Let me introduce you to D.S., the subject of litigation involving bullying, sex discrimination and other issues in the New York City school district.  Here’s how the federal court describes the 15-year-old.  He spent his early years in Colorado where he was abused and neglected and witnessed domestic violence involving his parents, both of whom were alcoholics and drug addicts. At age 7, D.S. was removed from his home and placed in the foster care system. Over the next four years, he spent time in seven different foster homes. At age 10, he developed a malignant brain tumor which prompted his foster parent to abandon him at a hospital where the boy had surgery. The tumor was successfully removed but follow up care was needed to prevent seizures.  He was diagnosed with post-traumatic stress disorder, generalized anxiety disorder, epilepsy and various learning disabilities.  Do you think maybe the kid’s going to have some issues?

At age 11, he entered the care of Jason Ciancotto and his husband, who later formally adopted the boy. The family now lives in Queens, New York.

The lawsuit alleged, among other things, that the district was deliberately indifferent to a two-year campaign of bullying and harassment of D.S. by other students. One of the allegations in the lawsuit was that the Dean of the 6^th grade blamed D.S. for the bullying he was experiencing.  The Dean told the boy’s parents that it was “inappropriate for D.S. to talk about his sexual orientation at school,” and that “if D.S. did not insist on speaking so openly about his sexual orientation, he would not be subjected to such constant bullying.” 

Let’s hold off on being judgmental about that comment.  Let me tell you a little more about D.S.  From the brief description in the court’s opinion it sounds like D.S. was not just gay—he was flamboyantly and proudly gay.  “Shortly after he enrolled, D.S. came out to his teachers and classmates as gay, and spoke openly at school about the fact that he was being adopted by two married gay men.”  The court tells us that D.S. loved the color pink and had a strong interest in drag queens. 

So this is happening in the 6^th grade. Is it surprising that D.S., the new kid with the unstable and troubled past, was “openly mocked, taunted, and harassed”?  The suit does not allege physical bullying of D.S., but rather, the name-calling and trash talk that is so hard to corral in a middle school. Tracking down the facts behind reports of name-calling is like playing Whack-A-Mole.  Can you understand why a frustrated school administrator might suggest that D.S. ought to turn down the volume a bit?   I’ve heard similar comments from numerous school administrators. Comments along the lines of “Yeah, he’s being bullied but he brings a lot of this on to himself.”  I hear a lot of “yes, there is bullying, but he gives as good as he gets.”   

In the cold analytical light of a legal analysis, such comments come across as a shrug of the shoulders, a resignation to the situation. On the other hand, if we were going to develop a BIP for a student to help deal with bullying wouldn’t it be appropriate to ask the student: “Do you think that you are doing anything that contributes to the treatment you are getting from the other kids?” Shouldn’t a good BIP focus on teaching students how to deflect, deter, prevent, or deal with nasty remarks?

This one comment by the 6^th  Grade Dean, if taken alone, would probably not have been sufficient to convince the court that the district may have been “deliberately indifferent.”  It was just one piece of evidence. But there was a lot more, which is why the court refused to dismiss the case.

I guess the main point for today is to be thoughtful and careful in how you address behaviors that are likely to elicit retaliation from other students. Communicate first the intention of the district to protect the student from bullying. Then explore ways in which school staff and the student can work together to create a safer environment.

The case is Ciancotto v. NYC DOE, decided by the federal court for the Southern District of New York on April 22, 2022. It’s published in Special Educator at 80 IDELR 270.

DAWG BONE: DON’T BLAME THE VICTIM, BUT WORK WITH THE VICTIM TO DEVELOP RESILIENCE.

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

Tomorrow: the student went backwards, but FAPE was provided. Huh?

Our law firm’s Toolbox Training focuses on service to students whose behaviors may be hard to deal with.  When we think of behaviors that are hard to deal with, we would have to include bullying….dontcha think?  So why would a school refuse to discuss how bullying is affecting a student with a disability at the meeting that is held for the purpose of designing an appropriate plan for the student’s education?

I don’t know.  There are things that come up at an ARD meeting that are not the province of the ARD Committee. But I don’t see how bullying is one of them. If the parent tells the ARD Committee that the student is having trouble at school because of bullying, let’s talk about it.  Failure to do that might put your district in the position of the New York City school district in the case of Ciancotto v. NYC DOE. 

The suit alleges two years’ of pervasive bullying of a student based on his sexual orientation.  The suit also alleges that the district failed to address these concerns in any meaningful way, and specifically declined to address the issue in the student’s IEPs.

The parent first sought legal recourse through a special education due process hearing at which the district completely capitulated, admitting its failure to provide FAPE.  The parent then sued in federal court alleging that the district violated Title IX and Section 504.  The district’s Motion to Dismiss was rejected as the court noted that the allegations in the complaint were more than adequate to allege a plausible claim.

Later this week I will address Title IX and other issues prompted by this case, but today, let’s just think about that IEP Team meeting.  According to the lawsuit, two school officials informed the parent that bullying was not the type of thing to be addressed in an IEP. Why not? We are charged with considering the child’s situation holistically, reviewing all of the circumstances.  Can bullying have an adverse impact on a child’s education? Of course.  Isn’t the annual ARD meeting the time to address all of the issues?  Yes. So let’s be sure that all concerns raised by parents or teachers are addressed.  If the student is the target of bullying, and this is adversely affecting the student’s progress, let’s come up with specific plans to address the concern. Those plans might involve a BIP, teaching the student how to deal with ugly name-calling and other types of rudeness. It might involve placement considerations—where will this student be served? It might involve a safety plan. But above all, let’s not say “that’s not something we deal with in an ARD meeting.”

The case is Ciancotto v. NYC DOE, decided by the federal court for the Southern District of New York on April 22, 2022. It’s published in Special Educator at 80 IDELR 270.

DAWG BONE:  BULLYING MATTERS. 

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

Tomorrow: “if you just were not so openly gay….”

LOYAL DAILY DAWG READERS: WE’RE ZOOMING THIS THURSDAY AT 10:00 A.M.  HOPE YOU CAN JOIN ME AND MY SPECIAL GUEST, HALEY TURNER.  HALEY IS JOINING ME ON THE ANNUAL “BACK TO SCHOOL” TOUR THIS YEAR.  WE’LL GIVE YOU A PREVIEW OF WHAT TO EXPECT.

Mr. Romero, a teacher/coach, admitted to some inappropriate behavior.  Late at night, while intoxicated, he sent some “non-work related electronic communications to female students.” The court’s opinion tells us that some of these communications were “sexually suggestive.” He also “invited two female students to his home to drink alcohol.”

The district accepted the man’s resignation which would be effective as of the end of the 2018-19 school year.  But since the resignation was submitted on March 1, there was still a good chunk of the school year to go.  The contract ran to the end of the year.  The district did not want to pay Mr. Romero for the remainder of the year, and so it suspended him “without pay.”

It’s that “without pay” part that became a legal issue.  After receiving notice of this action, Mr. Romero requested a hearing as per Chapter 21 of the Texas Education Code. Teachers are entitled to a hearing when the school proposes to terminate a term contract. They are also entitled to a hearing when the school proposes to “suspend without pay.” Notice that the district suspended Mr. Romero prior to any hearing. 

The Court of Appeals for the First District of Texas ruled in favor of Mr. Romero.  Citing prior rulings the court said:

We agree with the Commissioner’s position that, once a teacher has requested a hearing, the provisions of subchapter F, including the holding of an IME [we’re pretty sure the court means IHE, Independent Hearing Examiner] hearing, must be complied with before the District can suspend the teacher’s pay.

This puts school boards in an awkward position sometimes. Consider this situation, where the teacher has admitted to conduct that clearly amounts to “good cause” sufficient to justify termination of employment.  Consider the fact that it could have been worse. What if the students had joined the educator for a few drinks? What if the facts showed not just “sexually suggestive” comments, but sexual misconduct?  Regardless of any of that, this case holds that districts cannot cut off the teacher’s pay until a formal hearing has been conducted. That takes time.

But that’s the ruling of a Court of Appeals. It’s Sheldon ISD v. Romero, decided by the Texas Court of Appeals for the First District on July 14, 2022.  It can be found at 2022 WL 2720462.

DAWG BONE: WANT TO SUSPEND WITHOUT PAY?  CALL YOUR LAWYER!

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

Tomorrow: Toolbox Tuesday tackles bullying…

If the boys had been at the Friday night football game, maybe none of this would have happened. But they were not there. They were goofing off at a thrift store, taking pictures of themselves as they tried on costumes.  One picture showed the boys wearing hats that “resembled a foreign military hat from the WWII period.”  A student identified as C.G., soon to be known as “the Plaintiff,” posted this picture on his private story line on Snapchat with this caption:  “Me and the boys bout to exterminate the Jews.”

The public school expelled C.G. for this. The student sued the district, alleging that his free speech rights had been violated.  The federal district court did not see it that way. It upheld the district’s decision.  But then the U.S. Supreme Court decided the case of B.L. v. Mahanoy Area School District, known here on the Daily Dawg as The Case of the Foul Mouthed Cheerleader.  That case laid out some new guidelines for school officials when dealing with off-campus speech.  C.G. appealed his case to the 10^th Circuit, relying heavily on The Case of the Foul Mouthed Cheerleader.  And he won.

The result is no surprise, especially in light of the Mahanoy case.  Here are four things worth noting about this case.

1.  It wasn’t a “true threat.”  True threats are not constitutionally protected, but the court held that this sophomoric attempt at humor was not a true threat. The court noted that language amounts to a “true threat” only if is a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.  The age of the students, and the context of the picture lacked that level of seriousness.  Moreover, the court pointed out that the student was allowed to return to school the following Monday.  So it didn’t look like the school took it as a genuine threat.
2. Like Brandi, the Foul Mouthed Cheerleader, C.G. did this off campus on a weekend, using his own device and sending the Snap only to his friends.  He didn’t aim it at the school or at any individual in the school.
3. The school cannot claim to be acting “in loco parentis” in these circumstances. The court noted that “That doctrine applies ‘where the children’s parents cannot protect, guide, and discipline them.’” 
4. There just wasn’t enough evidence of a “substantial disruption.” The Snapchat post was widely circulated and covered by local media.  The principal testified that the educational environment had been “impacted.”  Maybe so, but the court pointed out that “impact” is not the same as “disruption.” Key Quote:

We cannot consider CCHS’s choice to discuss C.G.’s post during an advisory period (a schedule block twice a week implemented specifically for dealing with such matters) substantial disruption.  Neither can news reports nor four emails from parents be evidence of substantial disruption.  These facts fall short of “Tinker’s demanding standard.”

C.G. quickly regretted his Snapchat post.  Within hours of its posting he deleted it and apologized for it.  He said it was intended as a joke. After that, C.G. wrote a letter to the school accepting full responsibility for the post.  In the letter he noted that he had learned from the experience. He said that he had spent time learning about Jewish history and talked with Jewish members of the community.  

It’s important to note, however, that none of this factored into the court’s decision.  For the court, it was a simple matter of applying the standards we got from the Supreme Court in the Mahanoy case.  Of course there were people who were angry and even some who were frightened.  The Holocaust was not that long ago.  It’s understandable that in the eyes of Jewish people it would not be so easy to dismiss this as a stupid lapse in judgment by an ignorant adolescent.

The student’s remorse was not weighed as a factor by the court, but it should have been a factor for the school.  Discussing this at the advisory period was exactly the right thing to do. This incident presented a golden opportunity for a teachable moment.  How many of our students are as ignorant and insensitive about anti-Semitism as C.G. was? How many would think that a comment about exterminating Jewish people was just a joke?  We’ve all seen a nationwide rise in overt and blatant anti-Semitism.  This is why we have a Holocaust Remembrance Week built into the school calendar each year. Let’s take that seriously.

It’s C1.G v. Siegfried, decided by the 10^th Circuit on July 6, 2022. It’s published at 2022 WL 2447526. 

DAWG BONE: HOLOCAUST REMEMBRANCE WEEK WILL BE JANUARY 23 TO 27, 2023.

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

The same parties generated three separate Circuit Court decisions in California. Today we tell you about the third and final installment of N.F. v. Antioch USD.  It’s another very short and “unpublished” decision from the 9^th Circuit that makes one relevant point.  Yesterday’s Daily Dawg dealt with the legal status of the student when he was enrolled in a charter school.  Today’s decision addresses things that occurred when the student was still attending the traditional public school.

There were conflicting evaluations about whether the student met eligibility criteria as a student on the autism spectrum. The school’s evaluation concluded that the student did not qualify. The parents obtained an independent report concluding that he did.  The parents then asserted in the lawsuit that their independent report should have prompted the public school to conduct a fresh evaluation of the student. The Circuit Court ruled in favor of the school on this one, largely based on this timeline:

*January 2017: the parents obtain an independent report that concluded that the student met the criteria for being on the autism spectrum.

*October 2017: this is when the parents first informed the school of the independent report. Notice that this is nine months after the parents obtained the report. They shared it with the district at an IEP Team meeting.  The parents informed the school of the report but did not ask for a new evaluation.  The Team, including the parents, agreed to review the student’s BIP at the annual IEP Team meeting that was scheduled for November.

*November 2017: the school attempted to convene the Team but the parents were not available.

*December 2017:  the parents “declined to conduct an IEP review” at the IEP Team meeting.  Then there was a disciplinary incident, leading to the district seeking an expedited hearing to justify a change in placement in January, 2018. 

*February, 2018: the parents pulled the child out of the traditional school and enrolled him in the charter school.

Given those facts, the court held that there was no “actionable violation” of IDEA here. Without expressly saying so, the court seems to be telling us that if the parents wanted a new evaluation they should have said so more directly, or more promptly. The nine-month gap between when they obtained the private evaluation and when they shared it with the school seemed to be important.

Schools are required to consider independent reports that are relevant to the child’s educational needs, but obviously, parents have to share the report with the school. 

N.F. v. Antioch USD decided by the 9^th Circuit on May 2, 2022. It’s published in Special Educator at 81 IDELR 6.

DAWG BONE:  EVALUATIONS MUST BE SHARED BEFORE THEY CAN BE RELIED UPON.

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

Tomorrow: another off campus speech case….

It’s rare to see a case involving the same parties result in three separate Circuit Court rulings, but that’s what’s happened in Antioch USD in California.  Each of the decisions is short and makes one relevant point. Thus they are perfect fodder for the Daily Dawg! So yesterday I told you about the Circuit Court decision that had “Toolbox” implications. Today and tomorrow we will dive into the other decisions involving the same parties.  

What, exactly, are charter schools?  Are they public schools? Are they private schools?  Issues like that are decided by state law, but this case seems relevant for us because California, like Texas, considers charter schools to be public schools. That means that when a child is enrolled in a charter school, it’s the charter school that takes on the duty to provide FAPE. 

If parents enroll their child in a private school, the local traditional school district retains the duty to “find” the child.  The public school is not responsible for providing FAPE until the child enrolls in the public school, but parents have the right to see what FAPE would look like in the public school. Thus upon request, the school is required to develop an IEP for the parents to consider.

But that didn’t help these parents when they sued the traditional public school district for an alleged denial of FAPE.  The problem for the parents was that they had enrolled their child in a charter school. The court cited the federal regulation that requires a traditional school district to “locate, identify and evaluate” children who attend a private school that is located in the geographical boundaries of the school district, and then noted that:

These regulations have no application here because it is undisputed that N.F. was enrolled in a public charter school, not a private institution.

Texas law is equally clear on this point. Charter schools are part of the public education system. Thus a child enrolled in the charter should be receiving FAPE from the charter, and should not look to the traditional school to provide FAPE. 

It’s N.F. v. Antioch USD, decided by the 9^th Circuit on April 15, 2022. It’s published in Special Educator at 80 IDELR 267.

DAWG BONE: CHARTER SCHOOLS ARE EXEMPT FROM MANY STATE LAWS, BUT NONE OF THE FEDERAL LAWS.

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

Tomorrow: one more from Antioch…

The Circuit Court’s decision in the case from California gives us little information about exactly what happened when the relevant parties got together to make a manifestation determination.  In the litigation, the parents alleged that they were not given proper notice of the meeting. 

Is that true? We don’t know. The court held that it didn’t matter. 

Why would the court say that? Isn’t it pretty important to let parents know when the MDR will take place?  Yes. It’s very important. 

But in this case the court held that any error committed by the district fell into the “harmless” category. That’s because:

At the January 18 MDR, AUSD concluded that N.F.’s behaviors were a manifestation of N.F.’s disability. This conclusion meant that no disciplinary action would be taken against N.F.  N.F.’s educational placement was not changed as a result of the MDR. Because the MDR did not affect either the educational opportunities or placement of N.F., it did not deprive him of a FAPE.

In Texas, Parents are entitled to five school days’ notice of the meeting when an MDR will be conducted. The school is also required to provide the parent with a new copy of the Procedural Safeguards document so that the parents can be well prepared for the meeting.  Meeting those procedural requirements is important. But as this case illustrates, procedural safeguards are there to protect substantive rights. If those substantive rights (FAPE, and meaningful parent participation) are not infringed, then the procedural error will be deemed harmless.

In our firm’s Toolbox Training we encourage you not to rely on that “no harm, no foul” standard. The better practice is to comply with all procedural requirements. 

It’s N.F. v. Antioch USD, decided by the 9^th Circuit on May 2, 2022. It’s published in Special Educator at 81 IDELR 7.

DAWG BONE: MAKE SURE THE PARENTS HAVE THE OPPORTUNITY TO PREPARE FOR THE MDR.

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

Tomorrow: another decision from Antioch….

It’s the first day of school for my grandkids as it is, I suspect, for most of the children in the Texas public school system. So here we go again!

Are you ready?  I hope so, but the fact is that your readiness or lack thereof will not factor into what is about to happen. Ready or not, it’s going to happen!  So take a deep breath, express gratitude for the opportunity to serve our children, and show up. 

On the First Day of School I always envision that first year teacher, facing a class full of students for the first time. That new assistant principal, dealing with discipline issues and family drama as an administrator.  That new superintendent. That new school lawyer. And, of course, that veteran who has agreed to stay on for one more lap around the track.

At Walsh Gallegos we are committed to helping the people who help the kids. We do so with enthusiasm and gratitude for the opportunity to work alongside great people, and to help preserve our public school system.  Let’s do this.

DAWG BONE: GOOD WISHES FOR ALL AS WE LAUNCH 2022-23!

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

Tomorrow:  the 9^th Circuit offers a Toolbox lesson…

I recommend the new Elvis movie. I don’t know how true to the facts it is, but it’s very entertaining. And isn’t that what the movies are about? 

Seeing the movie inspired me to learn more about the King of Rock ‘n Roll.  I want to pass along two things I’ve learned about Elvis’s experience in public school.  First, his debut public performance was at a high school talent show in Memphis where he sang “Old Shep,” a miserably sad ballad about the day the dog died.  He won the talent show and later remarked that it was amazing how popular he suddenly became after that. 

The second thing is something I learned many years ago when I toured the Rock n Roll Hall of Fame in Cleveland. It just so happens that they had a special exhibit on display about Elvis.  The display included the handwritten notes from his high school guidance counselor.  Her notes described him as a polite young man who hoped to get a job dealing with a lathe or some other heavy machinery.  She only had one concern about Elvis, expressed in the final line of her notes: “Dresses a little flashy.”

DAWG BONE: “A LITTLE FLASHY?! LADY—YOU AIN’T SEEN NOTHIN YET.

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

In a case from Virginia, the parent sought three years of private school tuition.  The student had been attending the Lab School which focused exclusively on students with learning disabilities. I am guessing the Lab School is a very good school, but in the litigation the parent learned the hard lesson—being a really good school is not enough to justify tuition reimbursement from the public school. 

The court denied the request for tuition reimbursement because the public school offered FAPE in a less restrictive environment, and thus, the parent was not entitled to reimbursement.  The court noted that the student did receive benefit from the private school, but that alone did not entitle the parent to reimbursement.

The IDEA requires that students be offered as much mainstream education as possible. Accordingly, as long as [the public school] offered [the student] a FAPE for the school years at issue, the Lab School cannot qualify as the “least restrictive environment” mandated by the IDEA because it does not provide [the student] access to her neurotypical peers.

This case is typical. It’s very difficult for a parent to justify reimbursement for a private school, no matter how good the school is, when the school serves only students with disabilities.

It’s A.P. v. School Board of Fairfax County, 80 IDELR 277 (E.D. Va. 2022).

DAWG BONE: LRE MATTERS.

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

Tomorrow: change of pace…