It’s pretty important to have an IEP in place before the next school year starts. Here’s a story that illustrates this point.

What Happened: It’s January, and the student has an IEP that runs to the end of the school year.  You send notice to the parent that you’d like to schedule an ARD to plan for the next school year.  The dad says he’s not available until May.  You shrug your shoulders and set up the meeting for May 14. 

So far so good.  On May 14, you have the meeting but don’t come to consensus.  You agree to reconvene on June 17.  We’re still good.

On June 16 the dad files a complaint with the state agency, and informs the school that he did not want to have another IEP Team meeting until that complaint is resolved.  The school cancels the meeting that was scheduled for the next day. 

On August 12^th, the state agency resolves the complaint in favor of the school, finding no errors. The school promptly proposes an IEP Team meeting offering four possible dates in September. The dad says he’s not available until October 30. 

Did you notice that with all this wrangling over dates and the content of the IEP that there was no IEP in place when the 2019-2020 school year began?  This case is from Hawaii and I don’t know when school starts over there, but I’m sure it’s before October 30^th. 

The court held that not having an IEP in place at the start of the school year was a denial of FAPE. The school tried to blame the parent for this, pointing out that it tried to set up a meeting in January and the parent would not meet until May.  But the court noted that the school “acceded” to the long delay from January to May.   There did not appear to be any urgency on the part of the school.

What to make of this?  I have two suggestions.  First, in a situation like this some communication about the importance of having an IEP in place would be helpful.  Documentation along the lines of “we want to be sure to have an IEP in place before next school year” would do the job.  That kind of documentation requires that you go beyond checking boxes on printed forms, and going with a narrative that tells the story of what is happening.

Second, you don’t have to indefinitely postpone an ARD meeting on parent request.  When the parent filed the state complaint he also informed the school that he would not attend an IEP Team meeting until the complaint was resolved.  The school does not have to agree with that, and should make it clear that it does not agree with that under these circumstances: where a new school year is about to begin and no IEP is in place.  Again, the school lacks the power to force the parent to the meeting, but the law requires the school to encourage and persuade. 

The court dealt with several other issues in Clarfield v. DOE State of Hawaii, but that’s enough for today’s Daily Dawg. The case was decided by the 9^th Circuit on March 17, 2022, affirming a decision by the federal district court on January 15, 2021.  Both are published in  Special Ed Connection.  The lower court case is at 78 IDELR 42 and the 9^th Circuit’s decision is at 80 IDELR 210.

DAWG BONE: YOU HAVE TO HAVE AN IEP IN PLACE AT THE START OF THE SCHOOL YEAR.

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

Tomorrow:  climbing around in the ceiling tiles above the bathroom: good idea?

Last week’s Toolbox Tuesday focused on Tool #9: Leadership at the Non-Consensus ARD Meeting.  An Alert and Loyal Daily Dawg Reader brought up an interesting twist on that: what if the non-consensus is between the parents?  Good question!

First of all, let’s remember that there is a hierarchy of sorts among the many people who may serve as a “parent” at an ARD meeting.  Biological or adoptive parents outrank stepparents, grandparents, aunts and uncles with whom the child lives, as well as POSSLQs  (Look it up).  The only person who outranks the biological or adoptive parent is a person holding a legal document giving them authority to make educational decisions for the child.  So if we are dealing with divorced parents, the divorce decree might give one or the other the authority. 

However, many divorce decrees give the parents equal authority.  Moreover, couples don’t have to be divorced to have strong disagreements. So let’s just assume that you are at an ARD with both mom and dad who are happily married to each other.  But they disagree.  Mom thinks the student needs special education and likes the IEP the district has proposed. Dad does not want anything to do with special ed.  What to do?

Each parent has both authority and rights. Each of them has the authority to give consent, each of them has the power to revoke consent, and each of them has the right to ask for a due process hearing. The school only needs consent from one parent, but it has to recognize the right of the other parent to seek legal recourse.  A call to your school lawyer would be a good idea. And your documentation of what decision the ARD has made and what it will do about it will be important.  Consent from either parent is sufficient for the district to go forward with the decision it has proposed, but the parent who does not agree may ask for a hearing and invoke stay put. 

Before you get to that difficult place it would be wise for the school to offer the disagreeing parents some time to reflect.  Everything will be better for the student, the family, and the school if the parents can resolve their disagreement and come to a consensus.  So offering some time and a quiet place to talk might be a good move.

DAWG BONE: LOTSA PEOPLE AT AN ARD.  TWO PARTIES. 

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

Tomorrow: difficulty in scheduling the ARD

LOYAL ZOOMERS!  WE’RE CHANGING THE DATES FOR THE ZOOMING WITH THE DAWG THIS MONTH.  MARK YOUR CALENDAR FOR THURSDAY, JUNE 23.  HOPE TO SEE YOU THAT DAY AT 10. 

The IEP promised “door to door” transportation.  But the student lived at the end of a dead end street and the state’s transportation guidelines prohibited school buses from entering a dead end street where the bus would have to back up.  What to do?

The district informed the parent that they would have to walk the student down the block to the corner (eight houses down) where the bus would stop.  The parents filed a complaint with the state agency, alleging that the district was not implementing the IEP as it was written.  What do you think will happen?

The agency slapped the district on the wrist. This was not in Texas but the result would have been the same in Texas. That’s because state agencies don’t have any leeway in situations like this.  They are charged with the faithful execution of IDEA. That means that when an IEP is not being implemented as written, the district will be charged with an error.

After that, the school convened an IEP Team meeting and made a change in the IEP over parental objection. The parents would have to walk the child to the end of the block.  The parents challenged this in a due process hearing.  The hearing officer ruled in favor of the district and the federal court affirmed that decision.    The court held that the district failed to implement the IEP but only in a “de minimis” manner. There was no indication that the student needed to be picked up at the home; the issue had never been discussed at an IEP Team meeting; and the student still had access to education.  No harm, no foul.  The court also held that the change in the method of transportation was not a “change of placement” and thus it did not trigger “stay put.”

Not every change to a student’s IEP is a “change of placement.”  This is a good example of that.  Remember, though, that every change to an IEP must be approved by the ARD Committee, or by a written amendment to the IEP agreed to with the parent.  Also, the school should produce a Prior Written Notice about a change like this.  Remember that PWN is required to document every IEP change made at an ARD—not just those done over parental objection. However, you can expect more scrutiny to follow a change that is made, like this one, in the face of parental opposition 

We also learn that courts will apply the “de minimis” standards under some circumstances. Unfortunately, it’s hard to predict this.  Some courts probably would have taken a more rigid view regarding IEP compliance.   Perhaps the judge thought that walking past eight houses to the end of the block was no big deal.

It’s S.W. v. Elizabeth Board of  Education, decided by the federal court for the state of New Jersey on March 17 2022. It’s published in Special Ed Connection at 80 IDELR 227.

DAWG BONE: DO PEOPLE REALLY LITIGATE OVER STUFF LIKE THIS?  THEY DO!

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

Tomorrow: Toolbox Tuesday!!

A published decision from the 6^th Circuit allows for liability of the school for student-to-student sexual harassment based on what happened—and what did not happen--before the school was informed that the plaintiff student has been sexually harassed. How can that be?  

Let’s start by reviewing how the courts have handled student-to-student sexual harassment claims up to this point. The standards are well established.  School districts are not legally liable for student-to-student sexual harassment every time it happens.  There has to be evidence that the district knew about it and responded in a completely inadequate way. The focus in these cases is on what happened after the school was informed that the plaintiff has been harassed. 

The plaintiff in the new case is Jane Doe, a freshman, who alleged that she was the target of “unwelcome sexual activity” from four older boys. The court does not tell us what kind of “sexual activity” this was, but we are told that it happened in the stairwell of the school, and it was caught on video.  (Is there anything not caught on video these days?)  Jane did not know that someone was videoing the incident until it started circulating later.  Jane’s parents then reported this to the assistant principal. 

Let’s pause right here.  In a typical student-to-student sexual harassment case the focus would now turn to what the A.P. did with this information.  Did he take it seriously? Did he investigate? What corrective action was taken, if any? As long as his response is not deemed “deliberately indifferent,” the school district will have no legal liability.

This court does focus on those issues, and if that was all the court did, it would not be Dawg worthy. That’s the standard legal analysis: what happened AFTER the school was informed? 

What makes this decision Dawg worthy is that the court also examined what happened BEFORE Jane was accosted in the stairwell.  The court held that the school might be liable not just for what happened AFTER that incident, but also for the fact that the school failed to prevent the incident in the first place.

How can that be?  Prior to this incident, Jane Doe had never reported any sexual misconduct.  However, she alleged that a whole lot of other students reported a whole lot of sexual misconduct over a long period of time.  The court noted that Jane Doe alleged that the school “had a widespread problem in its schools: numerous instances of sexual misconduct and the dissemination of sexual images of minor students without their consent.” The plaintiff alleged that the school shrugged its collective shoulders over all of this, which thus caused the incident in the stairwell. 

How widespread was the problem?  The plaintiffs unearthed a trove of school disciplinary records over a four-year period:

*950 instances of sexual harassment;

*over 1200 instances of inappropriate sexual behavior;

*45 instances of sexual assault; and

*218 instances of inappropriate sexual contact.

The court held that this was enough to set out a plausible claim.  The school district’s Motion for Summary Judgment was denied. The case will continue.

What does this mean for you?  It’s a new angle on school district responsibilities that should cause you to examine how claims of student-to-student harassment are being addressed.  It’s particularly a wakeup call for your Title IX coordinator.  After recounting the number of reported incidents, the court pointed out the apparent non-compliance with Title IX standards:

Many of those incidents involved students taking and/or distributing sexually explicit photographs or videos of themselves or other students. Despite the frequency of inappropropriate sexual behavior in MNPS facilities, the incidents were handled on an individual basis by the principal of the school in which the sexual offender was enrolled. And although the Department of Education guidance to schools recommended that the Title IX coordinator address all complaints raising Title IX issues, the system-wide Title IX coordinator for MNPS was not involved at all in resolution of the sexual misconduct incidents. Rather, she was only notified if the untrained principals determined there was a Title IX violation.

Two suggestions: first, take a look at your Policy FFH and FFH Local regarding Title IX investigations.  Many of you will find that the Title IX Coordinator must be involved in the process.  Second, reach out to the lawyers at Walsh Gallegos if you would like some additional training in this area. 

The case of Doe v. Metropolitan Government of Nashville and Davidson County, Tennessee was decided on May 19, 2022.  It’s located at 2022 WL 1573848 and the Dawg is grateful to Loyal Daily Dawg Reader Tony Graham for bringing this case to my attention. The case has a long way to go, but our main concern here is not about how this case comes out. It’s about what we can learn from it to create and maintain a school environment free of sexual harassment. 

DAWG BONE:   A GOOD ONE FOR T9 COORDINATORS TO REVIEW.   Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com

Today’s Daily Dawg comes to you courtesy of Morgan Beam from our firm’s Houston Office. Morgan corresponded with the Student Privacy Policy Office (SPPO) about the confidentiality of student handwriting samples.  The issue frequently comes up when the parent of Student A wants to see the written statement of Student B.  The parent does not know the identity of Student B and the school is required to maintain B’s anonymity.  If the school discloses the student’s handwritten statement is that a disclosure of the student’s identity?

SPPO says that it is.  FERPA protects “personally identifiable information.”  That term includes a “biometric record.”  A handwriting sample is a “biometric record.” As usual, this kind of arcana is addressed in obscure federal regulations.  Specifically, 34 CFR 99.3(d) which says that a “biometric record” is a form of “personally identifiable information.”  So then you have to find the definition of “biometric record” which is also at 34 CFR 99.3:

“Biometric record,” as used in the definition of “personally identifiable information,” means a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting. 

I hope you find that a useful piece of information.  The letter from SPCO went on to provide detail about various situations in which disclosure of a handwritten note would be appropriate and when it would not. It’s too complicated for our Daily Dawg One Issue At A Time Pace.  So I’ll just suggest that you call Morgan or any of the other terrific lawyers in our firm if you have questions along these lines.  But the starting point is that a sample of a student’s writing is protected by FERPA, so don’t disclose it without giving it some thought. 

DAWG BONE: I’M STILL LOOKING FOR THE LITTLE GIRL IN EAST TEXAS NAMED “FERPA MAE.”

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.  Tomorrow:  Important Title IX case….

They are calling it Texit.  No—we are not seceding from the United States. We tried that once and it did not turn out well.  But the Texas Association of School Boards (TASB) has withdrawn from the National School Boards Association (NSBA). It’s not just a Texas thing.  Reports are that Texas is just one of 25 states that have dropped out of the national organization.

Much of this was driven by reaction to the now infamous letter NSBA sent to the Biden Administration asking for help in dealing with disruptions of school board meetings.  There has been a lot of disruption at school board meetings, much of it occurring in Texas, but the language of the letter was deemed by many to be over the top, including its reference to The Patriot Act, Homeland Security and “domestic terrorism.” NSBA withdrew the letter, apologized for its tone and ordered up an independent review. But it was all too late.  Moreover, that independent review found governance and accountability problems within the organization.

TASB’s governing board voted to withdraw. This is a big blow to NSBA. Texas has been a major player with NSBA in every sense of the word.  Not only is Texas big, it has been deeply involved in the leadership of both NSBA and the national Council of School Attorneys. I was proud to serve on the COSA board for several years. I benefited from association with NSBA staff and the lawyers around the country who represent school districts.   On a personal level I am sad to see this day come.

But we carry on.  There is a new organization forming: the Consortium of State School Boards Associations (www.cossba.org).  As of May 26^th, the new organization reports that 22 states have joined: Alabama, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, New Hampshire, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and Wyoming.  Will Texas opt in? We shall see.

Just one more interesting tidbit to report today.  While googling “NSBA” I discovered The National Snaffle Bit Association.  Did not know there was such a thing….did you? Still don’t know what a “snaffle bit” is. 

DAWG BONE: SNAFFLE BITS GO WELL WITH FRESCA I HEAR.

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

Tomorrow: can I identify you by your handwriting?

Misinterpretation of school policy by a staff member can have serious repercussions.  A former assistant principal in a district in Washington testified that what happened to a student with cognitive disabilities in the Independent Learning Center classroom could not be “sexual harassment” because the student did not object to it.  Based at least in part on that statement a jury concluded that it was district policy to require students to speak up and object about sexual harassment. The plaintiff was a student who was incapable of doing that, due to her cognitive disabilities.  After an 11-day trial, the jury rendered a verdict of $500,000 against the school district based on discrimination based on disability.

Our firm’s Toolbox Training is all about providing a safe environment for all students while complying with the law.  The main law we focus on is IDEA, but Title IX is equally important.  Policies or interpretations of policies that apply a different standard to students with disabilities may be found to violate Title IX, Section 504, the ADA, or the Equal Protection Clause of the Constitution.

Today’s case is Berg v. Bethel School District, decided by the federal court for the Western District of Washington on March 16, 2022.  It’s published in Special Ed Connection at 80 IDELR 222.

DAWG BONE: IT’S SEXUAL HARASSMENT IF IT IS UNWELCOME AND OBJECTIVELY OFFENSIVE EVEN IF THE STUDENT DID NOT OBJECT.

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

Tomorrow: Texit. 

I’ve always thought that every student’s transition plan should include a goal of developing self-advocacy skills.  This came to mind as I read a court case from Pennsylvania about a student taking classes at a university while still enrolled in the local high school.  We don’t see a lot of court cases about transition plans, so let’s see what we can learn from this one.    

What Happened?  The student had enough credits to graduate, but the IEP Team decided to hold off on that for one more year. During that year the student would participate in two non-academic college transition programs provided by the high school, while taking two college level classes at West Chester University.  The student passed both of those classes, but with grades of D and D-.  The school reported that the student made progress in the transition programs which targeted study skills and planning.  But the parent, citing those poor grades in the college classes, alleged a denial of FAPE.

What Did the Court Do?  The court ruled for the school.  The parents argued that the WCU grades indicated that the student had regressed. The court rejected this, noting that “there is no evidence suggesting that the grades [the student] received at WCU, a four-year university, are somehow comparable to the grades [the student] received in high school.” The court also noted that the student did not give consent for the staff at the high school’s transition program to communicate with the WCU professors.

What Can We Learn?   Notice that the WCU classes were not part of the student’s IEP, so the low grades were not the school’s business.  They were being taught by WCU instructors as part of the regular college level program.  The school district was only responsible for the non-academic programs designed to assist the student with transition to post-secondary life and the school was able to produce evidence of the student’s progress in those programs. 

It hurt the student’s cause that she did not give her consent for communication between the high school and the college. But that raises an issue: did the student’s transition plan include self-advocacy as a goal?  Did the transition plan help the student understand the importance of communication between the high school and the college?   These parents were not represented by a lawyer and I do not know if those questions were asked. Any good lawyer would have probed that issue.

This one is Moynihan v. West Chester Area School District, decided by the federal court for the Eastern District of Pennsylvania on March 18, 2022.  It’s published by Special Ed Connection at 80 IDELR 216.

DAWG BONE: SHOULDN’T EVERY TRANSITION PLAN INCLUDE SELF-ADVOCACY AS A SKILL TO BE LEARNED?

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

Tomorrow: Toolbox Tuesday!!

The Biden Administration surprised a lot of people last month when it announced that it was undertaking a review of the regulations under Section 504. These regs were adopted in 1977 with much controversy. Disability advocates “sat in” at offices of the Department of Health, Education and Welfare, as it was then known, to push for adoption of the long-delayed regs. I remember seeing video clips of those protests on Walter Cronkite’s news program.

So it’s been 45 years and much has changed. We have had 45 years of litigation and confusion about the intersection of 504 with IDEA. Now you have a chance to weigh in. You can enter your comments at https://www2.ed.gov/policy/rights/reg/ocr/.

In the announcement the Administration also emphasized that May is Mental Health Awareness Month. I expect the strengthened version of our 504 regulations will highlight the need to accommodate students with anxiety, depression, PTSD and other conditions.

Stay tuned, Loyal Daily Dawg Readers.

DAWG BONE: REVISIONS TO TITLE IX MAY BE ON THE WAY AS WELL.

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

In KP-406 Attorney General Ken Paxton advises that school officials may not withhold medical or health information from a child’s parents. That’s not news, and General Paxton did not have to cite Supreme Court cases from almost 100 years ago to make the point. The Texas Education Code is clear and strong with regard to the right of parents to receive information and be informed of what is going on at school. In fact, educators are subject to disciplinary action if they so much as “encourage” a child to withhold information from the child’s parents.” T.E.C. 26.008(b). Our state policy is clear. We want parents to be treated as partners in the educational process.

The opinion emphasizes the constitutional right that parents have to direct the upbringing of their child. There is such a right, but it is not as broad as General Paxton implies in this opinion. Parents have the constitutional right to choose a private school (Pierce v. Society of Sisters, 1925). Parents have the right to hire a teacher to teach their child German (Meyer v. Nebraska, 1923). 

The Meyer case is particularly interesting in today’s political climate. Shortly after World War I the State of Nebraska passed a law making it a crime to teach a child in a modern language other than English until the child had completed 8^th grade. Instruction in Latin, Greek and Hebrew was permitted, but until you got to high school you could not be taught in a language that people actually use, other than English. Thus high school kids could study French, German and Spanish, but no instruction in these languages was permitted prior to that.

Mr. Meyer was convicted of teaching a ten year old to read German in Zion Parochial School. He appealed the conviction all the way to the Supreme Court. The Court held that the Nebraska statute unreasonably infringed on the liberty guaranteed by the Constitution. The Court held that Mr. Meyer’s right “to teach and the right of parents to engage him so to instruct their children” were “within the liberty of the [14^th] Amendment.”

It’s a short opinion and it focuses more on Mr. Meyer’s right to make a living than the right of the parents to make educational decisions. But the one line that is repeatedly cited is this one:

Evidently the legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own. (Emphasis added).

Notice: the state was using its power to prevent children from learning. The Supreme Court held that the no-German law infringed on parent’s rights. If the parents want the child to learn German, the state should not stand in the way.

Today things are different. Today we have parents who do not want their children to learn something that the school offers to teach. And they brandish their “fundamental constitutional right” to justify this.

What KP-406 fails to mention is how limited that parental right is.  There are numerous cases holding that the right of parents to direct the education of their children does not empower parents to opt out of school curriculum requirements. The right of parents to direct their child’s education is pretty much limited to choosing what kind of school the child will attend: public, charter, private, religious, home. It does not authorize parents to control classroom discussions, the selection of books in the library, or the requirements of the curriculum.

DAWG BONE: STUDY T.E.C. CHAPTER 26. THAT’S THE BEST SUMMARY WE HAVE OF PARENTAL RIGHTS.

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

Tomorrow: 504 regs up for review…