Today we conclude our review of the Florida case in which the Moms for Liberty and four of its members complained of how the district conducted “public comment.”  The third argument they made was that the board’s enforcement of standards of decorum was having a “chilling effect” on members of the group who wished to speak. 

Nope.  There were “more than a hundred times in which Moms for Liberty members spoke unimpeded.” Of the four plaintiffs, one never attempted to speak, two spoke often and were only interrupted once and only one was interrupted more than once and tossed out of the meeting.  That ejection occurred only after multiple warnings and after the speaker had exceeded his allotted time and “veered into other topics irrelevant to the discussion.”

I found it interesting that the “Mom” who was interrupted more than once and was once ejected from the meeting was a “Florida man” and therefore, not a “mom.”  Apparently the organization is inclusive in its membership requirements. 

One other issue came up that has occasionally arisen in Texas districts—limiting the number of people in the room.  The court:

As to Plaintiffs’ passing assertion that they were unable to enter one meeting because of space limitations, attendees could still wait outside for their turn where audio of the meeting was being played, so their speech was not actually restricted.

It’s Moms for Liberty v. Brevard Public Schools, decided by the 11^th Circuit in an “unpublished” opinion on November 21, 2022.  The District Court opinion was decided on January 24, 2022 and can be found at 582 F.Supp.3d 1214. 

DAWG BONE: STARTING THE YEAR WITH A COMMON SENSE DECISION.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

This week we are studying the Florida lawsuit brought by Moms for Liberty claiming that the school board stifled their free speech rights by how the board handled public comment.  Yesterday we told you about the court’s ruling on the facial constitutionality of the district’s policy. That was an easy win for the district. But today we focus on the tougher issue: how was the policy applied? 

The Moms accused the board chair of discriminatory enforcement of the policy, shutting down disfavored speakers and allowing more favored speakers to violate decorum standards.  An issue like that requires a dive into the facts. The court noted that its decision was based on “many hours” of video review. That review revealed only a few instances in which a Moms member was interrupted, and one in which a Mom was ejected from the meeting.  The interruptions by the chair were “brief and respectful” allowing the speakers to finish what they had to say. The chair also interrupted speakers with whom the chair agreed when they violated decorum standards.

The court noted that there may have been instances in which “the Chair strayed from evenhandedness,” but cited an earlier case for this common sense standard:

“An erroneous judgment call on the part of a presiding officer does not automatically give rise to liability for a constitutional tort,” and the 11^th Circuit has cautioned against Monday-morning quarterbacking of calls made by a presiding officer “without the benefit of leisurely reflection.”

Board presidents should take comfort from that. 

So the court concluded that the policy was applied evenhandedly, at least within the margin for error.  That’s strike two on the case brought by the Moms. Tomorrow we’ll conclude our discussion by telling you about the “chilling effect” argument.

It’s Moms for Liberty v. Brevard Public Schools, decided by the 11^th Circuit in an “unpublished” opinion on November 21, 2022.  The District Court opinion was decided on January 24, 2022 and can be found at 582 F.Supp.3d 1214. 

DAWG BONE: COURTS EXPECT BOARD PRESIDENTS TO BE EVENHANDED, BUT DON’T EXPECT PERFECTION.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: was there a “chilling effect”?

Moms for Liberty is a fast-growing nonprofit organization that vigorously supports transparency and parental rights in public education.  If you have a chapter in your district, you have probably heard from members during public comment at the board meetings.

In Florida, the organization and four of its members sued a district alleging that the board was suppressing their free speech rights.  They made three specific claims and seeing as how there are three Daily Dawgs left to be done this week, I’m going to take them up one by one. 

Spoiler alert: the federal district court rejected all three of the claims made by the Moms and the 11^th Circuit affirmed that decision.

Issue number one: was the school’s policy about public comment “content neutral”?  The school’s policy was the usual.  It gave the board chair the authority to “interrupt, warn or terminate” a presentation if the speaker violated decorum standards.  It prohibited comments that were “too lengthy, personally directed, abusive, obscene, or irrelevant.” 

The court pointed out that a public school board meeting is a limited public forum and as such, it does not have to be “content neutral.”  In a “limited public forum” discussion can be limited to those topics germane to the purpose of the meeting.  Public comment at a school board meeting is about the policies and practices of the school.  Thus when one of the Moms in Florida ventured off into comments like ”the Democratic party accepts ‘the murder of full-term babies with abortion’ and believes ‘white babies are born racist and oppressive’ he was sorta wandering far afield.  

By the way, the “Mom” in question is identified in the court’s opinion as a man, so you apparently don’t have to be a “mom” to be a Mom for Liberty.

Even though the policy about public comment does not have to be “content neutral” it does have to be  “viewpoint neutral” and reasonable. And it was.  The court held that prohibiting comments that are “too lengthy, personally directed, abusive, obscene, or irrelevant” is permissible, as long as the policy is applied evenly.

So “on its face” as the lawyers like to say, the rules that the board chair followed were content neutral and reasonable. So far so good for the school district. But the next challenge was about how these standards were applied. Did the board chair reveal her own bias in how she ran the meetings?

Tune in tomorrow….

It’s Moms for Liberty v. Brevard Public Schools, decided by the 11^th Circuit in an “unpublished” opinion on November 21, 2022.  The District Court opinion was decided on January 24, 2022 and can be found at 582 F.Supp.3d 1214. 

DAWG BONE: PUBLIC COMMENT RULES DO NOT HAVE TO BE “CONTENT NEUTRAL” BUT THEY HAVE TO BE “VIEWPOINT NEUTRAL.”

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: but was the board chair fair?

Welcome back, Loyal Daily Dawg Readers! I hope you had a restful break full of family, fun, and festivity. Or maybe just rest.  Either way, it’s a brand new year and we have things to talk about.

We open this year’s Daily Dawg on a Tuesday, so that means it’s Toolbox Tuesday. We are continuing with our series of reviews of the Q and A from the Department of Education about student discipline. This week we look at Section G: IDEA’s  Requirements for FBAs and BIPs.

Tool #1 in the Toolbox is the development and implementation of a BIP.  We emphasize that Tool #1 is the first tool in the Toolbox for a reason. It’s the most important tool. If it works, you won’t need to use any of the other tools. That’s because a BIP is never about what the school might do TO a student. It’s about what a school can do FOR a student.

Your Code of Conduct spells out the things that the school might do TO a student. Negative consequences, or at least the fear of them, sometimes produce positive results.  I stay within striking distance of the posted speed limit not because I want to, but for fear of negative consequences.  I pay my taxes on time. I do this because it’s my civic duty, but I also fear the negative consequences of not doing so.

The negative consequences hanging over the heads of students in your schools often produce positive results. They don’t want to get in trouble. They don’t want to be suspended from the basketball team. They don’t want to have the A.P. call the parents to report some incident.  However, this doesn’t work as well as it used to. As my friend Kevin Curtis taught me “traditional discipline works for traditional kids from traditional families with traditional values.”  We have a shrinking percentage of students who fit that profile.

BIPs are not defined in the law but they are described with words like “positive behavioral interventions, supports, and strategies.”  The hope is that the school can provide instruction, motivation, and techniques designed to teach a student to cultivate more positive behavior. The idea is to prevent recurrence of inappropriate behaviors. 

The DOE’s Q and A on this topic is short and does not tell us a lot.  IDEA requires an FBA and BIP when a student’s placement is changed due to behavior that is a manifestation of disability.  If the school removes a student due to “special circumstances” (Tool #5), IDEA calls for an FBA and BIP “as appropriate.”  And when would it not be appropriate?  If a student has drugs or a weapon at school, or inflicts “serious bodily injury” on someone, wouldn’t we want to do something to prevent a recurrence of that kind of behavior?

The Q and A dances around the question of who is qualified to conduct an FBA because IDEA does not address that issue. Thus we are only told that it should be done by “trained and knowledgeable personnel.” 

You have a lot of discretion in the crafting of BIPs and the conduct of FBAs.  The law does not micromanage this process. In the Toolbox we talk about the things that we think should not go into a BIP: short term negative consequences (Tools #7 and #8), bringing in law enforcement (Tool #10) and physical restraint.  All of these things are already authorized by the law, and none of them are “positive behavioral interventions, supports or strategies.” So leave them where they belong—in the law, the policy and the Code of Conduct.

With BIPs, be creative, innovative, and specific to the student you are dealing with.

DAWG BONE: POSITIVE INTERVENTIONS, SUPPORTS AND STRATEGIES—THAT’S WHAT GOES IN A BIP. 

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Moms for Liberty

The 8^th day of Hannukah and the one and only day of Christmas arrive on the same day this year. So Merry Christmas, Happy Hannukah and Blessings and Good Wishes to all!

I end this year with GRATITUDE for the Loyal Daily Dawg Readers. For the IT department at the Walsh Gallegos law firm that gets these things posted and sent out every day. For my excellent assistant Novell, who keeps the Comprehensive Dawg in order. And for the lawyers in the firm who preview the content and occasionally say, “Uh…Jim….did you really mean to say that?”

Here’s wishing you a restful holiday. We’ll be back on January 3^rd with the first Daily Dawg of 2023. 

DAWG BONE: AND A HAPPY NEW YEAR!

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

We’re Zooming today! Hope you can join me and Ryan Pacher, an attorney in our Houston office.

There is no doubt that school safety is going to be a huge issue for the legislature to deal with this year.  We’re going to get a head start on that today with a “Zooming with the Dawg” devoted to that issue. There is much to talk about including the role of threat assessments.  Hope you can join me along with Ryan Pacher from our Houston office as we host the final Zooming with the Dawg of this year.

See you at 10!

DAWG BONE: LAST ZOOM CALL OF THE YEAR! DON’T MISS OUT!!

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: last one for the year….

The court’s brief opinion tells us that a ceiling light fell on a student in Kohlberg Elementary in El Paso ISD.  It injured his arm. All of us at Daily Dawg International are sorry to hear that this happened. It shouldn’t have, and we hope the student makes a full recovery from the injury.

But this accident provides no basis for a lawsuit against the school district. None.  The immunity of Texas school districts for accidental injuries like this could not be more clear in the law than it is. Texas school districts are immune from liability unless the injury was caused by the negligent use or operation of a motor vehicle. Not a light fixture. A motor vehicle.

Was there a motor vehicle involved in this case?  Nope. On that basis the district court judge should have granted the school district’s Plea to the Jurisdiction.  But that didn’t happen, and this forced the district into expending more time and money on an interlocutory appeal to the 8^th District Court of Appeals in El Paso. 

The appellate court did the right thing, tossing the case out due to the immunity the legislature has given to public school districts. That’s the right outcome, but it should not have been necessary for the district to file an appeal on this one. Congrats to school attorney Tony Safi who ably represented the district in this case, El Paso ISD v. DeLaRosa, decided on November 7, 2022. It’s cited at 2022 WL 16737158.

DAWG BONE:  SHEESH!

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: how not to let Child Find drive you to an early retirement….

We are plowing through the newly revised Q and A from OSEP on our Toolbox Tuesdays, and today we focus on Section F: Manifestation Determination Reviews (MDR).

This section contains nothing new and largely regurgitates the language of the law and regulations.  Here are a few key points.

1.  The duty to do an MDR is triggered “when school personnel propose to change the placement of a child with a disability because of a violation of the school’s code of student conduct.” The MDR must be conducted within 10 school days of that proposal. That’s usually two weeks and as we emphasize in Toolbox training, it’s wise not to rush into the MDR process. Parents are entitled to five school days written notice of the meeting, and it’s not good to pressure the staff into a hasty MDR.
2. It’s important that the MDR Team (the ARD Committee) review the student’s IEP to make sure that it’s been consistently implemented. The student’s behavior may be considered a manifestation of disability if it was “the direct result of the LEA’s failure to implement the IEP.”
3. If the decision is that the behavior is a manifestation, the school needs to remember the two “don’ts” that we talk about in the Toolbox: Don’t punish it. Don’t ignore it. The school has work to do. It needs to do an FBA unless one has already been done, and develop a BIP or revise an existing one (Tool #1).  The student must be returned to the placement from which the student was removed unless 1) the parents agree to a change (Tool #2) or you have a “special circumstances” offense (Tool #5). 
4. If the decision is that the behavior is a manifestation because of the school’s failure to implement the IEP, the school has even more work to do—meeting with teachers and service providers to make sure they understand their responsibilities.
5. If the behavior is not a manifestation, the student is subject to the same disciplinary consequences as any other student, so long as the school continues to provide services sufficient to enable the student to access the general curriculum and progress toward meeting the goals in the IEP. In Toolbox terminology, this is Tool #6.
6. There can be a disagreement, and if there is, “the LEA must make the determination and provide the parents with prior written notice.”  We talk about that in Tool #9.

The MDR is a formal process to make sure that we do not punish a student for having a disability.  The standard to be applied is “causation.” Did the disability cause the misconduct? Did it have a substantial relationship to the misconduct?  Was the behavior directly caused by the school’s failure to implement the IEP?

It’s not a loophole enabling students to avoid the appropriate consequences for violating the code of conduct. Decisions should be based on evaluation data and informed by common sense.

DAWG BONE: NO SUBSTITUTE FOR GOOD EVALUATION DATA ALONG WITH COMMON SENSE.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.

Tomorrow: One for the Sheesh-O-Meter…

We’re Zooming with the Dawg this Thursday! Hope you can join me at 10:00!  I’ll be joined by Ryan Pacher from our Houston office for a discussion of some of the legal issues surrounding school safety concerns. Hope to see you there.

Offering a student with a disability an educational program that involves less than a full day is a mistake. Right? Schools should not shorten the student’s day due to the student’s disability.  Correct? Doing something like that is a red flag and may very well lead to a decision that the district has denied the student equal opportunity.  Isn’t that so? 

All of that is true if the day is shortened in the absence of evaluation data recommending a shortened day due to the student’s unique situation.  Shortening a student’s day because we don’t have enough buses, or staff, or patience to serve a challenging student will be viewed as a decision based on administrative convenience. But what if there is ample evaluation data indicating that a student’s disability requires a shorter day? Or a flexible schedule?  A recent federal court decision addresses this issue and nicely illustrates that the most important letter in IDEA is I, and the most important letter in IEP is I. 

Decisions about a student’s IEP must be based on the evaluation data the school has.  Round Rock ISD had personal experience with Sophia’s inability to attend school due to debilitating migraines.  This was confirmed by recommendations of  Sophia’s neurologist and psychologist, both of whom recommended “that Sophia M. be offered one-on-one services in the school library until she was able to resume normal coursework.”  All of that is “evaluation data.”  The court accused the district of ignoring this information by “remaining rigidly committed to scheduling Sophia M. for a full day of courses even though she had not been able to attend general courses since early October 2019.”  Key Quote:

By early 2019, medical documentation and Sophia M.’s attendance record made it even clearer that she was unable to make academic progress by attending ordinary classes. However, rather than offering a shortened school day or homebound services, RRISD filed truancy charges against [the mother] and suggested that she homeschool Sophia M. 

The court affirmed a ruling by the special education hearing officer. The district was ordered to 1) reimburse the parents for 1) tuition at Fusion Academy for all of the 2019-20 school year; 2) counseling they paid for in the 2018-19 school year; and for mileage to and from Fusion at .575 cents per mile. The court also ordered the district to pay for the parents’ attorneys’ fees and court costs.

It's Round Rock ISD v. Amy M., decided by the federal court for the Western District of Texas on August 22, 2022. It’s published by The Special Educator at 81 IDELR 286. 

DAWG BONE: IDEA ALLOWS FOR FLEXIBILITY. SOMETIMES IT REQUIRES IT.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!

On Fridays here at Daily Dawg HQ I’ve been recounting my adventures as a volunteer teacher’s aide in 1997—25 years ago.  The last major stop was at Elm Creek Elementary in Southwest ISD.  SWISD had turned this campus over to The Edison Project. 

Do you remember the Edison Project? It was the brainchild of Chris Whittle, an entrepreneur who hoped to revolutionize public education by turning it over to for-profit management companies.  The idea was that the smart people who make lots of money in private business would know how to run a school better than the professional educators. Schools would be efficient and effective. Kids would learn. Test scores would skyrocket.  Investors would profit. 

The idea generated much positive press and a lot of support among politicians who favored vouchers.  It didn’t work.  The Edison Project generated a profit for one quarter before its stock dropped from $40 to .14 and the company flamed out. Diane Ravitch wrote about this in her blog on January 18, 2020. She cites a book by Samuel Abrams, Education and the Commercial Mindset. 

According to that book, Whittle’s enterprise morphed from the Edison Project to Edison Schools, and now Edison Learning.  He reports that the company in 2003 managed 133 schools enrolling 80,000 students, but shrank to two credit recovery centers in Ohio and six alternative schools in Florida.  Ravitch and Abrams report that the Edison Project was built on the assumption that states would embrace vouchers allowing parents to use tax money in private schools. That movement did not sweep the country as the Edison Project investors had hoped, but as we know, the fight over vouchers continues.

When I visited the Edison Project school in SWISD I was impressed, mostly because this is where I witnessed the single most energetic and charismatic teacher I encountered in my semester as a teacher’s aide.  He was a young guy, teaching in a 4^th grade classroom. He had the day plotted out in a way that was organized to the minute. The kids were engaged and I could see learning taking place.  His energy was off the charts and I wondered how he could keep this up for the longterm. When I talked to him he told me that he loved teaching, but would not stay with it very long.  “You can’t make any money,” he noted. 

Do you see the irony?  Here was a school experimenting with a way of delivering public education in a way that would be profitable for investors, but at the classroom level it was the same old same old. Not enough money to retain talented and dedicated teachers like this guy.

I notice that Elm Creek Elementary is now recognized as a national Blue Ribbon School of  Excellence. And they achieved that with public funds and public servants. Imagine that.

DAWG BONE: END OF THE ROAD FOR THE “TEACHER AIDE.”  BACK TO THE LAW FIRM.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.