What caught my attention about the case from New York was the fact that it involved a school psychologist being accused of doing things school psychs are rarely accused of: the use of excessive force.  Claims about force are usually focused on the assistant principal or the coach.

The court dismissed the claim that the school psychologist used excessive force with the student, noting the absence of a claim of physical injury, and no facts showing a malicious motive. Key Quote:

While Fischer’s attempts to get WV to pay attention in class by removing his desk and chair may have been ill-advised, they involved no application of force, no physical injuries, and served the legitimate purpose of preventing WV from resting his head on the desk. 

There you go.

The court also tossed out the parent’s retaliation claim, noting that “heated interactions” with school personnel are not “adverse actions.”  The parent also failed to establish facts that would show a causal connection between her advocacy for her child and any act of retaliation.  The court noted that the parent strongly advocated for her child for a decade.  “Without more than mere temporal proximity, Plaintiff fails to plead a retaliation claim as to the denials and failures to respond to her requests.” 

It's Vinluan v. Ardsley Union Free School District, decided by the federal court for the Southern District of New York in 2021. We found it on Special Ed Connection at 78 IDELR 164.

DAWG BONE: THAT’S ONE WAY TO TRY TO KEEP THE KID AWAKE!

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

Tomorrow: the cops asked us to slow down…

Our firm offers training on the legal requirements for serving students with disabilities because it is one of the most complicated areas of school law.  There are federal laws and regulations, Chapter 37 and other state law provisions, local policy, and the case law that interprets all that.  It’s a lot. So we have tried to simplify without being simplistic. The Toolbox offers a vocabulary and a framework built around ten “tools” that are available to school administrators. 

I enjoy doing Toolbox training, but I also become increasingly aware of how “Old School” the Toolbox is. It’s built around the things that school administrators can do to address inappropriate behavior.  I’m a lawyer, not a behavior expert, so all I can confidently tell you is what the law allows and what it forbids. So we talk a lot about DAEP, and suspension, and how ISS fits in.  All well and good, but none of that really gets to the root of the problem. 

The root of the problem is behavior that impedes the learning of the student or others. The law tells us that the ARDC is to ask itself every year, at the annual ARDC meeting if the student has behaviors that impede learning. If the answer is yes, the members of the committee are required to talk about how the behavior should be addressed.  Behaviors that “impede learning” can range from sullen and isolated withdrawal to violent outbursts.  Likewise, the ways to address such behaviors can run the gamut, limited only by your creativity. Well….and also limited by some legal restrictions.

But you do have a lot of flexibility in how inappropriate behavior is addressed.  I think the research shows that doing the same thing over and over, when it does not produce good results, is kind of crazy.

So as a new year launches, just a reminder that the most important tool is Tool #1—the creation and implementation of a plan to address the student’s behavior through positive interventions, supports, and strategies.  The kids have been through a lot these past 18 months—as have you.  Let’s start the year with a focus on the things we can do FOR the students rather than the things the law allows us to do TO the students.

DAWG BONE: STILL THE #1 TOOL IN THE TOOLBOX: A BIP.

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

Tomorrow: heads up, school psychs!

The folks in the Bainbridge Island school district thought they had done as much evaluation as they needed to do.  The court did not see it that way.  There had been numerous expressions of concern from both parents and teachers over the student’s ability to write.  However, the district never conducted an evaluation to determine if the student had dysgraphia. When pressed in court, the district argued that dysgraphia was merely secondary to dyslexia, which the school did evaluate. The court disagreed:

But as Dr. Nelson made clear, P.S.’s dysgraphia is not merely secondary to dyslexia, it is a separate condition for which P.S. received an independent diagnosis.

The court held that the district committed a procedural violation by failing to evaluate the student’s possible dysgraphia.  Moreover, this procedural violation denied FAPE by depriving the student of needed services and the parents of the opportunity to participate meaningfully.

Federal law does not specifically include dysgraphia in the list of conditions that might constitute a specific learning disability.  It includes dyslexia, but not dysgraphia.  See 34 CFR 300.8(c)(10).  However, Texas Education Code 38.003 speaks of “dyslexia and related disorders” and includes “developmental dysgraphia” as one of the “related disorders.”  The Dyslexia Handbook gives the subject considerable attention, addressing dysgraphia from page 59 to page 72!

So perhaps this could happen here as well.  This case is D.S. v. Bainbridge Island School District, decided by the federal court for the Western District of Washington in 2021.  We found it on Special Ed Connection at 78 IDELR 242.

DAWG BONE: MIGHT BE A GOOD TIME TO REVIEW HOW YOU HANDLE DYSGRAPHIA.

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

Tomorrow: Toolbox Tuesday!!

Yesterday we told you about the custodian with autism who was terminated from his job in Northeast ISD. The court ruled against him on his disability discrimination claim because he could not identify a non-disabled employee who had engaged in similar behavior.  No other custodian had ever pushed a coworker to the ground. 

The second claim in the custodian’s lawsuit was that the district failed to accommodate his disability.   After all, the district knew that he had autism which impaired his ability to navigate difficult social situations. So when he was confronted by his coworkers, two high ranking administrators, and a police officer, shouldn’t the district have made sure that the custodian’s parents were there as well?

Actually, his father was there, but by the time he got there, it was pretty much too late.  The custodian had already made the crucial admission that he had pushed his coworker and she fell.

Doesn’t the law require school districts to “reasonably accommodate” workers who have disabilities?  Yes, it does.  But this is an area where the law treats the adult with a disability very different from the child with a disability.  The adult bears more responsibility.  In this case the court cited a 5^th Circuit decision for this proposition:

If the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one.   Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5^th Cir. 1996). 

The court noted that the custodian had worked for the district for over three years and had never requested an accommodation to deal with his communication with his supervisors.  He may have lost this case in any event, but the autistic custodian would have been in a stronger position if he had specifically requested that the district contact his parents prior to questioning him about possible wrongdoing.

Do you see the implications for transition plans that we write for students with IEPs or 504 plans? When those students leave the protective cocoon of K-12 schools they face a very different situation. Whether they are in the workforce, or another level of education, they have to know how to 1) go to the right people; 2) identify themselves as having a disability; 3) provide any necessary documentation; and 4) request reasonable accommodation. 

Self-advocacy.  It should be included in every student’s transition plan.

This one is Goodlett v. Northeast ISD, decided by the Court of Appeals in San Antonio on May 26, 2021.  We found it at 2021 WL 2117927. 

DAWG BONE: DEVELOPING THE SKILL OF SELF-ADVOCACY SHOULD BE A PART OF EVERY TRANSITION PLAN.

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

Northeast ISD hired Scottie Goodlett as a custodian in August, 2014.  The district fired him in 2018.  Mr. Goodlett alleged that this was a case of disability discrimination.  Mr. Goodlett had autism, which the district was well aware of. His lawsuit alleges that his autism “impairs his ability to navigate social situations; he has the mental age of a 10-12 year old and reads at the fifth to sixth grade level; and he relies on his parents to deal with social situations.”

It was a “social situation” that led to the termination.  On January 22, 2018 when Mr. Goodlett and three other custodians took their lunch break, someone suggested that they race to the car.  Off they went.  In the excitement of the moment, Mr. Goodlett pushed Ms. Castillo from behind and she fell to the ground, injuring her left hand and ripping her pants.  Uh oh.   Surveillance video captured the incident. 

The foursome went to lunch, but upon their return, Ms. Castillo filed a workers comp claim and made a report to NEISD police.  Investigations ensued, which resulted in consistent reports from all of the custodians. Everyone agreed: Scottie pushed Maria and she fell.  Mr. Goodlett admitted it, while also stating that he did not intend to hurt her.

There was more.  Two of the custodians reported that Mr. Goodlett had previously threatened to hit them. 

The investigation quickly moved up the chain of command to the Executive Director of Athletics, who wrote a memo explaining her reason for terminating Mr. Goodlett’s employment:

The decision to terminate Plaintiff’s employment weighed heavily on me because I had seen firsthand the progress that Plaintiff had made while working at NEISD.  Ultimately, I determined that NEISD could neither excuse nor tolerate Plaintiff’s misconduct, and that he must be treated in the same manner as any other employee, irrespective of his disability.

Was he treated the same? That was the critical issue in the litigation.  Mr. Goodlett had to convince the court of four things.  He succeeded on the first three:

1. He is a member of a “protected class,” that being that he is a person with a disability;

2. He was qualified for the job he held, as evidenced by his  successful employment for over three years;

3. He was subjected to an “adverse action.” He was fired.

The fourth factor was the sticking point:

4. He was treated less favorably than other similarly situated employees who were not members of the protected class under nearly identical circumstances.

Mr. Goodlett argued that all four custodians were engaged in “horseplay” but he was the only one who got fired. The court did not see it that way:

However, the other three coworkers were not “similarly situated under nearly identical circumstances” because none of them pushed a coworker and none of them made prior threats of violence against a coworker.

This one is Goodlett v. Northeast ISD, decided by the Court of Appeals in San Antonio on May 26, 2021.  We found it at 2021 WL 2117927. 

DAWG BONE: TO PROVE DISABILITY DISCRIMINATION YOU HAVE TO COMPARE YOURSELF TO SOMEONE IN “NEARLY IDENTICAL CIRCUMSTANCES.”

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

Tomorrow: Let’s think about transition plans….

In the fast changing world of COVID related legal issues, a letter from the Student Privacy Police Office dated April 16, 2021 seems like ancient history.  Nevertheless, it’s worth mentioning, particularly in how it treats the “health and safety” exception under FERPA. 

Let’s review.  The general rule under FERPA is that personally identifiable information about a student contained in education records is not to be disclosed without parent consent.  There are numerous exceptions to that general rule. The most commonly used exception is the one that permits disclosure to other school officials who have a legitimate educational interest in having the information.  This is what enables teachers and counselors and administrators to talk about students without getting parent consent for every conversation.

Another widely used exception involves health and safety. That’s the one cited in the SPPO’s “Letter to Anonymous.”  “Anonymous” had complained that a teacher “disclosed my children’s positive test results for COVID to not only fellow staff, but to students as well.”   The response:

Based on the facts you provided this Office, your complaint does not give this Office reasonable cause to believe that there has been a violation of FERPA.

SPPO notes that the “health and safety” exception permits disclosure “in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.” Agencies can “take into account the totality of the circumstances” and if “there is an articulable and significant threat to the health or safety of a student or other individuals it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals.”

That’s not a permission to tell everyone everything that you know.  And there are laws and regulations besides FERPA to think about. What is your district policy about this?  What direction have you gotten from your board or superintendent? What is T.E.A.’s guidance?  The guidance from the Agency has changed as the months have rolled by. Currently that guidance requires only two notices: first, to the local health department for each positive; and second, to the TDSHAS on a weekly basis for all positives. 

Moreover, there is the Vast Reservoir of Common Sense.  It might be appropriate to inform parents that there was a positive test in the third grade without giving out a particular student’s name.  Let’s not gossip.  Let’s inform those who need to know.

DAWG BONE:  COMMON SENSE AND THE LAW ARE OFTEN ALIGNED.

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

Tomorrow: Four custodians race to the car to go to the lunch. How does this end up in litigation?

Our new law, HB 785, requires the school district to seek parent consent to do a Functional Behavioral Assessment (FBA) when the school proposes a disciplinary change of placement.  This will come up when students commit offenses that might call for DAEP placement.  In Toolbox terminology, we call that Tool #6. It will also come up when Campus Behavior Coordinators use the unilateral authority they have to assign a student to an IAES (Interim Alternative Educational Setting) for up to 45 school days based on the “special circumstances” offenses involving drugs, weapons, or the infliction of serious bodily injury.  In the Toolbox, we call that Tool #5. 

The timeline for doing this is not later than “the 10^th school day after the change in placement.”  That’s the same timeline we have for conducting a manifestation determination.  So it seems that the school could do both of these things at the ARDC meeting.  However, there is no reason to wait for an ARDC meeting to “seek consent” for an FBA.  You can’t do a manifestation determination outside of an ARDC meeting, but you can seek consent for an FBA.  You can do that right away, as soon as the Campus Behavior Coordinator proposes a disciplinary change of placement. 

So consider reviewing your practices.  When the CBC determines that a student has done something that would warrant a disciplinary change of placement, we need to promptly get notice to the parents of an ARDC meeting. We need to send the Procedural Safeguards document, or have a copy ready to deliver at the ARDC meeting.  Based on this new law, we should also review the student’s file to see if we already did an FBA. If so, how long ago?  If it was done less than a year ago, it’s not necessary to seek consent for a new one. But if we have not done one, or the existing one is more than a year old, we should promptly notify the parent that we’d like to do an FBA and seek consent for doing that.

Toolbox 4.1 is in the works, and will reflect this change. 

DAWG BONE:  YOU DON’T NEED AN ARDC MEETING TO SEEK PARENT CONSENT.

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

Tomorrow: COVID meets FERPA.

An interesting question came up in last month’s Zooming with the Dawg call. We were talking about the Supreme Court’s recent decision in favor of Brandi the Cheerleader who had been suspended from the JV cheerleading squad due to her vulgar Snapchat posts.  SCOTUS held that the school’s authority over students when they are off-campus still exists, but is “diminished.” 

So a Loyal Daily Dawg Reader posed the question: can our extracurricular code of conduct still prohibit possession and/or consumption of alcohol away from school? 

Brandi’s case was about conduct that is protected by the Constitution—free speech.  The Court’s decision in favor of Brandi was a recognition of the special protection that attaches to our freedom to express ourselves, even when we do that in ways that others find offensive.  Alcohol possession, on the other hand, is not constitutionally protected. In fact, for minors it’s not even legal. 

So my first thought was: of course you can continue to prohibit alcohol related behavior for those who sign up for extracurricular activities. It’s not in the same ballpark as Brandi’s foulmouthed Snapchat posts.  But being a lawyer, I had a second thought: some clever lawyer is going to challenge that. 

That challenge would focus on the Court’s emphasis on the legal doctrine of “in loco parentis” as the basis for school district authority to discipline kids.  When the students are at school or otherwise under the supervision of teachers and administrators, those school officials stand in the place of the parents (in loco parentis) and thus are authorized to regulate student behavior, and even punish inappropriate behavior.  Not so when students are on their own, away from school.   Key Quote:

B.L. spoke under circumstances where the school did not stand in loco parentis.  And there is no reason to believe B.L.’s parents had delegated to school officials their own control of B.L.’s behavior at the Cocoa Hut.

The argument will be made that parents have also not “delegated” to the school the authority to prohibit alcohol possession.  That’s up to the parents along with the police. 

All of which means you should take particular care with your extracurricular codes of conduct this year.  This case tells us that students and their parents should not be asked to “waive” their First Amendment rights in order to participate in athletics and other extracurricular activities.  But most of the conduct those codes prohibit is not constitutionally protected. It can be addressed in your codes of conduct. At Walsh Gallegos we can help you with that.

DAWG BONE: TIME TO LOOK OVER THAT CODE OF CONDUCT.

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

Rumor has it that the legislature changed the PFRD—the Penalty Free Resignation Date.  That’s the date by which a teacher with a contract can resign without the district’s consent, and without any penalty.  For many years the PFRD has been 45 days prior to the first day of instruction.  If the teacher turns in a resignation after that date, the teacher needs to get the consent of the district (after all, it’s a contract) or risk some negative consequences. 

Did the legislature change it?  No—but they might as well have.  HB 2519 amends three sections of the Education Code that address this issue. The reason we have three sections is because we have one for probationary contracts (21.105) one for term contracts (21.210) and one for continuing contracts (21.160). They all say the same thing—the date is 45 days before the first day of instruction, and those are regular old calendar days.  All three sections of the Code still say this.

But here’s the change, as per HB 2519:

If a teacher fails to file a written resignation as required by Subsection (a) but files a written resignation in the manner provided by that subsection not later than the 30^th day before the first day of instruction of the following school year, the State Board for Educator Certification may not suspend or revoke the teacher’s certificate under Subsection (c). 

Translation: as long as the teacher turns in the resignation by the 30^th day before school starts, nothing really bad is going to happen. The district can file a complaint about it, but the worst that will happen to the teacher is the imposition of some sort of “sanction” other than suspension or revocation of the certificate. 

This new law does not apply to those who resign in the summer of 2021. The effective date of the bill is September 1, 2021, so this will affect next summer’s resignations, not this summer.

What sanctions will be available?  Perhaps the teacher will be required to put a bumper sticker on the teacher’s car:

I RESIGNED FROM MY CONTRACT WITHOUT THE SCHOOL’S CONSENT LESS THAN 45 DAYS BEFORE THE SCHOOL YEAR STARTED.  I’M A BAD PERSON.

Actually, that’s pretty long for a bumper sticker.  A T-shirt maybe?

DAWG BONE:  SUMMER OF 2022—A LITTLE MORE FLEXIBILITY FOR TEACHERS.

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

I don’t want to get into the specifics of ISD No. 283 v. E.M.D.H.  I just want to dazzle you with some numbers.  This case has been going on for a long time. The parents have prevailed at the 8^th Circuit with a ruling that the school denied FAPE. But the parties continue to wrangle over the proper remedy. In this ruling the court considers the request from the parents for $838,689.16 along with $75,945.31 in attorneys’ fees and costs.  That brings the total to an eye-popping  $914,634.47.  Yowza. 

Apparently the court felt that way too.  The judge  said this demand was “counter to the cooperative process required by the IDEA, is excessive, and may not be supportable.”  Being even handed, Hizzoner also blasted the school district for its failure to serve the student appropriately. Rather than deciding the case, the judge threw up his hands, and ordered the parties to mediate and come to a reasonable solution. If that doesn’t work, the court said that it would “consider hiring a Rule 706 Expert to assist the parties.” 

I had never heard of a Rule 706 Expert, but it certainly sounds ominous.  Images of someone being tossed into the trunk of the car come to mind.    

The case was “decided” by the federal court in Minnesota on May 3, 2021, and can be found on Special Ed Connection at 78 IDELR 254.

DAWG BONE: DON’T LET THE RULE 706 EXPERT GET INVOLVED!!

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

Tomorrow: Did they change the Penalty Free Resignation Date?