Category Archives: Dawg Bones

Dawg Bones

How do judges talk when they are at home?

It’s always been interesting to me to notice that judges, especially of the federal variety, are prone to refer to themselves as “the Court.” This came to mind in yesterday’s entry about Wood v. Katy ISD, a case in which the federal judge was clearly irritated with the work of the parent’s lawyer.  But notice the way the judge expresses herself:

The Court does the best it can with the current record and again reminds the parties that it is not obligated to “sift through the record in search of evidence” to support a party’s opposition to a motion for summary judgment.

When Judge Harmon refers to “the Court” what she really means is “me.”  This sentence could have read: “I do the best I can…..”

The reference to “the Court” adds a touch of dignity to the proceedings.  So I’m all for it.  In my own writings I routinely intermix “the court” with “the judge.” It’s really the same thing.

But I wonder what it’s like to live with a judge.  Imagine the conversation at the Thanksgiving dinner:

The Court would enjoy another biscuit.

Please pass the mashed potatoes to the Court.

What do you think????  Anyone had dinner with “the Court” of late?

DAWG BONE: YOU HAVE TO WONDER WHAT KIND OF PERSON THE JUDGE IS BENEATH THE ROBE.

Dawg Bones

Rule One: Don’t Make the Judge Mad

Maybe the case of Wood v. Katy ISD is finally over.  Perhaps now the parents of the student, who must be in his mid-20s, will quit arguing over the student’s IEP for 2006-07.  The federal district court in Houston ruled decisively in favor of the district on this one, in which the parents sought reimbursement for tuition at a private residential school in Vermont.

This special education case was decided by a special education due process hearing officer over six years ago, on February 7, 2009.  The IHO ruled for Katy ISD, and the parents appealed to federal court.  Now, at last, we have a ruling on that appeal. Again, the KISD prevails.

Our special education system is supposed to resolve disputes swiftly.  It makes little sense to get a ruling about an IEP from 2006 in 2015.  Much of the problem here seemed to stem from the complexity of the administrative record.  The judge found the administrative record voluminous and disorganized. She ordered the parties to file amended motions addressing two key issues, and to keep the paperwork to 50 pages or less.  One party complied with that order, the other did not. Here’s how Judge Melinda Harmon put it:

While KISD complied with the Court’s order, Plaintiffs’ submission is still voluminous, contains documents that are not part of the official administrative record, an absence of citations to the record to support their assertions, and irrelevant and/or incompetent summary judgment evidence. The Court does the best it can with the current record and again reminds the parties that it is not obligated to “sift through the record in search of evidence” to support a party’s opposition to a motion for summary judgment.

Suffice it to say that it’s not a good idea to irritate the judge.  The judge had good reasons for ruling for Katy ISD on this case. The evidence showed that the student consistently performed well, the district brought in respected experts to support its case, and all procedural requirements were satisfied.

But it didn’t help the parents’ cause that the judge was irritated with their lawyer.

The case is Wood v. Katy ISD, decided by Judge Harmon for the Southern District of Texas on September 30, 2015. We found it at 66 IDELR 158.

DAWG BONE: WHEN THE JUDGE SAYS “KEEP IT TO 50 PAGES OR LESS,” 49 WOULD BE A GOOD IDEA.

Dawg Bones

Happy Veterans’ Day!

I lucked out on that first draft lottery way back in 1969.  The War in Vietnam was in full swing and so the number assigned to your birthday was a life changer.  I was number 330, which meant I was free to complete college, go to law school and get on with my life without worrying about being drafted.  My roommate drew number 6.  He signed up for ROTC the next day.

So it is with humble gratitude that I join all of you in saying THANK YOU to those who have served our country through military service.

Veterans’ Day reminds me of the story about the time when French President Charles DeGaulle pulled France out of NATO in 1966 and demanded that all American troops be evacuated from French soil.  Secretary of State Dean Rusk asked the proud Frenchman: “Does that include the 60,000 who are buried there?”

DAWG BONE: THANKS, VETERANS, FOR YOUR SERVICE

Dawg Bones

It’s Toolbox Tuesday! Tell us about a “change of placement”!

The Toolbox is a set of “tools” available to school officials in dealing with disruptive and/or violent students with disabilities.  On previous Tuesdays, we have reviewed each of the 10 tools. Today, we focus on “change of placement.”

It’s important for school officials to know when the removal of a student from the placement called for by the IEP counts as a “change of placement.” If the district seeks a change of placement, an ARD meeting is necessary.  School administrators can order the short term removal of a special education student, such as a day or two or three in ISS or out of school suspension.  But if a removal meets the definition of a “change of placement” then an ARD meeting is needed. Moreover, if the change is due to the student’s violation of a provision in the Code of Conduct, a manifestation determination must be conducted.

Federal regulations include a definition of the term “change of placement.”

[A change of placement occurs if]:

The removal is for more than 10 consecutive school days; or

The child has been subjected to a series of removals that constitute a pattern—

(1) because the series of removals total more than 10 school days in a school year;

(2) because the child’s behavior, is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and

(3) because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.  34 CFR 300.536.

Many people think that it is always a change of placement if the student is removed for more than ten cumulative days in a school year.  But notice the regulation does not say that.  If it was always a change of placement when you get past ten days, the regulations would simply say so, and there would be no reason to distinguish between ten consecutive days vs. ten cumulative days.  The regulations would simply say that a change of placement occurs whenever the student is removed for disciplinary reasons for more than 10 school days.

Notice that the regulations do not say that.  They say that it is a “change of placement” only if the series of removals “constitute a pattern.”  They then define “pattern.”  Exceeding ten days is only one-third of the definition of “pattern.”  You also have to have “substantially similar” behavior and some combination of length of each removal, total days and proximity.  Removal of the student for 15 days in a semester, for example, would be much more serious than removal for 15 days spread out over the entire school year.

It’s up to the school officials to decide whether or not a particular removal is a change of placement.   The regulations say: “(1) The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change of placement.  (2) This determination is subject to review through due process and judicial proceedings.”  34 C.F.R. 300.536(b).

We take this to mean that a school official should apply the definition of “change of placement” on a case-by-case basis, and the parent who disagrees with the decision can request a hearing.

In the Toolbox training, we go into this issue in depth, including the opportunity to practice deciding what is and is not a “pattern.”  If you are interested in a Toolbox training, contact me at the law firm, or our excellent client services manager, Haley Armitage (aharmitage@wabsa.com).

DAWG BONE: IT’S UP TO SCHOOL OFFICIALS TO DECIDE IF THERE IS A “PATTERN” THAT CREATES A “CHANGE OF PLACEMENT.”

Dawg Bones

Got a Hard ARD coming up?

One of the fortunate things about living in Texas is that we have ARD meetings. The rest of the country, lacking in imagination, calls these things IEP Team meetings because that’s what the federal regulations call them.  Pish posh.  Here in the Lone Star State we are not encumbered by deference to things federal. We choose to call them ARD meetings.  Why?  Because we are Texas, that’s why.

I have heard some of you suggest that ARD stands for “Anguish Remorse and Denial.” Not true. The real meaning is “Admission, Review and Dismissal.” This is a sensible name for a group that does those three things—it admits students to special education services, it review progress, and sometimes it dismisses students. Of course, along the way it also develops IEPs, makes placement decisions and conducts manifestation determinations.

Sometimes ARD meetings can be challenging—thus the “Hard ARD.” ARD Committees address difficult issues, often in the midst of strong emotional currents and/or the threat of litigation.  Educators who participate try to serve the student well, maintain a good relationship with the parent, get the paperwork filled out properly, and comply with the law. Not easy to do all four of those things at the same time.

That’s why our firm is offering an audio conference on this topic: The Hard ARD and How to Handle It.  Attorneys Denise Hays and Charlotte Salter will provide insights and recommendations based on their many years of collective experience in this field.  I can guarantee you that this one will be practical and relevant, addressing the kind of situations you lose sleep over.

Sign up for the audio conference at the firm’s website: www.walshgallegos.com.  The Hard ARD audioconference is December 2 at 10:00 a.m.  Don’t miss it!

DAWG BONE: AUDIOCONFERENCE ON THE HARD ARD—DECEMBER 2!

Dawg Bones

Dear Dawg: The football coach just cold-cocked the superintendent. What do we do about this?

Dear Dawg:  I guess the conference between the superintendent and the football coach did not go so well.  The secretary sitting outside the office where they met reported that voices were raised, and then furniture was being moved and glass was breaking.  There were shouts and cursing, not suitable for the workplace.  Then the coach stormed out of the office. The secretary found the superintendent on the floor of his office, having been soundly beaten.  He was taken to the hospital and will fully recover from his injuries, but we’re wondering what we should do with the coach.  I’m on the school board and we are being asked by members of the community about this. Advice?  HAVEN’T BEEN DOWN THIS ROAD BEFORE.

DEAR HAVEN’T:  Under normal circumstances an employee who physically assaults another employee has committed a firing offense.  But when it is the football coach, some due diligence is called for.  We advise an in-depth investigation centered around one primary issue:  WHAT’S THE COACH’S RECORD?  If your team is headed for the playoffs, our experience tells us that many people in the community will find the incident not worthy of the board’s attention.  “Just a scuffle” you will hear people say.  “Boys will be boys. It’s no big deal.”  Or the ever-popular: “That superintendent had it coming.”

On the other hand, if your team is a loser, you can’t get this guy out of town quick enough.  So do your due diligence on this. What’s the record?

DAWG BONE: THIS IS PROBABLY A GOOD TIME TO REMIND THE READERS THAT THE DAILY DAWG IS FREQUENTLY TONGUE IN CHEEK AND NOT TO BE TAKEN SERIOUSLY—ESPECIALLY ON FRIDAYS. HAVE A GOOD WEEKEND, AND MAY ALL THE FOOTBALL TEAMS IN TEXAS WIN!!

Dawg Bones

Federal Judge Takes Shots at Department of Education

Yesterday we told you about the case from Virginia where a federal court held that a public school is not required to allow a transgender student to use the bathroom that corresponds to the student’s gender identity.  One of the interesting subtexts to the case involves the role of the Department of Education.  Many people have noted the aggressive posture of DOE under the Obama Administration. The pattern is to issue “Dear Colleague” letters and “Guidance Documents” and then intervene in lawsuits citing their own publications as “the law.”

Judge Robert Doumar, of the Eastern District of Virginia, will have none of it.

The context was “the bathroom wars” involving transgender students. The Virginia school district adopted a board “Resolution” that limited transgender students to 1) the bathroom of their biological sex; or 2) “an alternative appropriate private facility.”  A transgender male student sued, seeking to be allowed to use the boys’ bathroom.

The Obama Administration jumped into the case in support of the student.  The Department of Justice cited a “Dear Colleague” letter from the Department of Education. DOJ also cited a “Guidance Document” from DOE.  According to the Obama Administration, both documents supported the student’s case and represented the official position of the agency that enforces Title IX.

The judge, however, rested his decision not on letter or guidance documents, but rather the officially adopted regulations of Title IX.  As to the DOE’s position, Hizzoner pretty much accused the Obama Administration of making up the law as it goes along.  We quote at length, because we are sure we will see this same argument play out in other cases:

To defer to the Department of Education’s newfound interpretation would be nothing less than to allow the Department of Education to “create de facto a new regulation” through the use of a mere letter and guidance document.  If the Department of Education wishes to amend its regulations, it is of course entitled to do so.  However, it must go through notice and comment rulemaking, as required by the Administrative Procedures Act.  It will not be permitted to disinterpret its own regulations for the purposes of litigation.  As the Court noted throughout the hearing, it is concerned about the implications of such rulings.  Allowing the Department of Education’s Letter to control here would set a precedent that agencies could avoid the process of formal rulemaking by announcing regulations through simple question and answer publications. Such a precedent would be dangerous and would open the door to allow further attempts to circumvent the rule of law—further degrading our well-designed system of checks and balances. [Citations omitted].

DAWG BONE: REGULATIONS CARRY MORE WEIGHT THAN “DEAR COLLEAGUE” LETTERS.

Dawg Bones

Bathroom Wars Intensify

A federal district court in Virginia has held that Title IX does not require that schools allow a transgender student to use the bathroom that corresponds to the student’s gender identity.  In plain language, the student who was born a girl and now identifies as a boy was not allowed to use the boys’ bathroom. The court said that this was OK, and in the process, shot holes through the arguments of the Obama Administration.  We will discuss the Obama Administration’s involvement in this case tomorrow. For today, let’s just look at the bathroom issue.

The student had used the boys’ bathroom, with the permission of the principal, for about seven weeks in the fall of 2014.  The student reported that the other kids had no complaint about this, and there were no reported incidents.  However, school board members started to hear complaints from the start—complaints from both students and parents.  In December, 2014, the school board adopted a Resolution that called for bathrooms and locker rooms to be “limited to the corresponding biological genders.” The Resolution went on to say that “students with gender identity issues shall be provided an alternative appropriate facility.”

As a result of this school board action, the principal informed the student that he would no longer be allowed to use the boys’ bathroom.  He could use any of the three unisex, single-stall restrooms in the building, or the nurse’s office. Or he could go to the girls’ restroom.

The student reported that he was not welcome in the girls’ restroom, especially now that he was receiving treatment that lowered his voice and produced facial hair.  And he felt “stigmatized” by having to use the separate restrooms. So he sued, alleging that the resolution violated Title IX.

The judge pointed out, however that Title IX regulations expressly address the issue of bathrooms and lockers:

A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.  34 CFR 106.33.

The judge noted that the student did not allege that the facilities he was allowed to use were unequal to the boys’ bathroom.  Therefore, he had no “sex discrimination” case.

It’s important to note that the school accommodated this student.  It did not simply order him to use the girls’ bathroom. It made other facilities available.   We are guessing that for most transgender students, such an accommodation will be acceptable.  But if your district encounters a student who seeks legal recourse in an effort to use the bathroom that corresponds to the student’s gender identity, this case will no doubt provide grist for the judicial mill.

The case is G.G. v. Gloucester County School Board, decided by the federal district court for the Eastern District of Virginia on September 17, 2015. We found it at 2015 WL 5560190.

DAWG BONE: BATHROOM WARS PROVIDE THE LATEST ILLUSTRATION OF THE FACT THAT PUBLIC SCHOOLS ARE GROUND ZERO IN THE CULTURE WARS.

Dawg Bones

It’s Toolbox Tuesday! Tell us about the two “stay puts.”

The Toolbox is a set of 10 “tools” available to school administrators in dealing with disruptive or violent students with disabilities.  We have discussed each of these tools over the past 10 Tuesdays. Today, our topic is “stay put.”

There are actually two “stay put” rules—the traditional one for non-disciplinary changes, and a special one for disciplinary changes.  The traditional “stay put” rule is at 34 CFR 300.518:

Except as provided in Section 300.533, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under Section 300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.

So if the school proposes that a student should be moved from the regular, mainstream classroom into a life skills unit, and the parent challenges that decision, this traditional “stay put” rule would come into play.  During the due process hearing, the student would remain in the regular, mainstream classroom.

But notice that the traditional “stay put” rule begins with a reference to its exception, Section 300.533, which is the disciplinary removal “stay put” rule.  Here is what it says:

When an appeal under Section 300.532 has been made by either the parent or the LEA, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in Section 300.530(c) or (g), whichever occurs first, unless the parent and the SEA or LEA agree otherwise.

An appeal “under Section 300.532” is an appeal of a disciplinary decision. So when the school calls for a disciplinary change of placement, and the parent disagrees with the school’s decision, the student does not “stay put” in the “current educational placement.”  The student “stays put” in the IAES (interim alternative educational setting).  The IAES is selected by the ARDC.  If the parent disagrees with the selection of the IAES, the parent can obtain an “expedited” hearing, but in the meantime, the student “stays put” in the IAES.  In Texas, we usually spell “IAES” as D.A.E.P.

Congress created the second “stay put” rule, and did it on purpose.  No doubt, this was in response to concerns from school administrators that the traditional “stay put” rule, when applied to a disciplinary situation, created the appearance of a dual disciplinary system.  Thus, Congress added the second “stay put” rule—the one that applies in disciplinary situations.

DAWG BONE: YES, THERE ARE TWO—COUNT ‘EM—TWO “STAY PUT” RULES!

Dawg Bones

Dear Dawg: Do we REALLY have to put a camera in every special education classroom when a single parent requests it????

The authors of SB 507 have written a letter to Commissioner Williams seeking to guide the Commissioner’s adoption of rules.  This is the bill that requires cameras to be installed in every “self-contained” classroom.  The bill states that the district is required to provide these cameras only upon request. But “request” from whom?

The exact language of the new law provides that the duty to record in the classroom arises “upon request by a parent, trustee, or staff member.”  Does that mean any parent in the district can request cameras district-wide?  Senator Lucio and Representative Senfronia Thompson, co-authors of the bill, have written to Commissioner Williams expressing their intent behind the term “a parent.” The legislators say that the term was intended to apply ONLY to a parent of a child in a specific classroom.  Thus if Mrs. Jones has a child in the elementary school “Life Skills” unit, and Mrs. Jones requests video surveillance of the classroom, the district would only be required to put the equipment in the Life Skills unit of the elementary school.  The request by Mrs. Jones would not trigger a duty to provide cameras in other units.

The letter to Commissioner Williams also indicates that “a staff member” should be read only to mean the teacher of that particular unit.

We shall see what Commissioner Williams does about this. For sure, some clarification is desperately needed, and needed soon.

One other interesting wrinkle to this bill: it’s pretty clear that the term “a trustee” means just what it says. Thus it may turn out that not every parent, and not every staff member can require the installation of security cameras in the special education classrooms. But any school board member can.  Regardless of how Commissioner Williams interprets the terms “a parent” and “a staff member” it seems there can be little debate about “a trustee.”

This is the only instance I know of in which a law empowers a single school board member to exercise power as an individual.

DAWG BONE: WATCH FOR COMMISSIONER’S RULES TO CLARIFY THE “CAMERAS IN THE CLASSROOM” BILL