Category Archives: Dawg Bones

Dawg Bones

If the board had its mind made up ahead of time, there may be a problem

Mr. Falash claims that he was wrongfully terminated by Inspire Academics, an online charter school. The board gave Mr. Falash a hearing, but Mr. Falash claims that his firing was a done deal beforehand, and thus the hearing was mere “window dressing.”   According to the federal court in Idaho, Mr. Falash may have a good case.

The issue here is procedural due process.  Mr. Falash had a property right in continued employment with Inspire, and thus, he was entitled to “due process” before that right could be taken from him. Inspire claimed in the lawsuit that it provided due process by giving him that hearing before the board. The problem, however, was that Inspire produced written documentation prior to the board hearing that spoke of his termination in the past tense.  Consider this:

Your termination was related to your performance and complaints received regarding your behavior.

Hmmm. That sure sounds like the guy is already gone. Key Quote:

…where a board of representatives has predetermined the outcome of a due process hearing, there may be a denial of due process.

A hearing does not comport with due process if it “is totally devoid of a meaningful opportunity to be heard” because the decision-makers have predetermined the outcome of the hearing.

The court held that there was enough evidence of predetermination that it could not simply toss the case out of court. Mr. Falash will have his day in court.

The case is Falash v. Inspire Academics, Inc. decided by the federal court in Idaho on September 12, 2016. We found it at 68 IDELR 163.

DAWG BONE: BOARD MEMBERS MUST HAVE AN OPEN MIND WHEN HEARING A TERMINATION CASE

 File this one under: DUE PROCESS     LABOR AND EMPLOYMENT

Dawg Bones

It’s Toolbox Tuesday!! Let’s talk about physical restraint

The Toolbox is an all day training program highlighting ten “tools” available to school staff when addressing difficult, disruptive or even violent behavior from students with disabilities. One thing we talk about quite a bit is physical restraint.  A recent court case from the District of Columbia serves as a good reminder of how important it is to follow proper protocol when restraint is necessary.

In the case, the court held that the district’s use of physical restraint denied a FAPE (Free Appropriate Public Education) to the student.

Was that because restraint was used too often?  No.

Was it because restraint was used in non-emergency situations?  No.

Was it because the student was physically injured as a result of the restraint?  No.

Was it because of the instructional time the student missed out on when restrained?  No.

It was because the district did not comply with district policy.  The district did not call for an IEP Team meeting after each of the six incidents when restraint was used.  By not calling for that meeting, the district violated D.C. policy. The court held that this had the effect of preventing the parent from engaging in meaningful participation in the child’s education.

Let’s compare the D.C. protocol with ours in Texas.  They are virtually identical with respect to when restraint can be used and how long it is to last.  They are very similar, but not identical, with regard to parental notification:

District of Columbia
Verbal notice to parent within one hour
Written notice within one day
IEP Team meeting within 5 days
Meeting must include everyone involved		 Texas
Good faith effort to notify parent that day
Written notice within one day
ARD to consider each incident when it meets

Notice the key difference—D.C. requires a meeting after each incident, with all of the people who were involved to be present at the meeting.  Texas requires documentation of the incident to be placed in the child’s special education folder so that it can be discussed at the next ARD meeting. But Texas does not require a special meeting, nor does it require the attendance at the meeting of everyone involved in the restraint episode.

My point is not to suggest that one set of regs is better than the others.  The point is to be sure that you comply with whatever your regulations are. As this case shows us, failure to comply with applicable regulations can have serious consequences.

The case is also an important reminder of how controversial physical restraint is.  In the Toolbox training, we discuss the pros and cons of addressing this issue in a student’s BIP, and the importance of being very clear with parents about how, when and why physical restraint might be used.

The case is Beckwith v. District of Columbia, decided by the federal court for the District of Columbia on June 27, 2016. We found it at 68 IDELR 155. The court’s decision is very short, affirming a magistrate’s recommendation that can be found at 116 LRP 40087.

DAWG BONE: IF YOU HAVE TO USE PHYSICAL RESTRAINT, BE SURE TO DOT YOUR I’s AND CROSS YOUR T’s. 

 File this one under: SPECIAL EDUCATION DISCIPLINE

Dawg Bones

Did you know….that even after you have used up all of your leave time, you might get some more time off?

Suppose you have an employee who has used up every kind of leave that your district makes available.  Then the employee brings in a medical document stating that he has a physical or mental impairment that substantially limits his performance of the major life activity of working.  He needs some additional time off.  Here are some options:

A. Turn down that request. He’s already been given the same benefits as all other employees. Now he’s asking for more than that.  So if this guy misses one more day of work, fire him.

B. Heave a sigh of resignation and grant the request.  Continue him on paid leave due to the Americans With Disabilities Act.  Stare sullenly out the window while contemplating the unfairness of it all.

C. Grant the request, but make it unpaid leave. See how he likes them apples.

D. Scratch your chin and ponder: will granting the leave create an undue hardship for your district? If it will, turn down the request.  If not, grant the request for unpaid leave.

If you are scratching your chin and pondering…congratulations!! D is the correct answer.  So we are advised by the EEOC in a guidance letter issued earlier this year:  https://www.eeoc.gov/eeoc/publications/ada-leave.cfm

Does this mean that the employee with an ADA-condition might be getting MORE leave than other employees?  Yes.  But remember—the Americans with Disabilities Act requires that employees be given equal opportunities. Sometimes, to make opportunities equal you have to provide treatment that is a bit more than equal.  As the EEOC letter reminds us, reasonable accommodation may mean changing “the way things are customarily done.”

DAWG BONE: ADA ACCOMMODATIONS CAN INCLUDE EXTRA UNPAID LEAVE.

File this one under: DISABILITY LAW

Dawg Bones

Dear Dawg: Take a look at my No More Cursing Out the Teacher Act, soon to be introduced to the Texas legislature.

Dear Dawg: I am appalled at what I hear goes on in some of our schools.   Whatever happened to civility? We’ve got parents and others who think it is their constitutional, God-given right to say whatever they want to our teachers, in whatever manner of tone, at whatever time, using whatever language they choose. Threats.  Vulgarity.  Name calling.  It’s a sad day when we can no longer count on basic maturity in people.  Now we have to have laws.

So today I have pre-filed the No More Cursing Out the Teacher Act of 2017.  This bill will make it a misdemeanor for any person to “upbraid, insult, or abuse” any teacher, administrator or bus driver in the presence of students.  Can’t see how anyone could oppose this.  Keep an eye on it, Dawg.  AT LEAST ONE LEGISLATOR SUPPORTS OUR TEACHERS.

DEAR AT LEAST ONE:  OK, so let me make sure I understand how this will work.  If the coach decides to go for it on 4th and 2, and we don’t make it, and I stand up and scream “PUNT NEXT TIME!! WHERE DID YOU LEARN TO COACH?” I’ve committed a crime?   The Dawg loves teachers and administrators and is particularly fond of assistant principals at the middle school. But your bill may run into some trouble.

Georgia passed a bill like this, and the state Supreme Court shot it down.  Overly broad, the court said:

The practical effect of the plain language of [the statute] is that any person—may it be a parent, school system employee, or concerned citizen while on school premises or a school bus—who dares to speak critically to school officials at any time in the presence of minors must leave the premises when so ordered by a school official or face arrest and prosecution for a misdemeanor.

The court concluded, unanimously, that the statute “makes unlawful a substantial amount of constitutionally protected speech.” Like yelling at the coach. The constitution protects that.

The case is West v. State, decided by the Supreme Court of Georgia on October 31, 2016.

DAWG BONE: CURBING FREE SPEECH IS HARD TO DO.

File this one under: FIRST AMENDMENT

Dawg Bones

Does “peer-reviewed research” ever come up in litigation?

The special ed types out there may recall that the 2004 version of IDEA put in the requirement that the services in the student’s IEP should be supported by “peer-reviewed research to the extent practicable.”  There was much speculation about exactly what that would mean, and how it would be interpreted.

Twelve years later we can report that it comes up rarely, and when it does, courts usually cite the phrase “to the extent practicable” as particularly significant.  IEPs are not regularly being shot down because they lack “peer-reviewed research.”

That’s what makes L.M.H. v. Arizona DOE, 68 IDELR 41 (D. Ariz. 2016) particularly interesting. This is a rare case that relies on the “peer reviewed research” requirement to conclude that the district denied FAPE.  After rejecting numerous procedural complaints by the parent, and complaints about ESY, the court held that the district denied FAPE by failing to consider any peer-reviewed research.   Whether the student made progress or not was deemed irrelevant, as the IEP would be judged as of the time of its development, not afterward.  The parent had provided ASHA recommendations regarding speech therapy.  The court held that the district did not have to comply with the ASHA recommendations, but had to consider them or some other “peer-reviewed” research.

It’s always a good idea to “consider” whatever useful information you have and to be sure that the minutes of the ARDC meeting reflect that consideration.

DAWG BONE: LET’S HOPE SOMEONE IN YOUR DISTRICT IS KEEPING UP WITH THE RESEARCH!

 File this one under: SPECIAL EDUCATION

Dawg Bones

Annexation to Happy ISD: Denied.

We expect many people would like to send their children to the Happy ISD.  Among all of our school districts you would expect that Happy would rank right up there with Veribest and Paradise on customer satisfaction. So it’s not surprising to hear that someone might want to detach from one district and attach to Happy.  That’s what Ben Bressler tried to do, but it did not work.

Mr. Bressler presented a Petition for Detachment and Annexation to the Happy school board which granted the Petition. We expect they were happy to do so.  The folks in Canyon ISD, however, were not so happy about this. No one likes to lose territory. So the Canyon board voted it down.

This meant the matter was ripe for review by the Commissioner.   The Education Code says that when the Commish considers such a matter, he is to “consider the educational interests of the students in the affected territory and the affected districts and the social, economic, and educational effects of the proposed boundary change.” T.E.C. 13.051(j).

However, there are certain things that have to be proved before the Commissioner gets to those issues.  The petitioner has to provide 1) a metes and bounds description of the territory; and 2) evidence that a majority of the registered voters residing in the district signed the petition.  Mr. Bressler presented his case to the Commissioner, but failed to produce these two critical pieces of evidence.

Canyon ISD’s lawyers presented no evidence of their own, but just made a Motion for Judgment in favor of Canyon.  In this context, that’s legalese for “You left something out. WE WIN!”  The Commissioner agreed and granted the Motion.  Detachment and Annexation: Denied.

The case is Bressler v. Canyon ISD, decided by the Commissioner on August 25, 2016.  It’s Docket No. 052-R6-07-2015.  Our firm handled this one for Canyon—specifically Christine Badillo and Joey Moore.   Sharp lawyers, those two, I’m happy to report.

DAWG BONE: THE PROCEDURES FOR D&A HAVE TO BE FOLLOWED CAREFULLY.

File this one under:  GOVERNANCE

Dawg Bones

It’s Toolbox Tuesday!!

This is a good time of year to think about bringing the Toolbox Training to your district or ESC.  The Toolbox is a full day program focusing on an issue that virtually every district faces: how do you provide safety and a good learning environment while simultaneously serving students who may be violent or seriously disruptive?  The law expects you to do two things at once—serve each student in the least restrictive environment, and maintain safety and a healthy school climate for all.  It can be done, but it’s not easy.

In the Toolbox Training we identify ten “tools” available to school administrators to balance these responsibilities.  The Training is completely compatible, and, in fact, supportive of proactive services designed to improve student behavior.  The Toolbox is completely compatible with Restorative Practices.

We like to limit Toolbox audiences to 40 or 50, with a combination of campus administrators and special education staff.  It’s important for all of those key players to hear the same information at the same time.  Each participant gets the Toolbox book, some forms and some laminated guides to serve as reminders.  It’s an interactive day, with plenty of time for Q and A, and some hypotheticals to use for practice.

As you are reading this (December 6) I’m doing a Toolbox Training at Region 6.  I’ve got Toolboxes scheduled for next year in Regions 6, 7 and 11.  If you are interested in a Toolbox program, send me an email and we will find a date to come your way.

DAWG BONE: TEN COMMANDMENTS.  TEN TEAMS IN THE BIG 12.  TEN TOOLS.

File this one under: SPECIAL EDUCATION DISCIPLINE

Dawg Bones

No one knows what goes on behind closed doors…

I expect many of you remember that great country song, “Behind Closed Doors.” The lyric reminded us several times that “no one knows what goes on behind closed doors.”  The guy singing the song seemed to be looking forward to getting behind those doors, as I recall. The song is a celebration of privacy.

A recent federal court case reminded me of the song.  It’s yet another “sex with a student” case, involving a student named “John Doe,” this time from Nevada.  The court dismissed most of the claims in the suit, but kept alive the allegation that the district had violated the student’s right of privacy.

Did school officials publicly disclose that the student was a victim of a sex crime?  No.

Did they violate FERPA by disclosing confidential records?  No.

Did they tell the media the real name of “John Doe”?  No.

What they did was they left the door open:

A reasonable jury could find that removing John from class and questioning him about such a sensitive topic in public view with a door to the office open, combined with the real possibility that doing so would result in revealing John’s identity as the victim of a sex crime, violated John’s substantive due process rights.  (Emphasis added).

The lawsuit alleged that the district routinely left the door open “with deliberate indifference” to student privacy.  The office had windows also, and the blinds were not closed. So the suit alleged that kids were able to figure this out. The teacher was soon arrested….they saw John Doe in the office for a long, long time.  It must have been him.

This case has a long way to go, but at this stage it serves as a reminder.  When questioning kids about sensitive issues, be mindful of who is present and who can see what is going on.  The case is Doe v. Clark County School District, 68 IDELR 94 (D.C. Nev. 2016).

DAWG BONE: STUDENTS DO HAVE A RIGHT OF PRIVACY

 File this one under: LIABILITY

Dawg Bones

$800,000 in attorneys’ fees in a special ed case? Really????

We take this opportunity to remind you that parents who prevail in a special education case are entitled to recover attorneys’ fees.  Those fees can add up.  In a case from Ohio, the parties are still wrangling over the amount of fees to be recovered.  The parents’ sought over $800,000. That’s a lot of attorney time, but you have to take into account that the case has gone on for years, including the latest decision by the 6th Circuit Court of Appeals.

The appellate court was reviewing the work of the district court which had rejected that $800K request. Instead, the court held that the parents could recover only $327,941 (only?).  Now the appellate court has vacated any fee award.  This does not mean that the parents are not going to recover attorneys’ fees. They will recover fees because they successfully proved that the school district denied FAPE to the student by botching the transition plan.  The argument now is only over “how much?”  The court vacated the fee award because the lower court had not provided an adequate explanation for the reduction from $800k to $327k.

So the beat goes on.  Lawyers arguing over FAPE turns into lawyers arguing over attorneys’ fees and then lawyers arguing over the adequacy of an explanation.  Surely, there is a better way to handle special education disputes.

The case is Gibson v. Forest Hills Local School District Board of Education, decided by the 6th Circuit on July 15, 2016. We found it at 68 IDELR 33.

DAWG BONE: ATTORNEYS FEES SPENT ON PREVENTION OF LEGAL PROBLEMS CAN OFTEN PREVENT THIS KIND OF MESS.

 File this one under: SPECIAL EDUCATION

Dawg Bones

Hold everything!! Those overtime rules not yet in effect!

Today was the day when the new federal rules pertaining to overtime compensation were supposed to take effect.  Those rules, adopted pursuant to the Fair Labor Standards Act, would have a major impact on school district budgets and the economy as a whole.  Unlike some changes coming from Washington, the FLSA changes went through the customary channels of rule-making. The rules that were to go into effect today were proposed, widely publicized, commented on (293,000 comments!) and then finally promulgated as final.  Critics have frequently charged the Obama Administration with not following the proper process, issuing executive orders rather than properly adopted rules. But on this issue, the proper process was followed.

Nevertheless, a federal judge has put the kibosh on the whole thing. The judge issued an injunction that will stop the new standards from being enforced.  The judge held that the Department of Labor had exceeded its statutory authority by adopting a test for FLSA exemption that measured salary more so than duties.   Under the new rules, a person performing executive, administrative or professional duties would be entitled to overtime compensation if the salary was too low.  This, the court, held, imposed a de facto “salary only” test that was not authorized by the statute.  Exemption or non-exemption from FLSA standards is supposed to be measured by duties—not salary.

The injunction will remain in effect until the court decides the case on the merits, and who knows how long that will take. In the meantime, as you have probably heard, there is a new sheriff headed to town in Washington. So all we can say about this, for now, is stay tuned.  If you have questions about the immediate impact of this non-change in your districts, the lawyers at Walsh Gallegos Trevino Russo & Kyle are ready to help.

DAWG BONE: NEW OVERTIME STANDARDS STOPPED AT THE GOAL LINE