Among the many questions coming up in connection with the forced school shutdown due to the Coronavirus are a few questions about student discipline.  Like this one: if a student was “serving time” in DAEP when we were ordered to shut down, must the student complete “the sentence” when school resumes?

The Toolbox, which is an all day training program about the discipline of students with disabilities, offers no direct answer to that question.  We are obviously in unexpected and uncharted territory.   In situations like this, we go back to the basics.  One of the basics of the law is that local districts follow the direction of the state agency.  So if TEA offers guidance on this, you should follow it.  But more likely than not, this will be a local decision to be decided by local administrators interpreting and applying your school policy.  Here’s another basic: your interpretation of your own policy will be respected by the courts, as long as it is “reasonable.”

Here is one more basic rule: you always have the discretion to take into account extraordinary circumstances and make decisions that are in the best educational interests of the students you serve. Will it do any good for the student to “serve the time”?  What is best for the student and the student body as a whole?  Let those “basics” guide your decision making.  

DAWG BONE: IN UNCERTAIN TIMES, GO BACK TO THE BASICS.

Tomorrow:  Six years from now...

When the Arlington ISD conducted a hearing to consider the proposed nonrenewal of a teacher’s contract, it retained attorney Dennis Eichelbaum to assist the board. Mr. Eichelbaum was to “make any rulings that may be required for the efficient presentation of this complaint.”  His rulings were not final, however. The majority of the board could overrule him.  The district also retained another attorney to assist the administration in presenting the case to the board.  The attorneys were from the same law firm.   The teacher’s lawyer objected to this, claiming that it was inherently unfair to the teacher.

The Commissioner did not think so.  Consistent with earlier decisions on this issue, Commissioner Morath held that “the involvement of Attorneys Eichelbaum and Thomas did not cause an unfair hearing for Petitioner.”  This ruling was accompanied by the observation that “It can hardly be said that a school board is the puppet of its hired counsel.”  As a lawyer who has worked with many school boards, I can certainly attest to that.

Obviously the district could have used lawyers from different law firms, which would have eliminated this issue from consideration. But the track record of the Commissioner is consistent on the issue.  Once again, the Commissioner here finds no unfairness in the use of two lawyers from the same firm.  It’s Hernandez v. Arlington ISD, decided by Commissioner Morath on January 27, 2020.  It’s Docket No. 024-R1-12-2019.

DAWG BONE: SCHOOL BOARD MEMBERS ARE NOBODY’S PUPPET!

Tomorrow:  Toolbox Tuesday!!

The 5^th Circuit has affirmed a lower court ruling in favor of Highland Park ISD (Dallas version) in a dispute with the parents of a student with multiple disabilities.  Yesterday we told you how the court addressed concerns over the student’s safety. Today, three more lessons from this important ruling. 

FAPE.  First and foremost, the court strongly confirmed that the four-part test the 5^th Circuit has  used since 1997 remains the gold standard for determining if the district has provided the student with FAPE (Free Appropriate Public Education).  The Supreme Court’s decision in 2017 (Endrew F. v. Douglas County) has not changed that.  In Endrew, SCOTUS urged educators to develop IEPs that are “appropriately ambitious.”  Here, the Circuit Court observes that for some students “aiming for small amounts of progress is appropriately ambitious.” That was the case for this student. 

LRE.  Second, the case provides a lesson in how to satisfy the LRE standard (Least Restrictive Environment) with a student who is served in a self-contained placement.   In particular, the court cited “reverse inclusion” as an appropriate methodology.  The appellate court cited with approval the analysis of the lower court on this issue:

The court approvingly cited Hyer Elementary’s policy of “reverse inclusion,” under which R.S.’s general education peers would eat lunch with him in his special education classroom. The court found that R.S. also had interaction in the general education classroom, on school field trips, on the playground, and during school assemblies.  It further found that R.S. interacted with his general education peers at McCulloch Middle School through a peer-tutor program, during PE, in the cafeteria during the lunch period, and during his job delivering items throughout the campus.   

STATUTE OF LIMITATIONS.  The third lesson of this case falls into the “boring but important” category, meaning that it’s of more concern to the lawyers than the educators.  The issue was the statute of limitations.  In particular: when does the clock start?  Parents who believe that the school has failed to provide FAPE to a student have one year to file for a due process hearing. When does that year begin?  If the complaint is about a procedural violation, the year would begin when the specific procedural error occurred. Thus if the complaint is that the district held an ARD meeting without inviting the parent to attend, the statute would begin on the date when the parents learned, or should have learned, about their exclusion from the meeting.

In this case, however, the complaint was about substance, not procedures. The parents alleged that the IEP failed to satisfy the substantive standard of providing FAPE. The court held “that a claim challenging the substantive sufficiency of an IEP must be linked to a specific act adopting, changing, or declining the change the IEP, and such a claim accrues when a parent knew or should have known that the action resulted in a deficient IEP.”

Let me close this out with kudos to the staff at HPISD.  But don’t take my word for it. Here’s what the 5^th Circuit said:

Highland Park expended a great amount of time and resources developing and implementing an IEP that was based on multiple in-depth evaluations of R.S.’s unique needs and abilities with significant input from R.S.’s parents and expert consultants, and R.S. achieved at least some academic and non-academic benefits as a result of his plan.  The district court accordingly did not err in finding that Highland Park provided R.S. with a FAPE as IDEA requires.

It was a privilege for the lawyers in our firm to represent the district in this difficult case.  Kudos also go to Nona Matthews and Meredith Walker from our firm’s Irving office for excellent advocacy.

The case is R.S. v. Highland Park ISD, decided by the 5^th Circuit on February 26, 2020.  The case is published at 2020 WL 914703.

DAWG BONE: “APPROPRIATELY AMBITIOUS” IS LIKE EVERYTHING ELSE IN SPECIAL ED—MEASURED ONE STUDENT AT A TIME.

You may be out of school next week, but the Daily Dawg will arrive in our inbox.  Enjoy the weekend.

Here is how the 5^th Circuit summarized its decision in favor of Highland Park ISD (Dallas) in a case involving a student with multiple, severe disabilities:

Highland Park expended a great amount of time and resources developing and implementing an IEP that was based on multiple in-depth evaluations of R.S.’s unique needs and abilities with significant input from R.S.’s parents and expert consultants, and R.S. achieved at least some academic and non-academic benefits as a result of his plan.  The district court accordingly did not err in finding that Highland Park provided R.S. with a FAPE as IDEA requires.

Congratulations to Highland Park and its staff.

The main problem for the school was the fact that the student had fallen and hurt himself five times over a three-year period.  For most elementary-aged students this would probably be no big deal.  None of the falls resulted in broken bones or any other major injuries.  But for this student, given the nature and severity of his disabilities, these falls were a major concern.  The student is non-verbal, non-ambulatory and needs assistance for all physical activities.  He does not have “automatic protective responses to prevent or minimize injury when he falls.” So the student might not break a fall with his hands or knees, but rather, might land on his face.  So the concern was understandable. The parents alleged that the falls provided evidence that the school failed to ensure the student’s safety, thus depriving him of the Free Appropriate Public Education (FAPE) to which he was entitled.

The court did not see it that way.  Key Quote:

That R.S. suffered some minor injuries does not mean that R.S.’s IEP was not reasonably calculated to prevent injuries from occurring to the maximum extent feasible. 

The court particularly noted that the district responded to each of the five falls with a response designed to prevent future problems:

And each time R.S. fell, Highland Park implemented new measures that were intended to prevent the fall from reoccurring. That these measures were not 100% successful does not establish that Highland Park’s IEP was not reasonably calculated to allow him to learn.

Safety was the main issue in this case, but there were others as well. We will save those for tomorrow.  The case is R.S. v. Highland Park ISD, decided by the 5^th Circuit on February 26, 2020.  It’s at 2020 WL 914703.

DAWG BONE:  SOMETIMES “A GREAT DEAL OF TIME AND RESOURCES” IS WHAT IT TAKES.

Tomorrow: More on the Highland Park case.

The firing of a principal and an assistant principal in Northside ISD has now been affirmed by an independent hearing examiner, the Northside ISD school board, a jury in a federal court in San Antonio, and the 5^th Circuit Court of Appeals.   This all began with an internal investigation that concluded that the two campus administrators “intentionally authorized inappropriate student testing accommodations based on a misapplication of Section 504 eligibility requirements.”  There are three important lessons we can derive from the Circuit Court’s ruling. 

FIRST AMENDMENT.  First, when public school employees are speaking “pursuant to their official duties, they are not speaking as citizens for 1^st Amendment purposes, and their speech is not protected.”  The context was communication by the principal and assistant with T.E.A. about what sort of accommodations are permissible for Section 504 students on the STAAR test.  The court noted that “Plaintiffs’ job duties included implementing Section 504 for students” at their school. So this call to T.E.A. was “pursuant to their official duties” and did not enjoy constitutional protection. 

WHISTLE BLOWING.  Second, if you are claiming that you have been fired for “blowing the whistle” on illegal activity, you are required to “mitigate damages” by seeking other employment.  In this case the plaintiffs did not do that.  They retired and began taking annuity payments from TRS.  The court held that that was not good enough. 

PERSONAL LIABILITY OF ADMINISTRATORS. Third, the court addressed the potential liability of superintendents and other administrators who make recommendations regarding employment of professional educators, but do not make the final decision.   The suit named the superintendent as a defendant. The lower court dismissed the superintendent based on “qualified immunity.”  The 5^th Circuit affirmed that ruling.  The court noted that “there is no absolute bar on liability for individuals who are not final decision-makers in a 1^st Amendment retaliation claim.”  In other words, it is possible for a superintendent to have personal liability for a constitutional violation, even though the board, not the superintendent, made the final call.  But in this case, the superintendent was entitled to immunity because of the uncertainty of the law on this point at the time he made the recommendation of termination.

A shout out to my law partners, Craig Wood and Katie Payne from our firm’s San Antonio office for excellent lawyering in this case.  It’s rare for termination cases to be heard by a jury.  It’s rarer still for those juries to side with “the government” in a dispute with an individual whose employment has been terminated.  Craig and Katie demonstrated excellent trial skills, and then followed through with advocacy at the 5^th Circuit to make sure the lower court’s decision was upheld. 

The case is Powers v. Northside ISD, decided by the 5^th Circuit on February 26, 2020.  It’s at 2020 WL 913314. 

DAWG BONE:  1^ST AMENDMENT DOES NOT PROTECT SPEECH THAT IS DONE PURSUANT TO OFFICIAL DUTIES.

Tomorrow: 5^th Circuit decision in favor of Highland Park ISD.

For the past few Toolbox Tuesdays we’ve been reviewing how “teacher removal” works.   Texas Education Code 37.002 authorizes classroom teachers to either “send” a student to the office or to “remove” the student due to misconduct. If the teacher orders “removal” the CBC (Campus Behavior Coordinator) must hold a conference and make a decision.  The CBC is not allowed to send the student back to the teacher’s classroom unless the teacher consents. Most teachers do.  But what happens if the teacher refuses to give consent?

That’s when the PRC comes in: Placement Review Committee.  For all of you thinking “Gee…I’ve never heard of the PRC” we would gently point out that it’s been mandated by state law since 1995.  If your campus does not have a PRC, it would be a good idea to set one up promptly.  The PRC fulfills a delicate mission: it deals with disputes between campus administrators and a teacher.  Most educators would prefer not to be put in that tough position, but someone (actually four people) need to be willing to take on the responsibility.

The campus faculty is to choose three teachers for the PRC—two regular members and an alternate.  The alternate is needed if one of the regular members is the teacher who ordered removal.  The principal appoints the other member “from the professional staff of the campus.”  So the PRC consists of two teachers chosen by the faculty, and one “professional staff” person chosen by the principal. That person could be an administrator, librarian, nurse, counselor or teacher.

So let’s assume that Mr. Dimwitty, a 6^th grade math teacher, orders the removal of a student.  The CBC conducts the conference and decides that the student should return to Mr. Dimwitty’s class.  Mr. D balks, refusing to consent to the student’s return.  That’s when the PRC must meet.  The principal cannot override Mr. Dimwitty, but the PRC can.  However, it can do this only if it concludes that “such placement is the best or only alternative available.” T.E.C. 37.002(c). 

If the student is in your special education program, there are, of course, other factors to consider.  The statute (37.003(c)) tells us that the PRC’s decision “is subject to the requirements of the IDEA and federal regulations, state statutes, and agency requirements necessary to carry out federal law or regulations or state law relating to special education.”  Translation: the PRC cannot make a decision that amounts to a “change of placement.” That would have to go to the ARD Committee. 

The Dawg is under the impression that there are more than a few Texas schools that do not have a PRC.  Of course the PRC serves a limited function.  You could get through an entire school year or seven of them without a need to convene the PRC.  Nevertheless, we think it’s better to choose the membership of the PRC before there is a need for one.  If a dispute between teacher and CBC is already brewing, it may be more difficult to find the right people to serve in this position.

DAWG BONE: DON’T HAVE A PRC?  CREATE ONE.

Tomorrow: 5^TH Circuit ruling in favor of Northside ISD

Welcome back, Readers!  We took a week off for spring break, thinking that everyone would be back at school after that one week. Wrong.  My last Daily Dawg post (March 13) informed you that I was headed to Washington D.C. for a family vacation. That didn’t happen.  We had to cancel the trip, and now all of us are in the midst of a full blown mess. 

On top of all of the logistical and practical problems you are encountering, there are also legal issues. They don’t go away just because we are having a health crisis.  The attorneys in our firm have been working overtime getting ready to advise you on the host of issues that might arise.  There are issues about:

*students issues such as attendance, credit, ADA funding, and screening for health problems;

*special education requirements and timelines;

*personnel issues, such as payment to at-will employees while school is closed;

*business issues, such as competitive procurement, and construction delays;

*governance issues such as emergency board meetings, virtual meetings, PIA timelines, and consideration of expansive authority for the superintendent.

We’ve been doing a lot of internal communication and briefing to be ready to help you with all of this.  So don’t hesitate to call a Walsh Gallegos attorney with whatever legal issues you are concerned about.  We can help.

Above all, we hope that you are well.  Let’s hope this crisis brings out the better angels of our nature as we all support each other to maintain good health.

DAWG BONE: KEEP AN EYE ON T.E.A. AND YOUR E.S.C. FOR UPDATES. THINGS ARE CHANGING BY THE HOUR.

Tomorrow: Does your school have a PRC?

I spotted my first bluebonnets of the season on February 12^th along the side of I-35 at MLK, right in front of the UT baseball field.  Which reminds me, it’s baseball season. The Rangers and Astros (still the 2017 World Series Champions regardless of what some people think) are in Florida getting ready for the season. March Madness is about to tip off and next Tuesday is St. Patrick’s Day. 

It all adds up to SPRING BREAK!  The Dawg is headed to Our Nation’s Capital with Mrs. Dawg and assorted descendants for a vacation.  We’ll be back on March 23^rd.  Until then, enjoy. 

DAWG BONE:  READY FOR A BREAK.

People who think that teacher unions drive public education policy should consider the case of Sumrow v. Caddo Mills ISD.  Mr. Sumrow was the Athletic Director in the district with a salary of $93,996.  He had a two-year contract covering the 2018-19 and 2019-20 school years.  He had been in that position for 15 years, but that all changed on January 2, 2019 when the superintendent reassigned Mr. Sumrow to be a teacher at the Disciplinary Alternative Education Center.  His salary stayed the same for the rest of that year, but was going to drop to $58,401 in the second year of his contract. That’s what teachers made, and he was going to be a teacher. 

Do the math. That’s a drop of $35,595 from Year One to Year Two.  Do you think for a minute that this would fly in a state with real teacher unions?  Me neither.  But welcome to Texas.  Citing well established precedent, the Commissioner noted that the drop in pay was permissible “Because [Mr. Sumrow] was given adequate notice that his salary would be reduced the following school year.” 

There is more to this case, but I think we’ll just leave it at that for today.  The case was decided by the Commissioner, who overruled the Administrative Law Judge’s recommendation, on January 13, 2020.  It’s Docket No. 029-R3-05-2019. 

DAWG BONE: ZERO PROTECTION IN YOUR SALARY FOR YEAR TWO OF YOUR TWO-YEAR CONTRACT

Tomorrow: Friday the 13^th.

We don’t like to come across cases that are filed by “The Estate of…” particularly when the estate belongs to a 13-year old boy.  But such is the case we report today.  The boy’s parents allege that the boy was pushed out of a school bus, or that he fell out of the bus through the rear exit door while the bus was going 65 MPH over a poor surface.   They sued the district alleging negligence in the operation of the motor vehicle.  We reported a preliminary ruling in that case on April 18, 2019, when the court dismissed most of the legal theories, but allowed the case to proceed based on allegations of excessive speed.  That case is still pending.  There is also a case pending against parties involved in the design, manufacture and sale of the school bus.

But today we report on a separate legal action that deals with what happened after the boy’s death. The boy’s parents, acting as representatives of his estate, allege a conspiracy to intentionally and falsely portray the boy’s death as a suicide.  There are multiple defendants in this case including the school district, the superintendent and various county and law enforcement personnel.  The defendants vehemently deny any wrongdoing in connection with the investigation of the incident or the conclusions they reached. 

The court has now dismissed all of the claims in this lawsuit. The court did not sort out the factual disputes between the parties, but relied instead on the legal concept of “standing.”  The court held that the parents lacked the “standing” to pursue claims about what allegedly happened after their son’s death.   A suit over how the boy died and who was at fault is one thing, but a suit over actions taken after the death is another.  The court held that the Estate lacked the legal “standing” to pursue any such claims.  Therefore the court lacked jurisdiction. Case dismissed.

Lawyers in our firm’s San Antonio and Rio Grande Valley offices filed the Motion to Dismiss and persuaded the court that dismissal was the proper outcome.  Kudos to Katie Payne and Leandra  Ortiz for excellent lawyering in a difficult case.  The case is Estate of Gabriel Miranda, Jr. v. Harlingen CISD, decided by the federal district court in the Southern District of Texas on February 18, 2020. 

DAWG BONE: IF YOU DON’T HAVE “STANDING” THE COURT HAS NO JURISDICTION.

Tomorrow: big pay cut for the A.D.