It was 18 years ago when the 6^th Circuit took a bad set of facts and created the theory of “predetermination” as a valid claim under IDEA.  The case was Deal v. Hamilton County BOE and parent lawyers have been citing it ever since. They are rarely successful with those claims. Today I’ll tell you about two recent decisions that are typical.  

The first is from Virginia.  It’s clear from the court’s opinion that the parent was very involved in the IEP process. The team made changes to the IEP based on parental input.  But the school held a staffing prior to the IEP Team meeting, and the lawyer representing the parent hauled out the Deal case and claimed this was the same thing. 

Nope.  Key Quote:

…the hearing officer correctly found that it is “standard procedure for school staff to meet prior to IEP meetings and prepare a draft IEP for discussion.”

The second case is from Tennessee.  Again, the parent alleged that the IEP was “predetermined.” Much of the dispute between the parties was about the specific reading program to be used. The parent preferred Wilson and the school preferred “Language!” 

The court held that the IEP was not predetermined and the parent had a meaningful opportunity to participate in the process.  The court noted that the parent actively participated in the meeting along with an advocate from Ignite Dyslexia, asked questions, and influenced changes in the IEP.  There was no predetermination:

The case law tends to demonstrate that predetermination is a high bar. If courts were quick to hold that a school’s actions are predetermination, it could encourage schools to come to IEP meetings with no plan at all, creating an incentive for inadequate preparation.

Both of these cases are from district courts which cannot overrule a Circuit Court case like the Deal case. But these cases, like many others, have isolated the “predetermination” theory to the facts of that case.  Educators need to always be prepared for accusations of “predetermination” but if they provide proper notice to parents, accommodate their needs at the meeting, listen respectfully and take parental input seriously, there should be no problem.  In other words, if you treat parents the way the law expects you to treat parents, you will be fine.  These are not the first cases to make the distinction between “predetermination” and “preparation.”  Having a staffing to gather information and compare notes is not “predetermination.”

The Virginia case is A.P. v. School Board of Fairfax County, 80 IDELR 277 (E.D. Va. 2022). The Tennessee case is C.M. v. Rutherford County Schools, 80 IDELR 239 (M.D. Tenn. 2022).

DAWG BONE: DON’T BE INTIMIDATED BY CLAIMS OF “PREDETERMINATION.”

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

Tomorrow: why the parent did not get the tuition reimbursed…

Teachers and aides who work with students with disabilities are often subject to physical contact with students that other educators don’t have to deal with. It comes with the territory.  But sometimes a teacher or paraprofessional will claim that the contact amounts to sexual harassment.  That’s what happened in Webster v. Chesterfield County School Board, recently decided by the 4^th Circuit. 

Ms. Webster was assigned to work with an eight-year old boy diagnosed with ADHD and Down’s  Syndrome.  Ms. Webster alleged that the boy sexually harassed her on an “almost daily basis” for months.  He put his hands up her dress, and touched private parts of her body.  He grabbed her by the crotch or buttocks. That kind of thing.  The suit does not allege any physical injuries, but claims that she was required to work in a hostile environment. She sued the district for not being adequately attentive to this. 

She lost.  The court based its decision on the testimony of two expert witnesses. The experts testified that whatever inappropriate behavior occurred, it was not motivated by Ms. Webster’s sex.  Nor was it bad enough to create a hostile environment. Both of these assertions by the experts were specifically based on the fact that Ms. Webster was a special education paraprofessional, assigned to a student with significant disabilities. Here are two key excerpts from the expert testimony:

Any special education Instructional Assistant (IA) should have known, and should have expected, that [the student] might grab various parts of a person’s body (including “sexual” areas), or lift shirts solely in order to get attention, as a distraction, or to get someone to “back off.”  This is part of the understanding of the special education profession and is not specific to any one school district.

It is not reasonable for a special education IA to conclude that a young child with Down’s Syndrome and ADHD, who responds negatively to instructions or commands by grabbing and squeezing body parts, is engaged in sexually harassing behavior. The student is merely trying to escape the instruction or command….this is what any objectively reasonable special education IA would conclude based on [the student’s] behavior and his disabilities.  His behavior had nothing to do with Ms. Webster’s gender. 

This case is a perfect illustration of the entire basis for the Toolbox. Educators face a dilemma. Here’s how the court describes it:

This appeal…brings to light the difficult balance that schools must find between ensuring that all students have access to a public school education while simultaneously maintaining a non-hostile environment for all employees—the impact of which is felt by special educators serving at the intersection of these two rights.

It’s Webster v. Chesterfield County School Board, decided by the 4^th Circuit on June 28, 2022.

DAWG BONE: GOTTA DO TWO THINGS AT THE SAME TIME AND IT WON’T BE EASY. THAT’S WHY YOU NEED A TOOLBOX.

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

Tomorrow: the aging “predetermination” theory….

There is a case percolating along in Illinois that I sorta hate to tell you about.  It’s painful to report on cases involving physical and verbal abuse of a seven-year old child in a public school.  But we can’t afford to close our eyes to the reality—bad things sometimes happen in our public schools. 

The parent ended up suing the district, the superintendent, the principal, assistant principal, the teacher and two teacher aides.  The court was ruling on a Motion to Dismiss. This means the court must assume the truth of the allegations in the suit to determine if the suit alleges a plausible claim.  With that standard, the court refused to dismiss claims against the teacher for an unconstitutional seizure of the student, and claims against the principal, superintendent and members of the school board for substantive due process violations. Based on the pleadings, the court held that no one was entitled to qualified immunity.  The following paragraph sums it up:

Taking together the alleged de facto isolation room policies and [the school district’s] failure to train its staff, Plaintiff sufficiently states a Monell claim.  Plaintiff alleges that [district] administrators with final policy-making authority created policies of overusing isolation rooms, frequently as a form of punishment. And [the district] failed to adequately train its staff, teachers and paraprofessionals in how to diffuse situations when students become disruptive or upset, or when and how to use physical contact with students. Pursuant to this alleged policy, Gages Lake made abundant use of isolation rooms 1,700 instances in the 2018-19 school year with a quarter of those punitive. And, in only a one-month period, these allegedly undertrained staff abused at least eight students in the isolation rooms, including N.M..  For purposes of a motion to dismiss, this suffices to show a “pattern of similar constitutional violations” and a “risk so obvious that it compels municipal action.”

The allegations of abuse are horrific and are supported by video footage, which revealed how untruthful the school was being about this.  The reference to a “Monell” claim means that the school district faces liability because it was its policies and customs that led to the injuries of the student.  One para involved in this is facing numerous criminal charges. The other committed suicide. The plaintiff still has a heavy burden of proof to meet, but has survived this effort by the school and the individual defendants to dismiss the case.

What to learn from this mess?  We learn why we have surveillance cameras in some classrooms. We learn that there are people employed by public school districts who shouldn’t be.  We learn that courts will trust video footage that contradicts what educators say.  We are reminded of how important it is to pay attention to what is happening with the most vulnerable students.  We learn to be attentive to the safety of all students.

It’s Medina v. Izquierdo, decided by the federal court for the Northern District of Illinois. The case is published in Special Educator at 80 IDELR 254.

DAWG BONE:  KEEP AN EYE ON THE MOST VULNERABLE STUDENTS. LET’S KEEP THEM SAFE.

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

Tomorrow:  Toolbox Tuesday!!

This week we’ve been examining Circuit Court cases that address parental rights that clash with school policy or curriculum decisions.  Today’s case is particularly relevant to the debates swirling around our schools in 2022. 

What Happened?  Jacob’s parents were deeply disturbed and offended when they read the picture book he brought home from kindergarten in his “Diversity Book Bag.”  The book, Who’s In a  Family?, depicted single-parent families, an extended family, interracial families, animal families, a family without children and a family with two dads and one with two moms. The book never mentioned marriage and ended with this  Q and A: “Who’s in a family?  The people who love you the most!”

Joey was a second grader whose parents were upset about King and King, a book that the teacher read to the students.  It was about a prince whose mother wanted him to get married.  The prince rejected several princesses and then…you guessed it…fell in love with another prince.  The book depicts the wedding of the two princes and their kiss.  It’s relevant to point out that this happened in 2006.  Same sex marriage was not approved nationwide until 2015, but it was already legal in Massachusetts where this case took place.

Both sets of parents held the view that homosexuality was a violation of God’s laws. No one doubted their sincerity or the strength of their beliefs. They felt that the public school was undermining the values and beliefs they were trying to instill in their children. They believed that the school was not only pushing a pro-gay agenda, but also instilling the belief that people who held opposing views were hateful and bigoted.

Sound like something you might hear in your district?   I thought so.

The parents were not seeking to ban these books or prescribe the curriculum. Their request was more limited and reasonable. They just wanted to be given notice and an opportunity to have their children opted out of reading such books. The school refused to do that.

What Did the Court Do?  The court ruled against the parents, concluding that they had not established any constitutional violations. It’s a long and scholarly opinion.  To emphasize the point I want to make in today’s Daily Dawg I’m just going to quote a concluding paragraph:

We do not suggest that the school’s choice of books for young students has not deeply offended the plaintiffs’ sincerely held religious beliefs.  If the school system has been insufficiently sensitive to such religious beliefs, the plaintiffs may seek recourse to the normal political processes for change in the town and state. They are not entitled to a federal judicial remedy under the U.S. Constitution.

I take that to read: “We’re not going to help you. Why don’t you run for the school board?”

What Can We Learn?  Parents like the plaintiffs in this Massachusetts case have done exactly what this court suggested. They have sought recourse via the normal political processes, and they have been very effective.  This is why we see Governor Abbott touting his support for parental rights in his campaign for reelection.  This is why Florida has passed a law restricting the discussion of certain sensitive issues in the early grades.  This is why we see people being elected to school boards who want to scrub the library of any offensive materials.

This week the Daily Dawg has cited four Circuit Court cases about parental rights, all of which were decided in favor of the school and against the parents.  Importantly, all of those decisions are based on the U.S. Constitution.  The Constitution affords parents certain rights with regard to their children’s education, but those rights are decidedly limited.   Statutes, however, can be and are much more expansive.  This is particularly true in Texas where Chapter 26 of the Education Code enumerates many parental rights designed to ensure transparency and partnership. If parent advocates want to make Big Points, they will continue to pursue constitutional claims, hoping that our conservative judiciary will see things differently. But if they just want to affect change, they will focus less on the constitution and more on the Texas Education Code. 

Today’s case is Parker v. Hurley, decided by the 1^st Circuit on December 31, 2008. It’s cited at 514 F.3d 87. 

DAWG BONE:  WANNA MAKE A POINT? OR DO YOU JUST WANT TO CHANGE THINGS?

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

This week we are looking at Circuit Court decisions that involve a clash between parent rights and the school’s duty to serve all students.  Today’s case deals with parents of a homeschooled child who wanted to attend a few classes at the public school.  

What Happened?  Annie Swanson attended home school until 7^th grade when her parents asked if she could take a few classes in the public middle school. The superintendent agreed to this for the final nine weeks of the school year.  This worked well.  Annie was a good student and there were no problems with serving her as a part-timer. It’s understandable that the parents would expect this arrangement to continue the next year when Annie was in 8^th grade.  But the district hired a new superintendent and he nixed the arrangement.  The matter then went to the school board. The board turned down Annie’s request by adopting a policy that required all students to attend full time.  There were two exceptions: fifth year seniors, and students with an IEP that required a shorter day.  Annie’s parents lawyered up and brought the matter back to the school board. The board stuck to its guns but added an explanation: “In the event the State Department of Education advises us that part-time students can be counted for state aid purposes, the Board will reconsider this policy.” 

What  Did the Court Do?  The Circuit Court held that the school’s policy did not infringe on the parents’ rights to direct their child’s upbringing, or on the free exercise of religion. The court characterized the school policy as neutral and of general applicability. When governmental entities adopt policies that are “neutral and of general applicability” they do not have to show a “compelling interest” to justify the policy, even when it creates something of a burden on the exercise of religion. Annie’s parents home schooled her for religious reasons, and so the inability to attend public school parttime burdened them to a degree. But the court pointed out that the policy “applies to students who are homeschooled for secular reasons as well as those home-schooled for religious reasons, and it applies to students attending private schools whether or not those private schools are religious or secular in nature.”

What Can We Learn?  The board was wise to offer the explanation for its policy.  If board members had expressed hostility toward home schoolers, the court might have taken that into account. Instead the board wisely cited financial reasons for its decision.  If the state would pay for students to attend parttime, the board promised to reconsider the policy.  But as long as the student generated no state revenue, the school would not serve the student. That’s a “neutral and generally applicable” policy that anyone can understand.

This one is Swanson v. Guthrie ISD, decided by the 10^th Circuit on January 29, 1998. It’s cited at 135 F.3d 694.

DAWG BONE:  NO CONSTITUTIONAL RIGHT TO ATTEND SCHOOL PARTTIME WHEN THE STATE PROVIDES NO $$$ FOR YOUR ATTENDANCE.

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

Tomorrow: the 1^st Circuit weighs in…

This week we are looking at Circuit Court decisions involving a clash between the right of parents to direct their child’s upbringing, and the public school’s need to serve a wide diversity of students.  Here is a case from the 7^th Circuit.

What Happened? Parents of students in a K-5 school objected to the Impressions Reading Series which had been used for supplemental reading for several years.  The parents claimed that these books fostered certain religious beliefs, indoctrinating children in beliefs that were “directly opposed to their Christian beliefs by teaching tricks, despair, deceit, parental disrespect and by denigrating Christian symbols and holidays.”  The suit alleged that the parents’ rights to the free exercise of religion were infringed.

What Did the Court Do?  The court held that the use of reading materials did not infringe on the free exercise of religion. The court noted that the reading series:

is used to build and enhance students’ reading skills and develop their senses of imagination and creativity. These skills are fundamental to children of this age, and it is critical that the directors select the best tools available to them to teach these skills. Having done this, they have properly performed the government’s function of providing quality public school education. 

What Can We Learn?  In 1994, you could count on judges to respect the work that public school educators do.  The court cited a concurring opinion in a Supreme Court case from 1948:

If we are to eliminate everything that is objectionable to any [religious group] or inconsistent with any of their doctrines, we will leave public schools in shreds.  Nothing but educational confusion and a discrediting of the public school system can result from subjecting it to constant law suits.  McCollum v. Board of Education, 333 U.S. 203, 235 (1948), Jackson, J., concurring.

Today there are some elected officials and judges who would happily “leave public schools in shreds.”  They need to be reminded of cases like this one, and the others we are reviewing this week. 

It’s Fleischfresser v. Directors of School District 200, decided by the 7^th Circuit on February 2, 1994. It’s cited at 15 F.3d 680. 

DAWG BONE: LET’S NOT LEAVE OUR SCHOOLS IN SHREDS…

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

Tomorrow: the 10^th Circuit on parental rights….

“If the only tool you have is a hammer, you tend to see every problem as a nail.” Did you know that Abraham Maslow is the one who said that? I didn’t, but I’m delighted to upgrade the Daily Dawg with a citation to such a famous person. 

This familiar aphorism came to mind when I studied a federal court case in which the District of Columbia focused on a single tool with a student who was doing poorly in school.  Here’s a brief summary of the student’s experience in school:

*Middle school years: poor performance on state assessments, and in one year, failing six of eight classes.

*Freshman year at Roosevelt High School: four teachers expressed concerns over his poor performance and attendance problems.

*Sophomore year: failing seven of nine classes and unexcused absences 64 times in English, 65 in French. Behavioral problems also.

*Junior year: Failed every class and was absent 99 days. 

What did the school do about this?  It used the hammer of criminal proceedings over the student’s truancy. What did it not do?  It did not make a referral for special education testing. 

The federal court had little problem concluding that this was a Child Find violation:

Despite C.E.’s increasingly poor academic performance, his teachers’ comments about his learning and behavioral struggles, and his abysmal attendance record from 2017-20, neither Roosevelt nor DCPS identified him as a student with even a “suspected” disability worthy of exploration.

In our firm’s Toolbox Training we focus on how to serve those students who are already identified as needing special education. Today, a reminder that the duty to refer is triggered by a “suspicion.”  When you see a student over this long a period of time performing this poorly, it’s a mistake to chalk it all up to truancy without exploring other possibilities. It’s a mistake to use the hammer of truancy when there are more useful tools available. 

This one is Malloy v District of Columbia, decided by the federal court for the District of Columbia on March 30, 2022. It’s published by Special Educator at 80 IDELR 242. 

DAWG BONE: THERE ARE OTHER TOOLS THAN TRUANCY PROCEEDINGS.  USE THEM ALL.

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

Tomorrow: another Circuit Court on parents’ rights….

We are sure to hear a steady drumbeat this school year about “parents’ rights” with regard to education.  It has become a major talking point in political campaigns, and is surfacing in litigation as well. This week the Dawg looks back at four Circuit Court cases that address the issue in ways that are likely to arise again this school year. We’ll start with a decision from the 6^th Circuit in 1987.    

What Happened? A group of parents who described themselves as “born again Christians” sued a Tennessee school district arguing that their children were forced to read books “which teach or inculcate values in violation of their religious beliefs and convictions.”  They asserted that this violated their right to the free exercise of religion and the right to direct the upbringing of their children.

What Did the Court Do?  The court ruled in favor of the school. The children were forced to read things that their parents found objectionable, but they were not required to profess beliefs one way or another.  The court cited a Supreme Court case that emphasized the importance of public schools teaching values, including “tolerance of divergent political and religious views.”  Mrs. Frost, who was one of the plaintiffs, was proudly intolerant:

Mrs. Frost [one of the plaintiffs] said “We cannot be tolerant in that we accept other religious views on an equal basis with ours.”  While probably not an uncommon view of true believers in any religion, this statement graphically illustrates what is lacking in the plaintiffs’ case.

The “tolerance of divergent….religious views” referred to by the Supreme Court is a civil tolerance, not a religious one. It does not require a person to accept any other religion as the equal of the one to which that person adheres.  It merely requires a recognition that in a pluralistic society we must “live and let live.” 

What Can We Learn?  Parents have the right to direct the upbringing of their children, and to teach and inculcate the religious beliefs they want the children to have. That right does not go so far as to shield their children from ideas, belief systems, political and religious views that the parents disapprove of.  There is a big difference between exposing a child to an idea or belief, and inculcating that idea or belief.  Schools expose students to the big wide world in all its diversity. That’s part of the mission.

This one is Mozert v. Hawkins County Board of Education, decided by the 6^th Circuit on August 24, 1987. It can be found at 827 F.2d 1058.

DAWG BONE: NOTICE: PUBLIC SCHOOLS ARE EXPECTED TO TEACH THE VALUE OF TOLERANCE.

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

Tomorrow:  Toolbox Tuesday!!

Educators: have you ever been verbally abused by a student’s parent?  Lawyers—have you been verbally abused by opposing counsel?   If so, you might enjoy reading Footnote 7 in a recent federal court decision in which the court highlights some of the things written by Mr. Luo, the parent of a student with a disability and the plaintiff, representing himself, in multiple, MULTIPLE lawsuits. I think that when you read Footnote 7 you will likely conclude that whatever you have endured, it could have been worse.  Here are some examples:

• “Can [name of judge] cite a law to prove that [said judge] is not an idiot.”
• “The court from time to time demonstrates judicial proceeding is a**h*** parade.”
• “We do not need to trash the court. The court trashes itself.”
• “If the matter is made known to the other attorneys or the public, people may die laughing at those stupid law clerks and judges.”
• “[Name of attorney] is human trash, just lying all he can lie. Let us laugh at this stupid and shameless attorney.”
• “It is a great honor that Plaintiff has presented the question to the Third Circuit multiple times, ‘whether bombing the court or shooting judges as shooting animals is a holy mission to counter b***s*** and corrupt judicial system?’  In this society, self-defense is not enough. Eventually it is a society of self-judgment.  Bomb! Bomb! Bomb! Shoot!  Shoot!  Shoot! Bomb! Bomb! Bomb! Shoot! Shoot! Shoot! That should happen in this land because that is nature.”

The court described Mr. Luo as a “serial filer” who has filed multiple suits over alleged violations of IDEA.  “Nearly every time Mr. Luo is met with a binding decision he does not like, he files a new complaint under a new docket.”  These filings have been largely unsuccessful, and in this case the court patiently explains in 16 pages why the court chose to dismiss the latest three complaints:

Mr. Luo’s blatant disrespect towards Defendants and the Court, and the lack of ethics and common courtesy in his filings have damaged his credibility.

No kidding.  Sheesh. 

DAWG BONE: A LAW DESIGNED TO RESPECT PARENT RIGHTS ALSO ENABLES A FEW TO ABUSE THE SYSTEM.Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Some lawyer in California tried to make the case that a charter school is a private school. If the courts agreed with that, it would have a lot of implications for how we serve students with disabilities.  When a parent chooses to place their child in a private school, the local public school retains responsibilities under IDEA.  The district where the private school is located has a Child Find responsibility.  The district where the child resides still has the duty to make sure that parents understand they can receive a FAPE by enrolling in the school.  If a charter school is the same as a private school, then the charter school would be able to slough off the responsibilities that public schools have and direct parents back to the traditional school for such services.

But the argument did not work. The 9^th Circuit held that under California law, a charter school is a public school, and has the same responsibilities to serve students under IDEA as the local traditional school district.  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.

In Texas, charter schools are also “public schools” so this decision would presumably go the same way in Texas.   This one is N.F. v. Antioch USD, decided by the 9^th Circuit on April 15, 2022. It’s located in Special Educator at 80 IDELR 267.

DAWG BONE: CHARTER SCHOOLS MAY BE PRIVATELY OPERATED BUT THEY ARE PUBLIC SCHOOLS.

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

Tomorrow: Sheesh-O-Meter case