In our firm’s Toolbox Training we repeatedly emphasize that Tool #1 is Tool #1 for a reason—it’s the most important tool in the box.  If Tool #1 works, you can put away the rest of the tools. Tool #1 is a Behavior Intervention Plan, a BIP.

IDEA requires educators to consider developing a BIP on a regular basis.  The law requires IEP Teams (ARD Committees in Texas) to ask themselves this question at every annual ARD meeting: Does the student have behaviors that impede the learning of the student or others?   It should be asked at other times as well. 

If the answer to the question is “yes,” the ARD Committee members should proceed to think about ways to address the behavior.  One way is to develop a BIP. It’s not the only way, but it’s one way.  To craft a good BIP you need evaluation data. This is usually done through an FBA—Functional Behavioral Assessment.  You need parent consent to do an FBA. 

We remind you of all this just to get to the case that provides today’s lesson.  A federal court in Pennsylvania held that the district failed to develop a consistent and systematic plan to address the student’s inappropriate behaviors.  The court noted that the district needed parent consent to do a behavior plan, but it never sought consent.  The school had an informal plan to address behavior that was not working.  A more “consistent and systematic” approach was needed.

In the request for parent consent, the district stated that its proposed evaluation would include “parent and teacher input forms, behavior rating scales and classroom observations.”  Notably, the parent was not specifically asked to consent to a FBA. That turned out to be a costly error. 

The case is Colonial School District v. N.S., decided by the federal court for the Eastern District of Pennsylvania on March 27 2020.  We found it at Special Ed Connection, 76 IDELR 127.

DAWG BONE: NEED A BIP?  DO AN FBA.  NEED AN FBA?  GET PARENT CONSENT.  NEED PARENT CONSENT?  ASK FOR IT.

Tomorrow:  Section 504 has its limits.

Just last month the Supreme Court held that discrimination on the basis of sexual orientation or transgender status violates Title VII of the 1964 Civil Rights Act.  Reflecting on the historic nature of that decision I recalled some advice I’ve given over the years. Today I will tell you a story about a situation in which my advice was right then, and right now.  Later this week I’ll tell a different story.

It must have been sometime in the 1990s.  It must have been June—Pride Month.  Monday morning, first cup of coffee and there is Superintendent Goodguy on the phone.  I mean no sarcasm in that made up name—this superintendent, now long retired, truly was a good guy and one of my favorites.  The supe told me that he had been in Austin over the weekend, and just happened to see the Gay Pride Parade going down Congress Avenue.   To his surprise, he saw one of his teachers marching, holding a sign supporting gay rights.  There followed this exchange:

SUPE: What should I do about it?

LAW DAWG: Nothing

SUPE: Should I tell the board?

LAW DAWG: Not a good idea

SUPE: I was pretty sure that would be your advice.

When we got off the phone I thought about a bit.   I just advised the superintendent that it would not be a good idea to pass this information along.  Was that the right advice?  Keep in mind that I don’t represent the superintendent, or any of the individual board members.  Our firm represents the school district, which acts through the board and the superintendent. Was I right to advise that it would not be a good idea to tell the board what the superintendent saw?

Absolutely. And it has nothing to do with sexual orientation. It has to do with free speech.  The superintendent assumed that the man was gay.  Probably so, but we did not know that for sure.  Moreover, it was irrelevant. What was relevant and what we knew for sure was that the man was an American citizen exercising his right of free speech on a Saturday, an hour away from his hometown.  I asked the superintendent if the man was a good teacher.  “He’s an excellent teacher,” he replied.   

If the superintendent passed this information along to the board, it would be putting into the heads of the board members information that could not form the basis of an adverse personnel action.  Personnel actions, whether positive or negative, should always be motivated by job-related, non-discriminatory, non-retaliatory motives. What this teacher chose to do with his free time on a Saturday was not the business of the superintendent or the board.  And that goes double for activity of the teacher that is constitutionally protected.   Nothing good could come from that information being passed along to others, especially those who would be making decisions about the teacher’s future employment. 

DAWG BONE: SOMETIMES SILENCE IS THE BEST RESPONSE.

Tomorrow: Toolbox Tuesday!

A 15-year old girl in El Paso complained of child abuse.  District officials made a child abuse report and contacted law enforcement.  The county sheriff’s office conducted a preliminary investigation and determined that this was a child discipline issue and the mother had the right to take the child home.  But the girl said she was afraid to go home.  The school’s At-Risk Coordinator then arranged for the girl to be taken to a shelter at the Center Against Family Sexual and Domestic Violence.  No one told the mother, even when she came to the school to pick her daughter up.   Here’s how Commissioner Morath summarized the situation: 

The record is clear that several school officials knew that Petitioner/mother had come to pick up her daughter from school on May 7, 2019 and she was not told that her daughter was in the counselor’s office waiting to be transported to a shelter.  In fact, the Executive Director of Student and Parent Services, the Level II grievance decisionmaker, found that “the campus staff should have informed [the parents] that the Center for Family and Sexual Violence was contacted, involved in the situation, and that [their daughter] was taken to the shelter if known by the staff.”  The record contains the statements of approximately eight staff members involved, several of whom knew the child’s location when the mother was searching for her initially and in the following days.  No one on the staff informed the parents about the child’s absence on May 8, about her being allowed to spend the school day in the counselor’s office on May 9, or about her being transported to the shelter at the end of the school day until May 10, when the Petitioner/stepfather came to the school accompanied by an El Paso police officer.  Petitioners never gave permission for their daughter to be transported from the high school….for their daughter to be housed at CAFSDV from May 7 through May 10, nor for their daughter to be absent from school on May 8, 2019.

The Commissioner stated that “the facts of this case are very troubling” but he declined to offer the parents any relief. That’s largely because the district acknowledged fault at Level II in the grievance process, and the relief the parents sought from the Commissioner was beyond his authority to give. 

Nevertheless, the case is a good reminder of some provisions in Chapter 26 of the Education Code.  T.E.C. 26.008(a):

A parent is entitled to full information regarding the school activities of a parent’s child except as provided by Section 38.004. 

The district argued that the child’s physical location is not a “school activity,” but the Commissioner backhanded that:

The information [regarding the child’s whereabouts] is so basic that it is difficult to comprehend how a child’s physical location during the time the child is under the school’s supervision would not be included in information regarding the child’s school activities. 

The district also argued that the exception in the statute (38.004), which refers to child abuse investigations, permitted it to withhold information from the parents.   School employees are required to cooperate with child abuse investigators, which might include complying with instructions to withhold certain information from the parents. But not this type of information. Key Quotes: 

Here, the school staff’s cooperation with the sheriff’s or CPS’s investigation did not require withholding information about the child’s whereabouts. 

Petitioners were inquiring about the location of their child, not interfering with any investigation.

The case is Parents v. El Paso ISD, decided by the Commissioner on May 18, 2020.  It’s Docket No. 004-R10-09-2019, also located at 2020 WL 3127968.

DAWG BONE:  PARENTS HAVE THE RIGHT TO KNOW WHERE THE CHILD IS.

We can learn four things from the recent decision by the 8^th Circuit Court of Appeals involving a bright student in Minnesota with a host of mental health issues. 

Let’s start with the practice of “disenrolling” a student without considering a need for special services.  This girl was “disenrolled” in 8^th grade, 9^th grade, and twice in 10^th grade.  At no point did the district refer the child for special education testing.  First lesson of this case:  “disenrolling” a student due to failure to attend when the district is aware of a plethora of mental health diagnoses going back years is a problem. 

Let’s talk about providing the parents with accurate information.  The district discussed special education with the parents on two occasions, but each time left it up to the parents to request an evaluation.  The parents did not make that request, but perhaps that was because they were given inaccurate information. The court:

Once again, the parents were told that if the Student was placed in special education, she would be removed from her honors classes, effectively placing her in course work that would not challenge or stimulate her intellectually.  

Second lesson: you can be in special ed and honors classes at the same time.

In April, 2017 the parents did request an evaluation. The following September, with the evaluation still not complete, the student again stopped attending classes. The court noted that she “had earned far less than half of the 46 credits necessary to graduate.”  The evaluation was finally completed in November (that’s seven months after the request). The district determined that the student did not qualify for special education. 

The parents challenged that decision by requesting a special education due process hearing. They won.  The federal district court affirmed the ruling in favor of the parents, and now the 8^th Circuit has agreed.  The court held that the district was liable for a failure to refer in a timely manner, an incomplete evaluation, and an incorrect decision about eligibility.  Much of the problem seemed to stem from over reliance on how smart this girl was.  Key Quote:

…..the District maintains that the Student is simply too intellectually gifted to qualify for special education.  The District suggests the Student’s high standardized test scores and her exceptional performance on the rare occasions she made it to class are strong indicators that there are no services it can provide that would improve her educational situation.  The District confuses intellect for an education.

Lesson three: no student is too smart to be in special education.  Intellectually gifted students can still have an “educational need” for specially designed instruction.  There is no IQ score cutoff.

Finally, there is attendance.  The court drew a distinction between those students who willfully refuse to attend school vs. those with significant mental health issues:

The Student was absent from the classroom not as a result of “bad choices” causing her “to fail in school,” for which the IDEA would provide no remedy, but rather as a consequence of her compromised mental health, a situation to which the IDEA applies.

The court described the student as having “a panoply of mental health issues that have kept her in her bedroom, socially isolated, and terrified to attend school.” 

Lesson four:  consistent failure to attend school is a red flag.  Not all students who fail to show up are doing so because of a disability. But some are.  The district would be wise to pause and look into it.

It was a costly lesson for the Minnesota district which has been ordered to 1) make the student eligible; 2) develop an appropriate IEP; 3) conduct quarterly meetings to consider changes to the IEP; 4) reimburse the parents for over $25,000 for testing and educational expenses they incurred;  5) pay for private tutoring; and 6) pay the cost of the student’s private psychiatrist and tutor to attend IEP Team meetings.  No doubt there will be an award of attorneys’ fees on top of that.

The case is ISD No. 283 v. E.M.D.H., decided by the 8^th Circuit Court of Appeals on June 3, 2020. 

DAWG BONE: TEXAS EDUCATORS CAN LEARN FROM MISTAKES MADE IN MINNESOTA.

Tomorrow: Parent can’t find the child.  School staff won’t tell.

The 5^th Circuit has tossed out a lawsuit against Austin ISD because the plaintiff did not pursue a special education hearing to its conclusion. This is a failure to “exhaust” the administrative remedies that are required prior to filing suit.  The plaintiff requested a due process hearing, but settled it with the district.  Pursuant to the settlement agreement the plaintiff released claims under IDEA, but reserved the right to file suit over Section 504, the ADA or other federal laws.  With that kind of language in the settlement agreement it is not surprising that the plaintiff filed suit.

The plaintiff alleged that her daughter was injured when her one-to-one aide threw a trash bin at her.  But as the court noted, this all came up in the context of complaints over the adequacy of the child’s special education services.  In other words, the case was not really about a personal injury—it was about a failure to provide appropriate services that culminated in a personal injury.  Thus it was about FAPE.  Therefore, exhaustion was required, and it did not happen.  Key Quotes:

The heart of the complaint across these claims is that AISD failed to provide educational accommodation and oversight in the form of an adequately trained and supervised teaching aide for [the student].  And the IDEA requires exhaustion for claims that fundamentally concern a student’s educational needs.

Unlike [some previous cases], the [plaintiffs’] complaint does not allege that [the aide’s] actions were random acts of violence, but instead presents those allegations in the context of her ability to perform adequately as a special-needs aide.  

The plaintiff also argued that she did exhaust her remedies.  In the due process hearing, she sought relief under IDEA, 504 and the ADA. The hearing officer tossed out the 504/ADA claims, noting that hearing officers in Texas do not have jurisdiction over those statutes.  So there was a final decision on the 504/ADA claims. Isn’t that “exhaustion”?

The court held that a dismissal based on lack of jurisdiction does not cut it:

A jurisdictional dismissal does not constitute “findings and decision” for purposes of [20 U.S.C.] Section 1415. 

The case of Heston v. Austin ISD was decided by the 5^th Circuit on June 9, 2020.  We found it at 2020 WL 3066440.

DAWG BONE: EXHAUSTION OF ADMINISTRATIVE REMEDIES: BORING BUT IMPORTANT.

Tomorrow: Can you be in honors and special ed at the same time?

A district in Pennsylvania pulled a student with a learning disability out of his mainstream placement and placed him in a private school that operated a “partial hospitalization program.”  The student attended that program for one year.  Then the parent requested a special education due process hearing, alleging that the district failed to comply with the LRE (Least Restrictive Environment) mandate.

The hearing officer ruled in favor of the district and the federal district court affirmed, but the opinion provides little analysis.  What’s noteworthy about the case for Toolbox purposes is how a single concern over safety of one particular student led the district to take strong action. 

The Toolbox is our firm’s one-day training program designed to address the legal issues surrounding services to students with disabilities who engage in troublesome behaviors. One of the ten “tools” (Tool #3) is an Educational Change of Placement Without Parent Consent.  That is what happened here, and it was entirely motivated by one boy’s obsession with one girl. 

There had been a few incidents between the students, and the district had addressed both students in an effort to ensure safety.  But it came to a boiling point when the student revealed his thinking to the principal:

During that interview, Principal Kattan asked [the student] how he would feel if, hypothetically, the female student became involved in a romantic relationship with another person.   [The student] responded that he would light the person on fire with gasoline and matches, and that he would do the same to a future spouse should the female student marry in the future.

Yikes. 

The court upheld the IEP Team’s decision to move the boy to a more restrictive setting.  The court applied the 3^rd Circuit’s LRE test, which is slightly different from the Daniel R.R. test we use in the 5^th Circuit.  The court held that the student’s mental health needs required a more restrictive setting. 

When using Tool #3, the school has to convince the hearing officer of three facts: 1) the current arrangement is not working; 2) we have worked hard to make it work; and 3) we have something better to offer.  The court in this case was satisfied that the more restrictive setting was the right one. The case is J.S. v. Keystone Oaks School District, decided by the U.S. District Court for the Western District of Pennsylvania on March 31, 2020.  We found it on Special Ed Connection at 76 IDELR 125. 

DAWG BONE:  TEN, COUNT ‘EM, TEN TOOLS!

Tomorrow: Boring but important.

Welcome back, Readers!  The Dawg has taken a two-week break and is eager to get back to work.  We have a lot of interesting things to talk about. 

Number one on that list is the Supreme Court’s 6-3 decision in Bostock v. Clayton County, Georgia.  The issue was straightforward: Title VII of the 1964 Civil Rights law prohibits discrimination in employment “because of sex.”  Does that include sexual orientation?  What about transgender status?  Justice Gorsuch wrote the opinion for the six-person majority, holding that discrimination in employment based on sexual orientation or transgender status is always and automatically a form of sex discrimination.

That settles that. Any discrimination in hiring, discharge, compensation, or other employment related issues based on a person being gay, lesbian or transgender is illegal. 

What about students?  Title VII covers employment, and that was the only law under consideration in the case.  Justice Gorsuch noted that there were concerns about the effect of the court’s decision on the use of bathrooms, locker rooms and other facilities.  He noted that this decision about Title VII might implicate other statutes that similarly address sex discrimination—e.g., Title IX.  But the Honorable Justice blithely swept all of that away, noting that none of those issues were before the court.  This decision is not about bathrooms, athletic competition, or mixed-gender student housing. It was about employment. That’s all. 

What about employers who offer religious objections to the employment of gays and transgenders?  The majority dodged that issue also, noting that none of the defendants in this particular case raised such issues. So that will have to be addressed in a later case.

The dissenting opinion of Justice Alito, joined by Justice Thomas, predicts grave consequences from the court’s decision:

Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead.  

Justice Alito suggests that it will lead to a lot of litigation over bathrooms, transgender males competing on girls’ teams, housing in colleges, and other issues.  That’s a safe prediction. 

Advocates for gays and transgenders are sure to criticize the dissenting justices for seeking to block the path toward equal treatment, but that criticism ignores the significant issue the dissenters raise. The three dissenters simply believe that this is a change that should be made by Congress, not by six black-robed lawyers.  It’s a familiar argument, the losing side claiming that the winners are “legislating from the bench.”  In fact, Justice Alito leads off his lengthy dissenting opinion with this blunt assessment:

There is only one word for what the Court has done today: legislation.

So that’s how the law works.  We settle one issue, and leave others on the table.  For HR departments, this decision provides clarity. For those who deal with students, not so much.  Onward through the muck.

The case was decided on June 15, 2020. 

DAWG BONE: EMPLOYMENT DISCRIMINATION AGAINST GAYS AND TRANSGENDER INDIVIDUALS VIOLATES FEDERAL LAW.  NOW SETTLED.

Tomorrow: Toolbox Tuesday!!

This is the last Daily Dawg until July 13^th. The Dawg is going to take his annual break and chew on a few bones before returning in fine fettle.  At least we hope our fettle will be fine.  There will be plenty of bones to chew.  You have probably already heard about the SCOTUS decision on gay and transgender employees.  We will lead off with that one on July 13^th.  

For today, we offer a candidate for the Sheesh-O-Meter. 

At Webb Elementary School in the Hazel Park Community School district in Michigan students sometimes spend some time in the “Wolf Den” to de-escalate from strong emotions, gain perspective on life by talking to an adult, and otherwise calm down.  That’s how the school describes the Wolf Den.  But after an 8-year old girl was accidentally injured in the Den, a lawyer provided a more colorful description. 

When the student tried to escape from the Den, evading the two educators who had chased her through the school hallway as she ran, one of the educators slammed the door on the girl’s finger.  Ouch!  It was an accident, but the suit alleged that this amounted to an unconstitutional “seizure” in violation of the 4^th Amendment, and a malicious violation of the girl’s right to bodily integrity in violation of the 14^th Amendment. 

Nope.  The court dismissed these claims, largely due to the disconnect between the pleadings and the evidence.  The plaintiff alleged that the 8-year old was “locked in a windowless room by herself for hours at a time essentially subjecting [the student] to tactics used by police when interrogating hardened criminals.”  The court noted that

None of the evidence in the record, however, supports these allegations. Plaintiff has not demonstrated that she was ever locked in the room alone, let alone for prolonged periods of time.

The plaintiff claimed that the district had a “practice of isolating young children with learning or mental disabilities by placing them alone, without adult supervision, in windowless, closet-like rooms for prolonged periods of time.”  But when she testified, the mother acknowledged that she knew of no other children ever being “isolated.”  The little girl in this case was not isolated—she was accompanied by two adults.  And the “windowless” room had two large windows. 

Lawyers are supposed to investigate the facts before they file a lawsuit.  That doesn’t always happen. 

The case is Wadley v. Hazel Park Community Schools, decided by the U.S. District Court for the Eastern District of Michigan on December 6, 2019.  We found it at Special Ed Connection at 75 IDELR 221.

See you in a couple of weeks, Readers. Enjoy the 4^th! 

DAWG BONE: THIS ONE GOES ON THE SHEESH-O-METER.

Do you remember baseball?  It’s a game that was commonly played in the United States by children, school-based teams, and even highly skilled professional athletes.  The game involves scoring “runs” by advancing around three “bases” and thus coming “home.”   Sound familiar? 

I hope so, because I like to use baseball to illustrate how a “retaliation” suit works. To get to “first base” on a retaliation claim the plaintiff has to produce evidence of engaging in a “protected activity.”  The plaintiff advances to “second base” with evidence of the “adverse action” that the school district imposed.  Most plaintiffs in retaliation cases make it to “second base.”  However, it is much harder for them to get around “third base” and come “home” because that requires proof of causation—e.g., “they punished me with an adverse action because I engaged in protected activity.” 

A case involving a preschooler in Tennessee outlines four ways in which the parent got to first base. 

*The parent informed the principal and the teacher that she believed that her son’s IEP was not being implemented and he was not being well supervised.  The court said that “Advocacy by a parent about their child’s education is protected activity.” 

*The parent accused the school of punishing her child because of his disability.  The court noted that “Opposing disability discrimination is also a protected activity.”

*The parent asked the school to lighten up on the punishment of her son because his actions were caused by his disability.  The court characterized this as a request for a “reasonable accommodation,” another form of “protected activity.”

*Finally, the parent told the school she would seek legal advice.  This was “protected activity” because “Federal law allows for advocates and representatives to be part of a student’s educational plan meetings.”

The “adverse action” in this case was a report by the teacher of suspected child abuse.  The court refused to dismiss the case, noting that a reasonable jury could conclude that the report was done in retaliation for the parent’s exercise of protected activity.  Of course school officials are required to report suspected child abuse, but as this case illustrates, that report can be characterized as an act of retaliation.  The facts in this case are not yet established, and the court only held that the parent’s claim was plausible. 

As you can see from these alleged facts, it’s not hard to get to first base with a retaliation claim. 

The case is B.H. v. Obion County Board of Education, decided by the federal court for the Western District of Tennessee on December 10, 2019.  We found it at 75 IDELR 218.

DAWG BONE: THE DAWG MISSES BASEBALL.

Tomorrow: one for the Dawg’s Sheesh-O-Meter.

The parent of a student in the HEB ISD took her complaint to the Texas Education Agency, alleging that she was not treated as a partner in her child’s education.  The Commissioner ruled that he did not have jurisdiction to rule on the complaint, but in the process, he provided a great example of what “partnership” might look like. 

Texas does not make this school-parent “partnership” just a lofty sounding goal.  It’s built into our laws.  We have an entire chapter in the Education Code entitled Parent Rights and Responsibilities.  It leads off with this:

Parents are partners with educators, administrators, and school district boards of trustees in their children’s education.  T.E.C. 26.001(a).   

This kerfuffle began when the assistant principal disciplined the student for a cell phone violation of the Code of Conduct. The mother complained of this, as well as other acts of alleged harassment and/or retaliation.  The Commissioner detailed how the district responded to each specific request and summarized it as follows:

Overall, Petitioner’s complaints and requested remedies were given serious consideration by the administration and a relatively positive outcome was achieved.  Four requested remedies were granted, three were forwarded to the appropriate committees for consideration, two were denied and one (the apology) was neither granted nor denied.  Viewed objectively, Petitioner was treated as a partner in Student’s education and her requests were treated appropriately according to state law and policy.

Nicely done, HEB. 

DAWG BONE: PARTNERS ARE PARTNERS.  IT’S THE LAW.

Tomorrow: how a retaliation claim is like baseball.