The issue of parental access to testing protocols has been around for a long time, but we rarely see court cases directly address it.  The Northshore School District in Washington had no choice about the matter. 

The parents wanted to have physical copies of the protocols from the testing that the school did, but the school refused to provide them, citing copyright concerns and the need to maintain the integrity of the testing regimen.   The school did permit the parents to view the materials, but not to have physical copies.  The school also offered to send the testing protocols to a qualified outside provider identified by the parents, but the parents did not pursue this option. The ALJ (Administrative Law Judge) and the court held that the parents were not entitled to have physical copies of the protocols and the denial of them did not prevent them from participating in the IEP process.

A rare ruling on an obscure but important issue, and one that LSSPs will be pleased to hear about.

Daniels v. Northshore School District was decided by the federal court for the Western District of Washington on August 24, 2021.  It’s published in The Special Educator at 79 IDELR 125.

DAWG BONE: ACCESS TO SEE—YES.  PHYSICAL COPIES—USUALLY NO.

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

Tomorrow: who’s the better witness?

Our new state law requires schools to seek consent for an FBA when students are sent to the DAEP for more than 10 days.  This is a disciplinary change of placement (Tool #6 in the Toolbox) that now requires an FBA and a BIP. This is putting a strain on district’s resources.  Someone recently asked me if there is any way around this. 

Sure there is.  Don’t change the kid’s placement.  Handle it in some other way.  The requirement to do an FBA and a  BIP is triggered by a disciplinary change of placement. Whether the behavior is  a manifestation of disability or not, an FBA and BIP are now called for. So the only “loophole” here is to not change the placement.  There are many other discipline management techniques available to the school.  Perhaps the new state law will prompt schools to re-examine practices, and become less reliant on DAEP.   

DAWG BONE: YOU DON’T HAVE TO DO WHAT YOU HAVE ALWAYS DONE.

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

Tomorrow: testing protocols

WE’RE ZOOMING WITH THE DAWG THIS FRIDAY AT 10:00 A.M.!! I’LL BE JOINED BY SPECIAL GUEST SANDI TARSKI FROM OUR FIRM’S IRVING OFFICE.  FREE TO ALL DAILY DAWG SUBCRIBERS—HOPE TO SEE YOU THERE!!   

It’s possible for attorneys who represent the parents of students with disabilities to play “gotcha.”  The law is an enabler of this inappropriate conduct.  A recent court case from Washington D. C. provides an excellent example. 

The story begins with the school holding an IEP Team meeting without the parent.  That’s not supposed to happen, and was definitely an error by the school district.  That’s what gave the parent’s attorney the opportunity to play “gotcha.”  The attorney did not have to do that, of course.  The attorney could have simply accepted the district’s immediate offer to re-convene the Team for another meeting. But the attorney saw an opportunity to score some points and recover fees from the district. 

The court tells us that shortly after the parent-less IEP Team meeting the parent “hurdled over Defendant’s offers to meet again and sprinted to file an administrative due process complaint.” The court noted that it was “skeptical that this flurry of legal activity is for [the student’s] educational benefit.  Rather, as Plaintiff’s counsel admitted before the hearing officer, [the parent] began pursuing legal remedies just eight days after the initial IEP meeting because “when a school district violates a parent’s rights….the parent has a right to have her attorneys fees paid.” 

Gotcha. 

The court held that it was an error for the district to have the meeting without the parent, but classified this as a procedural error. The parent failed to present any evidence of how this caused harm, and so the judge denied any relief. 

The judge offered some insightful observations:

While DCPS should perhaps have worked harder back in January 2020 to find an IEP meeting time convenient to Plaintiff and her counsel, the price Defendant has paid in this prolonged litigation vastly outweighs any error it committed.  It had to participate in an unnecessary due process hearing followed by a lawsuit that, in the accurate words of Magistrate Judge Harvey, “need not have been brought.”  All along, the District has provided robust services to [the student] and has been willing to engage in IEP meetings, yet [the parent] has continued to press this litigation, requiring a substantial outlay of city and judicial resources. The Court can only conclude that a quest for attorneys fees has driven the action, which casts neither her nor her counsel in a favorable light.

Unfortunately, cases that involve “a quest for attorneys fees” based on the game of “gotcha” are all too common in special education.  It’s a waste of resources and an abuse of a law that assumes that parents and schools can work collaboratively toward their common goal.

This one is Wade v. District of Columbia, decided by the federal court for the District of Columbia on August 18, 2021.  It’s published in The Special Educator at 79 IDELR 133.

DAWG BONE: THE UNWRITTEN RULE: WHO IS BEING MORE REASONABLE HERE?

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

Tomorrow: Toolbox Tuesday!!

I expect that if we asked teachers, many of them would say that they do have a “special relationship” with their students.  This is one of the primary payoffs for a career in education.  That student who takes the time to say thanks…that student who sends you a card….that student who reaches out years later to let you know that you made a difference. 

But in legal parlance, “special relationship” has a very different meaning.  The courts have held that the government has a “special relationship” when it “takes a person into its custody and holds him there against his will.”  So the City of Minneapolis had a “special relationship” with George Floyd.

In legal terminology, a “special relationship” has nothing to do with expressions of affection or gratitude.  It’s about the state using its power to deprive a person of freedom.  When the relationship is marked by that kind of disparity in power, the one with the power takes on the responsibility to protect the less powerful party from harm caused by third parties.  This is why law enforcement agencies can be held legally responsible when a prisoner is assaulted by another prisoner. The state has taken custody; this creates a “special relationship” and this relationship creates a duty to protect.

How does this play in our public schools?  The law requires the students to be there. There is disparity in power and a limitation in freedom for the student. But the 5^th Circuit has said over and over and over that none of that is sufficient to create a “special relationship.”  Therefore, the public school does not have legal liability when one student intentionally assaults another.  That fact alone does not create liability for the school.  To hold the school liable, there would have to be proof that the school itself caused harm. 

This came up most recently when the a student identified as Son Doe, son of John and Jane Doe, in Bridge City ISD alleged that he was assaulted by another student in the school locker room. The Does sued the district. The court dismissed the case:

However, we have held explicitly that “a public school does not have a special relationship with a student that would require the school to protect the student from harm at the hands of a private actor.”  Therefore, the school did not have a constitutional duty to protect Son Doe.

It’s an “unpublished” opinion issued by the 5^th Circuit on October 20, 2021.  I’m pleased to let you know that Blake Henshaw and Morgan Beam from our firm’s Houston office represented BCISD on this one.

DAWG BONE: IF THERE IS NO “SPECIAL RELATIONSHIP” THERE IS NO LEGAL DUTY TO PROTECT.

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

Yesterday we told you about the 5^th Circuit decision in 2018 that held that Texas violated the “maintenance of effort” requirement in IDEA for Fiscal Year 2012.  The court held that the Department of Education should withhold future IDEA funds to Texas to the tune of over $33,000,000.  That amount of money could have funded a lot of diagnosticians and speech therapists. 

After the 2018 court decision, T.E.A. entered into discussions with the feds, seeking an agreeable resolution of this mess. That didn’t work.  The Office of Special Education and Rehabilitation Services (OSERS) sent a letter to Commissioner Morath on October 1, 2021, informing the Commissioner that “the determination is now final, and the Department will reduce Texas’s IDEA section 611 award in a future Federal fiscal year due to the State’s failure to maintain State financial support for special education and related services in SFY 2012.”

If state revenues do not compensate for this massive shortfall, this is going to hurt the people that IDEA is designed to serve—students with disabilities and their parents.  If the state does not make up for this shortfall, it will be setting up local school officials to try to explain to parents why the special education department cannot provide services that students need.  

It’s pretty simple. Less money from Washington to Austin means less money from Austin to your school district. That means a reduction in special education services….or….you take this money out of some other budget? 

I hope that superintendents, board members, educators of all kinds, and the parents of all students will collectively express their outrage at this failure of leadership in our state.

DAWG BONE: WE’RE LOSING $33,000,000.  IT COULD HAVE BEEN AVOIDED.

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

Tomorrow:  do you have a “special relationship” with students?

Because of a violation of federal law that occurred in Fiscal Year 2012, Texas is going to receive less federal money for special education services in future years. This error by the state is going to cost us $33,302,428.   Ouch. 

Today I’m going to repost what I wrote about this in 2018 when we got the 5^th Circuit decision about this issue. Tomorrow, some comments on what happens next.  Here is my entry from 2018:

Oh no….special ed funds to be cut $33 million. 

The 5^th Circuit has affirmed the decision of the Department of Education that Texas is ineligible for over $33 million in special education federal money.  That’s going to hurt.  The state asked the Circuit Court to issue a ruling on this quickly so that the 2019 Legislature will know what it is dealing with. The Circuit Court did rule quickly. So now we know where we stand:  $33 million in the hole.

This was entirely avoidable.  The Court held that the weighted student model that Texas uses for funding of special education is fundamentally flawed.  In effect it enables individual ARD Committees to determine the overall level of state funding for special education.  Funding in Texas is tied to student need. Student need is determined case by case as ARD Committees write IEPs and determine placement.  Under the Texas model if a student needs less intense services, the state provides less funding.  So if a thousand ARD Committees reduce services by just a little bit for each student, it has a cumulative effect on state funding. Then consider what happens when the percentage of students receiving special education services drops, as it did in Texas.  Fewer kids in special ed, and many of those kids receiving less intensive services. It adds up.  Thus in 2012 Texas allocated $33 million less for special education than it had in 2011. 

Our model, which has been in place since 1995, is broken.  Texas argued that every child in Texas still received an appropriate education.  For purposes of this case that was not disputed. But the Circuit Court said that it didn’t matter. The statute is pretty simple. It looks at the total amount of money you allocate for special ed from year to year. Did it go up or down? If it went down, you broke the law. Simple.

The court pointed out that Texas could have sought a waiver of the requirement. If it could produce “clear and convincing evidence” that every eligible child in Texas was receiving an appropriate education, it could obtain a waiver from the Secretary of Education to justify reduced funding. But T.E.A. did not do that. Instead it relied on the complex “weighted student” formula that had the effect of reducing funding.

The court pointed out how the Texas formula empowered ARD Committees to do what only the Secretary of Education is authorized to do:

The weighted-student model circumvents the waiver process by allowing a state to reduce its amount of financial support whenever the state—rather than the Secretary—determines that special education needs of children with disabilities are adequately funded.  Indeed, Texas claims to have funded special education according to the diverse instructional arrangements that its students need to succeed. But the state admits that those needs are determined by an “individualized education program” team.  Conversely, the IDEA entrusts that discretion to the Secretary, permitting a waiver only if she concludes that all disabled children enjoy a free appropriate public education.  Thus, the weighted-student model undermines the waiver process by enabling a state to decide, on its own initiative, that it sufficiently funded the needs of children with disabilities.  

Some of you may be thinking: isn’t the ARD Committee supposed to determine student needs?  The answer to that is yes—absolutely. But that does not give the ARD Committee the power to determine the funding.  The state is obligated to fund special education with at least the same amount of money that it allocated the previous year.  If state officials believe that there is a good reason to deviate from that in a given year they are supposed to explain that to the Secretary of Education and get approval for the reduction. 

T.E.A. did not do that. T.E.A. let us down.

The case is Texas Education Agency v. U.S. Department of Education, decided by the 5^th Circuit on November 7, 2018. We found it at 118 LRP 46003.

DAWG BONE: ANOTHER CHALLENGE FOR OUR GOVERNOR AND LEGISLATURE.

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

Tomorrow: more on the funding snafu….

In our firm’s Toolbox training we call Tool #7 “The FAPE-Free Zone.” That’s because Tool #7 authorizes campus administrators to remove a student from the placement called for by the IEP without providing any services.  A three-day out of school suspension, for example, would be a good example of the use of Tool #7. While the student is at home, the IEP is not being implemented, not one little bit. But the law says that this is OK as long as the student is within “The FAPE-Free Zone.”  That Zone lasts only ten days, cumulatively, through the school year. 

So this is a simple tool that the Campus Behavior Coordinator can use unilaterally. It does not require consultation with a teacher, as Tool #8 does. Nor does it require an ARDC meeting, as Tools #5 and #6 do.  However, there is one wrinkle that state law added in 2019.  Section 37.005(e) requires the school to provide that suspended student with “an alternative means of receiving all course work provided in the classes in the foundation curriculum….that the student misses as a result of the suspension.” 

Google Classroom, right?  Not so fast. The statute says that at least one option for providing the course work must not involve using the Internet.  Keep in mind that this requirement applies to out of school as well as in-school suspension, and it applies to all students, general and special education alike.  Is your district complying with this? 

DAWG BONE: MAKE COURSE WORK AVAILABLE WHILE USING TOOL #7. 

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

Tomorrow: Why we’ll be getting less money for our special education programs….

The fourth time was the charm for HB 25. On three previous occasions the legislature failed to pass the bill that would prohibit students born as biological males from participating on girls’ teams.  But in the third special session, it happened. 

In reality, this bill changes very little.  The UIL already has a rule in place about this.  The rule is simple: if your birth certificate says you are a boy, then you are a boy.  If it says you are a girl, then you are a girl.  But the legislature wanted to prevent parents from getting that original birth certificate changed to switch sex from M to F or F to M.  Not that this happens very often, but it does happen.  Wrapping themselves in the cloak of Title IX, citing a desire to remedy the effects of past discrimination against girls, the legislature passed HB 25 which will disallow any altered birth certificate unless it was altered to correct a clerical error. 

That is not at all how the federal government interprets Title IX.  So we are all set up for more litigation over this.  Isn’t it interesting to live in Texas in 2021?

DAWG BONE:   STAY TUNED. THIS AIN’T OVER.

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

Tomorrow: Toolbox Tuesday!!

I was whacking the weeds in the yard last week when I disturbed an anthill.  Suddenly, there was a burst of activity. I paused my whacking to watch the little creatures scurry about, putting the hill back in order.  I thought: now there is a life lesson.  A Life Lesson!

It seemed to me that none of the ants were shrugging their little ant shoulders, rolling their little ant eyes, pointing their little ant fingers with blame, or otherwise bemoaning what fate had befallen them.  They just accepted what just happened and got to work putting things right.

Maybe these were Buddhist ants.  I say that because I once knew a wise man who practiced Buddhism and he taught me what to do when my anthill got whacked.  He said I should pause, take a breath, and say, “Oh…..now this.”  He said the same principle applied to the good things that come my way.  Maybe I win the lottery. Maybe I get ten new Daily Dawg subscribers.  Maybe the Longhorns win the rest of their games.  Don’t label the experience.  Pause. Take a breath.  “Oh….now this.”

I hope your anthill does not get whacked today. But I’m sure that if it doesn’t get whacked today, it will get whacked someday. So remember: “Oh….now this.” 

DAWG BONE: “OH….NOW THIS…..”

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

As we have noted here before, if a parent makes a written request for an evaluation for special education services, the “Child Find” duty has been triggered.  But what if the written request specifically asked for a 504 evaluation?  Well…..that’s different.

This came up in Ashley G. v. Copperas Cove ISD, decided by the federal court for the Western District of Texas on May 7, 2021.  The court summed it up this way:

“Expressions of concern over academic performance and requests for assistance alone do not trigger the IDEA’s child find duty.”  The parent’s letter specifically asked for a 504 evaluation. “Such a direct request was clearly not an implied request for an IDEA evaluation.”

The court’s analysis might have been different had there been other indicators that the student was in need of special services. But the teachers reported that the student was doing pretty well and his behaviors were typical for an 8^th grader. So the parent request for a 504 evaluation was just that, and no more.

Later, the parent did request an IDEA evaluation and the district agreed to do one. But there were delays, which the parents blamed on the school. The court did not see it that way, noting the parents’ delay in signing consent for the evaluation they had requested The parents also alleged that the school failed to determine the student’s eligibility in timely fashion, but the court noted that eligibility could not be determined until the ARDC considered the FIIE, and the parents had blocked the ARDC from meeting, believing it was not necessary. 

Courts are always going to take into account the reasonableness of the parties.  Not signing a consent form and not showing up for an ARDC meeting will usually be viewed as unreasonable.   We found this one on Special Educator at 78 IDELR 251. I’m pleased to let you know that Walsh Gallegos attorneys handled this one, specifically Bridget Robinson and Jennifer Childress.

DAWG BONE:  BE REASONABLE, AND MAKE SURE THE WRITTEN RECORD REFLECTS YOUR REASONABLENESS.

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

Tomorrow: Life Lessons