The Toolbox is our firm’s one-day training program regarding the disciplinary options for students with disabilities. How do you maintain safety while effectively serving students who disrupt learning?  In the Toolbox we offer ten “tools” that administrators and/or ARD Committees can use to accomplish those two objectives.  Fundamentally, the goal is to provide FAPE to each student, and to do it in a way that maintains a safe and healthy school climate for all students.

Every student is entitled to FAPE—a Free and APPROPRIATE Public Education.  “Appropriate” does not mean perfect.  Our special education laws do not expect perfection. They expect progress. That’s the lesson that comes through clearly in A.W. v. Tehachapi USD a recent unpublished decision from the 9^th Circuit.  The parents wanted the school to provide 1) a BCBA-trained aide (Board Certified Behavior Analyst); and 2) a BCBA to supervise that aide for two hours each week.  The district provided the first, but not the second. The parent claimed that the child did not receive the FAPE to which he was entitled.

Nope. The administrative law judge did not see it that way, nor did the federal court, nor the 9^th  Circuit.  The only evidence to support the parents’ perspective was that the student’s disruptive behaviors had not been eliminated.  Elimination of disruptive behaviors would have been great, but it is not what the law requires.  Elimination of those behaviors would be perfection. The district was able to demonstrate that progress had been made. Good enough.

In the Toolbox we emphasize that of the ten tools, the first is the most important. That tool is the development and implementation of a BIP—a Behavior Intervention Plan.  A good BIP identifies problematic behaviors and prescribes interventions, strategies and supports to address those behaviors. There should be a goal, and the goal should be measurable.  Moreover, the goal should be, as the Supreme Court has reminded us, “appropriately ambitious.”  But we are not expected to achieve perfection.

This one was decided on June 25, 2020 and we found it in Special Ed Connection at 76 IDELR 275.

DAWG BONE:  WE SEEK EDUCATIONAL PROGRESS, BUT DON’T EXPECT PERFECTION.

Tomorrow: Documentation.

First an announcement:  We’re Zooming with the Dawg this Friday!! Free for all Daily Dawg subscribers. Hope you can join me along with Andrea Gulley from our Amarillo office and Priscilla de la Garza from our Rio Grande Valley Office.  If you are not already signed up send an email to info@wabsa.com. 

Judges on the 5^th Circuit have a greater sense of decorum than those who preside over the federal district courts.  Perhaps that’s why the Circuit Court judges call the other guys “the lower courts.”  We see this play out in the recent decision involving students slapping each other on their backsides on Fridays.  The inferior tribunal referred to this as “Slap Ass Friday.” The 5^th Circuit cleaned that up: “Slap Butt Friday.” 

But perhaps the lower level courts are more attuned to the common person.  We doubt that the lower level judge would think that “hoe” is the proper spelling of the word that vulgarians hurl at women by way of suggesting that they are ladies of easy virtue.  A judge who comes from the people would understand the distinction between a common garden instrument and a hooker.  The judges on the 5^th Circuit somehow missed that. 

The 5^th Circuit had to discuss stuff like this because of a Title IX suit filed by the mother of a 7^th grader who was offended by the Friday shenanigans and the name calling.  The 5^th Circuit was equally offended by the behavior of the students, but declined to second-guess how it was handled by middle school officials.  Key Quote:

School districts enjoy flexibility in responding to student-on-student harassment.  Here, the School District investigated B.L.’s allegations and imposed discipline when they were substantiated…..We cannot say that the School District responded in a way that was clearly unreasonable to B.L.’s reported harassment.

It’s Brend v. Copperas Cove ISD, decided by the 5^th Circuit on September 15, 2020.  We found the “unpublished” opinion at 2020 WL 5540132.  I’m pleased to let you know that attorneys from the Walsh Gallegos firm, Haley Turner, Jennifer Childress, and Bridget Robinson, handled this case with appropriate decorum at all levels. 

DAWG BONE: JUDGES WOULD RATHER LEAVE THIS STUFF TO THE ASSISTANT PRINCIPALS OF THE WORLD.

Tomorrow: Toolbox Tuesday!!

It is with a heavy heart that I report to you the death of Palmer v. Waxahachie ISD.  The 5th Circuit has “abrogated” this landmark dress code case.  I had to look that word up.  I thought perhaps an ‘abrogator” was a Florida swamp creature.  Nope.  Merriam-Webster says that “abrogate” means “1. To abolish by authoritative action; 2. To treat as nonexistent.”  So an “abrogator” could be a judge. 

Dadgummit. I love Palmer v. Waxahachie ISD.  I guess I should put that in past tense.  I loved Palmer v. Waxahachie ISD.   Let me explain why. 

It started when a student wore a T-shirt to school that said SAN DIEGO.  School officials told him that the innocuous message on the T-shirt violated the dress code, which prohibited printed messages on T-shirts, with few exceptions.  Enter the parents, who see an opportunity to stick it to the man. They send their boy back to school wearing a “John Edwards for President” T-shirt.  This was in 2008 when Senator Edwards was a viable candidate for president.  A shirt bearing a political message nicely tees up a First Amendment case….if school officials take the bait.  Anybody in Waxahachie ever hear of Mary Beth Tinker?  Anybody know about black armbands?  The school told the kid that his political message was off limits also.   Off to court we go!

Do you think a ruling on that issue might be relevant right now?????  Do you think it might shed some light on how to handle MAGA masks and BLM T-shirts?  It certainly would, which is why I mourn the “abrogation” of this decision.

In the Palmer case the 5^th Circuit ruled in favor of the school district. The school had the right to tell the kid he could not wear that shirt, even though there was no evidence of any disruption of school.  Hmmm.  How could that be?

The WISD had a dress code at the time that prohibited any message on any T-shirt, other than a brand name logo or a school spirit message. There could be no T-shirt for John Edwards, Barack Obama, Hillary Clinton or John McCain.  You were not even allowed to promote the Texas Longhorns or the Aggies.  Not even the Dallas Cowboys.  Nothin.  The school emphasized that its dress code was content neutral, and the 5^th Circuit agreed. Based on that neutrality, the court ruled for the district.

This could have come in handy this election season.  But alas, Palmer was “abrogated” in Footnote 3 in Reagan National Advertising of Austin, Inc. v. City of Austin.  In a Footnote!  How undignified.

The Reagan case has nothing to do with schools or dress codes.  It’s about a city ordinance regulating signs.  I’m not going to bore you with the details of the issues. Suffice it to say that the 5^th Circuit noted that the U.S. Supreme Court has changed the law pertaining to First Amendment issues.  SCOTUS held that before we get to “content neutrality” the courts first have to examine if a regulation is “content based.”  If it’s “content based” the regulation is subject to “strict scrutiny.” Any first year law student can tell you that if your regulation is subject to “strict scrutiny” it’s going down.

What makes a regulation “content based”?  If you have to read the content to figure out if the regulation applies, then the regulation is “content based.”  So apply that reasoning to Waxahachie’s dress code.  You could wear a shirt with a school spirit message (“Go Indians!!”) but not one that says “Hook ‘Em Horns!” So to figure out if the student violated the dress code, the assistant principal has to read the content of the words on the shirt.  Therefore, it’s “content neutral” (we don’t care if you like the Horns or the Aggies), which is good, but it’s also “content based,” which is bad.  It won’t withstand “strict scrutiny.”

Sigh.  I guess you could have a dress code that prohibits any message whatsoever on a T-shirt.  If no content at all is permitted, then perhaps your code is not content-based.  Moreover, lawyers will argue that public schools and their dress codes are way different from cities and their sign ordinances. Maybe the courts will take that into account.

But any lawyer who cites Palmer v. Waxahachie ISD is going to have to deal with Footnote 3.   Sigh. 

The Palmer case was decided by the 5^th Circuit on August 13, 2009, and now rests comfortably in its abrogated state at 579 F.3d 502.  The Reagan case was decided by the 5^th Circuit (a.k.a. “The Abrogators”) on August 25, 2020. It can be found at 2020 WL 5015455.

DAWG BONE:  AUSTIN’S SIGN ORDINANCE LEADS TO DEATH OF WAXAHACHIE’S DRESS CODE. JUST DOESN’T SEEM RIGHT.

I do not know Dr. Walsh.  Never met the man and I am confident we are not related.  But since we share the same last name, I read the decision in his case from the 5^th Circuit with interest.  Dr. Walsh was fired from his job as a medical professor at the University of North Texas Health Science Center based on allegations of sexual harassment.  The case is not only interesting—it’s important.  It addresses the level of due process an employee is owed prior to termination based on accusations that could be career damaging.

The graduate student alleged that things got out of hand one night as she attended a medical conference along with Dr. Walsh.  There was another graduate student with her, and two other faculty members.  The court’s description of the evening will sound familiar to anyone who has attended the Mid-Winter Conference:

The conference included a formal banquet consisting of a reception, dinner, and dancing. All parties consumed alcohol, and the evening soon became “festive and somewhat boisterous.” 

From there, the perceptions of the parties diverged.  Dr. Walsh admitted to flirtation, but insisted that it was mutual and that he was given no indication that it was unwelcome, or that his student was uncomfortable.  The student said that she was uncomfortable with her professor’s unwanted attention. She noted that he repeatedly offered to escort her to her room, and sent her what she thought was a suggestive email the next morning. Dr. Walsh said the escort offer was due to his concern over how much she had been drinking.  The student left the conference two days early due to her discomfort, and promptly filed a complaint with the university.  

The university hired a lawyer to investigate the matter.  The lawyer interviewed all five of the people who were at the banquet and concluded that the interviews substantiated the student’s complaint. Based on that, the university began termination proceedings.  The matter came to a hearing before the Faculty Grievance and Appeal Committee.  The Committee voted to terminate Dr. Walsh’s employment. 

Dr. Walsh sued, alleging a violation of procedural due process.  His main gripe was that he never had the opportunity to directly question his accuser.  In fact, the graduate student (identified in court proceeding as Student #1) did not testify at the hearing at all.  Instead, the lawyer who investigated the matter provided “snippets of quotes” from the student.  Dr. Walsh was allowed to question the investigator, but not the student who was accusing him.  Is that a deprivation of the process due to Dr. Walsh under these circumstances?

The 5^th Circuit said that it was:

In this case, where credibility was critical and the sanction imposed would result in loss of employment and likely future opportunities in academia, it was important for the Committee to hear from Student #1 and Walsh should have had an opportunity to test Student #1’s credibility.

However, the court quickly qualified that, noting that Dr. Walsh was not entitled to do the questioning himself:

We are not persuaded, however, that cross examination of Student #1 by Walsh personally would have significantly increased the probative value of the hearing.

Instead, the court held that it would have been adequate for the Faculty Committee to do the questioning, as long as they also allowed Dr. Walsh to submit the questions he wanted to ask.

This decision is only about the personal liability of the individuals on the Committee who participated in the decision.  They all claimed “qualified immunity” and the 5^th Circuit held that they were entitled to it. Even though they had deprived Dr. Walsh of the process to which he was due under the Constitution, the law was not “clearly established” on that point.  The court noted how murky the standards have been for exactly how a termination hearing like this must be conducted. Murky legal standards mean that the law is not “clearly established” which means that individual defendants get off the hook for violating the Constitution. 

So what do we learn? At the university level, before a contractual employee can be fired based on sexual harassment charges they must be given an opportunity to test the credibility of their accuser. This does not have to include direct questioning by the person accused. It can be done by a third party, but the person whose job is on the line must be allowed to submit questions.

The court never cites the new Title IX regulations, but its ruling is consistent with them. The Title IX regulations require a process at the college level that includes direct questioning of the person who is alleging sexual harassment. But remember: standards are different at the K-12 level.  Public schools are not required to subject young students to such a face-to-face encounter.

Our firm continues to offer training regarding Title IX. Let us know if we can help you out with that.

Walsh v. Hodge was decided by the 5^th Circuit on September 15, 2020, and can be found at 2020 WL 5525397.

DAWG BONE: DUE PROCESS STANDARDS VARY DEPENDING ON MANY FACTORS.

Tomorrow: Is an “abrogator” a swamp creature?  Or a judge?

Our firm is offering an on-demand webinar next week to untangle the confusion over serving students with dyslexia.  We have a very recent 5^th Circuit decision about this, (William V. v. Copperas Cove ISD, see Daily Dawg October 1), as well as a number of other court cases, regulations and the Dyslexia Handbook to take into account. Do these kids all go to Section 504? When should we offer to test for IDEA eligibility?  Are there “child find” implications?

Paula Maddox Roalson and Christina Henshaw from our firm’s Houston office will guide you through the maze.  Go to www.walshgallegos.com and click on Events to register.  It’s at 10:00 next Wednesday, October 14.  Our webinars are accessible, affordable, relevant, and practical.  Don’t miss this one!

DAWG BONE: DYSLEXIA AND CHILD FIND: WEBINAR NEXT WEEK!

Tomorrow: Sexual harassment at UNT.

The Toolbox is our firm’s all day training program dealing with serving students with disabilities who present challenging behaviors.  We talk a lot in the Toolbox about FBAs—Functional Behavioral Assessments.  A recent decision from the 2^nd Circuit Court of Appeals upends the conventional wisdom about FBAs and is worthy of your attention.

Is an FBA an “evaluation”?  That’s the legal issue.  If it’s an evaluation and the parent disagrees with it, the parent can obtain an IEE (Independent Educational Evaluation) possibly at school district expense.  In the Toolbox training I have always answered this question in the affirmative.  I’ve based that on some federal district court decisions and, more importantly, guidance from the Department of Education.  Now the 2^nd Circuit has definitively held that an FBA is not an evaluation and thus it does not justify an IEE request. 

Isn’t the court supposed to defer to the interpretation of the law by the Department of Education?  Yes, normally that’s the way it works. But in this case the court said:

The Department of Education’s interpretation ignores the plain text of the statute and regulations, and therefore, we owe it no deference.

According to the court, the “plain text of the statute” tells us that the term “evaluation” refers only to the initial FIIE (Full, Individual Initial Evaluation) and the three-year comprehensive re-evaluation.  Everything else is only an “assessment tool,” rather than an “evaluation.”  Key Quote:

The IDEA’s mandatory evaluation process is set forth in Section 1414 of the Act.  As explained above, it discusses two types of evaluations: initial evaluations and reevaluations.  That the statute does not expressly or impliedly mention a third category of evaluations comprised of limited or targeted assessments suggests that there is none.

This is not a binding precedent in the 5^th Circuit, but it is sure to be cited in future cases, and it should color the legal advice you get.  If you have a request for an IEE based on a parent’s disagreement with your FBA, give your lawyer a call, and be sure your lawyer is aware of D.S. v. Trumbull Board of Education.  It was decided by the 2^nd Circuit on September 17, 2020 and can be found at 120 LRP 28133.

DAWG BONE: “EVALUATIONS….ASSESSMENT TOOLS.  NOT THE SAME THING.

Tomorrow: Need to learn more about dyslexia?

As though October during a pandemic isn’t frightening enough, you are now facing a major deadline that is fast approaching.  TEA now requires your District to submit your new Special Education Operating Procedures by October 31.  What does this mean for you?  You must now provide your District’s description of how it satisfies all of its legal obligations under IDEA related to “Child Find,” “Evaluation,” and “FAPE,” and you must also make these procedures available on-line to the public.

At Walsh Gallegos, we can help.  You probably already have a set of OGs, but they may not satisfy all of the requirements now in place.  It will be important that these procedures be consistent with the law and recent legal precedent and describe your processes in a way that is legally defensible.  Keep in mind, your District’s procedures will now be posted on- line, and the frequency with which they will be used in litigation will likely increase.  Our lawyers understand the importance of getting this right and we stand ready to review your District’s existing operating procedures.  Alternatively, if you are interested in drafting new policies specifically tailored to your district’s needs, we now have Operating Procedure templates related to “Child Find,” “Evaluation,” and “FAPE” available for purchase. 

To speak with one of our special education attorneys about this contact us at the firm by telephone or email.   You can call any of our offices, or use the general number: 800-252-3405.  Or email one of our attorneys, or use the general mailbox at info@wabsa.com.  We welcome the opportunity to assist you with this project so that you can submit your Operating Procedures by October 31 with confidence.

DAWG BONE:  LAW.  POLICY.  OPERATING GUIDELINES.  MAKE SURE IT ALL ALIGNS. 

Tomorrow: Toolbox Tuesday!!

Dear Dawg:  Will you please tell the numbskulls at Serenity Falls ISD about Lauren’s Law!  My grandson’s birthday was yesterday and I showed up at the school with my prize winning (County  Fair, 1997) cupcakes.  I’ve been doing this since he was in kindergarten, and this year I know that he and all of his 4^th grade classmates were looking forward to a special treat.  It’s hard enough on the little ones sitting six feet apart, and wearing masks.  So I put a few extra sprinkles on each cupcake this year.

Then the heartless bureaucrats told me I could not distribute them this year. Coronavirus, doncha know.  No outside food.  Well! That just goes too far, Dawg. After all, we grandmas fought hard a few years ago to get the legislature to enact Lauren’s Law.  It’s at Texas Education Code 28.002(l-3) and it says:

The State Board of Education, the Department of State Health Services, or a school district may not adopt any rule, policy, or program….that would prohibit a parent OR GRANDPARENT of a student from providing ANY FOOD PRODUCT of the parent’s OR GRANDPARENT’S CHOICE to:  (A) children in the classroom of the child of the parent OR GRANDPARENT on the occasion of THE CHILD’S BIRTHDAY.

I don’t see how any law could be more clear, Dawg.  Please straighten these cupcake haters out.  NANA IS NOT TO BE TRIFLED WITH.

DEAR NANA: No one’s trifling with you, Nana.  You can file a complaint with the school district and take it up to the school board, where you may find some sympathetic fellow Nanas. Or they may not be so sympathetic. They may think that the cautious approach to overall health under these unusual circumstances is more important than your cupcakes, prize winning or not.  As far as the law, you left out some internal citations in Lauren’s Law.  They say that no one can adopt a rule pursuant to certain specific provisions in the Code dealing with curriculum. We think county health officials and local school officials retain the power to take action to limit the provision of food to students during the school day during this pandemic.  Lauren’s Law may just have to take a break this year.

DAWG BONE: NEXT YEAR: DOUBLE CUPCAKES FOR ALL!!

The 5^th Circuit upheld a lower court ruling in favor of Copperas Cove ISD in a case involving a student with dyslexia.  The court agreed with the lower court, that the boy made progress with the services provided by the school. 

We’ve reported on this case here before.  The lower court made some rulings that had the potential to upset longstanding practices regarding services to students with dyslexia.  Depending on how the 5^th Circuit ruled in the case, the Dyslexia Handbook might have been due for a major overhaul.  Now we know this will not happen.  The court had a simpler take on this case, noting that there was a strong factual record that supported the district’s position.  The court expressed no opinion about the relationship between dyslexia, learning disabilities, and IDEA eligibility. Instead, the court pointed out the big disconnect between what the plaintiff alleged vs. what actually happened. Here’s an example:

Appellants repeat the argument that the District revoked W.V.’s impairment status based solely on a five-minute assessment.  The magistrate addressed this contention at length, finding the District’s speech pathologist worked with W.V. five times per week, for thirty minutes per meeting, per six-week grading period.  Furthermore, the magistrate made extensive findings regarding the speech pathologist’s qualifications and interactions with W.V., none of which Appellants address on appeal.

In other words: these school people knew what they were doing, and did it properly.  The lawyers did a good job on this one as well, and I’m pleased to let you know that it was a Walsh Gallegos team that represented the district.

It’s William V. v. Copperas Cove ISD, decided by the 5^th Circuit on September 14, 2020.

Tomorrow: Nana wants to bring cupcakes to school.

When a young politician named Lyndon Baines Johnson first ran for Congress he kissed a baby in Rice’s Crossing, Williamson County, Texas.  When something like that happens, you know that baby is going to be a Yellow Dog Democrat for the rest of his life.  That particular baby became the rock upon which our law firm was built.  Today would have been Joe’s 83^rd birthday.  He left us one month ago.  I want to let you know a few things about this great man to whom I am deeply indebted. 

Joe Beck, as he was known, was an outstanding student and a proud Fightin’ Duck at Taylor High School.  He graduated high school in 1956 and enrolled at Harvard.  Let that thought sink in for a moment. Taylor High School.  Harvard.  Not many have made that journey.  Here are the academic  credentials of this lifelong learner:  B.A. from Harvard, 1960; M.A. in English from UT Austin in 1966; Ph.D. in American Studies at University of Minnesota in 1971; J.D. from UT Austin in 1975; Master’s in Southern Studies from Ole Miss in 1995.  In between Harvard and that first UT degree Joe served in the U.S. Navy for four years.

After law school Joe went to work at the Texas Association of School Boards (TASB) when it was a very small organization. There was no TASB Risk Management, and the policy service was just getting off the ground. In fact, Joe is the principal author of the original version of the policy service.  If he did nothing else in the world of Texas school law, that alone would be a significant legacy. 

The law firm now known as Walsh Gallegos Treviño Russo & Kyle actually began on September 1, 1983 as Doyal, Hairston and Walsh.  Three lawyers, one secretary.  Tom Doyal and I did not know each other well.  Joe was the connection that bound us together.  We firmed up the agreement to form the law firm in a meeting at Joe’s farm house in Rice’s Crossing.  Tom’s only condition for starting a new law firm was that Joe be the managing shareholder. 

Joe established our law firm on a solid foundation based on his personal values.  We served public education by serving the people who made the public schools work.  We took good care of our employees.  We were financially conservative and sound.  We practiced law ethically.  We nurtured relationships with all of the other organizations that promoted public education. 

Of particular relevance to me and to this blog you are reading was Joe’s relationship with Dr. Frank Kemerer of the University of North Texas.  When Frank began writing the second edition of The Educator’s Guide to Texas School Law he decided that he needed a practicing school lawyer to co-author with him. Frank could have recruited any lawyer in the state for this. He chose the best: Joe.   Frank was also launching a little newsletter he called the Texas School Administrators’ Legal Digest.   He recruited Joe to help with this.  When Frank offered to give Joe an ownership interest in TSALD Joe, being Joe, felt obligated to share this opportunity with his law partner.  He only had one at the time—me.  So Joe persuaded a skeptical Frank Kemerer to allow me to try out a humorous Q and A column in the newsletter.  So without Joe, there would be no Law Dawg.    There would be no Daily Dawg today.

Casual acquaintances of Joe saw the intelligence and wit.  Those who knew him better saw that, and much more.  Joe lived his life based on solid values of honesty, decency, fairness, integrity.  He had a visceral contempt for the conman or liar.  He had the courage to engage in epic legal battles with experienced litigators when necessary.  Joe was not trained as a litigator, and had little experience with courtroom trials, but he bested his opponents time after time.

I think it was the early 90s when Joe first left the firm.  He said he was through with law practice for good.  His intent was to fly to a remote island in the South Pacific, arriving in the middle of the night with no place to stay and no plans.  He said he wanted to “live on the edge.”  At least that’s what he told me. Sometimes with Joe it was hard to tell where the truth ended and the story began.  About five years later he came back. We welcomed Joe back.

The best professional decision I ever made was to ask Joe if he would consider starting a new law firm with me.  I got a professional home, a mentor, a role model, and a lifelong friend.   When Joe came into my office I could count on laughing out loud before he left.  I was honored to be invited to Joe’s 75^th birthday at the Jules Verne Restaurant in the Eiffel Tower.  I think he invited me to that event in an effort to encourage me to do more international travel.  It was my first and only trip to Paris.  Travel was Joe’s passion.  He visited over 100 countries on six continents.

We are all indebted to this great man, me in particular.  I’m very proud to have been Joe’s friend and law partner.

DAWG BONE:  HAPPY BIRTHDAY, JOE.

Tomorrow:  Texas district successful at 5^th Circuit