Did you know that T.E.A. can help you out if you are about to miss the deadline on installing a surveillance camera in the special education classroom? Once a parent has requested a camera in a self-contained unit there are deadlines. But you know how things are these days with supply chain problems and many vendors understaffed. Pflugerville ISD asked T.E.A. for an extension of the timeline, “asserting that it could not procure the necessary equipment to timely install the camera despite diligent attempts to do so.”

But here’s the wrinkle. Asking for this kind of help is not as simple as calling the Commissioner and saying “Yo, Commish! How about a little more time?” No. You must request an “expedited review” as per T.E.C. 29.022(m)(2). That’s what Deborah Reeder, the Director of Special Education in Pflugerville did, and the request was granted. Nicely done, Deborah!

This short decision carries Docket No. 030-R10-04-2022 and was signed by the Commissioner on May 6, 2022. The name is In Re Pflugerville ISD. The Commissioner noted that this is the first such matter to come before the Agency. There will likely be more.

DAWG BONE: NOT JUST AN “ASK.” YOU HAVE TO SEEK AN “EXPEDITED REVIEW.”

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

Tomorrow: reading the contract carefully.

Does the school have to conduct a manifestation determination prior to a three day suspension?  Let’s assume that the student is within the FAPE-Free Zone, not having been removed from the IEP placement at all so far this year. The student violates the Code of Conduct in a way that would normally call for a short out-of-school suspension. 

Two questions: Does the school have to call for an ARD meeting to make a manifestation determination? Does the assistant principal have to pause for a moment to think about the student’s disability?

The answers to those questions are No and Yes.  A short out-of-school suspension does not amount to a change of placement unless it is piling onto earlier suspensions in the school year. When those removals add up to 11, you might have a change of placement that would call for an ARD meeting and a manifestation determination.  But if this is the first removal, well within the FAPE-Free Zone none of that is necessary. The assistant principal can employ Tool #7 from our Toolbox to order the removal with minimal complications.

But the A.P. is required to pause and reflect.  The very first section of Chapter 37 of the Education Code requires that your Code of Conduct must “specify that consideration will be given, as a factor in each decision concerning suspension, removal to a DAEP, expulsion, or placement in a JJAEP, regardless of whether the decision concerns a mandatory or discretionary action; to….(D) a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct;” 

Of course suspensions are different from DAEP, expulsion or JJAEP placement.  Removal of a student to those places will be a change of placement, requiring a formal MDR at an ARD meeting. But notice that the list of disciplinary actions that require “consideration” of this factor includes suspension, which is capped at three days.

So before ordering a short term removal the campus administrator should pause and reflect for a moment. Does this student understand “the wrongfulness” of the conduct?  Does the disability “substantially impair” the student’s ability to understand that? 

I’m confident that good administrators would do that as a matter of common sense.  Why impose a disciplinary consequence if the student lacks the capacity to understand why this was done?  But if common sense doesn’t work, check out the law. There it is in T.E.C. 37.001(a)(4)(D). 

DAWG BONE:  PAUSE AND “CONSIDER” BEFORE SUSPENSION.

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

Tomorrow:  asking for help from TEA….

The petitioner in Davis v. Prosper ISD was frustrated. The Commissioner informed her that her complaint failed to allege a violation of the “school laws of this state.”  Ms. Davis responded: “Petitioner should not be forced to spend hours upon hours poring over tens of thousands of pages of the Texas Education Code trying to try to find a section to wedge her complaint into before the TEA will hear it.” 

That’s a bit of an exaggeration.  Under Section 7.057(a)(2) of the T.E.C. the Commissioner can hear an appeal that alleges that actions of the school board have violated “the school laws of this state.” That means Titles I and II of the Texas Education Code.  Are there “tens of thousands of pages” of such laws?  No. 

The Dawg checked this out by reviewing the Texas School Law Bulletin for 2022.  Title I of the Code begins on Page 1: Section 1.001, Applicability.  Title II ends on page 812, Section 49.357: Application of Small and Sparse Adjustments and Transportation Allotment. 

So the “school laws of Texas” cover 812 pages—not “tens of thousands.”

In the process of dismissing this case for lack of jurisdiction the Commissioner reminds of three things. 

1.  The Commissioner does not have jurisdiction to hear complaints about individuals.  Ms. Davis brought her appeal to T.E.A. against the superintendent, all seven members of the board, and the district’s inhouse general counsel.  The Commissioner dismissed the complaint against all nine of them, noting that he simply does not have the authority to hear complaints about individuals. He has authority to hear complaints about actions of the board as a governmental body.
2. Complaints about Section 504, the U.S. Constitution, and allegations that the board violated its own policies or operating procedures need to go elsewhere. The Commissioner does not have jurisdiction. 
3. Parties who seek changes in school policy are wasting their time taking that complaint to T.E.A. through a grievance.  That’s not something the Commissioner has the power to order.  

It’s Davis v. Prosper ISD, decided by Commissioner Morath on May 13, 2022. It’s Docket No. 014-R10-12-2021.  I’m pleased to let you know that Meredith Walker of our firm’s Irving office handled this case. 

DAWG BONE: LIVE LONG AND PROSPER, PROSPER.   

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

Tomorrow: Toolbox Tuesday!!

Earlier this week the Daily Dawg included a Key Quote from a court case that included the words “inter alia.”  You don’t have to have read Cicero in the original to figure out that this means “among other things.”  So why do judges say “inter alia” when they could simply use the English words?  I think they are showing off.

Here’s another one: “arguendo.” This means “for the sake of argument, or arguably.”  Again, why use Latin?

But perhaps Loyal Daily Dawg readers would like to show off a bit. If so, here are a few other phrases you might want to sprinkle into your everyday prose:

Duces tecum: this means bring it with you. You see this attached to subpoenas sometimes, meaning bring the records with you.  Or you may recall the famous line from The Godfather: “Leave the gun.  Duces tecum the cannoli.”

Forum non conveniens: this means you brought the case in the wrong court.  In the school setting it could refer to locker room talk in the classroom: “You are bringing that language into a forum non conveniens, buddy!” 

In flagrante delicto: in the movies this always refers to someone being caught in “the act.” You know…..doing it.  But actually, it refers to being caught in the act of any misdeed.  There is something about “flagrante” and “delicto” that just sounds like it must be a sexual thing, but that’s not the original meaning. So, you can use this when you catch a teacher copping a cup of coffee in the lounge without dropping a quarter in the can: “In flagrante delicto!”

In loco parentis:  no, it does not refer to the crazy parents.  It means in the place of the parents.

Mea culpa:  my bad.  Catholics usually say it three times: “My bad. My bad. My very bad bad.”

Res ipsa loquitur: my all time favorite. It means “the thing speaks for itself.”  The example they gave in law school was the sponge that was left inside the patient’s body after surgery.  We don’t know how it happened or who left it there, but the thing sorta speaks for itself, no?

Hope you find that helpful. 

DAWG BONE:  JUST A FEW OBITER DICTUMS FOR YOU ON A FRIDAY.

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

WE’RE ZOOMING TODAY AT 10!  PLEASE JOIN LEANDRA ORTIZ AND THE DAWG FOR A LIVELY DISCUSSION OF THE PARENTAL RIGHT TO DIRECT THE EDUCATION OF THEIR CHILD.

Northwest ISD did not think it should have to pay for the IEE (Independent Educational Evaluation) obtained by P.H.’s parents.  The district’s decision not to fund an IEE has now been affirmed by a special education due process hearing officer, federal district court, and the 5^th Circuit Court of Appeals.  Here’s how it happened. 

Before enrolling their child in kindergarten, the parents gave the district a psychological evaluation they had obtained that diagnosed the student with Autism Spectrum Disorder, General Anxiety Disorder and separation anxiety. They asked the district to determine if the child needed special education services. The district then conducted its own FIIE (Full Initial Individual Evaluation).  All of this information was then reviewed and considered at an ARD meeting in November.  The ARD determined that the student was not eligible for special education services.    

The parents did not challenge that decision immediately.  But later in the school year, in April, the district determined that the student qualified for a Section 504 plan due to anxiety.  At the 504 meeting the parents expressed their disagreement with the FIIE the district had completed in the fall.  They asked the district to pay for an independent evaluation.  The district said no, and requested a due process hearing to prove the appropriateness of the FIIE.

Let’s review a few basics about IEEs. 

The starting point: These parents did the right thing by asking for the publicly funded IEE based on their disagreement with the district’s evaluation. That’s all it takes—a request based on a disagreement.  The district also did the right thing by not just saying “no” but also requesting a hearing. That’s what IDEA requires.

It’s about the money.  Parents don’t need the district’s approval to get an IEE. They need the district’s approval to get a publicly funded IEE.  Sure enough, when the district refused to pay, the parents obtained a new evaluation at their own expense, and used it as evidence in the litigation.

Burden of proof:  The district has the burden of proof in a case like this. It can prevail in the litigation by convincing the hearing officer of either of two things: 1) the district’s FIIE met all legal standards; or 2) the IEE failed to satisfy the district’s criteria.  In this case, Northwest ISD relied on #1.  NOTE: there is 5^th  Circuit caselaw that permits districts to refuse to pay for an IEE that fails to meet its criteria without having to request a due process hearing. But talk to your school attorney if you want to go that route.  It can be tricky.

All areas of suspected disability.  A good FIIE looks at every possible area of disability that might meet eligibility criteria.  Here, the parents argued that the district focused exclusively on autism and ignored the possibility that the student could qualify as emotionally disturbed due to the anxiety.  The court held that the FIIE had adequately taken the child’s anxiety into account, particularly since it appeared to fall short of what would be necessary for an ED label.  The student did not show anxiety in the school setting, and teachers reported that the student’s emotional behavior was pretty typical of kindergarteners. 

Choice of instruments.  As the court noted, the choice of instruments is a professional decision to be made by the district’s evaluation professionals.  The district used CARS-2 and SRS-2. The parents preferred ADOS-II. The court noted “Plaintiffs’ preference for one testing tool over another does not show the FIE was noncompliant.”

Proper administration of instruments.  Formal testing needs to be done as per the instructions in the testing manual. In this case the court held that the parents failed to produce evidence of any problems in this area. But it’s a good reminder of the importance of reviewing the manual and following the required protocols. 

That sums up Heather H. v. Northwest ISD, decided by the 5^th Circuit on June 2, 2022.  The case is cited at 2022 WL 1800771.  I’m pleased to let you know that Meredith Walker from our firm’s Irving office represented the district and helped produce this good opinion. 

DAWG BONE:  DON’T WANT TO PAY FOR THE IEE? CALL YOUR LAWYER FIRST.

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

Tomorrow:  caveat emptor and other handy Latin phrases

Tomorrow at the Zooming with the Dawg call Leandra Ortiz and I will be talking about some of the cases that address parental rights to direct the education of their children.  I’m sure that one case we will talk about is Meadows v. Lake Travis ISD.  Mr. and Mrs. Meadows sued the district after Mrs. Meadows was denied access to certain parts of the school.  She wanted to meet with her child’s teacher. She wanted to attend a school musical. She wanted to attend a volleyball game, and the Thanksgiving lunch to which parents were invited. Why was Mrs. Meadows denied these simple privileges?  Because she refused to allow the district to run her drivers’ license through the Raptor System.

The Raptor System is designed to identify people who are listed on a registered sex offender database. There is no indication that Mrs. Meadows was on any such list. But the school could not verify that because she refused to allow the school to access her drivers’ license.  

In the suit the plaintiffs cited the Supreme Court cases from nearly 100 years ago that establish that parents do have a fundamental constitutional right to direct the upbringing of their children.  But that is a broadly stated right. In specific court cases the judge applies that broad principle to more specifically delineated situations.  Here the issue was: does the parents’ constitutional right include the right of unfettered access to visit all areas of the school campus?  When the question is posed that way, the answer is easy:

We readily acknowledge that parents do have a constitutional right to direct their children’s education, but the Meadows have put forth no caselaw for the proposition that this right extends so far as to include the unfettered right of a parent to visit all areas of a school campus while students are present.

The court also acknowledged the critical importance of systems like Raptor that are designed to maintain safety:

The District obviously has a compelling interest in determining, inter alia, whether a potential visitor to its school is a registered sex offender. The regulation [FFF] is narrowly tailored because Raptor takes only the minimum information necessary to determine sex-offender status, identify the visitor, and ensure the lack of false positives.

According to www.raptortech.com, Raptor now serves over 80% of the schools in Texas and over 35,000 school nationwide.  So I’m guessing that a good many Loyal Daily Dawg Readers are well aware of how it works.

As far as parent rights, this case is a good illustration of the fact that you have to thin slice them. It’s not enough to assert “fundamental right.” You have to apply it to a specific situation to see if the right extends that far. This is what we’ll be talking about tomorrow.  Hope to see you there!

Meadows v. Lake Travis ISD was decided by the 5^th Circuit on September 8, 2010.  It’s cited at 2010 WL 3516622; 263 Education Law Report 525; and 397 Fed. App’x. 1. 

DAWG BONE: LIKE AT THE DELI COUNTER: THIN SLICE IT.

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

Tomorrow:  Northwest ISD wins one at the 5^th Circuit

Summer is the time to put some things in place for next school year.  One of those is your Code of Conduct.  We talk about the Code a lot in the Toolbox Training.  In most districts it’s a long and boring document, but when you get into a legal hassle over student discipline the exact language of the Code will be important.  That’s why our firm has produced a Model Code of Conduct for your consideration. We’ve done this for many years, updating it each year based on new laws, regulations, and court cases. So, if you are interested in that, just contact one of the lawyers at Walsh Gallegos and ask about it.

I hope you are also thinking of new and improved proactive steps you can take to improve student behavior. Whenever I do a Toolbox Training, I’m aware of how “old school” it is.  We start out with Tool #1—a Behavior Plan, and we emphasize that it is the only tool in the box designed to proactively address behavioral issues with the goal of encouraging better behavior.  But after that, the Toolbox is mostly about suspension, DAEP and other punitive measure.  I know that you need all of those tools, but you need much more than that. If the DAEP is nothing but a holding cell, it’s not going to help you, or the student, in the long run. 

I have long been a proponent of Restorative Practices as a better way to address student misconduct and I try to emphasize that Restorative Practices are completely compatible with all of the tools in the Toolbox.  The summertime is the time for administrators to plan for new and creative ways to address the problems that we know will arise.  The research shows that punishment improves student behavior only for certain types of students.  As my friend Kevin Curtis memorably noted, “Traditional discipline works for traditional kids from traditional families with traditional values.”  What are you doing for the other kids?  The other kids are probably the majority in your district. 

So I hope you take some time this summer to think about that.

DAWG BONE: THINK RESTORATIVE. 

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

Tomorrow:  Do you use Raptor?

LOYAL DAILY DAWG READERS: PLEASE NOTE THAT THE ZOOMING WITH THE DAWG CALL WILL BE THIS THURSDAY, JUNE 23 AT 10:00.  I’LL BE JOINED BY LEANDRA ORTIZ FROM OUR RIO GRANDE VALLEY OFFICE.  LEANDRA AND  I HOPE TO SEE YOU THERE AS WE DISCUSS PARENT RIGHTS.

We’re celebrating Juneteenth today and the Walsh Gallegos law firm is closed.   But I do have one recommendation for you.  A Texas native published a book containing a series of short essays about her experiences growing up in East Texas, and specifically about being the first African-American student in the Conroe ISD.  This would be an excellent book study for a school faculty group, or as an assignment to students. The book, On Juneteenth, is an easy read that will touch your heart and provoke some serious thinking.  It’s an honest look at our recent history.  The author, Dr. Annette Gordon-Reed, is now a professor at Harvard.  I hope you’ll take a look at it.

DAWG BONE: “ON JUNETEENTH”: WORTH YOUR ATTENTION.

Tomorrow: Toolbox Tuesday!!

ZOOMERS!  THIS IS THE DAY OF THE MONTH WHEN WE USUALLY HAVE OUR ZOOM WITH THE DAWG CALL. BUT IT’S THE SUMMER AND WE’RE CHANGING.  SO NO ZOOM TODAY. THE ZOOM FOR JUNE WILL BE NEXT THURSDAY, THE 23^RD. BE THERE OR BE SQUARE.

What Happened?  The parents never asked for a due process hearing to challenge the IEP proposed by the school for 2018-19. Instead they went straight to federal court.  The school promptly filed a Motion to Dismiss based on failure to exhaust administrative remedies. 

The Dawg’s Commentary: That motion should be granted. It’s a no-brainer.  The parties had an IEP Team meeting on April 18, 2018 to discuss the IEP for the upcoming 2018-19 school year.  They disagreed about the content of the IEP and the placement. That’s exactly what our special education due process system is designed to deal with.  And in fact, these parents were well aware of that, having successfully used that process previously.  But this time they went straight into court.

What Did the Court Do? The  Motion to dismiss was granted….“nearly four years” later by the 1st Circuit after numerous injunctions and orders had been entered by lower court judges.  Key Quote:

We note that this case has been in federal court for nearly four years, when it could and should have been more expeditiously resolved through the administrative process.

What Can We Learn? This one goes on the Sheesh-O-Meter.  The 1st Circuit treats the failure to exhaust as a jurisdictional matter. That means that all of the judges who ruled on various aspects of this case did not have the jurisdiction to do so.  Finally, the 1st Circuit weighed in, granting the Motion that was filed at the outset. What a waste of time and money.

It's Valentin-Marrero v. Commonwealth of Puerto Rico, decided by the 1^st Circuit on March 24, 2022.  It’s published in Special Ed Connection at 80 IDELR 208.

DAWG BONE: STORIES LIKE THIS DO NOT INSPIRE CONFIDENCE IN THE SYSTEM.

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

Our story begins in a bathroom stall in a middle school.  Ask yourself: what do you do to guard your privacy in that situation?  I make sure that the door is shut tight and locked. If the lock does not work, I will move to another stall.  One thing I’ve never done, however, is to inspect the ceiling tiles above my head.   

The student (soon to be known as “the Plaintiff”) was allegedly defacing the inside door of the stall with a marker.  How do we know this? Because hovering above him, hidden in the ceiling tiles, was a custodian. Why was he there? Because the principal and assistant principal instructed him to be there. 

Was this a good idea?  It was not. 

The plaintiff brought a suit against the superintendent, the principal and the assistant principal, alleging all manner of potential legal claims.  The court dismissed all but one of those claims based on the school’s Motion to Dismiss.  The one claim that was left was the charge that the principal and assistant principal should be held liable personally for ordering an unreasonable search.

The federal court held that this was a search that was neither “justified at the inception” nor “reasonable in scope.” Therefore it violated the 4^th Amendment to the U.S. Constitution.

We should point out that the 4^th Amendment says nothing about bathroom stalls or ceiling tiles, but it does protect us from unreasonable searches and seizures, and the court held that this one was unreasonable. 

On top of that, the court held that this was the type of thing that school administrators should know.  The law on this was “clearly established.”  That means that neither the principal nor the assistant was entitled to qualified immunity. 

So put this on the list of things not to do next school year. Whatever you think might be going on in the bathrooms, do not instruct a staff member to hide in the ceiling tiles to observe.  On a personal level, the next time you enter a public bathroom stall, you might want to look skyward. 

It’s C.H. v. Folks, decided by the federal court for the Western District of Texas on August 17, 2010.  We found it at 2010 WL 3257620.

DAWG BONE: SHUT THE DOOR. LOCK IT.  CHECK THE CEILING.

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

Tomorrow: One for the Sheesh-O-Meter