Here’s what happened in Comal ISD: at an ARD meeting just prior to the 2020-21 school year the school district proposed a change of placement for a student, moving the student from the general education classroom to a special education setting.  In Toolbox terminology, we would call this the use of Tool #2….if the parent agreed with the move.  However, the parent did not agree, and so the district went with Tool #3—an Educational Change of Placement Without Parental Agreement.

When we talk about Tool #3 in our Toolbox Training we emphasize that the district needs to think about how the “stay put” rule will affect the outcome.  Remember: if the parent disagrees with a proposed change of placement and requests a due process hearing, this automatically invokes “stay put.” Thus the student isn’t going anywhere.

That’s what happened here when the mother requested a special education due process hearing on August 31, 2020.  The student stayed put while the hearing was pending, all the way to March 19, 2021 when the hearing officer rendered a decision in favor of the school district. “Stay put” had been in effect for over six months.  But since the hearing officer agreed with the school that the change in placement was appropriate, stay put is over….right?

That’s what the school district argued. That’s not what the court ruled.  The federal judge ruled that “stay put” was still in effect because the parent had given notice that she intended to appeal the hearing officer’s decision to federal court.  Citing cases that have made the same ruling in the 1^st, 3^rd, 4^th and 9^th Circuits, the court held that “stay put” remains in effect as long as judicial appeals continue.

So let’s be clear about how that could play out.  Consider this hypothetical:

August 27, 2021: District calls for a change of placement from general education classroom. Parent disagrees. ARD concludes in non-consensus.

August 31, 2021: Parent requests due process hearing. STAY PUT GOES INTO EFFECT.  Student stays in general education classroom.

November 5, 2021: Hearing officer rules in favor of the district.

November 8, 2021: Parents inform the district that they intend to appeal to federal court.  THIS KEEPS STAY PUT IN EFFECT.  Parents have 90 days to file that appeal.

February 1, 2022: Parent files appeal.  STAY PUT STILL IN EFFECT.

After that, there is no telling how long your timeline extends.  It may be a year or two before the judge issues a decision, and even then, parents can appeal to the 5^th Circuit. In which case, STAY PUT STAYS IN EFFECT.

It’s not hard to imagine a situation in which a student ages three to six years while litigation continues.  But the “stay put” placement remains in effect.  Of course the “stay put” placement can always be changed by agreement of the parties, and we would hope that in this type of situation the parties would be able to come to agreements that serve the student well.

Do you see how important it is that you always maintain good relationships with the parents?  It’s much harder to serve the student well when the grown-ups are fighting.

This one is H.W. v. Comal ISD, decided by the federal court for the Western District of Texas on April 21, 2021.  We found it at 2021 WL 1566453.

DAWG BONE: BE SURE TO THINK ABOUT “STAY PUT” BEFORE YOU PULL TOOL #3 FROM THE TOOLBOX.

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

Tomorrow: Have you ever been called to testify? 

We’re Zooming again this Friday at 10:00 and I hope you can join us!  I’ll be joined by Kelly Janes from our firm’s Austin office.  We hope to have a lively discussion about serving students with dyslexia.  It’s been a bit of an issue, no?  We know how critical it is that students with dyslexia receive the right kind of services, but the overlapping provisions of state and federal law have sometimes provided more confusion than clarity.  Do we serve the student through Section 504?  IDEA? How does RtI fit in?  Do we risk a “Child Find” claim if we don’t refer to IDEA services? Are general dyslexia services actually “special ed” in disguise?

This topic was requested by a Loyal Daily Dawg Reader, and so we will answer the call! Mark your calendar for Friday at 10. It’s a freebie for all Daily Dawg subscribers. If you are not yet registered for the monthly Zooms, send an email to info@wabsa.com. 

See you Friday!!

DAWG BONE: DYSLEXIA WILL BE THE TOPIC OF THE DAY!

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

Tomorrow: Toolbox Tuesday!! 

U.S. News and World Reports has issued its annual ranking of the best public high schools in the country.   As I scanned through the rankings of Texas schools, two things stood out.  First, most of the highest ranking schools have a special focus.  Kudos to Dallas ISD which had the top three schools, all of which have a special focus: Talented and Gifted, Young Women’s Leadership, and Science and Engineering Magnet.  Austin ISD’s Liberal Arts and Science Academy made the list, as did schools for health professionals in Houston ISD and Northside ISD. The Judge Barefoot Sanders Law Magnet was Dallas ISD’s 4^th entry in the list at #7 in the state.

So it looks like having a special purpose is a good thing, at least as U.S. News ranks the schools.

The second thing that stood out was the single gender schools.  But there is a problem. There are five schools for young women among the top 17 schools in the state: The Irma Rangel Young

Women’s Leadership School in Dallas ISD; Young Women’s College Prep Academy in Houston ISD; The Ann Richards School for Young Women Leaders in Austin ISD; The Young Women’s Leadership Academy in San Antonio ISD; and The Young Women’s Leadership Academy in Fort Worth ISD.

Congratulations to those districts for having the courage and commitment to set up and support these outstanding programs for our female students. But where are the schools for boys?

Boys are overrepresented in special education. They are overrepresented in DAEP. There are many indicators at many levels in our society that boys are more likely to suffer from “failure to launch.” Why all the good schools for the girls, and nothing on this list for the boys?

Asking for a friend.

DAWG BONE: SINGLE GENDER SCHOOLS ARE LEGAL.  HOW BOUT OPENING TWO OF THEM?!

Let’s consider some hypothetical situations that might arise in the Serenity Falls ISD.  A high school student maintains a Twitter account. On a Saturday night, in her own home, using her personal iPhone she sends out a short Tweet that reads as follows:

BLACK LIVES MATTER!!

The next night she sends another Tweet:

BLACK LIVES MATTER AND WE NEED TO RID OUR COUNTRY OF RACISM.

The next night she brings her focus to the local community:

BLACK LIVES MATTER AND WE NEED TO RID SERENITY FALLS ISD OF SOME RACIST ADMINISTRATORS AND TEACHERS.

The next night:

BLACK LIVES MATTER AND WE NEED TO RID SERENTIY FALLS HIGH SCHOOL OF RACIST ADMINISTRATORS AND TEACHERS LIKE COACH JACKSON.

Consider the possibility that another student sends out the exact same Tweets, but the second student is on the team that Coach Jackson coaches.  Would that matter?

After hearing oral arguments in the case of Mahanoy Area School District v. B.L., the Supreme Court is trying to figure out how to put into words a line that is drawn in the right place.  This case is about a cheerleader who vented frustrations with four F-bombs on Snapchat after she was relegated to JV cheerleading for a second straight year.  The coaches suspended her from cheerleading, and she sued, alleging an infringement of her free speech rights.

I listened to the oral arguments that lasted almost two hours.   All of the justices asked good questions. They understand the issues.  It seemed pretty clear to me that everyone understands that  there should be a line.  The school does not have jurisdiction over students 24/7/365.  It also seems pretty clear that a line based on the physical boundaries of the school no longer makes much sense.  It also seems pretty clear that the law has to permit schools to address bullying, threats of violence and harassment, regardless of where it originated.  But that still leaves a lot of ambiguity.  Where exactly is the line drawn?  How do you protect student free speech, while giving the school the power to deal with cyberbullying, threats of violence and sexual harassment?  What about rules designed to promote harmony and unity on extracurricular teams?  Does that comment about Coach Jackson cross the line?  Does it cross the line if the Tweet came from someone who is not on the team?

Stay tuned, Loyal Daily Dawg Readers!  We will get a decision, probably after this school year is over, but certainly before the next one begins. This will be important.

DAWG BONE: SEE IF YOU CAN DRAW THAT LINE. WITH WORDS. IT’S NOT EASY.

Tomorrow: Congrats to the excellent girls’ schools.  But…..

Do you ever have disagreements between board members?  Do some of your board members believe that some other members are out of line? Inappropriate?  Illegal?   If so, what can the board do about it?  We are going to get a decision from the Supreme Court that will provide some guidance on this issue.  SCOTUS has agreed to hear the case of Houston Community College System v. Wilson. 

Background: the majority of the board for the Houston Community College System apparently felt that board member David Wilson was out of line.  Voters elected Mr. Wilson to the board in 2013. Four years later he stirred things up, much of this due to the decision by the board to fund a campus in Qatar.

*Mr. Wilson expressed concerns that the board was not following its own bylaws.

*He gave an interview about his disagreements with the board to a local radio station.

*He set up robocalls to constituents.

*He filed two lawsuits against HCC and his fellow board members.

*He retained private investigators to investigate HCC and the residency status of one of the board members.

*He maintained a website where he published his various concerns.

On January 18, 2018, the board adopted a resolution publicly censuring Mr. Wilson.  The court described it this way:

In the censure resolution, the Board chastised Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The censure, the Board emphasized, was the “highest level of sanction available,” as Wilson was elected and could not be removed.  The Board directed Wilson to “immediately cease and desist from all inappropriate conduct” and warned that “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action by the Board.”

Mr. Wilson sued HCC, alleging that this censure resolution punished him for the exercise of free speech.  The 5^th Circuit held that Mr. Wilson stated a valid claim.  Key Quotes:

Under our precedent, Wilson’s allegation of retaliatory censure is enough to establish an injury in fact.  Additionally, the Supreme Court has held that a free speech violation giving rise to a reputational injury is an injury in fact.

….a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under Section 1983.

Notice: this suit was not against the individual members of the HCC board.  If it had been, those members would have vigorously asserted various theories of immunity, including legislative immunity which is very broad. Mr. Wilson limited his suit to the HCC itself, rather than the individuals.

Here's another interesting wrinkle: the board imposed three sanctions on Mr. Wilson in addition to the censure.  He would not be eligible to serve as an officer (sounds like he would not have been elected to an office anyway); he was ineligible for travel reimbursement for a year; and his requests for access to the funds in his Board account for community affairs would have to be approved by the full Board.  Even though these measures were more concrete than a censure resolution, the 5^th Circuit held that they “do not violate [Mr. Wilson’s] First Amendment rights.”  It was only the censure that was legally significant.

I’m sure you can see the significance of this case for school boards in Texas.  This case has already drawn a lot of interest from school board members and their associations. In fact, I’m pleased to let you know that Meredith Walker from our firm’s Irving office wrote a compelling Amicus Brief on behalf of the Legal Assistance Fund operated by TASB and the Texas Council of School Attorneys, asking the Court to take this important case.   As Meredith points out in her brief, the decision of the Supreme Court in this case will have major implications for school board operating procedures and general governance. So stay tuned.

DAWG BONE: WHEN CAN THE BOARD CENSURE ONE OF ITS MEMBERS?  WE  ARE GOING TO FIND OUT.

Tomorrow: Speaking of SCOTUS….

Everyone agreed that J.B. was a troubled young boy.  The school district in California identified him as having an emotional disturbance that required special education services.  However, the district did not think that residential placement was called for.  The boy was only in 4^th grade, and the district offered a less restrictive alternative to residential placement--the Nexus program operated by the school district.

But the court held that things reached a “tipping point” in May, 2018 when the district amended the student’s IEP to call for twice-daily searches of his pockets and socks:

This intrusive form of behavior management, similar to what a criminal suspect endures rather than a 4^th grade boy, was sufficient notice to Tuolumne County and Curtis Creek of Student’s declining behaviors and increasing volatility. His active fantasy life took on a darker, more foreboding presence and was reflected in the violent and fantastical drawings he produced at school…..By May 10, 2018, the evidence showed that Student required a more restrictive placement than the Nexus program.

How do you know when things have reached a “tipping point”?  You don’t.  It’s always a judgment call.   Professional educators make that judgment on a regular basis, resulting in recommendations that IEPs be amended or placements be changed.  If you are serving a student in a general education classroom and believe that things have reached a “tipping point” you can recommend an educational change of placement to a more restrictive environment.  In our firm’s Toolbox Training we call that Tool #2, if it can be done with parental agreement. If the parent does not agree, the school can employ Tool #3—an educational change of placement without parental agreement.

The thing is, however, that your judgment call might be second-guessed.  You think you’ve reached a “tipping point” with the student, but the parent might not agree. The other members of the ARD Committee might not agree. The hearing officer might not agree.  That’s the thing about judgment calls.

In the Toolbox Training we focus on how those judgment calls are made.  We don’t guarantee that you will always make the right one. No one can do that. We just offer some procedures and guidelines for how you make those calls.

This one is J.B. v. Tuolumne County Superintendent of Schools, decided by the federal court for the Eastern District of California on March 31, 2021. We found it on Special Ed Connection at 78 IDELR 188.

DAWG BONE:  DECISIONS ABOUT TIPPING POINTS SHOULD BE BASED ON ACCURATE AND RELEVANT DATA, AS WELL AS PROFESSIONAL OPINIONS.

Tomorrow: Can the school board censure one of its members?

Two female athletes in Connecticut filed suit to challenge the rules of the Connecticut version of the UIL that permitted transgender students to compete in the sport that aligned with their gender identity.  The suit claims that two athletes who were biologically male were allowed to compete in girls’ track.  And they won at the state track meet. The suit alleged that Connecticut’s rule discriminated against girls in violation of Title IX.

On April 25,2021, the federal court dismissed the suit, thus leaving Connecticut’s rule in place. The court held that the case had become moot. The two girls who filed the suit had graduated, and thus, could no longer compete in high school track.  Other students had joined the suit, however, who were still eligible to compete.  But the court held that they failed to show that they were facing any realistic possibility of a legal injury. The court observed that “a legally cognizable injury to these plaintiffs would depend on a transgender student running in the same events and achieving substantially similar times.”  There was speculation that they could face competition from a transgender athlete who could effectively compete in the same event, but that’s all it was—speculation. That wasn’t good enough.

Our legislature is contemplating a law that would bar transgender girls from competing in girls’ sports.  Before passing such a law, our leaders would be wise to consider the last part of this court’s decision:

Courts across the country have consistently held that Title IX requires schools to treat transgender students consistent with their gender identity.  Every Court of Appeals to consider the issue has so held. 

In support of that statement the court cites cases from the 3^rd, 4^th, 6^th, 7^th, and 9^th Circuits.  We should note, however, that none of those cases have specifically addressed athletics.

This one is Soule v. Connecticut Association of Schools, Inc., decided by the federal court for the District of Connecticut on April 25, 2021.

DAWG BONE: THIS WON’T BE THE LAST CASE ON THIS ISSUE.

Tomorrow: Toolbox Tuesday!!

I was on the phone with a special education director, gathering information about a student so that I could provide some good legal advice.  The director told me a lot about the student, but didn’t mention what disability made him eligible for special education.  So I asked: “What’s his disability?”  The answer: “His mother.”

Moms. Bless their hearts!  They come in all shapes and sizes, all types of personalities, the full spectrum of humanity.  In your district you probably deal with Friendly Moms who work at the Halloween Carnival and bring cupcakes to the PTA meetings.  You deal with Hostile Moms who question every move you make.  You deal with High Maintenance Moms who take up most of your time. You deal with Overwhelmed Moms who don’t have the time or energy to attend ARD meetings.  You deal with Moms who just got out of prison and Moms who just got out of law school.  You deal with Moms who are also teachers, and Moms who were served in a special education program themselves.

One thing they have in common is the power they have to influence their children.

Consider the story told by Michelle Obama about her experience in elementary school.  The former FLOTUS describes her second grade experience at Bryn Mawr Elementary on the South Side of Chicago as “a mayhem of unruly kids and flying erasers.”  She continues:

All this seemed due to a teacher who couldn’t figure out how to assert control—who didn’t seem to like children, even.  Beyond that, it wasn’t clear than anyone was particularly bothered by the fact that the teacher was incompetent. The students used it as an excuse to act out, and she seemed to think only the worst of us.  In her eyes, we were a class of “bad kids,” though we had no guidance and no structure and had been sentenced to a grim, underlit room in the basement of the school.

Fortunately for young Michelle Robinson, she had an advocate—her mother:

Without telling me, she went over to the school and began a weeks-long process of behind the scenes lobbying, which led to me and a couple of other high-performing kids getting quietly pulled out of class, given a battery of tests, and about a week later installed permanently into a bright and orderly third grade class upstairs, governed by a smiling, no-nonsense teacher who knew her stuff.

She characterized this move, engineered by her mother, as “a small but life changing move.”  Years later—after the magnet high school in downtown Chicago, after Princeton, after Harvard Law School—she looked back on this event with enhanced perspective:

…my mind often traveled back to childhood, and in particular to the month or so I’d spent in the pencil-flying pandemonium of that second grade class at Bryn Mawr Elementary, before my mother had the wherewithal to have me plucked out.  In the moment, I’d felt nothing but relieved by my own good fortune. But as my luck in life seemed only to snowball from there, I thought more about the twenty or so kids who’d been marooned in that classroom, stuck with an uncaring and unmotivated teacher.  I knew I was no smarter than any of them. I just had the advantage of an advocate….Through no fault of their own, those second graders had lost a year of learning. I’d seen enough at this point to understand how quickly even small deficits can snowball too.

I had a Mom like that too.  She was a third grade teacher with high expectations for her children.  All these many years later I still feel her influence.

I know that many Loyal Daily Dawg Readers are Moms.  So let me just say, without a touch of snark or tongue-in-cheek: BLESS YOUR HEARTS!!

DAWG BONE: HAPPY MOTHER’S DAY, MOM!!

Many districts have been receiving communications from parents informing the district that a requirement that students wear masks at school is a violation of the U.S. Constitution as well as the Texas Education Code provision prohibiting the use of “aversive techniques.”

That’s not right.  Requiring that students wear masks does not deprive anyone of liberty without due process any more than our law requiring that we wear seat belts in a car.  Both are examples of governmental regulations designed to ensure safety.  Moreover, both the seat belt law and a school district policy enacted by the board of trustees are examples of the proper “due process of law”—our elected representatives making decisions in the interests of the general public.

The assertion that mandatory mask-wearing is an “aversive techniques” is way off base.  First, it ignores the dictionary definition of “aversive.”  Merriam-Webster’s 11^th Edition Collegiate Dictionary tells us that “aversive” means “tending to avoid or causing avoidance of a noxious or punishing stimulus.”  It also defines “aversive therapy” as “therapy intended to suppress an undesirable habit or behavior (as smoking) by associating the habit or behavior with a noxious or punishing stimulus.”

The Education Code provision (T.E.C. 37.0023) is consistent with the dictionary:

In this section, “aversive techniques” means a technique or intervention that is intended to reduce the likelihood of a behavior reoccurring by intentionally inflicting on a student significant physical or emotional discomfort or pain.”   (Emphasis added).

When I was in first grade I saw Sister Mary Holywater make my friend, Mark Sullivan, take a bite out of a bar of soap and chew it while standing in front of the class. This was intended to “reduce the likelihood” of Mark using “bad words” ever again.  That was an aversive technique.

I saw the lady who lived next door to me deliberately hold a hot match on her little boy’s arm after she caught him playing with matches.  This was intended to “reduce the likelihood” that he would ever play with matches again.  That was an aversive technique.

School boards that have required mask-wearing are not intending to hurt anyone. Quite the contrary, they are doing what they believe to be a good practice designed to ensure good health for all of us.  They do not require masks in an effort to “reduce the likelihood” of some specific behavior.  To accuse these board members of inflicting an “aversive technique” on students is pure poppycock.

DAWG BONE: MASK WEARING MANDATES ARE NOT “AVERSIVE TECHNIQUES.”

Tomorrow: How many of you are moms?

Since today is Cinco de Mayo I’m recalling the oral argument I listened to in a case from California involving a student disruption that blew up on the 5^th of May when the school was honoring its rich Hispanic heritage.  One of the lawyers repeatedly referred to “Cinco de Mayo” as if it was about an alternative to mustard.  May-O, he called it until one of the judges on the panel gently informed him that the correct pronunciation is My-O.  The guy sounded like he was from New Jersey, so I don’t know what he was doing representing someone in California. 

We all make mistakes.  I’ve made more than a few.  I recently had the wonderful opportunity of participating in TASB’s Boot Camp—an annual event for lawyers new to the practice of school law.  I shared with the group some practical suggestions about special education law, but I concluded by encouraging them not to make the same mistake I once made.  I summed it up thusly:

NEVER LET YOUR CLIENT SEE YOU READING A BOOK ENTITLED “THE EASY WAY TO WIN SPECIAL EDUCATION HEARINGS” ON THE NIGHT BEFORE THE HEARING.

I was just trying to pick up a few last minute tips. I thought my client would be impressed with my diligent preparation right up to the last minute.  Nope.  His view was that this was akin to seeing the pilot studying HOW TO FLY AN AIRPLANE right before takeoff. 

I’ve made plenty of other mistakes since then, but not that one.  Now I keep my reading practices to myself.

DAWG BONE: IT WAS A HELPFUL BOOK!

Tomorrow: is a mandatory mask-wearing rule an “aversive technique”?