, but I will point out the logical basis for the court’s ruling. We have set up administrative agencies (EEOC and TWC) to investigate complaints of illegal discrimination. The law requires that a complaining party go to the administrative agency first. The idea is that many complaints will be resolved at that level, and those that are not resolved will be investigated by an agency with expertise in this area of the law. So if a party fails to mention a category of possible discrimination, it gums up the works. It deprives the agency of the opportunity to investigate that matter, and deprives the employer of the opportunity to defend itself from the charge in the administrative process.

That’s what happened here. The court put it this way:

In the administrative charge, Mayers alleged that UISD had treated her differently than two male teachers and stated, “I believe I was discriminated against because of my sex, female.” She also contended UISD had retaliated against her for complaining about the alleged discriminatory treatment. The administrative charge did not claim that UISD discriminated against Mayers based on any other protected characteristics.

Was the case dismissed on a technicality? Or is this just the evenhanded application of a sensible rule?

It’s United ISD v. Mayers, decided by the Court of Appeals in San Antonio on February 15, 2023. It’s cited at 2023 WL 2004407.

DAWG BONE: THINK YOU’VE SUFFERED DISCRIMINATION? BE SPECIFIC!

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: upcoming opportunity…

---

On December 5, 2016, the IEP Team in California was informed that Dr. Dyson, hired by the mother, had evaluated the student and determined that he was on the autism spectrum. The student was already receiving special education services, but had never been assessed for autism. Now a reputable source has indicated that the student has this condition. Does this information trigger a duty for the district to do its own evaluation of the student?

The 9th Circuit held that it does.

Next question: if the district waits until the following April to propose such an evaluation has the district dilly dallied around too long? The answer to that is a lawyerly “it depends.” In this case, the 9th Circuit held that the delay was reasonable.

The district cited a couple of reasons why it did not act sooner. First, the district wanted to see Dr. Dyson’s report. The mother promised to provide it as soon as she got it, but then she failed to do that. The court found it reasonable for the district to want to review Dr. Dyson’s report to see what formal testing she had done. Secondly, the district had sound reasons to be skeptical of Dr. Dyson’s report. The district had served the student for more than four years, and had provided a myriad of mental health services. Qualified educators in the district reported that the student’s aggressive behavior was not consistent with an autism diagnosis.

Then there was the fact that the parent held off on consent for the district’s evaluation for four months. The district proposed the evaluation in April and got consent in August.

This case is another illustration of what I call The Unwritten Rule. Courts will always assess the comparative reasonableness of the parties’ behavior. It’s a good rule to have, especially since the entire system of special education law is built on a foundation that assumes good faith collaboration by parties who all want the student to get a good education. But the problem with The Unwritten Rule is that it’s so subjective. For example, in this case the lower court ruled in favor of the parent, finding the district’s delay unreasonable. The Circuit Court looks at the same facts and comes to the opposite conclusion.

Go figure.

The only thing to do is to go forth and be reasonable. And document your actions to create the paper trail that will lead a neutral third party to view your actions as reasonable.

This one is D.O. by Walker v. Escondido Union School District, decided by the 9th Circuit Court of Appeals on January 31, 2023. It’s cited at 2023 WL 1157654 and will be published in the Federal Reporter.

DAWG BONE: BE REASONABLE AND HOPE THAT IT LOOKS THAT WAY.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: was it a technicality?

I’ve been reading about this new form of artificial intelligence that threatens to put all of us out of work. So I gave it a try. I first asked the robot on the other end: “Do you know any good jokes?”

Here’s what I got:

Sure, here’s a classic one:

Why did the tomato turn red?

Because it saw the salad dressing.

Not bad. I would describe that as more of a riddle than a joke, but let’s not be too picky.

So then I decided to challenge the robot with a question appropriate for Toolbox Tuesday. I asked: “What are the laws about discipline of students with disabilities?”

Here’s the response:

In the United States, students with disabilities are protected by the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act. These laws provide guidelines for how students with disabilities should be disciplined in schools.

Under IDEA, students with disabilities cannot be disciplined for behavior that is a manifestation of their disability. This means that if a student misbehaves because of their disability, they cannot be punished for it. Instead, the school must provide support and services to help the student manage their behavior.

If a student with a disability violates the school’s code of conduct, the school must hold a manifestation determination review (MDR) to determine if the behavior was a result of the student’s disability. If it is determined that the behavior was a manifestation of the disability, the school cannot suspend or expel the student. Instead, the school must provide appropriate support and services to help the student manage their behavior.

If the behavior was not a manifestation of the disability, the school can discipline the student in the same way they would discipline a student without a disability. However, the school must still provide services to help the student manage their behavior.

Under Section 504, schools cannot discriminate against students with disabilities in discipline. This means that students with disabilities must be disciplined in the same way as students without disabilities. However, schools must provide reasonable accommodations to help students with disabilities understand and comply with the school’s code of conduct.

In general, schools must ensure that any disciplinary action taken against a student with a disability is based on a fair and objective assessment of the situation, and that the student’s disability is taken into account in any decision-making.

Sheesh. The robot spit all that out in seconds. It’s a good summary of the basics.

So I guess you won’t be needing me anymore around here. It’s been fun.

DAWG BONE: JUST KIDDING. THE ROBOT MAY BE ACCURATE BUT IT LACKS PERSONALITY.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: the age old question: was it “reasonable”?

We’re Zooming with the Dawg this Thursday!! Hope you will join me along with special guests Andrea Chevalier (TCASE) and Mark Terry (TEPSA) for an update on what’s happening at the Capitol. Free for all Loyal Daily Dawg Readers. Thursday at 10.

Ever since it has become common for retired teachers to return to work the issue of age discrimination has hung in the air. If a district seems to disfavor retirees, is it engaging in age discrimination? After all, the retire/rehire crowd is all up there in years. So let us consider the case presented by Esther Watson.

You know that Ms. Watson is eligible for Senior Discounts from the court’s opening line: “For approximately half a century Esther Watson worked in education.” She was first hired as a teacher in Louisiana in 1973. Do the math. Ms. Watson is not just a member of AARP. She’s eligible for Medicare.

When the district decided to hire a younger white man for the principal’s job at Winnsboro Elementary, Ms. Watson, an African-American woman, filed suit alleging age and racial discrimination. This meant that the district had to explain why it passed over an applicant with superior credentials. The district cited “anticipated length of service.” In other words, they expected that the younger applicant was more likely to stay with the district longer.

Hmmm. Because Ms. Watson was already (how shall I put this delicately)….old? No. The district did not say a word about her age. Instead, the explanation was that 1) she did not live in the district; and 2) she had returned to work after retiring. Ms. Watson alleged that this was a thin smokescreen to disguise the bias against older workers. However, the court sidestepped the issue.

Dadgummit. I hate it when that happens. We lawyers like to get our questions answered so we can give you legal advice based on solid caselaw precedent. But the courts have a general rule of not deciding an issue unless they have to. In the case of Watson v. School Board of Franklin Parish the court concluded that it could avoid the age discrimination issue because there were other decisive factors: racial discrimination.

The lower court had summarily dismissed the case, but the 5th Circuit reversed that decision. The Circuit Court concluded that Ms. Watson was the “clearly better qualified” candidate for the job. The board offered the job to a young man with eight years of teaching experience and zero time as an administrator. Compare that with Ms. Watson who had taught for over 20 years, served as an assistant principal for almost ten, a principal for seven, and held every certification an educator could have, including as superintendent. On top of that, her interview score was slightly better than the other guy’s.

So the court sent the case back for further action. The court noted that a jury very well could—not necessarily will, but could—find that “no reasonable person could have selected McHand [the younger man] over her in the absence of racial discrimination.”

It’s Watson v. School Board of Franklin Parish decided by the 5th Circuit on February 16, 2023. It’s cited at 2023 WL 2054308.

DAWG BONE: WE’LL GET AN ANSWER TO THAT AGE DISCRIMINATION ISSUE SOME DAY.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!

It’s time for bluebonnets, basketball tournaments, St. Patrick’s Day, and baseball spring training.  I’ll be taking in all of that next week, so no Daily Dawg. 

See you again on Monday, March 20. 

DAWG BONE: ERIN GO BRAGH! 

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

We’ve all learned that “grooming” does not always refer to how we dress and style our hair.  We now know that it has a more ominous meaning.  It refers to the process whereby sexual predators prepare children to accept the unacceptable.  In a recent federal court decision, the plaintiff claimed that an elementary school teacher groomed a young boy and eventually had a sexual relationship with him. 

The plaintiff pointed out that many teachers had noticed that Ms. Singer seemed to take a particular interest in the boy, showing him favoritism in a variety of ways.  However, no one suspected or reported sexual abuse. Why would they?  The relationship was understandable.  Ms. Singer’s son was the boy’s best friend and they spent a lot of time together, some of it in the teacher’s home.  In fact, the boy went on a vacation with the Singer family in the summer.   The boy’s mother “was a single mom and did not know many people, but she felt comfortable allowing [her son] to spend time at the Singers’ house with [his friend] because Ms. Singer taught at the school, so [the mother] trusted her.” 

Wow. Let’s just let that sentence sink in for a moment.  How many variations of that have we heard over the past years?

The mother was comfortable because the woman was a teacher at the school…..

The family never suspected wrongdoing because the man was a priest….

He was the choir director, and everyone loved him.  Why would we suspect?

She’s a great coach…we never thought…..

In a case like this, the liability of the teacher is a straightforward issue.  Did the teacher do what the student alleges? If it can be proved, there will be liability.  But what about the school district that employed this person? That’s more complicated.  The district is not liable under Title IX just because it happened. The plaintiff has to show that the district had actual knowledge of the misconduct and effectively shrugged its shoulders. The legal term for that shoulder shrug is “deliberate indifference.”

In this case the court cleared the district of any liability because the district did not know about the alleged sexual abuse until the boy told his mother about it, which led to Ms. Singer’s arrest.  Key Quote:

Prior to Ms. Singer’s arrest, there were no allegations of sexual harassment. While [various school employees] all noticed Ms. Singer and [the boy’s] close relationship, not one suspected, let alone reported, sexual abuse.

The court quoted an earlier decision noting that “any contact between an adult and a child could be grooming behavior, but that does not mean that all contact is sexual harassment under Title IX.”

It’s a shame that the criminal behavior by a handful of teachers casts doubt on the actions of all teachers. Teachers are encouraged to take an interest in the children they serve, to find what is special about each one, and to nurture and encourage that gift.  In a word, teachers are encouraged to love the children they teach.  But, of course, it has to be the right kind of love. 

If we see grooming, we have to report it.  This case reminds us that favoritism is just that—it’s showing a preference for a particular child. But it’s not grooming. Both need to be addressed, but it’s important to be specific about what is going on.

This one is Reagans v. Grapeland ISD, decided by the federal court for the Eastern District of Texas on February 6, 2023. It’s cited at 2023 WL 1781802. I’m pleased to let you know that Meredith Walker and Craig Wood of our law firm represented the district in this litigation.

DAWG BONE:  LET’S NOT CONFUSE FAVORITISM WITH GROOMING.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: spring break!!

Isn’t “rebuttable presumption” a handy legalistic term?  We should find ways to work this into our every day vocabulary.  I think of this terminology often. 

For example, picture yourself driving in the left lane on I-35, slowing down because the car in front of you is stubbornly cruising at exactly the speed limit.  You bide your time because the driver has the turn signal on, indicating that the car is about to get out of your way.  Mile after  mile you continue. The right turn signal continues to blink, but the car stays in the left lane, blocking you.  Finally you move to the right, speed on past this passive-aggressive driver, and  pull back into the left lane right in front of the slowpoke.

What’s going on here? What explains the behavior of the other driver?  Of course we don’t know. But I hold it that there is a rebuttable presumption that the driver is hearing impaired and thus did not hear the steady blink, blink, blink of the turn signal.  I presume that to be the case based on my own experience. The first time I got into my car after obtaining hearing aids I was blasted out of my seat by the loud noise that the turn signals made.  So I think that driver can’t hear the signal because of the hearing impairment.  However, this presumption is rebuttable. I may later discover that the driver’s hearing ability is unimpaired, but the music was playing so loud in the car that no one could hear the turn signal. Or perhaps the driver is one of those insufferably self-righteous people who drives at 65 in the “fast lane” because 65 is the posted speed limit.  Perhaps this is an effort to teach other drivers the value of abiding by the law. Not to mention the value of patience. 

The point is that we make presumptions about things all the time, that may turn out to be incorrect.  The presumptions are “rebuttable.”  Leave it to my profession to turn this into a handy phrase.

It comes up a lot with the Texas Whistleblower Act.  If an employee suffers an adverse employment action within 90 days after blowing the whistle on some perceived violation of law, there is a “rebuttable presumption” that the employer punished the employee for blowing the whistle. That’s the situation Mr. Florez was in after he was dismissed from his position as an instructional reading specialist in Houston ISD. He had reported some suspicious activity involving the  STAAR test, and shortly thereafter was informed that his services were no longer needed. The district cited budget constraints. 

The ”rebuttable presumption” was in place, but the HISD was up to the task. It rebutted the presumption with evidence that the decision to terminate Mr. Florez was actually made before he reported his concerns over STAAR.  The internal memos in the district cited budget constraints, and no other reason. Moreover, the school support officer who approved the principal’s recommendation to terminate Mr. Florez was unaware of the man’s report about STAAR violations.

That put the ball back in Mr. Florez’s court and he failed to respond. So we have a rebuttable presumption that’s been rebutted and no response to that. No rebutting of the rebuttal.  That ends it.  The court held that there was no evidence in the record to establish the causal connection that is required in a Whistleblower case.  Case dismissed due to lack of jurisdiction. 

It’s Houston ISD v. Florez, decided by the Court of Appeals in Houston on January 26, 2023. It’s cited at 2023 WL 413573. 

DAWG BONE: WHEN A REBUTTABLE PRESUMPTION IS REBUTTED YOU HAVE TO REBUTT THE REBUTTLE.  GOT THAT?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: teacher and student sex….legal consequences….

Tool #3 in our firm’s Toolbox is an Educational Change of Placement Without Parental Agreement.  This Tool is generally used to move a student to a more restrictive setting due to serious behavioral and/or academic concerns arising from the student’s disability.  Since the behaviors are a manifestation of the student’s disability, a Disciplinary Change of Placement (Tool #6) is not available.

It's tough for the school district to use Tool #3.   The district uses Tool #3 by holding an ARDC meeting, proposing the change of placement, and bringing the meeting to closure despite a lack of consensus. The district then gives the parents a Prior Written Notice explaining the basis for the move to the new placement. The parent then has five days in which to request a due process hearing, which will automatically put the kibosh on the change of placement due to the “stay put” rule. If the parents do not request the hearing, the change of placement goes into effect.  If they do request a hearing, the district will attempt to convince a hearing officer that 1) the current placement is not working; 2) the district has made a good faith effort to make the current placement effective; and 3) the proposed placement will be beneficial to the student.

It’s even more complicated in Florida due to a state law that flat out prohibits a change of placement unless the parent consents to it.  In Florida, the district has to request a hearing to override the parent’s decision not to agree with the proposed change.

That’s exactly what happened in Orange County, Florida.  The district presented evidence to the hearing officer that the student required constant supervision, constant prompts, and “no access to unsupervised times.”  The school reported numerous instances of physical violence, threats of violence, sexual harassment and a social media post about “shooting up the school.” The district asserted that it did not have the continuum of services the student needed in the school where the student was placed, and so it recommended a move to a different school with tighter controls. 

The district was successful, no doubt aided by the fact that “No one appeared [at the hearing] on behalf of the student.”  Still, it took a lot of effort by educators and lawyers to effect this change of placement.

There is nothing easy about Tool #3, which is one reason why educators should always seek to obtain parental consent to a proposed change of placement. This requires a good explanation of why the move is in the best interests of the student.

Today’s case is a State Agency decision from Orange County, Florida, decided on September 7, 2022 and reported in Special Ed Connection at 122 LRP 39752.

DAWG BONE: THREE THINGS TO PROVE IN A TOOL #3 CASE.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: rebutting the rebuttable…

In May, 2019, Georgia Clark, a teacher in Fort Worth ISD, posted a letter to President Trump on Twitter.  It was immediately apparent that Ms. Clark did not understand how Twitter works.  She thought this communication was going directly to the President, and only to the President.  Instead, it was on the social media platform for all to see, and eventually all of us did see it. 

Excerpts from her tweet:

“FWISD is loaded with illegal students from Mexico.”

“Anything you can do to remove the illegals from Fort Worth would be greatly appreciated.”

Ms. Clark had a continuing contract with the district, thus enjoying the greatest degree of legal protection a Texas teacher can have.  But when the story blew up and multiple parents spoke at the June board meeting, the district moved to terminate Ms. Clark’s employment. Here’s what happened next:

THE HEARING EXAMINER: The independent hearing examiner recommended that Ms. Clark not be terminated.  He determined that she was speaking as a citizen on a matter of public concern, did not violate state or federal law, and that her interests in free speech outweighed the interests of her employer.  Therefore, the board did not produce “good cause” sufficient to terminate the teacher’s employment. 

THE BOARD:  The board disagreed. Citing the significant disruption in response to the tweet, it concluded that there was good cause to terminate Ms. Clark’s employment. 

THE COMMISSIONER: The Commissioner reversed the board’s decision, but steered clear of the First Amendment issue. Instead, the Commissioner held that the district made procedural errors in the process of rejecting the hearing examiner’s recommendation. The Commissioner ordered Ms. Clark’s reinstatement.

TRAVIS COUNTY DISTRICT COURT:  The district court sided with the FWISD board.  Ms. Clark is once again out of a job. 

COURT OF APPEALS:  And now we get the decision of the Court of Appeals, which agreed with the district court. The Court held that there was good cause to terminate the teacher’s employment. Yes, she was “speaking as a citizen on a matter of public concern” when she wrote to the President about immigration.  But the Court held that the district’s interests as her employer were more important. 

Three months prior to Ms. Clark’s fatal tweet the board in FWISD adopted a resolution calling for “the safest possible environment for its students and employees.” The resolution aspired to encourage an environment that would be “free of insecurity and fear, for all its employees, students, and their families regardless of their immigration status.”  (Emphasis added).

This board resolution was critical to the Court’s ruling. Key Quote:

Undisputed evidence in the record—the tweets posted by Clark to former President Donald Trump—supplies substantial evidence that Clark violated the school district’s policy. Specifically, the school board explained that because Clark’s tweets called for an investigation to identify and remove students from the district based on immigration status, the tweets violated the district’s policy.

We should point out that Fort Worth’s policy was not just Fort Worth’s policy.  It is settled constitutional law that students residing in Texas are entitled to free public education regardless of how they got here.  Educators have no reason to inquire as to immigration status.  This was decided in Plyler v. Doe, a Supreme Court ruling from 1982.

This one is Clark v. Fort Worth ISD, decided by the Court of Appeals in Austin on January 25, 2023. It’s cited at 2023 WL 376901.

DAWG BONE: IMMIGRATION STATUS OF STUDENTS IS NOT OUR BUSINESS.  LET’S NOT EVEN ASK.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!