Our firm’s Toolbox Training is designed to help you serve students with disabilities who engage in disruptive and/or violent behavior. The Toolbox is based on traditional forms of student discipline, but is completely compatible with restorative practices.  I have advocated for the use of restorative practices for many years, and thus was pleased to see HB 62—a bill pre-filed for consideration at the 2021 legislative session by Representative James Talarico. 

The bill would require that restorative practices be available as an alternative to suspension.    Current law (T.E.C. 37.0013) says that you “may” offer an alternative to suspension for students below grade three.  HB 62 makes this mandatory (“shall”) and expands it to include all students, not just those below grade three. 

This bill would not prohibit short term suspensions, but rather, require that there be an alternative available.  Here are some other key components of this bill:

1.  It specifies that the alternative must be available for all suspensions, including those that involve violation of a criminal statute;
2. It requires that the alternative program be “culturally responsive;”
3. It requires “restorative justice practices” and defines that term to mean “practices that emphasize repairing harm caused by a person’s conduct to another person or to the community.  The term includes a victim-initiated conference, a family group conference, a restorative circle, a community conference, or any other victim-centered practice.”
4. It creates a “restorative justice coordinating council” which would have the authority to approve service providers that can assist with the development and implementation of restorative justice programs.

DAWG BONE: HB 62—KEEP AN EYE ON IT.

Tomorrow: apparently being a parent is not always apparent.

Welcome back, Loyal Daily Dawg Readers!!  I hope Thanksgiving was restful, giving you the break you need before this three-week sprint to the next holiday. 

There were predictions of a lot of family strife this Thanksgiving, mirroring the polarization in our country.  Of course there have always been arguments among family members at Thanksgiving, but in the past, they focused on fairly safe topics.  A long, long time ago there was a football game on Thanksgiving Day featuring two major Texas universities. Does anyone else remember that? It was a tradition that (we thought) would go on forever.  Now that’s gone, and we look back nostalgically at the days when the biggest argument was Horns v. Aggies.

And of course there is the perennial: Pumpkin v. Pecan.

Usually it was not too hard to maintain courtesy and civility when we argued over these things.  There was an underlying sense of good humor and family unity.  But this year….oh boy. 

So I suspect that some of you tiptoed past sensitive topics as you buttered the biscuits and scooped up the gravy.  You probably wanted to avoid any verbal outbursts that were “rude,” “uncivil,” “harassing,” or “offensive.” 

That’s exactly what UT-Austin tries to do.  But a group of students, backed by a nonprofit advocacy organization called Speech First, Inc. sued UT, alleging that these efforts to enforce niceness violated the First Amendment.  

The 5^th Circuit did not hold that the University’s speech codes violated the 1^st Amendment, but they sure threw a lot of shade over them. The court was not dealing with the merits of the lawsuit, but rather, the preliminary issue of whether or not the plaintiffs had “standing” to pursue this matter. The lower court ruled that the plaintiffs did not suffer any particular injury, and thus lacked the legal authority to pursue litigation.  Now, the 5^th Circuit has reversed that. Thus the case will proceed to the merits, if it does not settle. 

The court’s opinion is a strong reminder that our Constitution often protects speech that is “rude” “uncivil” and “offensive.”  It’s a little different, however, in K-12 schools where teaching young children the proper way to express themselves and interact with others is a crucial component of the school’s mission.  I don’t think this decision will cast doubt on public school anti-bullying policies or other efforts to enforce a basic level of courtesy.  However, it’s abundantly clear that students who express views on issues of public concern that some people find “offensive” are protected by the Constitution.  Mary Beth Tinker established that a long time ago. 

This one is Speech First, Inc. v. Fenves, decided by the 5^th Circuit on October 28, 2020.  We found it at 2020 WL 6305819.

DAWG BONE: YOU MAY HAVE A CONSTITUTIONAL RIGHT TO BE RUDE, BUT IT’S STILL NOT NICE.  BE NICE.

Tomorrow: Toolbox Tuesday!!

How do you like your deli meat sliced? I always ask for it to be “thin sliced.”  The Black Forest Ham just tastes better that way.

I’m cultivating the habit of “thin slicing” my sense of gratitude also.  This means that I am consciously thinking of and openly expressing gratitude for the thousands of little things and brief moments that so often pass by without notice.  So rather than the usual: (grateful for good health, family, a sunny day, etc.), I try to get more specific.

That one bird just outside my window.

The absence right now of obnoxious leaf blowers disturbing the silence.

The high note that Diana Ross hits in Baby Love.

The absence of pain in my knees when I go up and down stairs.

Spotify.

That time when Vince Young crossed the goal line against USC.

That my mom was a teacher.

Steve Kornacki.

The way some dogs wag their entire bodies.

That toddler reaching up to hold her daddy’s hand.

The vocabulary I learn from watching British crime shows.

Speaking of British shows: Ted Lasso.

Speaking of vocabulary: dictionaries.

Self-checkout at the HEB.

How the people who work at Home Depot don’t mention what an idiot I am until after I leave the store.

The Daily Dawg will be taking a break next week.   We will resume on November 30^th.  I know most of your schools will be closed next week, and so I wish you a time of rest and renovation.  We sure need it!  And let’s remember: despite all that has happened in 2020, we have much to be grateful for.

DAWG BONE: HAPPY THANKSGIVING!

Before you enter into a contract with a vendor that will be accessing student data you might want to check out www.studentprivacypledge.org.  The Student Privacy Pledge is a commitment to maintain confidentiality and otherwise guard the privacy of students and parents.  According to the website, 445 companies that work with schools have signed this pledge.  Requiring your vendors to sign The Pledge, along with having strong data privacy and confidentiality provisions in your contracts go a long way toward demonstrating your school district’s commitment to compliance with FERPA and other privacy laws.

If you have questions about this, or how it might be incorporated into contracts, please call one of the lawyers in our firm. We know about this stuff, and will be happy to help!

DAWG BONE: I STILL THINK “FERPA” IS THE NAME OF SOME LITTLE GIRL IN EAST TEXAS.

Tomorrow: How grateful are you?

A student in Austin ISD sued the district alleging that she was harassed by other students based on her race while school officials turned a blind eye.  The court did a painstaking review of numerous specific incidents and ruled in favor of the district with regard to 12 of them. In each of those instances, there was evidence that the district took some action to address the alleged harassment. Thus the student would not be able to show the “deliberate indifference” necessary to prevail.  However, there were three other incidents for which the record did not reflect a district response, and so the court allowed the case to proceed with regard to those three incidents. 

It's another part of this case that I want to bring to your attention. The plaintiff alleged that the district failed to train its staff properly. This type of claim is often made.  The argument is that the district displayed “deliberate indifference” by failing to train its staff about legal issues that were sure to come up—such as allegations of harassment based on race, sex, disability or religion.  In this case, however, AISD marshaled sufficient evidence to convince the court that this claim lacked merit:

Superintendent Cruz, AISD’s principals, and AISD’s central staff “had pretty extensive training and discussions” related to “training on issues surrounding race, race relations [and] bias.”  Cruz further elaborated that AISD’s principals and vice-principals receive race-based discrimination and investigation training, as well as training on how to foster a “positive culture” that includes “cultural proficiency and inclusiveness.”  Besides principal training, AISD has its principals train their staff in “all things pertaining to student safety,” including training related to “discrimination based upon race or nationality.” 

As this case illustrates, that kind of training is important. The failure to provide it can have legal consequences. 

The case is Sneed v. Austin ISD, decided by the federal court for the Western District of Texas on September 29, 2020.  We found it at 2020 WL 5951508.

DAWG BONE:  TRAINING MATTERS. 

Tomorrow: Do you know about the Student Privacy Pledge?

Our firm’s Toolbox Training is all about how to serve students with disabilities who present challenging behaviors.  The goal is to serve each student appropriately while maintaining a safe and orderly school environment.  When we provide the training we often emphasize the importance of documentation.  Obviously it’s important to have all of the legally required paperwork filled out properly. Beyond that, though, good documentation from the school reflects the Three C’s: it shows how the school has been CREATIVE, CARING and COMMUNICATIVE. 

CREATIVE: Your documentation should make note of efforts to seek assistance from knowledgeable sources both in the district and outside the district. Did you provide or seek training?  Did you reach out to the Service Center, or to a local university for assistance in how to serve the student?  Did you brainstorm with the staff and with the parents?  Dates and times should be noted to make it clear that the district was searching for creative approaches.

CARING: The bromide that all of you have heard is “They don’t care how much you know until they know how much you care.”  I put that in the category of “trite but true.”  Your documentation, including emails and texts, should never lose sight of the fact that we are seeking to serve an important student.  To say “we care about your child” is not what this is about.  Anyone can say that.  In fact, everyone does say that. More significant is the timeliness and courtesy of your responses to parental requests. And your responses to parent complaints.  A caring educator demonstrates an interest in hearing and understanding before responding.

COMMUNICATIVE: The 5^th Circuit measures FAPE with a four-part test, one part of which is about collaboration and communication among key stakeholders.   Your documentation should reflect your communications internally and externally.  We don’t keep secrets from the parents. We recognize and honor their legal right to be fully informed of the school activities of their child.  Our communication should be, as much as possible, jargon-free and easily understood. 

DAWG BONE: CREATIVE, CARING AND COMMUNICATIVE. THAT’S US!

Tomorrow: How important is training?

WE’RE ZOOMING WITH THE DAWG THIS FRIDAY AT 10! BE THERE!!

When court cases involve long hair, football, and promises to God, how can the court avoid all of those juicy issues and go off on some boring procedural tangent?  Sigh.  Disappointing, but that’s what we have in Gonzales v. Mathis ISD. 

The parents made a promise to God that they would leave a lock of hair on each of their two sons uncut.  This promise was in exchange for God’s protection and care when one of the boys had a potentially life-threatening illness. God came through on this one, and so the parents and their sons took the “promesa” very seriously. It was a sincere religious commitment.  However, the long hair violated the school dress code for extracurricular participation, and so the school barred the boys from participating.

The parents filed suit alleging that the district had violated the Texas Religious Freedom Restoration Act (TRFRA).  The district court held that the parents were likely to prevail on this case and so it issued an injunction allowing the boys to play football and participate in other UIL sanctioned activities while the suit was pending.  The district appealed to the 5^th Circuit and that’s where the procedural issues came to the fore. 

It turns out that you can’t just waltz on down to the courthouse and file suit under TRFRA.  You have to give the school a “heads up”--notice 60 days in advance.  That provision is designed to give the governmental agency some time to address the concern and avoid litigation.  There is an exception: if the government is about to take “imminent” action that “threatens to substantially burden the person’s free exercise of religion” and the person was not informed of this, or otherwise knew about it, in time to provide the notice.

In December of 2017 the district informed the family that both boys were barred from all extracurricular activities, effective immediately.  The parents promptly filed suit without giving the 60-day notice.  However, the suit was originally filed on behalf of only one of the boys.  Let’s call him Brother Number One.  Brother Number Two was added to the suit in March—more than 60 days later.  Thus the court held that Brother Number Two could have given 60-days notice prior to filing suit.  Therefore, he should have.  The court lacked jurisdiction to consider his case.  Brother Number One, however, was facing an imminent threat to his religious freedom and was justified in suing without giving the notice. 

The court hints that this kerfuffle will make little difference in the end:

[Brother Number Two’s] noncompliance with TRFRA’s pre-suit notice requirement requires that we vacate the district court’s preliminary injunction as to him.  This disposition may prove to be of little practical consequence; both brothers are constrained by MISD’s hair policy and should the district court ultimately conclude that the policy is invalid under TRFRA, [Brother Number Two] may enjoy the benefits from that ruling and the strong protections afforded students by TRFRA….

So the next move may be a ruling on the merits.  Does this policy substantially burden religious exercise?  Stay tuned.  This one is Gonzales v. Mathis ISD, decided by the 5^th Circuit on October 22, 2020. 

DAWG BONE: UNDER TRFRA YOU HAVE TO TELL THEM YOU ARE GOING TO SUE BEFORE YOU SUE.

Tomorrow: The Three C’s of Documentation

Next Friday at 10 we will be Zooming with the Dawg, and I’d love to get some ideas from you Loyal Readers as to topics you’d like to hear about. So send me an email at jwalsh@wabsa.com.   The person who makes the best suggestion will get a six-month extension of their Daily Dawg subscription.  So let me hear from you!

Not signed up for Zooming with the Dawg yet?  Just send an email to info@wabsa.com.  It’s freebie for all Daily Dawg subscribers.

One other thing for today: now that the election is over it’s time to start lobbying the legislature in advance of the 2021 session.  The Dawg hereby proposes The Double Trouble Double Credit Bill.  This bill would give every educator who serves through the entire pandemic DOUBLE CREDIT for TRS purposes.  We talk a lot about how much we appreciate our teachers as well as all the other people who make our schools work.  So let’s do something about it!  Everyone acknowledges that serving in the time of the Great Pandemic has been twice as hard, at the least. So let’s do something practical to recognize the hard work of those folks.  Double TRS Credit starting with March 15, 2020 and extending through all of the 2020-21 school year.  And give the Commissioner the authority to extend it beyond then if it appears that we are not yet out of the woods.

Waddayathink?

DAWG BONE:  YOUR TURN. 

DEAR DAWG: Snort, here.  Rip Snort.  Intrepid Reporter and Friend of the Truth. In all the controversy over mask-wearing Your Intrepid Reporter believes we may be overlooking a very simple and straightforward statement in the Texas Education Code. How this has gone unnoticed for this long makes one wonder: who is involved in this coverup?  We intend to ferret out the truth. 

As a student of the law, I expect you are already well aware of the T.E.C. provision I refer to.   Section 37.0023 prohibits certain “aversive techniques” including anything that

impairs the student’s breathing, including any procedure that involves….(B) obstructing the student’s airway, including placing an object in, on, or over the student’s mouth or placing a bag, cover OR MASK over the student’s face;  T.E.C. 37.0023(a)(7)(B), Emphasis added. 

What could be more clear?  A communication on your blog would be helpful in “umasking” this coverup.  SNORT.

DEAR SNORT: Always good to hear from you, Snort, but we think you perhaps failed to read the entire statute.  The statute provides 13 examples of techniques that are prohibited, but only if they fit the umbrella definition of “aversive technique” which is:

A technique or intervention that is intended to reduce the likelihood of a behavior reoccurring by intentionally inflicting on a student significant physical or emotional discomfort or pain.  T.E.C. 37.0023(a). 

No one is requiring students to wear a mask because they want to inflict significant discomfort or pain.  They do it in order to avoid the spread of a dangerous virus. Sort of different, dontcha see?

Keep at it, Intrepid Reporter.  There is certainly a Pulitzer-Worthy Scoop out there for you somewhere, but this ain’t it. 

DAWG BONE: NO.  REQUIRED MASK WEARING DURING A PANDEMIC IS NOT AN AVERSIVE TECHNIQUE. 

Tomorrow: Lobby now!

The Gold Standard for providing a Free Appropriate Public Education is student progress.  Courts have been known to disregard procedural errors by the school district if there is evidence of academic progress.  That makes sense. After all, it should be about results more than process. 

When demonstrating that a student is making progress the school often points to the grades. This is particularly important for students with disabilities who are expected to achieve at grade level.  When the classroom teachers report that the student is passing, mastering grade level material on par with non-disabled students, this is strong evidence that the school is serving that student well. 

But let me offer a word of caution.  Principals should make sure that the grades are fairly earned.  In a case from Wisconsin the district argued that the student received FAPE, largely based on his passing grades and promotion from one grade to the next.  The court noted that this is normally good evidence of progress, but not in this case:

That assertion was premised, however, on the passing grades and advancement being accurate reflections of the student’s mastery of grade level content.

Here, J.L.’s English teacher did not factor his writing into his grade, and other tests of his writing ability showed him writing well below grade level. Thus, for this child, grades and advancement ring hollow as indicators of progress….

This is a good one to talk to teachers about.  Writing was the area where the student’s disability most affected him, and the English teacher simply discounted his failure to turn in assignments.  So the student got passing grades, but the court found those grades to “ring hollow.”

It might be particularly tempting for teachers in the COVID era to be a bit generous with grades, considering all of the difficulties kids, parents and teachers are encountering.  However, the law requires that we give parents an honest assessment of a student’s mastery of the material.  With regard to students with disabilities the failure to do so can have legal consequences.

The case is Grafton School District v. J.L., decided by the federal court for the Eastern District of Wisconsin on July 8, 2020.  It’s reported at 76 IDELR 281, Special Ed Connection.

DAWG BONE: SAY IT NICELY BUT SAY IT ACCURATELY.

Tomorrow: We hear from Rip Snort!