Have you ever heard someone, maybe a lawyer, make that statement?  A recent case from Mississippi illustrates how some courts do indeed look at it that way.  The lack of documentation supported the court’s ruling that the district failed in its Child Find duty. 

What Happened?  Screening during kindergarten showed that the student showed signs of dyslexia, but there was no follow up to that.  Nor did the district inform the parent of the screening results. The district claimed that the student was screened again in first grade, with a more positive result—no signs of dyslexia. However, there was no documentation of this.  None.

There were other factors that the court cited, but for today, let’s just focus on the failure of the district to make and maintain a record of the student’s success on a dyslexia screener.  The court completely disregarded the school’s contention that this ever happened.  There was no documentation.  Therefore, it didn’t happen. 

Consider the possibility that there are two explanations for what happened here: either it happened just like the court thinks it did—there was no screening done in first grade. Or maybe the district did screen the student in first grade, but failed to make note of it.  Either way, the result is the same. Thus the court truly takes the approach that “if you didn’t document it, I don’t believe you did it.”  The lesson is obvious.

It's M.W. v. Rankin County Public Schools District, decided by the federal court for the Southern District of Mississippi on January 5, 2022.  It’s published at 80 IDELR 136 (S.D. Miss. 2022).

DAWG BONE: DOCUMENT.  DOCUMENT.  DOCUMENT. RINSE AND REPEAT.

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

Tomorrow: what does Goldilocks have to do with special education?

We’re nearing the end of the school year and I suspect there are a lot of annual ARD meetings being held.  In the Toolbox Training our firm offers we discuss one of the questions that is embedded in your forms, the question that has to be asked at every annual ARD: “Does the student have behaviors that impede the learning of the student or others?”  I’ll bet your forms have a YES and a NO box after that.  Today, let me offer a few reminders about that question.

First, notice that it does not ask if the behaviors are in any way connected with the student’s disability. That question may come up later if you have to make a manifestation determination, but it’s not relevant here.  The question is simpler: do we see behaviors that are impeding educational progress?

Second, remember that if you check the YES box, you need to then consider how to address the issue. There are many ways to address behavioral issues.  Checking the YES box does not automatically entitle the student to a BIP. But it does require consideration and documentation of what the ARD members considered. 

Third, when you check the YES box and then identify the specific behaviors of concern, this does not mean that the behaviors are a manifestation of disability. Sometimes campus behavior coordinators are fearful that checking “YES” will box them in later in the year if an MDR is necessary. Not so.  As we stated two paragraphs above, checking the YES box only means that there are behaviors that impede learning.  They may or may not be caused by the student’s disability.

In our firm’s Toolbox Training we discuss this in detail, and offer some language designed to make the process more easily understood by everyone.  Let me know if you are interested in a Toolbox Training. 

DAWG BONE:  JUST ANSWER THE QUESTION AS IT IS WRITTEN.

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

Tomorrow: an old lesson from a new case…

TEA’s proposed policy for the selection of library materials calls for the school board to vote on the selection of every single book or digital item added to the school library.  It also would require the library supervisor or a designee to read, review and recommend every single item.  Are we supposed to interpret that literally?  When it says “read” does that mean the entire book? 

The policy is heavy on transparency and parent involvement, and omits the language that is in most district’s current policies about how school libraries should “present multiple viewpoints related to controversial issues” and “represent many ethnic, religious, and cultural groups and their contributions to the national heritage and world community.” The TEA proposal leaves all that out. 

With regard to a challenge to a book in the library the Agency’s proposed policy is similar to Policy EF (Local) as adopted by most districts. It calls for an informal conference, and then a formal challenge that goes to an appointed “reconsideration committee.” So with regard to challenges to a book, this policy is not a lot different from what most districts currently have.

But it’s radically different with regard to the acquisition of materials. It says:

The board will provide final approval for all new materials added to the library.

The librarian would be required to provide a list of every single new item to be acquired. This list must be shared with the board members at least 30 days prior to board action to approve the list. The list of materials must be on the board’s agenda, and each board member is to be afforded the opportunity to explain why they believe a particular item should not be included. Then there will be a record vote of the board members. 

So if four of seven board members do not want a certain book to be acquired, it won’t be. 

Existing policy in most districts says that “The Board shall rely on professional staff to select and acquire instructional resources.”  (EF Local).   TEA’s policy demotes the professional staff to an advisory function, while giving control to the members of the school board.  Will your school board want to do that?  Is that a good idea?

There are other ways of ensuring transparency and parental guidance.  At least one district I know of is exploring a method by which parents will be e-notified of any book or other material the student checks out of the school library.  District policy can certainly allow for parents to block their children’s access to certain materials, at least while their children are minors.  

The staff at TASB is reviewing the proposed policy and promises to offer districts some alternatives.  Look for that somewhere around May 16.  Boards would be wise to take their time considering this issue.  Take a look at the TEA proposal; take a look at what you get from TASB. Remember that it’s your district’s policy and the board is not required to adopt verbatim any of the policies that are offered for the board’s consideration.

As your district considers this issue, it also would be a good idea to check in with legal counsel. The lawyers at Walsh Gallegos have been talking about this issue, and will be ready to help you do what is best for your district.

DAWG BONE:  NO MORE RELIANCE ON PROFESSIONAL STAFF?

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

Tomorrow: Toolbox Tuesday!

The Court of Appeals for Corpus Christi/Edinburg has ordered that ESC Region 2 be dismissed from the suit filed by a person who was injured at an ESC2-hosted conference.  Amanda Barrera took a fall at a “parent engagement conference” hosted by the Service Center, and suffered a broken leg.  Importantly, the event was not held at ESC 2’s beautiful facility in downtown Corpus.  The ESC rented a conference facility owned by Nueces County and managed by Global Spectrum, LP.  Ms. Barrera sued all three entities. 

We’re just going to focus on Region 2’s situation.  It sought dismissal from the case based on the fact that it did not own, manage, or control the building where the event was held, and therefore, was entitled to immunity from this type of lawsuit.  For unknown reasons, the district court did not dismiss the case. But the appellate court did. 

In doing so, the court noted that ESCs are “governmental units” entitled to immunity under the Texas Tort Claims Act.  To overcome that, the plaintiff had to show that some exception applied.  In this case the argument was that the parent engagement conference was a “proprietary” function rather than a “governmental” one.  Texas law does make a distinction between “proprietary” and “governmental” functions, but only with regard to municipalities. Key Quote:

Regional Education Service Centers like ESCR2 are the middle rung of Texas’s three-tiered education system, between local school districts and the Texas Education Agency and State Board of  Education.  Because ESCR2 is not a municipality, Barrera’s reliance on the proprietary-governmental dichotomy is misplaced.

The rest of the case continues, including claims by the county and Global Spectrum against the ESC2 alleging breach of contract. But the injured party’s claim against the Service Center has been dismissed. When there is governmental immunity, the court lacks jurisdiction.

It’s Education Service Center Region 2 v. Barrera, decided by the Court of  Appeals for Corpus Christi/Edinburg on April 14, 2022.  It’s cited at 2022 WL 1110519.

DAWG BONE: ESC2, ESC II OR ESC TWO: WHAT IS PREFERRED? 

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

What would a good lawyer do to help out a client who broke an arm in a grocery store?  If there was some evidence that someone at the grocery store had caused the injury due to negligence, the lawyer would make demand on the grocery store for compensation. If no settlement was achieved, the lawyer might file suit against the grocery store, alleging an employee’s negligence caused the injury.    

What if the injury occurred in a neighbor’s backyard?  Same thing. Was someone negligent?  Did the negligence cause the injury?  Go after that person. 

What if it was an automobile accident?  Same process. 

But what if it happened in a Texas public school?  Some lawyers would sue the district and perhaps a teacher or administrator, based on allegations of negligence.  But a good lawyer would know not to do that. The school district has governmental immunity unless a motor vehicle was involved. And almost everyone who works for the school district has official and statutory immunities that shield them from liability as well.  So what to do?

This is one reason we see creative theories of liability in reported court cases.  Take, for example, Chupka v. Pflugerville ISD.  The suit alleges that a 9^th grade student took a fall during P.E. class and suffered breaks to an arm and a hip. Ouch. The lawsuit does not allege garden variety negligence, but rather, disability discrimination. The suit alleged that the school district called the mother to deal with this injury, rather than EMS, and that this decision amounted to discrimination based on disability in violation of the Americans with Disabilities Act (ADA).  

Nope. The 5^th Circuit made quick work of this case, noting that ADA claims require proof of intentional discrimination.  There was no sign of that here.

The case was decided on April 8, 2022 by the 5^th Circuit.  I’m pleased to let you know that Kelly Janes and Kelley Kalchthaler of our firm’s Austin office represented the district on this one. 

DAWG BONE:  ADA CLAIMS FOR DAMAGES REQUIRE PROOF OF INTENT.

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

Tomorrow: do ESCs ever get sued?

I haven’t heard a lot about “frequency and duration” of late, but there was a time when there was much gnashing of teeth and rending of garments over the requirement in IDEA to specify the “frequency and duration” of related services.  Thus IEPs should not say that physical therapy will be provided “from time to time” or “when we can” or “as circumstances permit.”  No.  The IEP must say how often, and how long each session will be. 

This came up in a lawsuit in Los Angeles.  The court held that the IEP failed to specify the frequency of related services. For example, the IEP called for services for a specific number of minutes “from one to five times per month.”  The parents could not determine the exact amount of services and it didn’t help the school’s cause that three district therapists gave conflicting explanations for how this would work.  On the other hand, the court rejected the argument that the district was required to specify whether services would be provided in a group or one-to-one.  The court noted that the law requires a statement of “frequency and duration” but “there is no requirement that an IEP must indicate whether services will be provided in individual or group settings.”

It's a common sense test. The parent should be able to read the IEP and immediately know exactly how often each related service will be provided, and for how long.  I have an individualized plan that incorporates this concept.  For example, it includes:

The Dawg will nap once a day for 20 minutes.

There you go: frequency and duration. 

It’s Los Angeles USD v. A.O., decided by the federal court for the Central District of California on January 26, 2022.   It’s published in Special Ed Connection at 80 IDELR 98.

DAWG BONE: MAKE SURE YOU SAY IT CLEARLY.

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

Tomorrow: was it disability discrimination?

Today’s Toolbox case comes under the “don’t try this at home” category and scores high on the Dawg’s Sheesh-O-Meter.  It involved a teacher’s aide hanging a five-year old boy from the chalkboard in the classroom, much to the amusement of the other students. 

You read that right.  But wait….it gets worse.  In his statement about the incident the aide wrote that the hanging incident “was nothing different from the other times.”  A second statement from the aide described this as “the normal procedure.”

After investigating the matter, the school concluded that the aide “had failed to use proper de-escalation techniques.”  Do you think????

It may surprise our Loyal Daily Dawg Readers to hear that the suit over this incident was largely unsuccessful.  The boy and his grandma did obtain a judgment against the aide for “intentional infliction of emotional distress.”  The court awarded $267,140.02 for this. But all of the other claims were dismissed by the district court and the dismissal was affirmed by the 11^th Circuit. 

Many of the claims in this suit were based on the U.S. Constitution. The suit alleged that the district violated the 4^th Amendment, the 8^th, and the 14^th. Without going into a lot of detail, I can just tell you that it’s tough for a parent to win on those constitutional grounds. Claims under state law, such as the one for intentional infliction of emotional distress, are more likely to succeed.

But the main point of today’s Daily Dawg is pretty obvious, wouldn’t you agree?  Let’s be careful with the hiring and training of teacher aides. 

It’s Harris v. Autry, decided by the 11^th Circuit on February 9, 2022.  It’s published in Special Ed Connection at 80 IDELR 121.

DAWG BONE: “FAILED TO USE PROPER DEESCALATION TECHNIQUES.”  THAT’S ONE WAY OF PUTTING IT!  SHEESH!

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

Tomorrow: related services in an IEP….

School nurses should take note of what is happening in New York state regarding services to students with diabetes in our public schools. There is a class action suit on behalf of the 2,117 students with type 1 or type 2 diabetes in the NYC school system.  The suit was brought by several students, their parents, and the American Diabetes Association.  The parties have been negotiating for two and half years and have resolved most of the issues.  The remaining issues are 1) field trips; and 2) bus transportation. 

The court held that NYC was discriminating against students with diabetes by having an ineffective policy in place for supplying nurses for field trips. Nurses could not be provided for almost 25% of the scheduled field trips.  The court held that the fact that the district could not secure funding for additional nurses was not a defense, unless the district could explain other “undue hardship” factors.  The court ordered the district to conduct a needs assessment and to then hire a sufficient number of “float pool nurses” so that trips would not be canceled.  As to transportation, the court ordered the district to train an adult on every bus to be able to administer glucagon as needed.  The district’s policy of calling 911 was deemed insufficient due to the grave consequences of severe hypoglycemia. 

Take note of the involvement of the American Diabetes Association in this class action against our country’s largest school district.  The ultimate resolution of this litigation may create a template for services for students with diabetes. 

It’s M.F. v. NYC DOE, decided by the federal court for the Eastern District of New York on January 27, 2022. It’s published by Special Ed Connection at 80 IDELR 96. 

DAWG BONE:  KEEP AN EYE ON THIS CLASS ACTION SUIT….

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

Tomorrow: Toolbox Tuesday!!

JOIN ME FOR ZOOMING WITH THE DAWG TODAY AT 10!  ATTORNEY MORGAN BEAM WILL JOIN ME FOR  A DISCUSSION OF HOW CAMPUS ADMINISTRATORS SHOULD  HANDLE SITUATIONS INVOLVING IMPROPER PHYSICAL RESTRAINT AND/OR CLAIMS OF EXCESSIVE FORCE WITH STUDENTS. 

Our Zooming with the Dawg call today is going to dive into some unpleasant realities of school administration in 2022.  Sometimes it is necessary to use physical force to deal with an unruly student. Sometimes it is necessary to employ physical restraints. Sometimes the use of force or physical restraints leads to legal complaints. 

The law about these subjects is well known and a reflection of common sense.

*The law discourages the use of force with students, while at the same time permitting it under the right circumstances. 

*The law protects educators from personal liability for the reasonable use of force, while at the same time authorizing personal liability when physical force is excessive or negligent. 

*The law discourages physical restraint of a student, but recognizes that in an emergency, there may be no good alternative.   

It’s easy to say what the law requires, but it’s not so easy to apply to a specific situation, particularly when emotions run high and personal feelings are involved.  In our Zoom call today we will talk about investigations, reports, access to information and documentation. I think you will find it useful, especially for campus administrator and SROs.  Morgan and I hope to see you at 10:00.

DAWG BONE: ZOOM WITH THE DAWG TODAY AT 10 FOR ALL LOYAL DAILY DAWG READERS!

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

Today we celebrate Sam Houston’s victory in the 18-minute battle of San Jacinto, which ensured the independence of The Republic of Texas.  Today, just like every school day in Texas, children will stand and recite the pledge to the Texas flag.  So far as I know, we are the only state in the country that requires recitation of a pledge to a state’s flag.  Rightly so. 

But remember that some students will not stand and recite.  They have that right, and it’s one of those rights that the lawyers call “clearly established” law. It goes back to a 1943 U.S. Supreme Court case, West Virginia SBOE v. Barnette.  Texas acknowledges this with a statute that requires schools to honor a written request from a student’s parent that the student not be required to recite either of the pledges.  Some lawyers believe that the First Amendment right belongs to the child, and therefore, parental permission is not really necessary.  That’s not clear, but what is clear is that the student who has written permission from the parent should not be required to recite a pledge to a Texas or U.S. flag.  Nor should they be hassled if they choose to exercise that right. 

This is well understood in Klein ISD which recently made a final settlement with a student at the cost of $90,000.  The suit originally named the district and numerous district employees as defendants.  The KISD and all but one district employee were eventually dismissed from the suit. That left one classroom teacher, the one who was accused of harassing the student over her decision.  Since the case settled out of court, we never got a ruling as to the legality of the teacher’s conduct.  But $90,000 sends a pretty strong message, no?

It's good to think about these things on this special day in Texas history.  We ensured our independence as a governmental entity on this date in 1836. Nine years later Texas surrendered some of its independence by joining the United States.   We agreed to abide by the Constitution.  We backed out on that to join the Confederacy, but rejoined the Union and re-committed to the Constitution after the Civil War.  In 1943 our High Court reminded us of the importance of the First Amendment: 

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Let’s remember this in 2022. 

DAWG BONE: HAPPY SAN JACINTO DAY, FELLOW TEXANS!

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

Tomorrow: we’re zooming tomorrow!