Category Archives: Dawg Bones

Dawg Bones

It’s Toolbox Tuesday!! What about 504?

Whenever I do the Toolbox training, someone is sure to ask about Section 504.  The Toolbox provides ten “tools” for school administrators to use when dealing with disruptive and/or violent student behavior.  The goal is to have a set of tools that empower campus administrators to serve each student appropriately while providing safety for all.  The Toolbox and its tools are all based on IDEA—our federal special education law—and the state law provisions regarding special education.

So it’s a natural question: what about 504?

The short answer to the question is that almost all of the procedures that schools use with special education students should be used when dealing with a student served under 504.  Do you have to count your days and determine if you have “changed placement”?  Yes. Do you have to conduct a manifestation determination prior to long term disciplinary action?  Almost always.

There are a few distinctions, but for the most part, the IDEA procedures provide a good framework for how you handle 504-eligible students.

Interested in a Toolbox day?  If so, just let me know!

DAWG BONE: 504 PROCEDURES FOR DISCIPLINE ARE PRETTY SIMILAR TO IDEA PROCEDURES

File this one under: SECTION 504

Tomorrow: a superintendent’s ethnic stereotype, a blunt message, and an improved principal.

Dawg Bones

Can you be eligible for special education if you have straight A’s?

I don’t think “Jane Doe” is the girl’s real name, but that’s how it reads in the court case.  When she was in the 2nd grade, the school district in Maine identified Jane as having a learning disability and started providing special education.  But the court tells us that “as a bright, hard-working student with dedicated parents, Jane improved her reading skills over the years, and she continued to perform well in school, as well as on standardized tests.”

She did so well that the district dismissed her from the special education program. This was 7th grade.  One year later, the parents asked the district to put her back in special education.

This dispute was over one of the fine points of special education eligibility.  Can you be “learning disabled” if you have deficits in “reading fluency” but your overall academic performance is very strong?  We know that students can get very good grades and still be eligible for special education due to a sensory disability, such as being blind or deaf. But can you be classified as “learning disabled” when you are achieving quite well?

The 1st Circuit Court of Appeals says that you can be.  The court held that a deficit in “reading fluency” alone can be enough for the ARD Committee to determine that you have a “learning disability,” even when that reading fluency problem is masked by straight A’s and good scores on statewide tests.

However, the court cautioned that there still must be evidence that the child “needs” special education services.  The remaining question is: “needs” special education services for what?  Obviously, Jane Doe does not need special education services to improve overall academic performance.  But if the purpose of special education services is to help the student improve in the more specific area of concern—here, reading fluency—then Jane might “need” special education.  This case does not categorically answer that question.

So where does that leave us?  The main point of today’s entry is to encourage districts not to automatically disregard eligibility just because the student is doing well in school. Can you have a high IQ and still be eligible for special education?  Yes.  Can you be in the gifted program and also eligible for special education?  Yes.

Like everything else involving special education….oh, wait….what I’m about to say should go in today’s Dawg Bone!

This case is Doe v. Cape Elizabeth School District, decided by the 1st Circuit Court of Appeals on August 5, 2016.  We found it at 68 IDELR 61 and 832 F.3d 69.

DAWG BONE: WHEN DISCUSSING SPECIAL EDUCATION NEVER SAY “NEVER” AND ALWAYS AVOID SAYING “ALWAYS.”

 File this one under: SPECIAL EDUCATION

Tomorrow: Toolbox Tuesday tackles Section 504.

Dawg Bones

Happy St. Patrick’s Day!

My grandmother, Catherine Durkin Moore, was born in 1886.  She could remember seeing the signs in windows of shops and offices: HELP WANTED: IRISH NEED NOT APPLY.

My high school history teacher told us that people used to say that the best thing about the invention of the wheelbarrow is that it enabled the Irish to walk on their hind legs.

My dad told me that on St. Patrick’s Day, there are only two kinds of people: those who are Irish, and those who wish they were.

With all due respect to Dad, I know that’s not true.  Why would you want to be Irish when you have your own family heritage that is just as grand and wonderful—as they all are.

Dawg Bones

Is it OK for the principal to pray for the kids to do well on the STAAR?

It’s not only legally OK for the principal to pray for the kids to do well on the STAAR, the Dawg thinks it’s a darned good idea.  A principal of a school in Mississippi claims that her students’ scores went up dramatically in 2013 because of prayer.

So prayer is a good thing. It turns out, however, that there may have been other factors at play in that Mississippi school.  Cheating, for example.  The Mississippi Department of Education concluded that the principal had directed teachers to correct wrong answers.  After a hearing in which eyewitnesses ratted on the principal, the Department denied the principal a renewal of her license, and barred her from re-applying for 20 years.

So say a prayer. But let God handle it from there. You keep hands off.

The praying principal was at Heidelberg Elementary in Clarksdale, Mississippi.

DAWG BONE: DEAR GOD: HELP THE KIDS SCORE WELL.  HELP ME NOT TO CHEAT. AMEN.

 Tomorrow: Erin Go Bragh!!

Dawg Bones

Is it OK for a teacher to secretly record a conversation with the principal?

The issue of secret recording came up in a Commissioner’s decision from 2000.  Robstown ISD terminated the employment of Mr. Alejandro. The decision tells us that Mr. Alejandro had a “non-teaching contract” but does not specify what his position was.  Even though he was not on a teaching contract he was on a contract. Thus the district was required to provide a due process hearing prior to terminating his employment, which the district did.

There were several reasons for the proposed termination. One of them was that the man had installed a recording device in his office whereby he recorded telephone calls, without telling the other party to the call about this.  (Nixonian!)  The Commissioner (Jim Nelson) addressed this succinctly:

Taping one’s calls and not telling the other party to the call is not illegal in Texas, but it is not a professional act.  Making unauthorized recordings of conversations constitutes good cause for terminating Petitioner’s contract.

This is something that could be addressed in your policies, procedures or employee handbooks.  With recording devices so readily available these days, it would be wise to make sure that staff members know what the expectations are.

This Golden Oldie is Alejandro v. Robstown ISD, Docket No. 053-R2-1199.   Commissioner Nelson signed off on it September 5, 2000.

DAWG BONE: GOOD RULE FOR RECORDING: NO SECRETS, NO SURPRISES

 File this one under: LABOR AND EMPLOYMENT

Tomorrow: Can we pray for the kids to do well on the STAAR test?

Dawg Bones

It’s Toolbox Tuesday!! Why is it always “45 days”?

DEAR DAWG:  I’m new as an assistant principal. Still learning the ropes.  One thing I don’t understand is why special ed kids who commit certain offenses always get 45 days in the DAEP. We don’t handle the general ed students that way. We take each case on its own merits, and may differentiate based on a number of factors. But I’ve been told that if it’s a special ed kid and the offense involves drugs or weapons, they get 45 days.  Period.  Doesn’t make sense to me.  What do you say?  NEW GUY.

DEAR NEW GUY: Doesn’t make sense to me either. Nor is it legal to handle it the way you’ve been told.  Let’s go over Tool #5 again.  There are ten “tools” in the Toolbox.  Tool #5 involves the “special circumstances” offenses—drugs, weapons and the infliction of serious bodily injury.  If a student with a disability commits one of these offenses, you can use Tool #5—assigning the student to an “interim alternative educational setting” for UP TO 45 school days.  Please note: “UP TO.”  You always have to treat each case on its own merits, just as you do for the general ed students.  Also, you have to be sure that you are not imposing a consequence more harsh than your Code of Conduct would permit.  So when using Tool #5, we always recommend that you start by looking at your Code. What would you do if this were a general education student?  Don’t come down any harder on the special education kid. To do so would be a simple case of discrimination. Best of luck, NEW GUY.

Let me know if you are interested in a Toolbox Training. This is an all day program aimed at campus administrators and special education staff. We go over ten “tools” in detail, with a book, some laminated charts, hypotheticals to practice with and plenty of time for Q and A.  It’s all about providing appropriate services to every student, maintaining safety, and complying with the law.

DAWG BONE: EQUAL TREATMENT IS THE LAW, EVEN WHEN THE CIRCUMSTANCES ARE “SPECIAL.”

 File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: can I secretly record my conversation with the principal?

Dawg Bones

SCOTUS punts on transgender case. Now what????

Last Monday the Supreme Court punted the transgender student case back to the 4th Circuit.  The official legalese for this is that SCOTUS “vacated” the decision of the 4th Circuit and sent it back to that court for further consideration.  Instantly, the speculation began as to the motivation behind this.

I think it’s pretty simple.  The Trump Administration has taken a wrecking ball to the foundation of the 4th Circuit’s decision. So the Supreme Court wants that court to take another look at this issue.  Let’s review how we got here.

The 4th Circuit ruled that a school district in Virginia had to permit Gavin Grimm to use the boys’ bathroom, despite school policy that limited transgender students to the bathroom corresponding to birth sex, or a private, gender neutral facility.  In other words, Gavin, who was born female, would have to use the girls’ room or a private, neutral facility.  Gavin, a transgender male, was not OK with this.  He sued, claiming that the policy violated Title IX.

The 4th Circuit agreed with Gavin, but the primary reason for that was the court’s deference to the interpretation of the law by the Department of Education and Department of Justice. The court did not explicitly rule on what it thinks Title IX requires. Instead, it cited the legal principle that the agency that enforces the law is entitled to a certain level of deference.  Thus we might paraphrase the court’s decision as “we’re not sure what Title IX requires, but this is what the DOE and DOJ  say it means, and we don’t think they are way off base, so we’ll defer to their interpretation.”

Then the case went to SCOTUS.  Meanwhile, we had a little election.   The new Trump DOE and DOJ withdrew the guidance from the Obama Administration, thus destroying the foundation of the 4th Circuit’s decision.

So SCOTUS has sent the case back to the 4th Circuit, which will now have to tell us what it thinks Title IX and the U.S. Constitution require when it comes to bathroom usage by transgender students.  This is not surprising, nor does it suggest how SCOTUS will eventually rule on this matter.  Whether this case or another one, the issue of transgender use of bathrooms seems inevitably headed for a SCOTUS decision.

Stay tuned, folks.

DAWG BONE: ELECTIONS HAVE CONSEQUENCES.  YOU WILL RARELY SEE A MORE CLEAR CUT EXAMPLE OF THAT.

 File this one under: TRANSGENDER STUDENTS

Tomorrow: It’s Toolbox Tuesday!! We’ll talk about the “45-day” rule.

Dawg Bones

Have you ever issued a “no-trespass” letter to a parent?

“Petitioner and Respondent have, to put it mildly, a rocky relationship.”  That’s Commissioner Morath’s characterization of the situation that exists between Killeen ISD and a parent.  The school district has issued letters to this parent since 2012, directing her to follow certain “protocols” when on district property.  The Commissioner characterized these as “no-trespass” letters.

The parent filed an appeal to T.E.A. but it wasn’t specifically about the “no-trespass” letters.  Instead, the parent alleged that a district employee defended the district’s decisions and in doing so made a false statement about the parent.

The Commissioner’s decision does not tell us what the statement was or who made it. Nor does the decision tell us whether the statement is true or false.  But it does tell us two things that are worth noting.

First, the Commissioner of Education in Texas “lacks jurisdiction over violations of federal law.” The parent asserted that the false statement violated a federal law.  The Commissioner noted that he lacks the power to address such an issue.

Second, allegations that a certified employee has violated the Code of Ethics should go to SBEC—not the Commissioner.  Again, this is a matter of jurisdiction.

Thus the case was dismissed for lack of jurisdiction, without any discussion of the legality or propriety of a “no-trespass” letter.

The lawyers in our firm have helped many school districts in situations like this.  The starting point is that school officials have the responsibility--and the duty--to maintain certain standards for all visitors to district property.  You can’t tolerate criminal behavior, threats of violence, or anything  that substantially disrupts school activities.  If you believe that a particular parent needs to be warned about such things, a written notice might be appropriate.  But we always recommend legal counsel in a situation like that.  Whenever you single out a particular parent for negative attention, you are likely to be accused of retaliation, discrimination of some sort and/or infringement on parent rights.

Slow down.  Talk to your lawyer. Craft your letter carefully.  We can help you with this sort of thing.

The case is Davis v. Killeen ISD, Docket No. 021-R10-03-2016, decided by Commissioner Morath on November 21, 2016.

DAWG BONE: YOU ARE STEWARDS OF PUBLIC PROPERTY

 File this one under: GOVERNANCE

Dawg Bones

Child v. Nine District Employees: Case Dismissed

Here’s a short and simple point to keep in mind. If you appeal a school district’s decision to T.E.A. you have to identify the DISTRICT as the respondent.  In a recent case, an anonymous “child” acting through the equally anonymous “parent” complained about nine named employees without identifying the school district they worked for.  The Commissioner put it succinctly: “The only proper respondent in a Texas Education Code section 7.057(a)(2) case is a school district.”  No school district, no jurisdiction. Case dismissed.

If that sounds overly harsh, you should also know that the Commish gave the Petitioner an opportunity to fix this problem, but the Petitioner failed to do so.

So there. The case is Child b/n/f (by next friend) Parents v. Rogers, et al.  Docket No. 020-R10-03-2016, decided by Commissioner Morath on November 17, 2016.

DAWG BONE: IT’S IMPORTANT TO PAY ATTENTION TO DETAILS

File this one under: PRACTICE AND PROCEDURE

Tomorrow: Have you issued a “no trespass” letter to a parent?

Dawg Bones

Did SCOTUS say that Wonder the Service Dog can come to school now?

The Dawg takes a particular interest in any litigation involving his fellow canines.  Thus we have been closely monitoring the Supreme Court (SCOTUS) awaiting a decision about WONDER the Service Dog.  We’ve got the decision now. But it doesn’t tell us much about Wonder, or the school’s obligation to accommodate a request for a service animal.

Instead, the decision is all about “exhaustion of administrative remedies.”  Thus you can file this one under BORING, BUT IMPORTANT.

The Court ruled that the parent of a student with a disability can file a lawsuit without first seeking a special education due process hearing if the “gravamen” of the suit is something other than the denial of FAPE (Free Appropriate Public Education).  “Gravamen” is a great word to work into your daily vocabulary.

This case arose when the parents asked the school to allow Wonder to come to school with the little girl.  The school turned down the request, largely because the school was already providing a one-to-one aide.  Who needs a dog when you have a person?

That would have been a winning argument if this case was about whether or not the school was providing FAPE.  But the case was not about FAPE--it was about discrimination under Section 504 and the ADA.  Thus the Court came to its ultimate conclusion: that if the case is not about FAPE, but is instead, about alleged discrimination, then you don’t have to “exhaust” those administrative procedures.

So how do you tell what the case is really about?  This is where the word “gravamen” comes into play.  The Court described it this way: “What matters is the crux—or in legal-speak, the gravamen—of the plaintiff’s complaint, setting aside any attempts at artful pleading.”

Justice Kagan wrote the Court’s opinion and offered four ways in which lower courts can discern the “crux” of the suit.  First, what does the lawsuit itself say?  Here, the Court pointed out, the key is not labels, but substance.   Exhaustion is required “when the gravamen of the complaint seeks redress for a school’s failure to provide a FAPE, even if not phrased or framed in precisely that way.”

Second: could the plaintiff bring the same complaint if the setting for the complaint had been some public facility other than a school?  Here, the complaint was about the denial of a service dog in the public school. Could the plaintiff have filed suit if the city library had denied entry to the service dog?  If so, it sounds like the “gravamen” is not about FAPE.

Third, could an adult file the same complaint? If Grandma was not allowed to bring her service dog to the high school graduation, could she file suit under ADA/504?  If so, it sounds like this is not really about FAPE.

Finally, what’s the history of the proceedings?  Did the parents begin the process of exhaustion and then abandon it? If they requested a special education due process hearing, it is more likely that the “gravamen” is about FAPE.

The Court did not decide whether the Frys have to exhaust their remedies or not.  There were some unanswered questions in the record, and so the Court sent it back to the 6th Circuit for further consideration. But it sure looks like exhaustion will not be required. The “gravamen” of this complaint is equal access—discrimination—not the denial of FAPE.

This is an important decision, as are all decisions by the U.S. Supreme Court. However, it is not one that will have an immediate impact on the day-to-day operation of your school district.  “Exhaustion of administrative remedies” is of more concern to the lawyers than the educators.   If suit is filed, it will be up to your lawyer to determine whether or not it is wise to seek dismissal based on the failure to exhaust.  Justice Kagan’s opinion will guide that decision.

But before we leave this case, let’s consider one more aspect of it. What about Wonder?  The case has now been through all three levels of our federal judicial system and the core issue has yet to be addressed—did the school discriminate against the family by denying access to the service dog?   All three judicial opinions address only the procedural issue of “exhaustion of administrative remedies.”

However, the implication of the ultimate (SCOTUS) decision is clear.  Claiming that a service animal should be allowed at school involves more than a FAPE analysis.  It also involves consideration of whether or not a denial of that claim would open the door to a federal suit under ADA/504.  So ask yourself two questions: Is it required for FAPE?  If so, write it into the IEP.  If not, ask yourself the second question: Is it required as an element of equal access?  If so, then permit it as a reasonable accommodation.

The case of Fry v. Napoleon Community Schools was decided by the U.S. Supreme Court on February 22, 2017.  The judgment was rendered unanimously, with six justices signing off on Justice Kagan’s opinion, and two (Alito and Thomas) adding a concurring opinion addressing one part of Kagan’s opinion.

DAWG BONE: THE DAWG IS SECRETLY SUPPORTIVE OF WONDER

 File this one under: PRACTICE AND PROCEDURE

Tomorrow: T.E.A. is not the place to go with a complaint about an individual.