Category Archives: Dawg Bones

Dawg Bones, Uncategorized

Let’s add this to the list of “things not to say” about bullying.

J.R. was a student in New York City who was picked on by the other kids. The court case tells us that J.R. had “major depressive disorder, panic disorder with agoraphobia, and borderline personality disorder,” and that he was bullied based on his race, gender and “perceived femininity.”

It was pretty bad for J.R.  He was hospitalized more than once due to depression and suicidal ideation.  The lawsuit filed by J.R. and his parents alleges that the New York City schools should be held legally liable for the bullying of J.R.

Parents have a high burden of proof in a case like that.  They have to prove that the bullying was really bad; that it was based on disability (Section 504 cases) or gender (Title IX); that the district knew about it; and that the district was “deliberately indifferent.”

It’s that last part that presents the highest hurdle. School officials make mistakes, but are rarely “deliberately indifferent.”  Thus most of these cases get tossed out of court for lack of evidence of any “deliberate indifference.”

This case is not being tossed out—largely because of the principal’s response to the student’s request for a transfer to a different bus. The court cited this as the type of evidence that a jury might rely on to conclude that the school was “deliberately indifferent.” Here’s how the court put it:

For example, in response to complaints about the harassment endured by J.R. on the bus, the QCPC principal did not intervene; instead, she told Plaintiffs that the bullying was likely to continue given the violent nature of the student body.  Although the “deliberate indifference” standard does not require that teachers and school administrators successfully prevent or eradicate all bullying behavior, surely some effort to discourage that conduct and announce its unacceptability is required.

So let’s learn from New York’s mistakes.  If a student requests a transfer to another bus, or another classroom, due to bullying, let’s not respond with: “Well, we can do that. But you know these kids today. The bullying is going to continue.”

Let’s say something better than that. The case is J.R. v. New York City Department of
Education, decided by the federal district court for the Eastern District of New York on August 20, 2015.  We found it at 66 IDELR 32.

DAWG BONE: PROOF OF “DELIBERATE INDIFFERENCE” USUALLY COMES STRAIGHT OUT OF A SCHOOL OFFICIAL’S MOUTH. THINK BEFORE YOU TALK.

Dawg Bones, Uncategorized

It’s Toolbox Tuesday!! Our special education director told me there were “mandatory” BIPs and “discretionary” BIPs. Really? What’s this all about?

Tool #1 in The Toolbox is a BIP—a Behavior Intervention Plan.  We call it your most important tool, in part because if it works, you can put the rest of the Toolbox away.  A BIP is the only tool in the Toolbox that is designed to improve the student’s behavior.

The law does not use the terms “mandatory” and “discretionary” with regard to BIPs, but we  know where your director got that terminology, and we think it makes sense.  The law requires a BIP in some cases; and leaves it to the discretion of the ARDC in others. Thus: mandatory, discretionary.

A BIP is mandatory under IDEA only when 1) the student violates the Code of Conduct in a way that would call for a change of placement; and 2) the ARDC determines that the student’s behavior was a manifestation of disability.  For example, a student with autism physically assaults another student.  This is a violation of the Code of Conduct that would normally result in a change of placement to the DAEP. But the ARDC determines that the assault was directly caused by the student’s disability.   IDEA regulations say that in a case like that, the ARDC must either develop a BIP for the student, or review and revise an already existing BIP.  This is mandatory.

In all other cases, BIPs are discretionary.  ARDCs should consider developing a BIP for students “whose behavior impedes the child’s learning or that of others.”  34 CFR 300.324(a)(2)(i). This is one of the “special factors” that ARDCs are required to consider in connection with each IEP. So it should be on your agenda for consideration at each annual ARDC meeting.  Ask the team: does this child’s behavior impede his/her learning? Or that of others?  If the ARDC says “yes” then the team must “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” Notice that it is mandatory that you ask the question: does behavior impede learning? But even when the answer is “yes,” it is not mandatory that you develop a BIP.  It’s discretionary.

Either way—a mandatory or discretionary BIP—Texas requires that the BIP be included in the student’s IEP:

The committee [ARDC] may determine that a behavior improvement plan or a behavioral intervention plan is appropriate for a student for whom the committee has developed an individualized education program.  If the committee makes that determination, the behavior improvement plan or behavioral intervention plan shall be included as part of the student’s individualized education program and provided to each teacher with responsibility for educating the student.  T.E.C. 29.005(g), emphasis added.

So that’s a quick reminder about some of the features of Tool #1—a BIP.  The Toolbox is a one day training program for school administrators and special education staff, providing 10 tools designed to enable you to maintain safety, while serving each student appropriately and in the least restrictive environment. Interested in a Toolbox training?  Contact me (jwalsh@wabsa.com) or Haley Armitage (harmitage@wabsa.com).

DAWG BONE: TOOL #1 IS, AND SHALL FOREVER BE, YOUR MOST IMPORTANT TOOL!

 

Dawg Bones, Uncategorized

Here come the “holidays.” Is it OK if we call it “Christmas”?

Sigh.  The lights are already up all over my neighborhood.  There are plastic reindeer, large candy canes and Santa Claus displays all over the place, and of course, the incessant advertising is well under way.  It would be nice if we could at least wait until December before we start celebrating Christmas, dontcha think?

But ready or not, here it comes, so we thought it would be a good idea to remind you of the Merry Christmas bill passed by the Texas legislature in 2013. You can find it at Section 29.920 of the Texas Education Code.  The TASB Policy Reference Manual includes a summary of the bill in Policy FNA(Legal).

The law was designed to push back against excessive political correctness, by assuring school officials that it is OK to say things like “Merry Christmas” right out loud in the school.  The law is not very long and you might want to read the entire thing, but we can summarize it as follows:

1. It says that schools may teach kids about “the history of traditional winter celebrations.”  In our culture, Christmas is clearly the predominant “traditional winter celebration.” So the bill tells us that it is OK to teach kids the history of the event; why it is celebrated; what it’s about; why it is such a big deal.  You can do that without encouraging or discouraging religious belief.  In fact, you have to do it that way to comply with the U.S. Constitution. Of course it’s important to remember that while Christmas is the predominant “traditional winter celebration” around here, it’s not the only one.

2. It says that it is OK for kids and teachers to say things to each other like “Merry Christmas” or “Happy Hanukkah” or “happy holidays.”

3. It says that you can have a display on school property to honor the season, as long as it either a) includes symbols of at least two religions; or b) includes a symbol of one religion along with one secular symbol.

4. But it also says that your display “may not include a message that encourages adherence to a particular religious belief.” That provision is a recognition by the legislature of the constitutional issues.

School communities in Texas run the gamut in terms of diversity.  Some of our large, urban districts are a microcosm of the world, including every religion, culture and language you can imagine.  Then there are those small, rural districts where a non-Christian (non-Baptist?) can hardly be found.  The constitutional requirements are the same, regardless of where you live, but the community attitude and the pressure on the school officials will vary from place to place.

We need a large dose of common sense to navigate this sensitive issue.  Advocates on the extremes tend to exaggerate and over-react.  It never was illegal to teach kids about Christmas.  There is no court case holding that a teacher cannot say “Merry Christmas” to her students.  No court has held that you have to call it a “holiday tree,” when we all know that it’s a Christmas tree.

But those who dismiss the concerns over this issue as mere “political correctness” are equally off base.  If the decorations, songs, celebrations and greetings that take place in the public school are indistinguishable from what we see at the local church, then the school is not educating kids about the holidays—it is indoctrinating.  If we teach children about the origins of Christmas, with no reference to the winter celebrations of groups that are fewer in number, we are not teaching properly.

The constitution allows public schools to teach about religion—but prohibits them from  encouraging or discouraging religious belief.  May this month be a useful teachable moment for all of us.

DAWG BONE: HAPPY HANUKKAH (December 7)!  MERRY CHRISTMAS (you know)!  HAPPY KWAANZA (December 26)!  HAPPY BOXING DAY (December 26)!

Dawg Bones

Gobble! Gobble!! Gobble!!!

The Dawg wishes all of you a very satisfying Thanksgiving holiday. May the turkey be moist, the rolls hot, the gravy rich, and may there be more pumpkin and pecan pie than you can eat.  May the relatives be kind, and may all those who do not contribute to the cooking, engage in the cleanup.  May your football team win (unless your team is Texas Tech).  And may all of us be grateful for the random chance of being born in the U.S.A.

Happy Thanksgiving

DAWG BONE: LET’S ALL COME BACK 10 POUNDS HEAVIER!

Dawg Bones

We are trying to get a student tested to determine eligibility for special education and the parent wants to sit in on the testing. Do we have to allow that?

The parent of a student in California asked to sit in and observe when the school conducted some testing of a student with a disability in connection with the three-year re-evaluation.  The school balked, citing concerns that the parent’s presence in the room would skew the evaluation.

So the mother asked for a one-way mirror enabling her to observe and listen, without actually being in the same room.  The school was OK with half of that request—it agreed to set up a way for the parent to see the evaluation, but not listen in.  Both parties dug in at this point. The parent never produced the child for the evaluation, and thus, it did not get done.

The parties ended up in litigation with the parent claiming that the school denied FAPE to the child by failing to conduct a thorough evaluation.  The school’s position was: how could we evaluate the child when the parent is placing unreasonable conditions on us?

The hearing officer and the federal court sided with the district on this one.  Key Quote:

The court finds that parents’ condition that they be allowed to see and hear the assessment was unreasonable, and they effectively withdrew their consent by insisting on that condition.  The [hearing officer] accurately concluded that the District’s failure to complete the required assessments was caused by Parents’ interference and denial of consent, and that the request to observe the assessment amounted to the imposition of improper conditions or restrictions on the assessments, which the District had no obligation to accept or accommodate.

It’s important to point out that the district refused the parents’ request not out of stubbornness or an attitude of “we’ve never done that before.” The district cited legitimate concerns about test integrity and security.  The district took a stance because it is the district’s responsibility to make sure that evaluation data is gathered properly. All decisions about IEP content and placement of the student must be based on evaluation data. Therefore, evaluation data must be valid and reliable.

The case is Student R.A. v. West Contra Costa Unified School District, decided by the federal district court for the Northern District of California on August 17, 2015. We found it at 66 IDELR 36.

DAWG BONE: SOMETIME THE INTEGRITY OF YOUR TESTING PROCEDURES IS MORE IMPORTANT THAN ACCOMMODATING PARENTAL REQUESTS.

Dawg Bones

PARENT AND STUDENT WAIT TOO LONG TO FILE SUIT

Mary King-White alleges that her daughter was sexually abused by a dance instructor employed by Humble ISD.  The lawsuit alleged that this started in the spring of 2009, when the girl was 16, and continued until she graduated in 2011.   More than two years later, the mother and daughter sued the dance instructor, the district and certain district officials.

According to the 5th Circuit, that was too late to pursue a suit against the district or its officials under Title IX or 42 U.S.C. Section 1983. Thus the district and its officials were dismissed from the suit without the court ruling on the substance of the allegations. Instead, the case was decided pursuant to the statute of limitations.

Neither Title IX nor Section 1983 contain a federal statute of limitations, and so the courts apply a comparable state statute.   In particular, courts are supposed to use the “general or residual” statute of limitations under state law.  Here, that is Section 16.003 of the Texas Civil Practice and Remedies Code, which calls for a two-year timeframe for personal injury cases.

The plaintiffs argued that the case did not “accrue,” and thus the two-year countdown did not start,  until long after the girl’s graduation when they obtained more information about HISD policy and practice. The court disagreed.  The case “accrued,” according to the court, when 1) the plaintiff became aware of the injury; and 2) the plaintiff became aware of “causation, that is, the connection between the injury and the defendant’s actions.”   This means that the plaintiff is aware of “circumstances that would lead a reasonable person to investigate further.”

The court pointed out that the girl certainly knew that she was being abused by a teacher.  And the mother had complained about the relationship to school officials while the girl was still in school—so she must have known something was amiss. On top of that, as the court emphasized, the daughter actually lived with the dance instructor, with the mother’s consent.  Thus the court concluded that the cause of action accrued long ago. The statute was “tolled” until the girl turned 18, but the suit was filed more than two years after that. Case dismissed.

The case is King-White v. Humble ISD, decided by the 5th Circuit Court of Appeals on October 20, 2015.  We found it at 2015 WL 6159761.

DAWG BONE: TITLE IX AND SECTION 1983 CLAIMS IN TEXAS HAVE A TWO YEAR STATUTE OF LIMITATIONS.

Dawg Bones

I didn’t want to hit the teacher. I wanted to hit the other student and the teacher got in my way. How can this be “retaliation”?

Tena Hill and Rhonda Johnson were public school teachers who tried to break up a fight between two girls at school.  One of the students hit both teachers and was convicted of the criminal offense of “retaliation” against a public servant.  On appeal, the student’s lawyer focused on the word “retaliation.” The argument was that the teacher was not the target here. The student was not angry with the teacher and was not seeking to “retaliate” for something the teacher did as a teacher.

The court rejected that argument and upheld the girl’s conviction.  The statute says that it is a criminal offense if a person “intentionally or knowingly harms or threatens to harm another by an unlawful act: (1) in retaliation for OR ON ACCOUNT OF the service or status of another as: (A) public servant, prospective witness, or informant.”  Texas Penal Code 36.06(a)(1), emphasis added.

The appellate court emphasized “or on account of.”  To hit a teacher “in retaliation” would require some proof of a deliberate desire to hurt the teacher in response to something the teacher did as a teacher.  For example, the teacher gives the student a failing grade and the student “retaliates.”  The court described this as a “retributory element” necessary to prove “retaliation.”  There was no evidence of a “retributory element” here.

But the statute also makes it crime to harm a teacher “on account of” the teacher’s service. This does not require a specific retributory element, or any proof that the teacher was the person the student sought to harm. Instead, it only requires proof that the teacher was harmed “because of” being a teacher. Thus the court concluded:

In this case, a rational trier of fact could have found that [the student] struck the teachers on account of their service as public servants, i.e., because they were attempting to discharge their duties as public schoolteachers by keeping [the student] from harming another student.

The student’s conviction was thus upheld.  And we hope the teacher has fully recovered.  The case is In the Matter of M.W., decided by the Court of Appeals for Tyler on September 23, 2015. We found it at 2015 WL 5577993.

DAWG BONE: IT WOULD BE BETTER IF TEACHERS NEVER GOT ASSAULTED ON THE JOB, BUT AT LEAST WE KNOW THAT IT’S A CRIME TO DO SO.

Dawg Bones

It’s Toolbox Tuesday! Tell us how the Code of Conduct fits in.

The Toolbox provides school administrators with ten practical “tools” they can use when dealing with students with disabilities who may be particularly disruptive or violent.  The law requires schools to serve all of the kids—including those whose behaviors are challenging.   Moreover, each student should be served in the environment that is “least restrictive” for that student.  At the same time, school officials must maintain safety for all students and staff. It’s tough to fulfill all of these responsibilities at the same time. That’s what the Toolbox is about.

Your Code of Conduct is not one of the ten tools, but it provides an important framework.  The Code of Conduct lays out the expectations that apply to ALL students. The Code of Conduct puts students, and their parents, on notice of the type of behavior that is prohibited, and the consequences that may follow from violating the Code.

All students are subject to the Code of Conduct, including those with disabilities.  There are still some educators, and parents, who seem to think that if a student has an individualized behavior intervention plan (BIP), the student is then no longer expected to comply with the Code. I hear this expressed sometimes: “Oh, he’s not under the Code of Conduct. He has a BIP.”

That’s faulty thinking. A BIP is not a personalized Code of Conduct. A BIP is a tool (Tool #1 in our Toolbox!) that identifies problematic behaviors and then provides for supports, interventions and strategies designed to address those behaviors. The goal of a BIP is to improve the student’s behavior.  So a BIP is about what the school will do FOR a student.  The Code of Conduct tells us what the school will do TO the student.

Students with disabilities have legal protection to ensure that they are not punished for having a disability.  A disciplinary change of placement cannot be based on behavior that is a manifestation of disability. And even with short term consequences, such as a few days in ISS, the campus behavior coordinator is required to consider the impact of a student’s disability on the student’s behavior. So the legal protection is already in place.

We should make sure that students with disabilities understand that they are expected to comply with the Code of Conduct. This is a high expectation, especially for kids whose disabilities directly impact behavior.  But the law requires schools to have high expectations for all kids in all areas--both academic achievement and behavioral progress.

DAWG BONE: THE CODE OF CONDUCT APPLIES TO ALL STUDENTS. NO EXCEPTIONS.

Dawg Bones

Some key points from the Commissioner about nonrenewals.

A recent decision from the Commissioner tells us five things worthy of note with regard to the nonrenewal of an educator’s contract.

First, the board should provide a written notification of its decision if the board has conducted the hearing itself.  If the board decides the case after an independent hearing examiner makes a recommendation, a verbal announcement of its decision would be sufficient.  Here, the board conducted the hearing itself. At the conclusion of the hearing, the board voted to nonrenew the contract, and announced this publicly.  The Commissioner ruled that this verbal notice was insufficient.  The teacher’s timeline to appeal the decision to T.E.A. never started to run, because there was no written notice.

Second, teachers facing nonrenewal of contract are not entitled to “due process.” They are entitled to the procedures set out in statute, but the constitutional concept of “due process” does not apply because they are not facing a deprivation of a property interest.  Therefore, the counselor’s  complaints about procedural irregularities did not implicate “due process.”

Third, the decision implicitly reminds us that boards can set and enforce a time limit on the hearing.  Here, the counselor was unable to call two witnesses at the hearing before the board because she ran out of time. The board had given each side two hours to present its case.  The Commissioner found no fault with this.

Fourth, the standard for nonrenewal is not very high.  Here, the district gave notice of eight reasons for nonrenewal, each one pulled directly from Policy DFBB(Local).  The Commissioner notes that “a district is only required to show that substantial evidence in the local record that supports one of its pre-established reasons for nonrenewal.  Substantial evidence is not a  high burden of proof.”

Fifth, the Commissioner reminds us that remediation of deficiencies is not required: “…there is no statutory requirement that a school district must give a teacher an opportunity for remediation before nonrenewing a contract.”

Bottom line: the district followed its policy; met timelines; produced substantial evidence. The counselor’s appeal was denied. The case is Salazar v. Sinton ISD, Dkt. No. 049-R1-07-2015, decided by the Commissioner in September, 2015.

DAWG BONE: MEDIA REPORTS TO THE CONTRARY, IT IS NOT THAT HARD TO NONRENEW A TEACHER’S CONTRACT