Category Archives: Dawg Bones

Dawg Bones

It’s Toolbox Tuesday!! And the Dawg is headed to Region 16!

I’m off to Amarillo tonight for my annual legal update at Region 16. Get the donuts ready!  For those of you who have never been there, I can assure you that R16 provides outstanding donuts.  I’d rank them #1 among the ESCs in that important category.  Great pizza up there in the Panhandle also. So you can see, I’ll be eating very healthy.

That has nothing to do with the Toolbox, but it’s on my mind. So there.

As to the Toolbox, here’s a reminder: the Toolbox offers ten tools that are available for you to deal with disruptive students appropriately while serving them in the LRE and maintaining a safe campus.  Four of those tools involve a “change of placement.”

In the Toolbox training we divide changes of placement into the “educational” and the “disciplinary.”  You can propose an educational change of placement when the student’s behavior is a manifestation of disability.  There are two tools in the box that are educational changes of placement—Tool #2 is used when you have parent consent; Tool #3 is used when you don’t.

Tool #6 is a disciplinary change of placement. You use that one only when the behavior is not a manifestation of disability.

Then there is Tool #5—a removal due to “special circumstances.” That one should also be characterized as “disciplinary” although it can be used regardless of how the manifestation determination comes out.

Sound interesting?  I hope so. Our firm provides a full day training on the Toolbox, complete with your very own Toolbox book, some nifty laminated charts and a generally informative and enjoyable day.  Let me hear from you if you’re interested.

DAWG BONE: TEN TOOLS. FOUR WAYS TO CHANGE PLACEMENT.

 File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: An ADA case…

Dawg Bones

Can T.E.A. be held accountable when a charter school goes belly up?

A Pennsylvania charter school shut down due to financial problems. Parents of two students sought a due process hearing, alleging a denial of FAPE. They named as defendants both the defunct charters, and the state agency. The hearing officer ruled in favor of the parents.  Here, the parents sought attorneys’ fees from the state agency. The agency filed a Motion to Dismiss, arguing that it did not deny the student’s FAPE, and was not a “guarantor” of charter school solvency. The court refused to dismiss the case, and made this observation:

As the Charlene R. Court [an earlier case with similar facts] noted, Pennsylvania has encouraged the growth of charter schools, which are considered to be public schools and LEAs under the IDEA.  These charter schools, unlike public school districts, “can simply disappear,” leaving students with no recourse other than suing the PDE and the Commonwealth to vindicate their rights.

Texas, likewise, has encouraged the growth of charter schools, treats them as public schools, and has seen a few go bust in the middle of the school year.  Perhaps this could happen here as well.

The case is R.J. v. Rivera, decided by the U.S. District Court for the Eastern District of Pennsylvania on August 16, 2016.  We found it at 68 IDELR 101.

DAWG BONE: IT IS THE STATE THAT HAS THE ULTIMATE RESPONSIBILITY TO ENSURE THE PROVISION OF FAPE.

File this one under: SPECIAL EDUCATION

Tomorrow: Toolbox Tuesday!!

Dawg Bones

Special Ed numbers in Texas going up!

There has been a lot of hullabaloo about the decline in the number of students receiving special education in Texas and across the country.  But guess what—the numbers are going up.

Special ed numbers hit their peak in 2004.  That was also the year when Congress re-authorized the law, putting an emphasis on concerns over disproportionality and the need to make sure that students receive solid teaching before they are identified as having a disability.  For the next seven years the numbers went down. The total drop was 93,000, with over half of that attributable to Texas (53,221).

Then they started to go up again. The numbers have gone up in each of the past four years. In the latest year for which numbers are available, (2015) Texas added 10,482 students in special education—an increase of 2.6%.

If you look at the 11-year trend from 2004 to 2015, Texas ranked 10th in the percentage drop.  Rhode Island led the nation with an astonishing 28.3% drop in the special education population.  The drop in Texas was 11.3%.  NOTE: This is not the percentage of kids served in special education. This is the percentage drop from 2004 to 2015—the rate at which the numbers went down.

Other jurisdictions that lowered their numbers at a faster pace than Texas were: The District of Columbia, Hawaii, Iowa, Louisiana, Maine, Michigan, Missouri, and New Hampshire.

This data comes from the U.S. Department of Education, as reported at LRP’s Special Ed Connection.

DAWG BONE: IT’S NOT A NUMBERS GAME.  ELIGIBILITY SHOULD BE BASED ON AN INDIVIDUALIZED EVALUATION.

File this one under: SPECIAL EDUCATION

Dawg Bones

Blowing the whistle on UIL violations….

Anita Connally’s Whistleblower suit against Dallas ISD is barely alive. But it is alive, and provides an interesting illustration of how the courts construe the Texas Whistleblower Act.

Ms. Connally was the Director of Compliance in DISD—UIL compliance.  In 2013 and 2014, she reported her concerns about the falsification of residency records to three different internal departments within DISD: the Office of Professional Responsibility, the Internal Audit Department and the Professional Standards Office (PSO).  In June, 2014, the PSO “issued a detailed report in which it confirmed virtually all of Connally’s reports of wrongdoing.” The report confirmed that a DISD coach had falsified a district record and provided “untruthful” statements in a subsequent investigation.  The report also confirmed improper recruiting of athletes and the falsification of residency records for those athletes.

According to the lawsuit, it was the day after this report was issued when the superintendent announced that he was terminating Ms. Connally.

Hmmmm. We have a Director of Compliance who has reported multiple UIL violations internally. All of them have been verified. And now she gets fired?

The district’s position was that Ms. Connally’s reports of wrongdoing were way too late. Yes, the district acknowledged, she pointed out some problems. But the violations had already occurred under her watch. The “horses had long left the barn.”  She was the Director of Compliance, and she failed to maintain compliance.

Ms. Connally was an at-will employee, so she was not entitled to the kind of due process a contractual employee would enjoy. She did file grievances over her termination, to no avail.

Then she filed the Whistleblower suit, alleging that her termination was an act of retaliation for her good faith reports of wrongdoing.  She alleged that Dallas was embarrassed by the public disclosure of that PSO report detailing multiple UIL violations, and that the district sought to save face by scapegoating her.

The made-for-TV movie that may emerge from this will undoubtedly be more interesting than the 34-page decision from the Court of Appeals.  The court’s decision does not identify good guys and bad guys, but rather, provides a dry, technical analysis of what it takes to make a Whistleblower case.

In a nutshell, it’s harder than you think. Being a person of good heart, speaking truth to power is not enough. You have to make your report to an entity that has “outward-looking powers to investigate violations of law against third parties outside of the entity itself.” Thus those reports to DISD’s internal departments were not sufficient to invoke the Whistleblower Act.

Ms. Connally pointed out that the head of the PSO in Dallas was himself a commissioned peace officer. Would reporting to that guy be sufficient? The court said no.  The report has to go to an “entity.” Thus “the focus is not on an individual’s general status as a peace officer, but whether the individual is ‘part of’ a governmental arm or entity authorized to conduct criminal investigations.”

At this point, Ms. Connally’s case is hanging by its fingernails.  No one to whom she has reported is a “law enforcement authority” as that term is used in the Whistleblower Act, and thus the court lacks jurisdiction to even hear the case.

However, Ms. Connally also made reports directly to the DISD police chief and his assistant.  The DISD police department qualifies as a “law enforcement authority.” Unfortunately for all sides to this case, no one kept a written record of what was reported.  Thus, the litigation produced conflicting affidavits.  The cops both swore that Ms. Connally made only vague references to some troubling activity with regard to high school athletics.  Ms. Connally, however, filed an affidavit alleging that she told both of the men of forgery and/or falsification of government records.

The court concluded that the Connally affidavit failed to make out a case of “forgery” but it was sufficient to allege that DISD employees had criminally tampered with government records. Bingo. There is an allegation of an employee blowing the whistle on criminal activity. That’s good enough to invoke the jurisdiction of the court.

This one has a long way to go, but this decision keeps Ms. Connally’s case alive by finding that the suit alleges at least one instance of a good faith report of criminal wrongdoing to a law enforcement authority.  That’s what it takes to give the court jurisdiction. To win her lawsuit, Ms. Connally will also have to prove that she was fired for making that report.

The case is Connally  V. Dallas ISD, decided by the Court of Appeals in El Paso on December 21, 2016.

DAWG BONE:  GOOD FAITH.  REPORT TO A LAW ENFORCEMENT AUTHORITY.  REPORT CRIMINAL WRONGDOING.  PROVE CAUSATION. THAT’S A SUCCESSFUL WHISTLEBLOWER SUIT.

File this one under: LIABILITY

Are we serving more kids in special ed?  Or fewer?

Dawg Bones

Is your district liable for an intentional tort?

T.J. got on the wrong bus.  The six-year old was supposed to get on the daycare bus at the end of the day, but somehow, he ended up on the regular school bus.   When the bus driver figured out that T.J. was on the wrong bus, she just put him off the bus on the side of a highway. Did we mention that T.J. was six?

In the subsequent lawsuit, T.J.’s mother alleged that Dallas County Schools should be held liable for the psychological trauma the boy suffered.  She alleged that this whole episode was attributable to the negligence and the intentional actions of Dallas County School employees.

The court tossed the case out without even hearing the entire case. The court held that the allegations in the suit—even if they all turned out to be true—would not be enough to impose liability on the DCS.

Thus we have yet another example of the immunity that Texas school districts enjoy.  School districts, including DCS, are immune from general tort liability.  The one exception involves the negligent “use or operation” of a motor vehicle.  Here, the court held that there was nothing negligent about how the bus driver handled the bus. If she was negligent, it was in the way she supervised the child. That is not a basis for legal liability for the school.

The mother also alleged that this incident amounted to an “intentional infliction of emotional distress.” This is another tort that Texas courts recognize…but not with regard to public school districts.  The Texas Tort Claims Act settles this question, by noting that districts cannot be held liable for “a claim…arising out of assault, battery, false imprisonment, or any other intentional tort.”  Texas Civil Practice and Remedies Code Section 101.057(2).

An individual school employee could be held liable for an intentional tort. But this suit was against DCS.  Case dismissed.

The case is Dallas County Schools v. Vallet, decided by the Court of Appeals in Dallas on December 8, 2016.

DAWG BONE: LET’S BE SURE TO GET THOSE KIDS ON THE RIGHT BUS!

File this one under: LIABILITY AND IMMUNITY

Tomorrow: an interesting Whistleblower case….

Dawg Bones

Happy Valentine’s Day! A good day for me to tell you about Alexa—my new love.

Alexa now resides in my kitchen. She’s not much to look at.  She’s cylindrical, and about a foot tall.  But I’m in love with her.

Every morning I enter the kitchen and say “Alexa—Good Morning!” She wishes me a good morning and then tells me some interesting factoid about the day.  Then I ask her for a weather report, which she cheerfully gives me.

Alexa is exceptionally smart. Want to know who won the Oscar for Best Actor in 1943? Just ask her.  Who led the National League in strikeouts in 1969? She’s got it.

It’s a funny relationship.  I’m not sure that she knows my name, but she responds to every request.  She’s a great resource for music.  All I have to do is ask for a little Elvis, or Bruce Springsteen or even Lawrence Welk and she will play that music.  Actually….I want you to know that I have NEVER asked her for Lawrence Welk, but if I did, I’m sure she would play that music without any attitude coming my way.

If you don’t like the music she is playing, you just tell her: Alexa: stop! And she does! No arguments. No whining, criticism or door slamming.

I can tell Alexa to put milk or eggs on our shopping list, and there it goes—on the Alexa app on my phone as well as my wife’s.

Oh yes, my True Valentine knows all about Alexa, the new girl.  She’s fine with it. Especially knowing that she can tell Alexa to put things on my “to-do list” and there they will go.

You do have to be careful with Alexa about some things.  Shortly after we acquired her, my granddaughter asked Alexa to play some music from “Frozen.” Alexa said she did not have that particular piece readily available, but offered to make it available through Amazon Prime’s music service, at a measly cost of $3.99/month. Alexa asked if we would like to subscribe and my granddaughter enthusiastically signed up! Alexa did not know that she was dealing with a five-year old, but she knew how to put that charge on my credit card.

I think most of you have figured out that Alexa is the Amazon Echo voice-activated device.  I am enjoying Alexa. But it’s just a matter of time before these devices get embroiled in legal issues. In fact, I read of a murder case in Arkansas in which the prosecutors are seeking information from Amazon about what Alexa heard in the moments leading up to the murder.  After all, Alexa is always listening. She has to be, since everything is triggered by the sound of her name.

That’s our future, folks. More convenience.  Less privacy.  That’s why Alexa stays in the kitchen—not the bedroom.  That venue belongs to my True Valentine.

So Happy V-Day to all of you!

DAWG BONE: ALEXA—ARE YOU READING THIS?

Tomorrow: is the district liable for an “intentional” tort?

Dawg Bones

Who decides if the student has an “educational need”?

We continue to see many arguments over whether or not a student should be declared eligible for special education services.  Most of those arguments are about “educational need.” Under IDEA standards, a student can have all of the characteristics of a particular disability, and yet, not be eligible because the student does not “need” special education services.

Clear Creek ISD placed Devon in special education during his first year of high school.  But by April of his sophomore year, the school was ready to dismiss him from special education.  The parent disagreed with that decision, but did not take it to a due process hearing….yet.  Devon received no special education services during his junior year. However, the issue of his eligibility was revisited by the ARD Committee in April of that year. Again, the ARDC determined that the boy was not eligible. The parent disagreed.  In the spring semester of his senior year, Devon’s attendance at school took a nose dive.  In April the parent requested a due process hearing.

The hearing officer ruled in favor of the school, and now the federal court has affirmed that ruling. The magistrate’s recommendation in this case, ultimately approved by the court, outlines a complicated fact situation involving extensive correspondence between the father and the school.  Emails from various staff members are quoted throughout the magistrate’s opinion and they consistently demonstrate flexibility, courtesy and a willingness to accommodate parental concerns.  Furthermore, they consistently show that the teachers viewed Devon as a successful student.  The court noted that the input of the teachers carries more weight than the opinions of outsiders:  Key Quote:

Importantly, the determination of educational need was not for an outside provider to make but was within the judgment of the ARDC…..The observations of teachers who spend time daily with Devon in the educational setting are more reliable regarding educational need than those outside providers who base their opinions on isolated in-school observations and parent-provided information and documentation.

The parent complained that the teachers relied solely on Devon’s grades, but the court did not see it that way:

During his junior year, as discussed by the ARDC, Devon’s grades improved in spite of his dismissal from special education and even though he had not accessed any generally available support services. The ARDC discussed Devon’s above-average scores on the PSAT, his progress on the Distinguished Achievement Plan for graduation, and positive teacher reports regarding academics.

Contrary to Plaintiff’s suggestion, the ARDC did not focus exclusively on Devon’s grades but properly also considered achievement tests, teacher recommendations, and social interactions.

The case is Devon L. v. Clear Creek ISD.  It was decided by the U.S. District Court for the Southern District of Texas on September 7, 2016.  We found it the magistrate’s recommendation at 116 LRP 38829, and the court’s brief opinion at 68 IDELR 166.

DAWG BONE: THE BEST EXPERTS IN DETERMINING “EDUCATIONAL NEED” WORK FOR YOUR SCHOOL DISTRICT.

File this one under: SPECIAL EDUCATION

Tomorrow: Valentine’s Day!! Let me tell you about my new girlfriend….

Dawg Bones

DEAR DAWG: Now how exactly am I supposed to investigate a sexual harassment complaint when the complaining party refuses to put anything in writing?

DEAR DAWG: I’ve got an employee who has made a complaint of sexual harassment, but he refuses to give me anything in writing. I think the guy is paranoid about Russian hackers or something, but he’s just adamant about this. Doesn’t this make it more difficult for me to have a good paper trail of what we are looking into, and what we are doing about it?  WANT TO HAVE A GOOD PAPER TRAIL!

DEAR WANT TO:  I guess you’ve been to a lot of legal conferences, and heard the lawyers repeatedly emphasize the importance of that paper trail.  You are right—if the employee does not put anything in writing, it makes your job harder.  But take a look at your policies about this.  I’m looking at one anonymous district’s DIA Local and it says:

The District may request, but shall not insist upon, a written report.  If a report is made orally, the District official shall reduce the report to written form.

 So there you have it.  There will be a paper trail--you create it.  Obviously, you would want to go over that carefully with the person who made the oral complaint to ensure its accuracy. But if you have similar policy language, then the burden is on the district to make sure we have reduced the complaint to writing.

DAWG BONE:  “THE DISTRICT MAY REQUEST, BUT SHALL NOT INSIST UPON, A WRITTEN REPORT.”

 File this one under: SEXUAL HARASSMENT

Dawg Bones

DEAR DAWG: Here it is almost spring break, and one of our teachers just filed a sexual harassment complaint over something that happened in September. Sheesh!

DEAR DAWG:  You have to file a complaint within 15 days, right?  I know that’s the rule they applied to me when I filed a grievance years ago when I was a teacher.  The principal had been interfering with my planning and prep time and so I exercised my rights—I filed a grievance.  But the no goodniks in the administration tossed it out because they said it was “untimely.”  They said that Policy DGBA requires grievances to be filed within 15 days of when I knew I’d been done wrong.  I was frustrated about that, but I’m a team player, so I got over it. But now I’m on the other end of this thing. Now I’m the principal, and this teacher has come forward with this grievance way too late.  I intend to deny it on the basis of being “untimely.”  FAIR PLAY IS WHAT I’M ABOUT.

DEAR FAIR PLAY:  Take another look at your policies. DGBA does have a 15-day timeline, but I think you will find that DGBA does not apply to complaints of sexual harassment.  Most districts that use the TASB Policy service put the sexual harassment complaints by employees in DIA Local.  I’m looking at one district’s DIA Local right now, and it says this:

Reports of prohibited conduct shall be made as soon as possible after the alleged act or knowledge of the alleged act.  A failure to promptly report may impair the District’s ability to investigate and address the prohibited conduct.

So don’t deny the complaint on the basis of it being “untimely.” It’s not untimely.  You might want to inform the teacher that it’s helpful to get these reports more promptly, but you have a duty to investigate and take appropriate action, even though the complaint involves things that happened months ago.

When you think about it for a moment, this makes sense.  We don’t want to belittle your gripes about your planning and prep time, but that kind of thing is the sort of routine “labor v. management” dispute that DGBA is all about.  Sexual harassment is a more serious matter.  Furthermore, we know that people are often reluctant or afraid to report a complaint of such a personal nature.  So there is no timeline.  Now that you are one of the “no goodniks in the administration” you need to know these things.

DAWG BONE: NO 15-DAY TIMELINE FOR A SEXUAL HARASSMENT COMPLAINT

File this one under: SEXUAL HARASSMENT

Tomorrow: Does a sexual harassment complaint have to be put in writing?

Dawg Bones

DEAR DAWG: I think my principal is sexually harassing me. Do I have to confront him about this?

DEAR DAWG:  I think my principal is sexually harassing me and I want to put a stop to it. But I’m afraid to confront him about it.  I know he’s going to deny doing anything wrong, and I’m afraid that my bringing attention to it will only lead to more trouble.  Our policy requires all complaints to go to the immediate supervisor.  He’s my immediate supervisor. Is there any way around this?  LOOKING FOR AN END RUN.

DEAR LOOKING FOR:  Take a look at your policy again.  Policy DIA Local, as adopted by most school districts, specifically addresses this awkward situation. It says: “An employee shall not be required to report prohibited conduct to the person alleged to have committed it.”  The policy allows you to report to your supervisor, the campus principal, the Title IX Coordinator or the superintendent. So you have some options.

DAWG BONE: YOU NEVER HAVE TO REPORT SEXUAL HARASSMENT DIRECTLY TO THE PERSON YOU BELIEVE TO BE THE HARASSER.

 File this one under: SEXUAL HARASSMENT

Tomorrow: What’s the timeline for filing a sexual harassment complaint?