A special education Administrative Law Judge (ALJ) in Oregon spent 17 days hearing the evidence, and then wrote a 163-page opinion. Do you think maybe we have over legalized special education?  In what universe does this make sense?  That’s what puts the case of Hood River County School District v. Student, on the Dawg’s Sheesh-O-Meter.  Despite the “sheesh” factor,   that 163-page ruling was essentially affirmed by a federal district court, and the ruling carries an important message. 

The case was about progress reports.  You know, those periodic reports that you provide to the parents to let them know how the child is doing.  The ALJ concluded that the reports issued by the school were inconsistent, confusing, and inaccurate.  Moreover, there was another problem. The progress reports “did not include quantitative data that corresponded with the quantitative goals and objectives” in the IEP.  Based on that, the ALJ ruled that the district denied meaningful parent participation.

How does your district write progress reports? Do you match them up with the goals you have established for the student?  And by the way, what is the starting point for the goal?  Do you have baseline data from which to measure progress? 

The school district in this case pointed out to the federal court that the law does not require quantifiable baseline data. It does require a statement of “present levels of performance” but nothing in the law explicitly requires that the “present level” be expressed in a measurable, quantitative way.  The court acknowledged that to be true, but held that since the district had established measurable, baseline statements, the district “created its own burden to provide that quantitative information” in the progress reports.  The court noted that “The District triggered the need for quantitative data in these reports by the IFSPs and IEPs setting specific, quantitative annual goals and short term objectives that were ‘readily capable of being quantified.’”

The phrase “no good deed goes unpunished” comes to mind.  

Sigh.  Let us set aside any whining about this decision, and remind ourselves that this is not the first or the only court to require that communications to parents about progress be expressed in easily understood and measurable ways.  Nor is it the first or only court to highlight that progress reports matter.  The case reminds me that the closer we can get to developing IEPs like we develop weight loss plans the better off we will be.  When we have a weight loss plan everything is easily measurable. 

Present levels: this is how much I weigh.

Measurable goal: this is what I want to weigh.

Deadline: One year from now.

It that’s my plan, I can easily chart my progress and see, at any point in time, whether I’m on track to achieve the goal or not. Goals that involve numbers (weight loss, savings, debt reduction) are easy to develop and track, although not so easy to achieve.  The closer we can get to writing IEPs like we write weight loss goals, the better off we will be.

This one was decided by the federal court in Oregon on July 1, 2021.  We found it on Special Ed Connection at 79 IDELR 40.

DAWG BONE: SIMPLIFYING IEPs IS A NEVER ENDING STRUGGLE.

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

Tomorrow: The Dawg’s Faux Paw….

I guess it’s because Halloween is coming up that our firm came up with this clever title for an upcoming webinar:

Don’t Get Spooked by 504!

Eric Rodriguez and John Muniz will be leading this timely discussion. Why is it timely?  Well, among other reasons our Dyslexia Handbook has just been updated.  Eric and John will be commenting on that and its implications for how Section 504 fits into the mix with serving students with dyslexia.

Besides that, there is much to be “spooked” about with regard to Section 504. It is a frequent basis for litigation against schools and these days much of that is about implementation.  It’s important that teachers and coaches understand that implementing a 504 plan with fidelity is every bit as important as implementing a student’s IEP.

Eric and John will lead this discussion with an emphasis on practical application.  It starts at 10:00 on Wednesday, October 13. Sign up for this cost effective training at www.walshgallegos.com. 

DAWG BONE: MAYBE SOMEONE SHOULD BRING PUMPKIN PIE TO SCHOOL FOR Y’ALL TO ENJOY DURING THE WEBINAR.

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

Tomorrow: a Sheesh-O-Meter case from Oregon

In our firm’s Toolbox Training we talk a lot about the word “unilateral.”  That’s because the Supreme Court used that word in the one and only case it has decided regarding special education and student discipline. The Court noted that Congress had “stripped” school officials of the “unilateral” powers they had traditionally used to remove students for disciplinary reasons.  In that same decision (Honig v. Doe) the Court gave its approval to removals for fewer than 10 days, cumulatively. That’s where we got the ten-day rule.

So ten days is the line of demarcation.  For ten school days in the course of the year, a campus administrator has “unilateral” authority to order the removal of the student from the placement called for by the IEP.  Anything that goes beyond those ten days has to involve other people. 

In Toolbox terminology the campus administrator has “unilateral” authority to use Tool #7—the removal of the student for fewer than 10 days, cumulatively, during the year.  We call that The FAPE-Free Zone.  Other tools can be employed for longer removals, but they cannot be accomplished “unilaterally.” 

Interested in Toolbox training?  Let me hear from you.

DAWG BONE: UNILATERAL POWER FOR TEN DAYS ONLY.

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

Tomorrow: does 504 spook you?

It’s the first Monday in October.  That means that the U.S. Supreme Court is convening this morning to begin what is sure to be a momentous term.  Much of the focus of the national media will be on Roe v. Wade. Will it survive this term?  We shall see. But the Court will decide many other important cases, including one from a Texas community college involving the authority of board members to reprimand one of their own. It’s going to be interesting. 

Meanwhile in school districts across Texas administrators will be hearing employee grievances.  Just think: that Level II grievance you hear today could end up before the Supreme Court in a few years! If that happens, you will want to be sure that you’ve handled everything properly. To help you do that, our firm offers a webinar tomorrow morning:

Grievance Guidance: Everything Administrators Need to Know to Successfully Handle Complaints from Start to Finish

That’s a pretty ambitious title for a 90-minute webinar, but I’m confident that Joey Moore and David Holmes are up to the task. So sign up today for this webinar that will begin at 10:00 tomorrow. Go to our firm’s website: www.walshgallegos.com. 

DAWG BONE: WHILE YOU’RE AT IT, SIGN UP FOR OUR 504 WEBINAR ON OCTOBER 13^TH. 

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

Tomorrow: Toolbox Tuesday!!

As we enter a new month I think it would be OK if we took a one-day break from the legal content here. It’s prime football season and I have a question that has bugged me for some time. When did Baylor change its fight song?

Mrs. Dawg is a Baylor grad, and we have a longstanding tradition of singing the Baylor Fight Song every time we drive through Waco. Nowadays you can sing it a dozen times or more before getting through the construction. In the old days you only had time to sing it once. Our children in the backseat found this charming. At least I think they did.

Imagine my surprise a few years ago when I attended a Baylor athletic event and never heard the familiar tune. I asked Baylor Grad Haley Turner about this. I sang the song for her as I remembered it. Blank stare. “I’ve never heard that.” When did it change? “I have no idea.”

So I put it to you, Loyal Daily Dawg Readers. Here’s the version I remember:

Bear down you Bears of Old Baylor U we’re all for you—Go Bears!

We’re going to show good old Baylor spirit through and through—Yea Team!!

C’mon and fight them with all your might you Bruins Bold!

We’ll win all our vic’tries for the Green and Gold!!

“Bruins Bold” was always my favorite line. This is an excellent fight song, way better than the uncreative, redundant and repetitive “Texas Fight” that my alma mater sings. Actually, we don’t sing. We just clap. Silly.

So…when did Baylor drop this wonderful fight song?

DAWG BONE: BRUINS BOLD. YA GOTTA LOVE THAT LINE.

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

Mission ISD approved a teacher attendance incentive program in August 2019. It called for a bonus of $500 to any teacher who had zero absences in a semester. Teachers with one or two absences would also receive a bonus, at a lower amount. Presumably this worked just fine in the fall semester of 2019. But you know what happened in the spring of 2020.

With school shutting down for a while, and then pivoting to an online experience, the district decided that the incentive payments should be prorated for the spring semester. The decision was that the incentive program would be based on attendance and absences up to the date of closure, which was in March. Since this was not a complete semester, the amounts awarded were prorated. Thus a teacher with a perfect attendance record received only $271, rather than the $500. This was so even if the teacher continued to work every day without absence for the rest of that unusual semester.

The Mission Classroom Teachers Association, along with six of its individual members, filed a grievance, which was denied by the board. Then they took the case to T.E.A. The teachers made three good legal arguments, each one resulting in a swing and a miss. There was one more argument, and it was dismissed with a footnote.

STRIKE ONE: DELEGATION OF AUTHORITY. The biggest issue was the fact that the decision to freeze the program and prorate the bonus amounts was not made by the school board. It was made by the superintendent pursuant to a broadly worded resolution. Many school boards were delegating power to their superintendents in response to the pandemic. Given the uncertainty of when and how boards would be able to come together for a meeting, this made a lot of sense. This particular resolution “delegated authority to the superintendent to, inter alia, alter district leave policies, make payment decisions during emergency closures, and make other related decisions about district policies, such as payment decisions for employees quarantined after a positive COVID-19 test, budgeted purchase decisions, and decisions to petition state and local authorities for waivers of laws and regulations during the pandemic.”

This decision includes a good discussion of the law pertaining to the ability of the school board to delegate authority to the superintendent. The Commissioner ultimately decided that the board did nothing wrong when it gave unusual authority to the superintendent:

Petitioners point to no language in Section 11.151(b) that limits board authority to delegate decisions to a superintendent regarding a school program, particularly during an exigency, when needed to meet district needs. Rather, the Commissioner in Limbrick-Sanders recognized board delegation of policy changes to superintendents.

That’s a reference to Limbrick-Sanders v. Houston ISD, a case from 2012, Docket No. 046-R1-1211.

STRIKE TWO: WAS IT PART OF THE TEACHERS’ CONTRACTS? The teachers’ next argument was that the incentive program was a part of district policy which was incorporated into their contracts. Therefore, the district breached the contract by unilaterally changing the incentive amounts. Nope. The problem was that the contracts were signed in the spring of 2019, and the incentive program was not adopted until August. It’s true that a contract between the district and a teacher incorporates district policies….but only those policies that were in place at the time the contract was executed.

STRIKE THREE: WHAT ABOUT THE PENALTY FREE RESIGNATION DATE? The third argument was that the board had effectively reduced teacher salaries long after the penalty free resignation date. Isn’t that illegal? It is. But, the teacher contracts were never made a part of the record of this case. The Commissioner noted that “Petitioners point to no provision of their written employment contracts that addressed the attendance incentive program or fixed it as part of their salaries; they cannot do so because their contracts are not part of the local record.”

There was one more argument, but it was not so much based on law as on a basic sense of fairness.

BUT IT’S JUST DOWNRIGHT UNFAIR! This final argument was “equitable estoppel” which is legalese for “this just isn’t fair.” The teachers did what was expected of them. Some of them had perfect attendance, despite having to deal with their own difficulties caused by the pandemic. This is dealt with in a footnote:

Petitioners, through counsel, argue that teachers worked hard during the pandemic. For this, teachers should be lauded. However, the local record does not contain any records of teacher’s individual performances during the pandemic, and Petitioners do not assert—nor would be entitled to—a quantum meruit theory of recovery in this case.

The case is Mission CISD Teachers Association v. Mission CISD, Docket No. 019-R10-12-2020. Commissioner Morath decided this one on August 26, 2021.

DAWG BONE: YOU MIGHT WANT TO SHARE THIS ONE WITH THOSE PEOPLE WHO THINK THAT ALL-POWERFUL TEACHER UNIONS CONTROL PUBLIC EDUCATION.

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

Tomorrow: let’s go off task for a day….

It seems of late that more cases at T.E.A. are being dismissed for lack of jurisdiction, rather than on the merits. If the Commissioner is trying to limit the number of appeals to the Agency, he’s doing a pretty good job of it. In a recent case the Commissioner held that he did not have jurisdiction over the following issues:

*Violations of the federal Freedom of Information Act.

*Violations of FERPA.

*Reprimands of a teacher.

*The superintendent’s failure to follow policy.

*Retaliation for the filing of a grievance.

*The district’s failure to enforce its policies, or the unequal enforcement of its policies.

*Actions of the superintendent that are unfair or unwise.

The jurisdiction of the Commissioner is limited to allegations that the “school laws” of Texas have been violated, or that a written contract was breached in a way that caused monetary harm. The “school laws” of Texas consist only of Title I and II of the Education Code. That’s why the Commissioner does not hear cases alleging violations of federal law.

But notice that of the starred items listed above, many of them can be addressed in another forum. Schools that violate FERPA, or fail to follow their own policies can have some legal problems. And certainly administrators should know that they cannot retaliate for the filing of a grievance.

It’s just that the parties who complain of such things will not get a hearing at T.E.A.

Still, there are some cases in which the petitioner successfully establishes that the Commissioner has jurisdiction. Tune in tomorrow for that.

The case is Emerine v. Neches ISD, Docket No. 028-R10-02-2021, decided by Commissioner Morath on July 14, 2021.

DAWG BONE: CHOOSE YOUR FORUM CAREFULLY.

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

Tomorrow: a COVID case….

I continue to get a lot of questions BIPs and some of the more serious offenses that students engage in—such as drug offenses. Is the school required to develop a BIP after the student has possessed or used drugs at school?

I think so for two reasons. First of all, schools will usually call for a disciplinary change of placement based on a drug offense. In fact, possession, use, sale or the solicitation of the sale of drugs at school is a “special circumstance” offense that authorizes an immediate removal of up to 45 school days. In our Toolbox terminology a disciplinary change of placement is Tool #6 and the Special Circumstances Removal is Tool #5. Either way, it’s a disciplinary change of placement and our new state law (HB 785) requires a BIP under those circumstances. So there’s the first reason: it’s required by state law.

The second reason is that the commission of a drug offense at school is a behavior that impedes the learning of the student or others. Federal law requires ARD Committees to at least consider positive behavioral interventions whenever a student has behaviors that impede learning.

When a student commits a serious drug offense at school the campus administrators are likely to use several Toolbox Tools. They probably notify law enforcement—Tool #10. They probably call for immediate removal due to Special Circumstances—Tool #5, or a long term disciplinary change of placement—Tool #6. All of that is legal. It’s also punitive and negative. When we develop a BIP we are doing something positive and forward-looking. What can we do to encourage this student not to do this again? That’s why federal law requires consideration of a BIP and state law now requires it.

The next question is always: how do you develop a BIP for this kind of behavior? Good question. It’s one that should be put to someone other than your lawyer. We can tell you what the law requires, but we are no experts on how to address a young person’s use of drugs. There are people you can consult with on that. You should.

DAWG BONE: BIPs LOOK TO THE FUTURE. LET’S TRY TO PREVENT THIS KIND OF PROBLEM IN THE FUTURE.

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

Tomorrow: TEA’s very limited jurisdiction….

The court described the behavior of a high school student as “boorish and lewd,” noting that “the alleged behavior is something that should not be occurring in a public education setting.” But that does not always amount to a Title IX claim. To make a Title IX claim against a school district based on what one student has done to another student, the plaintiff has to show that 1) someone with authority to address the situation knew about it; 2) the behavior was “severe, pervasive, or objectively offensive;” and 3) the district responded with deliberate indifference. In the case of Sumrall v. Rockwall ISD the plaintiff failed to meet any of those standards.

The suit alleged that a student called another student a nasty name and rubbed his foot up and down the leg of that student’s blue jeans. This was reported to school officials, who promptly addressed the situation. There was no evidence of subsequent misconduct. So no “deliberate indifference.” Nor did any district official know about any “boorish and lewd” conduct by this student before this one incident. And the one incident simply didn’t measure up to “severe, pervasive, or objectively offensive” as those terms have been interpreted in previous cases.

The court had previously dismissed two school administrators from this case, and now the district has also been dismissed. Ali Mosser from our firm’s Irving Office ably advocated for the district in this case, obtaining this Summary Judgment in favor of the district.

It was decided on July 19, 2021 by the federal court for the Northern District of Texas.

DAWG BONE: IT’S THE BASICS AGAIN: INVESTIGATE; TAKE APPROPRIATE ACTION; DOCUMENT; COMMUNICATE.

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

Tomorrow: Toolbox Tuesday!!

Coach Cross strongly objected to the policy the school board was considering in Loudoun County, Virginia.  The policy would, among other things, require teachers to refer to students by their preferred pronouns. Thus a transgender female student would be referred to as she/her, despite being born a biological male.  To Coach Cross, this was non-scientific, abusive to children, and a violation of God’s law.   He expressed these views privately at first in an email to the superintendent, and then publicly at a school board meeting.

The school got some complaints from parents after the school board meeting, several of them asking that their children have no contact with Coach Cross.  The school suspended Coach Cross with pay, and limited his ability to speak at future board meetings. 

Coach Cross sued and obtained an injunction that ordered the school to reinstate him.  On appeal, the Supreme Court of Virginia ruled that the lower court had not abused its discretion, and thus, the injunction stayed in place.  The court discounted the effect of the parent complaints, noting that it was limited to a “tiny minority” of parents.  The case is Loudoun County School Board v. Cross, decided by Virginia’s Supreme Court on August 30, 2021. 

As a school district lawyer, I have to wonder if the outcome would have been different if the school had waited until the policy was adopted before taking action against the coach.  It was clear that he was not going to comply.  If the school had let that play out, it would have argued that the adverse action it took was based on conduct—violation of policy—rather than speech.  Maybe the court would have seen it differently. 

But maybe not. The highest level court we have on the pronoun issue is the 6^th Circuit in Meriwether v. Hartop, 992 F.3d 492 (6^th Cir. 2021).   This one involved a university professor at Shawnee State in Ohio who was disciplined based on a student’s complaints that the prof refused to use feminine pronouns when calling on her. The 6^th Circuit provided a ringing endorsement of the importance of academic freedom for teachers, particularly at the college level.   In doing so, the court held that Meriwether was protected by the First Amendment and could not be required to comply with the university’s policy.  As with Coach Cross, Professor Meriwether’s objections to the policy were based on both philosophical and religious views.  That one was decided on March 26, 2021, and a request for rehearing en banc was denied in July.

So be careful when you address this issue. We certainly want to provide a safe and welcoming school experience for all students, including those who are transgender. But the objections of teachers, particularly if based on religious views, have to be weighed in the balance as well. 

DAWG BONE: FURTHER EVIDENCE: THE PUBLIC SCHOOL IS GROUND ZERO IN THE CULTURE WARS.

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