The federal court in Sherman has upheld a hearing officer’s decision in favor of Frisco ISD in a case involving Toolbox issues.  The Toolbox, as loyal Daily Dawg readers know, is our firm’s training program about the discipline of students with disabilities.  The goal of the Toolbox Training is to simplify the complex web of federal regulations and state laws that govern this topic. The law requires schools to do two things at once: maintain a safe campus, while at the same time  serving students who may be disruptive or even violent.

The lawyer representing the parent in the Frisco case argued that the district was too slow to conduct a FBA (Functional Behavioral Assessment) and therefore, too slow to develop a BIP (Behavior Intervention Program). The hearing officer didn’t see it that way and now the federal court has affirmed the hearing officer’s decision.

We spend a lot of time in our Toolbox Training on Tool #1 because it is the most important tool. Tool #1 is the development and implementation of a BIP.  This is the most important tool because it’s the only one that is designed to improve a student’s behavior. If Tool #1 works, you can put the Toolbox away. 

BIPs are very important, but they represent just one method of addressing student behavior.  The law requires a formal BIP supported by a FBA only when the district proposes a change of placement based on behavior that is a manifestation of the student’s disability.  Most of the time the decision to develop a BIP is a discretionary judgment call to be made by members of the student’s ARD Committee.

The record in the Frisco case showed that as of April, 2018, all members of the ARDC agreed that the student’s behavior was improving.  Four months later, however, in August, the parents expressed dissatisfaction with the level of progress. That’s when the district agreed to conduct a FBA.  The parents argued that this came too late, but the court found no support in the law for that argument:

J.B. points to no authority indicating failure to provide a FBA within a certain time period warrants concluding J.B. was denied a FAPE.  To the contrary, courts have routinely found that failure to conduct a FBA does not necessarily result in the denial of a FAPE.

So local school officials have wide latitude to address behaviors in ways they believe will work.  Here, the court complimented the district on its efforts:

Frisco ISD took extensive action to address J.B.’s behavior, including collecting data, intervention, support, goals, strategies and frequent meetings with parents and Frisco ISD staff.

Well done, Frisco.  The case is J.B. v. Frisco ISD, decided by the federal court for the Eastern District of Texas on March 2, 2021.  It’s at 2021 WL 790641.  I’m pleased to let you know that Frisco ISD was represented in this case by Meredith Walker, Nona Matthews, and Craig Wood—colleagues of the Dawg with the Walsh Gallegos Law Firm!

DAWG BONE: STILL THE MOST IMPORTANT TOOL: TOOL #1.

Tomorrow: a famous quote from Inigo Montoya…

 

We begin this week with a word of warning, Loyal Readers. We are going to spend all week on special education cases.  I try to balance things in the Dawg, but as we approach the end of the school year with its multiple ARD meetings, I think it’s worthwhile to devote a full week to some recent cases about special education (with a bit of 504) all of which have lessons for us.  So let’s get started.

I didn’t see the term RWA in the court’s opinion, but the description of the district’s letter to the parent sounded like an RWA letter to me.  Ready. Willing. Able.  RWA.

That’s how the Abington School District in Pennsylvania responded when the parent moved the student to a private school for 5^th grade.  The student had been in the district’s special education program through 4^th grade.  When the parent informed the district of the move to a private school the district sent a letter to inform the parent that it remained ready, willing and able to provide the student with the FAPE (Free Appropriate Public Education) that the law required.  The letter also asked the parent to let the district know if she changed her mind at some point and wanted to return the student to the public school.

A year passed. The student attended the private school for 5^th grade, but as the parent contemplated middle school she sent an email to the principal of the elementary school asking about “what programs the district can offer.”   The principal responded by putting the mom in touch with the principal of the middle school, who spoke with the parent, providing a general description of the special education services that were available.

Ask yourself: do you think this set of facts creates a duty for the district to conduct an evaluation of the student?  Has the “Child Find” duty been triggered?  The mother thought so, but the 3^rd Circuit did not.  The parent’s request for reimbursement for the private school tuition was denied. The court held that the district did not violate Child Find.  The court drew a distinction between general inquiries about programs vs. specific requests for an evaluation.  These communications were of the more general variety.

That may seem obvious after the fact, but notice how the district’s prompt and appropriate communication helped its cause in the litigation.  When the mother pulled the student out of public school the district sent the RWA letter, which is a good practice to adopt. That letter included a “please let us know if you want to come back.”  Then a year later when mom reached out, the district again responded promptly and appropriately, putting her in touch with the relevant principal.

One more point:  it was fortunate for the district that the communication was by email, and thus preserved, rather than a verbal conversation.  Had there been only verbal communication, it’s very likely that the parties would have had different recollections of what was said.  This one is A.B. v.

Abington School District, decided by the 3^rd Circuit Court of Appeals on January 8, 2021.  It’s on Special Ed Connection at 78 IDELR 1.

DAWG BONE: ADD RWA TO YOUR VOCABULARY.

Tomorrow: Toolbox Tuesday!!

Daily Dawg Readers: Be sure to join us for Zooming with the Dawg TODAY at 10.  Free for all subscribers.  Register at info@wabsa.com. 

The federal judge in the case of Bell v. Eagle Mountain Saginaw ISD had some fun writing his opinion.  He describes the plaintiff, Dr. Keith Bell, as “an infamous slugger known in federal courts around the U.S. for throwing heavy-handed hooks at non-profits and taxpayer funded school districts in the hopes that they throw in the towel and let him take the purse.”  The EMS ISD is described as “the underdog….a scrappy, counter-punching independent school district.”  The judge continues with the boxing metaphor through all 20 pages of his decision, which is best absorbed while listening to the soundtrack from Rocky.

The district won the case in a four-round knockout.  Not only that, the court ordered Dr. Bell to reimburse the district for its attorneys’ fees and costs.  Now that is a satisfying outcome. 

Dr. Bell sued the district after two district affiliated Twitter pages posted a photograph of a single page of a book he had written and copyrighted.  When informed of the issue, the district removed the posts and informed Dr. Bell that it would treat the incident as a “teachable moment.”

That did not satisfy Dr. Bell. He wanted a monetary settlement, despite the absence of any indication that these posts on obscure Twitter pages with fewer than 1000 followers had any adverse effect on book sales.  But EMS refused to throw in the towel and thus the “infamous slugger” and the “scrappy counter-puncher” ended up in a boxing ring that looked a lot like a federal court.

In the course of his opinion the judge cites two football coaches (Vince Lombardi and Bear Bryant), two presidents (Lincoln and Teddy Roosevelt), two generals (Patton and MacArthur) and one saint (Jerome).  All this comes in a section of the opinion with the heading: “Eagle Mountain breezes by Bell’s blow and delivers a devastating uppercut.”  That uppercut established that the use of Bell’s copyrighted work amounted to “fair use.”  It’s a knockout in favor of the underdog.  Rocky wins! 

But it gets better.  After the analysis of “fair use” under federal copyright law the judge notes that “This Court, like any good referee, does not tolerate unsportsmanlike conduct.”  Oops!  A football reference slips into an elaborate boxing metaphor! But let us overlook that for the moment. Let us instead appreciate Hizzoner’s laser focus on the motivation that drove this suit.  

“The issue is not that he seeks to enforce his copyright,” said the judge, “but that he seeks a disproportionate amount to settle his claims in a repulsively pungent pattern that repeats tens, if not hundreds, of times over.”  The judge cited “the plethora of lawsuits Bell has filed throughout the United States.” The “unavoidable conclusion,” according to the judge is “that Bell continues to insist on extorting public schools by abusing the Copyright Act.”   

Sheesh! The judge was hot!  And thus he ordered Dr. Bell to pay for the district’s fees and costs, noting that these sums “shall be extracted solely from Bell, not his counsel.” 

The judge was The Honorable Mark Pittman of the Northern District of Texas. The order is dated March 26, 2021.  And I’m pleased to let you know that the “devastating uppercut” was delivered by Kelley Kalchthaler, one of the shareholders in the Walsh Gallegos law firm.

DAWG BONE: IF ONLY HOWARD COSELL WERE HERE: “DOWN GOES BELL!”

I was surprised to read that South Dakota Governor Kristi Noem was not going to sign the bill passed by the state legislature that would have prohibited transgender girls from participating in girls’ sports.  Governor Noem, a Trump-supporting Republican, is rumored to be interested in running for president in 2024, and this issue is playing very well with Republicans.  So why would she not sign the bill?

She cited concerns over litigation, since the bill might put South Dakota colleges and universities in conflict with NCAA regulations.  The bill was also opposed by many business groups, including the South Dakota Chamber of Commerce.  The governor tried to negotiate some changes, but she and the South Dakota legislative leaders could not come to an agreement.   But then, after considerable outrage from conservative media, Governor Noem issued executive orders that effectively accomplish what the bills that she refused to sign were going to accomplish, at least with regard to K-12 students.  So student athletes in South Dakota public schools will be required to compete as per their biological sex, with no exceptions to that. 

What South Dakota has done by executive order several other states are doing through legislation.  Texas has bills pending on this.  Keep an eye on SB 373 and HB 4042. 

DAWG BONE: NEVER A DULL MOMENT AT THE UIL.

Tomorrow: do not ask for whom the bell tolls….

The 9^th Circuit has—again—concluded that Bremerton School District did the right thing when it ordered Coach Kennedy to quit praying at the 50-yard line immediately after each football game.  SCOTUS has rejected Coach Kennedy’s case once, but it will probably have to address it again.  This time around I’m guessing that SCOTUS will reverse this decision and rule in favor of the coach. 

This is one of those cases that will stir up the culture wars.  Unfortunately, people on both sides will oversimplify the situation.  The 9^th Circuit goes to great pains to emphasize the particular circumstances of the case.  The district made numerous efforts to find a way to accommodate Coach Kennedy’s desire to offer a prayer after the game without risking the perception that it endorsed his activities.  Many will wonder: what’s the big deal?  Why can’t the school just let the man say his prayer?  If some of the players choose to join him, so what? 

But it’s not that simple because Coach Kennedy, in the words of a concurring opinion, “painted BSD into a corner.”  When the district ordered him to cease engaging in such a public and demonstrative demonstration of his faith, he took this private personnel matter to Facebook with this post:  “I think I just might have been fired for praying.”  Then he went on a media blitz.  He riled up the crowd with “his pugilistic efforts to generate publicity in order to gain approval” for his position. 

It worked. The Christians rose to the occasion:

Shortly thereafter, BSD “was flooded with thousands of emails, letters, and phone calls from around the country,” regarding the conflict over Kennedy’s prayer, “many of which were hateful or threatening.”

So the district had to have tight security at the next game.  A Satanist group had gotten wind of the story and notified the district that it intended to conduct its own ceremony at mid-field after the game, if other groups were allowed to do so.   It turns out that the Satanists did not charge the field, but others did in an effort to join the group surrounding the coach at the 50-yard line. The district described it as a stampede that it could not control, despite the increase in security.

Of course all of this got a lot of media and social media attention, so perhaps you can understand the concern of district leaders that if, after all this controversy, they backed down and allowed the coach to offer a prayer after the game, surrounded as usual by players from both teams, it would look like the district had decided to permit this.  That was the sticking point for the district. It feared that allowing this to happen would be perceived by the “objective observer” as an endorsement of a religious practice.  They were dealing with a coach who believed he was on a righteous moral crusade, and was unwilling to compromise: 

The District tried repeatedly to work with Kennedy to develop an accommodation for him that would avoid violating the Establishment Clause; Kennedy declined to cooperate in that process and insisted that the only acceptable outcome would be praying immediately after the game on the 50-yard line in view of spectators and students.

So it’s headed back to the Supreme Court.  The Court refused to take the case in its preliminary  stage, but four justices joined in an unusual opinion expressing concerns about the 9^th  Circuit’s view of the free speech rights of teachers.  Those four were Alito, Gorsuch, Thomas and Kavanaugh.  It’s easy to see the newbie, Justice Barrett, joining with those four. The new opinion from the 9^th Circuit attempts to directly address the concerns expressed by the four justices. Whether it has done so satisfactorily remains to be seen. Stay tuned!

This one is Kennedy v. Bremerton School District, decided by the 9^th Circuit on March 18, 2021.  It’s at 2021 WL 1032847.

DAWG BONE: HOW WOULD COACH TAYLOR HAVE HANDLED THIS? 

Tomorrow: Speaking of Coach Taylor, what about transgender athletes?

We talk a lot in our Toolbox Training about the importance of behavior plans.  Tool #1 is the development and proper use of a BIP—a Behavior Intervention Plan.  If you create a BIP and it works, you may be able to put the rest of the Toolbox away. That’s why Tool #1 is the most important of the ten tools.

I came across two cases recently that deal with behavioral issues and their impact on the delivery of FAPE to a student.  The district prevails in one case, and loses in the other.  But the cases both send the same message. 

The first case comes from the 10^th Circuit, and it focuses on that part of IDEA that requires IEP Teams (ARD Committees) to ask themselves each year: does the student have behaviors that impede the learning of the student or others.  The court held that this student’s IEP did not have to include a BIP, as long as behavioral interventions were considered. And even that requirement only applied if the student’s behavior impeded learning. The Team did consider behavioral interventions and deemed them unnecessary.  The court held that the district did what it was supposed to do under the law.  This was based on the testimony of seven district witnesses that the behaviors did not impede learning. Elizabeth B. v. El Paso County School District 11, 78 IDELR 5 (10^th Cir. 2020). 

But then you have R.B. v. Downingtown Area School District, 78 IDELR 9 (E.D. Pa. 2020), where the court affirmed the hearing officer’s ruling that the district’s failure to effectively address behavior denied FAPE to the student. The record showed that the district was aware of behavioral problems, and that the district made no progress in addressing them during kindergarten and first grade. A new FBA was done in February of the first grade year, and changes to the BIP were put in place in May, but that came too late.

Lessons?  I count five:

1.  If behavior impedes the learning of the student or others, the ARD Committee must consider how to address it.
2. This does not mean that the ARDC is required to write a BIP. There are many ways to consider and address behavior.  ARDCs have discretion, but they must be able to show that they discussed the issue and considered ways to address it.
3. If the ARDC decides to develop a BIP, it has to monitor how it is working. 
4. And if it’s not working well, changes should be made.  Promptly.
5. When seven district employees, all of whom have personal experience with the student, say the same thing, the court is likely to believe it!

DAWG BONE: TEN, COUNT ‘EM, TEN TOOLS IN THE TOOLBOX!!

Tomorrow: praying at the 50-yard line….

Daily Dawg Readers: Be sure to join us for Zooming with the Dawg this Friday at 10.  Free for all subscribers.  Register at info@wabsa.com. 

On September 15^th of last year the Daily Dawg was about a case in Missouri involving an SRO who escorted a student to the school office where the student was questioned by two city police officers. The court refused to dismiss the case against the SRO, holding that the facts alleged amounted to a seizure under the 4^th Amendment.  Now that decision has been reversed by the 8^th Circuit.

The Circuit Court did not make a ruling about whether or not this was an “unreasonable seizure” which could lead to liability. Instead, the court relied on the “qualified immunity” doctrine, holding that the SRO did not violate any legal principle that was “clearly established” at the time.  I like the way the court described the purpose of qualified immunity:

The principle at the heart of these approaches is that state actors are liable only for transgressing bright lines, not for making bad guesses in gray areas.

The Circuit Court recognized that the 4^th Amendment applies in the public school setting, but it applies differently.  Behavior that amounts to a “seizure” outside the school setting may not be a “seizure” during the school day. The lower court said that it was a “seizure” anytime a government actor “by means of physical force or show of authority….in some way restrained the liberty of a citizen.”  If you take that literally, every student in every school is being “seized” all day long!  The Circuit Court pointed out the obvious about students in public schools:

Teachers and administrators control their movements from the moment they arrive at school; for example, students cannot simply walk out of a classroom. Nor can they walk out of a principal’s or vice-principal’s office in the middle of any official conference. 

Thus government actors (teachers and administrators) use their authority to “restrain the liberty of a citizen” every day, all day.  Based on that common sense observation, the Circuit Court strongly hinted that what the SRO did was not a violation of the 4^th Amendment. The SRO never laid a hand on the student, did not display a firearm, and did not physically restrict the student. All she did was pull the student out of class and escort her to the office for questioning. Then she left, closing the door as she did.  She was not even in the room when the questioning took place. The court held that even if that was an “unreasonable seizure” it was not clearly established as such.  The SRO did not cross an obvious bright line. At worst, she made a bad guess in a gray area.  Case dismissed.

This one is L.G. v. Columbia Public Schools, decided by the 8^th Circuit on March 18, 2021.  It’s cited as 2021 WL 1030977.

DAWG BONE: TRY NOT TO MAKE A BAD GUESS IN A GRAY AREA, BUT IF YOU DO, IT’S NICE TO HAVE QUALIFIED IMMUNITY.

Tomorrow: Toolbox Tuesday!!

Not everything that happens at school is protected by confidentiality laws. Not everything that students do has to be kept secret.  Consider: a student threatens to kill a teacher.  The teacher, not surprisingly, tells her husband about this.  The husband encounters the student at a gun range, of all places, and lets the student know that he heard about the threat.  According to “Anonymous” this was a FERPA violation.  More specifically, Anonymous asserted that the teacher violated FERPA when she told her husband about this.  Was that a FERPA violation?

No, according to the Student Privacy Policy Office (SPPO).  The critical portion of the SPPO response to this complaint reads as follows:

FERPA does not protect the confidentiality of information in general, and, therefore, does not apply to the disclosure of information derived from a source other than education records, even if education records exist which contain that information. As a general rule, information that is obtained through personal knowledge or observation, and not from an education record, is not protected from disclosure under FERPA.

The SPPO qualifies that statement by pointing out that FERPA would protect information that is based on personal observation if the person who made the disclosure also “had an official role in making a determination that generated a protected education record.”  Example: a teacher has personal knowledge of the grade given to a student, but the teacher cannot disclose that grade because the teacher also generated the education record where the grade is recorded. A principal who suspended a student has personal knowledge of the suspension but is also the person who generated the record of suspension.

DAWG BONE: FERPA MAY NOT PROTECT AS MUCH AS YOU THINK.

Mr. Ruiz has a long way to go to win his whistleblower case against Raymondville ISD, but he cleared an important hurdle when the Court of Appeals declined the opportunity to toss his case out.  The most significant part of the court’s decision is its discussion of reports to a school district’s own police department. 

Many wannabe whistleblowers have lost their case because they blew the whistle in the wrong direction. To make the case, there has to be a report to an “appropriate law enforcement authority.”  In school district cases the facts often show that alleged wrongdoing was reported by a teacher to the principal, the superintendent, or the board.  It’s understandable that people would do that, but it amounts to blowing the whistle in the wrong direction.  Neither school administrators nor the board qualify as an “appropriate law enforcement authority.” As this case puts it:

An authority’s power to discipline its own or investigate internally does not support a good-faith belief that it is an appropriate law enforcement authority.  Instead, the authority must have outward-looking powers.

Citing an earlier decision, the court said:

It must have the authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.

So what about a school district’s own police department?  That’s what happened here.  On May 17, 2018, Mr. Ruiz sent a letter to the district’s chief of police, noting that the chief was his “immediate supervisor.”  The letter complained that Mr. Ruiz was being treated badly by a fellow officer. Eight days later the district fired Mr. Ruiz. 

Mr. Ruiz then claimed whistleblower status with a lawsuit against the district.  The district filed a Plea to the Jurisdiction alleging, among other things, that a report to one’s immediate supervisor is not a report to “an appropriate law enforcement authority.”   As we just noted, this defense often works.  But the court held that in this case anyway, the RISD Police Department was “an appropriate law enforcement authority:”

Even though he reported it to the Chief of Police as his “immediate supervisor,” the Raymondville ISD Police Department has “outward-looking powers” and the authority to enforce and investigate violations of the Texas Penal Code, including oppressive conduct.  Raymondville ISD Police Department qualifies as an “appropriate law enforcement authority” under the Texas Whistleblower Act because it has the authority to investigate the violation of criminal law alleged by Ruiz.

So the case proceeds.  Note that the court qualified its ruling by noting that the particular violation of law that Mr. Ruiz complained of (Official Oppression under Texas Penal Code 39.03) was one that the police department could investigate.  There are other alleged violations of law that fall outside of the jurisdiction of a school district police department. 

It's only a preliminary victory for Mr.  Ruiz, but it’s noteworthy because so many potential  whistleblowers have lost their case based on this “appropriate law enforcement” requirement.  The case goes on. It’s Raymondville ISD v. Ruiz, decided by the Court of Appeals for the 13^th District, Corpus Christi-Edinburg, on March 4, 2021.

DAWG BONE: SOMETIMES THE SCHOOL’S POLICE DEPARTMENT IS AN “APPROPRIATE LAW ENFORCEMENT AUTHORITY.”

Tomorrow: FERPA Friday…

The Daily Dawg post for December 19, 2019 told the story of Laurel Kash, who sued the Texas Education Agency after she was fired from her job as the state director of special education. Some of you may remember Ms. Kash, although she was only at the Agency for about three months in 2017.   She filed a complaint with the U.S. Department of Education’s Office of Inspector General,  claiming that she was fired for “blowing the whistle” on what she perceived to be an improper award of a lucrative contract to a third party. 

She won.  The OIG sustained her allegations and in a subsequent hearing an ALJ (Administrative Law Judge) ordered T.E.A. to pay Ms. Kash a bit more than $200,000.  My Daily Dawg post about the case concluded with this:

This is not over.  TEA raised numerous procedural arguments, ranging from sovereign immunity to lack of due process.  This one may be appealed. 

It was appealed, and T.E.A. won on the basis of its sovereign immunity claim.  On March 23^rd, the 5^th Circuit reversed the big award and ordered that the case be dismissed.  No cash for Ms. Kash. 

Of course the parties were way apart on the reasons for Ms. Kash’s separation from the Agency.  T.E.A. claimed that it had ample cause to fire her, whereas she alleged that it was all a retaliatory act because she reported what she believed to be gross mismanagement of federal money.  This decision does nothing to sort out that factual dispute. Instead, the court’s decision offers a dry treatise on the ins and outs of sovereign immunity. I suspect that issue is not of great importance or interest to the typical Daily Dawg reader, so I think I’ll just leave it at that for today.  The case is Texas Education Agency v. U.S. Department of Education decided by the 5^th Circuit on March 23, 2021.  The case is at 2021 WL 1100791. 

DAWG BONE: WHO SAYS STATE EMPLOYEES NEVER GET FIRED!

Tomorrow: Some success for a whistleblower.