What are you supposed to do if the district gives you notice that your one-year contract will not be renewed for the next year?  Well, of course you can resign.  You can move to Tahiti.  You can fire up the ol’ RV and hit the road.  You can try another career.  But if you want to continue to work for the district you have to ask for a hearing before the school board. Then you have to show up for the hearing. If you don’t do those things, you are sort of up the proverbial creek. 

Lesley Johnson maintains that Dublin ISD violated the Texas Open Meetings Act by failing to properly post the agenda for the meeting.  Is she right about that?  We don’t know.  What we do know is that the Commissioner will not hear her case.  This sounds very straightforward, but the Commissioner’s decision goes into a bit of detail as to why he would not hear this case.

For one thing, the local record of the nonrenewal made no mention of the teacher’s claim about the TOMA. That’s because the teacher did not bring it up. In fact, she didn’t show up.  So the Commissioner has to base his decision on the local record and the local record said nothing about this issue. So that’s one reason.

Second, the teacher failed to “exhaust her administrative remedies.” She was required to pursue a hearing before the local board, but did not do so. Again, she didn’t show up. That’s a failure to exhaust. 

Third, complaining of a TOMA violation does not give the Commissioner jurisdiction when “those issues were not raised at the school district level.”  You see the pattern? It all comes down to showing up.

Fourth, it is exceptionally well established that teachers who are up for possible nonrenewal are not entitled to constitutional due process.  In support of that proposition, the Commissioner cites earlier cases from Los Fresnos, Killeen, Marshall, Austin, and Aldine.  Just to make sure we all understand, the Commissioner added that “even if Petitioner’s due process rights could have been violated, Petitioner has waived that issue and failed to exhaust administrative remedies by not raising it at the local level.” 

Got that?  Ya gotta show up.  It’s Johnson v. Dublin ISD, Dkt. No. 043-R2-06-2021, decided by Commissioner Morath on July 3, 2021. 

DAWG BONE: UP FOR NONRENEWAL?  SHOW UP!!

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

Tomorrow:  triggering the Child Find duty…

With the World Series just around the corner, let me remind you of the baseball analogy the Dawg has used to explain how a plaintiff pursues a claim of illegal retaliation.  First, the plaintiff has to establish that they engaged in “protected activity,” such as advocating for my child with a disability. If the plaintiff does that, the plaintiff is on first base.

Then there has to be an “adverse action.”  If the plaintiff was an employee of the school, the adverse action is likely to be a firing or demotion.  If the plaintiff is the parent of a student, the adverse action might be a report of suspected child abuse.  If that happened, the plaintiff is on second base.

Most plaintiffs get to second base.  It’s not that hard. But getting around third base and coming home to score is the hard part. The plaintiff has to prove causation.  In other words, they treated me badly because of my protected activity. I spoke truth to power and The Man smacked me down. 

The plaintiff in J.P. v. Belton School District 124, got to second base, but no further.  There were six reports of child abuse and none of them were sustained by the investigators.  That sounds promising for our plaintiff, but the district did a good job of marshaling the facts to support its position. Four of the six reports were made by school officials who did not know who the plaintiff was, or that she had filed for due process against the district.  How can you retaliate for someone doing something that you did not even know that they did? 

The other two reports were made five months after the due process hearing was requested, a length of time that the court said was too long to indicate causation based on “temporal proximity” alone. There would have to be something more.  There wasn’t. Nothing in the reports was false. There were indications of possible abuse or neglect.   The fact that none of the complaints resulted in a finding of abuse or neglect was not relevant, given the fact that the reports were based on reasonable suspicion, and state law and public policy required such reports to be made.

It’s good to see a court recognize the fact that the law requires educators to make these reports based on a reasonable suspicion of abuse or neglect.  But I expect cases like this to continue. So keep your documentation to support the reason you reported abuse or neglect.  The case was decided by the federal court for the Western District of Missouri on August 13, 2021, and can be found on Special Ed Connection at 79 IDELR 92.

DAWG BONE: PROTECTED ACTIVITY + ADVERSE ACTION + CAUSATION = RETALIATION CLAIM.

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

Tomorrow: a nonrenewal case from the Commissioner…

In our firm’s Toolbox Training we provide ten “tools” that are designed to ensure appropriate services to students with disabilities while maintaining safety and a healthy school environment.  Tool #3 is an Educational Change of Placement Without Parental Agreement.  That title alone should tell you that this tool should be used cautiously, and only when necessary to serve the student appropriately.  Since it involves a lack of agreement with the parent, the school must be ready to defend its decision. 

Belton School District 124 in Missouri did that.  The court affirmed a hearing officer’s decision in support of the school’s decision to move the student out of the neighborhood school to a special school that only served students with severe and profound disabilities.  The decision provides an excellent example of how the school satisfied the three factors it needed to show in order to justify the move to an MRE (More Restrictive Environment). 

FIRST: THIS IS NOT WORKING.  To justify the use of Tool #3 the school first has to show that the existing placement is not working out well.  Here, the court made a detailed analysis of the six IEP goals, and concluded that the student was making minimal progress at best.  On the goals where the student did show some progress, the court agreed with the school staff that this was more due to the student’s physical growth and maturation rather than the provision of special education. 

The 8^th Circuit, which governs Missouri schools, puts a particular emphasis on disruption as a factor in justifying a move to an MRE.  This student was not a discipline problem and was not disruptive in the traditional sense of the word. But the court noted that this student was completely isolated from his non-disabled peers and the evidence showed that this was necessary:

Testimony from District staff establishes that Plaintiff on a pure sensory level cannot handle being in the cafeteria or in the regular classroom with other students and that he cannot participate in music class, art class, or assemblies.  When he is around peers in a general education setting, “he responds by doing things like dropping to the floor, putting his hands over his ears, and vocalizing in an unintelligible and uncontrolled manner.  He also frequently vomits and bites staff, requiring them to wear bite guards.

Thus the court concluded that the student was not disruptive, but “only because he has no meaningful interaction with or exposure to other students.”

SECOND: IT’S NOT FOR LACK OF EFFORT ON OUR PART. The school had made two prior efforts to move the student to the special school, backing off each time in response to parental resistance.  As usual in cases like this, the parent offered ideas about other services the school could provide.  The court responded:

…the record makes clear that the District has already provided him with full-time one-on-one services from a team of trained therapists, paraprofessionals, and instructors, advanced assistive technology, and a specially-designed independent workspace meant to minimize sensory input in the best-resourced room available. There is no reason to think that layering a new room or a new employee on top of the aides and services already provided will set Plaintiff’s IEP progress on a different trajectory. 

THIRD: THIS WILL BE GOOD FOR THE STUDENT.  The court noted testimony about how easily the student was distracted, and how short his attention span was.  The neighborhood school “simply cannot provide the distraction-free environment that Plaintiff requires, even in the special education classroom that he is permanently assigned to.”  In contrast, the special school “is a smaller school that is designed to offer a quieter environment with fewer distractions. It can provide ‘wrap-around services’ for Plaintiff, whereby therapy and classroom instruction can be provided in a calmer setting.”

In the Toolbox Training we encourage you to ask three questions before invoking Tool #3.  Is this worth fighting over?  Are we legally defensible?  Are we united on this?  It’s clear that the district gave a YES answer to the first and third questions, and now the court has said YES to question two.  It’s J.P. v. Belton School District 124, decided by the federal court for the Western District of Missouri on August 13, 2021.  We found it on Special Ed Connection at 79 IDELR 92.

DAWG BONE: TOOL #3: ASK THE THREE QUESTIONS. PROVE THE THREE THINGS.

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

Tomorrow: another retaliation case based on child abuse reporting…

The parents of a student in California are getting reimbursed by the public school for the tuition they paid at a private school.  This sort of thing only happens with students who have disabilities. The other students have no legal recourse, even if they are poorly served in the public school.  The other students are not protected by a federal law that sets out a standard for the quality of an education the student must receive. The other students are not protected by a network of procedural safeguards the public school must provide. 

In this case the court held that there was one procedural hoop the public school failed to jump through.  The court held that the district did not offer a specific private school as the recommended placement option. The district offered several options and the parents rejected all of them. Citing 9^th Circuit precedent, the court held that this was enough to amount to a denial of FAPE.   Offering a variety of possible placements did not cut it.   The court held that the district was required to make a “clear written offer” for a specific school.   Key Quote:

Although it is clearly best for the school district to initially suggest several placements for the parents to discuss and consider, the school district must take the final step and clearly identify an appropriate placement from the range of possibilities and use its expertise to decide which program was best suited for student’s unique needs.

One more interesting wrinkle in this case.  The private school was Imago Dei, a religious school offered by the Trinity Classical Academy.  The court held that the law does not prohibit reimbursement of private school tuition just because the school is religiously affiliated.  As long as the placement is “proper” under IDEA, the parents can be reimbursed.  It’s William S. Hart School District v. Antillon, decided by the federal court for the Central District of California.  We found it on Special Ed Connection at 79 IDELR 73.

DAWG BONE: I WONDER WHAT WOULD HAPPEN IF ALL PARENTS HAD THE RIGHT TO DO THIS…..

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 today at 10! Join me and Jennifer Carroll for a discussion of the changes in the Dyslexia Handbook.

There are many school law cases that would make a terrific movie.  At the top of my list is the case of the popular teacher, the students who rallied to his defense after he was reassigned, and the student who sued over this, claiming that the learning environment had become hostile. 

Mr. Stasack was the French Immersion teacher, which was a part of the International High School International Baccalaureate program at South Eugene High School in Oregon.   The French Immersion students moved as a cohort through each grade, creating a close-knit group. But our eventual plaintiff, Riley Duncan, did not feel like he was part of the group. Riley had ADHD and was identified as a student with a Specific Learning Disability and an Other Health Impairment.  His IEP called for certain accommodations, including extra time and a separate location for testing. 

According to Riley, Mr. Stasack refused to provide these accommodations and “frequently demeaned him in class related to his accommodations.”  An assistant principal recalled a meeting in which Mr. Stasack expressed the view that ADHD was not a proper basis for a need for accommodations.  Mr. Stasack told Riley’s parents that the student did not have a right to be enrolled in the French Immersion program.

Apparently, the school administration also found Mr. Stasack’s attitude and behavior troubling.  The district wrote him up, citing his “bias against disabled students” and resistance to providing accommodations. Two families had “justifiably demanded” that Stasack not teach their children. The write-up accused Mr. Stasack of discrimination against a student with a disability which could expose the district to liability.

Based on all of that, the district reassigned Mr. Stasack to another school for the 2016-17 school year.  That’s when the students got involved.

First there was the student walkout:

Multiple SEHS students testified the walkout was staged as a protest against “the 504 kids” causing Stasack to be transferred.

Then there was the sweatshirt sale.  (Sidebar: sweatshirts?  We would be doing t-shirts. But this is Oregon).  The main text of the sweatshirt featured Stasack’s name, followed by some of the popular phrases he often used in class.  Notably, the sweatshirts were not offered to Riley or to another student who had a 504 plan.

Riley’s mother was particularly upset about students wearing these sweatshirts at the graduation ceremony, which they did.  Not only that, the student who had organized the sweatshirt sale was a speaker at the graduation and she made multiple references to her class’s “civil rights actions.”

The court ended up ruling that Riley had alleged facts that plausibly stated a claim of “hostile environment’ which is actionable under Section 504/ADA.  Thus we have yet another example of the increased exposure that school districts have to claims of disability discrimination.  But notice that the hostility did not come from the school administration.  In fact, it was the school administration’s effort to protect students with disabilities by reassigning Mr. Stasack that provoked the backlash that created the hostile environment.  That backlash came from the students who supported the popular teacher.   

As this case moves forward, I hope the court will take that factor into account.  It’s Duncan v. Eugene School District 4J, decided by the federal court in Oregon on July 26, 2021.  It’s on Special Ed Connection at 79 IDELR 67.

DAWG BONE: HOW BOUT MATTHEW BRODERICK AS THE A.P.!  HE CAN MAKE AMENDS FOR HIS ROLE AS FERRIS BUELLER.

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

It’s going to be interesting to see how the 10^th Circuit handles the case of C.G v. Siegfried.  As Loyal Readers of the Daily Dawg know, the Supreme Court has held that school district authority over off-campus conduct by students is “diminished.”  SCOTUS held that when Brandy Levy dropped four consecutive F-bombs and put them on Snapchat, she enjoyed constitutional protection. The “diminished” authority of the school district was not enough to justify her suspension from the cheerleading squad. 

So now the 10^th Circuit will have to apply that holding to a fact situation in Colorado that is somewhat similar, but is different in significant ways.  As in Brandi’s case, the Colorado case involved off-campus conduct over the weekend. As in Brandi’s case, the student posted on Snapchat.  The post was a picture of C.G.’s three buddies who were wearing hats and wigs at a thrift shop.  One of the hats looked like a military hat from a foreign country. The post that accompanied the picture read:

Me and the boys bout to exterminate the Jews.

Brandi engaged in a temper tantrum with vulgar language, but did not target any person or group.  C.G. targeted a group based on its religion.  Moreover, this is a religious group that has reason to fear such words.  He meant it as a joke, but it missed by a mile. 

Brandi apologized for her immature behavior.  C.G. not only apologized, he attempted to make amends.  He removed the post within a few hours of posting it, and then posted an apology on Snapchat: “I’m sorry for that picture it was ment [sic] to be a joke.” He also sent a letter to school officials “accepting full responsibility for the Snapchat picture, apologizing for his behavior, explaining that it was an impulsive lack of judgment not intended to hurt anyone, and stating that he had recently spent time educating himself about Jewish history and talking with Jewish community members and advocacy groups.”

His parents hoped that the school would treat the incident as a “teachable moment.”   Nope.  While Brandi was only suspended from JV cheerleading, C.G. was expelled from school for a year.  The student sued the district, alleging that this was an infringement of his free speech rights.

The federal district court dismissed the student’s suit, holding that disciplinary action was appropriate because the anti-Semitic post created a reasonable forecast of a material and substantial disruption of school.   That decision was made on August 10, 2020, and is cited at 477 F.Supp3d 1194.  It’s been pending before the 10^th Circuit for over a year.  We’ll keep an eye out for this one.

This case is a good reminder of why we need to have a Holocaust Remembrance Week. 

DAWG BONE:  HOLOCAUST REMEMBRANCE WEEK IS JANUARY 24 to 28. 

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

Tomorrow: kids rally to support a popular teacher, but…..

Do the parents who choose to put their children in a private school have greater constitutional protection than the parents who enroll their kids in the local public school?  They do, according to the 9^th Circuit. 

This came up in a COVID case in which parents challenged the state order to cease providing in-person instruction.  The plaintiffs included parents of public school kids, and parents of private school kids. The court held that the public school parents had no case, but the private school parents could proceed with their lawsuit.

Sound strange?  Here’s the explanation.  The distinction is based on Supreme Court precedent.  SCOTUS has held that there is no federal constitutional right to public education. Therefore, the state’s decision as to how to provide educational services will be upheld as long as there is a rational basis for it.  Here, health concerns provided that rational basis. 

However, SCOTUS has also held that parents have a fundamental constitutional right to direct the upbringing of their children, and this includes the right to place them in a private school.  Any state restriction on this right must be narrowly tailored to satisfy a compelling governmental interest.  The court held that the restrictions on in-person schooling in private schools were overly broad, and therefore, did not satisfy the constitutional standard.

Of course this is just one of what appear to be hundreds of lawsuits about how schools handle COVID.  But it’s the only one I’ve come across that addresses the issue from a constitutional perspective, and draws this distinction.  Just thought you might find it interesting. 

It’s Brach v. Newsom, decided by the 9^th Circuit on July 23, 2021.  It’s in Special Ed Connection at 79 IDELR 61. 

DAWG BONE:  THAT PARENTAL RIGHT WAS ESTABLISHED ALMOST 100 YEARS AGO.  

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

Tomorrow: a follow up to Mahanoy….

Our firm’s Toolbox Training presents ten “tools” that school personnel can employ to address challenging behaviors presented by students with disabilities.  Tool #3 involves a change of placement for behavior that is a manifestation of disability.  If the behaviors of the student arise directly from the disability the district should not pursue a disciplinary change of placement. Those are reserved for behaviors that are not a manifestation of disability. But when a student’s behavior is disruptive in the classroom, there comes a time when a move to a more restrictive environment may be the right thing to do. 

A recent decision involving Comal ISD provides an excellent example. The school district recommended a change to an MRE (More Restrictive Environment). The parent did not agree.  The case ended up in a due process hearing. The hearing officer ruled in favor of the district, and now the federal court has affirmed that decision. 

The move to an MRE was based on both academics and behavior. The court’s lengthy decision provides a good review of how the student progressed from first, to second, to third grade. As she did, the gap between what the student could do vs. what the rest of the class was doing was widening.  This was not due to a lack of effort by the district, as the court noted that “this case presents no doubt that the District has taken steps to accommodate [the student] in regular education.”  The court endorsed the district’s narrative of the case:

The story of [the student’s] education so far is one of a student continually struggling to make adequate progress and a district continually responding by increasing her special education supports and lowering her goals. 

When it reached a point where the supports the student needed were more than could feasibly be provided in the less restrictive environment, the school called for an ARDC meeting and proposed a change of placement. 

The case provides an excellent example of the three things that the school has to prove in a Tool#3 case. First, the current situation is not working.  Second, we have given it a good faith effort.  Third, this move will be beneficial for the student.

It’s H.W. v. Comal ISD, decided by the federal court for the Western District of Texas on August 31, 2021.  We found it at 2021 WL 3887696.  

DAWG BONE: TOOL #3: IT’S NOT WORKING.  WE HAVE TRIED HARD.  THIS WILL HELP THE STUDENT.

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

Tomorrow: a California COVID Case….

We’re Zooming with the Dawg this Friday!  Hope to see a lot of you Loyal Daily Dawg Readers.  I’ll be joined by attorney Jennifer Carroll from our Irving office, and we’ll be talking about the updated Dyslexia Handbook.   Starting at 10—be there!!

An ugly fact situation in an Oklahoma district illustrates the sad reality that life in the self-contained classroom can be stressful, and can lead to teachers behaving badly.  This case is yet another reminder of how important it is for campus administrators to keep a close eye on the classrooms where we serve our most vulnerable children. 

In Oklahoma, things came to a head on January 16, 2018 when students and staff witnessed Ms. Morris, a teacher in the life skills unit, dragging a student with severe disabilities to the bus.  This led to an investigation of Ms. Morris.   It turns out that the aides in her classroom had a lot to say.  The district suspended Ms. Morris the next day. She never returned to the classroom, resigning in February.  She then entered a “no contest” plea to two misdemeanor counts related to her treatment of two of her students. 

The parents of one of the students filed suit with mixed success.  Their federal claims were dismissed, but a negligence claim under state law was allowed to proceed.  But that’s really beside the point. That’s for the lawyers for the parties to sort out.  The point is: sometimes bad things happen in the self-contained classroom. Sometimes we have people working there who should not be working with children.  This is why Texas schools are sometimes required to put a camera in the classroom.  It’s about safety for those children who cannot speak up for themselves. 

Putting a camera in the self-contained classroom is probably the most expensive and least effective way to maintain safety.  The most effective way to maintain safety involves three simple steps. First, let’s be very careful about who we put in charge of that classroom.  Second, administrators should regularly visit the classroom. Let your presence be known.  Pay attention.  Third, administrators should cultivate a relationship with the aides who support the teacher.  If they see something that doesn’t look right, they should feel comfortable speaking to the teacher, and to the principal about it.  

This one is Nation v. Piedmont ISD No. 22, decided by the federal court for the Western District of Oklahoma on July 23, 2021.  We found it on Special Ed Connection at 79 IDELR 68.

DAWG BONE: BE AS CAREFUL IN HIRING THE SELF-CONTAINED TEACHER AS YOU ARE WITH THE FOOTBALL COACH.

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

Tomorrow: Toolbox Tuesday!!

We have a tradition in the law firm’s Austin office that we call Football Friday.  On Fridays in the fall, people are encouraged to wear a T-shirt or jersey representative of their favorite college or pro football team.  So we see a lot of what you would expect in a Texas office—Longhorns and Aggies both well represented, along with a smattering of others.  Some (me) like to remind people that it’s still baseball season, so I sometimes wear (with pride) my Houston Astros 2017 World Series Championship gear. 

So a couple of weeks ago  I was walking down the hall of our office, sipping morning coffee when I saw a woman wearing a Pittsburgh Steelers jersey, number 22 with the player’s name on it: GAY.  In a voice I immediately realized was too loud I asked “Who’s Gay?”

Oops.  Heads popped up from computers all over the office. 

I later learned that William Gay was a cornerback for the Steelers, and is now the defensive backs coach for the Missouri State Bears. So I don’t need to ask that question anymore.

DAWG BONE:  SOME QUESTIONS ARE BETTER LEFT UNASKED. 

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