SB 179 is well intentioned.  I call this one “Let the Counselors Counsel!”  A good idea, no?  But the detail in the bill puts this one high on the Dawg’s Sheesh-O-Meter. 

The bill requires that the school board adopt a policy that requires counselors to spend no less than 80% of their work time on “duties that are components of a counseling program.”  Time spent administering assessment instruments (i.e., STAAR) does not count toward the 80%, but time spent interpreting data from the assessment does count.  If the board determines (note: the board, not the superintendent or principal) that staffing needs require a counselor to spend less than 80% on counseling, the policy must 1) include the reasons for this; 2) list the non-counseling duties that need to be done; and 3) set the percentage of work time the counselor will be required to counsel.  Schools may not override this statute with language in the contract, and may not authorize administrators to require a counselor to “generally perform” duties not related to counseling, unless that duty is set in the board’s policy.  Each district must annually assess the district’s compliance with the policy and be ready to provide a written copy of the assessment to the Commissioner upon request.  The Commissioner will be adopting rules about this.

Everyone is in favor of counselors doing what counselors are trained to do, but this is a record setting exercise in micro-management. If the legislature is so worried about counselors administering the STAAR exam there is another alternative. They could reduce or eliminate the STAAR.  That would free up counselors time without requiring counselors to develop spreadsheets recording every minute of their workday.

DAWG BONE: 80%.  EXPECT GRIEVANCES OVER THIS ONE.

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

Tomorrow: Who do you trust?  Whom??

The 2021 legislative session did not make many changes regarding student discipline.  Last Tuesday we told you about the major bill, HB 785, that addresses FBAs, BIPs, time-out and restraint.  The only bill that addressed bullying to emerge from this session was SB 2050.  It requires that your board add some things to the existing policy on this subject.  In particular, the policy must address the prevention and mediation of bullying incidents between students, and must meet certain standards established by TEA. Those standards will focus on school climate, and building healthy relationships between students and staff; require a committee for each school campus; require instruction for students at each grade level; emphasize student reporting of incidents; require the collection of data through annual student surveys; and require districts to develop a rubric or checklist to assess an incident of bullying and to determine the district’s response.  Bullying incidents, including cyberbullying, will be required to be reported through PEIMS for schools and open enrollment charters.

DAWG BONE: LOOK FOR NEW POLICY SUGGESTIONS FROM TASB.

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

Tomorrow: Let the counselors counsel!

HB 1525 is a lengthy piece of legislation covering many topics. Today we’re going to focus just on human sexuality instruction.  Districts are not required to provide such instruction, but if they choose to do so, they need to study this bill carefully. It’s designed to ensure transparency and parental authority.  Some key provisions:

KINDA LIKE TOMA:  The bill does not say that your school health advisory council (SHAC) has to comply with the Texas Open Meetings ACT, but it imposes similar requirements concerning notice, agendas, minutes and recording. 

ADOPTION OF MATERIALS.  School boards must adopt a policy regarding a process for adoption of materials for human sexuality instruction. The policy must require at least two public meetings of the SHAC, which will then make recommendations to the board, which will take action “by a record vote at a public meeting.”  The board must ensure that the materials are 1) based on advice from the SHAC; 2) suitable for the subject and grade level; and 3) reviewed by academic experts in the subject and grade level.  The materials must then be made available as called for by the statute.

PARENTAL NOTICE.  Before each school year, the district must provide written notice to parents about the board’s decision regarding human sexuality instruction. If this instruction will be provided, the notice must include a statement regarding the state law on this subject, and a detailed description of the content of the instruction along with a “general schedule” for the instruction.  The notice must also inform parents that they can 1) review the materials, or purchase a copy; 2) remove the student from any part; 3) use the grievance process or TEA complaint process. The notice must also inform the parent that any materials that are in the public domain must be posted on the district’s website. Also, information on how parents can get involved in the development of the curriculum to be used.

PARENT CONSENT.  Schools must obtain written consent from the parent before providing human sexuality instruction.   Request for consent may not be included with any other notification or request, other than the notice about human sexuality instruction.  The notice must be provided to the parents at least 14 days before instruction is to begin.

MORE TRANSPARENCY.  Materials to be used that are in the public domain must be posted on the website, and provided to the parent upon request by mail or email.  Materials that are copyrighted may be reviewed during regular business hours at the campus, purchased from the publisher, or reviewed online through a secure system.  The district’s contract with the publisher must ensure that parents can purchase a copy at a cost per unit no greater than what the school paid.

Look for proposed policy language from TASB later, but the district should get to work on this immediately.  Much planning is called for.

DAWG BONE: SHAC TAKES ON MORE IMPORTANCE.

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

Tomorrow: Toolbox Tuesday!!

Governor Abbott has signed SB 788 which will require TEA, the Higher Education Coordinating Board and the Texas Workforce Commission to develop “model data-sharing agreements” dealing with FERPA-protected information.  One model agreement will address the sharing of this information for purposes of system evaluation, or with entities whose employees or contractors are deemed to be “school officials” under FERPA.  Another model will address the sharing of this information between public schools.

No doubt this will take some time, but the resulting products should be helpful to schools.  But be sure to have your school attorney review the agreements before using them.

DAWG BONE:  CONTRACTS NEED TO PROTECT FERPA-PROTECTED INFORMATION. THIS SHOULD HELP.

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

SB 89 requires an IEP supplement for any student who was served in special education for either or both of the “COVID Years”—2019-20 and 2020-21.  The supplement must include 1) if the FIIE was completed during either of those years, and if so, if it was done on time; 2) if the initial IEP was developed during either of those two years, and if so, if it was done on time; 3) whether special services for the student, during either of the two years, were “interrupted, reduced, delayed, suspended, or discontinued; and 4) whether compensatory services are appropriate based on the first three factors “or any other factors.”  This supplement is not required if the student’s IEP for 2020-21 already addresses these four factors.  These supplements must be completed for each child subject to this section by May 1, 2022.  The provisions in the Education Code that limit what can be required to be put into an IEP do not apply to these supplements.

DAWG BONE: NOT SURPRISING TO SEE SOMETHING LIKE THIS.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.  Tomorrow: help on data-sharing agreements

Some R-E-S-P-E-C-T from our statewide officials! They have added “an elected public officer” to the list of people whose personal information cannot be obtained through a PIA request (Public Information Act).  The protected information consists of “home address, home telephone number, emergency contact information, or social security number” or information “that reveals whether the person has family members.”   Moreover, these “elected public officers” do not have to take any action to protect this information. It’s automatic. 

Members of the legislature and statewide officers already enjoyed this protection. This adds locally elected officials, such as school board members, to the list. Notice that it doesn’t mention date-of-birth or personal email address, but we already have AG Opinions that have established the confidentiality of this information. Also, it applies to “elected” public officers.  What about the school board members who are appointed rather than elected?  Surely they are supposed to be covered as well.  

DAWG BONE: RESPECT FROM STATE LEGISLATORS FOR LOCAL OFFICIALS IS RARE.  LET’S CELEBRATE THIS.

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

HB 785 sits on the Governor’s desk, and I expect it will be signed.  This is a significant new law that will have a direct impact on how you handle disciplinary actions with students in your special education program.  Here’s a summary of the bill’s four key provisions, along with some preliminary commentary.

BIPs: If a student’s IEP includes a BIP, it must be reviewed by the ARDC annually or more frequently as appropriate. The review must consider changes in circumstances that may impact the student’s behavior, as well as the safety of the student and others.  The circumstance to be considered would include changes of placement, an increase or persistence in disciplinary actions taken for similar behaviors, a pattern of unexcused absences, or an unauthorized or unsupervised departure from the school. 

Comment: federal law already requires a review of the IEP each year, but this bill itemizes specific “circumstances” that the ARDC needs to address. The ARDC needs to at least consider all of those circumstances, and the deliberations should reflect the discussion.

RESTRAINT:  The Commissioner will be adding rules about restraint that will require written notice to the parent of each incident of restraint.  A copy of the notice must be included in the student’s records. 

Comment: existing rules already require written notice to the parent, but this bill itemizes the contents of the notice, so we can expect an amendment to 19 T.A.C. 89.1053(e)(3).     

TIME-OUT:  For students who have a BIP, schools will be required to document “each use of time-out prompted by a behavior of the student specified in the student’s plan, including a description of the behavior that prompted the time-out.”  

Comment: unfortunately, we still don’t have a very useful definition of “time-out.”  This bill does not include a definition. Existing rules define time-out as “a behavior management technique in which to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting (A) that is not locked; and (B) from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.”  So that means that two minutes on the beanbag in the corner of the classroom is time-out?   This is what we’re making a lot of fuss over?

DISCIPLINARY CHANGES OF PLACEMENT:  If the school makes a disciplinary change of placement for a student with a disability, the school must 1) seek consent from the parent to conduct a FBA if one has never been done, or the existing FBA is more than one year old; 2) review any previous FBAs and/or BIPs; and 3) develop a BIP or revise the existing one, as necessary.  These things must take place within 10 school days after the change of placement.  

Comment: federal law already requires a manifestation determination within 10 school days. It also requires what this law requires, but only when the ARDC determines that the behavior was a manifestation. So this bill changes things and that change will be reflected in our firm’s Toolbox Training. 

DAWG BONE:  TRAINING NEEDED ON THIS AND OTHER CHANGES BEFORE 2021-22 SCHOOL YEAR.

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

Tomorrow: Good news for school board members!

This week’s Daily Dawg will be entirely about new legislation.  Let’s jump in with one of the most hotly debated bills. 

TIM TEBOW COMES TO TEXAS.  Homeschoolers finally succeeded in the effort to permit their children to participate in UIL activities representing a school the student does not attend.  Tim Tebow did this many years ago in Florida.  Perhaps the next Tebow will be a Texan. 

YOUR CALL.  The bill makes this permissible, but not required, so each school will have to decide.  The student is subject to school policies re: registration, age eligibility, fees, insurance, transportation, physical condition, qualifications, responsibilities, event schedules, standards of behavior and performance.  The student is subject to immunization requirements as they apply to other students, including the exceptions to the requirements.

WHERE DO YOU LIVE?  The student can only participate at the school “that the student would be eligible to attend based on the student’s residential address.”  Proof of residency must be provided.

NO PASS NO PLAY??? To participate in the first six weeks of the year, the student must demonstrate grade level proficiency on any “nationally recognized, norm-referenced assessment instrument, such as the Iowa Test of Basic Skills, Stanford Achievement Test, California Achievement Test, or Comprehensive Test of Basic Skills.” Student must have a composite, core, or survey score that is at least within the average range of scores as established by the applicable testing service.  Meeting this standard is sufficient for the school year in which the test was taken, and the next school year.

“The parent…is responsible for oversight of academic standards relating to the student’s participation in a league activity.”

After the first six weeks, or earlier at the coach’s request, the parent must “periodically, in accordance with the school’s grading calendar, provide written verification…indicating that the student is receiving a passing grade in each course or subject being taught.”

“I USED TO GO TO THAT SCHOOL!”  The homeschool student is not authorized to participate “during the remainder of any school year during which the student was previously enrolled in a public school.”  Notice: any public school. 

UIL: DON’T GET ANY IDEAS.  The UIL may not prohibit homeschoolers from participating.

LEAVING HOME SCHOOLS ALONE.  This law does not give school officials the authority to exercise control, supervision, or regulatory authority over the homeschool program. Nor to require any changes. 

ONE MORE THING.  HB 547 also requires the UIL to allow students who receive services under the supervision of the Juvenile Justice Department to participate in UIL activities “in the same manner” as students in the public schools.  The UIL is to enter a Memorandum of Understanding about this.

EFFECTIVE DATE: September 1, 2021.

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

Tomorrow: Toolbox Tuesday!!

Superintendents enjoy wide latitude to move pieces around on the chessboard.  Educators generally sign contracts that acknowledge that they are subject to “assignment and reassignment.” But there are well established limits to what the superintendent can do.  The superintendent cannot assign a professional educator to a position outside of the “same professional capacity.”  A teacher can be reassigned to another teaching position. An administrator can be reassigned to a different administrative position. But can the superintendent move a principal back to the classroom as a teacher?

No.  That’s a change in “professional capacity” and cannot be done by simple order from the superintendent.  It could be accomplished if the district goes through proper nonrenewal procedures.  With notice and an opportunity for the employee to request a hearing, the district could nonrenew the contract to be a principal, and issue a new contract for a teacher.

So let’s throw in a wrinkle: what if the principal’s contract does not say that the person is employed as a “principal,” or even as an “administrator.”  Instead, it says the person is employed as a “professional employee.”  Would that make it OK? After all, whether serving as a principal or a teacher, the person would still be a “professional employee.”  Same professional capacity?

No, that doesn’t work either.  A previous commissioner ruled on this issue in 2012, concluding that “professional employee” is not a legitimate professional capacity (Tuck v. Alief ISD, Docket No. 008-R10-1007).  Now, Commissioner Morath has come to the same conclusion, and ordered Brownsville ISD to employ Leticia Rodriguez-Bohn as a principal for the 2020-21 school year.

It’s Rodriguez-Bohn v. Brownsville ISD, Docket No. 009-R10-10-2020, decided by Commissioner Morath on April 22, 2021.

DAWG BONE: “PROFESSIONAL EMPLOYEE” IS TOO BROAD.  NOT A PROPER “PROFESSIONAL CAPACITY.”

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

The board’s agenda for the meeting in April, 2020 read:

Consider appropriate actions related to COVID-19. 1. Resolution.  2.  Updates.

The Texas Open Meetings Act (TOMA) requires the agenda to list every subject the board is going to discuss.  The idea is that Joe Citizen should have a general idea of what’s up for consideration at the board meeting, simply by reading the agenda.  If you read this entry, would you understand that the “appropriate actions” might including changing the district’s class ranking procedures?

In Student v. Rocksprings ISD Commissioner Morath dodges the issue, but hints that this might not cut it.  His decision says “This notice could be insufficient.”  He was able to dodge the issue because the board held a second meeting a month later with a more specific agenda:

Consider appropriate actions related to COVID-19.  1. Consider ratification of COVID 19 grading resolution.

Ah! That cured whatever problem the original agenda may have created.  So the Commissioner tells us that even though the April agenda was skimpy on the specifics, the May agenda cured the problem.  So the student’s complaint that the board’s action should be overturned because it was done in violation of TOMA was dismissed.

I’ve always thought that board agendas should feature three verbs.  Like this:

The board will CONSIDER, DISCUSS, and MAY TAKE appropriate action regarding the following:

Then you list the items to be considered, discussed, and/or acted on.

This case is also a reminder that the Commissioner does have jurisdiction to deal with complaints that the board has violated TOMA. The Commissioner has jurisdiction to address cases alleging that the board has violated “the school laws of this state,” and strictly speaking, TOMA is not a “school law” of Texas. However, T.E.C. 26.007(b) requires the district to conduct its board meetings in compliance with TOMA, and that gives the Commissioner jurisdiction to hear complaints about TOMA.

One final point about this case—the Petitioner also alleged that individual board members acted improperly, but the Commissioner refused to consider those issues, noting that he has jurisdiction over the board’s compliance with TOMA, but not the actions of individual board members.

It's Student v. Rocksprings ISD, Docket No. 008-R10-10-2020, decided by Commissioner Morath on March 16, 2021.

DAWG BONE: MORE SPECIFIC RATHER THAN LESS IS ALWAYS A GOOD IDEA FOR YOUR AGENDA.

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

Tomorrow: Can the superintendent reassign a principal to a teaching position?