Lots of people will have lots of stories to tell about how the Great Pandemic affected them.  One student in Rocksprings ISD believes that COVID deprived him of valedictorian honors.  Going into his final semester of high school the student ranked second in the class. But he had a plan. He was signed up for dual credit classes in math and economics, and figured that good grades in those classes would boost him up to the number one slot.

But the school board decided that the pandemic required some temporary changes in grading practices and class rank. It passed a resolution that called for pass/fail grading on classes affected by the pandemic.  It also decided to calculate class rank as of the end of the fall semester 2019. That left our student (soon to be known as “the Petitioner”) in second place.

Valedictorian status is not only an honor, it also opens the door to a tuition waiver for college.  Texas Education Code 54.301 authorizes colleges and universities in Texas to grant such a waiver to the highest ranking graduate of each high school.  Finishing second, rather than first, this student ended up taking out loans to pay for college. He and his parents filed a complaint with the school board (denied) and then took it to T.E.A.

The Commissioner dismissed the complaint. The student cited several sections of the Education Code that he believed the school board violated. Some of those (11.1512 and 4.001) were deemed to be “aspirational” only, and thus not a proper basis for a complaint to the Commissioner.

Other claims lacked any support in the record.  The student alleged that the school board made its decision in order to favor student athletes, but there was nothing beyond speculation to support that claim. Then there was the fact that the valedictorian was the niece of one of the board members. What about that?  The Commissioner noted the lack of evidence that the one board member influenced the decisions of the others. Moreover, the parents did not make this objection at the board meeting when they had the opportunity to do so.  So the complaint was dismissed, but there is one more aspect of this decision that is worth comment.  Tomorrow we will tell you how the Commissioner handled the allegations that the board violated the Texas Open Meetings Act.

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

DAWG BONE: NO SHAME IN BEING SALUTATORIAN.  NO TUITION WAIVER EITHER.

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

Tomorrow: about TOMA.

It seems to happen annually about this time of year, this overwhelming sense of….I dunno…..I guess I’d call it: dismay.  Anyone else feel that way?  Oh well.  Onward we go.  It’s Toolbox Tuesday and duty calls.

I just looked back at the archive of the Daily Dawg and found that the Toolbox Tuesday feature started on August 18, 2015.  Ever since then the Dawg has featured something about special ed discipline every Tuesday.  Holy Moly, that’s a lot of FAPE Free Zones, Changes of Placement, Stay Puts, and Manifestation Determinations!  No wonder I have the feeling that the well is running dry!

But help is on the way. As y’all know, the Texas Legislature just completed its work and left us with a bunch of new bills, most of which the Governor will sign. So we are about to have a lot of new things to talk about.  In fact, there are a few things just around the corner that I want you to know about.  The annual ED311/TASSP Conference will be conducted online again this year.   Here are two presentations that I will be doing at that conference:

June 9: Supreme Court Considers Limits on Discipline for Student Use of Social Media.

June 10: New Legislation Impacting School Administration.

Two other Walsh Gallegos attorneys will be presenting:

June 14: Legal Issues Related to School Dress Codes, with Morgan Beam.

June 15: What the Principal Needs to Know About Special Education, a panel discussion with Elvin Houston (Walsh Gallegos), Amanda Bigbee (Keller ISD) and Andrew Tatgenhorst (Thompson and Horton).

This conference is always full of good information, well presented. Sign up at www.ed311.com.

DAWG BONE:  BE NOT DISMAYED.  EVEN ON JUNE 1^ST. 

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

Tomorrow:  “I coulda been the valedictorian.  But COVID happened….”

 

It must be frustrating for educators to see their papers graded, so to speak, by lawyers.  We have a system whereby disputes between parents and educators over how a child is served are decided by lawyers wielding the blunt instrument of the law.  The process is lawyer-friendly, full of special procedures and jargon and complexity based on lengthy and obscure federal regulations. I’ve often thought the system would be better if due process hearings were more like those in Judge Judy’s court, with a fair-minded educator deciding the case quickly.

It must be particularly frustrating for educators when the people who decide the cases use the law improperly.  In a case from Ohio, the first level hearing officer ruled in favor of the school district, holding that it provided the student with a FAPE.  Ohio has a two-level system, and so the parent  appealed to the SLRO (State Level Review Officer) who completely overturned the decision and ruled in favor of the parents.  Then it went to federal court. 

The court held that the district provided FAPE and in the process ripped apart the decision of the SLRO.  The court noted that the SLRO did not display the “requisite expertise” to serve as a hearing officer, and thus gave the SLRO’s opinion no deference.  The court noted that the SLRO quoted language from a brief filed by a parent advocacy organization and attributed it to the Supreme Court:

Whether the error occurred by an act of intentional bad faith or extreme incompetence, the effect is not a mere citation error. The SLRO’s mistake places the words of an advocacy group in the mouth of the Supreme Court and then applies them to the facts of this case.

Sometime in the future we may report on the substance of this case.  It involved the LRE requirement, and the court held that the SLRO got that all wrong.  But today, just a reminder of how important it is for our hearing officers to be properly prepared and trained.  There is a big difference between the words in a brief filed with the court and the words in the court’s ruling.   Getting them mixed up is what the court describes as either “intentional bad faith or extreme incompetence.” 

We have a good group of special education hearing officers in Texas.  I don’t think any of them would make a mistake like the one that happened in C.K. v. Board of Education of Sylvania City School District, which was decided by the federal court for the Northern District of  Ohio on February 9, 2021. We found it on Special Ed Connection at 78 IDELR 65 (N.D. Ohio 2021).

DAWG BONE: LET’S NOT MISQUOTE THE SUPREME COURT!

Got a comment or question for the Dawg? Reach out: jwalsh@wabsa.com. 

Note: No Daily Dawg on Monday! Enjoy Memorial Day!!

Congress mandated a “resolution session” prior to a special education due process hearing in an effort to encourage settlements rather than lawsuits.  The idea was to make sure that the school listened to the parents’ concerns, and had an opportunity to address them before both sides lawyered up.  A good idea, I suppose, but it assumes good faith cooperation. If you don’t have good faith cooperation, you have Matthews v. Douglas County School District RE-1. 

Mr. Matthews knew about resolution sessions before he requested a due process hearing on behalf of his child. In fact, when he requested the hearing he also informed the district of the dates and times when he would be available for a resolution session. Good for Mr. Matthews!  Ms. Trujillo responded on behalf of the district with a proposed date and time that matched one of the times when Mr. Matthews indicated he would be available.

Mr. Matthews did not see this as a proposal, or confirmation of an agreement, and he did not respond kindly.  He chose to respond not to Ms. Trujillo, but to the principal. He wrote:

Please advise Ms. Trujillo that her unilateral demand, including time and place, for a Resolution session is premature and denied.  You must first answer the complaint.  Upon receipt of such, I will proffer a Resolution meeting time and date with you in attendance.

Three things are worth noting at this point. First, Mr. Matthews was incorrect in his belief that the district was required to answer the complaint prior to the resolution session. Second, the district is responsible for setting up the resolution session, so Ms. Trujillo’s letter was not a “unilateral demand” but rather, just a simple way to fulfill the district’s duty.  Third, when dealing with people who toss around words like “proffer” you need to bring in the lawyers. 

The next fight was over location.  Mr. Matthews expressed his view this way:

You and Trujillo don’t get to dictate whom will attend, the location or time of the meeting….The meeting can take place at either Legend High School or my office. The meeting time will be one that is convenient to me.  However, you must first answer the Complaint….You can accept my gracious offer or not.

Long story short: they never had the resolution session.  They never had the due process hearing  either, and that’s because the hearing officer tossed it out.  The district moved for dismissal of the due process hearing based on 34 CFR 300.510(b)(4) which permits districts to seek dismissal if the district has been unable to obtain the parent’s participation in the resolution session despite reasonable efforts to do so that are documented.

We may never learn what Mr. Matthews complaint was about.  Perhaps he had a valid claim. But his own obstructive conduct kept him from pursuing it.  The court:

Based on the tenor of the parties’ correspondence as a whole, this Court finds that Mr. Matthews imposed the condition of holding the meeting at the school simply in an attempt to frustrate or scuttle the District’s attempts to conduct the meeting.

It was decided by the federal court for Colorado on February 11, 2021.  We found it on Special Ed Connection at 78 IDELR 63.

DAWG BONE: IT’S THAT OLD RULE AGAIN: BE REASONABLE.

Got a comment or question for the Dawg? Reach out: jwalsh@wabsa.com. 

Tomorrow: judge rips state level review officer….

School officials are required to report suspected child abuse. The law recognizes that child abuse reports are based on a “suspicion” rather than a certainty. Thus the person who makes the report may be wrong.  They may be mistaken about the facts, or misinterpreting them.  The law protects the person who makes the report with immunity.  However, none of that prevents a parent from filing suit, alleging that the report was a bad faith act of retaliation.

That’s what happened in Oswego Community Unit School District, just outside of Chicago.  The parents alleged that one day after a contentious two-day IEP Team meeting a social worker conducted an invasive search of the five-year old child, which revealed a bruise.  District officials then reported suspected child abuse. 

The parents alleged that this was all an act of retaliation—an effort to shut up parents who were advocating for their child in a way that school officials did not like.  The parents alleged two theories of liability. The court rejected one of them, but let the other theory proceed. The rejected theory was based on the assertion that the district had a “widespread pattern or practice” of retaliating against parents who advocate for their children.  In support of that assertion, the parent noted one other court case alleging similar behavior in the district.  The court held that this was insufficient to show a “widespread pattern or practice.” Key Quote:

A practice is not widespread if it took place two, three, or four other times.

However, the other theory was based exclusively on what happened with their child. The parents alleged that the district retaliated in a way that amounted to disability-based discrimination in violation of both the ADA and Section 504.  The court allowed the case to proceed since the parents had at least alleged the three key facts they would have to prove: 1) that they engaged in “protected activity” (advocating strongly for their child); 2) the school took “adverse action” (the “invasive” search and subsequent child abuse report); and 3) these two events were causally connected.  Given the timing, with the search and child abuse report coming right after the “contentious” meeting, the court held that it was plausible that the adverse action was taken in response to the protected activity. 

Don’t let stories like this keep you from reporting suspected child abuse.  Just be sure that you are basing your report on facts, and documenting the basis for your suspicion.  Educators are only human, and will have personal likes and dislikes among the parents they work with.  Sometimes you have to report suspected abuse involving a parent you like.  Sometimes you have to report suspected abuse involving a parent you don’t like.  Treat them the same.

The court hinted that this case might not survive a Motion for Summary Judgment, when there is actual evidence to consider. But at this stage it was only about what the parent alleged, and those allegations were sufficient to keep the case going.  It’s Hamilton v. Oswego Community Unit School District 308, decided by the federal court for the Northern District of Illinois on February 26, 2021.  We found it on Special Ed Connection at 78 IDELR 97.

DAWG BONE: OUR CHILD ABUSE LAWS ARE ONE OF THE FEW INSTANCES WHERE YOU CAN HAVE CRIMINAL LIABILITY FOR WHAT YOU FAILED TO DO.

Got a comment or question for the Dawg? Reach out: jwalsh@wabsa.com. 

Tomorrow: is the word “proffer” part of your everyday vocabulary?

Of course it’s important to keep parents informed of what’s going on at school with their child. But that does not mean that every minor incident needs to be reported formally through a “prior written notice.” 

The PWN form is familiar to many educational diagnosticians and other special ed types who fill them out. It’s a long and complicated form, reflecting the long and complicated federal regulation that requires it.  In a PWN you not only have to inform the parent of a decision, but you also have to inform the parent of all the options you considered; why you rejected the other options; and all the data that supports your decision. 

When I taught special education law at St. Edward’s University I wanted to give the students a practical way to understand how PWN works.  I pointed out that all of them had one thing in common: they had chosen to enroll at St. Ed’s.  So I asked them to send a PWN to the college or university that finished second, the one they thought about but rejected.  Here’s what one of them might look like:

NOTICE OF REFUSAL TO ENROLL:

THE DECISION: This notice is provided to THE UNIVERSITY OF TEXAS AT AUSTIN to inform you that JANE DOE will not be enrolling in your school for the 2020-21 school year. 

WHY:  UT is too big for me.  I want smaller classes and more attention from professors.  I got some scholarship money to help with the cost of a private school. 

REPORTS THAT INFORMED MY DECISION: I’ve visited UT, watched the Longhorn channel for various sporting events, read about the history of the place and the current controversy over the school song.  I don’t want any of that. 

OTHER OPTIONS AND WHY THEY WERE REJECTED:  I thought about Texas Tech, but I oppose the NRA and the whole “guns up” thing.  I thought about Baylor….for a few seconds.   I thought about Texas A&M…well….no, I didn’t.  I just thought I ought to say that I did.

OTHER FACTORS: I don’t look good in burnt orange.  I can’t stand Matthew McConaughey.  On top of that, going to a Catholic school will make my mother angry.  I find that very satisfying

You get the idea.  We bring this up today because of a case in California where the parent evidently believed that they were entitled to a PWN regarding any disciplinary action, even minor ones.  Nope.  The court noted that “The ALJ correctly found…that the IDEA does not prohibit disciplining a student with disabilities according to a general education process that does not require prior written notice.”

The parent had asked for two disciplinary referrals to be removed from the student’s file.   One referral was for not completing a test, and the other was for telling a group of kindergarten students to stop looking at him.  The district was not seeking a change of placement based on these minor incidents, and thus, PWN was not required.  The case is Bellflower USD v. Jiminez, decided by the federal court for the Central District of California on February 17, 2021. We found it on Special Ed Connection at 78 IDELR 106.

DAWG BONE: PWN IS REQUIRED WHEN THE SCHOOL PROPOSES OR REFUSES TO CHANGE THE IDENTIFICATION, EVALUATION, PLACEMENT OR PROVISION OF FAPE.

Got a comment or question for the Dawg? Reach out: jwalsh@wabsa.com. 

Tomorrow: child abuse reports and retaliation claims…

How many times have you heard the lawyers tell you that the disability label that you attach to a student’s IEP doesn’t matter, as long as you are providing the services that the student needs?  Many times, I would guess.  The lawyers are citing the numerous court cases that have made that observation.  Most of those cases involve a student who may, or may not, be on the autism spectrum, and the court basically says “we don’t care what you call it…as long as the student is doing well.”

So the label doesn’t matter.  Except….when it does.  And sometimes it does.  In a case from Minnesota the court held that the district’s failure to identify dyslexia and ADHD as the student’s primary disabilities was not a “harmless misclassification.” Instead, it led to an inappropriate IEP that failed to produce good results. The student had average intelligence and worked hard, and yet in 4^th grade was still reading well below grade level. The district identified autism as the primary disability. The court found that to be an erroneous foundation for the student’s program. Key Quote:

The District’s failure to accurately identify and classify Student’s dyslexia and ADHD did not amount to a harmless misclassification.  Instead, the misclassification hindered the proper design of an IEP that would have met Student’s needs.  This resulted in the District’s failure to provide appropriate services to Student to ensure appropriate educational progress. 

In other words, because the diagnosis was wrong, the evaluation was wrong. Because the evaluation was wrong, the IEP was wrong. Because the IEP was wrong, the student was not doing well. Because the student was not doing well, the district was not providing FAPE.

As usual, student progress, or the lack thereof, was decisive. If the student had been progressing well in reading, it’s likely that the court would have found this to be yet another “harmless misclassification” case. But this student was not doing well, and the court traced it all back to an erroneous diagnosis. So sometimes the label matters. The case is Minnetonka Public Schools ISD No. 276 v. M.L.K., decided by the federal court in Minnesota on March 1, 2021.  We found it on Special Ed Connection at 78 IDELR 94.

DAWG BONE: HOW IS THE STUDENT DOING IN SCHOOL? THAT REMAINS THE GOLD STANDARD.

Got a comment or question for the Dawg? Reach out: jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!

We’re Zooming today at 10!  I’ll be joined by Kelly Janes for a discussion of the legal issues surrounding students with dyslexia.  Hope to see you there!

Zoom has been a lifeline during this pandemic, but live presentations are on the horizon. Huzzah!! Real people with entire bodies—not just a small face on a digital square!

We will be doing the Back to School Program live this year in four locations!   Look for information about this soon from ED311, the sponsor. We are going to have A LOT to talk about this year, with scads of new laws, a SCOTUS decision about student free speech, and a host of other legal developments in special education, Section 504, personnel, student discipline, and COVID related issues.

Here’s the schedule for the live events:

September 15: Region 7 in Kilgore
September 27: Arlington Convention Center
October 5: New Braunfels
October 12: Region 17 in Lubbock

I hope you will “save the date”!

See you at 10 this morning for Zooming with the Dawg.

DAWG BONE: BACK TO SCHOOL BACK ON TAP.

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

I know that many educators are big fans of Parker Palmer, so perhaps many of you know of his latest book: On the Brink of Everything. The cover tells us that the book is about “Grace, Gravity and Getting Old.”  My wife gave it to me.  Is she trying to tell me something?

It’s the kind of book you can read out of order.  You can just pick a chapter that sounds promising, which is what I did.  I started with the chapter entitled “Work and Vocation: Writing a Life.”  In the chapter Mr. Palmer lists the many jobs he has had in his 79 years, going all the way back to mowing lawns when he was 13. He’s also been a caddy, and a maintenance man at a public beach, long before he became a “professor, dean, writer, founder of a nonprofit, and workshop and retreat leader.”

The sentence that captured me was this:

The way I’ve earned my keep has changed frequently, but my vocation has remained the same: I’m a teacher-and-learner, a vocation I’ve pursued through thick and thin in every era of my life.

I can relate, as I expect many of you can.  I know that most of the Daily Dawg readers are administrators, but you are still teachers.  As am I.  I hope you don’t find it offensive that I describe myself that way. “But, Dawg,” some of you may be thinking, “you’re a lawyer.”

Yes.  I have the training, credentials, and professional skill set of a lawyer. But I’m a teacher. I figured that out a long time ago.  God made me a teacher. I decided to become a lawyer, and have figured out a way to do what teachers do, with a curriculum based on the law.

What do teachers do?  Four things: first, they learn.  Teachers model lifelong learning. They are curious, hungry for knowledge.  Teachers know that the more they know, the more they know how much they don’t know.

Second, they prepare.  They create materials. They write, they produce art, they modify and interpret existing works, and now more than ever, they learn to use new technologies.

Third, they perform. When I think of the most impactful teachers I have had I see that they were all performers.  That doesn’t necessarily mean they were entertaining. It means they could hold the attention of the class, convey their enthusiasm for the subject. They were energetic, alive.  This was true of Sister Luca in 4^th grade, Mrs. Frizzell in 7^th grade, Father Donovan in high school, Professor Devine at UT, and  Stanley Johanson at UT Law.

Fourth, they take all of that learning, preparation, and performing and use it to teach, to impart to others the essential knowledge and skills in a particular area.

That’s what I’m trying to do here at the Daily Dawg, and since, at my core, I am a teacher, this is what I find most professionally satisfying.  However, I do miss the performing part, and I’m looking forward to the live presentations that are scheduled for the summer and fall! More on that tomorrow.

DAWG BONE: “ON THE BRINK OF EVERYTHING” BY PARKER PALMER.  ON THE RECOMMENDED LIST.

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

Tomorrow: About to be on the road again!

I was asked recently how educators should prepare to give testimony in a hearing.  This is something that is very likely to occur in the trajectory of most educator careers. It might be a hearing before the school board, or an independent hearing examiner. It could be a special education due process hearing, a UIL dispute or (God forbid) a knock down custody fight between parents. It might be a criminal case involving one of your former students.

Regardless of the forum or the subject matter, there are four fundamental rules that apply.  I think these are the things that any good lawyer will tell you.

1. Prepare. Review any notes or records you have to refresh your memory about the events you may be asked about. You will want to convey professionalism, and your preparation before the event will help with this.
2. Tell the truth.
3. Answer only the question you are asked. The best example I know of to illustrate this point is revealed by this exchange:
Q. Do you know what time it is?
Witness glances at watch…
A. Yes, I do.
Q. Well, can you tell me what time it is?
A. I can.

Here’s another example. The lawyer showed the witness a photograph, showing a side view of a cow.
Q. What color is this cow?
A. Brown. On this side.

4. Don’t worry about your testimony. Doing #4 is much easier to accomplish if you fully accomplish #2. Telling the truth is a great stress reliever.

Once you are called to testify, things are well beyond your control.  So don’t worry about the outcome.  The outcome will be decided by the judge or jury and your testimony will only play a part in that.  So chill.

Lawyers generally meet with witnesses before they give testimony.  If the lawyer does not take the time to meet with you that could mean that you are not a very important witness. It could also mean the lawyer is not well prepared. But if you do have the opportunity to meet with the lawyer, that’s the time to ask your questions.

DAWG BONE: ALWAYS GO BACK TO RULE #2: TELL THE TRUTH.

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