A Texas hearing officer has concluded that Frisco ISD served a student appropriately, even when the district proposed moving the student to a more restrictive environment. The case is a good illustration of how Tool #3 works in practice.

Tool #3 is a part of our firm’s all day Toolbox Training on how to work effectively with students with disabilities who have challenging behaviors.  Tool #3 (there are ten) is an Educational Change of Placement Without Parent Consent. 

We call it an “educational” change of placement to distinguish this situation from a disciplinary change of placement. When students engage in disruptive behavior that is not a manifestation of disability, a disciplinary change of placement may be called for. That’s Tool #6.  But when the behavior is a manifestation of disability, it’s not proper to use disciplinary tactics.  Instead, the law requires the application of the “two don’ts.”  Don’t punish the behavior; but don’t ignore it either. 

If parents are in agreement with the school’s proposed change of placement everything goes smoothly.  But since the proposed change is often to a more, rather than less, restrictive setting, parental opposition is common.  That’s what happened here.   The school proposed moving this student to a self-contained unit where behavior and emotional control would be the primary focus.  The student had been in the general education setting, so this was definitely a move to a more restrictive setting.   The parents objected and, in fact, pulled the student out of public school and sought reimbursement for the private school tuition they were paying. 

They didn’t get it. The hearing officer held that the district had offered FAPE and that the proposed move to the self-contained unit was timely:

While this setting is more restrictive than the general educational setting, it was necessary for Student due to Student’s behaviors.  It is not appropriate to educate a student in the general education setting when the student engages in disruptive behavior that significantly impairs the education of other students in the general education setting.

 And note this: the move was not intended to be permanent. The district’s goal was to get this student back to his general education setting:

The School District’s goal…was to help Student learn how to handle Student’s emotions when Student was frustrated and teach coping skills in a more controlled environment with the goal of returning to the general education setting.

The hearing officer held that Frisco passed all four parts of the FAPE test that Texas courtuse. 

*First, the IEP was individualized, based on multiple assessments and input from both teachers and parents.

*Second, it was implemented in the least restrictive environment.  Even the move to the self-contained unit satisfied this test because it was the LRE for this student at this time. 

*Third, there was ample evidence of good communication and collaboration between school and parents.  *The only close call was on the fourth factor—did the student make progress?  Academically he did.  He made A’s in all classes and was achieving above grade level.  But by all accounts the

student’s behavior deteriorated toward the end of his time in the district. In response, the school called for revisions to the BIP and a move to the self-contained unit.  The parents argued that this was, in effect, an admission of a denial of a FAPE.  Nope: 

A school district is allowed to change a Student’s program without it being a denial of FAPE.  Otherwise, the result would be any suggested change in a Student’s program would be an automatic admission of denying FAPE to a student.

Kudos to the staff at Frisco ISD for serving this student appropriately.  And hats off to my partner, Nona Matthews, from our firm’s Irving office, who handled this case. The case is Frisco ISD, decided by the special education hearing officer Kasey White on August 23, 2019. It’s posted on Special Ed Connection at 119 LRP 42539, and also at the T.E.A. website as Docket No. 180-SE-0219.

DAWG BONE: USE TOOL #3 RARELY, CAREFULLY, AFTER LEGAL REVIEW.

Tomorrow: Have you heard of the McCarthy Era?

You may want to keep tender eyeballs away from what follows.  Today we tell the tale of a high school football coach who used crude, vulgar and offensive language to motivate his players.   This produced a Title IX suit against the coach, the A.D., the superintendent and the school board. The 6^th Circuit Court of Appeals summed up the case succinctly:

Plaintiffs’ Title IX theory is somewhat unusual.  It hinges entirely on Frye’s use of the term “pussy.”  [Frye is the coach].                            

That theory may be unusual, but the coach’s vocabulary is not. 

Let’s back up for a moment.  The story begins after the 2013 football season.  For the second straight year, the St. Mary’s football team was 0-10. Those 20 games were not close.  St. Mary’s was outscored by a 3 to 1 margin.  By the way, St. Mary’s is not a Catholic school. That’s the name of the town in northern Ohio where all this transpired. It’s a public school. 

Desperate times call for desperate measures, and there are few things more desperate than two straight seasons of humiliation on the gridiron.  So St. Mary’s took a chance on a coach with a long and checkered history. 

It went all the way back to 1995 when Coach Frye was reprimanded for his “unacceptable obscene language” and for “becoming physical with one of the players.”  Did I mention this is in Ohio?  I’m willing to bet this guy has a poster of Woody Hayes in his office.

In 1998 some members of the coaching staff broke the code of silence to complain about Coach Frye.  The complaints focused on how he subjected players to degrading language and pushed them to play through injuries.  

In 2012 some students filed a criminal complaint against Coach Frye.  There was also a complaint filed with the Ohio Department of Education which culminated in a consent agreement.  The agreement allowed for Frye to keep his license to teach and coach, but required his employer to submit quarterly reports on his behavior.   After the 2013 season in that district, Coach Frye voluntarily resigned.

That’s when St. Mary’s came calling, fully aware of his history. In fact, he had coached previously in St. Mary’s. They knew what they were getting in Coach Frye.  They knew about the complaints but they also knew that he was a winner.  Moreover, administrators in the schools where he coached recommended him. He had been Coach of the Year for Ohio District III in 2001.

The lawsuit was filed by two players who alleged that they were harassed by Coach Frye to the point that it amounted to sex discrimination and the intentional infliction of emotional distress. 

As the court noted, this is an unusual Title IX case.  There are no allegations of physical or sexual misconduct by the coach.  Nor is there any allegation of differential treatment of boys vs girls—there were no girls on the team.  This is entirely about a man allegedly verbally abusing two boys.  And in particular it’s about the “P-word.” 

The 6^th Circuit held that the facts alleged did not amount to discrimination based on sex.  Case dismissed.  In the process, the court made some interesting observations:

While beneath the dignity of a teacher and youth mentor, Frye’s use of an offensive, gendered insult to motivate his players does not put this case across the Title IX goal line.

Conduct considered blasé on the gridiron might very well shock the conscience of the chess club or debate team.

That is not to say we condone Frye’s comments.  They are offensive and inappropriate at best. But they are also not unheard of on the gridiron, where the foul-mouthed coach is something of an unfortunate cultural cliché.  All things considered, Frye’s statements were not “utterly intolerable in a civilized community.”

All three of the judges agreed that Coach Frye had not violated Title IX standards. One of the judges would have allowed the case to proceed further to explore liability under Ohio state law.  Another judge wrote a short concurring opinion that includes a nice reminder for educators and school board members about how to deal with verbal abuse aimed at students. We leave you with this:

The way to root out such bad practices, however, is to rely on school boards, administrators, school councils, PTAs, and parents.  It is not to create a federal court action to curb such practices. 

That’s the case of Chisholm v. St. Mary’s City School District Board of Education, decided by the 6^th Circuit Court of Appeals on January 7, 2020.  We found it at 2020 WL 104598. 

DAWG BONE: THE TEAM WENT 9-3 THIS YEAR.  MADE THE PLAYOFFS.

Tomorrow: Toolbox Tuesday!!

Charter schools get away with things.  They do things that traditional schools cannot do.  A recent decision from a California Administrative Law Judge provides an example. 

The Empire Springs Charter School “disenrolled” a student because his parents breached their contract with the school.  That contract required that the student would participate in the California Assessment of Student Performance and Progress.  Parents were allowed to opt out of that, but in that case the student would still be required to undergo testing through “an alternative Common Core grade-level exam.” 

The parents did not present the boy for testing. The district then informed the parents that the student could no longer attend the school.    

The parents appealed to the state agency and got a hearing conducted by an Administrative Law Judge.  The ALJ held that this was not an “expulsion.”  It was the consequence of a breach of contract.  That’s an example of a charter school doing something that the traditional school could never do. 

There are two legal principles that come into play. First, in the traditional schools the courts have never been OK with a punishment of a student based on the behavior of the parent.  This certainly looks like a punishment of the student.  You can call it a “disenrollment” if you want, but it sure looks like an expulsion.   You have a student who is told he can no longer attend the school he has attended for several years. Why? Because of his parents.  If the traditional school pulled that stunt the outcry would be loud and wide.

Secondly, the ALJ treats the parent-school relationship as a contractual one.   Thus the school is empowered to impose requirements on the parent that can be enforced by kicking the child out of the school.  That would never fly in the traditional school.   Traditional schools don’t have contracts with parents—they have a constitutional obligation to serve their children.

It’s understandable that the Empire Springs Charter School wants to have some leverage to make sure that all kids show up for testing day.  Traditional schools would like to have some leverage also.  But it’s not fair that the Charter School has leverage that is not available to the traditional school.  We were told that charters would provide competition to the traditional school that would spur innovation and improvement.  That sounds good, but we’d like to see the competition on a level playing field.

The case is Empire Springs Charter School, decided by an ALJ acting for the California State Educational Agency on July 19, 2019.   The Dawg found it at Special Ed Connection, 119 LRP 32343.   

DAWG BONE: COMPETITION OUGHT TO BE FAIR. 

See you next week, Loyal Readers!

On January 16^th the Department of Education issued a new version of its “Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools.”  There is not much that is new in it, which is not surprising.  Constitutional standards change very slowly if at all, and the law pertaining to students, teachers, and prayer has not budged for a long time.  

Kids can pray in school.  They always have been able to do so. As some have observed, as long as there are math tests, there will be prayer in public schools.  As long as there are last second free throws, there will be prayer during extracurricular activities.   There is no constitutional provision, court decision or law to the contrary.  God has not been taken out of the classroom, despite the claims of some. 

However, the authority of the teacher to pray with the kids, or to encourage prayer was taken away in the early 1960s due to a couple of Supreme Court decisions.  The 2020 Guidance acknowledges this: 

When acting in their official capacities as representatives of the State, teachers, school administrators, and other school employees are prohibited by the First Amendment from encouraging or discouraging prayer, and from actively participating in such activity with students.  

This is identical to the Guidance from 2003.  The principle here is neutrality.  When on the job, teachers, coaches and administrators are supposed “to show neither favoritism toward nor hostility against religious expression such as prayer.”   When a teacher joins in prayer with students, or a coach takes a knee with the players before the game, they are showing favoritism toward religious expression.  Likewise, any teacher who criticizes the students who choose to pray is demonstrating hostility, which is equally prohibited.

This is a hot button issue.  It requires lines to be drawn between “government speech” and “private speech,” and between student “free speech” and “disruptive” speech.  It’s not always clear.  Expect some turbulence.  Remember the principle of neutrality and let that be your guiding star. 

DAWG BONE:  NEUTRALITY IS OFTEN DIFFICULT TO MAINTAIN.

Tomorrow: Not an expulsion.  Just a “disenrollment.”  Hmmm.

Our good friend, Anonymous, sent a query to the Family Policy Compliance Office about a teacher, a student, Facebook and FERPA.  The report of the query and the answer is light on details, but apparently a teacher posted a comment on Facebook that Anonymous believed was directed at a student (Son of Anonymous?).  FPCO replied by saying that Anonymous had not provided enough information for FPCO to determine if there was a violation or not.  However, there is one part of the response that the Dawg thinks is worthy of your attention.  This:

Additionally, please note that FERPA applies to the disclosure of tangible records and of personally identifiable information derived from those tangible records.  FERPA does not protect the confidentiality of information in general, and, therefore, does not apply to the disclosure of information derived from a source other than education records, even if education records exist which contain that information. 

It’s not a general confidentiality statute.  It’s about maintaining confidentiality regarding grades, individual evaluations, test scores, teacher comments and other things that are recorded in a “tangible record.”  Information that a teacher or administrator has derived from some other source is not FERPA-protected, although there might be other reasons to maintain confidentiality. 

That’s worth thinking about. The letter is Letter to Anonymous, dated October 15, 2018.  We found it at Special Ed Connection, 119 LRP 1622. 

DAWG BONE: FERPA IS NOT A GENERAL CONFIDENTIALITY STATUTE.

Tomorrow: Oremus.

The Toolbox is our firm’s all day training program regarding serving students with disabilities who engage in behavior that is disruptive or even violent.  In the Toolbox we emphasize that IDEA requires schools to continue to serve kids, no matter how challenging the behaviors may be. 

I came across an excellent example of this point in a case from the District of Columbia.  The student was expelled from a private school where he had been placed by the district.  This was due to a violent attack on another student, which was a manifestation of his disability.  The district sought placement at 10 other private schools, none of which would take the student. The district then argued that it was not required to provide FAPE because it was impossible to do so. 

The court disagreed. The court held that IDEA does not permit an “impossibility” defense. The school also argued that the plaintiff should be denied relief because it was his violent conduct that caused his expulsion and thus he did not come to court with “clean hands.”  The court rejected that argument also, noting that it was inconsistent with IDEA.

Are you serving some students like this?   It can be frustrating, challenging, difficult….choose your word.  But don’t choose “impossible.”  As far as the law is concerned, it’s never “impossible.”  So keep plugging away.

The case is Schiff v. District of Columbia, decided by the U.S. District Court in D.C. on November 1, 2019.  The Dawg found this one on Special Ed Connection at 75 IDELR 156.

DAWG BONE: LIKE CHURCHILL SAID: NEVER GIVE UP.

Tomorrow: Facebook and FERPA!

Got a bond project coming up?  If so, you’d be wise to sign up for our firm’s audioconference on this topic:

MONEY CHANGES EVERYTHING:  MANAGING BOND PROJECTS AND BOND PROCEEDS

It’s not too late to sign up for this one, which will be conducted this Wednesday, February 5^th from 10:00 to 12:00.  Attorneys Winnie Dominguez and Stacy Tuer Castillo, both from our firm’s San Antonio office, will lead the discussion regarding all of the legal ins and outs.  

Go to our website to sign up: www.walshgallegos.com.  This will be a practical session that will answer a lot of questions about what districts can and cannot do in connection with a bond project. 

DAWG BONE: MONEY CHANGES EVERYTHING—GOOD TITLE!

Tomorrow: Toolbox Tuesday!!

I hope that headline is not too obscure.  Translation: It’s almost impossible to change the Independent Hearing Examiner’s Finding of Facts.

This is the ultimate lesson of the case we’ve been reviewing this week.  The district hired an Athletic Coordinator, reassigned her to be a teacher, and then nonrenewed her employment due to a program change.  The Commissioner overturned the nonrenewal and ordered the district to provide the former administrator/teacher with back pay and benefits, and either reinstate her or pay her a year’s salary. 

On Wednesday we explained why two of the board members should have recused themselves from hearing the case.  Yesterday we told you why Commissioner Morath ruled that the reassignment was improper.  Today we’ll try to explain why the nonrenewal was overturned. 

The proposed nonrenewal was based on a program change reduction in force (RIF), among high school business teachers. Of the teachers in that department, the Petitioner had the least seniority, and thus she was the target of the RIF.  But the problem for the district was the ruling that the reassignment was not executed properly.  That meant that the “teacher” was, in fact, not a teacher. By the terms of her contract she was still an administrator.  Key Quote:

Petitioner contends that she was improperly selected for the program change reduction in force nonrenewal because the contract at issue was her 2018-19 Athletic Coordinator administrator’s contract, not a teaching contract.  Petitioner is correct.

Rather than conducting the nonrenewal hearing itself, the school board hired an independent hearing examiner.  The hearing examiner heard the case and issued Findings of Fact, Conclusions of Law and a recommendation that the contract be renewed.  The majority of the board disagreed with the recommendation.  So the board attempted to change some of the fact findings, and to add to others.  That’s very difficult to do.  The board can change a finding of fact “only if the finding of fact is not supported by substantial evidence.”  T.E.C. 21.259(c).   That term--“substantial evidence”--is misleading. It sounds like a lot of evidence, but that’s not what it means:

Substantial evidence means “only more than a mere scintilla.” 

A “scintilla” is not a small fur-bearing mammal. It’s a tiny little bitty bit of evidence.  That’s why you never hear of “the great scintilla” or “a substantial scintilla” or a “humongous scintilla.”  No, it’s always a “mere” scintilla.  So if there is any support whatsoever in the record for the findings of fact done by the hearing examiner, the board is stuck with them.

In his decision, the Commissioner identified five FOFs that the board changed improperly. All of them were supported in the record by at least “more than a mere scintilla” of evidence, and thus they could not be added to, watered down, modified in any way or rejected.

Lessons abound here.  The authority of the superintendent to reassign has its limits.  Board members sometimes need to step aside.  An independent hearing examiner is really independent. 

The case is Lutich v. Fabens ISD, decided by Commissioner Morath on November 5, 2019.  It’s Docket No. 002-R1-09-2019.

DAWG BONE: IHEs ARE TRULY INDEPENDENT.

That’s it for January!  The Dawg will observe Groundhog Day along with the Super Bowl on Sunday, and be back at it on Monday. 

The district hired Tracy Lutich as Athletic Coordinator.  Midway through the year the superintendent reassigned Ms. Lutich to be a business teacher at the high school.  The Commissioner concluded that the reassignment was improper.

District policy (DK Local) defined “reassignment” as “a transfer to another position, department, or facility that does not necessitate a change in the employment contract of a contract employee.”  (Emphasis added).  This transfer, according to the Commissioner, necessitated a change in the contract:

Petitioner’s reassignment necessitated a change in her employment contract because her contract was entitled “Term Contract Athletic Coordinator,” an administrator’s position. The terms of that contract confirmed that it was an administrator’s position in number of work days, pay grade, and job description. It is undisputed that administrator is a different professional capacity than teacher.  Accordingly, by the terms of Respondent’s own policy, the superintendent’s reassignment of Petitioner was not proper.

This reassignment later turned into a proposed nonrenewal. We’ll tell you how that came out tomorrow. The case is Lutich v. Fabens ISD, decided by the Commissioner on November 5, 2019.  It’s Docket No. 002-R1-09-2019.

DAWG BONE: ADMINISTRATORS CANNOT BE “REASSIGNED” TO BE TEACHERS.

Tomorrow: the reassignment leads to a nonrenewal.

We don’t get a lot of decisions that shed light on the circumstances when a board member should seek recusal from a hearing due to a possible conflict of interest.  But we have one in a decision from the Commissioner. 

The story begins with complaints filed by two individuals who were parents of volleyball players.  But that’s not all they were.   One of them had the dual distinction of being a board member herself, as well as the mother-in-law of the board president.  The other complaining parent was the wife of the board president. So we have a board president whose wife and mother-in-law have filed complaints against a coach, whose case later comes before the board for proposed nonrenewal.  And we have the complaining parent/mother-in-law/board member. 

The Commissioner provides no analysis of the standards that apply to recusal, but simply notes that each of the two board members had a “personal connection to the allegations against Petitioner.”  So they should have recused themselves when the Petitioner asked them to. 

This was not the reason for the Commissioner’s decision which went against the district. We will tell you about that tomorrow and Friday.  For today, just a word to the wise board member about recusal.  Tomorrow we will explain how a reassignment case turned into a nonrenewal case and what the Commissioner’s decision tells us about the limits on the superintendent’s authority to order reassignments.

It’s Lutich v. Fabens ISD, decided by Commissioner Morath on November 5, 2019.  It’s Docket No. 002-R1-09-2019.

DAWG BONE: SOMETIMES IT’S BEST TO RECUSE. 

Tomorrow: Reassignment gone wrong.