We highlight The Toolbox on Tuesdays around here—our firm’s all day training program about the discipline of students with disabilities.  Today I want to tell you about a case that was not about discipline, but has implications for all manner of experts who make recommendations to schools. This would include those who advise what should or should not go into a student’s BIP, for example. 

The case was recently decided by the 5^th Circuit in favor of the school district.  Yesterday we told you how the case illustrates the “unwritten rule” in special education litigation.  Today, we focus on how to assess conflicting recommendations from experts. 

The issue was dyslexia. The ARD Committee got conflicting recommendations from experts about how to serve a student with dyslexia. As you know, there are many divergent expert opinions about that.  How is the ARD Committee to decide? 

This case first went to a special education hearing officer who put more stock in the testimony of the school district’s Assessment Facilitator than the testimony of Dr. Morrison, the independent expert retained by the parent. The federal district court did the same, and now the Circuit Court has concluded that “the district court did not err in discrediting Dr. Morrison’s testimony.” 

Why would the court “discredit” testimony from a person with training, experience and credentials as an expert?  Here’s why:

Dr. Morrison testified that she had no training in dyslexia instruction or intervention, never reviewed [the student’s] initial dyslexia diagnosis records, and never reviewed the instructional strategies used in Northwest’s dyslexia program.  She also testified that she had never taught or directly studied the LiPS program. [That was one of the programs she recommended.]

Considering Dr. Morrison’s lack of experience in the dyslexia field, failure to review [the student’s] initial dyslexia diagnosis records, and inability to articulate deficiencies in Northwest’s dyslexia program, coupled with Ms. Beagle’s testimony regarding Northwest’s compliance with Texas standards for dyslexia instruction, the district court did not err in discrediting Dr. Morrison’s testimony. 

(Please note that “Ms. Beagle” was the district’s Assessment Facilitator and is in no way related to the Law Dawg.) 

Now, how did the hearing officer come to that conclusion about the comparative value of input from experts?  Someone did a good job of cross-examination.  You can do that at an ARD Committee meeting.  In fact, you can do that in advance of an ARD Committee meeting.  This type of cross-examination is not ugly, belligerent, or designed to trick someone into lying.  It’s just a matter of examining the foundation for the expert’s opinion. 

The case is P.P. v. Northwest ISD, decided by the 5^th Circuit on December 14, 2020.  I’m pleased to let you know that Meredith Walker from the Irving office of the Walsh Gallegos firm handled this appeal on behalf of the district. 

DAWG BONE: AN INCREASINGLY ESSENTIAL SKILL: MILD CROSS-EXAMINATION.

Tomorrow: Preview of coming attractions!!

Hey Readers! We’re Zooming with the Dawg this Friday at 10! This is a freebie for subscribers. If you are not yet registered, just send an email to info@wabsa.com and we’ll get you signed up.  Hope to see you there!

Today we revisit the “unwritten rule” in special education litigation.  Ruling in favor of Northwest ISD, the 5^th Circuit offered this observation about the comparative reasonableness of the parties:

The record confirms that [the parents] rejected several remedial services offered by Northwest, including a dyslexia class, individualized tutoring, and further evaluations.  Additionally, [the parents] stymied Northwest’s efforts to correct deficiencies in P.P.’s initial IEPs by refusing to meet with the ARD Committee while the IEE was pending and refusing to adopt agreed-upon revisions in the proposed May 2017 IEP.

The lawyer for the parents argued that whenever the school district fails to fulfill one of the legal obligations under IDEA, the parent is always and automatically entitled to compensatory education.  Nope.  It doesn’t work that way.   This is not a legal game of “gotcha.”  The court cited a SCOTUS ruling that said “equitable considerations are relevant” in a situation like this.  “Equitable considerations” include a comparative analysis of the reasonableness of the parties as they worked together. IDEA assumes that parents and school staff will collaborate and work cooperatively toward the goal they hold in common: a good education for the student.  It’s this comparative analysis of reasonableness that I call “the unwritten rule.” 

This is a good illustration of how the “unwritten rule” works.  It is almost always a mistake for parents to turn down the district’s offer to do an evaluation or to hold an ARD. 

The case is P.P. v. Northwest ISD, decided by the 5^th Circuit on December 14, 2020.  I’m pleased to let you know that Meredith Walker from the Irving office of the Walsh Gallegos firm handled this appeal on behalf of the district. 

DAWG BONE: SO BE NICE.  AND DOCUMENT YOUR NICENESS.

Tomorrow: One more point about this case.

The district’s failure to complete a promised evaluation was the basis for the court’s conclusion that the district denied FAPE.  The opinion underscores the importance of evaluation data.  The district had promised to do an evaluation of the student’s need for assistive technology.  Due to a variety of circumstances, an entire school year elapsed before the evaluation was completed. On that basis alone, the court upheld the hearing officer’s determination that FAPE had been denied. Key Quotes:

But as the Hearing Officer rightly observed, “satisfaction of the student’s right to a FAPE requires an IEP based on data obtained through evaluations and progress monitoring.”

Having deprived itself, the Family, the Hearing Officer, and this Court of this promised yardstick, the District cannot maintain that it measured up. 

Evaluation data is the rudder that steers the ship in special education matters.  All of the ARDC’s decisions should be based on solid, relevant, accurate and timely observations and evaluations.  As this case shows us, failure to keep up with promises of an evaluation can be costly. It’s Downingtown Area School District v. G.W., decided by the federal court for the Eastern District of  Pennsylvania on October 8, 2020.  We found it on Special Ed Connection at 77 IDELR 155. 

DAWG BONE:  EVALUATION DATA: THE RUDDER THAT STEERS THE SHIP.

HB 589 seems well intentioned.  It would require schools to adopt a policy “that requires a school counselor to spend at least 80% of the school counselor’s work time on duties that are components of a counseling program developed under T.E.C. 33.005.”  Sounds good? It’s all about letting the counselors be counselors, rather than test administrators.   Just to be clear about that, the bill goes on to say that “time spent in administering assessment instruments or providing other assistance in connection with assessment instruments, except time spent in interpreting data from assessment instruments, is not considered time spent on counseling.”  There is an exception from the 80% rule for districts in which the board determines that “staffing needs” require an exception. 

Similar bills were introduced last session. The Senate passed its version, but the one in the House died before passage.  This bill is well intentioned, and designed to address the critical need for schools to address the mental health of students with properly qualified staff.  Let the counselors counsel!  But it’s the wrong solution coming from the wrong people.

The law is a blunt instrument.  It’s not the best way to address allocation of staff time.  We have administrators with that responsibility who have a much better grasp on how staff time should be allocated.  This bill, if enacted into law, would create paperwork and produce employee grievances.  It would limit the authority of the principal to assign duties to staff.  It would focus energy and time on process rather than results.

There is a simpler solution, and it’s one that is in the wheelhouse of our legislators. They could allocate more money for school counselors, social workers, psychologists and others who can address student mental health.   If they are concerned that school counselor time is being wasted on STAAR, they could waive STAAR, at least for this year of heightened student, parent, and teacher stress. 

DAWG BONE: KEEP AN EYE ON HB 589.

Tomorrow: the rudder that steers the ship….

Yesterday we told you about the Pennsylvania case in which a district convinced the hearing officer and the court that moving a student to a more restrictive environment was a good idea.  The parent’s lawyer offered the testimony of two expert witnesses, but the court gave them little credence.  Here’s why:  

First, the decision noted that Dr. Harty “presumed that full inclusion is appropriate for every child regardless of unique individual need.”  Second, the decision noted that Dr. Harty’s conclusions about J.W.’s reading abilities were based on a single assessment conducted over a two-hour period…..Third, the decision noted that Dr. Harty did not adequately explain why her assessment of J.W.’s reading ability differed so significantly from the vast amount of evidence suggesting that J.W.’s reading ability was below benchmarks for his age and grade level.  

The law favors serving students in the mainstream setting, but above all other considerations the law requires an individual analysis of each student’s proper placement.  The court noted that “Dr. Harty’s opinion was afforded less weight because it had insufficiently considered J.W.’s individual needs…”

The other expert testified about assistive technology needs.  The man knew the field, but not the student:

The decision acknowledged that Lytton [the A.T. expert witness] had expertise in the field of assistive technology, but found that his opinion should be afforded less weight because he did not interview J.W.’s educator or observe J.W. in the classroom.

Educators should keep these factors in mind when parents bring experts to ARD meetings or present evaluations with recommendations for the child’s education.  Having credentials and experience is good, but not enough. How well does the expert know this student?  The leader of the ARD meeting should be prepared to engage in mild cross-examination.  How much time have you spent with the student? Have you talked to the teachers who are currently working with the student?  Have you observed the student in the school setting?  Are you familiar with the current IEP? The progress reports?

If it ends up in court your lawyer is going to ask all those questions.  You can do the same at the ARD meeting. 

The case is Wishard v. Waynesboro Area School District, decided by the federal court for the Western District of Pennsylvania on August 21, 2020.     We found it on Special Ed Connection at 77 IDELR 65.

DAWG BONE:  DON’T GET CARRIED AWAY.   KEEP IT AT MILD CROSS EXAMINATION.

Tomorrow: A bill to watch….

Tool #3 in our firm’s Toolbox is an Educational Change of Placement Without Parental Agreement. The Toolbox is about serving students appropriately when they engage in inappropriate behavior. So we speak of Tool #3 most often in the context of a student whose disruptive behavior warrants a change of placement.  But sometimes it’s as much about academics as behavior, or the two are intertwined. 

A district in Pennsylvania used Tool #3 to move a student to a more restrictive environment. The parent objected, took the case to a hearing officer and then to a federal court.  The court upheld the ruling of the hearing officer in favor of the change of placement to a more restrictive setting. The court held that the district based this on years’ of data showing that 1) the student had struggled to perform in the mainstream classroom; 2) the district provided an array of supplementary aids and services; and 3) the student’s presence in the general classroom led to greater distraction for him and others.  The main point was the lack of academic progress.  Key Quote:

…the district determined that J.W. should spend less time in a regular education classroom only after years of data showed that he struggled to make progress in such an environment and that his academic achievement continued to lag further and further behind that of his peers.

Notice how the district proved the three essential facts in a Tool #3 case: 1) this is not working; 2) we’ve tried; and 3) what we are proposing will be better for the student.  It’s Wishard v. Waynesboro Area School District, decided by the federal court for the Western District of Pennsylvania on August 21, 2020.     We found it on Special Ed Connection at 77 IDELR 65.

One more aspect of this case is Dawg-worthy.  Tune in tomorrow. 

DAWG BONE: TOOL #3 REQUIRES CAREFUL THOUGHT AND LEGAL ADVICE.

Tomorrow: Why the court disregarded the expert’s input….

We can now view 2020 with 20/20 hindsight!  Let us hope that this new year will bring an end to this horrific pandemic and a return to family gatherings in person, full stadiums for our sports, movie theaters, open restaurants, and children attending public schools in person, every day. 

Let’s also hope that the past year will serve as a reminder of the unique place of public education in our country.  There are well financed and powerful interests that seek to treat education of the public as a commodity to be handled through the private market.  There are those who believe that education would be better for our children if the schools were run by private entities, forced to compete with each other for every dollar.  They tout parental choice and the magic of the free market as the panacea for all that is wrong with our schools. 

After all, they point out, competition and the free market has led to better cars, grocery stores, forms of entertainment, electronic gizmos, airline travel, etc.  They are right about that.  Free market economies and robust competition benefit consumers.  But here’s the catch: free markets also create winners and losers.  So if we turn our education system entirely over to the private, free market, we will see winners and losers.  We tolerate winners and losers among airlines, grocery stores and software companies.  But is that acceptable when we are talking about the education of our children?  What percentage of losers are we willing to accept?

It’s up to us who understand and appreciate our public school system to remind our fellow citizens that education is not a commodity, like laundry detergent, to be purchased by individual choice.  Our country was founded on the radical notion that people could govern themselves….but only if the people were properly educated.  Public education is the foundation stone of our democracy.  Therefore it is our responsibility to support it, nurture it, value it, and pay for it.  And of course, none of that means that public education is above criticism.  We know there are problems, but junking the whole system is not the solution.

We will be spending some time in the Daily Dawg developing this theme this year.  This will include some interesting American history. I’m learning that public education was very much on the minds of our founders.  I will be sharing what I’m learning from time to time.

DAWG BONE: WE CAN’T HAVE A DEMOCRACY WITHOUT AN EDUCATED PUBLIC. SO LET’S NOT TRY.

Tomorrow: Toolbox Tuesday!!

The bricklayer worked steadily in the summer heat.  Mortar. Brick.  Scraper.  Plane.  Mortar. Brick.  Scraper. Plane.  It was painstaking and physically taxing work.  If at the end of the day you asked what had been accomplished, the worker might say, “I laid bricks.  Brick by brick by brick.” 

Another laborer doing the same work might answer differently: “I built a wall today.   One brick at a time.  Brick by brick by brick.”

Ask a third worker and you might hear a different response: “I helped to build a cathedral that will soar into the heavens and be a place of peace and community for generations to come.  This place will celebrate births.  It will honor the lives of those who have passed.  It will see many weddings.  My part was to finish this wall. I did it one brick at a time.  Brick by brick by brick.”

I hope the Loyal Readers of the Daily Dawg see themselves as the cathedral builders that they are.  You are not just laying bricks out there.  This crazy year has showed us the indispensable value of our public schools and of the people who make them work.  There is nothing our society does that is more important than the transmission of knowledge, skills and values from one generation to the next.  That’s what you are doing, day by day, student by student. Brick by brick by brick. 

So congratulate yourself on making it to the end of 2020. Take a deep breath.  Then let’s all go home for awhile.  Let’s be with family and friends. Let’s rest.  Let’s give thanks for all that we have survived. 

The Daily Dawg will bark again on Monday, January 4^th.   

DAWG BONE: MERRY CHRISTMAS!  HAPPY NEW YEAR!!

If SB 89 passes it will require school districts to create a new document describing how COVID-19 has affected students with disabilities.  The document would require answers to four questions:

1.  Was the first evaluation of the child’s eligibility for special education done during the 2019-20 or 2020-21 school years?  If so, was the evaluation completed on time? 
   
2. Was the child’s initial IEP developed during the 2019-20 or 2020-21 school years?  If so, was it completed on time?
   
3. Were services called for by the child’s IEP “interrupted, reduced, delayed, suspended, or discontinued” during the 2019-20 or 2020-21 school years?
   
4. Based on the answers to these first three questions, are “compensatory educational services under Subchapter C” appropriate?

Notice that the first two questions are only focusing on those students who were new to special education in the two COVID years (let’s hope there will only be two COVID years).  But the third question is a doozy.  It applies to every student who has an IEP, and I think we all know that the answer to the question it poses, for just about any child, is “yes.” Consider the verbs: “interrupted, reduced, delayed, suspended, or discontinued.”  Is there any child whose services were not, at the least, interrupted? 

The reference to “compensatory” services in the 4^th question is not using that term as special ed types normally do.  In IDEA-land we speak of “compensatory services” as those required to make up for a failure to provide a FAPE (Free Appropriate Public Education).  However, S.B. 89 refers to “compensatory” services under Subchapter C of Chapter 29 of the Education Code.  That takes us to Texas Education Code 29.081, which calls for “compensatory, intensive, or accelerated instructional services…that enable the students to be performing at grade level at the conclusion of the next regular school term.”

“Compensatory services” as S.B. 89 uses the term are aimed at the general education students who have fared poorly on STAAR and EOC tests and need extra help to perform “at grade level at the conclusion of the next regular school term.”  Thus compensatory services, under the T.E.C.,  have a goal, but it’s hardly “individualized” as an IEP goal would be.  Instead, the goal is grade level performance. Period.

This bill would make more sense if it were aimed at the general student population.  It’s convenient to target a bill like this at students with IEPs, but it misses the mark.  All students have been adversely affected by COVID.  Services for just about every student in Texas have been “interrupted, reduced, delayed, suspended, or discontinued.”  This bill does not require any assessment of the educational harm those students have suffered, and does not call for any “compensatory services” for them. Instead, it targets only a small percentage of our students.  Moreover, it imposes burdens on educators in the special education department that are unnecessary.  Consider: the duty to provide FAPE, to monitor for progress, to assess whatever damage COVID has wrought, and to offer services to make up for a failure to provide FAPE is already required by federal law.  Special educators don’t need state law to require them to do what federal law already requires.  They also don’t need state law that requires redundant paperwork.

On the other hand, there is no state or federal mandate to examine the damage done to the 90% of our students who do not have IEPs.  There is no mandate for compensatory services for the general education students who have suffered harm. What about that?

DAWG BONE: S.B. 89: COMPENSATORY SERVICES FOR STUDENTS WITH IEPs.  KEEP AN EYE ON IT.

Tomorrow: Merry Christmas!!

According to the 5^th Circuit, the plaintiff made two procedural errors in the suit alleging disability discrimination.  The plaintiff, a student with a disability acting through his parent, 1) missed the deadline for seeking a special education due process hearing which meant that he 2) failed to “exhaust his administrative remedies.”   If the lawsuit is mostly about an alleged denial of a FAPE (Free Appropriate Public Education) you have to go through the special education due process system first, and you have to do it on time. Then you can take your case to court.

The lawyer for the plaintiff tried to get around this by arguing that his lawsuit was not really about FAPE, but the court disagreed.  The court pointed out that the plaintiff had started out with a request for a due process hearing, albeit a tardy one.  This was “a strong indicator that the gravamen of his complaint is in the denial of a FAPE.” 

It takes good lawyering to make sure that the court notices these procedural errors and rules on them.  I’m pleased to let you know that Meredith Walker from our firm’s Irving Office was the lead attorney on this case, with strong support from our entire litigation team, including Houston attorney Morgan Beam. 

The case is T.B. v. Northwest ISD, decided by the 5^th Circuit on November 23, 2020. 

DAWG BONE: GOOD LAWYERS DON’T LET PROCEDURAL ERRORS SLIP BY.

Tomorrow: Legislative watch…