In its recent Monitoring Visit Letter, OSEP cited massive confusion and inconsistency in Texas over services to students with dyslexia.  Good!  We have been in a state of confusion for decades.  Maybe the feds shining a spotlight on this issue will lead to more clarity.

I think the crux of the problem can be summarized with these two lines from the Texas Dyslexia Handbook:

A district will typically evaluate for dyslexia through Section 504.  On the other hand, if a student is suspected of having a disability within the scope of IDEA 2004, all special education procedures must be followed.

Hmmm. Let’s think about that a bit.  Dyslexia is specifically listed in IDEA 2004 as an example of a specific learning disability.  So if the school is evaluating a student for dyslexia, doesn’t that automatically mean that the student “is suspected of having a disability within the scope of IDEA 2004”?  And if that’s the case, “all special education procedures must be followed.”  So why would we “typically” evaluate as per 504?

The OSEP letter does say that “It is certainly permissible to provide services to children with dyslexia under Section 504.”  But the letter cites example after example of students who may have been eligible for IDEA services but were never evaluated for a learning disability pursuant to IDEA procedures and applying IDEA standards. These stories then add to the finding of a massive Child Find violation by the State of Texas.

If school staff and/or parents are talking about the possibility that the student may have dyslexia, it is hard to see how an IDEA evaluation is not called for.

TEA’s draft Corrective Action Plan calls for revisions to the Dyslexia Handbook.  We look forward to that.

DAWG BONE: DYSLEXIA IS LISTED IN IDEA AS AN EXAMPLE OF A SPECIFIC LEARNING DISABILITY.

Tomorrow: from our “you can’t make this stuff up department”

Imagine this: a bright but unmotivated student. Truancy problems. Failing grades.  Parents asking for help.  Parents asking the school to conduct an evaluation to determine if the student needs special education services.  The school does not do an evaluation.  The school concludes that the student does not qualify for special education services…but this is done without the benefit of an evaluation.  Eventually, the parents file suit, alleging a “child find” failure leading to a denial of FAPE. How do you think this is going to come out?

In Prince George’s County, Maryland it came out just fine.  The special education hearing officer held that the district committed a procedural error, but it was a “no harm no foul” situation.  The federal court affirmed that decision.

This was based on consistent testimony from teachers that the student was capable of performing well academically but simply refused to do so.  The court cited several teachers saying much the same thing—that the student simply would not come to school and would not do the work. The hearing officer came to the same conclusion in a 46-page decision. The federal court agreed with that analysis, concluding that special services would be of no use to the student, since he just wasn’t coming to school.  “You can lead a horse to water….” comes to mind.

Maybe the district had an exceptionally good lawyer.  But I would still put this one in the “don’t try this at home” category.

This type of student is not uncommon—bright but unmotivated and unwilling.  When the school refuses to investigate the source of the problem by conducting an evaluation, many hearing officers would rule against the district. Even more would rule against the district when the evidence shows that the parents had requested help on numerous occasions.  When the teachers conclude that there is no need for special education based on their own observations, without even conducting any formal testing, the district is taking a big chance. Here, it worked, but still…..don’t try this at home.

The case is T.B. Jr. v. Prince George’s County Board of Education, decided by the federal court for the State of Maryland on December 13, 2016.  We found it at 70 IDELR 47.

DAWG BONE: YOU ARE BETTER OFF BASING YOUR DECISION ON AN EVALUATION, NOT JUST TEACHERS’ OPINIONS.

Our legislature passed a law last session outlining exactly how school administrators can remove an unruly person from campus.  We did not need that law. You guys already had the authority to take care of business, and this new law just mucks it up with procedural requirements.

In other states, it’s simpler.  A California district was sued by parents who alleged that their constitutional rights had been violated when the school temporarily restricted their access to some school events.

The court granted summary judgment to the school district on the retaliation claim.  The school district presented a legitimate, non-discriminatory and non-retaliatory basis for its action.  The First Amendment claim fared no better. The court noted that a public school is not a public forum for First Amendment purposes, and the parents had no constitutionally protected right of access to the school:

The Supreme Court has held that school administrators have the right to immediately remove from school property individuals who pose a threat of an ongoing disruption to the academic process.  Goss v. Lopez.

The case is Camfield v. Board of Trustees of Redondo Beach USD, decided by the federal court for the Central District of California in 2017. We found it at 70 IDELR 126 (C.D. Cal. 2017)

DAWG BONE: YOU ALREADY HAD THE AUTHORITY….

Tomorrow: One for your “don’t try this at home” file.

Bruce Vento Elementary School in St. Paul, Minnesota is no longer celebrating Valentine’s Day.  Nor will they celebrate Halloween, Thanksgiving or Christmas.  The principal of the school made this decision, in recognition of the ethnic and cultural diversity at the school.  At least one far right wing website reported that the entire state of Minnesota had banned all of these holidays due to complaints from Muslims.  The website cited this as yet another reason why parents should “get their kids out of government run schools.”

That report is entirely fake news.  It was not the entire state of Minnesota, nor even one school district. It was one school.  There was no mention of Muslims, or complaints from anyone. It was just a decision that the principal made.

The Dawg expects that V-Day is being widely recognized today from Texarkana to El Paso.   A Texas school would be on shaky ground if it tried to eliminate recognition of some of these holidays.  The TEKS for 2nd grade call for the student to “explain the significance of various community, state, and national celebrations such as….Thanksgiving.”  19 T.A.C. 113.13(b)(1)(A).  Christmas comes up in the TEKS for 6^th grade.  The sixth grader is expected to be able to explain the “significance of religious holidays and observances such as Christmas, Easter…..”  19 T.A.C. 1113.18(b)(19)(B).

I don’t think the TEKS references V-Day specifically.  It if did, perhaps it would read like this:

The student understands that the custom of giving cards to others at Valentine’s Day is not an excuse to justify vulgar language or sexual innuendo.

The student can explain why True Love flows in both directions equally, but the money spent at Valentine’s Day flows mostly from men to women.

The student understands that not getting a Valentine’s Day card from That Particular Person does not mean that the student is a loser, destined to live a life of lonely desperation, darning socks in the night when no one is there.

I think that should do.

DAWG BONE: ALL THE LONELY PEOPLE….WHERE DO THEY ALL COME FROM?

Tomorrow: Restricting parental access…

I usually begin my Toolbox trainings by telling the story of Alex.  It’s a sad but colorful case involving a young boy who was frequently violent and disruptive at the school.  The story concludes with Alex running away from the school, with teachers in hot pursuit.  As Alex is about to enter a cornfield, he turns toward the teachers chasing him and says “So long, suckers.”  Then he disappears in the high stalks.

This is all based on the facts as recounted by the federal court in the subsequent litigation. In the lawsuit, the mother alleged that the school failed to provide Alex with a Free Appropriate Public Education—FAPE.   One of her chief complaints was that the school never came up with a behavior plan, a BIP, that satisfied the legal standards for a BIP. The court gave that argument the back of its hand:

Although we may interpret a statute and its implementing regulations, we may not create out of whole cloth substantive provisions for the behavioral intervention plan contemplated by [the statute].  In short, the District’s BIP could not have fallen short of substantive criteria that do not exist, and so we conclude as a matter of law that it was not substantively invalid under the IDEA.  (Emphasis added).

This means that you have a lot of discretion in writing a BIP.  There are no legal standards for it.  It’s impossible to write a BIP that violates the legal standards because there are none.

One qualifier to that statement: there are procedural requirements in the law for when and how you write a BIP. But as far as the content, you have a free hand.

In the Toolbox training we emphasize this.  The primary purpose of a BIP is to identify and address behaviors that impede learning. The goal is to reduce or eliminate those behaviors.  You have wide discretion to use your experience, and creativity. A BIP is Tool #1, and it’s #1 for a reason.  It’s your most important tool.

If you are interested in learning more about the Toolbox, let me know.

The case of Alex in the Cornfield is Alex R. v. Forrestville Valley Community Unit School District #221, decided by the 7^th Circuit Court of Appeals in 2004. We found it at 375 F.3d 603 and 41 IDELR 146.

DAWG BONE: TEN TOOLS.  TOOL #1 IS THE MOST IMPORTANT.

Tomorrow: Perhaps you noticed….it’s V-Day!

My six-year old granddaughter was recently telling me about a teacher who periodically subs in her kindergarten classroom. The sub is a retired teacher and, apparently, is strong in classroom management skills.  Lyla told me that when the boys in class act up, the teacher puts them in “time out.”  I asked Lyla if she had ever been put in time out and she told me “No.  She only puts the boys in time out. She’s old school.”

“Only the boys?” I inquired, thoughts of Title IX swirling in my head.  “Yes,” Lyla replied.  “Only the boys.”

“What does she do if a girl misbehaves?” I asked.

“She just tells the girls not to do that again.”

“Hmmm.  So she treats the boys different than the girls!”  I observed.

“Yes, Poppy,” Lyla declared with some exasperation.  “Like I told you, SHE’S OLD SCHOOL!!”

DAWG BONE: I THINK I WILL LET THAT GO WITHOUT FURTHER COMMENT.

The first reported case of a student using medical marijuana in a public school is from Schaumburg, Illinois.  The family filed suit against the district to obtain a court order to allow the girl to self-medicate with medical marijuana at school. From the news reports, it sounds like it was a friendly lawsuit. The school wanted to accommodate the student but felt that it needed the cover of a court order to protect itself. The court issued the order.

Could this happen in Texas?  In 2015, the Texas legislature enacted the Compassionate Use Act.  This law permits certain doctors to prescribe what is commonly called “medical marijuana” for patients with “intractable epilepsy.”    It’s called “medical marijuana” but the product that doctors can prescribe is a lot different from the stuff that Cheech and Chong use.  The Compassionate Use Act only authorizes the use of “low-THC cannabis.”  This stuff will not cause time to slow down for you, will not make you helplessly giddy, or otherwise take you to that happy place.  But it may be effective in dealing with intractable epilepsy.

So suppose you have a student with a valid prescription for this product. Can they possess low-THC cannabis at school?  Maybe. Consider this:

Texas Health and Safety Code Section 487.201.  COUNTIES AND MUNICIPALITIES MAY NOT PROHIBIT LOW-THC CANNABIS.  A municipality, county, or other political subdivision many not enact, adopt, or enforce a rule, ordinance, order, resolution, or other regulation that prohibits the cultivation, production, dispensing, or possession of low-THC cannabis, as authorized by this chapter. (Emphasis added). 

If you read that carefully, you will note that it omits the word “law.”  Marijuana is prohibited on school campuses not by “rule, ordinance, order, resolution or other regulation” but by law.  Presumably, then, the school could enforce the federal laws that continue to treat any form of marijuana as a controlled substance.

But would you want to?  Our state law, the Compassionate Use Act, includes many restrictions and requirements designed to make sure that this “won’t-get-you-high-pot” is only used for the medical treatment of intractable epilepsy.  I doubt that school districts would want to send a student with intractable epilepsy who is properly using this drug as per a prescription to the DAEP.

That would not be Zero Tolerance. It would be Zero Compassion.

DAWG BONE: IT’S REFRESHING TO SEE THE WORD “COMPASSIONATE” IN A PIECE OF LEGISLATION.  WHO KNEW????

Parents who believe that a school district has violated FERPA run into a problem when they sue.  The U.S. Supreme Court held in 2002 that there is no “private right of action” under FERPA.  Gonzaga University v. Doe.  That means that even if the school has violated FERPA, you will get nowhere with a lawsuit over the issue.   Instead, the disgruntled parent should file a complaint with the Department of Education.

That was the hard lesson in a case recently decided by the Texas Court of Appeals. The suit was filed by a parent in Eanes ISD who had been in a dispute with the school over the treatment of his daughter by the soccer coach.  He eventually filed suit to seek access to certain records that the district withheld.

The Court of Appeals made three important rulings. First, the district reasonably anticipated litigation over the issue. This would normally authorize the district to withhold the documents even when they are requested under the Public Information Act.

Second, if the withheld records were “education records” under FERPA, then the parent would have access to them, despite the “anticipated litigation” rule.  The parental right of access is a trump card that overrides PIA exceptions.

Third, the school district interprets FERPA, and its interpretation cannot be overturned by the Attorney General or the courts.  Thus if the parent believes that he is entitled to records that the district is withholding, a lawsuit is not the appropriate remedy.  Key Quotes:

However, neither this Court, nor the trial court, nor OAG [Office of the Attorney General] is the proper entity to interpret FERPA and its application to EISD’s records—it is EISD that must make FERPA determinations.

FERPA creates no private right of action.

If [the parent] believes that EISD has not complied with FERPA, he may file a complaint with the DOE, but he may not ask us to enforce FERPA by second-guessing EISD’s FERPA determination.

The case is B.W.B. v. Eanes ISD, decided by the Texas Court of Appeals, Third District, in Austin on January 10, 2018.

DAWG BONE: FERPA VIOLATION? DON’T GO TO COURT. GO TO D.O.E.

Is medical marijuana on its way to your district?

A teacher found two 7^th graders scuffling on the ground in the classroom. She did not see how that happened, but just saw the two kids on the ground. As one of them got up to leave the scene, the teacher grabbed him by the wrist with both of her hands and held on to him as she asked him “what happened?”  The student attempted to free his arm, and did not answer the teacher’s question.  This standoff went on for more than a minute, and 56 seconds of it were caught on video. The student’s wrist was not red, bruised or otherwise injured.

Was the teacher using “reasonable force”?  That was the critical issue when the district proposed to nonrenew the teacher’s contract.  Two administrators testified that this was not reasonable force.  In their view, the student was not trying to walk away from the teacher, and so she should have released his arm.   However, another teacher who witnessed the incident testified that the teacher acted reasonably.

The school board sided with the administrators, but the Commissioner did not.  The Commissioner concluded that the board’s decision was arbitrary and capricious because it was not supported by “substantial evidence.”   Thus the Commissioner ordered that the teacher be reinstated with back pay. The district had proposed several specific reasons for the teacher’s nonrenewal, citing her for violations of “policy, rules and directives.”  But they all flowed from this one incident in the classroom. When the Commissioner concluded that the teacher’s use of force was covered by a statute that protects teachers (T.E.C. 22.0512) the rest of the case melted away like snowflakes in Austin: “When an educator is entitled to immunity, the district cannot take disciplinary action against her for violation of policy, rules, or directives.”

We have had several decisions along these lines lately, and so some things have become clear.  First, if the teacher asserts the immunity provided by the statute, the burden of proof is not on the teacher—it’s on the school.  Second, the doctrine of “in loco parentis” is alive.  In his decision, Commissioner Morath explicitly notes that “As teachers stand in the place of parents, they are protected from allegations that they have improperly used force against children in a very similar manner as parents are protected from equivalent allegations.”  Third, teachers are protected from disciplinary action even if they violated a directive or a school policy: “If the force used is reasonable, immunity trumps the directive or policy.”  Fourth, the school should consider five factors when determining if the force used was reasonable: 1) the age, sex and condition of the child; 2) the nature of the student’s conduct and the motives of the student; 3) the influence of the student’s example on other students; 4) whether force was reasonably necessary to compel obedience to a proper command; and 5) whether the force was disproportionate, unnecessarily degrading, or likely to cause serious injury.

The case is Williams v. Spring ISD, decided by the Commissioner on October 9, 2017.  It’s Docket No. 037-R1-08-2017.

DAWG BONE: THE LAW IS DESIGNED TO HELP TEACHERS UNDERSTAND THAT THEY WILL NOT GET IN TROUBLE EVERY TIME THEY LAY A HAND ON A STUDENT.

Tomorrow: Why filing suit over a FERPA violation does not work.

We like to highlight the Toolbox around here on Tuesdays. The Toolbox is an all day training focused on the legal requirements for disciplining students with disabilities.  Today we offer a case that illustrates one of the fundamental rules about special education discipline—there is a big difference between disciplinary actions that amount to a “change of placement” vs. those that don’t.

The case involved a teacher who required students to stand on a map of the U.S. during recess as a disciplinary measure. The student was disciplined in this way as many as five times. The court found this to be no big deal:

Plaintiffs provide no evidence from the record and no legal authority that suggests this form of discipline during recess deprived Timothy of a FAPE.

I’ve seen those big U.S. maps on the ground in school playgrounds. Seems to me that requiring a kid to stand on a particular state for a while might have some educational benefit.  It might give the student a sense of how far it is from Seattle to Miami.  I find it interesting that this case comes from a district called “Switzerland of Ohio Local School District.” You reckon they can ski there?

In any event, if it’s not a change of placement you don’t need to call an ARD meeting.  Of course you should be sure that whatever disciplinary techniques your teachers use are consistent with your policy and conform with a student’s BIP, if there is one.

The case is Hupp v. Switzerland of Ohio Local School District, decided by the federal court for the Southern District of Ohio in 2012. We found it at 60 IDELR 63.

DAWG BONE: IF PEOPLE WOULD JUST RECITE THE SERENITY PRAYER THERE WOULD BE MUCH LESS LITIGATION.

Tomorrow: Teacher nonrenewal overturned by the Commish. This doesn’t happen often!