The case of Compton v. Port Arthur ISD was prompted by the fact that Ms. Compton’s speech therapy reports were being printed on a printer that was in the hallway of another school building. Lots of people walked through that hallway, and thus, Ms. Compton expressed concern about potential violations of FERPA (Family Educational Rights and Privacy Act). Ms. Compton eventually filed a lawsuit against the district, alleging that she was punished for exercising her free speech rights. We’re going to tell you how that came out tomorrow. For today, let’s talk about FERPA.

I have no idea if Ms. Compton’s complaint was accurate. The court case does not tell us. But for the sake of argument, let’s just say that it was. The speech therapist writes up her report on a student while working in an office at Adams Elementary School, but when she hits the “print” button it spits out on a printer in Jefferson Elementary, across town.

That would be very inconvenient, but would not, by itself, present a legal problem. But if it’s true that the printer was in an open hallway, where all sorts of teachers, students, custodians and who knows who else would be walking around, then you do have a problem. Pursuant to FERPA, districts are required to take reasonable steps to safeguard the privacy of educational records. A speech therapist’s report on a particular student is certainly an “educational record.” If we are printing out educational records, we should be sure that the printer is in a place where access is limited.

That’s the background on Ms. Compton’s free speech lawsuit. Check in tomorrow to find out why Ms. Compton now owes some money to the school administrators she sued.

The case is Compton v. Port Arthur ISD, decided by the Court of 24 Appeals in Beaumont on July 20, 2017. We found it at 2017 WL 3081092.

DAWG BONE: KEEP THAT PRINTER IN A PRIVATE PLACE!

Tomorrow: Lawsuit is costly….for the plaintiff

Cliff was a friend of a friend who got roped into my group of cyclists as we prepared for the MS 150—a bike ride from Houston to Austin. I did this crazy event one time, early in the 1990s. After two days and 160 miles on the bike, I was suitably proud of myself, but my butt did not recover for about six months.

The night before we started, I checked into a hotel near the starting line with Cliff. We were planning to share a room. We did not know each other well, but had done a few training rides together. We lived in the same neighborhood and I had frequently seen his son, about 12 years old, playing by himself in the yard. I had never talked to the boy, but just from casual observation I thought there was something a bit odd about him.

We had booked a room with two beds, but when we got to the front desk, the clerk told us that all of the two-bed rooms were taken. So we asked for a bed and a rollaway. Sorry, said the clerk, all the rollaways are committed also. We asked if maybe there were two rooms available? Nope. Did I mention that Cliff and I did not know each other well? At about this time, he looked at me and I looked at him and we both told the clerk that we would take the largest king size bed they had.

So that’s how Cliff and I ended up sleeping together the night before the bike ride. As we turned out the lights, we talked a bit. Cliff asked the usual questions—what kind of work do you do?

Oh… a lawyer? What kind of lawyer? A school district lawyer! What’s that? Oh….you do special education?

And that’s when Cliff told me that the boy I had seen in his yard, the kid that struck me as “a bit odd” had autism. I braced myself for criticism. I had encountered more than a few parents of students with autism who were quite unhappy with the services their children had received. But not Cliff. He told about how his son was now able to play with other students at school. How he now rode the bus with all the other kids. How his autistic son was accepted as part of the community.

“Those special ed teachers,” he said, “they are….miracle workers.”

I slept well.

DAWG BONE: ONE SMALL STEP AT A TIME, YOU CAN WORK A MIRACLE

Tomorrow: Where is your printer?

The Toolbox is a full day training program focusing on the disciplinary options with students with disabilities. One of the tools that we discuss in the Toolbox is Tool #6—a Disciplinary Change of Placement. This tool is used when the student has committed a serious violation of your code of conduct—serious enough that a long term DAEP assignment is called for.

After the administrator has provided due process and determined that the student has committed the offense, the ARD Committee should meet. One of its tasks is to conduct the “manifestation determination review” (MDR). This is a formal process to make sure that we are not punishing the student for having a disability. The MDR is designed to make sure that students are held accountable under the code of conduct only when they should be. If the student’s behavior was the direct result of the student’s disability, the district should address it in some other way—not with a punitive assignment to a disciplinary program.

But what if the school and the parent do not come to consensus on this? Suppose that the members of the ARDC who work for the school district are all of the opinion that the behavior is not a manifestation of disability, but the parent disagrees with that. There are three things you should know about that.

First, it is not necessary to recess the meeting. Texas regulations call for the ARDC to recess and reconvene later when there is a lack of consensus at the meeting. But there is an exception to this when the student has committed an expellable or DAEP offense. So you can bring the meeting to closure without a recess.

Second, the parent can request a special education due process hearing to challenge the ARDC’s decision. It would be wise for you to go over the Procedural Safeguards document with the parent to point out how this works. Since this is a disciplinary issue, the hearing is “expedited.”

Third, the disciplinary “stay put” rule applies in a case like this, rather than the traditional stay put rule. This means that the student “stays put” not in the classroom called for in the student’s IEP, but rather, in an “interim alternative educational setting” designated by the ARDC. In practical terms, this usually means the DAEP.

This is just one of the ten “tools” we review in the Toolbox workshop. If you think this training might be helpful to your staff, let me know!

DAWG BONE: TOOL #6: DISCIPLINARY CHANGE OF PLACEMENT

Tomorrow: How I learned that teachers can be “miracle workers.”

The first tangible sign of the oncoming school year is the sight of the kids in the band, practicing on the football field, or the parking lot a couple of weeks before classes begin. I make note of where I first see this each year. Since I live in Austin, I usually see, and hear, the McCallum High School band as I make my way to the office. But this year it happened in Crockett, Texas as I was driving from Region 8 to Region 6 a couple of weeks ago. There they were—the Fighting Bulldog Band. The next day I saw the Hornets of Huntsville High School practicing football in the Texas heat.

Today marks the start of a new year! Somewhere in Texas there is an excited, slightly apprehensive 22-year old teacher, facing a class of his students for the first time. Somewhere in Texas a brand new assistant principal roams the school hallways in her first day as an administrator. Somewhere in Texas, a first time superintendent will call the members of the school board to report that the first day has gone well. Somewhere in Texas a freshly minted lawyer will, for the first time, take a phone call from a school administrator seeking advice.

Everything starts new today. All over Texas today educators begin the slow incremental process of saving the world, one class period at a time. I learned that from my sister-in-law, a 30-year music teacher. After a wide ranging family discussion of the country’s political and economic problems, Shirley quietly observed: “I don’t know about all that. All I know is that I save the world every day in my classroom.”

DAWG BONE: LET’S GET THIS NEW YEAR OFF TO A GOOD START!

Tomorrow: Toolbox Tuesday!!

Just a few final thoughts before the first day of school on Monday.  You have your master schedule prepared. The curriculum is in place. The classrooms are decorated.  The drinking fountains work. So do the alarm bells. Buses are gassed up and ready to run.

But what about the most important component in the whole system? That would be you.  Are you taking good care of yourself?

I offer just one suggestion about this.  Seeing as how it’s going to get awfully busy starting Monday, now is the time to figure out when and where you can carve out some time for yourself on a daily basis. This is not selfish.  It’s necessary self-care, so that you can be useful to others. Your car needs regular maintenance, and so do you.

So figure out the physical location where you can enjoy some quiet time for reflection.  Consider creating a “Sacred Space” in your home.  Figure out a time of day when you can regularly, i.e., daily, commit to spending some time there.  My experience with this is that you don’t need a lot of time—but you do need to be consistent about this, disciplined.

St. Augustine once observed that it was necessary for him to spend one hour a day in prayer and meditation, except when he had an exceptionally busy, stressful day.  On those days he needed two hours.

DAWG BONE: HAVE A RESTFUL WEEKEND!

With a school year about to launch, I hope you are clear on how you can get legal advice when you need it. More and more districts are hiring in-house counsel.  If your district has a lawyer on staff, you should be clear about what matters the district’s lawyer handles, and who is authorized to contact the lawyer.

Whether your district has in-house counsel or not, there are times when the district will want to contact an outside law firm.  At our firm, we offer a very low cost program that we call our “retainer program.”  Districts can participate in this with an annual fee of $1000. The primary benefit of this is that district personnel are then authorized to contact the lawyers in our firm at no cost, as long as the issue is one that we can deal with in a phone call. We get lots of calls about personnel matters, student discipline, special education, business transactions, the Open Meetings Act, the Public Information Act.   We get a lot of calls from administrators who are 95% sure of what the law requires, but feel more comfortable when an experienced school lawyer confirms that. We get a lot of calls that are generated when there is an internal disagreement in the district about what the law requires.

If your district has a retainer agreement with our firm, you just need to know who the superintendent has authorized to make a phone call.  We take calls from anyone designated by the superintendent.

If your district does not have a retainer agreement with our firm….why not?  It’s $1000 for A YEAR!  We have six offices and over 55 lawyers with mucho school law experience.  Moreover, we are friendly and easy to work with.  We like school administrators!  That’s a deal you can’t beat with a bed slat.

So let me hear from you if you want more information about our retainer program. We’re pretty proud of it, as it is one of the primary ways in which we can help the people who help the kids.

DAWG BONE: LAWYERS AT YOUR SERVICE!

At our law firm, we frequently get very interesting phone calls on the first day of school.  One year, I got a call shortly after lunchtime.  It seems that a student, new to the district, had urinated on the playground.  He was promptly brought in to the office.  Questioning revealed that the student had just moved to Texas from somewhere in Central America.  He spoke not one bit of English and understood very little.  He was 12 years old, but had never been in a school of any kind.  The sad story was that he urinated on the playground because he did not know there was any other alternative.

So what began as a disciplinary incident quickly morphed into a “child find” matter.   It turns out that the boy’s mother had showed up at school with him that morning, right before classes began.  There was no time to get much information about the student, so the school just assigned him to an age appropriate classroom and figured they would find out more about him later.  The legal question that prompted a phone call to our office was about special programs. Should the boy be referred for a special education evaluation? Should we look into 504 eligibility?  The teachers could already ascertain that he was way behind his classmates.  What to do?

I did not recommend a special education referral.  There was no indication of a disability that would require specially designed instruction.  Did the student have special needs?  Of course. Was he performing well below grade level?  Yes.  But there was no indication that his educational needs were caused by a disability.

For that same reason, I did not recommend a 504 evaluation. Section 504 is not about students who are “at risk,” but rather, about the kids who have a physical or mental impairment that substantially limits them in a major life activity.  We had no evidence of that with this student, no reason to suspect it.

This student is a great example of the kids that I describe as WBFWR—Way Behind For Whatever Reason.  The school should identify the student as “at risk” and an English Language Learner, and should provide whatever special assistance the school can provide to increase the student’s rate of learning. But we have a lot of special assistance besides special education and 504.

I hope nothing that interesting happens on the first day of school in your district, but if it does…give us a call!

DAWG BONE: WBFWR: YOU WON’T FIND THAT TERM IN THE PROFESSIONAL LITERATURE.

I ran my first marathon in 1996 in Austin.  I remember that cool morning air and the high energy at the starting line.  I was excited, but also apprehensive. Could I really do this thing?  What was this going to feel like?

There is a feeling of shared experience among the runners that creates instant comradeship and mutual support.  There is lots of talk going on in that first half mile, before we are breathing too hard.  I recall the guy next to me asking “Is this your first time?”  I told him it was.  For him, this was old hat. He had run many marathons before, which is probably why he could easily spot the neophyte.

Then he made an interesting observation about running marathons. “It’s kind of like sex,” he told me.  “It’s always great…but there’s nothing like the first time.”

I’m sure he meant that comment to be supportive, but I didn’t see the connection very well. In fact, my response to him was “Well…this may be like sex for you. But I’m going to be out here for more than four hours.  Sex is not like that for me.”

Let’s remember that the school year is a marathon—not a sprint.  Pace yourself.  Take time to refresh yourself.  Drink plenty of water, and eat things that will energize you.  Go at a pace that does not labor your breathing.  Share the journey with those around you—the other teachers, administrators and the students.  Don’t focus exclusively on the finish line.  Pay attention to where you are right now, and enjoy it. One step at a time.

DAWG BONE: FROM AUGUST TO MAY—IT’S A MARATHON, NOT A SPRINT.

When did they reduce the summer to two weeks?  Whose idea was that?  After 75,600 minutes of school, you would think we would get more than 57 minutes of summer, but that’s what it feels like.

Oh well.  I expect most of you are starting school one week from today, and most of the rest of you start your motors in two weeks. No matter how you look at it, another school year is about to begin.

Are you ready?  Actually, that’s not the relevant question. It’s going to happen whether you are ready or not.  I remember hearing that point from a friend of mine who had participated in one of those insane “boot camp” activities where you gather with a group of similarly like-minded (i.e., equally insane) people at 5:00 a.m. for a vigorous physical workout. My friend pointed out that whether you were “ready” for the day’s activities did not matter.  When the starting gun goes off, you start.

Nevertheless, there are a few things you can do to put yourself in the right frame of mind for what’s about to befall you.  Here at the Daily Dawg, we will devote this week to thoughts about the upcoming school year and your preparation.

DAWG BONE: READY OR NOT—HERE THEY COME!

Your code of conduct must now include “an explanation of the provisions regarding refusal of entry to or ejection from district property” including the appeal process.  These provisions are now included in Section 37.105. They permit any administrator, SRO or school peace officer to refuse to allow a person to enter, or to eject any person from property under the district’s control. This can be done if the person refuses to leave peaceably and either 1) poses a substantial risk of harm to any person; or 2) behaves in a manner that is inappropriate for a school setting.  You must first issue a verbal warning that the person’s behavior is inappropriate and may result in refusal of entry, or ejection. If the person persists after the warning, the person may be refused or ejected.

Other requirements:

*The school must keep a record of each such verbal warning that includes the name of the person warned, and the date.

*“At the time” of refusal or ejection, “the district shall provide to the person written information explaining the appeal process.”

*The term of the refusal cannot exceed two years.

*If this happens to the parent of a student, the school must accommodate the parent so that they can participate in ARD or 504 meetings.

*There must be a notice about this, including the appeal process, posted on the district’s website and the website of each campus.

*The Commissioner is authorized to adopt rules about this.

DAWG BONE: EXPERIENCE AS A NIGHTCLUB BOUNCER MIGHT BE HELPFUL.

See you next week, folks! Start of school is getting awfully close.