Next Wednesday, November 4^th, Eric Rodriguez and I will provide a webinar on the Discipline of Students with Disabilities. That’s Toolbox stuff!! But we’re not going to just regurgitate the  Toolbox material. Instead, we plan to talk about a number of recent court cases that illustrate some of the key points of the law.  I hope you will join us!

Sign up at www.walshgallegos.com. The webinar will be at 10:00, November 4^th.  No matter how late we stay up watching election results, we should be back at work by then.  Right?  Right????

DAWG BONE: NOVEMBER 4 WEBINAR: BE THERE!!

Tomorrow: IEEs and the statute of limitations…

The tennis coach testified that the mom of one of his players yelled at him during practice: “I know you have an autistic son.  I hope this happens to him, only twice as bad.  Karma, baby.”  The mother acknowledged being angry with the coach, but denied saying those words.  If this case ends up in a full blown trial, that factual dispute will be resolved.  There is also a more fundamental factual dispute that needs to be resolved: did the coach exclude the girl from the tennis team because of her disability?

The case provides an excellent Teachable Moment for coaches about the duty to accommodate students with disabilities.  The court kept this case alive because of a single statement by the coach: 

Ricke [tennis coach] testified that he had already decided that T.W. would not make the team before tryouts occurred. 

Oh.  So before she even had a tryout, the girl with Asperger’s Syndrome and a 504 plan was excluded.  The “win probability” for the plaintiff in this lawsuit just went way up.  However, the coach had some reasons for his decisions, many of which sound pretty good:

He testified he “felt like last year was going to be a very big issue and still on her mind a lot, so much so that I don’t feel like she could get past it and even have a productive year…and there were a lot of girls who were just concerned about the team disruptions and those types of things.” He cited the incident where [the mother] yelled at him at the end of the year, and incidents during other practices where T.W. became very upset and threw rackets at him.  He testified that he was concerned for T.W. and “really felt it was in the best interest of T.W. to not be on that team because I was, to  be honest, I was fearful that if she didn’t make regions, which was a high probability, that she would threaten suicide again, or in fact, actually do it.”  He stated that he had “the whole team to think about” and that he “didn’t get any indication” that “it could have been a positive experience for her going forward.”  (Emphasis added).

Thrown tennis rackets.  Hmmm.  Win probability for the plaintiff goes down a bit.

But this is exactly where the student’s status as a student with a 504 plan becomes an issue. Key Quote:

Each of [the coach’s] reasons for deciding before tryouts that T.W. would not be on the team relate to behavior directly attributable to T.W.’s Asperger’s Syndrome Disorder and anxiety. 

The record does show that T.W. may not have been as skilled as other players and that she had a difficult time with accepting feedback and working on a team.  However, a reasonable jury could conclude that with the benefit of reasonable accommodations, T.W. would have met the team’s necessary requirements.

There is your Teachable Moment.  Provide accommodations first; then assess the student’s ability to be a member of the team.  Don’t make a decision about who is on the team until those accommodations have been provided.  This one is Clemons v. Shelby County BOE, decided by the 6^th Circuit on June 22, 2020.  We found it at Special Ed Connection, 76 IDELR 235.

DAWG BONE: ACCOMMODATE THE DISABILITY FIRST; THEN ASSESS THE ABILITY. 

Tomorrow: Toolbox Tuesday!!

Minnesota has open enrollment among its school districts.  This case involved a parent who chose to enroll the child in a district other than the district of residence.  The student required special education services and the IEP called for special transportation. Does the non-resident district have to provide that?  The court held that it did not.  The court pointed out that IDEA was enacted pursuant to the Spending Clause in the Constitution.  Congress has no direct authority regarding public education, and so it can impose restrictions only by making money available, subject to conditions.  That’s how the Spending Clause works, and IDEA is a classic example of that.  Congress made money available (not enough) and attached regulations to it sufficient to choke a dozen lawyers.  Minnesota, like all of the other states, took the money. 

The deal about “Spending Clause” statutes is that their requirements must be stated unambiguously.  Does the IDEA specifically say that non-resident districts that accept transfer students must provide special transportation?  No.  It does not say anything like that. Key Quote:

We see nothing in the IDEA that provides clear notice to a state that it must cover transportation expenses when a student’s travel is the result of a parent’s choice under an open enrollment program.

This is not a binding legal precedent in Texas, but it’s a Circuit Court case which will carry considerable weight as Texas judges consider this issue.  It’s Osseo Area Schools, ISD No. 279 v. M.N.B., decided by the 8^th Circuit on July 29, 2020.  We found it on Special Ed Connection at 77 IDELR 1.

DAWG BONE: DO YOU ACCEPT TRANSFERS?  TAKE A LOOK AT THIS CASE.

Five students in Guam sought an injunction that would require Guam to implement IEPs despite a state-mandated shutdown due to COVID.   The court declined to do so.  The court noted that it was unlikely that this type of shutdown would constitute a “change of placement” that would trigger stay-put obligations.  The court relied on N.D. v. State of Hawaii, 54 IDELR 111 (9^th Cir. 2010) which held that “Congress did not intend for the IDEA to apply to system wide administrative decisions.”

That’s more clear-cut than the ruling we told you about yesterday where a New York court ordered the school to honor “stay put” decrees “to the extent that they can be safely performed in light of the current COVID-19 pandemic, in compliance with guidance from health authorities.”  We can expect different courts to come to different conclusions about a slew of legal issues raised by the pandemic’s effect on education. So stay tuned. 

This one is J.C. v. Fernandez, decided by the federal district court for the U.S. territory of Guam on July 15, 2020.  We found it at 77 IDELR 15.

DAWG BONE: A STATEWIDE SHUTDOWN DOES NOT TRIGGER “STAY PUT”….AT LEAST IN GUAM.

Tomorrow: do you accept transfer students?

Today and tomorrow I’m going to tell you about two of the early cases that address how the pandemic is affecting education.   We knew this was coming, and these two cases, one from New York and one from Guam, are just the beginning of what is sure to be a boatload of legal challenges to how districts have handled this situation. 

The New York case involves a “stay put” order for a student with a disability that went into effect prior to the pandemic.   The parent had requested a special education due process hearing which automatically invokes the “stay put” rule, meaning there can be no change of placement while the hearing is pending.  That is routine and would never have caught national attention. But then….coronavirus happened. 

The New York City district wanted to switch to remote instruction for the student, as it was doing for all students.  So the parent sought an injunction requiring the district to provide the services outlined in the pendency order, which would mean in-person services. Thus this federal court in New York was one of the first to be presented with the issue: does a national health crisis override IDEA?  

I would not characterize the court’s ruling as a clear answer to that question.  The court granted the injunction…..sort of.  It held that the district was required to comply with the pendency order, providing in-person services “to the extent that they can be safely performed in light of the current COVID-19 pandemic, in compliance with guidance from health authorities.” 

Hmmm. That leaves a lot of room for interpretation, no?  It looks to me that the district has to provide in-person instruction unless it gets written guidance from health officials stating that such services are not safe.  Furthermore, the court suggested that if the district had done a better job of explaining how the remote services could suffice, the outcome might be different. 

Unclear though it is, there are a few takeaways here. First, IDEA and all of its procedural guardrails remain in place.  Second, “guidance from health authorities” must be complied with.  This means that educators have to do two things simultaneously: serve the student appropriately while maintaining safety for all.   Easier said than done, and that leaves a lot of specific situations to be addressed as we calibrate those two mandates.

This one is L.V. v. NYC DOE, decided by the federal court for the Southern District of New York on July 17, 2020. We found it at 77 IDELR 13.  Tune in tomorrow for a ruling that is more clear.

DAWG BONE:  IDEA REMAINS IN FULL EFFECT, BUT WE HAVE TO MAINTAIN SAFETY FOR ALL.

Tomorrow: Covid-19 and the “stay put” rule.

At every annual ARD meeting the Committee must answer this question: Does the student have behaviors that impede learning of the student or others? If the answer is YES, the Committee should consider how to address those behaviors.  If the YES box is checked, and there is no Behavior Plan, you’ve got some ‘splainin’ to do.  The Enterprise City school district in Alabama did not ‘splain it well enough. 

As the court observed, there are some students for whom a behavior plan is obviously needed. This student was one of those, and the court held that any IEP that failed to address his behavior would be inadequate.  A second error by the school was removing the student from the bus due to misconduct, and not providing any alternative.  The court ordered the school to reimburse the parents for transporting their child, and ordered numerous additions to the IEP.  The court’s opinion includes a number of Key Quotes:

People tend to rise or sink to meet expectations; the IDEA reflects Congress’s attempt to ensure those expectations remain high. 

…it is blackletter law that, when a child’s behavior impacts his ability to meet educational goals, a proper IEP should include a plan to address those behaviors.

Education is an inherently aspirational endeavor.  It is an investment in our children and their future….Accordingly, the IEP team’s goal is to see students not as they are, but as they can become.

Hearing officers and courts often make decisions about students whom they never see in person. But when they do, it can give them more confidence about their decisions.  Consider:

Both the Hearing Officer and the Court were able to observe S.S. in-person during live proceedings, and the Court joins the Hearing Officer in noting that it is readily apparent that S.S. needs behavior intervention to make any progress at all.

Serving students like S.S. is what The Toolbox training is all about.  Let me know if you are interested. 

This one is Enterprise City Board of Education v. S.S., decided by the federal court for the Middle District of Alabama on June 12, 2020. We found it at Special Ed Connection, 76 IDELR 295.

DAWG BONE: BEHAVIOR IMPEDES LEARNING? ADDRESS IT.

Tomorrow: COVID related case.

Dear Dawg:  You may have heard there is an election coming up soon!  We are seeing a lot of political activity among the students, and wondering what we should be doing about it. Suggestions?  MY FIRST TIME TO DEAL WITH A PRESIDENTIAL ELECTION.

DEAR FIRST TIMER:  It may be a more contentious election than usual, but the legal standards have not changed. So let’s go over some basics.

1. We hope you are encouraging students who are old enough to vote to do so.  Research shows that people who vote the first time they are eligible to do so are more likely to become lifetime voters, which is a good thing. So make sure those 18-year olds are registered and know where to vote. 
2. Students have the right to express their political views at school, as long as they don’t create a material and substantial disruption of school. This goes back to Tinker v. Des Moines, decided by the U.S. Supreme Court in 1969.  The Dawg, being an old Dawg, remembers 1969.  It was pretty contentious also.  And Mary Beth Tinker’s peacenik black arm band, protesting the War in Vietnam, was not well received by everyone in the conservative city of Des Moines, Iowa.  Furthermore, let’s remember that the principal of the school had specifically ordered that no black arm bands would be permitted.  So you have an 8^th grader openly defying the principal’s order, and wearing a symbol that some teachers and students found highly offensive.  And yet the Supreme Court (7-2) ruled that she had a right to do it. 
3. Tinker is the starting point.  It’s the default position, and you move away from its holding only if you have a good reason to do so.  What’s a good reason?  You have to have a REASONABLE FORECAST of a MATERIAL AND SUBSTANTIAL DISRUPTION of school activities.  Let’s break that down.
4. A “material and substantial disruption” means that the work of the school is disturbed, interrupted, seriously impeded.  The Court specifically told us that “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint” would not cut it.  If you, or your staff members, feel uncomfortable, or strongly dislike the viewpoint expressed by the student, you may just have to live with that.  You are not yet at the point of “material and substantial” disruption. 
5. A “reasonable forecast” means that you don’t have to wait until all hell breaks loose, but you have to have some basis for your belief that it’s about to.   Your experience and insight as a school administrator should inform your ability to make a “forecast” that is reasonable. 
6. Let’s mention a few things that do not amount to a “material and substantial” disruption of school. 

*Ugly criticism of the principal on social media or the news media;

*A phone call from a board member telling you to “do something” about this;

*Your fear and anxiety.

       7.  Let’s mention a few things that would support a “reasonable forecast.”

*Students bullying other students;

*Students fighting, or threatening to do so;

*Credible threats of violence;

*Teachers and counselors reporting an increased level of student stress, causing disengagement from learning.

Keep in mind that bullying, fights, threats of violence, and student stress can happen at school for many different reasons.  Be prepared to explain why you think that there is a causal connection between a student’s political expression and these consequences.

8.  What makes your forecast “reasonable”?  It has to be based on information, not intuition.  What are people telling you?  What do you hear? What do you see?  What has happened in the past under similar circumstances?

9. And of course, you have to be evenhanded about this.  You can’t permit T-shirts and caps that favor one point of view, and bar the opposing point of view. 

10.  Remember that symbolic speech is “speech” protected by the First Amendment.  Mary Beth Tinker never uttered a word, and yet, the Supreme Court said that it was her right to “free speech” that was infringed.  Taking a knee on the football field during the National Anthem is symbolic speech.

Best of luck, First Timer, navigating this election season! 

DAWG BONE: ONLY 15 MORE DAYS…

Tomorrow: Toolbox Tuesday!!

We’re Zooming with the Dawg at 10:00 this morning!! Be there!!  Free for all Daily Dawg subscribers. Email info@wabsa.com to get signed up!

Have you ever contemplated the difference between a motor vehicle and a piece of motor-driven equipment?  Probably not.  Most people have more important things to think about.  But when the mechanical bull falls off its platform and lands on its erstwhile rider on the grounds of a Texas governmental entity the distinction becomes important.   If this happened on city property and the bull was being supervised by a city employee, the city might be liable for the man’s injuries. But if it happened at a school district, and the bull was supervised by a school employee, the district is immune from liability.

Why? Because the Texas Tort Claims Act makes cities liable for injuries caused by the negligent use or operation of “a motor-driven vehicle or motor driven equipment.”  School districts, however, are only liable for the negligent use or operation of a “motor vehicle.”

You can ride that mechanical bull, but it won’t take you anywhere. That means that it’s not a vehicle.  Thus Mr. Hernandez, the injured party, failed to make it to first base in his lawsuit against San Benito CISD. The court held that it did not even have jurisdiction to hear the case due to the district’s immunity from tort liability.

Congratulation to Priscilla de la Garza from our firm’s Rio Grande Valley office on her victory in this case, her first at the appellate level. The case of Hernandez v. San Benito CISD was decided by the Court of Appeals for the 13^th District of Texas in Corpus Christi-Edinburg on September 24, 2020.  Priscilla will be on our Zoom call this morning to tell us more about what happened.

DAWG BONE: MECHANICAL BULLS SHOULD BE EQUIPPED WITH A BREATHALYZER SO WE CAN BE SURE THAT NO ONE RIDES WHO ISN’T ALREADY WASTED.

The lawsuit alleges that Round Rock ISD intentionally discriminated against a student based on disability.  However, the only person accused of knowingly discriminating against the student is the journalism teacher.  Can the district be held liable for something that a classroom teacher did? 

Yes, if the suit is based on disability discrimination under Section 504 and the Americans with Disabilities Act. 

There are two important legal nuggets we can learn from this case.  First, the theory of “vicarious liability” (also known as “respondeat superior” for those who prefer Latin) is available in a 504/ADA case.   Second, the “intent” of the district will be determined by “inferences” which are determined by the fact finder.  Let me explain why this matters.

VICARIOUS LIABILITY.  Vicarious liability is very common in negligence cases filed over bodily injuries.  For example, if you slip and fall at the grocery store because some minimum wage employee failed to mop up a spill fast enough, you can successfully sue the owner of the grocery store.  If the doctor operated on your healthy left knee rather than the injured right knee because some low level hospital employee put the magic marker X on the wrong leg, you may be able to pin liability on the hospital chain.  I expect the ubiquitous Thomas J. Henry is very familiar with vicarious liability cases. Vicarious liability allows you to reach the Deep Pocket Defendant over some act of negligence by The Little Guy.

Lawsuits against school districts based on federal law do not generally allow for vicarious liability. But 504/ADA is the exception.  Thus this case, where the plaintiff alleges that a journalism teacher intentionally “exploited” a student’s disability (Anorexia Nervosa) by highlighting it in a feature article in the school yearbook.  The suit alleges that the teacher never sought parental permission for the interviews and photographs of the student.  The plaintiff does not allege that anyone above the level of the teacher was in on this.  It did not matter. The court held that the school district can be held liable if it is proven that one teacher intentionally discriminated based on disability.

Ironically, the teacher was dismissed from the case a long time ago, due to the fact neither 504 nor the ADA permit personal liability. So it’s just the RRISD that is left to deal with this suit. We told you about the teacher getting dismissed from the case in the Daily Dawg on April 20, 2020.

INTENT.  To recover damages in a 504/ADA case, you have to prove that the discrimination was not just based on disability. You also have to prove that the discrimination was intentional.  In this case the parents are seeking to recover over $162,000 in medical expenses they incurred after their daughter “went into a psychic and physical tailspin” when she stopped eating, allegedly due to the yearbook story, the interviews, the photographs and ensuing gossip and social media posts.   The court did not conclude that the district intended to discriminate against this girl, but it did hold that there were sufficient “inferences” that could be taken from the alleged facts to support that conclusion. Moreover, there is this statement in the opinion:

Intent is usually shown only by inferences.  Inferences are for a fact-finder and we are not that.

Context: the court was ruling on the district’s Motion to Dismiss, which required the court to give the benefit of the doubt on all inferences to the plaintiff.  If “inferences” cannot be assessed until “the fact-finder” dives into the evidence in detail you have a much more expensive piece of litigation. The cost of settlement goes up.

This case merits the serious attention of every 504 Coordinator in the state.  If the district faces potential liability for the actions and omissions of every teacher who is responsible for implementing a Section 504 plan, we have a lot of training and supervision to do.

The case is S.C. v. Round Rock ISD, decided by the federal court for the Western District of Texas on September 4, 2020.  We found it in Special Ed Connection at 77 IDELR 101. 

DAWG BONE: SOUND SMARTER BY USING THE LATIN: RESPONDEAT SUPERIOR.

Tomorrow: Have you ever ridden a mechanical bull?

In every legal dispute over a personnel decision one of the critical issues is the true motivation behind the decision. Why did the principal recommend nonrenewal of the teacher’s contract?  Why did the superintendent reassign the coach?  What was the HR director thinking when hearing the custodian’s grievance?   Why did the special education director reprimand the diagnostician? 

The written record often answers these questions. That’s why the record that you keep, both formally and informally, is so important.  You don’t want to be the person who wrote the memo to the teacher that said “We expected better behavior out of a woman of your years, especially after the health scare you had last year.”  That’s a trifecta of bad documentation, opening the door to a suit based on sex, age, and disability.

Next Tuesday, October 20, our firm offers an on-demand webinar: DOCUMENTATION MAKES THE DIFFERENCE, presented by attorneys Haley Turner and Joey Moore.  Haley and Joey bring a wealth of experience to this topic, which will make the presentation relevant and practical.  Go to www.walshgallegos.com to sign up!

DAWG BONE: THE WRITTEN RECORD YOU LEAVE WILL REVEAL THE REASON FOR THE DECISION.

Tomorrow: one for the 504 Coordinators