The Texas Legislature is considering many bills that would address what rights parents should have regarding their child’s education. We already have an entire chapter in the Education Code devoted to this topic, Chapter 26. The chapter is entitled Parental Rights and Responsibilities, but the content of it is strong on the rights and nonexistent on the responsibilities. That’s not to suggest that the law imposes no responsibilities on parents. It does, but they are mostly spelled out in the Family Code, not the Education Code.

Chapter 26 opens with a strong statement:

Parents are partners with educators, administrators, and school district boards of trustees in their children’s education. Parents shall be encouraged to actively participate in creating and implementing educational programs for their children.

A partnership requires that each partner do what it takes to be a good partner. A partnership implicitly calls for a certain level of trust, commitment, loyalty. A friend once told me that a successful marriage partnership could never be a 50/50 proposition. It needs to be a 100/100 deal.

In the school business, educators work every day with many parents who are terrific partners. They volunteer for the Halloween Carnival, donate to the Foundation, keep up with the child’s homework, and support the teachers and staff. However, there are other parents who fall short of that standard. Some are uninvolved. Some are antagonistic. Some take their complaints not to the principal, but to social media. What can be done about that?

I start with the idea of offering no resistance to how people are. I wish that people were different. This comes up in everyday encounters, like the person with 13 items at the “10 or fewer” line at H.E.B. It comes up at work, in the home, on I-35…everywhere. But wishing that people were different is the first level of resistance. Thinking they ought to be different is the next level. Resistance to reality, including how other people treat me, is unproductive.

All I can control is what kind of partner I am. So as we interact with parents in the process of serving their children let’s model transparency, loyalty, commitment, patience. And let’s keep an eye on the changes we will likely see in Chapter 26. There are 26 bills already introduced that address parental rights. Nine of them have “parental rights” in the title of the bill. Those are the ones to watch: HB 473, HB 631, HB 1155, HB 1541, SB 165, SB 393, SB 394, SB 421, and SB 562.

DAWG BONE: TO HAVE A BETTER PARTNERSHIP BE A BETTER PARTNER.

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

It’s Texas Independence Day!! Wave the flag proudly, fellow Texans.

Many educators are hoping for some independence from the requirements of HB 4545, now located at Texas Education Code 28.0211. Many parents feel the same. HB 4545 was the big surprise from the 2021 legislative session. The bill is a clumsy, one-size-fits-all approach to bringing kids up to speed after the pandemic. I cannot think of a piece of legislation that has created more anger and frustration than this one. Parents were angry. Teachers were angry. And when the legislators got word of the practical consequences of this bill, they got angry too. I attended a pre-legislative meeting last fall in which I heard four representatives basically apologize for this mess and promise to make corrections in 2023.

Nine bills have been introduced that would amend Texas Education Code 28.0211, which is entitled Satisfactory Performance on Assessment Instruments Required; Accelerated Instruction. Three of the bills are described as duplicative: HB 509, HB 1267, and HB 1326. Other bills that take a shot at fixing things are HB 272, HB 1981, HB 1983, and HB 2031. I think the most comprehensive approach to reform is in HB 1416, introduced by Representative Keith Bell of Kaufman County. It seeks to amend 13 subsections of TEC 28.0211, and to add seven new subsections.

We won’t know what is going to happen until it does, but it looks like something will happen. Stay tuned for the end of the session.

By the way, we will be talking about legislative activity in our monthly Zoom with the Dawg session on March 23rd when I will be joined by Mark Terry from TEPSA and Andrea Chevalier from TCASE. Hope you can join us.

DAWG BONE: HB 4545: GOOD INTENTIONS GONE AWRY.

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

Tomorrow: the big push for parent rights

Yesterday the Dawg addressed the biennial effort by a legislator to ban corporal punishment in our public schools, and I offered the safe prediction that the bill will not pass. Then I noticed that I had an email request from a Loyal Daily Dawg Reader to address liability issues that might arise in the use of corporal punishment. I’m happy to do so, as it gives me the opportunity to remind y’all that I welcome your requests. I don’t have a tip jar for you to drop in a buck or two, but I welcome a request or suggestion from any LDDR—Loyal Daily Dawg Reader.

Are there liability issues with the use of corporal punishment? Absolutely. This is one reason why some districts have chosen to prohibit it. Professional educators in Texas have extensive legal protection from personal liability. Section 22.0511 grants educators immunity from liability for any act arising from the use of judgment or discretion within the scope of employment. However, there is an exception. There is no immunity “in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.”

That “negligence” exception has been interpreted by the Texas Supreme Court to apply only when the actor is negligent in the use of force in a disciplinary situation. Bottom line: an educator does risk personal liability when using force to discipline a student. Thus there can be personal liability if the educator is 1) negligent in using force; or 2) excessive in the use of force.

Many believe that the rules are different for students with disabilities. They are not. However, when dealing with students with disabilities there is an increased likelihood that actions may be construed as negligent or excessive.

Corporal punishment is on the way out. It’s been banned in most states and in many Texas districts. Our state law on the subject does not by itself authorize corporal punishment. Instead it permits it “If the board of trustees…adopts a policy…under which corporal punishment is permitted.” Furthermore, parents have the right to opt their child out of this practice by giving written notice to this effect. T.E.C. 37.0011(b). I’ve always thought that a better approach is to require that parents opt in before using corporal punishment.

The best way to avoid liability over corporal punishment is to not do it. The second best way is to limit corporal punishment to situations where parents have opted in by giving written consent. Then scrupulously follow policy and document the incident accurately and thoroughly. Lots of bad things can happen to an educator who paddles a student. They can be charged with child abuse or criminal assault. A civil suit is possible and could be successful since there is no immunity when physical force is used. On top of all that, there is plenty of research telling us that this ancient practice is not good for students either.

But it remains legal here in the Lone Star State, if your board policy permits it.

DAWG BONE: BEST WAY TO AVOID LIABILTY OVER THIS IS NOT TO DO IT.

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

Tomorrow: fixing HB 4545

There are several bills making their way through the legislative process addressing the use of physical restraints and/or corporal punishment. It’s too early to know what will pass, but I am going to predict that HB 772 will not pass. It proposes a complete ban on corporal punishment in public schools. A bill like that is introduced every session, and generally does not get very far.

Given the reality of school shootings there is virtually zero chance of a complete ban on the use of physical restraint by trained school personnel, but there are continuing concerns over health risks to the students when a technique is not properly used. We may see some new restrictions on the use of certain methods of restraint and on the use of “chemical irritants.”

Regardless of what happens legislatively, the need for continual training on the proper use of restraints is imperative. The primary reason for training is to safeguard safety of students and staff, but there are also liability concerns. As we have reported in the Daily Dawg of late there have been several lawsuits equating physical restraint to a “seizure” as that term is used in the 4th Amendment, thus opening the door to potential individual liability.

If you want to keep up with this, check out SB 133, and HBs 133 and 459 along with the aforementioned HB 772.

DAWG BONE: LIKELY TO SEE SOME ACTION RE: RESTRAINT.

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

Tomorrow: speaking of corporal punishment…

It’s about time to take a look at what’s going on down at the Capitol. As you Loyal Daily Dawg Readers know, the Lege is hard at work. I don’t find it useful to spend too much time keeping up with all of the ins and outs of this process. The vast majority of bills will never see the light of day, and most of the real action happens in the last week or two of the session. So here in February we only see glimpses of what might happen. Nevertheless, it’s important, not to mention interesting, to keep an eye on things.

The best way I know to keep up is through Texas Legislature Online: www.capitol.texas.gov. Go there and create your own list of bills to follow. You can also just Google “TLO” and the site will pop up.

There is a lot of money sloshing around this session, so it’s likely that there will be some sort of increase in funding for public education. Many educator groups are urging a fundamental change to the basic formula whereby funding would be based on the more stable number of students enrolled, rather than the fluctuating number of those in attendance. Too soon to know what will happen, but here’s a safe prediction: there will be more money for public education. Here’s an even safer prediction: it won’t be enough.

I’ve got my personal list of bills set up on TLO that I will be following, and we will highlight a few of those this week in the Dawg.

DAWG BONE: ALWAYS EXCITING WHEN THE LEGISLATURE IS IN TOWN.

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

Tomorrow: Toolbox Tuesday!!

The parents of J.M. allege that the school in North Carolina remained “willfully ignorant” about how to serve their child who had an unusual kind of visual impairment.  J.M. had CVI—Cortical Visual Impairment.  According to the court, “individuals with CVI can ‘see’ the world, but their brains cannot process and interpret what they see.” Thus, unlike other VI children, those with CVI can improve their functional vision with intervention.

Among other things, the parents alleged that the district inappropriately predetermined that Braille was the way to address the student’s reading issues and offered IEPs with Braille over parental objections and without evaluation data to support that decision.  The parents also alleged that the school intentionally removed the only teacher it had who had CVI Range Endorsement.  The parents also alleged that the school failed to comply with the ADA regulations pertaining to effective communication. Those regs require that public entities give “primary consideration” to the preference of the person with the impairment in selecting how to accommodate it. The complaint cited the school’s choice of Braille, and the failure to provide print media in large print. 

It’s hard to believe that a school district would be “willfully ignorant” of how to serve a student but that’s what is alleged here and at this stage of the proceedings (a Motion to Dismiss) the court is required to accept those allegations as Gospel truth.  So the court refused to dismiss the claim of discrimination and retaliation. The court held that the plaintiffs had plausibly alleged that the district obstinately remained willfully ignorant of how to serve a student with CVI.  

The court rejected the school district’s argument that IDEA required the use of Braille and held that the allegations, if true, would amount to a failure to comply with the ADA regulations. The ADA regs apply to people with vision, hearing, or speech impairments. They require that public entities must “honor the choice [of the individual with a disability] unless it can demonstrate that another effective means of communication exists or that the use of the means chosen would result in a fundamental alteration or an undue financial and administrative burden.” 

The district was wrong about what IDEA says about Braille. IDEA does make Braille the first option, the “default,” so to speak.  But it says that Braille should be offered unless the IEP Team determines that Braille is not appropriate for the particular child.  In other words, and as usual, all decisions should be based on the child’s individual evaluation data. 

It’s J.M. v. Wake County BOE, decided by the federal court for the Eastern District of North Carolina, and cited in Special Ed Connection at 81 IDELR 230.

DAWG BONE: BRAILLE IS THE DEFAULT, BUT NOT MANDATED. Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Michael P., aka “the Plaintiff” alleges that his IEP promised safe transportation including a “driver who would not open the bus door until Michael P.’s aide was ready to assist him.”  The suit alleges that the student “threw himself off the bus” when the door was open and the aide was not ready, landing face first on the pavement and sustaining serious injuries. Ouch. 

It’s unusual for an IEP to be that specific about safety measures, but Michael had a cognitive disability and Down Syndrome, a lack of regard for his safety and a history of elopement, including running off the bus. That’s why the IEP was so specific.

The suit alleges disability discrimination in violation of Section 504 and the ADA, and the federal court declined the school district’s Motion to Dismiss.  The case will continue, but to prevail in this case the plaintiff has to show that the district was “deliberately indifferent.”  If the court ultimately concludes that this was simply a momentary lapse in judgment, a moment of negligence, the student will lose the case.  But the court held that the failure to implement a part of a student’s IEP could be characterized as “deliberate indifference.” So it was too soon to toss it out of court.

Pretty clear lesson here.  Pay attention to those IEPs and 504 plans. Not only will doing so avoid legal problems. It will also keep kids safe. 

It’s Michael P. v. East Stroudsburg Area School District, decided by the federal court for the middle district of Pennsylvania, and cited in  Special Ed Connection at 81 IDELR 248.

DAWG BONE: READ THE IEP CAREFULLY.  IMPLEMENT FAITHFULLY AND COMPLETELY.

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

Tomorrow: can an educational institution be “willfully ignorant”?

If the parents of 11-year old B.F. lose their appeal at the 1^st Circuit, perhaps they will simply move to Texas.  Here in Texas they will have a robust set of legal protections for parents set out in Chapter 26 of the Education Code.  Moreover, they would not have to deal with a school policy that encourages school staff to keep secrets from parents.    

The dispute started when the school librarian gave the 6^th graders an assignment to develop a biographical video. Sounds like a fun and educational project for the TikTok generation. However, the librarian “invited students to include their gender identity and preferred pronouns in their videos.”  A few months later, an 11-year old confided in a teacher, expressing concern over depression, low self-esteem and possible same-sex attraction.  Would the teacher help talk to the parents about this? 

The teacher did. This prompted the mom to send an email to all of the teachers asking them to refrain from any such discussions with her children. 

Two months later the student sent an email to various teachers, identifying as “genderqueer” and announcing a new name and preferred pronouns.  The school counselor sent an email to staff informing them that they should use the new name and pronouns in school but “should not use B.F.’s new name and pronouns when communicating with B.F.’s parents.” In other words, let’s keep this from the parents.

The court noted that the school counselor’s position:

was consistent with a policy sanctioned by the School Committee pursuant to which school personnel would only share information about a student’s expressed gender identity with the student’s parents if the student consented to such communication.

The federal court in Massachusetts did not like this policy:

Students and parents would almost certainly be better served by a more thoughtful policy that facilitated a supportive and safe disclosure by the student, with support and education available for students and parents, as needed and when accepted.

…it is disconcerting that school administrators or a school committee adopted and implemented a policy requiring school staff to actively hide information from parents about something of importance regarding their child.

But despite those misgivings, the court held that the policy did not violate any parental rights.  In fact, “the alleged policy was consistent with Massachusetts law and the goal of providing transgender and nonconforming students with a safe school environment.”

It’s on appeal to the 1^st Circuit. Stay tuned.

The case is Foote v. Town of Ludlow, decided by the federal court in Massachusetts on December 14, 2022. It’s cited at 2022 WL 18356421.  

DAWG BONE: PARENTS IN TEXAS ARE ENTITLED TO “FULL INFORMATION REGARDING THE SCHOOL ACTIVITIES” OF THEIR CHILDREN. 

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

Tomorrow: he landed face first on the pavement. Ouch!

The Toolbox offers ten “tools” that educators can use to comply with IDEA while serving students who may be disruptive or even violent.  Tool #4 is rarely used. That’s because it takes an unusual confluence of circumstances to make Tool #4 your best option.  A hearing officer’s decision from California illustrates. 

The student drew attention at first because he was “viewing and searching inappropriate content on his school computer during class. Student had a fascination with school shootings, terrorist beheadings and other forms of murder.” He was reading Mein Kampf, which was not part of the school curriculum.

Then there were a number of incidents, such as slamming a door close to the face of a teacher.  The hearing officer recounted what happened in the spring semester of 2022:

Student began targeting minority students online and in-person at school. Student held several online accounts with alias usernames, and frequently used these accounts to threaten and bully minority students. In particular, Student targeted peers who identified as members of the lesbian, gay, bisexual, transgender and queer, called LGBTQ community.

Eventually there were complaints from over 20 students, 12 of whom reported physical assaults. The student also “directed a misogynist, antisemitic slur toward [a teacher] and, multiple times, called [the A.P. an offensive name and made sexually explicit remarks.”

The kid ended up in juvie for 20 days and came back to school in the fall sporting an ankle bracelet.   School officials did not want the student to attend the regular high school, even though that was the placement called for in his IEP.  So they asked for an “expedited hearing” to get an order from a hearing officer to move the student out of his high school and into Point Quest, a private, nonsectarian school certified by the California DOE.  If they prevailed, they would get an order authorizing the removal of the student to Point Quest for 45 school days.

In Toolbox terms, the district was using Tool #4—seeking an expedited hearing to change the placement of a student.  Why would they do that? Why not pursue some other options?  Let’s consider.

One option offered by the Toolbox is Tool #2—an Educational Change of Placement with Parent Consent.  It’s clear from the hearing officer’s decision that the parent in this case would not consent to a move like that.

What about Tool #6—a Disciplinary Change of Placement?  There is no indication that the district attempted this. Perhaps that was because district officials believed that the student’s behavior, though disturbing, was a manifestation of his disability. Tool #6 can only be used when the behavior is not a manifestation of disability.

What about Tool #5—Special Circumstances?  This Tool authorizes the school to order the removal of a student unilaterally. You don’t need parent consent or a hearing officer’s permission, and it can be used even when the behavior is a manifestation of disability. But this Tool is only available when a student possesses or uses drugs, a weapon, or inflicts “serious bodily injury” on someone.  There was none of that here. There were threats. There were physical assaults of multiple students, but none of the students suffered “serious bodily injury.”

All that’s left is Tool #4—a request for an expedited hearing or a court injunction. The Sacramento City School District initiated the hearing process and proved its case after five days  of due process hearing. The hearing officer concluded that maintaining the current placement at the high school “causes a substantial risk of injury to Student or others.” So the student would be removed to Point Quest for 45 school days. The order was issued on September 22, 2022, which means that 45 school days would be up around the first of December. What then? Either the student returns to the high school, or the school asks for another expedited hearing to keep him out for another 45 school days. 

It's not easy. The burden of proof is high. The bill for attorneys’ fees is high.  Success in the hearing is by no means guaranteed, and even if it is successful, it’s a stopgap measure only.  All of which means that Tool #4 should be used sparingly.  It’s better by far to find a resolution that would be acceptable to both school and parent. 

It’s Sacramento City USD, decided by the California hearing officer on September 22, 2022 and reported in Special Ed Connection at 122 LRP 40101.

DAWG BONE: TOOL #4—TO BE USED SPARINGLY.

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

Tomorrow: one more example of how Massachusetts is not like Texas…

The legal battles over the treatment of transgender students have mostly been about sex discrimination.  However, a decision from the 4^th Circuit illustrates how disability discrimination can come into play.  Let’s think about the Americans with Disabilities Act (ADA) and Section 504 as they might apply to transgender students.  

The case involved a transgender woman who was incarcerated on the male side of the prison and denied the hormone therapy prescribed for her for several months.  She also alleged continual harassment from prison officials as well as other inmates.  The plaintiff had been living as a woman for years and had a Maryland driver’s license indicating female sex.  But the prison’s policy ignored that and separated people solely on the basis of genitalia. Got a penis?  You go to the mens’side. 

The plaintiff sued the sheriff and some others. What makes the case Dawgworthy is the legal basis for the suit. Unlike most transgender plaintiffs, Ms. Williams did not allege sex discrimination under Title IX, but rather, disability discrimination under ADA and 504.  The suit alleges that the plaintiff has gender dysphoria and was subjected to discrimination because of it. If courts accept that theory, you can expect it to come up in public school cases. 

The ADA has a broad definition of disability applying to any “mental or physical impairment” that “substantially limits” a person in a “major life activity.” However, Congress wanted to make sure that this law was not used to protect those whom Congress did not want to protect. So there is an exclusion:

Under this chapter, the term “disability” shall not include—

(1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, GENDER IDENTITY DISORDERS NOT RESULTING FROM PHYSICAL IMPAIRMENTS, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders, resulting from current illegal use of drugs.  42 U.S.C. 12211(b), emphasis added.

So there it is in plain language—gender identity disorders are not to be considered to be “disabilities” and thus, trans individuals cannot claim protection under ADA or 504.

However, the 4^th Circuit held that “gender dysphoria” is not the same as “gender identity disorder.” It’s a subset of that term.  The court noted that “gender dysphoria” is marked not just by incongruence between biological sex and gender identity, but also by “clinically significant distress” felt by those who experience that incongruence.

This is a ruling on a Motion to Dismiss, meaning that the court was required to assume the truth of the plaintiff’s allegations and, essentially, give the plaintiff the benefit of the doubt in how it construed the statute. But I bring it up in the Daily Dawg because I am sure we will see this same issue playing out in public schools.

Advocates for LGBTQ individuals have long argued that none of these conditions, by themselves, should be treated as an impairment of any kind. But this case is not about gender identity. It’s about the “clinically significant distress” that may arise from that condition.  So you may see parents making claims of disability discrimination on behalf of children with symptoms of gender dysphoria. 

The case is Williams v. Kincaid, a published decision issued by the 4^th Circuit on August 16, 2022, and cited at 45 F.4^th 759.    

DAWG BONE: HEADS UP, SECTION 504 COORDINATORS.

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

Tomorrow: Toolbox Tuesday!!