You never know what you might learn from bouncing around on a school district’s website. I was looking for one thing on the Harlingen CISD’s site when I came across something else--a nice picture of the Student Advisory Board.  Superintendent Dr. Alicia Noyola informed me that this group has been operational in the district for many years. The students are the elected leaders in middle and high schools.  They meet with the superintendent monthly to share information and provide feedback on how things are going. 

In speaking with Shane Strubhart, the district’s Associate Superintendent for Community Engagement, I learned that former superintendent Steve Flores started up this group.  Shane expressed great joy about his involvement with this group of student leaders.  Shane told me that the students understand the gravity of their role, representing the 17,000 students in the district. The Advisory Board has been particularly important during the pandemic, helping the district keep an eye on student stress levels.  The SAB is beneficial to the district, and obviously to the students as well. The district provides leadership training to the members of the SAB, bringing in school district leaders as well as outside speakers, including the mayor.

What a good idea!  Does your district have one? 

In Harlingen there are 22 students on the SAB, each one pictured wearing their official, blue, Student Advisory Board shirt!  These are your future school board members, I’m sure. Community leaders. 

The only thing I noticed that was somewhat disturbing was the absence of gender equity on the Board.  Seventeen girls.  Five boys. C’mon, guys!!  Man up!!

DAWG BONE: STUDENT ADVISORY BOARD.  GOOD IDEA!

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

Tomorrow:  ARDs and LPACs…

The Toolbox features ten “tools” that schools can employ to properly serve those students with disabilities who engage in challenging behaviors.  Two of those involve moving a student to an MRE—a More Restrictive Environment.  We describe both of these tools as an Educational Change of Placement. Why two?  Because one is done the easy way, and one is done the hard way. Tool #2 is an Educational Change of Placement with Parental Agreement (easy way); Tool #3 is an Educational Change of Placement Without Parental Agreement (hard way).

The goal is to serve each student in the LRE—the least restrictive environment.  The school should propose a move to an MRE only when things are not going well.  That’s what happened with a student in Florence ISD.  The student frequently eloped or just did not show up, and often engaged in “escape-motivated” behaviors.  There were physical altercations with staff and at least a couple of uses of restraint.

Florence ISD proposed moving the student to what it called a Base Camp.  This was a self-contained setting designed to address these behaviors.  The parent agreed to it.  That would be the use of Tool #2.  However, a few months later, the parent sought an even more restrictive placement—a residential placement.  The school did not agree to that, and so….litigation.  The federal court’s decision in favor of the district nicely illustrates the connection between student progress and student placement.  If the student is not making progress, a move to an MRE might be the right thing. But if the student is making progress, the student is already in the LRE for that student.  In this case, both the hearing officer and the court held that the district complied with the law and provided FAPE.

The federal court addressed three issues that are worth mentioning here. 

Progress Reports.   It must be exasperating for educators to be accused of not providing progress reports when the school has carpet bombed the parent with information. Consider this:

For example, [the parent] was provided with reports on May 25, 2017, October 13, 2017, December 15, 2017, March 9, 2018, and May 29, 2018. She also received a report on [the student’s] progress during the individualized ESY services in summer 2017. Further, FISD maintained daily behavior report cards….

“Daily” report cards. But the parent’s lawyer claimed that the district did not report on progress. Sheesh. 

Least Restrictive Environment.  The parent’s lawyer argued that the district was not serving the student in the LRE.  That’s a tough argument to make when the parent is seeking an even more restrictive setting:

The Court notes here that the greatest obstacle to [the student’s] interaction with other students was his excessive absence from school, which deprived him of any interaction with his peers.  Further, [the parent] requested to place [the student] in a residential treatment center—which is the most restrictive placement possible and without question more restrictive than the Base Camp program she challenges.

Progress.   It was the lack of progress in the regular school setting that justified the move to the Base Camp.  It was the evidence of progress in the Base Camp placement that showed that a move to an even more restrictive setting was not called for.  While in Base Camp the student achieved good grades in classes and satisfactory scores on STAAR.  Behavioral problems continued but there was progress there as well, especially with regard to attendance.  Given that progress, the move to an even more restrictive environment was not called for.

It’s T.L. v. Florence ISD, decided by the federal court for the Western District of Texas based on the magistrate’s Report and Recommendation which can be found at 2021 WL 4434928.  Kelly Janes and Todd Clark, lawyers in our Austin office, helped the district out in this one. 

DAWG BONE: IS THE STUDENT DOING WELL?  LEAVE THINGS ALONE.  NOT DOING WELL?  PROPOSE A CHANGE.

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

Tomorrow: Student Advisory Council

I’m going to tell you about the court’s decision in the case of Avila v. Harlingen CISD, but the main point of emphasis today is on strengthening services to meet the mental health needs of students.  This is student suicide case. A sixth grader.  Regardless of how the courts view such matters, every one of these tragedies is a reminder that our public schools are serving many children who are carrying something that feels too heavy for them to bear. 

The federal court dismissed the lawsuit filed by the boy’s parents. The suit named both the district and one of the student’s teachers as defendants. The court dismissed all claims against both parties.  When I read decisions like this, I can tell that the judge is trying to express personal empathy while at the same time analyzing the legal issues objectively, based on existing standards of the law.  Thus we get a quote like this:

The Court notes that Jake’s death is undeniably tragic. It sympathizes with the pain that the Plaintiffs continue to experience, even if it cannot fully appreciate it.  But the Court’s role is not a roving educational administrator that judges the parties based on best practices or what it thinks should happen. 

The legal standards are pretty clear. Students have a constitutional right to be free of violations of their bodily integrity inflicted by school employees. This is why a teacher sexually molesting a student implicates constitutional issues. But public schools do not have a constitutional duty to protect students from any and all harms.  They are not responsible for protecting students from acts of violence inflicted by others.  Thus the court concluded that there was no constitutional violation here, either by the school or by the teacher.

The federal court for the Southern District of Texas dismissed the suit on December 15, 2021.  My partners Leandra Ortiz (Rio Grande Valley office) and Katie Payne (San Antonio) helped the district navigate this difficult case. 

Your district has policies that address student threats of self harm. Take a look at FFB Legal and FFB Local.  “Threat assessments” are called for when students make threats of self harm.  They are not only about threats of violence aimed at others.  Take a look also at FFEA Legal, which cites the Texas Family Code for the proposition that minors can give consent for counseling for suicide prevention, TFC 32.004(a). 

We need more staff. We need more funding.  While we advocate for more help from the state, we have to use what resources we have wisely.  I’d be delighted to never again have a student suicide case to tell you about.

DAWG BONE:  LOCAL POLICY ADDRESSES THIS ISSUE. TAKE A LOOK.

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

Tomorrow: Toolbox Tuesday!!

Here at the Daily Dawg we tell you about many disputes between school districts and parents over what happened at an ARD meeting. The law requires that schools solicit and value parental input. It does not require that schools defer to parental preferences.  When parents come away from the meeting feeling that they weren’t heard, they may turn to the law for a remedy.

Here’s a succinct quote from a 5^th Circuit case that I think properly places this issue in the right perspective:

Absent any evidence of bad faith exclusion of the parents or refusal to listen to or consider the [parents’] input, [a school district] has met IDEA requirements with respect to parental input.

That’s not too hard of a standard to satisfy.  Solicit.  Listen.  Treat parent input as important, because it is.  Give it thoughtful and careful consideration. That’s all that is required.

That quote comes from White v. Ascension Parish School Board, 343 F.3d 373, 380 (5^th  Cir. 2003).

DAWG BONE: SCHOOL LAWYERS SHOULD REMEMBER THAT QUOTE TOO.

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

Disability Rights Texas along with several parents of students with disabilities have sued the Austin ISD alleging that the district has failed to conduct evaluations in timely fashion.  Among other remedies, the suit seeks an order that the district conduct an ARD meeting for each child whose services were delayed to consider if compensatory services are owed.  The case has a long way to go, but the court has already rejected one of the district’s arguments. The district argued that the plaintiffs could not go straight to court with something like this. They should first pursue their claims through a special education due process hearing.

The court disagreed.  As a general rule, people complaining of violations of IDEA do have to go through the administrative process. But one of the exceptions to that rule is called the “futility” exception.  If the administrative process would be “futile,” it need not be pursued.  Futility applies if “an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law.” That’s exactly what the plaintiffs allege.  Moreover, the problems alleged could not all be chalked up to the pandemic.  Key Quote:

Plaintiffs in this case have alleged a systemic violation of the IDEA.  Although the pandemic has made working conditions difficult for AISD, plaintiffs complaint alleges conduct that reveals systemic issues in the implementation and fulfillment of AISD’s IDEA obligations.

The suit alleges that much of this can be traced to “staffing decisions and AISD’s failure to follow state guidance.”

The court refused to dismiss the case, and so it will proceed.  Of course we now have a state law that requires all schools to do what the plaintiffs ask this court to order: to consider if compensatory services are needed due to a delay in completing the initial evaluation or developing the initial IEP.  So it will be interesting to see how the court deals with that.

This decision does not spell out for us what the “staffing decisions” were that allegedly contributed to the problem. But it’s a good reminder that these are the kind of issues that can come up in litigation.  Staffing is particularly challenging right now, and districts will want to be sure to keep a good written record of all of the efforts to maintain adequate staff levels. 

Let’s put it this way: the best position to be in is to have all positions adequately filled with properly qualified people. The next best position is to have records to show that any failure to do that was not due to a lack of effort, and was certainly not a conscious decision. 

This one is J.R. v. Austin ISD, issued by the federal court for the Western District of Texas on December 12, 2021. It’s located at 2021 WL 6374871.

DAWG BONE:  MAKE EVERY EFFORT TO STAFF ADEQUATELY. 

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

Tomorrow: a helpful nugget…

It was fortunate for Harlandale ISD that there was a clear written record of exactly when it informed the parent that her daughter did not qualify for special education services. That happened on April 4, 2017.  Instead of offering an IEP, the district declared the student eligible for a plan under Section 504. 

The statute of limitations for an IDEA claim began to run on that date.  We have a one-year statute for IDEA claims in Texas. The 2021 legislature amended the law to extend the statute to two years, but that amended law is not yet in effect.  In this case the parent and/or adult student had one year in which to request a hearing from T.E.A. to challenge the DNQ (Does Not Qualify) decision. The student did request that hearing, but waited until June 25, 2018 to do so. Too late.  The hearing officer ruled that it was untimely and dismissed the case. Now the federal court has affirmed that decision. 

This student had also sued the district over Title IX, alleging that the school did not value the safety of the girls on the dance team as much as it did the boys on the football team. The court dismissed that claim, as we informed you with the Daily Dawg entry for March 4, 2021.

Title IX claim dismissed in 2021.  IDEA claim dismissed in 2022.  The 504 claim was dismissed also, for reasons too boring to recount here.  We try to keep it interesting.  This one is Cano v. Harlandale ISD, decided by the federal court for the Western District of Texas on January 21, 2022.  It’s located at 2022 WL 198701. I’m pleased to let you know that two of the excellent lawyers in our firm’s San Antonio office—Craig Wood and Katie Payne—helped produce this result for the district. 

DAWG BONE: MAKE A CLEAR RECORD AND THE STATUTE OF LIMITATIONS CLOCK STARTS TICKING.

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

Tomorrow: delayed evaluations….

Lawyers draw a distinction between the “holding” of the court and all the other things that the court puts in its opinion.  Much of the rest of the stuff is referred to as “dicta.”  So if you don’t like a particular sentence in the court’s opinion, you would point out that “it’s just dicta. It’s not the holding.”

Nevertheless, dicta is worth paying attention to sometimes, particularly if it alerts us to things that are important.  I think we would all agree that preventing bullying is important.   With that in mind, here is a bit of “dicta” from a 5^th Circuit decision from 2019:

C.J.’s parents also allege that Houston ISD denied C.J. a FAPE by failing to convene a timely ARD meeting to address his bullying concerns and by allowing him to be bullied so extensively that he refused to attend school altogether.   This ‘school refusal’ claim has been recognized as a proper vehicle for a cause of action under the IDEA by a few courts in other circuits.  See, e.g., T.K. v. NYC DOE, 810 F.3d 869 (2^nd Cir. 2016).

In that case (Renee v. Houston ISD, 913 F.3d 523 (5^th Cir. 2019) the court ultimately concluded that Houston ISD did not deprive the student of FAPE, but as you can see, the court pointed out that a bad case of bullying can be a denial of FAPE.  More accurately, a bad case of bullying that is ignored by the school can be a denial of FAPE. 

In the Toolbox, we offer ten “tools” that schools can use to address inappropriate behavior from students with disabilities.   The Toolbox is relevant for students who engage in bullying as well as those who are its targets. Both sets of students need help. Both should at least be considered for a behavior plan that would provide positive interventions, supports and strategies.  Of course the student who engages in bullying is also subject to punitive measures for violating the Code of Conduct. But punishment alone is rarely effective.  Moreover, bullying is a behavior that impedes the learning of other students. That means that the student is a good candidate for a BIP.

Toolbox 4.1 is up to date with the latest from the Texas legislature about FBAs, BIPs and all the rest. So let me know if you are interested in learning more. 

DAWG BONE:  BULLYING IMPEDES LEARNING.  EVERY TIME.

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

Tomorrow: the statute of limitations comes into play

A federal court recently issued another decision in a case from Katy ISD that sprang from an incident in November, 2016 when a School Resource Officer (SRO) tased a student.  The Daily Dawg has reported on this piece of litigation twice before: see July 16, 2019 and January 13, 2020. In these earlier decisions the court ruled in favor of the KISD, while declining to dismiss the case against the SRO.  Those decisions are about liability. This one is about FAPE.  It’s an appeal of the decision of the special education hearing officer that the district provided FAPE. The parent disagreed and appealed that decision to the U.S. federal court.

There were some facts that did not reflect well on the school, starting with the tasing incident.  After that happened, the student did not attend school much at all.  He missed 98 days of school in the spring of 2017, and 200 days over all in 2017 and 2018.  Not good.  However, there was evidence of good performance when the student was in school, and there was a lot of evidence of the district’s good faith efforts.  

Much of the decision is based on the interactions of the parties after the tasing incident.  The court noted a few factors that seemed to tilt the decision in favor of the district:

1.  “Multiple employees reached out to [the mother] after the tasing incident.”
2. “The assistant principal and [the mother] discussed the tasing incident, but [the mother] ended the phone call before the assistant principal could fully explain.”
3. The district pointed out that the mother had testified that she had spoken to the diagnostician “billions” of times; to one of the teachers “frequently,” to another teacher “every other day.”  This undercut the allegations that the district had been non-communicative.
4. The mother declined to give consent for district staff to discuss the student with some of his outside mental health providers.
5. The district recommended ESY, but the mother declined to accept the district’s offer of transportation for this.
6. It was difficult to schedule an ARD meeting, due in part to non-responsiveness from the parent.

The court’s opinion never uses the term “parental responsibilities,” but they are implied.  IDEA is built on a framework that assumes good faith collaboration between people who all want the same thing: that the student have a good experience in school.  This means that parents should actively cooperate in finding a time for an ARD meeting; give consent to evaluations that are called for, unless there is some strong reason not to; allow school staff to speak with outside professionals who have worked with the student; take advantage of any and all educational services the district offers. 

As is typical in cases like this, the mother had a very different perspective on the situation, alleging that the district was non-communicative, non-responsive and never effectively addressed the trauma that the student experienced from the tasing incident. Hearing officers and judges have to sort out those different perspectives based on the testimony and written record. In this case, that favored the district’s view.

It’s Washington v. Katy ISD, decided by the federal court for the Southern District of Texas on January 6, 2022.  It’s cited as 2022 WL 61160.

DAWG BONE:  GOOD FAITH COLLABORATION EXPECTED FROM ALL PARTIES.

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

Tomorrow: Toolbox Tuesday!!

WE’RE ZOOMING WITH THE DAWG THIS MORNING AT 10!  I HOPE TO SEE MANY LOYAL DAILY DAWG READERS.  KATIE PAYNE FROM OUR FIRM’S SAN ANTONIO OFFICE WILL BE JOINING ME FOR A DISCUSSION OF THESE “BOOK REMOVAL” CASES.  BE THERE!

This week we have reviewed three important court cases involving decisions by a school board to take certain books out of the school library. Today I offer a few takeaways from these cases. 

1.  You have to start with the reality that the school library is paid for with public funds, which are entrusted to the management of school officials. Ultimately, that means the school board.  This is why we call them “trustees.” They are entrusted to manage all school operations in a way that supports the basic mission of our public schools.
2. Courts will generally not interfere with school board decisions.  When decisions involve judgment and discretion, such as in the case of what books should be in the library, courts start out with a great deal of deference to the decisions of the elected trustees.
3. But that’s not the end of it.  These cases make it clear that members of the school board do not have “unfettered” discretion.  There are fetters.  
4. Board members and state-level educational officials have more discretion over curriculum content and textbook selection than they do over library books. That’s because the curriculum and the textbooks (or other instructional materials) are required.  They should promote the ideas and values that we seek to pass on to the next generation.  The library is different. No one is forced to read a book from the library.  If the library does not include some books promoting ideas you disagree with, you don’t have much of a library.
5.  The critical issue in these court cases is motivation. Why did the board choose to order the removal of this particular book? 
6. Courts determine motivation by what is done and by what is said. We highlighted three prominent cases this week and in two of them the court claimed that it did not yet have enough information to decide about the board’s motivation. The third case (Miami-Dade) had a more robust record of board statements on the record. Based on those statements, the court was persuaded that the board’s motivation was to promote accuracy, rather than to suppress ideas.
7. The failure to follow existing district policy raises red flags. It will cause a court to want to know: why did they do that? 
8. Whoever makes the decision should read the entire book.  Failure to do so is another red flag.
9. Decisions to remove a book based on pervasive vulgarity, graphic sexuality, educational unsuitability, or factual inaccuracy are more likely to be approved by a court, as opposed to decisions that smack of “we don’t agree with what this book says.”
10. TASB has promulgated a good policy that addresses these issues. Take a look at EF Legal and Local.  

I’m going to make one more point here, and it’s a good time for me to remind you that the Daily Dawg sometimes includes opinions, and that I am the only person responsible for those opinions. So here is one of them: it would be a good idea if all of us were more precise in our language about what is going on in these book controversies.  In the 11^th Circuit case from Florida, the court spends many pages drawing a distinction between “banning” a book and “removing” the book from the school library. The court points out that school boards have never “banned” a book. They don’t have that power.  Books that are taken out of the school library are available on Amazon and many other places.  Moreover, sales of such books go through the roof. We would be more accurate if we were more precise. School boards sometimes order that a book be “removed” from the library or that access be restricted.  Let’s quit accusing school board members of “banning” books.

DAWG BONE: SEE YOU AT 10, LOYAL DAILY DAWG READERS!!

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

The books that end up in contested court cases are usually pretty edgy.  You will usually find a lot of vulgar language and sexuality. Or, as in Voodoo and Hoodoo, you will find descriptions of unorthodox practices that scare the bejesus out of some parents.  But today’s case is about a simple 32-page reader for children aged 4-8. It was titled A Visit to Cuba! and was one of a series of books with similar titles and identical formats that introduced small children to the countries of the world.  There was no vulgarity.  No sex.  No discussion of religion.  Just a simple introduction to the geography, climate, language, and customs of countries around the world.  Simple declarative sentences and big colorful pictures. Just right for little children learning to read.  What could be wrong?

Facts could be wrong, particularly if those facts were the subject of political controversy. As you read about this case, think about the current climate of fact-based controversies with political undercurrents.   

Today’s case is ACLU v. Miami-Dade County School Board.  It’s about a book that probably would not have stirred up as much controversy in other parts of the country. But when Mr. Amador, one of Fidel Castro’s former political prisoners, read the book his little girl brought home from the school library he was incensed.  He asked the school to take the book out of the library.

At the board meeting where the issue was decided one of the board members described the political pressure that was in play in South Florida. He said that if some of his fellow board members did not vote to remove the book “they can’t walk out of here. If they don’t vote for [removal of the book] they can’t go home, they might find a bomb under their automobiles, and I feel that’s a shame to be put upon a school system that we are trying to train our children to have equality and justice.”

The board did vote to remove the book (6-3), and the ACLU took up the cause.

The 11^th Circuit’s opinion along with the dissent of one judge runs 62 pages.  Here at the Daily Dawg we’re going to cut to the chase.  The court upheld the board’s decision to remove the book. The basis this time was not vulgarity or sex or unusual religious practices. Nor was it politics, although that was the undercurrent of the case. It was accuracy.  The board members determined that the book contained numerous inaccuracies, both in what it said and in what it did not say.  For example, the simple statement that “People in Cuba eat, work, and go to school like you do.”  The board members faulted that statement for what it left out and for what it implied—that life in Cuba was just like life in Florida.  Here’s the Key Quote:

The record shows that the Board did not simply dislike the ideas in the Vamos a Cuba book. Instead, everyone, including both sides’ experts, agreed that the book contained factual inaccuracies. Factual accuracy in a non-fiction book is not a ‘matter of opinion.’  Under the Pico standard we are applying, the Board did not act based on an unconstitutional motive.

The court’s opinion offers some examples of how the omission of certain important facts can render a simple statement “inaccurate.”  There is much discussion in the opinion of the sentence in the Cuba book that says that “People in Cuba eat, work, and go to school like you do.”  The court offered some provocative hypotheticals.  How about Germany in the 1930s:

Suppose the book, in addition to describing some of the geography of Germany said “People in the Third Reich ate, worked, and went to school like you do,” being careful not to mention any of the millions of people who were sent off to concentration camps.

Or how about Mississippi in 1850? What if a book about that time and place said:

“People in the old South ate, worked, and went to school like you do,” neglecting to mention anything about slavery and the millions of human beings who lived and died in bondage.

So we add one more factor that would be a proper basis for a school board’s decision to remove a book from the library: inaccuracy in a non-fiction book.  The case was decided by the 11^th Circuit on February 5, 2009, and is cited at 557 F.3d 1177. 

DAWG BONE: FACTUAL STATEMENTS CAN BE INACCURATE BASED ON WHAT THEY DON’T SAY.

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

Tomorrow:  Let’s wrap this up….