Last month the 5^th Circuit issued a short opinion that basically says “we agree with the 41-page decision from the lower court.  Northside did nothing wrong.”   In that lengthy lower court decision the court addresses a number of issues, including FBAs and BIPs. Toolbox issues!!

The case involved a preschooler with autism who engaged in behaviors that impeded the learning of the student or others.  The district did a FBA (Functional Behavioral Assessment) and a BIP (Behavior Intervention Program) and the parent complained of both.  The court made some key points about FBAs and BIPs:

• “IDEA provides no explicit requirements for FBAs.  Rather, industry standards provide the framework for such an evaluation.”
• “FBAs rely on the premise that all behaviors serve a purpose.”
• The purpose of a FBA is to “explore a child’s misbehavior and discover what, if anything, can be done to address it and prevent it from occurring again.”  
• A FBA is “an educational evaluation under the IDEA.”

The court held that the district properly addressed the boy’s behaviors.  The ARDC focused on physical aggression and spitting “because they were most disruptive to his learning and progress when they occurred.”   The district charted these behaviors, which enabled it to show that progress was made:

For instance, his behavior chart data from Langley Elementary showed that he went from a high of spitting 44 times in a week in March 2016, to the last five weeks of that school year as only spitting 7, 8, 2, 4, and 0 episodes of spitting, respectively.  His behaviors of hitting and throwing show similar progress. 

The court noted how the school kept the parents in the loop. There was a daily communication log, and a smart phone app to facilitate communication, a daily behavioral chart and visual schedule.  As usual in a case that ends up in litigation we see a lot of effort on the part of educators to not only do their jobs, but also, to document the fact. 

In the Toolbox Training our firm provides we emphasize that the most important of the ten “tools” is Tool #1—a BIP.  A BIP works well only if it is supported by a firm foundation of evaluation information pertaining to the particular student.  Here, Northside ISD had the foundation, provided the service and documented that it did.  Hats off to Northside, and to Elvin Houston and Stacy Castillo from our firm’s San Antonio office, for representing the district in this litigation.

The case is Bruno v. Northside ISD, decided by the 5^th Circuit on December 17, 2019.  The Dawg found it on Special Ed Connection at 119 LRP 47090. The more explanatory lower court decision is at 120 LRP 150. 

DAWG BONE: FBAs and BIPs ARE LIKE SALSA AND CHIPS: THEY GO WELL TOGETHER.

Tomorrow: Board member recusal: when should that happen?

There are two Walsh Gallegos events coming up that I want you to know about.  If you are at the  Midwinter Conference, I hope you will come to our firm’s reception tomorrow night at Fleming’s. It’s 5-6:30, just one block from the Convention Center and is sure to provide good food and drinks for all.  So please stop by! And if you are a Daily Dawg reader, please let me know!

The other event is our firm’s annual HR Symposium. This year we are focusing on employee grievances.  This is something virtually all administrators are going to encounter. The Symposium will guide you through each phase of the grievance process: serving as the decision maker; interacting with the grievant; compiling the record.  The Symposium is a half-day event, and is affordable.  It’s $65/person, or you can send three from your district for $175.  The interactive program runs from 8:45 to 1:00 and includes a box lunch. 

Dates and locations: (All of these are at the ESC unless otherwise noted)

February 5:      Region 20

February 10:    Region 13

February 11:    Houston area at Aldine ISD Child Nutrition Services, 1802 Aldine Bender Road

February 11:    Metroplex area at NOAH’s Event Venue, 6101 Campus Circle Dr.. E., Irving

February 12:    Region 16

February 13:    Region 2

February 13:    Region 12

February 18:    Region 6

February 25:    Region One area at Villa de Cortez, 260 South Texas Blvd., Weslaco

February 26:    Region 3

Sign up at www.walshgallegos.com.  Hope to see you at Fleming’s tomorrow!

DAWG BONE: GRIEVANCES HAPPEN.  GET READY.

Tomorrow: Toolbox Tuesday!

Parents of students with disabilities can obtain an IEE (Independent Educational Evaluation) whenever they want.  But if they want the school district to pay for it, they have to wait for the district to conduct its own evaluation and then disagree with it. This is the holding of the 3^rd Circuit in M.S. v. Hillsborough Township Public School District. 

This case was about a student who was due for a reevaluation in 2017.  At first, the parents and the school agreed that the school would conduct this evaluation, but then the parents changed their minds.  They withdrew consent for the evaluation and asked the district to pay for an independent evaluation—an IEE.  The district refused, noting that it had not been allowed to complete its own evaluation. The school argued that parents can get a publicly funded IEE only when they disagree with the evaluation done by the school.

The court upheld the district’s position:

The right to a publicly funded IEE only arises after a disagreement over a public agency’s educational evaluation. 

Based on the same rationale, the court concluded that the school district was not obligated to initiate a due process hearing to prove up the appropriateness of its own evaluation:

As the parents never objected, the right to request a publicly funded IEE never arose, and [the school district] had no duty to request a due process hearing.

The court ordered that this decision be “unpublished.” That’s misleading.  It is published at LRP’s Special Ed Connection, which is where the Dawg sniffed it out.  “Unpublished” means that it will not be published in the official reports that courts rely on for judicial precedent. Nevertheless, it’s an important look at how a high level court views this issue, which arises in public schools fairly often.  The case was decided on December 13, 2019 and can be found at 119 LRP 46704.

DAWG BONE:  PARENTS CAN GET AN IEE WHENEVER THEY WANT, BUT CAN REQUIRE REIMBURSEMENT FOR IT ONLY AFTER THEY DISAGREE WITH THE DISTRICT’S EVALUATION.

More good stuff coming next week, Readers!

Today we offer for your consideration the case of the elementary school art teacher who showed her young students a picture of her and her fiancé.  There is nothing unusual or noteworthy about that.  It was the first day of school, and many teachers were introducing themselves to their new classes with some personal information, including pictures of family members.  But Stacy Bailey’s fiancé was Julie Vazquez—two women.  At least one parent heard about this and complained that  the teacher was promoting the gay lifestyle in the classroom. 

According to the teacher, this is what led to her lengthy administrative leave and involuntary reassignment to the high school.  She had been with the district for ten years, had earned exemplary evaluations and had twice been named Teacher of the Year.  Then this happened.  

Then the lawsuit happened.  The teacher alleged that the district had 1) burdened her right to marry; 2) discriminated against her in a way that violated the Equal Protection Clause; and 3) deprived her of her right to Due Process of Law. She sued the district, the HR Director and the Superintendent. 

RIGHT TO MARRY.  The court dismissed the claim about the right to marry, for the simple reason that Ms. Bailey and Ms. Vazquez got married.  The district did not halt or delay the marriage.

EQUAL PROTECTION.  The court held that Ms. Bailey had alleged a legitimate claim under the Equal Protection Clause. This is the most interesting and most important part of this decision.   The school district asserted that Ms. Bailey refused to comply with its directives about age-appropriate conversations with children in the classroom.  If and when the case goes to trial and all of the facts are heard, perhaps that will be the outcome. But at this early stage of the litigation the court held that Ms. Bailey might be the victim of unconstitutional discrimination.  Key Quotes:

Until the time a parent complained about her sexual orientation, she taught at Charlotte Anderson Elementary School without incident.  Based on the pleadings, the court reasonably draws the inference that Mansfield ISD’s decision to place her on administrative leave for eight months and then not permit her to resume her job teaching art to elementary school students was based on her sexual orientation and a desire to appease complaining parents in the community operating on the basis of outdated stereotypes about homosexuals. 

The “negative reaction” some members of the community may have to homosexuals is not a proper basis for discriminating against them.

You want to offer a guess as to what famous case the court cited in support of that proposition?  If you guessed Brown v. Board of Education, you got it right.  You may recall that there was just a bit of “negative reaction” from “some members of the community” to that decision also.  

DUE PROCESS.  The court also held that Ms. Bailey alleged a violation of her right to due process. This is based on allegations that the district did not follow its normal disciplinary procedures and deviated from custom by issuing a public statement about a personnel matter.  This part of the court’s decision is short on legal support, and may be difficult for Ms. Bailey to ultimately prevail on since neither administrative leave nor a reassignment generally trigger a duty to provide due process.

LIABILITY OF THE DISTRICT.  The court held that the district faces possible liability for the alleged discrimination.  School districts can be held liable in cases like this only if the court concludes that school policy or official action violated a person’s rights.  Here, the policy did not call for different treatment of gay and lesbian employees.  However, the court cited a press release the district issued to the community about Ms. Bailey’s situation:

Based on these allegations, and its reading of the Mansfield ISD Press Release that is part of the pleadings, the court can reasonably infer that Mansfield ISD’s Board of Trustees issued or approved a policy that intentionally discriminated against Bailey based on her sexual orientation.

LIABILITY OF THE ADMINISTRATORS.  The court concluded that the HR Director was entitled to qualified immunity because the pleadings in the case alleged that the superintendent, not the HR Director, made the decisions about Ms. Bailey.  The court granted qualified immunity to the superintendent on the “right to marry” claim, but not on the Equal Protection claim.  Thus the superintendent does face potential personal liability, and has filed a Notice of Appeal to the 5^th Circuit on this issue.

This is just the first step in this case, which has a long way to go. The teacher has not proven that she is the victim of sex discrimination, but she has cleared an important first hurdle. Some well-informed readers may wonder how the pending SCOTUS case about discrimination based on sexual orientation will affect this case.  The answer is: not at all. The SCOTUS case is about the interpretation of a statute-Title VII of the Civil Rights Act of 1964. This case has nothing to do with Title VII. Ms. Bailey’s case is based exclusively on the U.S. Constitution--the very same constitutional provision that was the basis for Brown v. Board of Education. 

The case is Bailey v. Mansfield ISD, decided by the federal court for the Northern District of Texas on November 21, 2019. We found it at 2019 WL 6216669.

DAWG BONE:  NEGATIVE COMMUNITY REACTION CANNOT JUSTIFY A DENIAL OF EQUAL PROTECTION OF THE LAWS.

Tomorrow:  IEE reimbursement.

The latest Jane Doe case begins with this:

When a high school teacher and a student have a sexual relationship, it is the stuff of nightmares for school districts, principals, and, of course, parents. 

Jane Doe had that kind of relationship with Robert Milton, an art teacher in Katy ISD.   When the nature of the relationship came to light, after Ms. Doe had graduated, Mr. Milton resigned. Later he plead guilty to the criminal charge of having an improper relationship with a student.

That’s not enough to make the Katy ISD legally responsible for what happened.  In her suit against the district, Jane has to produce evidence showing that a supervisory employee knew what was going on, or, that the supervisor had actual knowledge of a “substantial risk” of such behavior.  It was clear from the record that no one in the district knew about Jane and Mr. Milton, so Jane had to convince the court that there were earlier incidents involving other students that put the district on notice that Mr. Milton posed a “substantial risk.” Moreover, Jane had to show that someone who supervised Mr. Milton had actual knowledge of that level of risk.  

So the focus was on the principal.  Actually, it was on another principal from 14 years earlier.  Jane Doe and Mr. Milton began a sexual relationship in April, 2015.  But there was another student who may have had a sexual relationship with Mr. Milton in 2001. That girl lived with her uncle that year, and the uncle came forward in Jane Doe’s case with important testimony.  He claimed that way back in 2001 he came across some “love letters” from the teacher to his niece, and that he told the Mayde Creek principal that he suspected an “inappropriate sexual relationship.”  The principal testified that he had no memory of such a report. 

There you have a “fact issue.”  You have one person testifying that he put the principal on notice of something that would require investigation, and the principal denying it.  When you have a dispute over an important fact issue, the court is not going to toss the case out. It’s going to allow it to proceed so that the facts can be more fully developed. That way the court can come to a conclusion as to what exactly happened in 2001 and what bearing it has on what happened in 2015.  That’s what the court did here.  It refused to dismiss the case.  

The district is whittling away at this case. It began with a suit against the district, several KISD employees and Mr. Milton. All that remains is the suit against the district.  Moreover, the court in this opinion tossed out the claim for punitive damages, noting that such a remedy is not available under Title IX. 

The district may very well prevail.  Jane Doe still bears a heavy burden of proof.  She not only has to prove that a supervisory employee, such as the principal, had actual knowledge of a “substantial risk” of inappropriate behavior by this teacher—she also has to show that the district responded with “deliberate indifference.” 

One other point is worth making here. Jane Doe was 18-years old when all this began.  Her sexual relationship with the teacher began in April, 2015, and she graduated that spring—probably about six weeks later.  The relationship continued over the summer and the next school year when Ms. Doe was in college. She broke it off in the summer of 2016 and told her mother about it. 

So take note: this stuff happened when she was under the control and supervision of the school district for only about six weeks, and she was legally an adult the whole time.

It’s still the stuff of nightmares. And lawsuits.

The case is Doe v. Katy ISD. The U.S. District Court for the Southern District of Texas tossed out the claim for punitive damages, but allowed the case to proceed against the district on December 13, 2019. We found the case at 2019 WL 5191011.

DAWG BONE: THE “STUFF OF NIGHTMARES” CAN REACH BACK 14 YEARS TO A PREVIOUS PRINCIPAL.

Tomorrow:  Ms. Bailey, the art teacher, is getting married to a woman.

The 9^th Circuit Court of Appeals has granted qualified immunity to educators in California who were sued personally over the use of restraint and seclusion that allegedly exceeded state guidelines and IEP standards.  According to the lawsuit, this young boy was restrained at least 112 times and spent 2,719 minutes in isolation over a three-year period starting when he was in second grade.  Yikes! The parents alleged that this far exceeded what was permitted by the IEP, that it was inconsistent with state guidelines, and that it was not discussed at IEP Team meetings. 

The educators asked the court to dismiss them from the case due to the “qualified immunity” they enjoy under federal law. The district court refused to do so, but the Circuit Court reversed that decision, holding that the educators were entitled to immunity because they did not violate legal standards that were “clearly established.”   The court took particular note of the specific context:

The use of physical restraints and seclusion by school officials to address the challenges presented by a severely emotionally disturbed student whose behavior poses a safety threat to others.  

In the Toolbox Training our firm provides we recommend that physical restraint not be mentioned in an IEP or BIP.  It doesn’t need to be “authorized” since it’s already authorized by state law.  It should not be prohibited because you can never predict when an emergency might require restraint.  It’s not the type of “positive behavioral supports, interventions or strategies” that BIPs should contain. It’s a response to an emergency, an effort to prevent greater harm. 

The use of restraint needs to be documented and reported promptly to parents.  If it is used frequently, there is a bigger problem at hand, and the district should diligently search for a better method of addressing the student’s issues.  Can parents sue individual educators if they believe that restraint was not called for, or was used excessively?  Sure they can. But here is a high level court holding that qualified immunity is available to those educators. 

One final point about this case: the suit was based on alleged violations of the right to bodily integrity under the 4^th Amendment.  That is the specific legal standard that the court said was not  “clearly established.”  Parents could still pursue a simpler legal theory—that the district did not faithfully implement the IEP.  If the district does not faithfully implement a student’s IEP it can be held accountable in a legal proceeding.  Individual educators should be held accountable long before that by their supervisor.

This one is A.T. v. Baldo, decided in an “unpublished” opinion by the 9^th Circuit on December 24, 2019.  We found it at Special Ed Connection, 119 LRP 47996.

DAWG BONE: RESTRAINT IS ONLY FOR EMERGENCIES.

Tomorrow: “The stuff of nightmares.”

“To save man from the morass of propaganda, in my opinion, is one of the chief aims of education. Education must enable one to sift and weigh evidence, to discern the true from the false, the real from the unreal, and the facts from the fiction.”

Enough said for today.  Let us all be grateful for the leadership, vision, inspiring rhetoric and example that Dr. Martin Luther King, Jr. gave us.

DAWG BONE:  THANK YOU, DR. KING.

Tomorrow: Toolbox Tuesday!!

The Joint Guidance issued last month by the Department of Education and Department of Health and Human Services provides clarity about the “health or safety emergency” provisions in our confidentiality laws—FERPA and HIPAA.  Here is the answer to Question 22 in the Guidance:

FERPA provides that PII (personally identifiable information) from a student’s education records, including student health records, may be disclosed by educational agencies and institutions to appropriate parties in connection with a health or safety emergency, without the consent of the parent or eligible student, if knowledge of the information is necessary to protect the health or safety of the student or other individuals.  

The Guidance then offers this example:

For example, if an eligible student storms out of a teacher’s office stating that “I know where my parents keep their guns, and someone is going to pay” and the teacher believes that the student is on his way home to and may try to use the weapons, FERPA’s health or safety exception would permit the teacher to contact the parents, police, or others in a position to help, to warn them that the student is on the way home and threatened to use a weapon against others.

This exception applies when school officials reasonably conclude that there is an “articulable and significant threat” to the health or safety of the student or others.   That kind of threat could be a specific threat of an attack on someone, or “a situation in which a student gives sufficient, cumulative warning signs that lead an educational agency or institution to believe the student may harm himself or others at any moment.”

Notice that information in such an emergency can be provided to parents, the police or “others in a position to help.”  However, the Guidance does not provide a carte blanche for student records to be disclosed to law enforcement when there is no immediate health or safety emergency. Key Quote:

In situations where the law enforcement official is not a school official with a legitimate educational interest, the school may only disclose a student’s education records, including health records, to that official with the prior, written consent of the parent or eligible student, unless an exception applies.

The 25-page document is not compelling reading, but if you want to see what it says, check this out: 

2019 HIPPAA FERPA Joint Guidance

DAWG BONE: YOU HAVE TO HAVE AN “ARTICULABLE AND SIGNIFICANT THREAT” TO DISCLOSE CONFIDENTIAL INFORMATION IN AN EMERGENCY.

Back to the Dawg House for the weekend, folks.  See you on Monday.

Last month the Department of Education and Department of Health and Human Services issued a 25-page document offering “Joint Guidance” on the application of FERPA and HIPAA to student health records.  This Guidance should ease some concerns about how HIPAA impacts public schools.  In a section that addresses the intersection of these two laws the Guidance says “In a few limited circumstances, an educational agency or institution subject to FERPA can also be subject to HIPAA.”

Only in “a few limited circumstances”?  Yes. Here’s why.

The privacy rules regarding HIPAA only apply to “covered entities,” such as “health care providers.” As a general rule, K-12 schools are not “health care providers.”  The Guidance specifically says that the employment of nurses, psychologists and other health care providers does not make the school a “health care provider” for purposes of HIPAA.  If you are not a “health care provider” you are not a “covered entity” under HIPAA, and so you don’t have to comply with it. But read on. 

The school would be a “covered entity” under HIPAA if it employs “a health care provider that bills Medicaid electronically for services provided to a student under IDEA.”  Many Texas school districts  do this, thus making them “covered entities” under HIPAA.  But read on.

Even though the Medicaid billing brings the school into the status of a “covered entity” it is not required to comply with HIPAA privacy standards if the health information it maintains is contained in “education records,” which is usually the case.  But read on. 

The reason you don’t have to comply with HIPAA privacy standards is because those education records are already covered by FERPA.  So there are confidentiality rules and regulations, but they come from FERPA, not HIPAA.

Tomorrow we will tell you what this new Guidance tells us about dealing with sensitive information in a time of crisis.  Want to read this stuff for yourself?  Be my guest:

2019 HIPAA FERPA Joint Guidance

DAWG BONE: IT’S ABOUT FERPA, FOLKS.  NOT SO MUCH ABOUT HIPAA.

Tomorrow: We have a threat. Who can we tell?

Gerry Monroe had some harsh things to say at the Houston ISD board meeting in April, 2019. His colorful presentation to the school board concluded with this:

Do something with that idiot over there. This is the mandate: Either you take her out or I’m going to take her out. 

The alleged “idiot” was an HISD principal.  The 5^th Circuit is not sure that the words “or I’m going to take her out” amounted to a “true threat.”  Therefore, the court sent the case back to the district court for a determination of that issue—true threat?  Or just strong words?

Context is important.  Mr. Monroe’s comments were offered at the April meeting.  The district then sought to bar him from attending its December meeting. That’s when he sued. The effort to silence him in advance of the December meeting is what the law calls a “prior restraint.”  Cutting off a speaker who is threatening or out of control as they speak is one thing—cutting them off in advance is another.  It’s a “prior restraint” which is extremely difficult to justify.  However, it could be justified if the speaker has uttered a “true threat.”

In this decision, the Circuit Court faulted the lower court for not being specific about the “true threat” analysis. Key Quote:

But it [referring to the lower court] does not articulate what speech or conduct of Monroe reached the level of a true threat.  If no statement or action did, then HISD would be restraining Monroe from speaking at a public meeting based on the content of his speech or his viewpoint.

Perhaps Monroe’s statements are an attempt to get a principal fired through protest, public activism, and political activity.  Perhaps they were a legitimate threat to murder a school principal.  The district court needs to make that call.

This brief opinion from the 5^th Circuit makes one more point worth thinking about. The court points out that the standards for boisterous speech at a school board meeting are different from the standards that apply in the school during school hours.  Courts routinely support educators when they restrict disruptive or vulgar speech in the school building.  Here, the 5^th Circuit implies that a board meeting is different.  Public comment at the board meeting is the opportunity for citizens to speak their minds. Perhaps a longer leash is appropriate. 

The case is Monroe v. Houston ISD, decided by the 5^th Circuit on November 25, 2019.  We found it at 2019 WL 6320348.

DAWG BONE: TRYING TO GET A PRINCIPAL FIRED THROUGH “PROTEST, PUBLIC ACTIVISM, AND POLITICAL ACTIVITY” WOULD BE PROTECTED FREE SPEECH.

Tomorrow: HIPAA and FERPA!