Tool #9 in our firm’s Toolbox is Leadership at the ARD Meeting.  When I talk about this one, I often make the point that an ARD meeting is sorta like a marriage.  This is a comparison you don’t want to take too far. There are more differences than similarities. For starters, marriages last longer than ARD meetings. Usually. 

But one major similarity is that you have multiple people but only two parties.  You don’t think there are multiple people in your marriage?  Take a moment to think about that.  I hold it that I am like Walt Whitman—I contain multitudes.  As for my wife, like most women, she contains multiples of multitudes.  We each bring a lot to the table, but ultimately it’s just the two of us who have to make decisions.  When there are two, and they are supposed to come to consensus, you have the possibility of a tie vote.  What do you do then? 

At the ARD meeting, you have the parent (or adult student) and the school. Those are the two parties.  Each must, eventually, speak with a united voice.  So you have two parties, who might end up in non-consensus. A tie vote, so to speak. 

Fortunately, the Texas Administrative Code tells us what to do.  It tells us that when you reach the end of the road, the school is supposed to do what it believes to be the right thing to do, while giving the parent the opportunity to challenge that decision.  That’s a paraphrase. The Code section is 19 T.A.C. 89.1050(f)(3). 

So the school needs a leader who can bring the non-consensus meeting to closure without rancor or belligerence, but just a clear, calm explanation of what we are going to do and what options the parent has.  There is one major exception to that general rule: a student cannot be initially placed in your special education program without parent consent. 

Just imagine if you had a similar how-to-break-the-tie rule in your marriage!  How much easier things would be!  If some of you want to try drafting such a rule, I’d love to see it.  Meanwhile, enjoy your ARD meetings and your marriage! 

DAWG BONE:  MARRIAGE.  ARD MEETING. MORE SIMILAR THAN YOU MIGHT THINK!

Tomorrow: Texas district prevails at the 5^th Circuit

S.B. 215: Senator Bettencourt has nine co-sponsors for this one: Creighton, Hancock, Hughes, Lucio, Nelson, Paxton, Seliger, West, and Zaffirini.  That adds gravitas and gives SB 215 a good shot at passage, at least out of the Senate.  It got out of the Senate last session, but died in the House.  The bill is an attack on those age old enemies of good government: Fraud!  Waste!! Abuse!!!  And it’s entirely aimed at public education.

The bill would create the office of “inspector general” at T.E.A, with the IG to be appointed by the Commissioner.  Here’s the IG’s charge:

The office is responsible for the investigation, prevention, and detection of wrongdoing and of fraud, waste, and abuse in the administration of public education by school districts, open enrollment charter schools, regional education service centers, and other local education agencies in this state.

The bill gives the IG sweeping powers, including the right to initiate investigations or reviews on its own initiative or in response to a complaint “from any source.”  The IG would be empowered to issue subpoenas, and to attend closed sessions at school board meetings, other than those involving attorney-client communication. The IG would have access to all records, even those normally shielded from public disclosure. There is one exception to that—the IG would not have access to any document or file “that is a privileged communication between an individual and the individual’s attorney.”  I find it curious that this attorney-client privilege is limited to “individuals.” What about the school district as the client? 

There are at least two other major concerns with this bill. First, it has the IG appointed by the Commissioner and reporting to the Commissioner.  So I guess we won’t see any inspections of fraud, waste and abuse at T.E.A.  It would be better if the IG reported to an elected body, such as the State Board of Education. 

Secondly, let’s consider the ancient trio of “fraud, waste, and abuse.”  We know what “abuse” is and the statute includes a definition of “fraud” limiting it to intentional deception or misrepresentation designed to produce an “unauthorized benefit” to someone.  But “waste”?  As applied to government spending? The term is wickedly subjective. 

Most of us would agree that in any large scale operation with a multi-million dollar budget there is probably some wasteful spending.  But precisely what is “wasteful”?   What’s essential to me may be wasteful to you, and vice versa.  There are people who think all extracurricular spending is wasteful. There are people who think all standardized testing is wasteful. 

There are people who think any administrative salary above a certain amount is wasteful.  I guess in theory we would all agree with that as a general proposition, but what precise dollar pushes a superintendent’s salary from “that’s pretty high” to “wasteful”?  This statute would create a high powered office with the ability to cripple political opponents with intrusive investigations.    Not a good idea.

It will be interesting to follow this one through committee hearings. I expect we may hear some things about private jets and luxury boxes at Spurs basketball games for charter school muckety mucks.   We will also hear about questionable spending by traditional school districts.   We will hear about superintendent salaries, and even more, superintendent buyouts. 

There is wasteful spending in public education, as there is in every large scale operation, public or private.  But in the traditional public schools we already have guardrails in place.  Did the board spend too much to buyout the superintendent?  There is already a law in place to exact a price for this.  Moreover, the board members are democratically elected and hold all of their meetings in the open.  There is far less oversight of privately operated for-profit charter schools.  Maybe this bill should have a more narrow target.    

Stay tuned. 

DAWG BONE: PARLOR GAME: DEFINE “WASTEFUL” GOVERNMENT SPENDING.

Tomorrow: Toolbox Tuesday!!

Many years ago I was involved in an effort to get our state administrative regulations amended so as to require special education hearing officers to dismiss any issue at a due process hearing unless the issue had first been brought up in an ARD Committee meeting.  The Agency declined to adopt such a regulation, believing that it might run afoul of federal law.  So we have no such regulation, either in state or federal law. But judges do take it into account sometimes. 

Consider Banwart v. Cedar Falls Community School District, in which the parents’ request for reimbursement for tuition and other expenses at a private, residential school was rejected.  The court repeatedly pointed out that the parents decided to place their child in this residential school without first asking the school to amend the current IEP.  Key Quotes:

School districts must be notified “of disagreements and given an opportunity to make a voluntary decision to change or alter the educational placement,” and only when “it is likely that no change would be made which would benefit [the student] (if the school district had made it clear that no change in placement would occur), would there be a denial of a [FAPE].”

However, the Banwarts did not notify Bremwood [the school the student attended] of any concerns or dissatisfaction with C.B.’s IEP, did not request changes to the IEP and did not give Bremwood the opportunity to make substantial changes.

Remember: there are only two parties at an ARD meeting—the school and the parents.  One party makes a request or a proposal and the other responds.  Both parties have the right to make requests and proposals.  As this case illustrates, the parents should make their requests for changes to the IEP before doing something drastic, such as moving the student to a private school and asking the public school to pay for it.

The case is Banwart v. Cedar Falls Community School District decided by the federal court for the Northern District of Iowa on September 24, 2020.  We found it on Special Ed Connection at 77 IDELR 126.

DAWG BONE: AS WE HAVE SAID BEFORE: BE REASONABLE!

This is an issue popping up all over.  School is open and most of the teachers are in their classrooms but some are citing the Americans with Disabilities Act and seeking to teach remotely as a “reasonable accommodation.”  Is the school required to grant such a request?  The EEOC addresses this directly in a Q and A and the answer begins with a one-sentence answer: No.  But to put that in context, you have to understand that the question presented is if an employer has to grant such a request “automatically” to “every employee with a disability who requests” it.   

Here are some other salient points in the response from the EEOC:

1.  The employer “is entitled to understand the disability-related limitation that necessitates an accommodation.”  Remember: it is disabilities that need to be accommodated, not general anxieties, fears or preferences.  The ADA requires an interactive dialogue between employer and employee that should help the employer understand the need for the accommodation.
2. Telework need not be granted as an accommodation unless the need for it is related to the employee’s disability.
3. Even if the request to telework is disability-related, if there is some other form of reasonable accommodation at the workplace, “then the employer can choose that alternative to telework.”  Note: the employer, not the employee, can choose.
4. The employer’s response to the request must take into account whether presence in the classroom for teaching is an “essential function” of the job.  That’s because “The ADA never requires an employer to eliminate an essential function as an accommodation.”
5. The fact that all employees were temporarily excused from performing an essential function (such as presence in the classroom), due to the pandemic “does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.” 
6. “These are fact-specific determinations.”

All of that boils down to: 1) consider the request and all of the usual factors that go into an ADA-based reasonable accommodation request; 2) get some legal advice to help you make this fact-specific inquiry.  Obviously an employee who is denied the accommodation requested can file a grievance over it.  I expect we will see more than a few of those.

The entire Q and A is lengthy.  Here’s the link:  https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws 

DAWG BONE: EXPECT SOME REQUESTS FOR “REASONABLE ACCOMMODATION” FOR TELEWORK. 

Tomorrow: the first step in dispute resolution…

We’re keeping an eye on the bills that have been pre-filed in advance of the 2021 legislative session.  One that caught my eye is HB 256, filed by Representative Philip Cortez, a Democrat from San Antonio.  It proposes a new section to T.E.C. 11.1513, which is already a lengthy statute spelling out what needs to be included in a school district’s employment policies. The proposed new section reads:

The employment policy must include anti-bullying measures to address bullying in the workplace, including provisions to address the bullying of a teacher by a parent. 

That seems like a good idea. Certainly our teachers, just like our students, should not be bullied. But how would this be enforced?   A parental ISS room?  Written reprimands?   Suspension from attendance at extracurricular events?

The same bill was introduced in 2019 and did not get too far.  We shall see what happens this year.  However, the best protection for teachers who are being bullied by parents is not a statement in school district policy.  The best protection is 1) the teacher’s enforcement of personal boundaries; and 2) administrative support for those boundaries.  Regardless of what the official school policies say, administrators should “have the back” of their teachers and do what they can to help teachers who are being verbally, electronically, or physically abused.

DAWG BONE: HAVE BOUNDARIES. COMMUNICATE YOUR BOUNDARIES.  ENFORCE YOUR BOUNDARIES.  

Tomorrow: COVID and the Americans with Disabilities Act…

Our firm’s day-long Toolbox Training includes a nifty little laminated card that we call The Thinking Flow Chart.  I had hoped to create one of those colorful charts with diamonds, squares, circles and arrows that would illustrate the sequence of thinking in a student discipline situation. After about three hours in a conference room, trying to outline the whole procedural mess on a white board, I gave up. Couldn’t do it. 

Instead, I created a boring little “flow chart” for the campus behavior coordinator to consider.  The Thinking Flow Chart lacks pizazz, but I do think it’s helpful.

You might think that the Flow Chart would start with Tool #1, and proceed accordingly.  Nope.  The first tool to think about is actually Tool #10: are we going to involve law enforcement?  If the student’s misconduct amounted to a violation of our criminal laws, the referral to law enforcement should be made promptly. So Tool #10 (calling in the cops) should be considered promptly. 

Another reason to consider Tool #10 promptly is that it can be used unilaterally by the principal. Making a report to law enforcement does not require an ARDC meeting or consultation with teaching staff. It’s an administrative responsibility that can be executed by the appropriate administrator. 

Tool #5 is next on the list, for some of the same reasons. Tool #5 involves invoking the “special circumstances” provisions in the law.  This is the principal’s tool. Without approval of anyone else, the principal has the authority to order the removal of a student to an IAES (Interim Alternative Educational Setting) for up to 45 school days if the student has engaged in certain types of misconduct involving drugs, weapons, or the infliction of serious bodily injury.   The principal who uses Tool #5 needs to call for an ARDC meeting to consider what IAES to use, but the order of removal can take place immediately, and unilaterally.

We go from there on the Thinking Flow Chart to the other procedures and the Tools that accompany them. 

We are booking Toolbox Trainings for next calendar year. Let me know if you are interested.

DAWG BONE: WE DON’T TELL YOU WHAT TO THINK…JUST THE SEQUENCE OF YOUR THOUGHTS.  

Tomorrow: Legislative watch….

Misunderstanding the law can be costly.  A school district in California is facing liability for two years of a student’s private school tuition due to what appears to be a simple misunderstanding of the law pertaining to Child Find under IDEA.

The basic rule is that the district where the child lives is responsible for finding the child.  “Finding” under IDEA’s Child Find requirement is not as simple as finding in a game of hide and seek.  Child Find under IDEA means that the school district “identified, located, and evaluated” the child.  This applies to all students who reside in the district, even if they attend school elsewhere.

In this case the parents placed the child in a private, religious school for the 2014-15 school year.  In the spring of 2015 the mother sent a letter to the Bellflower USD where the family still lived.  The letter asked for an IEP meeting and an IEP for the 2015-16 school year. The student still lived in Bellflower but the private school was located in a neighboring district. The district refused to hold the meeting, believing that it was not legally responsible for doing so until the child re-enrolled in the district.  

That was a mistake.  I think when schools make this particular mistake it’s based on the belief that the parent has no intention of returning to the local public school. That was the district’s perception in this case, but the court noted that the facts did not support that view.  “In fact,” the court wrote, “K.L.’s parents’ letters to BUSD in 2015 and 2016 indicate they were still interested in a public school placement for K.L.”  The court noted “multiple requests” from the parents for an evaluation, an IEP Team meeting and an offer of a Free Appropriate Public Education.  The school’s failure to do this denied FAPE and meaningful parent participation.  The parents were entitled to tuition reimbursement for two years.   The religious nature of the private school did not, in the court’s view, render it an inappropriate placement.

Some of the confusion over this issue springs from a federal regulation that specifically applies to private school students: 34 CFR 300.131. That regulation imposes the Child Find duty on the district where the private school is located.  However, it does not relieve the resident district of its responsibility.  Thus there are some students who are supposed to be “found” twice—by the district where they live, and by the district where they attend a private school.   The “finding” is for different purposes.  The resident district has the duty to provide FAPE. The district where the private school is located has the duty to determine if the student is eligible for “proportioinate share” services.  The Commentary to the regulation makes this clear:

We recognize that there could be times when parents request that their parentally-placed child be evaluated by different LEAs if the child is attending a private school that is not in the LEA in which they reside. 

The Commentary goes on to say that “we do not encourage this practice,” but also “there is nothing in this part [of the regulations] that would prohibit” it. 

The case is Bellflower USD v. Lua, decided by the 9^th Circuit in an unpublished opinion on October 26, 2020.  We found it on Special Ed Connection at 77 IDELR 181.

DAWG BONE: FIND THOSE KIDS WHO LIVE IN YOUR DISTRICT, EVEN IF THEY ATTEND SCHOOL OUT-OF-DISTRICT.

Tomorrow: Toolbox Tuesday!!

I learned quite a bit about The Poet X by reading the case of Coble v. Lake Norman Charter School.  This book, by Elizabeth Acevedo, won the 2018 National Book Award for Young Adults.  The book is about a 15-year old girl in a poor neighborhood in Harlem.  The court sums up the story like this:

The self-described “brown and big and angry” Dominican girl furiously confronts catcalling boys, chafes under her Catholic parents’ restrictive rules, endures verbal and physical abuse from her mother, and both adores and resents her “genius” twin brother, who seems to be everything she’s not.

Lake Norman Charter School included the book in the required reading curriculum for 9^th grade.  Not surprisingly, some parents did not approve.  The school allowed any parent to have their child opted out of reading this book. If they did that, they would get an alternative, equivalent assignment.  But the Cobles wanted the book removed from the curriculum altogether, and so they took the matter to court.

The first step was to seek a Temporary Restraining Order. This is a high hill to climb, and the Cobles did not make it to the top.  The court denied the request for the TRO, noting in particular that it was not likely that the parents would succeed on the merits. 

The young girl at the center of the story does express some negativity, even hostility, toward religion.  The court points out that this is not so surprising, given that “her mother quotes scripture to her while abusing her.”  Moreover, the court pointed out that “even figures in the Bible like Job doubted God’s goodness.” In its legal analysis, the court points out that the school merely included this book in the curriculum.  It was not endorsing the thoughts expressed by this fictional character:

To include the work in the curriculum, without further evidence of the school’s endorsement, no more communicates governmental endorsement of the author’s or characters’ religious views than to assign Paradise Lost, Pilgrim’s Progress, or The Divine Comedy conveys endorsements or approval of Milton’s, Bunyan’s, or Dante’s Christianity.

The book sounded just right for 9^th graders to me.  In my day it was The Catcher in the Rye.  Now it’s Poet X who wonders if “Jesus is like a friend who texts too much.”  The court summed it up:

The passages identified by Plaintiffs are references to religion in a work depicting a poor, Afro-Latina, adolescent’s painful process of coming of age. These passages are less theology than anthropology, less commentary on religion than comment prompted by the frustrating confrontation of adolescents with parents, sexual desire, religious doubt, and loneliness. 

The court denied the TRO on November 6, 2020, and the decision can be found at 2020 WL 6545871.

DAWG BONE: JUST FOR THE RECORD: JESUS DOES NOT TEXT TOO MUCH.

Loyal Readers of the Daily Dawg are well aware of the OSEP investigation of the Lone Star State that resulted in a Corrective Action Plan (CAP). This all traces back to the series of articles in the Houston Chronicle alleging that Texas had intentionally denied special education services to students with disabilities.  OSEP conducted an investigation, found Texas out of compliance with Child Find responsibilities, and required a CAP.

In 2019, OSEP monitored Texas for compliance, with review of documents and interviews with educators and other stakeholders.  On October 5, 2020, T.E.A. wrote to OSEP seeking to get approval of its progress on the CAP.  T.E.A. asked for a finding that the state was now “compliant.”  On October 19, 2020 OSEP wrote back and said: no.  In the letter, OSEP cited 79 stakeholder inquiries which broke down as follows: 47 about FAPE, 10 on Child Find, 11 on dyslexia, 11 on T.E.A.

OSEP highlighted a great deal of confusion about how kids with dyslexia are supposed to be served.   It’s not surprising that there is confusion.  There is confusion about dyslexia because we are trying to apply standards from three different laws that overlap.  There is IDEA, which has its definitions of disability categories.  Those categories include Specific Learning Disability, and dyslexia is listed as a condition that can fit that category.  So a student with dyslexia might be IDEA-eligible. 

Then there is Section 504, which avoids categories but covers any physical or mental impairment that substantially limits a major life activity.  Reading is a major life activity.  Dyslexia impairs reading, often “substantially.”  So a student with dyslexia might be 504-eligible. 

Then you have our state laws on dyslexia, which effectively incorporate and give the force of law to the Dyslexia Handbook where we try to sort all this out.  Confusion is inevitable in a situation like this.

However, the Child Find responsibility under IDEA is clear, and can only be satisfied with a referral for an evaluation for IDEA eligibility. This is the point that OSEP has made repeatedly.  Response to Intervention is a good thing, but cannot justify delaying or denying an IDEA evaluation when one is called for. Section 504 has its place, but may not be a safe haven when the student is suspected of having a disability that would entitle the student to services under the superior program—IDEA.

Let’s keep an eye on T.E.A.’s response to this, and keep on keeping on.

DAWG BONE: IF WE SUSPECT IDEA ELIGIBILITY, THE REFERRAL SHOULD BE MADE.

Tomorrow: this generation’s Catcher in the Rye?

It’s important for school districts to have copies of divorce decrees and other legal documents that spell out the rights of parents after they split.  A school district in Ohio was dealing with parents who disagreed with each other over the education of their son.  Mom gave consent for the district to provide special education services to the boy due to his emotional disturbance.  Dad disagreed, and took his complaint all the way to the 6^th Circuit Court of Appeals.  In a short opinion, the Circuit Court pointed out that while the dad was the biological parent, he was no longer “the parent” for purposes of IDEA. 

IDEA anticipates situations in which there may be multiple people who meet the statute’s definition of “parent.”  It could be a grandparent.  It could be a stepparent. It could be someone else. So IDEA sets out a hierarchy of those claiming the title of “parent.”  You might think that the biological or adoptive parents are at the top of the heap. They are, but there is an exception: if the biological or adoptive parent “does not have legal authority to make educational decisions for the child.”

That was the case here. The Domestic Relations Court had given the mom the exclusive power to make educational decisions for the child.  Dad had no authority to pursue this matter.  It’s a good thing that the district had the court order. 

The case is Chukwuani v. Solon City School District, decided by the 6^th Circuit on April 21, 2020. We found it in Special Ed Connection at 76 IDELR 147. 

DAWG BONE: KEEP A COPY OF THE DIVORCE DECREE.  MAKE SURE YOU HAVE THE CURRENT ONE.

Tomorrow: Child Find and dyslexia….revisited.