Yesterday I told you about the recent federal court decision holding that a Texas school district violated Child Find by not offering to conduct an evaluation of a high achieving student who was experiencing significant mental health issues. Despite that ruling, the court also held that the school did not fail to provide FAPE, and the parents were not entitled to recover attorneys’ fees. 

The court based the Child Find ruling on its belief that the school had enough information to justify a full evaluation. But that did not mean that the evaluation would demonstrate that the student qualified for special education services.   Moreover, in the due process hearing the parents bore the burden of proving that the student should have been declared eligible. They failed to do that. 

A lot of things happened in this case after the hearing officer’s decision, including evaluations of the student, but the court refused to consider any of that.  Following proper judicial protocol, the court based its decision on the evidence that was presented to the hearing officer. This was an appeal of the hearing officer’s decision, so it would be based only on the evidence presented to the hearing officer.

That’s where the parent’s case fell short.  They presented their own testimony along with an independent psychological evaluation that included a whole slew of instruments: a Wechsler Intelligence Scale, the Woodcock-Johnson, the BASC-3, Adolescent Parent Report, a Rorschach Inkblot Test, the MMPI, Million Adolescent Clinical Inventory, a Teenage Sentence Completion Exercise and a Substance Abuse Subtle Screening Inventory.  That’s a lot of testing, but the special education hearing officer found the resulting evaluation to be inaccurate and the court agreed:

Most importantly, the Hearing Officer concluded the Evaluation was not reliable or accurate because Dr. Kalenchak did not request or review C.B.’s education records from NEISD, did not review C.B.’s educational records from Pacific Quest [the residential facility where the student was served], and did not solicit information or other feedback from C.B.’s educators at NEISD or at Pacific Quest.  Further, Dr. Kasenchak did not review state assessment information because she did not consider C.B.’s academic proficiency relevant given the purpose of the Evaluation. Instead, Dr. Kasenchak assessed C.B.’s adaptive functioning by soliciting parent responses only.

That was not enough to move the needle, not enough to satisfy the burden of proof. Moreover, on the issue of “educational need” the district provided excellent testimony that the court described as “the most compelling evidence.”  Guess where that came from.  Teachers!!

C.B.’s English teacher testified that she did not observe C.B. have any panic attacks, C.B. was never disruptive in class, did not exhibit difficulty in performing daily tasks in a safe and efficient manner, never had difficulty controlling her behavior and mood, or difficulty making friends, and she never observed any instances of self-harm. 

C.B.’s Theatre teacher stated C.B. thrived in her class, as she was very interested and passionate about the subject.  For these reasons, C.B. performed well academically. C.B. did not exhibit any panic attacks, trouble breathing, or physiological symptoms of anxiety,  but instead exhibited excitement and strong interest in the class and in her assigned duties.  C.B. was never disruptive in theatre, did not have problems performing daily tasks in a safe and efficient manner, did not have difficulty controlling her behavior, and had many different types of friends in the theater department. 

There was more of this from the Pre-AP Algebra teacher, leading the court to summarize:

The evidence of testimony from C.B.’s teachers presents a more reliable perspective of C.B.s academic proficiency at the relevant time…and presents a picture of her ability to function in an educational setting at that time.

So there was insufficient evidence of an “educational need” meaning that the student was not eligible for services, meaning that the district did not fail to provide FAPE because the student was not entitled to FAPE.

The other issue in the case was about attorneys’ fees. Recall that the parents prevailed on the issue of Child Find when the court ruled that the district should have conducted its own evaluation of the student.  Normally, parents who prevail on a significant issue are entitled to recover some of their attorneys’ fees, even if they lost on other issues. So why not here?

Because attorneys’ fees can only be awarded to the prevailing party who is the parent of a “child with a disability.”  The court held that C.B. was not a “child with a disability.” The evidence did not show that she needed special education. Since she was not eligible, she was not a “child with a disability” and the court could not award attorneys’ fees even if it wanted to. 

It’s C.B. v. North East ISD, decided by the federal court for the Western District of Texas on February 16, 2022.  It’s reported in Special Ed Connection at 122 LRP 6123.

DAWG BONE: TESTIMONY FROM TEACHERS IS OFTEN “THE MOST COMPELLING EVIDENCE.”

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

Tomorrow: When to file a grievance….

I would guess that every district in Texas has a student like C.B.  She sailed through elementary and middle school with high grades, was identified as “gifted and talented” and took a number of advanced classes in high school.  But there was another side to her story.  She was seeing a psychiatrist and taking medication as early as second grade, and the diagnoses advanced through the years from ADHD to Generalized Anxiety Disorder to Major Depressive Disorder. A very bright student with significant mental health issues.  What is the role of special education for a student like this? 

During her 10^th grade year, C.B.’s parents placed her in a residential facility in Hawaii for three months, followed by a second placement in Utah for two months.  This was based on “self-injurious thoughts and suicidal ideation.”  The local school district was aware of this. But based on the student’s strong academic performance, the input of the teachers who knew her, and her robust intelligence, the district did not initiate an effort to evaluate C.B. for special education services.  Was that a violation of the district’s Child Find obligation?

The administrative hearing officer said that it was, and the federal district court has now affirmed that decision.  This turned out to be a harmless error by the school district, for reasons I will explain later.  For today’s Daily Dawg, and in light of it being Toolbox Tuesday, we’re just going to focus on how the court handled the Child Find issue.

Loyal Daily Dawg Readers know well that a student’s eligibility for special education turns on two factors: the student has  to have a disability AND the student has to show a need for specially designed instruction. In this case the school was well aware of the possibility that the student had conditions that might meet the definition of one or more of IDEA’s categories of disability. But there seemed to be no “educational need.”  Here’s how the court addressed that:

NEISD contends any failure to suspect  C.B. should be evaluated is excused by evidence of her superior intelligence and high academic achievement and performance.  Because C. B. always possessed superior intelligence and always maintained high academic performance, even with ADHD, her increased anxiety, and her extended absence due to treatment, NEISD contends it did not have reason to suspect she needed evaluation for special education services. 

The Court finds no merit or support for this contention. 

Really??? “No merit” to this argument?  There is plenty of merit to the contention that a student has to demonstrate a need for special services. But this court emphasizes two factors that we all need to remember when we think about Child Find.  First, it’s not all about academics:

These Child Find and FAPE obligations are not relieved or obviated by a student’s high intelligence or high academic performance.

The school district must not focus solely upon the student’s academic performance, but upon a holistic view of the student’s behavior, academic performance, and other indications.

Second, the focus should be on this particular student’s history:

Of particular importance, the more accurate barometer to respond to a student’s unique needs is to determine whether the student is experiencing academic decline or academic difficulties unusual for that student.  (Emphasis added).

This is the type of court decision that likely drives special education directors up the wall.  My guess is that if this same fact situation was presented to ten federal judges, they would split right down the middle, half throwing a penalty flag for a Child Find violation, and half not doing so.  We lawyers can always play it safe by suggesting that “when in doubt, offer an evaluation.” 

That is the safe approach.  And I am a lawyer, so I’m going to say it: when in doubt, offer an evaluation.

Despite this ruling against the district, the case turned out just fine for the district.  To understand why, tune in tomorrow!

It’s C.B. v. North East ISD, decided by the federal court for the Western District of Texas on February 16, 2022.  It’s reported in Special Ed Connection at 122 LRP 6123.

DAWG BONE: “EDUCATIONAL NEED” IS ABOUT MORE THAN ACADEMICS.

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

Tomorrow: As Paul Harvey used to say, “the rest of the story….”

LOYAL READERS! WE’RE ZOOMING WITH THE DAWG THIS FRIDAY 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. 

A wise decision by the Commissioner will likely avoid an uprising among the assistant principals of Texas.   The issue that could have sparked this revolt was: is the A.P. entitled to a Chapter 21 contract?  The conventional wisdom about that has always been: of course.  Imagine the arc of the career of an educator if that were not the case.  Most principals rise through the ranks from teacher to A.P. to principal.  They serve a probationary period at first, and then move on to a term contract. But at all times, as certified educators, they have a Chapter 21 contract.  So if A.P.s were not entitled to a Chapter 21 contract, the person would go from a Chapter 21 contract as a teacher; to a non-Chapter 21 arrangement as an A.P.; and then back to a Chapter 21 contract as a principal.  That would be strange.

Lawyers representing Mission CISD argued that the conventional wisdom is wrong, and that A.P.s should not be given a Chapter 21 contract.  This argument was based on T.E.C. 21.002 which spells out who is entitled to a Chapter 21 contract. The statute lists the groups that should be given a Chapter 21 contract as “each classroom teacher, principal, librarian, nurse, or school counselor.”  Notice who is missing from that list?  There is no mention of A.P.s. 

The Commissioner prevented the rupture in the ranks by citing a 2015 decision (Cooksy v. Dallas ISD, Dkt. No. 027-R10-03-2015) for the proposition that the term “principal” encompasses both principals and A.P.s. 

Whew!  I’m relieved….aren’t you? I mean with everything else that’s going on, we sure don’t need our A.P.’s going to the barricades. 

Today’s case is Solis v. Mission CISD, Docket No. 056-R1-07-2013, decided by the Commissioner on May 17 2021. 

DAWG BONE:  A.P.s GET A CHAPTER 21 CONTRACT. IT’S ONLY RIGHT.

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

Tomorrow: Toolbox Tuesday!!

Time for a break, Loyal DD Readers!  I think most of you will be on spring break next week, so the Dawg is going to take a week off as well.   But as we bid you adieu, let me be the first to wish you a very Happy St. Patrick’s Day!

Note: there will be no Zooming with the Dawg next Friday. For this month we are moving the Zoom call to the fourth Friday, which will be March 25. 

Look for the next Daily Dawg post on Monday, March 21. 

DAWG BONE:   TAKE A BREAK.  YOU DESERVE IT.

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

THE NAME POLICY.  The Brownsburg Community School Corporation in Indiana adopted a policy that required teachers to refer to students by the name that was logged into a school database.  Transgender students could change their first names in the database with parent permission and a letter from a health care professional.  They could also change their gender status and specify what pronouns should be used with them.

THE LAST NAME ONLY ACCOMMODATION. Mr. Kluge, a music/orchestra teacher, refused to comply with this policy, citing his religious beliefs.   Mr. Kluge believes that transgenderism is a sin, and that it would be wrong for him to encourage or support it.  School administrators agreed to accommodate Mr. Kluge’s concerns by allowing him to refer to students by last name only.  There would be no “Mr., Ms., or Miss” and no first names.  Adam Smith would be Smith.  Angela Jones would be Jones.

THE CONCERNS.  A teacher expressed concerns about this accommodation. This teacher was also the faculty advisor to the Equality Alliance, a student club that met weekly to discuss issues that affected students who were lesbian, gay or transgender. He reported that students and some parents were “not exactly happy about” this “last name only” practice.  In the meetings of the Equality Alliance some of the students also expressed their displeasure. They reported that they felt insulted and disrespected, and they were sure that Mr. Kluge had changed his practices because of the presence of transgender students in his classes. So they felt “isolated and targeted” which is what the school’s “name policy” was designed to prevent.

FORCED RESIGNATION.  About halfway through the school year the administration decided that the “last name only” accommodation was not working.  Mr. Kluge was told that he needed to either comply with the name policy, resign, or be terminated. He resigned, and then sued, claiming that the district discriminated against him based on his religion, by failing to accommodate his sincerely held beliefs.

THE LEGAL STANDARD.  Employers are required to “reasonably accommodate” the religious beliefs of employees. An accommodation is reasonable unless it would cause an “undue hardship” to the employer. So this case came down to a simple question: did the “last name only” accommodation create an “undue hardship” for the school district? The court held that it did. Key Quotes:

Mr. Kluge’s religious opposition to transgenderism is directly at odds with BCSC’s policy of respect for transgender students, which is grounded in supporting and affirming those students.

[The last name only accommodation] conflicted with its philosophy of creating a safe and supportive environment for all students. 

BCSC is a public school corporation and as such has an obligation to meet the needs of all of its students, not just a majority of students or the students that were unaware of or unbothered by Mr.Kluge’s practice of using last names only.  (Emphasis in the original).

One more thing:

In this case, continuing to allow Mr. Kluge an accommodation that resulted in complaints that transgender students felt targeted and dehumanized could potentially have subjected BCSC to a Title IX discrimination lawsuit brought by a transgender student…..The increased risk of liability also constitutes an undue hardship that Title VII does not require BCSC to bear.

It’s Kluge v. Brownsburg Community School Corporation, decided by the federal court for the Southern District of Indiana on July 12, 2021.  It’s cited at 2021 WL 2915023. 

DAWG BONE: WE’RE LIKELY TO SEE MORE CASES LIKE THIS.

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

Tomorrow: is Friday.

Mr. Schumann’s contract with the school district had some provisions you don’t normally see in such a document. To wit:

*In the event of a reassignment, there would be no reduction in pay from the six-figure salary he had as the superintendent’s Chief of Staff.

*He could be terminated only for an intentional violation of the Educators’ Code of Ethics.

*If the superintendent was ever placed on administrative leave, or left the district, the employee could 1) continue to work under the contract; 2) resign within 45 days and receive one years’ salary at the next pay period; or 3) enter paid administrative leave status for 180 days, with all communication between the employee and the district in writing while the employee would be required to work no more than three hours, one day a week.

I’ll bet you Smart and Loyal Daily Dawg Readers can guess what happened next. The superintendent resigned just two months after this contract was signed.  Mr. Schumann chose to stay on board, which was the first of his three options.  Thus he maintained his hefty salary.

I’ll bet you Smart and Loyal Daily Dawg Readers can guess what happened next! The district reassigned him to Transportation Supervisor, and reduced his salary by $84,067.60.  That’s not a typo, nor is it his new salary.  It’s the amount of the reduction.  Five months later, the district voted to terminate the contract altogether.

I’ll bet you Smart and Loyal Daily Dawg Readers can guess what happened next!! Litigation!!  Remember: the contract gave him the option to stay on board; it prohibited any reduction in salary; and it permitted termination only for an intentional violation of the Code of Ethics. So the case really hinged on the validity of this unusual contract.  The district argued that the contract was not binding on the district, that the superintendent had gone way overboard, way beyond his authority by entering into such a contract.

Did the superintendent have that authority?  Well…that depends on the superintendent’s contract.  The superintendent’s contract gave him sweeping power to employ personnel without board approval.  Moreover, the contract specified that if there was a conflict between board policy and the contract, the contract prevailed.  

This all ended up in the Commissioner’s lap and he ruled that the district breached a valid contract by reducing the man’s pay, and by terminating his employment.  The Commissioner found that the sweeping language in the superintendent’s contract gave him the power to include some unusual provisions in the contract for his Chief of Staff. What about the fact that some of those provisions violated board policy?  The Commissioner said this:

The contract itself, which was signed by the Board President and attested by the Board Secretary, states that if there is a conflict between the contract and board policy the contract controls.  Thus, the contract creates exceptions to board policy. Is not an exception to a board policy, created by the Board itself, a board policy?

Mr. Schumann was not entitled to get his “Chief of Staff” position back because this was a non-Chapter 21 contract, and so he was not entitled to remain in the same professional capacity.  But he won on the big issues. The district was ordered to restore his full pay, including backpay, and keep him employed until the contract is properly terminated, he resigns, or the contract expires. 

It’s Schumann v. South San Antonio ISD, decided by Commissioner Morath on March 22, 2021 in two separate decisions, one dealing with the reduction in pay, and the other dealing with the termination of employment. They are Docket Nos. 051-R10-08-2020 and 048-R10-07-2020.

DAWG BONE: BEWARE OF FUNKY CONTRACTS.

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

Tomorrow: transgender students, their names, and a teacher’s religious beliefs….

The Toolbox is our firm’s one-day training program regarding the discipline of students with disabilities. Today’s Toolbox Tuesday is about an important ruling from a Circuit Court. The case did not involve a student with a disability, but the issues the court addresses could have involved any student. So let’s dive in. 

It started with a teacher informing school administrators that there was an aroma of burning marijuana in the classroom. The principal and A.P. searched the belongings of every student in the class and came up with some stems and seeds, rolling papers, two lighters and an assortment of pills in the backpack of T.R., a 14-year old girl, soon to be known as “the Plaintiff.”   The administrators then conducted an investigation, which included their questioning of T.R.  She admitted that she had a drug problem and regularly smoked pot. But she denied the specific charge of lighting up in the classroom and further denied possession of anything beyond what they had already found.  Meanwhile, two classmates of T.R. told the principal that they had witnessed her lighting a marijuana cigarette in the classroom.

Let’s pause right there.  What would you do based on that information?  It seems to me that the administrators already had sufficient evidence to take disciplinary action.  The teacher smelled something. The girl had the remains of the product in her backpack.  Two classmates offered eyewitness testimony.  If they wanted to charge her with possession of drugs on campus, they already had enough evidence. It may not be enough evidence for a criminal conviction, but it’s enough to establish a violation of the Code of Conduct. 

They also had a student who deserved some help from the district in dealing with her drug problem. She just admitted it.  Shouldn’t this trigger an intervention? A call to the parents? The involvement of a counselor or social worker?

Maybe the school did that—we can’t tell from the court’s opinion. But what we know is that they decided to conduct a strip search.  The school district disputes some of the facts alleged by the Plaintiff, but at this stage of the game, the court is required to assume that the allegations are true. Those allegations are that the 14-year old girl was required to strip to her underwear. Twice.  And it was during her menstrual cycle, leaving her feeling “humiliated and embarrassed and gross.”  The searches were conducted by two women—the principal and the counselor.  As usual in cases like this, they didn’t find anything. The next day the teacher found the remains of the marijuana cigarette under the girl’s desk. 

The Plaintiff is suing the principal, the counselor and the superintendent.  They all asked the court to dismiss them from the case based on qualified immunity.  Qualified immunity is a legal doctrine that protects school officials from personal liability unless they violate legal standards that are “clearly established.”  There are many cases in which the court finds that a school official violated legal standards, but that those standards were not “clearly established.”  Unfortunately for the defendants in this case, the court held that the standards about strip searches are clearly established, and these educators should have known that what they allegedly did was a violation of the 4^th  Amendment.  The court cited an earlier Supreme Court case (Safford USD No. 1 v. Redding, from 2009) and an 11^th Circuit case from 2016 (D.H. v Clayton County School District).  Both of those cases held that the strip search of a student in pursuit of drugs was a violation of the 4^th  Amendment.

I hope the point is clear.  As educators, you are expected to have a basic understanding of what the law requires of you and what it prohibits.  Things that are settled law by virtue of earlier court decisions are things you are expected to know about.  You don’t have to know the name of the case, or the details of the ruling. But you should know that requiring students to strip to their underwear in pursuit of a small quantity of drugs is not permitted. This is clearly established. 

The Daily Dawg is designed to serve as one vehicle that helps you stay up to date with important legal developments, like this case.  It’s T.R. v. Lamar County Board of Education, decided by the 11^th Circuit on February 4, 2022.  It’s cited at 2022 WL 336343.

DAWG BONE: SEARCHING STUDENTS: NO NEED TO GO FURTHER THAN NECESSARY.

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

Tomorrow: One for the Sheesh-O-Meter!

The 5^th Circuit not only ruled in favor of Eagle Mountain-Saginaw ISD and against Dr. Keith Bell. It also ordered Dr. Bell to reimburse the district for the attorneys’ fees it incurred defending his claim of copyright infringement.  Here is the final paragraph of the court’s opinion:

Bell is not the typical copyright plaintiff seeking “a fair return for [his] creative labor.”  He has a long history of suing public institutions and nonprofit organizations over de minimis uses of his work.  Taking these cases into account, the district court reasonably concluded that Bell is a serial litigant, who makes exorbitant demands for damages in hopes of extracting disproportionate settlements. This case is another in the line. The school shared a single page of Bell’s work with fewer than 1,000 online followers and immediately removed the posts upon request.  Bell was unable to identify any actual financial injury associated with that use but brought suit anyway.  Attorney’s fees were thus an appropriate deterrent, both with respect to Bell and other copyright holders who might consider a similar business model of litigation.

Faced with a request for a hefty monetary settlement, EMS ISD drew a line in the dirt and agreed to fight. Just like Colonel Travis at the Alamo.  But unlike Colonel Travis, EMS ISD won.  And I’m pleased to let you know that the lawyers who led the fight for the district were my partners, Kelley Kalchthaler and Meredith Walker.

Just for your reading pleasure, I’m going to include here the Daily Dawg write up from the lower court’s decision in this case. That decision was just as decisive, but more fun to read. Enjoy.

The federal judge in the case of Bell v. Eagle Mountain Saginaw ISD had some fun writing his opinion.  He describes the plaintiff, Dr. Keith Bell, as “an infamous slugger known in federal courts around the U.S. for throwing heavy-handed hooks at non-profits and taxpayer funded school districts in the hopes that they throw in the towel and let him take the purse.”  The EMS ISD is described as “the underdog….a scrappy, counter-punching independent school district.”  The judge continues with the boxing metaphor through all 20 pages of his decision, which is best absorbed while listening to the soundtrack from Rocky.

The district won the case in a four-round knockout.  Not only that, the court ordered Dr. Bell to reimburse the district for its attorneys’ fees and costs.  Now that is a satisfying outcome. 

Dr. Bell sued the district after two district affiliated Twitter pages posted a photograph of a single page of a book he had written and copyrighted.  When informed of the issue, the district removed the posts and informed Dr. Bell that it would treat the incident as a “teachable moment.”

That did not satisfy Dr. Bell. He wanted a monetary settlement, despite the absence of any indication that these posts on obscure Twitter pages with fewer than 1000 followers had any adverse effect on book sales.  But EMS refused to throw in the towel and thus the “infamous slugger” and the “scrappy counter-puncher” ended up in a boxing ring that looked a lot like a federal court.

In the course of his opinion the judge cites two football coaches (Vince Lombardi and Bear Bryant), two presidents (Lincoln and Teddy Roosevelt), two generals (Patton and MacArthur) and one saint (Jerome).  All this comes in a section of the opinion with the heading: “Eagle Mountain breezes by Bell’s blow and delivers a devastating uppercut.”  That uppercut established that the use of Bell’s copyrighted work amounted to “fair use.”  It’s a knockout in favor of the underdog.  Rocky wins! 

But it gets better.  After the analysis of “fair use” under federal copyright law the judge notes that “This Court, like any good referee, does not tolerate unsportsmanlike conduct.”  Oops!  A football reference slips into an elaborate boxing metaphor! But let us overlook that for the moment. Let us instead appreciate Hizzoner’s laser focus on the motivation that drove this suit. 

“The issue is not that he seeks to enforce his copyright,” said the judge, “but that he seeks a disproportionate amount to settle his claims in a repulsively pungent pattern that repeats tens, if not hundreds, of times over.”  The judge cited “the plethora of lawsuits Bell has filed throughout the United States.” The “unavoidable conclusion,” according to the judge is “that Bell continues to insist on extorting public schools by abusing the Copyright Act.”   

Sheesh! The judge was hot!  And thus he ordered Dr. Bell to pay for the district’s fees and costs, noting that these sums “shall be extracted solely from Bell, not his counsel.” 

The judge was The Honorable Mark Pittman of the Northern District of Texas. The order is dated March 26, 2021.  And I’m pleased to let you know that the “devastating uppercut” was delivered by Kelley Kalchthaler, one of the shareholders in the Walsh Gallegos law firm.

DAWG BONE: IF ONLY HOWARD COSELL WERE HERE: “DOWN GOES BELL!”

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

Tomorrow: Toolbox Tuesday!!

A wise person once told me that this date is the most assertive day of the year. That’s because it commands us to March Forth!  So let us consider how we can March Forth to change the world.

I think we can. It’s just that our impact is usually small, and often impossible to measure.  But we can, and we do, change the world with every day of our lives.  I have noticed that the smaller the group is, the larger my impact. At a restaurant table with four people, one person might dominate the conversation, thus changing the experience for the other three, and not in a good way.  By the same token, one person can skillfully facilitate interaction at that table that gets everyone involved. 

Consider the relationships that you encounter every day.  At my house, it’s just me and Mrs. Dawg.  We affect each other. A lot.  The good news of this is that I can produce change in her by changing myself.  The bad news is that I can’t control exactly how or when she will change. But I know from experience that when I change, the relationship changes. So she changes also.

The same is true at the office, where I encounter a larger, but still finite group of people. 

I’m sure that teachers see this principle play out every day.  Obviously the teacher has an effect on every student in the classroom. But every student in the classroom also has an effect on every other student in the classroom. And on the teacher. We change each other.

With every step we take, every decision we make, every word we speak, we have our impact on the world.  So let us March Forth on March Fourth to take positive steps, make good decisions, and offer words of support and encouragement to each other.  Let’s change the world. 

DAWG BONE: YOU CAN CHANGE THE WORLD.  YOU DO CHANGE THE WORLD.

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

Last year the Office of Special Education Programs (OSEP) issued a letter addressing some of the issues that arise when schools serve students with disabilities who are also English language learners.  Does the IEP Team have to include someone with expertise in that area?  The response is pretty general:

To ensure that appropriate IEPs are developed for English learners with disabilities, including English learners with the most significant cognitive disabilities, the IEP Team should include participants who have the requisite knowledge or special expertise regarding the student’s language needs.  Letter to Boals, 80 IDELR 24 (OSEP 2021).

Well….of course it should.  But OSEP can only address this issue based on federal law, which is not very specific about it.  Here in Texas, however, we have a lot more experience than most states in serving students whose native language is not English.   Therefore, we have specific guidance.

Texas requires LPAC representation on the ARD Committee.  The regulation is at 19 T.A.C. 89.1050(c)(1)(J):

ARD Committees must include the following:

(J) a professional staff member who is on the language proficiency assessment committee who may be a member of the committee described in subparagraphs (B) and (C) of this paragraph, if the student is identified as an English language learner. (Note: the new terminology is Emergent  Bilingual Student).

Subparagraphs (B) and (C) refer to the two teachers who must be members of the ARD—one from special ed and one from general ed.  So if one of the student’s teachers is also a member of the LPAC they can serve in a dual role at the ARD.  What about the administrator? Can the assistant principal wear two hats at the ARD meeting, serving as both the “representative of the public agency” and the LPAC rep? 

No.  This is addressed in FAQ #B-5 in “FAQs—LPAC and Emergent  Bilingual Students:

Can the administrator in an ARD committee meeting for an EB student who also receives special education services perform the role of the ARD committee administrator and the role of the LPAC representative simultaneously?

No.

Actually, the answer then explains why it says “no” but I already explained that here, so I won’t repeat it. However, I do think the final part of the answer to FAQ B-5 is helpful:

Typically, the best representative of the needs of the EB student in the ARD is the bilingual or ESL educator from the LPAC that directly instructs the student and has detailed knowledge of the student’s linguistic needs and strengths.  

If we don’t staff the ARD meeting properly we are running the risk of a complaint that we failed to comply with IDEA’s procedures. More importantly, we might fail to address an important student need. So let’s be sure we have LPAC representation at the ARD Committee meeting. 

DAWG BONE:  EDUCATORS HAVE THE OPPORTUNITY TO SERVE ON MANY, MANY COMMITTEES!  PAD YOUR RESUME!

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

Tomorrow: a significant date…