Category Archives: Dawg Bones

Dawg Bones

Number in Special Ed Going Down: What’s Going On????

On Sunday, September 11th, the Houston Chronicle published a major piece of investigative journalism. The main point of the piece was the assertion that Texas is intentionally and systematically denying special education services to students who need them.  The numbers over the past several years do show a dramatic drop in students served via special education.  The Chronicle puts the blame squarely on T.E.A.  But the Chronicle failed to note the role that Congress has played in this.  Texas did set out to lower the number of children served in special education…but that was because Congress called for states and school districts to do exactly that.

In its 2004 re-write of the Individuals with Disabilities Education Act (IDEA) Congress stated that one of its purposes was “to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children.”  In other words, Congress wanted to see schools provide better services to kids before they put them in the special education program.  In particular, the concern was that many kids were being labeled as “special ed” and given a disability label, when in fact, their learning problems were attributable to a lack of proper instruction.   To put this intention into practice, Congress stated that a child could not be placed in a special education program if the “determinant factor” for that designation was “A) lack of appropriate instruction in reading….B) lack of instruction in math; or C) limited English proficiency.”

In response to that Congressional mandate, the Department of Education enacted regulations that require special procedures prior to identifying a child as having a Specific Learning Disability (SLD). SLD is the largest single category of students with disabilities, encompassing close to half of those identified.  Thus the SLD group was a particular target of the Congressional effort to reduce the number of students receiving special education services.    The regulations that went into effect in 2006 require schools to go through a process prior to referring a child for an evaluation for an SLD.  That process is what we now call RTI—Response to Intervention.

Contrary to the Chronicle’s article, RTI is required, at least with regard to a possible SLD.   RTI is designed to slow down the path to special education. However, it is not intended to stand in the way of student achievement, and if that is how it is used, then it is not being implemented properly.

The other Congressional concern was the overrepresentation of racial minorities and English language learners in our special education programs.  To address those concerns, Congress required states to develop a plan “designed to prevent the inappropriate overidentification or disproportionate representation by race and ethnicity” in special education programs. So any school district that had a “disproportionality” problem was under pressure to reduce the numbers of African-American, Hispanic or English language learning children in the special education program.

Numbers in special education are down due to multiple factors. No doubt, the pressure that T.E.A. applies to get districts down to the 8.5% figure is a factor. But so is the effective use of RTI whereby struggling learners are making real progress without “special education.”   And all of this is attributable to the federal government.  Congress continues to make the call in special education, despite not paying the bulk of the price.

DAWG BONE: THERE ARE MULTIPLE REASONS FOR THE DECLINE IN SPECIAL EDUCATION STUDENTS IN TEXAS

Tomorrow: Toolbox Tuesday!! We talk about DAEP.

Dawg Bones

Dear Dawg: Now We Are 0-3! Can We Fire the Coach NOW????

DEAR DAWG: Last week we asked if we would be on safe legal ground in firing our coach after we lost the first two games. You said that this was not even a “scintilla” of evidence sufficient to do the job. I don’t see what scintillas have to do with it. Scintillas are native to our part of Texas and we are very fond of the furry little critters. So I think you should leave the small animals out of this discussion.

As far as the coach, you should know that we are now 0-3! Will that do? We’re getting embarrassed over here. Can we fire him now? WE HEAR THAT MACK BROWN MAY BE AVAILABLE. ART BRILES?

DEAR WE HEAR: Slow down, buddy. We’re getting the picture. Football is apparently pretty important if you are interested in canning the coach before the season is half over and bringing in a high priced college coach. But our legal advice remains the same. CHILL. And good luck tonight.

DAWG BONE: 0-3 DOTH NOT A SEASON MAKE.

Dawg Bones

Whistleblower Claim Tossed Out—Filed Too Late

On February 5, 2010, Adan Perez, Jr. was informed that his contract with the Weslaco ISD would not be renewed. Thirteen months later he filed a suit, alleging that the district had retaliated against him for blowing the whistle on illegal activities. The Court of Appeals for Corpus Christi-Edinburg dismissed the lawsuit as untimely.

The Texas Whistleblower Act includes some short timelines, and those timelines are of utmost importance. The plaintiff has just 90 days to file the lawsuit. Those 90 days begin to run on the day when the plaintiff first learns of the alleged retaliatory conduct. In this case, the alleged retaliatory conduct was the nonrenewal of contract, and the plaintiff learned about that on February 5, 2010. He should have filed his suit within the next 90 days. That short statute of limitations is “tolled”—meaning it does not start—if the plaintiff timely files a grievance about the matter with the employer. However, there is a timeline for that grievance as well. Again, it is 90 days. If Mr. Perez would have filed a grievance over this matter by May 3, 2010, the timeline for the lawsuit would have been extended. Mr. Perez did file a grievance, but not until July. Too late.

Mr. Perez argued that the timelines should not have begun until his contract actually came to an end—which was in June, 2010. But in the crucial legal holding in this case, the court noted that “when determining when a cause of action accrues in a whistleblower case, the proper focus is on the time when the employee learned of the allegedly retaliatory conduct and not on the time when the consequences of that decision came to fruition.”

The case is Perez v. Weslaco ISD, decided by the Court of Appeals for Corpus Christi-Edinburg on July 28, 2016. We found it at 2016 WL 4045222.

DAWG BONE: GOT A WHISTLEBLOWER CASE? GET TO THE COURTHOUSE!

File this one under: WHISTLEBLOWER ACT

Dawg Bones

Five Lessons from a Recent Nonrenewal Decision

On June 15th of this year the Commissioner signed off on a decision to nonrenew a teacher’s contract.  There are five key lessons about the nonrenewal process that we can draw from this decision.

First, the recommendation of the principal is not legally required.  We discussed this point in more detail here on Monday.  As noted on Monday, it is rare and a bit problematic when the principal has not recommended nonrenewal. It raises questions.  But the Commissioner found nothing in the law, or Board Policy DFBB(Local) that absolutely requires a principal’s recommendation.

Second, this is yet another case that illustrates that “Substantial evidence is not a high standard.”  This teacher lost her job because, on one occasion, she “roughly grabbed a student” in a way that was “unnecessary and without justification” and caused a “soft tissue injury.”  There was evidence in the record about a prior incident from an earlier year, but this was considered only for the purpose of proving that the teacher was “on notice” of the district’s standards.  The evidence that supported the nonrenewal consisted of the single incident of “rough grabbing.”  The Commissioner’s decision provides no context for this. We learn nothing about the teacher’s track record with the district.  This one event was sufficient to end her employment.

Third, teachers who do not testify at their own nonrenewal hearings take a big risk.  The Commissioner noted that “Because Petitioner did not testify, it is inferred Petitioner knew her testimony would not support her case.”

Fourth, school districts must produce its employees to testify at a nonrenewal hearing upon proper request by the teacher.  The Commissioner cited an earlier case for this:

School districts can compel their employees to testify.  For the hearing to be fair, teachers must also have the ability to compel school employees to testify.

(Kopycinski v. Fort Bend ISD, Dkt. No. 111-R1-598 (Comm’r Educ. 1998).

In this particular case, this rule of fair play did not help the teacher. She had asked for two school employees to testify and they did not.  But the Commissioner held that 1) this was a procedural error that was not properly preserved by the teacher’s lawyer; and 2) this procedural error would not have produced a different outcome anyway.  The statements of the two employees were read into the record.  Those statements said that the teacher grabbed the student on the arm, not the neck. The Commissioner said this was irrelevant: “Exactly where Petitioner grabbed the student is not significant.”

Fifth, a teacher facing possible nonrenewal of a contract is not entitled to “due process.” There is no “property interest” at stake.  In support of this well-established point of law, the Commissioner cited six prior cases.

The case is Hernandez v. Point Isabel ISD, Dkt. No. 025-R1-04-2016, decided by Commissioner Morath on June 15, 2016.

DAWG BONE: “DUE PROCESS” IS NOT REQUIRED, BUT FAIR PLAY IS.

Dawg Bones

It’s Toolbox Tuesday!! We are three weeks into school and things are going badly. What to do?

We talk about the Toolbox on Tuesdays here at the Daily Dawg. The Toolbox is a one-day training program for campus administrators and special education staff. In the Toolbox training, we identify and practice using 10 “tools” designed to help you maintain a safe campus while serving each student appropriately and in the least restrictive environment.

So now that we are three to four weeks into the year, we are guessing that some of you are encountering problems. That new kid is not fitting in as we expected her to. The IEP for that boy may not be the right one. Here’s a student with a BIP that doesn’t seem to be working: he’s a “frequent flyer” in the principal’s office. What to do?

Serving students with disabilities is like Life Its Ownself—a certain amount of failure is to be expected. Neither the law, nor the hearing officers or the judges expect that every IEP goal will be achieved and every student will steadily progress. Bumps in the road are to be expected. When you acknowledge that things are not going well, you are not exposing your school district to legal liability. Of course, we are referring to situations where you promptly acknowledge that things are not going well.

We are required to make periodic reports to parents on the student’s progress. This provides regular opportunities to assess the situation and report truthfully. If things are not going well, the school should say so, and proceed to develop a new plan. Legal problems arise when the school does not notice that the student is failing, or refuses to acknowledge it.

There are tools in the Toolbox designed to address a student’s lack of progress. Of course the most important tool in the Toolbox is Tool #1—a Behavior Plan. So the first thing to do if the student’s behavior is not improving is to take a look at the BIP and make appropriate adjustments. If the behavior is deteriorating, then obviously, the BIP is not working as well as we would like.

We also talk about tools that involve changing the student’s placement. If this involves moving the student to an MRE—a More Restrictive Environment—then it is inherently an admission of failure by the school. We are encouraged to serve the student in the LRE. So a proposal by the school to move the student to an MRE is an admission of failure. And that’s OK—again, as long as it is done promptly and with a clear plan for improving the situation.

If you are interested in Toolbox training, let me know. I’m at jwalsh@wabsa.com.

DAWG BONE: FAILURE WILL HAPPEN. NOTICE IT. TAKE ACTION.

File this one under: SPECIAL EDUCATION DISCIPLINE

Dawg Bones

Can the board nonrenew a teacher when the principal did not recommend it?

In the normal course of events, the nonrenewal of a teacher’s contract begins with a recommendation from the principal.  If the superintendent signs off on that recommendation, it goes to the board.  The board can then propose that the teacher’s contract not be renewed. But what happens if the first link in that chain is missing?

In a recent decision, Commissioner Morath tells us that “A school board may propose nonrenewal even when a principal has not recommended nonrenewal.”  In fact, the Commissioner cites an earlier case holding that not even a superintendent’s recommendation is needed (Berry v. Kemp ISD; Dkt. No. 103-R10-600 (Comm’r Education 2001).  The teacher’s lawyer pointed out the state law that authorizes principals to approve “all teacher and staff appointments” for the campus.  But the Commissioner held that this does not mean that the principal’s recommendation is necessary for a nonrenewal.

Nonrenewals that are not supported by a principal and superintendent recommendation are rare, and somewhat problematic.  The question naturally arises: if the principal, the direct supervisor, did not recommend the nonrenewal of this contract, then why should the district nonrenew the contract?  There may also be problems with producing relevant documentation and evidence to support the nonrenewal in the absence of a principal’s recommendation.

But none of that was a problem in the recent decision. The evidence showed that the teacher “roughly grabbed a student who was under her supervision.” The Commissioner concluded that this was “unnecessary and without justification.”  There was disputed testimony as to whether the “rough grab” was on the arm or the neck. The Commissioner said it did not matter: “Exactly where Petitioner grabbed the student is not significant.”

We will have more to say about this case later this week, so stay tuned.  The case is Hernandez v. Point Isabel ISD, Dkt. No. 025-R1-04-2016, decided June 15, 2016.

DAWG BONE:  TO SUPPORT THE NONRENEWAL OF A TEACHER’S CONTRACT IT IS BEST TO HAVE A RECOMMENDATION FROM THE PRINCIPAL.  BUT IT IS NOT ALWAYS NECESSARY.

File this one under: LABOR AND EMPLOYMENT

Dawg Bones

Dear Dawg: We are ALREADY 0-2. Can we fire the coach?

Today’s question to the Dawg gives us the opportunity to expand on the meaning of the word “scintilla.”  One of the Commissioner decisions that is familiar to all school lawyers is the 1985 case of Hester v. Canadian ISD.  That’s the case where the Commissioner held that “when considered in a vacuum, a poor record does not constitute even a scintilla of evidence that bad coaching was responsible for that record.  Too many other factors influence a won-loss [sic] record over which the coach has no control."

The Canadian case involved the proposed nonrenewal of an assistant coach after the entire season. If the full season record is not even a “scintilla” of evidence, then we think it’s pretty clear that losing the first two games is short of the mark.

So our legal advice on this one is: CHILL.  And best of luck tonight.

DAWG BONE: “SCINTILLA” IS DEFINED AS “A MINUTE PARTICLE.”  LOSING THE FIRST TWO GAMES OF THE YEAR DOES NOT AMOUNT TO A MINUTE PARTICLE OF EVIDENCE ABOUT THE COACH.  CHILL.

File this one under: NONRENEWAL

Dawg Bones

Commissioner Provides Guidance re: Homeschoolers

The latest letter from the Commissioner about homeschoolers clarifies six key points.

First, parents do need to put something in writing to verify that a student is leaving the public school to be homeschooled.  The Commissioner advises that this can be done with a written notice from the parent, or the signing of your school’s withdrawal form.  Parents are not required to show up in person—they just need to give you something in writing.

Second, Leaver Reason Code 60 requires a signed and dated letter from the parent, stating that the student is being homeschooled and the date when it will begin. That’s all the documentation you need for Leaver Reason Code 60.

TIME OUT!  Question for you PEIMS experts: are there 60 codes for leaving?  Does this mean there are 60 ways to leave your school, when there are only 50 ways to leave your lover????  Help me out here.

Third, if you become aware that a student is being homeschooled you “may request in writing” both a “letter of assurance” and a statement that “the home-school curriculum is designed to meet basic education goals including reading, spelling, grammar, mathematics, and a study of good citizenship.”  Parents are not required to provide details of the curriculum, nor are they required to provide this letter each year.  But they are required to provide the two “assurances” that T.E.A.’s letter calls for.

The fourth point in the letter is about the awarding of academic credit when a student transfers from a homeschool to a public school.  The basic rule is that such a student should be treated the same as a student transferring in from a private school that is not accredited.  The letter includes some specific suggestions for this, depending on what grade level the student is in when transferring.  Your counselors will find this helpful.

Fifth, the Education Code requires schools to permit homeschoolers to participate in PSAT/NQMST and Advanced Placement testing that is offered to enrolled students.  Moreover, public school districts must notify the public about this via a newspaper or website.

Sixth, there is this with regard to child abuse reporting:

Finally, there has been some concern that school districts may be contacting Child Protective Services regarding children who are being home-schooled.  While school officials are required to contact that agency in instances of abuse or neglect of a child, the determination of whether compulsory attendance has been violated should be made by the school district or local judicial authorities.

Here is the entire letter.

DAWG BONE: CHECK OUT T.E.A.’s LETTER RE: HOMESCHOOLERS

File this one under: HOME SCHOOL

Tomorrow: Dear Dawg: we are 0-2 already—what can we do?????

Dawg Bones

Changes to the Fair Labor Standards Act: Are You Ready?

Major changes to the Fair Labor Standards Act (FLSA) go into effect on December 1.  This is the federal law that requires extra compensation for employees who are classified as “non-exempt.”  The majority of school district employees are exempt from the FLSA’s requirements. We are confident in making that statement because we are sure that the majority of your employees are teachers or academic administrators, such as principals and assistant principals. Those folks are “exempt” meaning that even when they work way over 40 hours a week (i.e., every week) they are not entitled to overtime or comp time.

But there are also many school district employees who are “non-exempt,” meaning that they are covered by the FLSA and, therefore, entitled to extra compensation in some form if they work more than 40 hours in a week.   With the changes that go into effect on December 1, some of the people who were previously “exempt” may move into the “non-exempt” category. This is just one of many significant changes in the FLSA regulations that you need to know about.

Our firm is hosting an audio conference on this very important topic next week.  On Tuesday, September 13th, Sandi Tarski and Alexander Berk from our Irving office will discuss the ins and outs of FLSA with an eye toward the practical implications in the public school setting. This two-hour audio conference (10:00 to Noon) provides an excellent, low cost vehicle for training for HR administrators and others in supervisory positions. Go to our firm’s website to sign up: www.walshgallegos.com.

DAWG BONE: FLSA CHANGES ON THE HORIZON—GET READY!

File this one under: LABOR AND EMPLOYMENT

Tomorrow: What to do with homeschoolers?

Dawg Bones

It’s Toolbox Tuesday!! OSEP Letter re: Expedited Hearings

We like to talk about the Toolbox on Tuesdays around here. The Toolbox is a full day training focusing on good practices when dealing with students with disabilities who present challenging behaviors.  In the Toolbox, we focus on “tools” districts can use to maintain safety while also providing appropriate services for each student.  One of the tools that districts would like not to use is Tool #4—requesting an expedited hearing.  Today we want to alert you to a letter from the Office of Special Education Programs (OSEP) about those hearings.

Parents of students with disabilities can seek a due process hearing for a variety of reasons. Perhaps they disagree with the child’s placement, or the amount of related services that are provided.  But if the challenge has to do with disciplinary action, the hearing is to be “expedited.”  Furthermore, safety concerns may prompt the school district to initiate the hearing process in an effort to get an order temporarily removing a student from a placement that the school deems dangerous.  These hearings, also, are to be “expedited.”

What does “expedited” mean?  The normal timeline for a due process hearing is 45 days, which begins to run after the 30-day “resolution” period.  So if a parent requests a due process hearing today, the school district would be expected to set up a resolution session, and would have 30 days in which to try to resolve the matter. That would take us to October 6th.  The hearing officer then has 45 days from that date to conduct the hearing and issue a decision. If there are no postponements, then, there should be a written decision by November 20th.

However, if the due process hearing is about discipline, or the district’s effort to remove a dangerous student, the timelines are shortened.  Let’s say the parent has challenged the manifestation determination by requesting a due process hearing on today’s date—September 6.  That hearing will be “expedited.”  The hearing officer would have to conduct the hearing within 20 school days. That would take us to October 4.  And a decision would be due within the next ten school days—by October 18th.  Notice—that’s a bit more than a month faster than the deadline in the non-disciplinary context.  The school district would be responsible for cramming a “resolution session” into that timeframe as well. The resolution session must be concluded within a week of the date of the complaint.  In this example, that would be September 13th.

When a district initiates the hearing process in an effort to remove a student who is deemed dangerous, the hearing is likewise “expedited.” The only difference is that a resolution session is not required when the district requests the hearing.  Tool #4 in the Toolbox refers to those instances  where the district initiates the hearing process.

The OSEP letter addresses the authority of the hearing officer to extend these tight timelines. Can the hearing officer do that? OSEP says no: “There is no provision in the Part B regulations that would give a hearing officer conducting an expedited due process hearing the authority to extend the timeline for issuing this determination at the request of a party to the expedited due process hearing.”

The OSEP letter is Letter to Snyder, issued December 13, 2015. We found it at 67 IDELR 96.

DAWG BONE: LAWYERS: DON’T BOTHER WITH THAT MOTION FOR CONTINUANCE.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Are you ready for the changes to the FLSA?