Does the IEP carry over to extracurricular activities?  Should the ARD Committee be deciding if a student participates in the One Act Play?  Lots of legal issues concern students with disabilities and their participation in athletics, music, drama, and all of the other “extras.”  That’s why our firm is doing a webinar on this topic.  Here are the particulars

DATE:  April 13 at 10:00

TOPIC: From the ARD Room to the End Zone: Understanding How FAPE Relates to Extracurricular Activities

PRESENTERS:  Elvin Houston and Priscilla de la Garza

This is sure to be a helpful and relevant session. Sign up at info@wabsa.com. 

DAWG BONE: WALSH GALLEGOS WEBINARS ARE PRACTICAL AND CONVENIENT.

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

Tomorrow: Opening Day!

Our firm’s Toolbox Training offers ten “tools” that are designed to help school administrators comply with the law, serve students appropriately, and maintain safety and order. Tool #3 comes up often in court cases, like the one from North Carolina that is today’s focus.  Tool #3 is an Educational Change of Placement Without Parent Agreement.  When the school uses Tool #3 due to behavioral disruptions, it will probably have to defend its BIP. That’s what happened here. 

The parents argued that the BIP was inappropriate because the student’s behavioral issues continued even after the BIP was implemented. On top of that, the school eventually moved the student to a more restrictive environment (MRE) to better manage the student’s behavior.    That’s Tool #3. 

The court noted that the parents’ argument “lacks legal support.”  BIPs are not judged by their effectiveness.  Instead, the standard for a BIP is that it be:

reasonably tailored to meet the needs of the student while being appropriately ambitious in light of the student’s circumstances.  It is not whether the BIP ultimately is successful in positively changing the student’s behavior.

Don’t take that to mean that if a student’s BIP is doing no good you can just shrug your shoulders.  If the BIP is not working, the school has the moral and legal obligation to call attention to the problem and address it.   That might involve calling for a change of placement to an MRE—a more restrictive setting where behavior can be addressed in a more robust way.  That’s Tool #3.

Let’s think about this a bit.  Making a change of placement to an MRE over parental objection should never be undertaken lightly.   To justify such a move the school has to be prepared to show that 1) the current situation is not working; 2) it’s not due to a lack of effort by the school; and 3) the placement in the MRE will be beneficial for the student.  

Think of the implications of those three factors for your BIP.  The fact is that a proposed change of placement to an MRE, if based on behavior, should only be done when the current BIP is not working. Think of it this way:

Student A is regularly disrupting class.  You have not implemented a BIP.  Don’t call for a change of placement until you do!

Student B is regularly disrupting class.  You have a BIP which seems to be producing a positive effect.  Keep working on it!

Student C is regularly disrupting class despite the fact that you have faithfully implemented  a BIP for a long enough period of time that we should be seeing better progress.  Student C is a candidate for Tool #3. 

It’s Bouabid v. Charlotte Mecklenburg Schools BOE, decided by the federal court for the Western District of North Carolina on December 10, 2021.  It’s published in Special Ed Connection at 80 IDELR 44.

DAWG BONE: AND REMEMBER TO ASK BEFORE USING TOOL #3: IS THIS WORTH FIGHTING OVER? 

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

Tomorrow: From the ARD Room to the End Zone….

Short and sweet today, Loyal Daily Dawg Readers.  A court in North Carolina was dealing with the common parental complaint that decisions at an IEP Team meeting (ARD in Texas) were “predetermined.”  The court made this observation:

Plaintiff’s evidence also fails to account for why, if the outcome was predetermined, the meeting turned into a multi-hour affair…..

It’s  Bouabid v. Charlotte Mecklenburg Schools BOE, decided by the federal court for the Western District of North Carolina on December 10, 2021.  It’s published in Special Ed Connection at 80 IDELR 44.

This case also has implications for Toolbox Tuesday—so tune in again tomorrow!

DAWG BONE: “PREDETERMINED” MEETINGS DON’T TAKE VERY LONG.

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

Tomorrow: Toolbox Tuesday!!

Here’s an oldie but goodie:

Two guys were in a hot air balloon when they drifted way off course.  They dropped the balloon to about 75 feet and saw a man in overalls driving a tractor in a field. They got his attention and yelled: “Where are we?”  The man stopped the tractor, looked around, and responded: “Your’re about 75  feet straight overhead.”  They thanked him and went on. 

One man in the balloon turned to the other and observed, “Isn’t that just our luck?  Here we are lost, and the first guy we ask for help turns out to be an attorney at law!”  

His friend responded “A lawyer?  Why do you think that?  Looked like a farmer to me.”

“I know he looked like a farmer, but look at what just happened.  We asked him a question.  He gave us an answer.  I’m sure that his answer was completely accurate. And we are just as lost now as we were before we asked him.”

The other guy was skeptical. But when the travelers eventually found their way home, they also found a bill for $50, citing “Legal services rendered: assisted clients in ascertaining current status.” 

Have you heard any good ones lately?  The Dawg offers a free six-month extension of your subscription to the Loyal Daily Dawg Reader who sends me the best one I’ve never heard.  So don’t bother telling me about the difference between a lawyer and a catfish; or what to do with a lawyer buried in sand up to the neck; or what lawyers and sperm have in common; or why lab scientists now use lawyers instead of rats; or why lawyers are buried 12 feet down.  Heard ‘em all. 

Send your best lawyer jokes to jwalsh@wabsa.com.  Keep them clean—this is a family oriented publication.  And Happy April Fools Day!

DAWG BONE: WE LAWYERS ARE PROUD TO HAVE AN ENTIRE GENRE OF JOKES HONORING OUR PROFESSION. 

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

Before I dive into the details of the 6^th Circuit’s recent Title IX decision, let’s make a few things clear. Title IX prohibits sex discrimination in schools.  Sexual harassment is a form of sex discrimination.  When a teacher sexually harasses a student, the school faces potential liability.  When a student sexually harasses a student, the school faces potential liability.

I’m confident that all Loyal Daily Dawg Readers understand all of that, but it bears repeating to put into context this recent decision.  The case arose when Jaycee Wamer, an undergraduate at the University of Toledo (UT) alleged that she had been sexually harassed by one of  UT’s instructors. She further alleged that UT prematurely dismissed her complaint without taking any action against the man.  This led her to change majors, avoid coming to campus, and switch to online classes to avoid her harasser.  She sued the university. 

The lower court dismissed her case because she did not allege that there was any additional harassment after she put the university on notice. In doing so, the lower court cited a 6^th Circuit case that was about student-to-student harassment.  That was a mistake.  In this case the 6^th Circuit held that the lower court goofed by applying to a teacher-on-student case the standards that apply to a student-to-student case.  

One reason the standards are different is because a case of sexual harassment under Title IX requires evidence that the harassment had an effect on the student’s education.  It’s designed to make sure that students are not excluded from or denied the benefits of education based on gender.  When students sexually harass other  students, it might have that effect. When a teacher harasses a student it almost certainly has that effect.  Key Quote:

When a teacher sexually harasses a student, it can more easily be presumed that the harassment would undermine and detract from the student’s educational experience because teachers are at the core of a student’s access to and experience of education. 

It’s Wamer v. University of Toledo, decided by the 6^th Circuit on March 2, 2022. It’s published at 2022 WL 611537.

DAWG BONE:  TITLE IX COORDINATORS TAKE NOTE.

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

Tomorrow: April Fools!

It took the Texas Supreme Court 27 pages and 17 lengthy footnotes to explain what we all knew all along.  A “golf cart” is not a car.  I put “golf cart” in quotes because that’s what the court did in this opinion. 

This was a fight over insurance coverage.  The school district was sued by a student who alleged that she was thrown out of a golf cart that was driven recklessly by a school employee.  The district had insurance with the Texas Political Subdivisions Property/Casualty Joint Self Insurance Fund.  That Fund asserted that it was not responsible for defending the district on this claim because the policy covered “motor vehicles” and a “golf cart” is not a motor vehicle.

Well, it has a motor. And it will get you from here to there.  So is a “golf cart” a “motor vehicle”?

As usual with legal arguments, particularly those involving the fine print of an insurance contract, the definition of terms is crucial.  This policy covered injuries arising from the ownership, maintenance or use of a “covered auto.” 

What’s an “auto”?  The policy said it was “a land motor vehicle…designed for travel on public roads but does not include mobile equipment.”

What’s “mobile equipment”?  The policy said this term covers “bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads.”   

The case would have been simpler if the policy had specifically placed “golf cart” in the “auto” category or the “mobile equipment” category, but it didn’t. So the lawyers had a field day arguing over definitions. Our state’s highest court ultimately focused on one word in the policy:  “designed.” A golf cart might be driven on a public road, but it’s not designed for that. It’s designed to carry a golfer or two and their equipment around a golf course.  So a “golf cart” is not an “auto” and the Fund had no duty to defend the district from this claim. 

One more part of this case struck my fancy.  It introduced a new piece of legal jargon to me: “the eight-corners” rule.  What???  I remember well from law school the “four corners” rule. This is the rule that courts cite to explain that they will interpret a contract based only on what is contained in the document. If it’s not contained within the “four corners” of the written document, it’s not relevant.    In this case, the court based its decision on two written documents: the insurance policy and the Plaintiff’s complaint. Thus two documents, and eight corners.

The term “four corners” in legal cases also makes me think of college basketball, and since the Final Four is about to happen, let me explain.  I suspect that many Loyal Daily Dawg Readers are not old enough to remember college hoops before there was a shot clock. Back in those days the North Carolina Tar Heels employed an aggravating strategy devised by legendary coach Dean Smith. They called it the “four corners offense” but it was not much of an offense. It was a carefully choreographed game of “keep away” to be used to run out the clock when the Tar Heels had the lead.  Players would occupy the “four corners” of the court and toss the ball around while the clock ran down.  It worked. 

So that’s your history lesson for today. 

Today’s case is Pharr-San Juan-Alamo ISD v. Texas Political Subdivisions Property/Casualty Joint Self Insurance Fund, decided by the Texas Supreme Court on February 11, 2022.  It’s published at 2022 WL 420491.

DAWG BONE: READ THE FINE PRINT IN THE POLICY CAREFULLY.

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

Tomorrow: new Title IX case from the 6^th Circuit

The 5^th Circuit has upheld a decision in favor of Wimberley ISD that involved an MDR (Manifestation Determination Review) after a contentious ARD meeting. It’s Gloria V. v. Wimberley ISD, 122 LRP 7827 (5^th Cir. 2022).  The 5^th Circuit did not explain itself. It just affirmed the lower court’s decision.  That decision was first summarized in the Daily Dawg on April 6, 2021. Since it provides a good analysis of how courts review MDR decisions, and since it has now been affirmed by the Circuit Court, I’m going to reprint that entry here.  For you Toolbox Types, this is a Tool #6 case. 

Here you go:

Quick question: what’s the difference between stealing a cookie and stealing an ATV (All Terrain Vehicle)?  Perhaps the first distinction that comes to mind is the value of the stolen item.  Criminal law would treat the ATV theft more seriously, since it has greater monetary value.  But a federal court made note of another distinction in the process of upholding the Manifestation Determination made by an ARD Committee in Wimberley ISD.  The court pointed out that a student who is plagued by impulsivity might very well grab that cookie without much thought.  Riding off in someone else’s ATV, on the other hand, requires a bit of stealthy planning.  Therefore, it’s less likely to be a product of impulsivity. 

ARD Committees often discuss impulsivity, especially with students who carry a diagnosis of Attention Deficit Disorder.  The argument is that the student does not think things through, does not anticipate consequences, does not plan.  The ARDC in Wimberley concluded that the student’s theft of the ATV required a level of premeditation that was inconsistent with “impulsivity.”    Members also observed that the district served many students with ADHD, and yet most of them did not steal things.  The ARDC’s conclusion was that this was not a manifestation of disability, nor the result of the failure of the district to implement the IEP.  The parent disagreed, and thus, litigation ensued.

The special education hearing officer ruled in favor of the district and now the federal district court has affirmed that decision.  The district handled this situation well. They had the right people at the meeting, they listened patiently as the student’s advocate engaged in what the court described as a lengthy and hostile cross-examination, they had a solid basis for their conclusions, and they were able to demonstrate that the DAEP would be able to provide an appropriate education to the student for his 45-day assignment.

In Toolbox terminology, this is a Tool #6 case: a Disciplinary Change of Placement.  The student was charged with felony theft. Even though this happened in the summer when school was out, Chapter 37 authorizes DAEP if the district determines that the student’s presence in regular classrooms would be “detrimental to the educational process.”  The district made those findings, properly handled the MDR and successfully defended its decision in the court case. I’m pleased to let you know that Kelly Janes and Jamie Turner of our firm’s Austin office represented the district on this one.  It’s Gloria V. v. Wimberley ISD, decided by the federal court for the Western District of Texas on February 26, 2021. The court’s decision is on SpecialEd Connection at 78 IDELR 96 and the magistrate’s Report and Recommendation is at 121 LRP 8057. 

DAWG BONE: THE DAWG HAS SNATCHED A COOKIE OR TWO…..IT WAS IMPULSIVE.

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

Tomorrow:  do you know what a golf cart is?

A Texas law prohibits governmental entities, like school districts, from issuing contracts to companies of a certain size unless the company promises not to boycott Israel. This law has been the subject of much litigation that the Dawg has reported.  The latest comes from a federal court in Houston. The suit was filed by A&R Engineering and Testing, a company that had been doing business with the City of Houston.  The owner of the company was a Palestinian who had grown up in the Gaza Strip.  He believed that Israel’s occupation of that territory was illegal, and he refused to contract away his right to say so, or to take economic action, such as a boycott, that would support his view.   He asked the court to declare the “don’t boycott Israel” law to be unconstitutional

The court’s decision is well reasoned and clear, and can best be summarized in a few bullet points. 

*The court held that a boycott, by itself, was not the kind of “expressive conduct” that is protected by the First Amendment.  A boycott is action, rather than words, and it would be difficult for anyone to know why the boycott is happening unless the boycott was accompanied with an explanation. So the court refused to shoot down the entire statute.

*However, the statute includes a “residual clause” that prohibits “any action intended to penalize, or inflict economic harm” on Israel.  The court held that this swept too broadly. The term “any action” could include picketing, giving speeches or encouraging others to boycott Israel. These are “expressive activities” that are protected by the First Amendment.  The court issued an injunction to prohibit the City of Houston from including the “residual clause” in any contract it offers to A&R Engineering.

*Because the record before the court was a bit skimpy, the court refused to grant a statewide injunction.  It limited the injunction to the particular plaintiff in this case and the particular contract he had with the City.  So the “residual clause” can be included in contracts issued by school districts.

It’s A&R Engineering and Testing, Inc. v. City of Houston, decided by the federal court for the Southern District of Texas on January 28, 2022.  It’s published at 2022 WL 267880.

DAWG BONE:  LOOK FOR MORE ON THIS ISSUE!

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

Tomorrow: Toolbox Tuesday!!

LOYAL READERS! WE’RE ZOOMING WITH THE DAWG TODAY AT 10! ELVIN HOUSTON, ONE OF MY PARTNERS FROM SAN ANTONIO, WILL BE JOINING ME AS WE FOCUS ON SPECIAL ED ISSUES.  SO GET YOUR DIAGS AND DIRECTORS TO JOIN US! !  IF YOU ARE NOT YET SIGNED UP, JUST SEND AN EMAIL TO INFO@WABSA.COM. 

 “It does seem that the improper disclosure was inadvertent.  Nonetheless, we find that the District violated FERPA as alleged.”  So sayeth the Student Privacy Policy Office in a ruling involving a Texas school district.

The complaint alleged that Student A’s confidential information was copied onto the back of Student B’s ARD paperwork and sent to the parent of Student B.  Why would someone do that?  It sure sounds like the type of thing that could happen if someone was temporarily inattentive at the copy machine.  SPPO seems to agree with that, noting that the disclosure was likely “inadvertent.”  To SPPO it doesn’t matter.  The improper disclosure of confidential information is a FERPA violation, regardless of intent. 

That’s your Friday FERPA Reminder.  It’s Letter to Watson, issued by SPPO on June 24, 2021 and cited on Special Ed Connection at 121 LRP 32103.

DAWG BONE: INADVERTENT OR ADVERTENT.  NO MATTER.   

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

True confession: despite being a lawyer and understanding the significance of “the fine print” I routinely check the “Agree” box on numerous documents and websites without reading what I have just agreed to.  You can hardly navigate modern life in any other way.  You certainly can’t see a doctor. 

But an employment contract should be treated with more care.  Consider what happened in La Villa ISD.  Dr. Elizondo signed a contract with La Villa ISD that stated right at the top “Second Year Probationary Contract.”  He had completed his first probationary year, and was renewed for a second year. A second probationary year. 

At the end of that second year the board voted to terminate Dr. Elizondo’s service to the district. Since it was a probationary contract, the board did not have to offer Dr. Elizondo a hearing, but only had to give him timely notice, which the board did.  Just three days later Dr. Elizondo filed a grievance over this, asserting that the probationary contract was issued in mistake, and that he should have been on a term contract.  The board denied his grievance because it was untimely. 

How could it be untimely when he filed the grievance just three days after being notified of his termination? The board reasoned that Dr. Elizondo should have filed the grievance within 15 days of the date when he was offered the contract. After all, his complaint was that it was the wrong kind of contract. But it clearly said “Second Year Probationary Contract.”  The grievance policy, DGBA (Local) required that grievances be filed within 15 days “of the date when the employee first knew, or with reasonable diligence should have known, of the decision or action giving rise to the complaint or grievance.” Dr. Elizondo knew it was a probationary contract when it was presented to him, which was about a full year prior to the board’s decision to end his employment with the district.

The Commissioner agreed with the district on this one.  The grievance should have been filed within 15 days of the issuance of the contract.  By waiting a full year to grieve, Dr. Elizondo failed to comply with DGBA and his grievance was properly denied.

There was another reason for the decision in favor of the district. The Commissioner noted that Dr. Elizondo “waived his right to complain about the type of contract that Respondent issued him when he performed under that contract for a year and accepted its salary and benefits.” 

This one is Elizondo v. La Villa ISD, decided by the Commissioner on February 22, 2022.  It’s Docket No. 049-R10-07-2021. 

DAWG BONE: READ THE CONTRACT.  IF IT’S THE WRONG KIND, FILE A GRIEVANCE.  NOW.

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

Tomorrow:  FERPA.