A classroom teacher in South Dakota is facing possible personal liability for violating the constitutional rights of a student with a disability through the habitual use of seclusion. Here is what the plaintiff alleges:

On a regular basis, [the teacher] and her two teaching aides physically picked up and carried students—who sometimes resisted by kicking and screaming—from class to the little room . Once there, students had to demonstrate calm behavior and complete several “task baskets” unrelated to whatever disciplinary infraction led to their visit before they were permitted to leave. Either [the teacher] or an aide would wait outside and hold the door shut until they gained compliance. Students sat in the little room for up to hours at a time, with a few instances extending to as long as an entire afternoon.

The “little room” was 10x10 with a window in the door, a small table, a whiteboard and cupboards. Between October 26, 2015 and March 1, 2016 one student (A.A.) was sent to the little room 274 times. Another student (B.B.) was confined to the “calm down corner” which was in an atrium adjacent to the classroom. Staff made sure the student did not leave. The suit also alleges that the teacher forced B.B. into the swimming pool and once held down a third student (C.C.), forcibly stripped him of his clothes and put his bathing suit on him. The court held that these were unreasonable seizures under the 4th Amendment because they “substantially departed from accepted standards”:

She habitually secluded A.A. and B.B. for minor disciplinary infractions with no evidence that they posed imminent risk of harm to themselves or anyone else. And she restrained B.B. and C.C. to coerce compliance with routine directives to get in a pool and change clothes.

The court held that the right of the students to be free from such harsh treatment was “clearly established” and so the teacher was not entitled to qualified immunity.

The court emphasized that “an ordinary school timeout is not a 4th Amendment seizure.” The court also noted that physical restraint is permitted when necessary to prevent imminent harm. The problem here is that this student presented no such danger and the teacher’s practices, as alleged in the suit, went far beyond professionally accepted standards.

This was all in the context of the teacher’s Motion to Dismiss, which means the court was required to assume the truth of all of these horrific allegations. Now the parent will have the burden of proving the truth of the allegations

But for us in Texas this high level ruling from the 8th Circuit sends a clear message about the limits we should observe in the use of restraint.

It’s Doe v. Aberdeen School District, decided by the 8th Circuit on August 1, 2022. It’s published by Special Educator at 81 IDELR 121.

DAWG BONE: TEACHERS CAN BE HELD LIABLE FOR VIOLATING THE CONSTITUTIONAL RIGHTS OF STUDENTS IF THE LAW IS CLEARLY ESTABLISHED.

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

Tomorrow: launching a new series of Friday Daily Dawg posts.

Those rookie teachers are now almost two months into their great adventure. Have any legal concerns surfaced? New teachers may be in their early 20s, in their first fulltime professional employment. Or they may be coming into the profession from some other line of work. Either way, there is much to learn.

Our firm is offering a webinar to address these topics next Wednesday, October 12. Here are the details:

TITLE: WHAT YOUR NEW TEACHERS AND SUBS NEED TO KNOW
WHEN: Wednesday, October 12 at 10:00 a.m. to 11:30.
PRESENTERS: Andrea Slater Gulley and Jennifer Carroll

This will be a practical session focusing on the most common legal issues that newbies need to know about with a particular emphasis on special education issues. Sign up at www.walshgallegos.com.

DAWG BONE: WHAT THEY DON’T KNOW CAN HURT YOU. AND THEM.

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

Tomorrow: teacher liability.

In our firm’s Toolbox Training we emphasize the Supreme Court’s ruling that Congress intentionally “stripped” school administrators of “unilateral” power. Decisions that in the past had been made by a campus principal or superintendent would now be made by 1) the ARD Committee; or 2) a special education hearing officer; or 3) a local district judge. The context was the placement of students who might engage in behavior that was seriously disruptive or violent.

However, there are things that a principal can do “unilaterally.” Of the ten tools in the Toolbox, there are three that can be used by the principal without approval of anyone else. They are:

Tool #5: Special Circumstances Removal. This option did not exist when SCOTUS made its observation of how the unilateral powers of campus administrators had been stripped away. That was in the 1988 case of Honig v. Doe. After that, Congress changed the law, providing three situations in which campus administrators can order the immediate removal of a student from the IEP placement. They involve drugs, weapons, or the infliction of serious bodily injuries. The removal can be done even if the behavior was caused by the student’s disability, and can be for as long as 45 school days.

We should probably refer to this as only “quasi-unilateral.” It’s true that the principal can order a removal, but the principal cannot determine where the student will be served. That requires an ARD meeting. After determining that the student has committed a “special circumstances” offense, the principal can order removal to an “Interim Alternative Educational Setting” (IAES) but must call for an ARD meeting so that the members of the ARD can determine what that IAES will be.

Tool #7: Removal within the FAPE-Free Zone. In the Honig case SCOTUS gave its approval to the administrative regulation that allows principals to remove a student from the IEP placement for up to ten school days in the school year. These short-term removals are “FAPE-Free” only for ten days. Anything beyond that is complicated, requires services to the student, and is definitely not something that can be done “unilaterally.”

Tool #10: Calling in law enforcement. This is typically the principal’s decision and does not require ARD approval. School policy or directives from central office may restrict the authority of the principal, but IDEA does not.

All of these tools should be used carefully. Just because the principal can do something does not mean it’s a good idea. In the Toolbox Training we try to emphasize behavior plans and other focused efforts to address inappropriate student behavior. The idea behind IDEA is to ensure an appropriate education for each child in a safe school setting.

If you are interested in Toolbox Training, let me know.

DAWG BONE: IMPORTANT TO KNOW WHAT CAN BE DONE “UNILATERALLY” AND WHAT CANNOT.

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

Tomorrow: got some rookie teachers? Subs?

We learn four things about teacher nonrenewal hearings from the Commissioner’s decision in Garza v. LaJoya ISD.

One: Requiring a district employee to testify. Teachers who appeal the proposed nonrenewal of contract to the board can compel the district to produce their employees to testify. However, the teacher must make this “request in writing to the district within a reasonable time frame.” Moreover, if the employee does not show up, “an objection on the record needs to be made including an offer of proof.”

Mr. Garza fell short on both counts. On June 2, 2022 the parties agreed to hold the hearing on June 14, 2022. That’s 12 days before the hearing, but Mr. Garza did not request any district employees to testify until the afternoon of the day before the hearing. He asked the district to produce nine district employees at the hearing. The district produced eight. Only Police Chief Gonzalez was missing. The Commissioner held that this did not matter. The teacher did not make the request “within a reasonable time frame:”

A request for [the school district] to contact and secure nine employees for a hearing set the next day is not reasonable, particularly during the summer, when schools may be short staffed and school personnel may be on vacation or difficult to reach.

On top of that “Petitioner did not sufficiently object to Chief Gonzalez’s absence or make an offer of proof at the hearing.”

Two: Who recommends. The nonrenewal process usually begins with a recommendation of nonrenewal from the teacher’s immediate supervisor—the principal. But it doesn’t have to work that way. The notice of proposed nonrenewal comes from the school board and does not have to be preceded by a recommendation from the principal or the superintendent.

In this case the recommendation came from the superintendent based on accusations that the teacher inappropriately touched some elementary aged children.

Three: “More than a scintilla.” In his appeal to the Commissioner the teacher pointed out that there was some testimony at the nonrenewal hearing in his favor. Maybe so, but there was plenty of evidence to support the board’s decision. That’s all that is required. Key Quote:

The board heard testimony by several witnesses, including the superintendent, educators, parents, and Petitioner’s principal, who testified that she repeatedly addressed his lack of physical boundaries with students. The board also considered the Title IX investigative findings that Petitioner engaged in sexual harassment, Respondent’s police department’s determination that the students’ claims were credible, the publicity and negative reaction to Petitioner’s arrest and criminal charges, and the students’ outcries. This is far more than a scintilla of evidence.

We love it when the Commissioner uses the word “scintilla.” This does not refer to a small, fur bearing mammal, but rather, it’s a word that means “a little bit.”

Four: The role of the police. The teacher made much of the fact that the investigation of the accusations by students was done by the district’s police department, rather than school administrators. The teacher cited T.E.C. 37.081 which calls for district police to be “tasked only with duties related to law enforcement intervention and not tasked with behavioral or administrative duties better addressed by other district employees.” The teacher argued that the results of the police investigation should not have been used as evidence since the police should not have done the investigation in the first place.

The Commissioner rejected that theory, noting that an investigation of improper touching of young children “was neither a routine school administrative task nor an administrative duty ‘better addressed by other district employees.’”

It’s Garza v. LaJoya ISD, Docket No. 046-R1-06-2022 decided by Commissioner Morath on August 17, 2022.

DAWG BONE: FOUR THINGS TO LEARN.

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

Tomorrow: Toolbox Tuesday!!

There is some interesting commentary about the status of AG Opinions in the case I told you about on Monday. That’s the one involving a breach of contract claim against ESC Region 2. The court dismissed the case due to the sovereign immunity the Service Centers have. For more on that, go back to Monday’s entry!

The opinion also has some things to say about AG Opinions. The key issue in the case was about the legal status of our twenty ESCs. Are they arms of the state? Or are they more like local school districts? The plaintiff in the case dusted off an AG Opinion from 2014 authored by our current governor. The court noted that the AG’s office has been inconsistent about the status of ESCs:

As the Perez Court noted, Attorney General opinions have historically been inconsistent in their characterization of ESCs, referring to an ESC as a “state agency” in one opinion, but then stating in another opinion that ESC employees are “hired by and accountable to the local board of directors” instead of the state board.

The court tossed in the observation that “Of course, as the Supreme Court of Texas recently reiterated, Attorney General opinions are merely advisory.”

For lawyers it’s pretty simple. Did the AG issue an opinion that supports your client’s position? Then that opinion “represents the official, well-reasoned and well supported opinion of the legal representative of the sovereign State of Texas.” Does the opinion go against your client’s position? Then it is “merely advisory.”

DAWG BONE: YOU ALREADY KNEW THAT, DIDN’T YOU?

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

Today’s case is yet another example of the power of testimony from classroom teachers who are knowledgeable about a student’s performance.

The student repeated kindergarten while in a private school. She enrolled in public school for second grade, at the recommendation of the private school. In the fall of 2017 the district evaluated the student for special education and determined that she was not eligible as she was progressing “at an average level overall.” The parents obtained an independent evaluation from Dr. Schmidt that concluded that the student had a learning disability. Based on that the school considered 504 eligibility but again determined the student was not eligible.

The parents sought a due process hearing. The hearing officer ruled in favor of the school district, largely on the basis of the comparison of the school’s evaluation vs. the independent one by Dr. Schmidt. The parents appealed to the federal district court, which affirmed the ruling in favor of the district. The parents appealed to the Circuit Court. Same result.

The primary challenge from the parents was about how the hearing officer discounted the testimony of Dr. Schmidt in favor of the testimony from school personnel. The court cited several reasons why the independent report carried less weight:

*Dr. Schmidt failed to consider the student’s grades and results of progress monitoring.
*Dr. Schmidt’s report was not comprehensive and thorough—it had scant information about the student’s performance in school.
*Dr. Schmidt focused exclusively on the student’s weaknesses, as opposed to the whole child.
*Dr. Schmidt used age norms rather than grade norms, which was a mistake because the student had repeated kindergarten while in a private school. So she was a year older than her classmates.

The court also noted that “All of her teachers testified that G.S. performed at grade level.”

It’s very likely that Dr. Schmidt had a more impressive resume than the classroom teachers. That didn’t matter. What mattered was the time spent with the student in the classroom and the direct knowledge of the student’s performance in the school.

It’s G.S. v. West Chester Area School District, decided by the 3rd Circuit on June 22, 2022. It’s in Special Educator at 81 IDELR 63.

DAWG BONE: IF IT’S ABOUT PERFORMANCE IN SCHOOL, THE TEACHERS ARE THE LEADING EXPERTS.

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

Tomorrow: AG Opinions….

Angelica Rascon alleged that Perryton ISD retaliated against her by taking “adverse employment” actions to punish her for engaging in “protected activity.” A plaintiff in a case like that has to prove three things: first, that I engaged in “protected activity.” Second, that I suffered an “adverse employment action” and third, that there is a causal connection between the two. In other words, I spoke truth to power and “the man” punished me for it.

The court tossed the case out based on PISD’s Motion for Summary Judgment. The bulk of the court’s opinion addresses what is and what is not an “adverse employment action.” Citing earlier cases the court noted that the term refers to “discharges, demotions, refusals to hire, refusal to promote and reprimands.” On the other hand, it does not include “trivial harms such as ‘petty slights, minor annoyances and simple lack of good manners.’”

Ms. Rascon cited seven specific things that she believed constituted “adverse” employment actions, but the court disagreed on all seven. The closest she came to success was on the claim that the district refused to promote her to assistant principal. She was recommended for the position and did not get it. But the district had a pretty good explanation for that. First, she failed the principal certification exam five times. That made her ineligible to take it again, and thus, not qualified for an A.P. position. Second, the district decided not to fill the position with anyone due to budget constraints. Third, the district did promote her—just not to A.P. Key Quote:

Defendants did not refuse to promote Plaintiff to assistant principal; they could not promote Plaintiff to assistant principal. Moreover, Plaintiff’s claim of adverse retaliatory action is weakened by the fact that Defendants promoted Plaintiff to district behavior support services coordinator.

The court spent less time dealing with the other six instances of alleged “adverse” action, concluding that none of them met the standard. For example:

…changes in employment duties are not “adverse employment actions.”

If placing an employee on a performance improvement plan is not an “ultimate employment decision” constituting an “adverse employment action,” then discussing job-related complaints with Plaintiff is not either.

It’s Rascon v. Perryton ISD, decided by the Court of Appeals for Amarillo on August 19, 2022. It’s cited at 2022 WL 3578257.

DAWG BONE: WE ALL HAVE COMPLAINTS ABOUT WORK. NOT ALL OF THEM INVOLVE “ADVERSE EMPLOYMENT ACTIONS.”

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

Tomorrow: the power of teacher testimony

Every time I do a Toolbox training, someone asks about how Section 504 fits in. Do the same rules apply? Mostly they do. There are a few distinctions between the IDEA regulations on discipline and the standards for students served under Section 504, but for the most part, the same timelines, standards and requirements apply.

This is reinforced by the Q and A issued by the Department of Education’s Office for Civil Rights on July 19th. Special education directors and 504 coordinators should study this document. When they do they will see how parallel the requirements are for IDEA and 504.

However, this Q and A clarified one confusing section of the 504 regulations. Section 34 CFR 104.35(a) requires “an evaluation” of the student prior to any “significant change in placement.” When I see the word “evaluation” my first thought is “call the diagnostician.” An evaluation usually involves some testing or observation by a qualified professional. Is the school required to do that prior to moving a student to a different placement?

Let’s think about that in the context of student discipline. Suppose the student has committed an offense that would normally call for removal to the DAEP. That’s a change of placement. If the student is served through a 504 plan, we know that we need to convene a 504 Team meeting to make a manifestation determination review (MDR). But do we also need to conduct a new evaluation of some sort?

No. You just need to do a manifestation determination. Here’s the part of the Q and A that clarifies this point:

In the context of a significant change of placement due to a proposed disciplinary removal, the purpose of the evaluation (referred to in this guidance as a manifestation determination) is to decide whether the behavior for which discipline is proposed is based on the student’s disability, and, if so whether changes in the student’s placement are required to ensure the student receives FAPE. (Emphasis added).

In other words, the MDR is the evaluation. Formal testing is not required.

DAWG BONE: NEW Q AND A WORTH STUDYING, 504 COORDINATORS!

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

Tomorrow: A case from the Panhandle

On April 29^th the Daily Dawg reported on the case from ESC Region 2 in which a couple of people sued over injuries they sustained at a conference sponsored by the ESC. In that decision, the Court of Appeals held that Region 2 was entitled to immunity from a claim of personal injury.  Case dismissed.

But there was more to it than that.  This event was not held at Region 2’s beautiful headquarters in Corpus Christi. It was at the Nueces County Regional Fairgrounds where the conference facility was managed by Global Spectrum.  The injured parties sued Global Spectrum and Global Spectrum turned right around and sued Region 2 based on an alleged breach of contract. The suit claimed that Region 2 had promised to indemnify Global in the event of any claim against it.  

Notice: the case reported in April was about a tort. This one is about a breach of contract.  Is the ESC immune from that claim also? 

The court held that it was.  The status of an Education Service Center was a critical factor in this case. Is it more like a local ISD? Or is it more like a state agency?  The answer to that question would determine which kind of immunity the ESC has. 

The court relied on a 5^th Circuit decision from 2002 (Perez v. Region 20 Education  Service Center, 307 F.3d 318) to conclude that our twenty  ESCs are “arms of the state.” Thus in a lawsuit, they would have the same immunity that T.E.A. has.  Key Quote:

…the court found that ESCs are “more closely aligned with state, rather than with local, government” under the Texas Education Code;  ESCs primarily rely on state funding, and, unlike local school districts, they do not possess any taxing or bonding authority to raise funds; ESCs “are subject to significant supervision by the state Commissioner of Education” while local school districts enjoy “significant” autonomy.”

Actually, ESCs don’t get most of their funding from the state.  They get most of it from the services they provide to local districts.  And I’m sure that many school board members would raise an eyebrow at the notion that local districts “enjoy significant autonomy.” 

Nevertheless, the bottom line is that the court followed previous rulings in holding that our ESCs are arms of the state and when it comes to litigation  they enjoy the same immunities as T.E.A.

It’s Education Service Center Region 2 v. Global Spectrum, LP, decided by the Court of Appeals in Corpus  Christi-Edinburg on June 30, 2022.  It’s cited at 2022 WL 2348059. 

DAWG BONE: ESCs ARE MORE LIKE T.E.A. THAN ISDs.

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

Tomorrow: Toolbox Tuesday!! What about 504?

Loyal Readers of the Daily Dawg are aware that lawsuits involving “John and/or Jane Doe” are usually about sexual matters. Such is the case of KIPP Texas, Inc. v. Doe. Parents of “several young girls” alleged that a school counselor employed by KIPP sexually abused their daughters. The court opinion tells us that the counselor “has since pleaded guilty to sex crimes.” Is the charter school liable for what its employee did?

No. The court granted a “Plea to the Jurisdiction” which means that the court tossed this case out without hearing any evidence of what happened. Why would that happen? Because of governmental immunity. The court held that KIPP was entitled to immunity from suit, meaning that the court did not even have jurisdiction over this matter.

Is this some sort of special deal enjoyed by charter schools? No. The court pointed out charter schools are part of the public education system, and as far as liability and immunity, they are to be treated the same as a traditional public school district. Therefore:

In this suit [the parents] allege claims for assault and negligence based on the sexual abuse of their children by a school counselor employed by KIPP at an open-enrollment charter school. A public school district would be immune from these claims…..Hence, KIPP is likewise immune from the [parents’] claims.

The court included a comment that I’ve never before seen in a judicial ruling about sovereign and governmental immunity. Specifically, the unfairness of it all:

Moreover, unfairness is part and parcel of sovereign and governmental immunity, in that the application of these doctrines often precludes the redress of undeniable wrongs.

Unfair or not, it’s the law. The court noted that “our Supreme Court has held that open-enrollment charter schools are entitled to governmental immunity. And we must apply the Court’s decisions faithfully.”

It’s KIPP Texas, Inc. v. Doe, decided by the Court of Appeals for the 1st District (Houston) on June 30, 2022. The case is cited at 2022 WL 2347906.

DAWG BONE: THE STATE HAS SOVEREIGN IMMUNITY. THE SCHOOL DISTRICTS AND CHARTERS HAVE GOVERNMENTAL IMMUNITY. DIFFERENT NAMES, SAME RESULT.

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