Having a lot of annual ARD meetings these days?  It’s pretty common to have the annual in the spring so that you can review progress this year, and develop an IEP for next year.  As you consider each student’s situation, you are going to be asked this question:

Does the student have behaviors that impede the learning of the student or others?

That question is in your forms, with a YES and a NO box.  I know it’s in your forms because it’s required by federal law.  Here are three things to think about as you answer that question.

First, notice that it does not limit the question to behaviors that arise from the student’s disability.  This is not a preliminary manifestation determination. It’s a simpler question: does the student exhibit behaviors that “impede” the learning of this student or of others?

Second, remember that behaviors that “impede learning” are not always loud, disruptive, and obvious.  That depressed and quietly withdrawn student sitting in the corner, alone at lunch and on the playground, may be showing signs of behaviors that impede that student’s learning.  How are the student’s grades? Is depression impeding educational progress?  Don’t ignore it.

Third, if you answer “yes” the minutes of the ARDC meeting should reflect the discussion that followed. What do you want to do about it?  How to address these behaviors?  A “yes” answer does not require a FBA and a BIP, but it does require some thoughtful discussion.

We talk about all this in our firm’s Toolbox Trainings.  Let me know if you are interested in one.

DAWG BONE: A “YES” ANSWER REQUIRES SOME THOUGHTFUL FOLLOW UP.

Tomorrow: Memories of Cinco de Mayo….

One of the more important state regulations pertaining to special education has been changed in a way that is subtle, but important.  It has to do with the intersection of special education with all of the general education interventions that can be provided, such as  RtI, tutoring, Title I programs, etc.

For as long as I can remember, the regulation (19 T.A.C. 89.1011) required district staff to make a referral for special education testing only after the regular education interventions had been tried without success.  The regulation said that “Prior to referral” students who were having a hard time should be considered for all manner of general education support services.  If the student continued to struggle “after” these interventions were provided, the district was then required to make a referral to the special education department.

That is no longer the law.  The regulation has been changed.  The words “prior to referral” and “after” have been deleted. Now it reads like this:

Referral of students for a full individual and initial evaluation for possible special education services must be a part of the district’s overall, general education referral or screening system.  Students experiencing difficulty in the general classroom should be considered for all support services available to all students, such as tutorial; remedial; compensatory; response to evidence-based intervention; and other academic or behavior support systems.  A student is not required to be provided with interventions for any specific length of time prior to a referral being made or a full individual and initial evaluation being conducted.  If the student continues to experience difficulty in the general classroom with the provision of interventions, district personnel must refer the student for a full individual and initial evaluation.  A referral for a full individual and initial evaluation may be initiated at any time by school personnel, the student’s parents or legal guardian, or another person involved in the education or care of the student.

That’s a lot of verbiage. Let me summarize what is different from the previous regulation and why it’s important.

Previous regulation: called for the application of general education interventions first, prior to a referral. If the student continued to struggle after these interventions have been given a chance to succeed, then and only then, would the district be required to make a referral.

New regulation: does not specifically require the use of general education interventions before making a referral. Emphasizes that referrals can be made whenever.  Tells us that the referral can be made contemporaneously with the use of general education interventions.

This is all part of Texas addressing concerns over Child Find.  This dates back to the debacle over the 8.5% data point in the monitoring system, and the accusations that Texas educators were too slow to make a referral. The language in the old regulation, particularly that phrase “prior to referral,” provided a rationale for that slowness.  The old regulation allowed for a referral at any time, but required one only after general education interventions have been tried and found to be inadequate.  This new regulation changes that and should be discussed by district staff.

DAWG BONE: SUSPECT A NEED FOR SPECIAL HELP DUE TO A DISABILITY?  MAKE A REFERRAL.  NOW.

Tomorrow: Toolbox Tuesday!!

This week we’ve been reviewing the 5^th  Circuit’s decision in Ross v. Judson ISD in which a former principal pursued claims of race, sex, and age discrimination. Today we focus on the age discrimination claim.

To get to first base on this claim, Ms. Ross had to show that she was replaced by someone “significantly younger.”  Now there is an elastic standard!  When we speak of significant age differences, context matters a great deal.  I speak from experience.  I married a woman three years my senior. When we first started dating that seemed like a big deal. Now?  Hah!

Speaking of dating, a friend shared a formula with me for calculating when a dating relationship qualified as “scandalous” due to an age gap.  The formula requires you to take the older person’s age, divide by two, and add six.  It’s “scandalous” if you date someone younger than that.  So if you are 50, steer clear of anyone under 31.  I don’t know if there is any science behind that, but it sorta sounds right, although a little generous toward the older person.

But let us get back to the business of the law. What does “significantly younger” mean under the law?  In this case, the 5^th Circuit noted decisions from other circuits that focus on a ten-year gap.  However, the 5^th Circuit has no “bright-line rule.”  Dadgummit.  Giving legal advice would be so much easier if the court would adopt a “bright-line rule.”

In the Judson case, the gap was six years.  Ms. Ross was 55 when she lost her job with the district, and her permanent replacement was 49.  Is 49 “significantly younger” than 55?  The court did not answer the question.  Double Dadgummit! Life would be so much easier if courts would answer the questions that they raise!

The court did not answer the question because there was another way to resolve this case. Remember that all this litigating is about establishing a “prima facie” case. Think of that as getting to first base.  Even if you get there, it does not mean you win. It only means that the burden of proof shifts to the other party.  The defendant then carries the burden of asserting legitimate, non-discriminatory reasons for the adverse employment action. If the defendant does that, the burden shifts back to the plaintiff to show that those “reasons” are bullroar, or in legal terminology, a “pretext” to hide the discriminatory intent.

The district asserted beaucoup legitimate, non-discriminatory reasons for Ms. Ross’s nonrenewal.

This was all addressed in the nonrenewal hearing in which the district provided the results of its investigation into financial practices. This included evidence that the principal charged kids money, or allowed faculty to do so, to attend various school events, and to get temporary IDs; that she charged faculty members for wearing jeans; and deposited all this money into a petty cash fund that she used to pay non-school expenses. There was more: a bottle of booze in her car on school property; a report of drunkenness at a school event, and other things.

The court did not establish that any of those charges were true.  The case was not yet at that stage. But the assertion of these legitimate, job-related, non-discriminatory reasons for the nonrenewal of a principal tossed the burden of proof back to the plaintiff.  The court:

Because JISD provided legitimate reasons for the nonrenewal of Ross’s contract, the burden shifted back to Ross to present at least some evidence that JISD’s stated reasons for terminating her employment were pretextual.  Ross fails to do so.

So that was it.  These discrimination cases are like a tennis match, with the ball (the burden of proof) going back and forth between the parties.  When the school hit the ball back over the net, and Ms. Ross failed to hit it back, her case was over.

All of which leads me to point out two things: first, all of your personnel decisions must be based on legitimate, job-related, non-discriminatory and non-retaliatory reasons.  That’s our mantra.  Second, this case required a lot of good lawyering and I’m pleased to let you know that that lawyering came from our firm’s San Antonio office: Katie Payne, Craig Wood, Bob Russo and Jameson Baker.

DAWG BONE: LEGITIMATE.  JOB RELATED. NON-DISCRIMINATORY.  NON-RETALIATORY.

If you are the parent of more than one child I am guessing that at some point you heard loud complaints from Child A that Child B was treated more favorably.  If you are the parent of more than one child and have never had to deal with such an issue, you may go directly to heaven right now.  For us mortals who have to adjudicate such claims, it might be helpful to look at “comparators” the way the courts look at them.

This came up in the case of Ross v. Judson ISD, which we introduced you to on Monday.  On Monday we pointed out the problem that Ms. Ross had in arguing that she was the victim of race and sex discrimination, since she was replaced by someone of the same race and same sex.  However, she had another avenue to pursue. If she could show that she was treated less favorably than someone who was “similarly situated” then she might have a case.  So she searched for “comparators”—employees who were of a different race or sex, similarly situated, but treated differently.

This case shows us how difficult it is for a plaintiff to find a genuine “comparator.”  The person must 1) hold the same or similar job responsibilities; 2) share the same supervisor; 3) have essentially comparable violation histories; and 4) have engaged in “nearly identical” conduct as the plaintiff. 

Ms. Ross did her due diligence, identifying 11 possible “comparators.”  The court eliminated five of them based on that first factor--they did not hold the same kind of job.  The court only considered the six people who had served as either principals or vice principals. Like Ms. Ross, they had engaged in inappropriate conduct that led to an adverse employment action. But their conduct was not “nearly identical”:

Of the remaining six….their conduct included covering up a teacher’s inappropriate conduct with a student, requiring teachers to change students’ grades, “failing in leadership,” and violating unspecified JISD policies and practices. Their conduct was not “nearly identical” to Ross’s conduct, which involved financial mismanagement, inappropriate fundraising, inappropriate alcohol use, and misuse of funds and work time.

Notice that all of the “comparators” were charged with serious misconduct, but because it was not “nearly identical” conduct, they were rejected as “comparators.”

So in our efforts to help you with your parenting, we would suggest that you inform Child A that Child B is not a good “comparator” because Child B has not engaged in “nearly identical” behavior.  See how that works, and let me know.

We’ll wrap up this case tomorrow when we focus on the age discrimination claim.

DAWG BONE: RACE AND SEX DISCRIMINATION CLAIMS HAVE TO CLEAR THE “PRIMA FACIE” HURDLE. 

Tomorrow: What is a significantly large age gap?

If you have the opportunity to do so, I recommend that you go to www.scotusblog.com this morning to hear the oral arguments in the case of Mahanoy Area School District v. B.L.  If you can’t tune in at that time, you can listen to a recording of the arguments later.  This case could result in the most important decision about student free speech since Mary Beth Tinker wore that famous black armband to her middle school in Des Moines, Iowa. 

The stakes are high.  The Circuit Courts can’t seem to agree on the standard that should apply to student speech that takes place away from the school campus.  In days long ago, a geographical distinction between “on campus” and “off campus” speech made sense.  In today’s world, it makes no sense.  So what should the standard be?

The student in this case had a brief temper tantrum on Snapchat, featuring four consecutive F-bombs aimed at cheerleading, softball, the school, and “everything.”  The school suspended her from cheerleading for a year, and she sued, claiming that this was an unconstitutional infringement of her First Amendment rights.  At the 3^rd Circuit she won, so it’s the school district that seeks a reversal from the High Court.

Numerous advocacy groups have weighed in. So has the Biden Administration, which supports the school’s position.  This is a lot of fuss and bother over whether or not a high school student gets to be on the cheerleading squad.  But, of course, there is much more at stake.  If the Court upholds the Circuit Court ruling without modification, it will hamstring efforts by school officials to address cyberbullying and sexual harassment.  That’s why there is so much interest.

No doubt we will talk about this on the next Zooming with the Dawg—May 21.  Mark your calendar now. 

DAWG BONE:  MAHANOY AREA SCHOOL DISTRICT v. B.L.  TODAY.

Tomorrow:  Finding a “comparator” is not so easy….

In the Toolbox Training we talk about the three questions school leaders should ask themselves before taking a position that is likely to end up in a due process hearing.  Consider: you have a “hard ARD” that fails to reach consensus.  You have recessed, with a commitment to meet again in a few days.  You have some time to think about things.  You are pretty sure that if you don’t modify your position, the parent will take the matter to a hearing, but the staff feels strongly that the district is doing the right thing and should not budge.  What are the questions you should consider?

In the Toolbox Training we offer three:

1. Is this worth fighting over? It’s good to take a few deep breaths to make sure that we are not being stubborn, unreasonable, or ego-driven.  Is our position child-centered?  Are we proposing a course of action that is educationally beneficial for the student?  How big of a deal is it?
2. Are we legally defensible? If you end up in a due process hearing, it’s going to focus on your compliance with the law. So get your school district attorney to review the student’s file and talk to the people directly involved.  This will take some time, and that means it will cost some money.  But it’s necessary.  If there are procedural glitches, or evidence of poor communication, this needs to be considered.
3. Are we united on this?  An administrator should provide leadership, but that does not mean that the administrator is the quarterback unilaterally calling the play.  Special education decision making is upside down from everything else in the school. The decisions come from the ARD Committee, which is comprised of teachers and direct service providers.  Do the teachers support the position the district proposes to take?  Have you interviewed the paraprofessional to gauge what testimony that person might give if called upon? The wise leader gauges the views of the entire group, synthesizes them, and then provides leadership.

It's a good idea to ask these questions in reverse order.  If the team is not united, then you are probably not legally defensible. And if that’s the case, it’s not worth fighting over. So we suggest you start with the third question.

DAWG BONE: ALWAYS ASK THE THREE QUESTIONS.

Tomorrow: Got your popcorn ready?

Earlier this month the 5^th Circuit issued a decision that provides a tutorial about the basics of a discrimination claim.  The plaintiff alleged that she was the victim of three kinds of discrimination, and the court dealt with each one separately.  We will address the race and sex discrimination claims today and Thursday, and then discuss age discrimination on Friday.

Ms. Ross was the principal of Metzger Middle School in Judson ISD for six years.  Then, at the conclusion of the 2015-16 school year, the district non-renewed her contract.  She appealed that decision to the Commissioner, who affirmed the board’s decision. Then Ms. Ross took her case to court alleging race, sex, and age discrimination. 

The district had done a thorough investigation of alleged financial improprieties and had documented numerous reasons to justify Ms. Ross’s nonrenewal. All of this was presented in the nonrenewal hearing. We will tell you more about that on Friday when we look at the age discrimination claim.  However, when it discussed race and sex discrimination the court said nothing about Ms. Ross’s performance.  Her claim failed for a more fundamental reason.   Ms. Ross failed to convince the court that she had alleged facts that would amount to a “prima facie” case.  A “prima facie” case tosses the burden of proof over to the defendant.  In other words, it tells the defendant: “this begins to look like illegal discrimination. What do you have to say about it?”

To clear that “prima facie” hurdle, Ms. Ross had to allege facts that would establish four things.  Three of those things were not disputed.

First, she is a member of a group entitled to protection from discrimination based on race and/or sex. As an African-American woman she satisfied this standard with regard to both race and sex.  Check.

Second, she is qualified for her position. Check. She qualified to serve as principal.

Third, she suffered a final, adverse employment action.  Check. Her contract was not renewed. She’s been dismissed.

The fourth factor required proof that she was replaced by someone outside of her protected class. The theory behind that is simple: if a woman is replaced by a woman, it can’t be sex discrimination. If a Hispanic is replaced by a Hispanic, it’s not race discrimination. 

Ms. Ross was first placed on paid administrative leave. Her replacement was an African-American woman.  Then the board completed the nonrenewal of Ms. Ross’s contract and hired her permanent replacement—another African-American woman.  That principal served for three years, at which time the board hired a white woman.

Ms. Ross claimed that this meant that the board had replaced her with a white person, but the court did not see it that way, noting that all of the evidence showed that the woman who served for three years was a permanent replacement. Perhaps if the time frame had been shorter, Ms. Ross’s argument would have been more persuasive.  But it was three full school years before the board hired someone of a different race.

That wasn’t the end of it, however. Ms. Ross also had the opportunity to present evidence that she was treated differently from similarly situated employees.  In other words, if she could locate a white or Hispanic or male employee who was “similarly situated” but was treated better, she might have a legitimate case. We’ll tell you how that came out on Thursday.

This case is Ross v. Judson ISD, decided by the 5^th Circuit on April 1, 2021.  The case can be found at 2021 WL 1216548.

DAWG BONE: IT’S ALWAYS NICE TO GET A TUTORIAL FROM THE CIRCUIT COURT.

Tomorrow: Toolbox Tuesday!!

We have two SCOTUS cases about what FAPE means.  The first was in 1982, involving Amy Rowley, a very bright little girl with a hearing impairment.  The second was in 2017, involving Endrew F. who was functioning below grade level due to the severity of his disabilities.

Since Endrew F. most of the cases about FAPE have been about students like Endrew—students who were functioning below grade level. Today I want to tell you about a case involving a student who was more like Amy Rowley—a bright student making good grades despite his disability.  The parents pulled him out of public school and placed him in a ritzy private school (the school’s website lists tuition for the 2021-22 school year as $41,000) that serves students with disabilities, where he did very well.    The parents emphasized the language in Endrew that called for an “appropriately ambitious” IEP.  However, the court pointed out IDEA, including as it is interpreted in Endrew, only requires an appropriate education—not the ideal. Moreover, the public school offered a placement in a less restrictive environment than the private school that only served students with disabilities.

Thus the court ruled in favor of the school district, denying the parental request for tuition reimbursement.

This is one of many cases in which a hearing officer finds the testimony of classroom teachers to be more persuasive than the testimony of independent experts retained by the parent.  The hearing officer conducted a six-day hearing and issued a 35-page opinion in favor of the school district. The federal court affirmed, primarily based on the credibility determinations of the hearing officer. The court noted that one of the experts who testified on behalf of the parent never observed the child in the general education classroom, and thus gave an opinion that was “at odds with the first-hand accounts of D.H.’s classroom and special education teachers who worked with D.H. daily.”  The second expert did not observe the student at school and “did not speak with [district] teachers who worked with D.H. on a daily basis.”

In special education litigation, the best experts are usually right there in your classrooms.  Here we have yet another example of this.

It’s D.H. v. Fairfax County School Board, decided by the federal court for the Eastern District of Virginia on January 19, 2021. It’s on Special Ed Connection at 78 IDELR 39.

DAWG BONE: WHAT COUNTS THE MOST IS DAY-TO-DAY EXPERIENCE WITH THE STUDENT.

Our special education laws emphasize the importance of parental involvement.  One of the foundational pillars of the law is that the school will solicit and value parental input.  As far as legal protections are concerned, parents of students with disabilities occupy a favored position. They have a seat at the table when IEPs are developed and placements are decided.  That’s not so for other parents. Their children are entitled to a full and comprehensive evaluation of their educational needs. We don’t do that for other students.  They are entitled to more procedural protection than parents of non-disabled students—written notices, consent requirements, and an  elaborate system of dispute resolution involving hearing officers and courts.

With all of that procedural protection in place, it’s disappointing to read a case in which the court finds the parent guilty of abusing the process.  That’s what happened in J.D. v. East Side Union High School District.  One of the issues was the father’s complaint that the IEP Team never formally determined that his son was no longer eligible for special education services. Instead, the district sent a Prior Written Notice informing the parent of this decision.  Thus the parent was informed, but not in the way he thought he should be informed.

There might be merit to a complaint along those lines, particularly if the district made a decision like this outside of an IEP Team (ARD) meeting. So what the district did is unorthodox, but the court noted that there was a reason for it:

The record amply shows that an IEP team determination was not possible here, though, due to the actions of J.D.’s father.

The ALJ (Administrative Law Judge) found the father to be domineering in the meetings, repeatedly interrupting others and preventing them from presenting their reports.  He also repeatedly canceled meetings that were scheduled.   It’s not like the father didn’t have his day in court.  The ALJ conducted a six-day hearing and issued a 42-page decision in favor of the district on all issues.  Now the federal court has affirmed.  The case was decided by the federal court for the Northern District of California on January 26, 2021.  It’s on Special Ed Connection at 78 IDELR 35.

DAWG BONE: PLAY NICE AT ALL TIMES IN ALL CIRCUMSTANCES.  IT PAYS OFF IN THE END.

Tomorrow:  “appropriately ambitious”—what does that mean?

So said Inigo Montoya in The Princess Bride. The word he referred to was “inconceivable.”  But today we focus on the word “intentional,” particularly when it modifies the word “discrimination.”  The courts keep using that word.   I do not think it means what many people think it means.  Many smart, well educated people.  Many Daily Dawg readers.

When I hear the phrase “intentional discrimination” I think that surely it refers to a deliberate intent to treat someone badly based on race, or sex, or religion, or disability.  I think of those people who spout ugly insults at others based on those factors.  I think of racial slurs and sexist remarks and anti-Semitic statements. There are people who hate other people based on the person’s race, or sex, or religion. Two weeks ago I visited the Baptist Church in Birmingham, Alabama where members of the KKK set off a bomb that killed four little girls in 1963.  Not too long ago someone shot up a synagogue, murdering a number of people because they were Jewish. Now those are examples of intentional discrimination.  You might use words like “hateful” or “malicious.”

But when the courts label something as “intentional discrimination” it might be far less shocking than these examples.  Consider how a federal judge interpreted an affidavit filed by a teacher in a lawsuit accusing the teacher of intentional discrimination based on disability, in this case, an eating disorder:

[The teacher] did not ask C.C.’s parents for permission to interview and photograph C.C.  [The teacher’s] affidavit demonstrates that she (1) was aware of C.C.’s disability and the accommodations requiring C.C. to be excused from any assignment or activity involving diet, nutrition, fitness, or body image, and to discourage any discussion of such issues, and that [the teacher] would not discuss these issues with C.C.; and (2) nevertheless asked C.C.

if she was willing to be interviewed and photographed for a story about eating disorders in the school yearbook.

The Court finds that this evidence creates a fact issue as to whether [the teacher] intentionally discriminated against C.C. because of her disability by knowingly denying C.C. accommodations.  (Emphasis added).

So it does not require hateful words or malicious intent.  Knowing that a student requires certain accommodations and intentionally not providing them can be enough to amount to “intentional discrimination.” That’s why this case is still alive.  Round Rock ISD has tried to get the case dismissed, but the court has rejected that effort because of this lingering fact issue.

This is something that 504 coordinators should emphasize in staff training.  Have you ever heard a  teacher blow off a student’s need for accommodations?   Have you ever heard a teacher express a decision not to implement accommodations that are a part of a student’s 504 plan?  These teachers are not hateful or malicious. It’s not that they bear some ill will toward students with disabilities.  They often honestly believe that the student does not need the accommodations that are in the plan.  They may even be right about that.  None of that matters.  As this case illustrates, knowing what the 504 plan calls for, and deciding not to do it is “intentional discrimination” which can create legal liability for the district.

The case is S.C. v. Round Rock ISD. The latest ruling in this ongoing case was issued by the federal court for the Western District of Texas on January 19, 2021.  It’s on Special Ed Connection at 78 IDELR 40.

DAWG BONE: DISCRIMINATON THAT IS “INTENTIONAL” DOES NOT HAVE TO BE HATEFUL OR MALICIOUS. 

Tomorrow: how dad blocked the process…