In our Toolbox training, we emphasize the importance of a BIP—a Behavior Intervention Plan designed to improve the student’s behavior.  Of the ten tools in the Toolbox, the BIP is the most important. That’s why it’s Tool #1. 

Like all other components of a student’s IEP, a BIP is satisfactory if it is designed to achieve progress.  Perfection is not required.  That’s why a mother’s complaint that the BIP had not eliminated the student’s inappropriate behaviors was not enough for her to win her case.  The court noted that the student’s behavior had improved with the services provided by the school. Good enough. 

The court held that the student received FAPE, even though the school failed to implement one component of the IEP.  The IEP called for a personal aide who would be supervised two hours/week by a BCBA.  The school provided the aide, but for three months failed to provide the supervision by a BCBA. The court held that this did not impede the student’s right to FAPE. The only testimony that the student required the BCBA supervision came from the mother who “is not a behavior or education specialist.”  In contrast, the school produced testimony from a school psychologist that the supervision by a BCBA was not necessary. The court also noted that the student made progress on behavioral goals, albeit less than the parent would have liked. 

The case of A.W. v. Tehachapi USD, was decided by a federal court in California in 2019, and was affirmed in an unpublished decision by the 9^th Circuit on June 25, 2020.  We found it at Special Ed Connection, 120 LRP 19621. 

DAWG BONE: PROGRESS.   NOT PERFECTION.

Tomorrow: new Title IX decision from the 5^th Circuit

I remember seeing many educators wearing lapel pins bearing the inspiring slogan: ALL CHILDREN CAN LEARN.  That slogan reflected more than a lofty goal—it was the law.  The 1^st Circuit Court of Appeals established that in 1989 in Timothy W. v. Rochester, N.H. School District, 875 F.2d 954.  The school district in that case argued that Timothy was so severely disabled that he was incapable of receiving any benefit from education.  The school argued that the boy needed care and medical attention, but “education,” as we understood it, would not do any good. Therefore, the school argued, it was not required to keep trying. 

The court rejected that argument, relying largely on the title of the law at the time: The Education for ALL Handicapped Children Act (Emphasis added).  Key Quotes:

The language of the Act could not be more unequivocal. 

It never speaks of any exceptions for severely handicapped children. 

The language of the Act in its entirely makes clear that a “zero-reject” policy is at the core of the Act. 

Now, 31 years later, a federal court in Minnesota has found a child for whom “zero-reject” does not apply.  The facts of the case are horrific.  As a result of an asthma attack that happened at school and was allegedly very badly handled, the student is now in a permanent vegetative state.  The parents are now seeking damages under the ADA, Section 504, state law and medical malpractice standards.  The legal fight was over whether or not the parents were required to exhaust their administrative remedies under IDEA before filing suit.  The court held that they were not, and in doing so, made some observations that are contrary to the “zero-reject” philosophy of the law.  Key Quotes:

Because of the present condition of [the student]….the Court finds that there are no available remedies under the IDEA that would benefit her as she is unable to receive any form of education. 

Thus the parents were allowed to proceed with their suit, seeking recovery for monetary and other damages they have suffered.  Given the issue at stake, the court’s ruling makes sense.  The parents were not seeking any educational services from the district, so why should they have to pursue such services through a special education due process hearing?  But I suspect that the case would have a different outcome if the parents were seeking a new IEP or some new or different services from the district. In that context, the court would have likely cited Timothy W. and ordered the district to keep on keeping on in an effort to serve this student. 

The case is A.K.B. v. ISD No. 194, decided by the federal district court for Minnesota on March 26, 2020.  We found it at Special Ed Connection, 76 IDELR 129.

DAWG BONE: ALL CHILDREN CAN LEARN—YES, STILL THE LAW.

Tomorrow: Toolbox Tuesday!!

The Supreme Court has tossed a political football into the Texas legislature.   By holding that state constitutions cannot bar public money from going to religious schools, the Court has blocked any constitutional arguments about educational vouchers.  Importantly, however, the Court noted that states are never required to use public money for private schooling. 

So now it’s up to the state legislatures, operating with no constitutional guardrails, other than the requirement that all private schools—including religious ones—be treated equally.  Supporters of public education need to be prepared to speak out about bills that will be introduced in the next session.  We can no longer argue that such bills are unconstitutional. We must argue that they are unwise.  We can also argue that they are unfair, unless the bills include certain restrictions. 

Any private school that wants to accept public money, directly or indirectly, should be required to commit to accept any student who applies without regard to race, national origin, special needs, sex, sexual orientation, transgender status, religion, grade level performance or English language proficiency. They should not be allowed to impose any requirement on parents to participate or “volunteer” for any school activity.  They should have to comply with Chapter 37 when taking disciplinary action with students.  The students should be required to take the STAAR test and the school should be held accountable for the results.

After all, those are the rules that apply to the public school.  Those are the rules that go with the receipt of tax dollars.  There is not a private school in Texas that could, or would, agree to all those conditions.  That’s why they should not be receiving tax dollars meant to serve the public schools.

DAWG BONE: WANT TO TAKE TAX MONEY TO OPERATE YOUR SCHOOL?  PLAY BY THE SAME RULES.

When B.L. was relegated to the JV cheerleading squad for a second year, she vented her frustrations on Snapchat.  The snap included four F-bombs.  The objects of the four were 1) school; 2) cheer; 3) softball; and 4) everything.  A second sentence noted how unfair it was that she and another girl, sophomores, had to spend another year on JV when a first year student was admitted to the varsity. 

The school removed B.L. from the JV cheerleading squad for that year, citing the handbook and agreement the girl had signed, promising to refrain from disrespect toward coaches or cheerleaders, and to refrain from profane language. This was a condition of being a cheerleader. 

The Third Circuit Court of Appeals held that the school infringed on B.L.’s right of free speech.  It affirmed a lower court ruling that ordered the school to expunge this incident from B.L.’s disciplinary record, and pay nominal damages along with attorneys’ fees.   A big win for the ACLU. A big loss for educators trying to foster important values.    

This one goes on the Sheesh-O-Meter.

The most important student free speech case is still Tinker v. Des Moines.  In that case our Supreme Court recognized that students have constitutional rights during the school day. They don’t lose those rights when they walk into the public school.  But the Court also cautioned judges to consider how the “special characteristics of the school environment” properly limit the exercise of those rights.  Unfortunately, the only “special characteristic” that the 3^rd Circuit respects is the need for safety. 

Here’s another “special characteristic” of the public school: it’s the only public institution in our society charged with teaching values to children. The 3^rd Circuit gives lip service to this, and then puts ridiculous and arbitrary limitations on how educators can teach values.  Look at this:

The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students.  To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and by encouragement, but they may not leverage the coercive power with which they have been entrusted to do so.

Poppycock.  It’s dressed up in lofty language, but it’s unadulterated poppycock.  It undercuts the important work educators do every day to teach.  B.L. volunteered to try out for the cheerleading squad. She promised to be respectful to coaches and the program itself.  She violated that promise and the school district applied a consequence.  It was a teachable moment.  It remains a teachable moment, but now it’s one that teaches the wrong lessons. 

The coaches and administrators in the school district learned something.  They learned that what they thought was a fair application of the rules was, instead, leveraging the “coercive power” of the state.  I bet they thought that kind of language applied to a police officer kneeling on a man’s neck—not the one year suspension of a student from cheerleading. From JV cheerleading. 

Teaching values is as much a part of the curriculum as math.  Judges would never limit the teaching of math to “example, persuasion, and…encouragement.”  No. We expect educators to wield the “coercive power” of the state via assignments, grades, tests, all of which carry consequences.  But when it comes to teaching the value of keeping a promise, respecting others, and accepting that life sometimes treats us unfairly, this court confines educators to only a few tools: example, persuasion and encouragement.

No doubt B.L. and her parents learned some lessons from this as well. They could have learned that sometimes it’s best to accept life on life’s terms.  That things will happen to us that we think are unfair. They could have learned something about resilience.  Learning any of those lessons would have required a degree of humility.  Instead they equated a momentary teenage temper tantrum over a trivial issue with Mary Beth Tinker’s courageous protest of the War in Vietnam. 

Sheesh.

This one is B.L. v. Mahanoy Area School District, decided by the Third Circuit Court of Appeals on June 30, 2020. We found it at 2020 WL 3526130.

DAWG BONE: WE’D HAVE MUCH LESS LITIGATION IF PEOPLE WOULD RECITE THE SERENITY PRAYER.

Tomorrow: Gearing up for 2021.

Teacher/Coach Tanya Lyons believed that Katy ISD jerked her around because the higher ups in the district perceived her to have a disability.  The ADA and Section 504 protect employees from disability-based discrimination.  But the law is only concerned with “disabilities” not “impairments.”  Ms. Lyons may have had an “impairment” but she did not have a “disability.”  Therefore, the actions of the KISD could not possibly be discrimination based on disability.   

The decisive factor that tilted the court to favor the KISD was the transitory nature of Ms. Lyons’s impairment.  She had lap band surgery over the summer and was expected to fully recover within six months. That meant that she may have had an “impairment” but she did not have a “disability.” 

Duration is one factor that distinguishes “impairments” from “disabilities.”  The other factor is the level of impact on a major life activity.  An “impairment” becomes a “disability” only if it substantially limits a person in a major life activity.  Look around at the faces in your next Zoom call and I bet you will see a lot of people wearing glasses.  That means they have an impairment—but if, with the glasses, their vision is adequate, they do not have a “disability.”

Notice that the law is only concerned with “major life activities.”   I used to be a runner.  I can’t do that anymore, due to the bad knees.  But running is not a major life activity, even though it was very important to me.  I still walk just fine, so in the major life activity of walking, I am not substantially impaired. 

You have to be precise with your language when dealing with the law.  In casual conversation I tend to treat “impairment” and “disability” as synonyms.  But when I’m wearing my lawyer hat, I have to remember the different definitions.  Almost all of us have impairments.  Some of us have disabilities.

It’s Lyons v. Katy ISD, decided by the 5^th Circuit on June 29, 2020.  We found it at 2020 WL 3496855.

DAWG BONE: IMPAIRMENTS BECOME DISABILITIES ONLY WHEN THEY SUBSTANTIALLY IMPAIR THE PERSON IN A MAJOR LIFE ACTIVITY.

Tomorrow: Ex-cheerleader vents. 

Toolbox Quiz Time:

1.  How many tools are in the Toolbox?
2. Which one is the most important tool?
3. How many of the tools deal with a change of placement?
4. What is the FFZ?
5. Which tool deals with “special circumstances”?

First person to email me with five correct answers gets a one-year extension for the Daily Dawg subscription.

Go. 

It’s jwalsh@wabsa.com. 

DAWG BONE:  ANOTHER YEAR OF THE DAILY DAWG!! FREE!!! WOO HOO!!!

Tomorrow: Impairment. Disability.  Same thing?

For public schools, Espinoza v. Montana Department of Revenue is the most consequential decision of this year’s Supreme Court term.  By the slimmest of margins (5-4) the Court paved the way for states to use public funding to support private education.  Look for this to be a major issue in the 2021 Texas legislative session. 

Montana enacted a bill that allowed people to get a tax credit for donating to a nonprofit organization that would pay for private school tuition.  Put yourself in the shoes of a Montana taxpayer who owes $1000 in state income tax.  Under this scheme, you can handle this in one of two ways:  1) pay the $1000 to the state; or 2) make a $150 contribution to the nonprofit, and pay $850 to the state.  Tax credits were capped at $150.

Let’s consider winners and losers:

WINNERS:     Families who send their kids to private schools.

                        Schools.

NEUTRAL:    The taxpayer. 

LOSERS:        The state.

                        The public schools.

                        Public school employees.

My classification of the Taxpayer as “neutral” is accurate only insofar as dollars and cents is concerned. Either way, our Taxpayer is out $1000. But by choosing to donate to the nonprofit, the Taxpayer has the psychic satisfaction of controlling how tax dollars are spent.  Power! Sticking it to the Man!! So our Taxpayer should probably be classified as Neutral Plus.

Can a scheme like this be enacted if the money is going to go to a private school that is operated by a religious organization?  Most private schools are. So if you are going to use public money to support private schools you are inevitably going to be supporting the local Catholic school, the Jewish academy, the mosque school.  Is that OK?

Five members of the Supreme Court held that it is OK. In fact, they held that states are never required to use public money to support private schools, but if they choose to do so, they cannot limit the funding to non-religious schools.  You have to let Sister Mary Holy water in on the deal. If you don’t, you are infringing on the rights of parents to freely exercise their religion.

This is going to be a big issue in the next legislative session.  It’s an issue in the election this fall, as there are many running for office who support public dollars going to private schools.  Let’s get ready.

DAWG BONE: IF PUBLIC FUNDS GO TO PRIVATE SCHOOLS, THE RELIGIOUS SCHOOLS HAVE TO BE INCLUDED.

Tomorrow: Toolbox Tuesday!

On Monday I told you the story about the teacher who was seen by his superintendent participating in the Gay Pride parade.  I gave the superintendent some advice that was good then, and still good now.  Today….a different story. 

Let’s ride the Wayback Machine to about 1982.  A small Texas school district had an opening for an English teacher.  A college professor from Oregon applied, and drove all the way down to Texas for an interview.  She was quite impressive. The superintendent offered her the job.  Before she left, she asked about housing options in the small town. The superintendent recommended that she meet with Mrs. Smith, another teacher in the district who owned some rental properties.  They shook hands and the lady headed out to find Mrs. Smith, and then head back to Oregon to pack up for the move to Texas.

A few days later the superintendent bumped into Mrs. Smith and found out that her encounter with the district’s new teacher had not gone well.  Mrs. Smith indignantly proclaimed that she would never rent to “it.” 

“It”???  Mrs. Smith then explained that this new teacher was no lady, but rather, a man dressed up as a woman.  She cited the hands, the voice, the Adam’s apple.  

The superintendent did more research on the woman’s background and confirmed Mrs. Smith’s hunch.  The clincher was the record of the valedictorian of the high school class the woman graduated from.  She was indeed the valedictorian. Same last name. Same social security number.  But her name was John—not Jane.  The superintendent was confident that his new hire would not be well received in the community. But the contract had already been approved.

That’s when I got the call.   Could the district terminate the contract based on the woman’s sexual transformation? I’m not sure we even knew the word “transgender.”  That’s when I got the call.   Could the district terminate the contract based on the woman’s sexual transformation? I’m not sure we even knew the word “transgender.” 

I did my research and concluded that the district could back out of this contract without legal liability.  Neither transgender nor homosexual individuals had any legal protection in those days.  Of course you could not discriminate on the basis of sex, but I had that figured out:  “Your honor, this is a woman who used to be a man, but if we were dealing with a man who used to be a woman, we would do the same thing. It has nothing to do with sex.”  So I advised the superintendent to contact the woman and see if he could negotiate a resignation. 

That was good legal advice in 1982, but not today.  Last month at the Supreme Court that argument mustered only three votes.  The majority of the Court concluded that discrimination based on sexual orientation or transgender status was the same thing as discrimination based on sex. 

I’m grateful that the superintendent did get that resignation.  This superintendent was one of the kindest men I have known, and I’m sure he approached the conversation with courtesy and respect.  But he advised the Oregon professor that she would not find this small town in Texas a welcoming place.  She understood and made only one request:  would the superintendent reimburse for the gasoline for the round trip from Oregon to Texas.  Yes, indeed, he certainly would.

Just imagine: if the woman had stood her ground and sued, the district would have prevailed. The law was on the district’s side.  Then that decision, Transgender Oregon Professor v. Small, Rural Conservative Texas School District would have been one of the cases overturned by the Supreme Court’s historic ruling last month.

DAWG BONE: TIMES CHANGE, THE LAW CHANGES, AND THE ADVICE HAS TO CHANGE WITH IT.

I used to offer people a nickel if they could tell me a lawyer joke I’ve never heard.  I rarely had to pay up.  I take some pride in being a member of a profession that has its own genre of jokes, and so I tend to listen for them and remember them. 

Here’s one that goes back a long way.  Two guys are in a hot air balloon and they have drifted off course.  They eventually get the balloon low enough that they can talk to a man driving a tractor in a field.  The conversation goes like this:

GUY IN BALLOON: Hello! Hello!! Can you tell me where we are?

TRACTOR DRIVER:  I’d say you’re about 75 feet, straight overhead. 

GUY IN BALLOON: Thanks…..

FIRST GUY: I know he looked like a farmer, but look at what just happened.  We asked him a question.  He gave us an answer.  I’m sure that his answer was completely accurate.  And we are just as lost now as we were before we asked him. 

The Second Guy remained skeptical until they found their way home and a week later received a bill from a law firm for $50.

That joke works because legal advice is often like that: accurate, but not helpful.   When you talk to a lawyer, you should be sure that you get an answer that is clear.  Make sure that you understand what you MAY do; what you MAY NOT do; what you MUST do. 

Of course the law is often murky and ambiguous. One client I know is always in search of a one-armed lawyer who won’t be able to say “…on the other hand.”  Oftentimes legal advice has to be couched in terms of risk.  Lawyers say things like “You can do that, but there is a high likelihood that you will have to defend your decision in court.” Clients want to know exactly how things are going to play out, and no lawyer can promise that.

Legal advice is a two-person game.  As the client, your job is to give the lawyer all of the information available.   The lawyer’s advice is dependent on the facts as the lawyer understands them. If the lawyer’s understanding of the facts is wrong, the advice is worthless.  The client is responsible for making sure that the lawyer understands the facts.  The lawyer should ask all the questions that are necessary to get to that factual understanding. 

Since the baseball season is actually starting today let me offer an analogy. The relationship between client and lawyer is like the relationship between shortstop and second baseman when turning a double play.  Both have to do their jobs for the play to succeed.  The quicker and more accurately the shortstop fields and tosses the ball, the easier it is for the second baseman to complete the play. 

At Walsh Gallegos, we try to ask the right questions to make sure that we understand what the facts are, and what the client’s goal is.  That’s how we help the people who help the kids. 

DAWG BONE:  GOOD LEGAL ADVICE REQUIRES TEAMWORK.

Tomorrow: transgender teacher comes to Texas

Should you provide a 504 plan to a student before making a referral for a special education evaluation?  A recent decision from the 5^th Circuit sheds light on this common dilemma. 

The case was about a 5th grade boy with behavioral issues.  Here’s how the court described what happened on the second day of the school year: 

[The student] held up his middle finger, used obscenities, and refused to follow directions.  When administrators came to the classroom to assist the teacher [the student] who was sitting on a bookshelf and refusing to come down, hurled insults laced with pejorative, vulgar, and racist terms.  He then moved on from hurling words to hurling objects, throwing writing utensils at the assistant principal.

This was not an isolated incident.  By early October, the court noted, the boy was interrupting classes daily. The parents had already told the school about the boy’s behavioral issues, some diagnoses that he carried, and had put school officials in touch with professionals in the private schools the boy previously attended.   In other words, the school was on notice that the boy had significant behavioral issues that needed attention. 

The district offered a 504 plan on October 8^th.  By mid-January, when things had not improved much, the district made a referral for a special education evaluation.   When the parties ended up in court, the parents argued that the district waited too long to make the referral, thus violating the Child Find duty. The district defended its decision by pointing out that it did not just sit back and do nothing—it implemented the 504 plan. 

The 5^th Circuit ruled that the district waited too long, and in doing so, laid down some important markers for the proper and improper use of Section 504.  Key Quote:

We in no way suggest that a district necessarily commits a child find violation if it pursues RTI or Section 504 accommodations before pursuing a special education evaluation.  We instead recognize that determining whether a child find violation occurred is a fact-intensive inquiry and highlight that Section 504 accommodations are not a substitute for an evaluation once a school district is “on notice of acts or behavior likely to indicate a disability.”  (Emphasis in the original).

The court cited a 3^rd Circuit case in which the court held that a school acted properly by trying 504 accommodations prior to referring for a special education evaluation.  But, as the court noted, the school was seeing only mild behavior issues.  The 3^rd Circuit described the student’s behavior as “typical of boys his age.”  The boy in Spring Branch, on the other hand, was not a typical 5^th grader:

By the time the Section 504 meeting occurred on October 8, 2014, [the student] had repeatedly drawn violent pictures depicting murder, death, and anti-Semitic images; used incredibly vulgar language and made lewd gestures in the middle of the classrooms; disrupted class by yelling obscenities; hurled racial slurs and other derogatory insults at the principal, teacher, and fellow students; refused to follow directions or even remain in the classroom; thrown crayons at the teacher; and engaged in other forms of misconduct that resulted in him being removed from the classroom on a daily basis.  (Emphasis in the original).

Don’t abandon Section 504.  It has its place. But when you see evidence of severely disturbing behavior, along with some indication that a disability might be present, there should be no delay in going to a special education referral.  Keep in mind that a school can begin the evaluation process and implement 504 accommodations at the same time.  Beginning that evaluation process is what fulfills the Child Find responsibility. 

The case is Spring Branch ISD v. O.W., decided by the 5^th Circuit on June 12, 2020.  We found it at 2020 WL 3118754.  The court issued this opinion in response to the district’s Motion for Rehearing after the court’s original decision, which also went against the district.  This opinion is not much different from the original, but the discussion of Section 504 is one place where the court amended the original decision. 

DAWG BONE: CHILD FIND DUTIES ARE SATISFIED BY A SPECIAL EDUCATION EVALUATION—NOT A 504 PLAN.

Tomorrow: Heard any good jokes lately?