In the Toolbox training program that our firm provides we recommend leaving the negative, punitive stuff out of a student’s BIP.  By the “negative, punitive stuff” I mean the provisions in your Code of Conduct that describe various consequences for bad behavior.  This includes things like suspension, ISS, denial of privileges and that sort of thing.  I frequently get questions about this recommendation, so let me offer a brief FAQ.

What’s wrong with the “negative, punitive stuff”?  Nothing. We just think that it ought to be kept where it belongs, which is in your Code of Conduct.

Is that required by law?  No.  It’s just a recommendation.  You have a lot of leeway in how you write a BIP and what you include. 

Why do you make that recommendation?  The law does not define the content of a BIP, but it describes it by using words like “positive behavioral interventions and supports, and other strategies.”  The negative consequences that are spelled out in your Code of Conduct do not match that description.  They are, as noted above, negative and punitive.  Think of it this way: the Code of Conduct is the “bad cop” and the BIP is the “good cop.”  They each serve a purpose, but they are different.  We also think that too many people think of a BIP as a student’s personalized Code of Conduct.  The more you clutter up the BIP with provisions from the Code of Conduct, including limitations and exceptions, the more you add to that perception.  No one has a personalized Code of Conduct. The Code applies to all students.

Can our administrators apply the Code of Conduct to a student with a disability if the BIP does not say so?  Yes.  However, there are provisions in the Code that require ARD Committee action, rather than the decision of an administrator.  In Toolbox terms, administrators cannot use Tool #6 (Disciplinary  Change of Placement) without holding an ARD meeting, but they can use Tools #7, #8 and #10—all of those are either short term actions, or involve bringing in law enforcement. Those actions are already authorized by your Code of Conduct. 

But we want to be sure that parents understand that the Code still applies.  So tell them.  Hand them another copy of the Code.  In the Toolbox Training we offer some specific language to include in some of your forms to accomplish this.  The message is that the Code still applies. The BIP describes the services the school will provide to help the student comply with the Code.

DAWG BONE: THE CODE DESCRIBES WHAT YOU DO TO A STUDENT. THE BIP DESCRIBES WHAT YOU DO FOR THE STUDENT.

I was sorta joking a few months ago when I pointed out how diagramming sentences was helpful in reading and understanding court cases.  Some of you may recall we had some fun with this when we Zoomed with the Dawg and we talked about our memories of diagrammed sentences in English class. Well, lo and behold, the 10^th Circuit issued a decision recently in which the court not only talked about diagramming sentences, it did it!

The case is too boring to write about. It deals with the deadline for a school district to seek attorneys’ fees in an IDEA case.  Yawn.  The critical sentence that merited diagramming in the court’s opinion was the following, from the New Mexico Administrative Code:

Any action for attorneys fees must be filed within 30 days of the receipt of the last administrative decision.

That sounds pretty straight forward, but you know how lawyers are.  The parties disagreed about the meaning of the term “last administrative decision.”  To resolve the dispute, the court actually diagrammed this sentence along with another sentence from another provision in the Administrative Code.  Two diagrammed sentences in the published court opinion!   English teachers rejoice.  What you do matters.

The case is Board of Education of Gallup-McKinley County Schools v. Native American Disability Law Center, decided by the 10^th Circuit on May 19, 2020. You can find it at 959 F.3d 1011 or 76 IDELR 174.

DAWG BONE: SUBJECT.  VERB.  OBJECT. 

What is going on in Jersey????  This lawsuit is all about delays in conducting special education due process hearings.   The complaint cites cases of hearings delayed by anywhere from 75 days to 836.  836!  That’s two years plus 106 more days!  The court noted that slight delays from the 45-day timeline may be viewed as excusable procedural errors, but other cases cross the line from a procedural error to a substantive one. These lengthy delays crossed that line. 

No kidding.  Sheesh!  The case is C.P. v. New Jersey DOE, decided by the federal court for New Jersey on May 22, 2020.  We found it at 76 IDELR 214.

DAWG BONE: BE GRATEFUL FOR T.E.A.

Jaylon Sewell alleges that he was harassed all year by the dean of students, starting on the first day of school.  That day the dean asked teachers to send any student to the office who had dyed hair.  The dress code prohibited “hair dyed with outlandish colors.”   The student claims that the hair at Neville High School replicated the rainbow, that all sorts of kids, white and black, boy and girl, had dyed hair of “outlandish” colors.   Jaylon’s hair was described as “two-toned blonde.”  I have never thought of blonde as an “outlandish” color, but apparently someone did. Jaylon was  sent to the office.  

It turns out that the only students who were sent to the office that day were kids like Jaylon--African-American males, and Jaylon was the only one actually disciplined for violating the dress code. He was suspended on day one.

Jaylon’s mom was quick to complain of discrimination, meeting on the next day with the principal and the superintendent.   Jaylon returned to school, where he claims that the dean of students began a campaign of verbal abuse, calling him a “thug” and a “fool.”  Jaylon alleges that the man asked him if he “was gay with that ‘mess’ in his head.’” 

The school suspended the student and recommended his expulsion in November.  Jaylon alleges that was all based on phony charges cooked up by the dean of students.  The school board voted not to expel, finding the timing of events suspicious.  This all hit the media in the spring semester.  As a result, Jaylon alleges that the harassment picked up steam, leading him to be distraught and traumatized.

Those are the allegations in the lawsuit.  They have not been determined to be true.  No testimony has been taken, and no one has been subject to cross-examination.   But the court was ruling on the school’s Motion to Dismiss for Failure to State a Claim.  In that situation the court is required to assume that all of the allegations are true, and to make all reasonable inferences from those allegations that would support the case.  Courts are not going to toss a case out at an early stage unless they are sure that the allegations cannot plausibly add up to a legitimate claim.

The court concluded that Jaylon’s allegations plausibly make a case of racial discrimination in violation of Title VI and sex discrimination in violation of Title IX.  How did the court come to that conclusion?

WAS IT ABOUT RACE?  As to the racial angle, the court said:

First, it is plausible that [the dean’s] harassment of [the student] stemmed from a discriminatory view that African-American males should not have two-toned blonde hair.  Most obviously, [the dean] treated [the student] differently from students who were not black males.

And he called [the student] a “thug,” a term that could be race-neutral or racially charged, depending on context….At the pleading stage, [the student] is entitled to the latter characterization.

WAS IT ABOUT SEX?  There were sufficient allegations to sustain that charge also:

[The dean] asked if [the student] “was gay with ‘that mess’ in his head,” which could imply animus toward males who do not conform to stereotypical notions of masculinity.

HOW BAD WAS IT?  This was a “hostile environment” case.  To prevail on that theory you have to allege that the harassment was really bad. The legal verbiage is “severe, pervasive, and objectively offensive.”  The court said that Jaylon passed that test:

Intense verbal abuse that comes from an authority figure—like a school administrator—and persists for most of the school year can constitute a hostile environment.

DID THE SCHOOL KNOW ABOUT IT?  The superintendent knew about Jaylon’s allegations and that was enough to put the district on notice.  The mom had spoken directly to the superintendent, and filed a grievance with the board, which the superintendent knew about.   Not only did the superintendent have information about the dean’s alleged harassment of the student, he was in a position to put a stop to it.  Thus an “appropriate person” allegedly knew what was happening and could have done something about it. 

WAS THERE “DELIBERATE INDIFFERENCE”?  This is where most “hostile environment” cases fall short. The court noted that “Deliberate indifference is a tall hurdle.” But at this early stage, the allegations are that the district did nothing after being put on notice. That’s enough to keep the case alive.  Key Quote:

Doing nothing is the classic case of indifference.

Lessons?  Harassment based on the failure to conform to gender stereotypes is the same as any other kind of sexual harassment.   “Thug” may be viewed by a court as a racially-charged word.  Verbal abuse by an administrator is a serious thing.  The case is Sewell v. Monroe City School Board, decided by the 5^th Circuit on September 10, 2020.  We found it at 2020 WL 5416305.

And if anyone knows if Neville High School is named for Aaron Neville, please let me know. I did some Google research but did not find the answer.

DAWG BONE: MAYBE IT’S NOT SUCH A GREAT IDEA TO BAN “OUTLANDISH” COLORS OF HAIR.

Tomorrow: One for the Dawg’s Sheesh-O-Meter!

The 5^th Circuit has affirmed a ruling in favor of Dallas ISD in a case involving excessive physical punishment.  The mother of an 11-year old girl alleged that her daughter suffered physical injuries after a P.E. coach required the girl to do 260 “ceiling jumps.”  Here’s how the court defined this exercise:

A ceiling jump involves squatting down with both hands and hips to the floor, then jumping up with one’s hands toward the ceiling.

When I was in junior high, the coach called these “squat thrusts.”  Some folks apparently call this form of exercise “burpees.” Whatever you call it, it’s no fun, and doing it 260 times without a break, as a result of failing to “dress out” for P.E. could be classified by some as an “aversive technique” prohibited by Texas law.  But the case in Dallas arose in 2016, before that law was enacted.  The mother sued Dallas ISD, the coach, the principal and a school nurse, alleging that her daughter’s constitutional rights had been violated, and that the district violated Title IX.

The lower court dismissed the suit entirely in two opinions.  In a nutshell, the message from the court was that a suit like this belongs in state court, not federal court.  Did the coach inflict an excessive punishment?  DISD investigators determined that he did.  That could lead to personal liability for the coach in state court.  But his actions did not violate any constitutional rights. Nor did the district engage in intentional sex discrimination in violation of Title IX

The only issue appealed to the Circuit Court was about sex discrimination under Title IX.  But the allegations in the case expressly said that the teacher treated the boys and the girls the same.  So how could treating the kids the same be discriminatory?  The court tells us that the Petition:

alleged that [the teacher] treated boys and girls the same even though professional standards of care required him to treat them differently.  She asserted that [the teacher’s] P.E. program violated Title IX because it did not consider the physical and metabolic differences between boys and girls.

Give us our due—we lawyers are a clever bunch.  Only a clever lawyer can take a statute that requires equal treatment of boys and girls and then assert that a teacher who treats the boys and girls the same has violated the statute.  Clever. But clever does not mean correct.

The lower court held that this argument “is just another way of alleging disparate impact” which is a theory of liability that Title IX does not permit.  The district was not liable because the district did not intentionally violate Title IX. The 5^th Circuit affirmed that reasoning and that result.

The lower court’s first decision was on June 21, 2019 and can be found at 2019 WL 2568681.  It’s in the Daily Dawg on September 16, 2019.  Its second decision came out on December 30, 2019, and is at 2019 WL 7305216.  That one was reported in the Daily Dawg on February 24, 2020.  The 5^th Circuit decision was issued on September 10, 2020. The 5^th Circuit opinion is “unpublished” which means it will not show up in the official reports, and is not to be cited as precedent. But it sure makes for interesting reading.  All three opinions are styled Poloceno v. Dallas ISD, 2020 WL 5494511. 

DAWG BONE: IF THEY REPEATEDLY FAIL TO “DRESS OUT” MAYBE WE COULD COME UP WITH SOMETHING OTHER THAN 260 BURPEES.

Tomorrow: a major decision from the 5^th Circuit

It’s Toolbox Tuesday here at Daily Dawg HQ.  When I am looking for a case to tell you about on Toolbox Tuesday I look for passages in the court’s opinion like this:

E.C.’s disability manifests itself in aggressive, disruptive, disobedient, offensive, and sometimes violent behavior.

Yep. That’s a Toolbox case! The Toolbox is our firm’s one-day training program designed to help you serve students like E.C.  There are three lessons we can learn from this Toolbox case from Kansas.

PHYSICAL RESTRAINT.  First, you don’t have to do a manifestation determination prior to using physical restraint.  Nor do you have to do one after you use physical restraint.  In this case the parents alleged that the district used restraint to deal with behavior that was a manifestation of disability.  The parent argued that this amounted to disability discrimination in violation of Section 504 and the ADA.  The court refuted that argument, citing 10^th Circuit precedent that permits certain types of “regulation” of conduct even when the behavior is a manifestation of disability:

Even though E.C. alleges that all of his actions were “manifestations of his disability,” the 10^th Circuit has specifically held that “a student’s conduct may be regulated,” even if it is a “manifestation of his disability.”

This is a fundamental point that is often overlooked.  The manifestation process is required only when the school proposes a disciplinary removal that amounts to a change of placement.  That’s Tool #6 in the Toolbox. Other forms of regulation of conduct are permitted, even when behavior is a manifestation.

Of course that does not mean that physical restraint is an unimportant event.  Every instance of physical restraint is an indication that the student’s behavior plan is not working as well as we would like.  The parents should be promptly informed.  A record of it should be kept in the student’s file, and the ARD Committee should discuss the situation at the next annual ARD if not before.  Our state laws and regulations require all of these common sense steps.

THE LABEL.  Another thing we learn from this case is that the disability label is less important than the services provided to the student. That’s hardly news. We have seen many court cases making the same point.  But here we have another parent determined to have the autism label on the paperwork.  The court held that the label was “immaterial.”  The court affirmed the ruling of the hearing officer who heard multiple witnesses testify how the IEP addressed the special needs of the student appropriately.  Thus the label attached to the IEP was not important:

E.C.’s IEP contained extensive provisions, including a detailed BIP, and the record shows that the behaviors it sought to address and improve were the same, or substantially the same, as those that witnesses testified are associated with autism.

PARENTAL ERROR.  One more lesson, and it’s another familiar one: parents act unwisely when they refuse to allow the school to conduct an evaluation.  The court held that the parents were “estopped” from complaining about the lack of an autism label on the IEP because they repeatedly refused to consent to an evaluation requested by the school.

This is the case of E.C. v. USD 385 Andover.  There are two reported district court decisions for this case, at 74 IDELR 94 and the more recent at 76 IDELR 212. Both were decided by the federal court for Kansas, the second one on May 27, 2020.

DAWG BONE: “ESTOPPED” IS A GREAT LEGAL WORD, BUT ONE WE RARELY ENCOUNTER IN SPECIAL EDUCATION CASES.

Tomorrow:  Ceiling jumps, squat thrusts and burpees at the 5^th Circuit

Normally, judges are quite interested in what an expert has to say.  If a witness qualifies as an “expert witness” their testimony will be important.  Expert witnesses are often called in education cases. There can be experts on reading, autism, behavior, child development, etc.  But in a recent decision the 9^th Circuit held that the lower court was correct when it refused to even consider the input of an expert. 

Context: this was a suit brought by an organization of Hindu parents who believed that the California State Standards disparaged that religion, and treated it unfavorably compared to Christianity, Judaism and Islam.  They produced the report of an expert on the history and beliefs of the Hindu faith.  The court said, in effect, “we don’t care what the experts think. What do ordinary people think when they read the State Standards?”  Key Quote:

We must evaluate the Standards and Framework from the perspective of an objective, reasonable observer, and not that of an academic who is an expert in the field.

With that perspective in mind, the court found nothing disparaging or unequal in the treatment of the Hindu faith compared to any of the other world religions. 

The more important lesson of this case is that courts are not going to micromanage school curriculum decisions, or allow a small group of parents to do so.  This is just one of many instances in which a well-intentioned group of parents try to dictate what is taught in the public schools.  In this ruling the 9^th Circuit relied heavily on an earlier case in which the plaintiffs were offended by racially derogatory terms in books like Huckleberry Finn.  Those parents were rejected, as were the Hindu parents. 

There are several good quotes from this decision:

….once parents select a school for their child, parents cannot “compel public schools to follow their own idiosyncratic views as to what information the schools may dispense.”

Parents therefore do not have a due process right to interfere with the curriculum, discipline, hours of instruction, or the nature of any other curricular or extracurricular activities.

One judge added a concurring opinion that included this:

Plaintiffs’ efforts to wring an Establishment Clause violation from subtle differences that they perceive in the curricular treatment of various religions does not withstand scrutiny, and, if accepted, would paralyze educators in their lawful objective of treating religion as a topic relevant to world history.

This one is California Parents for the Equalization of Educational Materials v. Torlakson, decided by the 9^th Circuit on September 3, 2020.  We found it at 2020 WL 5247607.

DAWG BONE:  IN CALIFORNIA IT’S THE STATE STANDARDS.  IN TEXAS IT’S THE TEKS. 

Tomorrow: Toolbox Tuesday!!

Hope you can join Blake Henshaw and I at “Zooming with the Dawg” at 10:00 this morning.  It’s a freebie for Daily Dawg subscribers.  If you are not signed up yet, send an email to info@wabsa.com.

Maybe today we will talk about the utter unfairness of the fact that we men are still required to register for the draft while you women are not. What’s with that???  I thought we were living in the Age of Aquarius and Gender Equity.  Where is Title IX on this?  If you have been a regular reader you know that we have reported several cases of late about sex discrimination.  The Supreme Court ruled that “sex” includes sexual orientation and transgender status.  Transgender kids continue to prevail in litigation against school districts.  A boy with long hair in a Texas district convinced the court that the dress code discriminated on the basis of sex. 

And yet.  At age 18, a young man is required under penalty of law to register for the draft, even though no draft exists.  You still have to turn yourself into the federal government to be put on the list.  You have to let the government know that you are willing to suffer and die for your country if called upon.   Young women turn 18 and do not have this on the to-do list.  Blatant discrimination based on sex.  Where is the righteous indignation from the women’s groups?  

This is not just a random rant.  The issue came up recently before the 5^th Circuit.  The National Coalition for Men sued, claiming that the law requiring only men to register for the draft was unconstitutional.  The 5^th Circuit noted that the U.S. Supreme Court dealt with the same issue in 1981 and ruled that the male-only draft was legal, Rostker v. Goldberg, 453 U.S. 57 (1981).  The 5^th Circuit noted that it was required to follow Supreme Court precedent, that only SCOTUS can overrule its own precedents.  National Coalition for Men v. Selective Service System, August 13, 2020.

So what was SCOTUS thinking in 1981?  The Court noted that President Carter had recommended to Congress that women should be included in draft registration. Congress gave the matter considerable thought and said no.  The rationale was that a draft was viewed as something that would only occur in an emergency requiring combat troops.  In 1981, the law barred women from combat positions. So the Court reasoned that, for purposes of military service, men and women were not “similarly situated.” So it was OK to require the guys to register when the gals did not have to.

Of course things are different now. Women can and do serve in combat.  The sexes are “similarly situated” and so the rationale for the 1981 decision is kaput.   So maybe if SCOTUS takes this up our country can rid itself of this anachronistic relic of the sexism of days past.   I envision RBG writing the opinion for a unanimous Supreme Court.

All of this caused me to dig up my own Selective Service Registration Card, duly authorized shortly after my 18^th birthday.  It says that I stood 5’10” and weighed 130 pounds.  Half of that is still true.

Hope to see you at 10:00 today!!

DAWG BONE: OR MAYBE CONGRESS WILL JUST DITCH THE DRAFT.

Special education is governed by many words.  Words in statutes. Words in regulations. Words in court cases.  But underneath all of that writing is an unwritten rule:   Everyone involved is expected to act reasonably.   When the parent violates that unwritten rule, the court just might overlook some errors made by the school district. Such is the case of Sanchez v. District of Columbia.

The court held that any denial of “meaningful participation” was harmless. This was based on the mother’s failure to cooperate as the school proposed to move the student from one private school to another.  Key Quote:

…DCPS actively worked to involve Sanchez in its decisionmaking process…..Sanchez declined to participate in these efforts, despite DCPS’s concern that [the current private school] was not serving Z.B.’s needs.  In the spring of 2017 DCPS repeatedly tried to meet with Sanchez to discuss a possible transfer. Yet Sanchez offered only an unreasonably small window of availability and rejected many proposed meeting times, including some that fell within her preferred timeframe.

Mom’s case was further undercut by the fact that the father got actively involved and approved of the transfer. The courts are always assessing the comparative reasonableness of the parties. Because of the mother’s unreasonableness, the court overlooked what might otherwise be considered serious procedural errors.

Of course the best practice is to avoid making procedural errors in the first place. But if you do err, the “unwritten rule” might come to your rescue. This one went all the way to the D.C. Circuit Court and was decided on May 14, 2020. We found it at 76 IDELR 175.

DAWG BONE: TO ERR IS FORGIVABLE.  TO BE UNREASONABLE IS NOT.

Tomorrow: Zooming!

Yesterday’s Daily Dawg was a bit longer than usual. Today we go short, with a quick follow up on one of the main points from yesterday.  You will recall that yesterday’s case involved the potential liability of an assistant principal in Missouri who was charged with violating local policy. That policy said that when police officers questioned a student at school “the principal or designee will be present.”  Because that policy left no room for discretion or judgment, the A.P. was not able to claim “official immunity.”

You should check out your school’s policy on this subject.  It’s at GRA (Local).  I looked up four districts at random and they all had the same language: when law enforcement questions a student, other than in a child abuse investigation, “the principal or a designee ordinarily shall be present…”

That’s not quite as directive as the Missouri policy, but it’s close.  “Ordinarily” someone must be present.

There are two very simple rules about local policy.

• • • • • Rule One: Know What It Says.
        • Rule Two: Do What It Says.

DAWG BONE: KNOW IT.  FOLLOW IT.