Here’s something that comes up fairly often: the parent requests an IEE (Independent Educational Evaluation) in an area the school has not evaluated.  Of course parents can always obtain an IEE—the legal issue is whether they can require the school to pay for it. 

The federal court for the Northern District of Texas concluded that the district is not required to pay for an evaluation under these circumstances.  The court noted that nothing in the law “entitles parents to an IEE at public expense where the district has not done an evaluation.” 

There was also another problem.  The parent obtained the evaluation from someone who was not within the geographic area spelled out in the district’s guidelines for IEEs.  The court held that the district’s geographic criteria were reasonable, and the district was authorized to deny funding for the IEE on that basis without requesting a due process hearing:

Section 300.502 contains no provision requiring, or even permitting, schools to initiate due process hearings to support their denial of an IEE evaluation based on geographic criteria…..Therefore, under the text of Section 300.502, school districts may place geographical limitations on IEE evaluators and may deny payment of expenses of an IEE evaluator that does not meet its geographical criteria.

It's Thurman G. v. Sweetwater ISD, decided by the federal court for the Northern District of Texas on July 26, 2021. We found it on SpecialEd Connection at 121 LRP 25687.

DAWG BONE: COMMON SENSE.  AN IEE IS FOR WHEN THE PARENT DISAGREES WITH THE DISTRICT’S EVALUATION.  THAT MEANS THE DISTRICT HAS DONE ONE.

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

Tomorrow: sometimes the parent wants the more restrictive environment….

The 5^th Circuit uses the term “trigger date” in reference to that specific point in time when the school district should begin to address a possible disability that impedes learning.  If the parent requests a special education evaluation, the trigger date is obvious.  It’s the date the parent makes that request. The district needs to respond to that request within 15 school days, and must respond by either seeking consent for the evaluation or providing prior written notice to explain why it will not do that. 

When there is no request for an evaluation, the “trigger date” is determined through hindsight, looking back at what happened, and what information the district had.  The trigger date is the date when the school has enough information to suspect that there might be a need for specially designed instruction to address a disability. 

In a recent federal court case the parent argued that the “trigger date” occurred in the spring of 2018 when the parent requested 504 accommodations due to a diagnosis of ADHD.  Was that enough to “trigger” the district’s duty?  It certainly was enough to trigger a duty to consider  Section 504, but what about IDEA? 

The court held that this did not trigger the district’s duty.  This was largely based on the student’s good performance in school.  It’s not enough that the school was informed of an ADHD diagnosis. The school also has to have some basis to suspect that the student needed something beyond what general education and 504 accommodations could provide.  The district did provide a 504 plan, which produced good results. The student got all A’s and B’s on his final report card which included pre-AP classes in all four core courses.  He also scored “Masters” level on his STAAR tests in reading, social studies, and science. The court held that the 504 accommodations were adequate and there was no Child Find violation.

It’s Zamora v. Hays CISD, decided by the federal court for the Western District of Texas on June 20, 2021. We found it on SpecialEd Connection at 79 IDELR 12.

DAWG BONE: LET’S ADD “TRIGGER DATE” TO THE VOCABULARY.

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

Tomorrow: responding to a request for an IEE….

The court’s opinion noted that the SRO resigned shortly after the “incident.”  That sounds like it was a good idea.  The “incident,” according to the subsequent lawsuit, involved the SRO handcuffing a seven-year old with multiple disabilities and kneeling on his back, while offering unsolicited advice accompanied by threats.  The court dismissed claims against the school district because there was no allegation of a policy or a widespread pattern of this type of conduct, and there was no allegation that the student was suspended from school or otherwise denied the benefits of public education on the basis of his disability.  The court allowed negligence suits against a teacher and an aide to proceed, noting that the suit alleged that they failed to carry out their duty to care for the student by not doing more to intercede with the SRO.  Note: this was in North Carolina, where teachers apparently do not have the same level of immunity as Texas teachers enjoy.

The SRO was employed by the city, not the school district. But still….schools should be sure that cops who are going to treat small children like this are not allowed on campus. 

Our firm’s Toolbox offers ten tools designed to properly deal with students who are disruptive or violent. This isn’t one of them.

It’s A.G. v. City of Statesville, decided by the federal court for the Western District of North Carolina.  We found it on Specialed Connection at 79 IDELR 9.

DAWG BONE: RESTRAINT IS PERMISSIBLE IF DONE PROPERLY AND UNDER THE RIGHT CIRCUMSTANCES.

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

Tomorrow: new vocabulary!

The term “trigger date” has now entered our lexicon, and I think you will be relieved to hear that it has nothing to do with firearms.  “Trigger date” is the term used by the 5^th Circuit for that point in time when the school should start to do something to address the possibility that a student may need special education. 

Let’s consider two scenarios, one of them very clear, and the other one murky.  In the first, the parent requests a special education evaluation. Let’s say the parent does that today, and there is no ambiguity about what the parent has asked for: “I would like you to conduct a full, initial, individualized evaluation of my child to determine if special education services are needed.”  In that scenario the “trigger date” is crystal clear.  It’s today.  Furthermore, the school’s legal responsibility is equally clear. Within 15 school days the school must seek parent consent to do the evaluation, or give “prior written notice” to explain why it will not do that. Looking at the calendar, I see that 15 school days after today is Friday, September 24^th.  By that date, the school should have responded. Let’s assume the school was a week ahead of that deadline, and provided the parent with a consent form on September 17.  Let’s assume the parent sat on it over the weekend, but turned it in on Monday, September 20.  Now you have a new timeline—your FIIE must be done within 45 school days of September 20^th.  This is going be somewhere close to Thanksgiving.

In the second, messier scenario, the parent never made that straightforward kind of request.  But later, the parent alleges that the school was “on notice” that something needed to be done.   The parent accuses the school of missing signs of disability and failing in its responsibility to refer the student for an evaluation.  This is where the courts use the term “trigger date” which the 5^th Circuit defines as follows:

A school district’s child find duty is triggered when the district “had reason to suspect the child had a qualifying disability.”  Dallas ISD v. Woody, 865 F.3d 303, 320 (5^th Cir. 2017).  Although there is no bright-line rule, a school district generally has sufficient notice if it is aware of facts suggesting the child has a disability and that the child is struggling academically. 

In the cool logic of the law, the courts apply this standard:

Ultimately, our evaluation of a school district’s compliance with the child find mandate “turns on three inquiries: 1) the date the child find requirement was triggered due to notice of a likely disability; 2) the date the child find duty was ultimately satisfied; and 3) the reasonableness of the delay between these two dates.”

In the recent case, the court upheld the hearing officer’s view that the “trigger date” was April 27, 2017.  The district satisfied its obligation when it obtained parent consent for an evaluation, but that didn’t happen until October 19, 2017. That’s almost six months later. Was that a reasonable delay?   No.  The court held that this was too long, and it was not entirely attributable to summer break.  There was a 504 plan in place, but the court found that it was not producing good results. Moreover, the court relied on the 504 plan, in part, to establish that the school was aware of “facts suggesting the child has a disability and that the child is struggling academically.”

It’s a lot easier for a hearing officer to pinpoint a “trigger date” months or years later, based on records and testimony. It’s a lot harder to spot it in the hustle and bustle of everyday schooling.  But that’s the task.  Notice that the “trigger” happens based on a “suspicion”—not a certainty. But it has to involve a suspicion of two things: both a qualifying disability, and a need for specially designed instruction.

It’s D.C. v. Klein ISD, decided by the 5^th Circuit in an unpublished opinion on June 17, 2021.  We found it at 2021 WL 2492842.

DAWG BONE:  PUT “TRIGGER DATE” INTO YOUR VOCABULARY.

When the Supreme Court overturned Brandi’s suspension from the cheerleading squad, we knew it was just a matter of time before challenges to extracurricular codes of conduct blossomed like bluebonnets in March.  Sure enough, it did not take long.  A federal court in Missouri has upheld the 45-day suspension from volleyball of an 8^th grader based on evidence of her alcohol consumption, which the student herself recorded on Snapchat.

This case had some similarities to Brandi’s.  Let’s compare:

But that’s about where the similarities ended.  As the court pointed out, Brandi was suspended for what she said, which is what the First Amendment is all about.  The girl in Missouri was suspended for what she did.  The First Amendment does not protect conduct, unless that conduct is essentially an expressive act that sends a particular, and understandable message.  In this opinion the court notes several examples of expressive conduct that warrant constitutional protection, including Mary Beth Tinker’s wearing of a black armband in protest of the War in Vietnam.

The court summed up the important distinction:

The analogy between [Brandi’s] Snapshot photos and N.C.’s Snapchat video is a faulty one.  [Brandi’s] Snapchat photos were pure speech.  In comparison, North Platte is allegedly regulating a videorecording of N.C. consuming alcohol.  When a minor consumes alcohol, she is engaging in an illegal act, not pure speech. 

The fact that N.C. was doing something that is illegal made it easier for the court to confirm that the school district had a legitimate interest in regulating this conduct, even off campus on a Sunday.  But that wasn’t the decisive factor here. The decisive factor was that drinking alcohol is conduct, as opposed to speech. 

As is often true in school law cases the story behind the case would make for a good Made-for-TV Movie.  A 13-year old girl videos herself drinking alcohol in her home, and is found later that night by her mother, “incoherent and on the verge of losing consciousness.”  Fortunately, mom got her to the hospital where she was diagnosed with acute alcohol poisoning.  Apparently she recovered quickly, as she only missed one day of school.

But mom let her Snapchat friends have it:

Hello…This is [N.C.’s] mom.  I wanted to let you all know that she is still alive.  In her SC video she posted earlier—which some of you thought was funny (I’ve read allllll of the messages)—you actually witnessed her having a life-threatening medical emergency.

And for those of you who may have suggested, encouraged, dared, etc. for her to do anything, just know I know who you are.

The case is Cheadle v. North Platte R-1 School District, decided by the federal court for the Western District of Missouri on August 16, 2021.  We found it at 2021 WL 3621877. 

Our firm is doing a webinar to follow up on the Supreme Court’s decision in Brandi’s case—B.L. v. Mahanoy Area School District on September 14th.  Haley Turner and Wesley Nute will be leading the discussion and I’m sure they will be talking about this case. Sign up at info@wabsa.com. 

DAWG BONE: LOOKS LIKE PROHIBITING ALCOHOL CONSUMPTION IN EXTRACURRICULAR CODES OF CONDUCT WILL SURVIVE.

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

Tomorrow: “trigger date”….

Not all of the Circuit Courts analyze a claim of a denial of FAPE in the same way.  In some Circuits, the evidence is limited to the information that was available to the IEP Team (ARDC) when they wrote the IEP. The question then is: based on what the IEP Team knew at the time, was this IEP reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances?

The 5^th Circuit uses the four-part test that it created in 1997 in Cypress-Fairbanks ISD v. Michael F.  The test is: 1) was the IEP individualized based on the student’s evaluation and performance; 2) was it administered in the LRE; 3) were services provided in a coordinated and collaborative manner; and…well let me build up the suspense about the fourth factor.   

The fourth of the four factors is often given more weight than the others. The fourth factor is the demonstration of positive academic and non-academic benefits.  That sounds good.  After all, the whole idea is to enable the student to make educational progress.  But how much sense does it make to use “progress” as your standard when the IEP has been in place for about two or three months at the tail end of a school year?

That was the situation in Klein ISD.  The IEP was completed on March 9, 2018. The hearing was held in August.  So how much time did the district have to produce some evidence of progress?  A few months after spring break.  It seems it would make more sense to ask the question that other circuits ask: was this IEP “reasonably calculated” to produce progress?  Surely it was. After all, the parties met for three days to develop it, and the parents agreed to it. 

I wouldn’t be writing about this if the court had viewed “progress” the way I thought it would.  The district produced plenty of evidence of progress, but the court dismissed it.  The student was in 5^th grade, and served mostly in the mainstream.  The court noted that “after his IEP was implemented, D.C. passed all of his 5^th grade classes and his performance on several tests improved.”  His reading MAP score improved, as did his STAAR reading grade. This would be particularly significant because reading was the main issue here. 

OK, then, we’re going home now, right?  No.  The court discounted the STAAR improvement because he got one accommodation in 5^th grade that he had not had in 4^th.  And as for those reading grades, there was this devastating drop:

Oh my!  Learning loss!!

It might make sense to weigh “progress” as a factor if the district has had a year to demonstrate it. After all, the goals are annual goals, and the IEP is good for a year.  If we are going to consider “progress” as a factor, shouldn’t we give the district the same amount of time that a student has to demonstrate it? 

The court’s opinion in D.C. v. Klein ISD is hard to square with common sense, which is perhaps why it drew the strong dissent that we told you about on Monday.  But that’s the way it goes sometimes. The case was decided by the 5^th Circuit in an unpublished opinion on June 17, 2021.  We found it at 2021 WL 2492842.

DAWG BONE: IF PROGRESS IS A FACTOR, WE MIGHT NEED MORE TIME TO SHOW IT….

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

Tomorrow: a volleyball player gets drunk….

The charter school required all students to participate in statewide testing, or the alternative test provided by the State of California. However, students in special education could be exempted.  The student was in special education, and exempted from the standardized tests until all this happened:

The parent thought that she could simply “put him back in” to special education, but the school did not treat it that way.  The school considered the student a general education student who was required to take the standardized test or its alternative.  The student did not take the standardized or alternative test and was “disenrolled,” meaning he could not return to the school the following year.  The parent claimed this violated IDEA as a “disciplinary” change of placement done improperly.  Nope:

Plaintiff’s request for assessment of J.T. for special education on April 5, 2019 did not “un-do” her April 1, 2019 revocation of consent.  It also did not reinstate J.T.’s status as a special education student.  It would be incongruous with these provisions of the IDEA to automatically impute legal knowledge of J.T.’s disability on the School after Plaintiff’s refusal of services but before a second assessment.

Both the hearing officer and the court concluded that the “disenrollment” was done as per rules of general application, rather than a violation of the Code of Conduct.  Therefore it was not a “disciplinary change of placement.”  The district was not obligated to hold a meeting or conduct a manifestation determination.  Mom should have thought twice before that abrupt revocation of consent.

It’s Thomas v. Empire Springs Charter School, decided by the federal district court for the Central District of California on March 5, 2021. We found it at 78 IDELR 131.

DAWG BONE: IF PARENTS REVOKE CONSENT, THEY CAN’T JUST “PUT ‘EM BACK IN.”

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

Tomorrow: more on the Klein ISD case…

I have posted many entries on the Daily Dawg discussing “The Unwritten Rule” of special education litigation—that the hearing officer and judges will always be quietly assessing the comparative reasonableness of the parties.  I’ve reviewed many cases where the opinion points out how one side or the other behaved unreasonably.  The case usually goes against that party.  Not always. 

In the 5^th Circuit’s decision in D.C. v. Klein ISD it’s the dissenting opinion that goes off on the behavior of the prevailing party—the parent.  Judge Willett points out that an award of compensatory educational services is what the law classifies as an “equitable” remedy, and it is a basic rule that the party seeking such a remedy must not come to court with “unclean hands.”  Judge Willett found dirt on the hands of the plaintiff, D.C.:

As to unclean hands, D.C.’s aunt, who works for his lawyer, pressured the District into providing the unnecessary services for dyslexia that D.C. now challenges.  According to the hearing officer “she set the tone for the meeting by informing the ARD Committee that she has ‘sued’ her own child’s school district ‘six times’ and had been encouraging [D.C.’s] mother to do the same….for several years.”  The meeting was described as “unpleasant,” very charged and contentious,” “tough,” “hectic,” and “exhausting.”  D.C.’s aunt was ‘demeaning to staff members from the District.” And she hijacked the proceedings: “The evaluator who had conducted the [FIIE] did not have a chance to discuss the evaluation” and the District’s diagnostician “could not even fully present her own opinions.”  Instead, [D.C.’s] aunt insisted to the ARD Committee that [he] should qualify as a student with Dyslexia.”

This was important because the court later faulted the district for providing dyslexia services due to parent insistence when the evidence of dyslexia was lacking.  The 5^th Circuit majority relied on this to conclude that the student’s IEP was not properly “individualized.”  Judge Willett blasted that reasoning:

It is entirely unfair for D.C. (really, his lawyer) to recover against the District for providing the wrong services because D.C. (really, his lawyer) succeeded in forcing it to provide exactly those services.”  (Emphasis in original).

I will have more to say about this case later this week.  I confess I can’t make sense of it. It looks to me like the court put the burden of proof on the school district rather than the parent.  More fundamentally, the court’s application of the 5^th Circuit’s four-part test for FAPE reveals a fundamental flaw in that test. We’ll address that on Wednesday. 

It’s D.C. v. Klein ISD, decided by the 5^th Circuit on June 17, 2021.  We found it at 2021 WL 2492842.  The 5^th Circuit elected not to have this one published in the official reporter, and thus it will not be used as a precedent for future cases.   I think that’s a good decision. 

DAWG BONE: MY PERCEPTION OF “REASONABLE” IS NOT ALWAYS THE SAME AS YOURS.

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

Tomorrow: “disenrollment” from a charter school….

As you review IEPs and fill out the IEP Supplement that is now required as a result of SB 89, the COVID-19 Special Education Recovery Act, pay attention to the verbs.  The Act requires the school to answer three questions pertaining to students you served in special education in either or both of the last two school years. Question One asks about those students for whom the initial evaluation was done in the last two years. Was it done on time?  Question Two is also about those students—was the initial IEP done on time?    

Question Three must be asked with regard to all students, and this is the one where you should study the verbs.  The Act asks you if special services for the student were “interrupted, reduced, delayed, suspended, or discontinued.”  Notice that all of those verbs are about the school.  None are about the student or the parent.  The question is whether the school district delivered the services that the student was supposed to get as per the IEP.  The question is not about whether or not the student achieved the goals set out in the IEP.  Of course the answer to that question is important also, but it will help if you take matters up in proper sequence. 

Consider:  If services were never “interrupted, reduced, delayed, suspended, or discontinued” then it is unlikely that the school would owe any compensatory services.  I’m guessing, though, that for most students there was at least some amount of delay or interruption. 

After you have answered the three questions, you go on to Question Four: “whether compensatory educational services are appropriate for the child based on the information” derived from the first three questions “or any other factors.”

Hypotheticals: The services for Carlos were never “interrupted, reduced, delayed, suspended, or discontinued.” The district delivered every bit of what the IEP promised, on time and without any interruption. It’s hard to see why Carlos would qualify for compensatory services.

Alicia had her speech therapy interrupted for a while when COVID first hit in March 2020, but the district was able to make up for it later.  Did the interruption have an adverse impact on Alicia?  Did she achieve the goals we had for her in speech? Those would be relevant questions to ask.

We had bigger problems providing services to Jamaal, whose IEP called for a lot of hands-on direct instruction along with considerable OT and PT.  His services were not only interrupted and delayed, they were reduced. Although we did our best, we simply could not provide the amount or quality of services that his IEP called for.  It wasn’t our fault. It was COVID.  I’d say that Jamaal is a strong candidate for compensatory services. Again, the school should ask how he did. Did he achieve the goals set out in his IEP? If not, how badly did he miss them?  What does this year’s IEP look like?  Those are some of the “other factors” to be taken into account. 

Prior to COVID, “compensatory services” were awarded only when the school district was at fault in some way.  Compensatory services could only be awarded if there was a finding that the district failed to provide the Free Appropriate Public Education that the law requires.  The COVID-19 Special Education Recovery Act is not concerned with fault. Its focus is on the impact of the pandemic on student progress.   

Let us know if the lawyers at Walsh Gallegos can help you navigate these issues. 

DAWG BONE:  COVID-19 SPECIAL EDUCATION RECOVERY ACT: A FOCUS ON STUDENT PROGRESS.

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

I’ve seen some statements on social media that the 4^th Circuit has held that a charter school in North Carolina has a dress code that violates Title IX.  That’s not right.  That’s not what the 4^th  Circuit said.  But the court did hold that Title IX applies to a dress code, and that’s big enough news right there. 

There is a K-8 charter school in North Carolina that requires girls to wear skirts.  No, really—they do.  Yes, the boys at the School must conform to a uniform policy as well, and it’s equally conservative. But the girls claim that this skirt requirement in particular imposes a burden on them that the boys do not have to deal with.  They are more inhibited on the playground, they have to take care as to how they sit.  It can be cold on bare legs in North Carolina. 

The founder of the school, who still serves on the board, claimed that the dress code promoted chivalry. He testified that “chivalry” meant “a code of conduct where women….are regarded as a fragile vessel that men are supposed to take care of and honor.” 

I intend to poll the Women of Walsh Gallegos and see how they feel about that.  Fragile vessels, indeed.  Fiddle-dee-dee, Miss Scarlet!

But that gives you an idea of the culture the charter school was promoting.  It appealed to many parents, but three of them, representing girls in kindergarten, 4^th and 8^th grades, sued the school, alleging that the dress code, besides being a few centuries behind the times, was illegal. 

The 4th Circuit held that Title IX applies to dress codes.  This was not obvious and so this is an important ruling.  The Title IX regulations that were adopted in 1975 said that Title IX prohibits discrimination in the application of “any rules of appearance.” But in 1982 that regulation was rescinded. At that time the regs noted that Congress did not say anything specific about dress and grooming codes, and besides, the Department of Education had bigger fish to fry, more important issues to deal with. 

The 4^th Circuit disregarded all that history and focused on the actual language of the law.  It noted that the statute prohibits discrimination based on sex in educational institutions that receive federal funding but it also includes several exceptions:

*Title IX does not apply to religious organizations if it would conflict with their religious tenets;

*It does not apply to military schools;

*It does not apply to historically single-sex public universities;

*It does not apply to social organizations like fraternities and sororities, YMCA, YWCA, Boy Scouts and Girl Scouts;

*It does not apply to Boys State, Girls State or similar conferences and programs;

*It does not apply to father-son or mother-daughter activities;

*It does not apply to scholarships won in beauty pageants, as long as factors other than beauty are taken into account.

That’s seven exceptions.  The 4^th Circuit reasoned that if Congress wanted to make an exception for dress codes, it could have added an 8^th exception. So the dress code is subject to Title IX and must not discriminate on the basis of sex. However, the court did not take the next step and apply Title IX to the charter’s school’s dress code. Instead, it remanded the case to the lower court for a determination of that issue.

The court did offer some guidance.  First, the inquiry should focus on how the dress code affects individuals—not groups.  In other words, the fact that the dress code restricts both boys and girls is not, by itself, enough to pass muster.  Was an individual treated worse due to the dress code, and was that treatment attributable to that person’s sex?

Second, the harm to the individual must be objective, not just a subjective feeling.  Girls who don’t like the dress code, or feel unfairly treated will have to produce evidence of how they are actually harmed by the application of the dress code.  No doubt the evidence on this issue will focus on the obvious fact that movement while wearing a skirt is restricted as opposed to movement when wearing pants.

Will this decision lead to more aggressive efforts to persuade Texas school districts to alter some longstanding practices?  Youbetcha.  It’s Peltier v. Charter Day School, decided by the 4^th  Circuit Court of Appeals on August 9, 2021.  We found it at 2021 WL 3483288.

DAWG BONE: GET READY FOR SOME CHALLENGES OVER YOUR DRESS CODE.

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

Tomorrow: Some thoughts about those IEP Supplements….