The Toolbox is our firm’s training program regarding serving students with disabilities who present challenging behaviors.  We offer ten “tools” that are available that should lead to serving the student effectively, while maintaining safety for all.  One of the more difficult tools to use is Tool #3—An Educational Change of Placement Without Parent Approval.

To make a change of placement over parental objection requires the school to justify the move before a special education hearing officer. I recently came across a case that nicely illustrates how to do that.  Testimony from multiple educators demonstrated 1) that the school had made a good faith effort to serve the student in a less restrictive setting; 2) that it was not working well; and 3) that the student would be better served in a more restrictive setting.  Those are the three things the school has to prove.  Note the court’s reference to “multiple educators.” The staff was united on this. 

The parent challenged the move, asserting that a move to an MRE (More Restrictive Environment) was not called for.  But applying the Daniel R.R. test for an LRE/MRE analysis, the court ruled in favor of the district. The school made one mistake.  It failed to provide the parents with a Prior Written Notice informing them of the change.  However, the court determined that this was a  procedural error that did not cause any harm. The parents knew and understood what was happening. 

Tool #3 should be used rarely, and only with full support from the teaching staff and after a legal review.  But as this case shows, it can work. 

The case of Clasen v. Unified School District Sedgwick County Area Educational Services Interlocal Cooperative was decided by the U.S. District Court for Kansas on August 27, 2019.  We found it at Special Ed Connection at 75 IDELR 5.

DAWG BONE: CHANGING PLACEMENT OVER PARENTAL OBJECTION REQUIRES A UNITED STAFF.

Tomorrow: We move from Toolbox to Toolkit!

Every time I speak to assistant principals they tell me how swamped they are with reports of bullying.  I’m told this often comes up when the A.P. contacts a parent about some completely unrelated disciplinary situation. The parent responds with “Well….I know she shouldn’t have done that, but you know they have been bullying her for the past six months.”  This is often the first time the bullying has been reported. 

It’s a good thing that we have gotten serious about eliminating bullying from our schools.  But not every playground fight is bullying.  One of the challenges for school administrators who are charged with investigating bullying allegations is explaining the difference between bullying and other types of misconduct. 

Our legal definition of bullying includes four components. There has to be 1) action; 2) effect; 3) severity; and 3) motivation.  When there is a fight on the playground you may have action and effect, but you don’t necessarily have the severity or the motivation that signifies bullying. 

The definition is in Section 37.0832 of the Texas Education Code.  It defines “action” to include physical, verbal, written or electronic communication. 

It defines the effect as causing physical harm, property damage, reasonable fear of these things, or a major disruption of school or a classroom, or an infringement on the rights of the target of the action.

Severity is incorporated into the definition with words like “severe, persistent or pervasive” such that there is an “intimidating, threatening or abusive educational environment.”  The statute tells us that bullying could occur through a “pattern of acts” but if it is a single act it is bullying only if it is “significant.”  All of this indicates that minor incidents do not amount to bullying.

As for motivation, the statute requires a finding that the bullying “exploits an imbalance of power.”  If there is no exploitation of an imbalance of power, there is no bullying.

Sometimes you have two students going at each other, both verbally and physically, but there is no imbalance of power to exploit. That may be a violation of your code of conduct, but it’s not bullying. 

It’s challenging for A.P.s to have to explain to parents why the incident that they think of as “bullying” may not be labeled as such by school officials.  But remember, just because you’ve concluded that the action did not justify the B label does not mean that you are condoning it.  Minor incidents that do not meet the statutory definition need to be addressed.  The best way to keep things from becoming “severe, persistent or pervasive” is to step up and take action on the minor things. 

DAWG BONE:  IF THERE IS NO IMBALANCE OF POWER TO EXPLOIT, IT CAN’T BE BULLYING.

Tomorrow: Toolbox Tuesday!!

Seems to me we used to get Thursday and Friday off on Thanksgiving week.  Then our standards started to slip.  Some schools announced that they would be taking off at noon on Wednesday.  Getting ahead of the traffic to Grandma’s house seemed to be the rationale these slackers cited.  But you know how it goes with slipping standards.  All of a sudden there were a rash of schools that decided they would shut down for all of Wednesday, as well as the actual Turkey Day and Friday.

Then the inevitable: let’s just shut it down for the whole week.  Did I hear someone refer to “the slippery slope”?

Thus it is that many of you (most?) will not be working at all next week.  So I’m not going to do the Daily Dawg next week.  And since we are all now already anticipating that week off, I’m providing a short entry for today. Short but sweet, with a familiar message: BE REASONABLE. 

It involved a cyber school in Pennsylvania. The court held that the school was not required to provide homebound instruction.  Indeed: homebound instruction in the context of a cyber school is hard to wrap one’s head around.  But the rationale for the court’s decision was the unreasonableness of the parents. 

The student’s guardian sought homebound instruction and produced a recommendation of this from a psychiatrist. When the school sought consent to talk to the psychiatrist for more information and clarification, the guardian refused to provide it.  The court took this into account in ruling against the guardian.  If the parents want the school to consider a recommendation from someone outside of the school, such as the psychiatrist in this case, it’s very reasonable for the school to want to talk to that person.  It looks unreasonable when the parents block that conversation.

That one is Price v. Commonwealth Charter Academy Cyber School, decided by the federal court for the Eastern District of Pennsylvania on August 13, 2019.  We found it at Special Ed Connection:  74 IDELR 286.

DAWG BONE: LET’S GO HOME, WATCH FOOTBALL AND EAT.  AND EAT.  AND EAT.

A cheerleader in San Benito was kicked off the squad because of content she posted on her Twitter account that the 5^th Circuit described as containing “profanity and sexual innuendo.”  The parents appealed the decision to the principal and superintendent, but the decision stood.  Then the parents took it to court. We recently got a decision from the 5^th Circuit. 

The claim was about infringement of free speech rights. The Twitter posts were, indeed, vulgar and offensive, but this was all done off campus, and there was no suggestion of violence. There was no bullying, no threats.  Just a teenager being a teenager.  The suit named as defendants the school district, two cheerleader sponsors, the principal and the superintendent.   The 5^th Circuit held that all of the individual defendants were entitled to “qualified immunity” because their actions did not violate legal standards that were “clearly established” at the time.  Case dismissed.

There are few things LESS clearly established in the law than the status of student use of social media off campus.  In this decision the court reviews its own precedents and confesses that “our cases have failed to clarify the law governing school officials’ actions in disciplining off-campus speech.” No kidding.  Thus the court did not say that the Twitter posts were protected under the 1^st Amendment, and did not say they were not. Instead, it took the easier path—holding that the law was too murky to permit any cheerleader sponsor, or school administrator to be held personally liable. 

But the court attempted to provide some guidance for the future.  Some key points:

1. The fact that the student and her mother signed off on a Cheerleader Constitution that put them on notice that social media activity would be monitored, and might be penalized, was a factor here.  So it’s a good idea for schools to continue to require this.

2. The fact that the Twitter account identified the student as a San Benito cheerleader mattered also.  By including that information on her Twitter account, the ugly posts reflected poorly on the school.

3. “Most notably” the court observed, the girl was not suspended from school, but only from an extracurricular activity.  This suggests that if harsher penalties had been imposed, the case might have come out differently.

4. You can’t discipline a student for off-campus speech simply because you find it offensive. 

5. As a general rule, the student’s intent for the speech to reach the school community is important.  The court made this observation and then followed it by noting how the Internet muddies the water. Here’s the Key Quote:

Because a school’s authority to discipline a student speech derives from the unique needs and goals of the school setting, a student must direct her speech towards the school community in order to trigger school-based discipline.  We acknowledge, however, that the “pervasive and omnipresent nature of the Internet” raises difficult questions about what it means for a student using social media to direct her speech towards the school community.

Kudos to Katie Payne of our firm’s San Antonio office for excellent representation of the district and the employees in this case.   Katie was assisted by Leandra Ortiz and Mike Saldana of our Rio Grande Valley office.  The court dismissed the case in its entirety—district and individual defendants.  The case is Longoria v. San Benito CISD, decided by the 5^th Circuit on November 4, 2019.  We found it at 2019 WL 5687512.

DAWG BONE: WHAT’S CLEARLY ESTABLISHED CONTINUES TO NOT BE VERY CLEARLY ESTABLISHED.  

Tomorrow: Homebound?

A federal judge raised many an eyebrow last year when he ruled that having dyslexia always and automatically means that the student also has a “specific learning disability” (SLD) and is, therefore, eligible for special education services under IDEA.  We told you about this ruling in the Daily Dawg on January 10, 2019.  The case was “vacated” by the 5^th Circuit because the judge failed to take into account the requirement that a student—even one with SLD—has to demonstrate an “educational need.” To be eligible, the student has to “need specially designed instruction,” i.e., special education services.  Thus the 5^th Circuit sent the case back to the lower court for consideration of “educational need.”  We told you about the 5^th Circuit decision on September 4, 2019.

Now the original judge has weighed in again, this time applying the “educational need” standards laid out by the 5^th Circuit.  With regard to the relationship between dyslexia and SLD status, the judge stuck to his guns, noting that “the IDEA itself explicitly defines dyslexia as an SLD.”  Key Quote:

In the present case, [the student] has already been diagnosed with an eligible condition. Such a diagnosis negates the need for additional testing to determine SLD status and the District’s discretion in making such a determination.

 
Notice that the district acknowledged that the boy had dyslexia, and provided services to address this. The disagreement was about if that meant that he also had an SLD.  The district did a full evaluation, including a cross-battery assessment and concluded that this student’s dyslexia did not amount to a SLD.  But again, the judge disagreed.  In the judge’s mind it’s pretty simple: 

Dyslexia=SLD

Thus William met the first part of the eligibility criteria: he has a learning disability.  But what about the “need” component?  The judge reviewed the services that the school was providing on the basis of the dyslexia diagnosis, and declared them to be “special education.”  This is the most important part of this decision, in that it reflects the reality that a school might be providing “special education” services even when it calls those services something else.   Here’s what the judge called “special ed”:

Daily dyslexia services in the general education setting; extra time to complete assignments; having an opportunity to repeat and explain instructions; sit near the teacher; receive reminders to stay on task; and have all material, except reading class passages, read to him.  

The judge went on:

Furthermore, [the student] began participating in a Wilson Reading System group for students with dyslexia for 45 minutes during the RtI period.  [He] also attended 45-minute long one-on-one tutoring sessions with the interventionist after school on Thursdays, specifically using the Wilson Reading Program. 

The judge held that the district had “adapted the content, methodology, and delivery of instruction to specifically address the unique needs of [the student].”  That’s the very definition of “special ed.”

So to recap: the judge ruled that the student satisfied both prongs of eligibility.  He had a qualifying disability (SLD) and he needed the adaptations to content, method and delivery that the district was providing.  He needed special education services due to his SLD.  Therefore, the judge concluded he should have been determined to be eligible for special education services. Even though the district’s ARD Committee concluded that he was no longer eligible for special education services, the district continued to serve the student through an IEP while the parties wrangled in legal proceedings. That turned out to be a good thing for the district. The court concluded that the failure to identify the student as “eligible” was a procedural error…but one that did not cause harm.  The district provided appropriate services and the boy made progress. The court pointed out that “progress” should be measured by individual achievement, rather than a comparison to peers.  By that standard, the record showed plenty of progress.

This is a complicated case, but one that special ed types should think about and discuss.  I think there are two main “takeaways” here. First, here is one federal judge who thinks that dyslexia is always an SLD.  If one judge thinks that, others will as well.  Second, just because you call it “dyslexia services” or “RtI” does not mean that a judge will see it that way. This judge disregarded the label the district attached to the services and simply compared the services to the legal definition of “special education.”  Thus the district was guilty of “committing special ed” when it didn’t think it was. This is not the first time this has happened and won’t be the last. 

This one is William V. v. Copperas Cove ISD, decided by the federal court for the Western District of Texas on October 22, 2019.  We found it at Special Ed Connection, 75 IDELR 124.  

DAWG BONE: WHAT YOU CALL “DYSLEXIA SERVICES” MIGHT BE “SPECIAL EDUCATION.”

Tomorrow: Two Four Six Eight—Who Do We Appreciate?  The Fifth Circuit!!

On Tuesdays here at the Daily Dawg we focus on The Toolbox, our firm’s all-day training program regarding discipline of students with disabilities.  Today a reminder: you can use Restorative Practices right alongside the Toolbox.  In fact, I encourage that. 

This came to mind recently when I spoke at the Restorative Practices conference in Irving sponsored by ED311 and the National Educators for Restorative Practices.  It was inspiring to see hundreds of educators coming together to learn more effective ways to deal with problematic behaviors.  I’ve been a proponent of Restorative Practices for many years, as I think it teaches kids the most important “career readiness” skills they will need. 

So a reminder today for all of you who have gone through Toolbox training. The Toolbox is Old School. It’s based on the existing federal regulations that outline what options are available when students in your special education program engage in misconduct.  Many of those options are “exclusionary,” such as out of school suspension, or placement in DAEP. Those options are available and it’s important that you know how and when they can be used.  But your options are never limited to the ten tools we offer in The Toolbox. Restorative Practices are always available.

DAWG BONE: THE TOOLBOX IS COMPLETELY COMPATIBLE WITH RESTORATIVE PRACTICES.  

Tomorrow: Round Three in the William/dyslexia saga.

It’s rare for a legal decision these days to cite as a precedent a court case from the 19^th Century.  But that’s what Commissioner Morath did as he OK’d a teacher’s use of physical force.  The decision never uses the term “in loco parentis” but that’s what it’s talking about. The Commissioner cited Bolding v. State, from 1887.  1887!!!  That case held:

Teachers have the right, the same as parents, to prescribe reasonable rules for the government of children under their charge, and to enforce, by moderate restraint and correction, obedience to such rules.

That notion of “in loco parentis” is embraced in a provision in the Texas Education Code that protects teachers who use physical force with a student, so long as the force is non-deadly and “reasonable.” T.E.C. 22.0512. What’s “reasonable” is always the sticking point in these cases.

The school district nonrenewed the librarian’s contract based on what the school board thought was unreasonable use of force. The Commissioner reversed that decision, and offered us another reminder of the extensive protections that teachers enjoy in “physical force” cases.  Key points:

1. The statute protecting teachers is “remedial,” meaning that it “is to be given the most comprehensive and liberal construction possible.”

2. The school carries the burden of proof in these cases. The teacher does not have to prove that the force was reasonable. The school has to prove that it was unreasonable.

3. The facts are to be viewed “from the teacher’s perspective.”

What happened here was that the librarian used physical force to deter three 8^th grade boys from entering the In School Suspension room. The boys were not supposed to be in that hallway, and were not allowed to enter the ISS room. The librarian, serving as hall monitor (other duties as assigned!) told them to leave, and they didn’t.  One of the boys cursed at him. The librarian “moved this student by pushing him a short distance down that hall toward the office.”

The Commissioner pointed out that the entire episode lasted 26 seconds.  No one was hurt.  The librarian did not hit or slap anyone.  He gave a proper command that was disregarded and disrespected.  Thus the conclusion: the force used, seen from the perspective of the librarian, was reasonable.  The fact that it could have been handled in a better way did not matter. Teachers may not be disciplined for the use of reasonable force. 

The case is Zarsky v. Southside ISD, decided by the Commissioner on September 11, 2019. 

DAWG BONE: SOME THINGS HAVEN’T CHANGED SINCE 1887.

Tomorrow: Toolbox Tuesday!!

Yesterday the Dawg reported on the 5^th Circuit’s decision involving a teacher in Fort Bend ISD who filed claims of discrimination and retaliation.  The court ruled in favor of the district on all claims.  Today, I want to tell you about how the care and feeding of fish figured into the case.

The plaintiff was an aquatic sciences teacher who had 14 or 15 fish tanks in her classroom.  As everyone was getting ready to go home at the end of the fall semester, an associate principal said to the teacher, “Ms. Welsh, you need to take care of your fish.” 

You just never know what stray comments are going to find their way into a published decision from the 5^th Circuit. 

Ms. Welsh took umbrage. She felt humiliated at what she perceived as a verbal reprimand that was spoken in front of co-workers. Moreover, she felt she was being made fun of by a younger colleague.  Thus this became part of her lawsuit, alleging discrimination and retaliation by the district. 

The court did not see it that way.  The court noted that our anti-discrimination laws do not “set forth ‘a general civility code for the American workplace.’”  Key Quote:

At best, Welsh’s humiliation as a result of [the associate principal’s] comment is an unpleasant workplace experience, not an adverse employment action. 

The teacher in this case also alleged that the district punished her by changing the curriculum and putting more at-risk and special needs kids in her classroom.   The court’s view on that is insightful.  It made me wonder if the judge is married to a teacher:

…curriculum changes are a reality of being a teacher and Welsh fails to explain how or why being assigned to work with students who are “at risk and special needs” is an adverse employment action.  Indeed, a reasonable administrator may decide to assign only their best teachers to educate students with “special needs.”  Far from being an adverse action, working with “special needs” students may actually reflect well on the teacher assigned to do so.

The case is Welsh v. Fort Bend ISD, decided by the 5^th Circuit on October 30, 2019. We found it at 2019 WL 5588992. 

DAWG BONE: NOTHING FISHY GOING ON IN FORT BEND.

See you next week, Readers!

I’ve always thought that Teacher in Need of Assistance (TINA) is a term that applies to every single teacher.  Really…have you tried to teach a roomful of children, many of whom don’t want to be there?  Have you tried to do that all day long?  Day after day??? 

I know that most of the readers of the Daily Dawg have indeed had that experience. Thus you probably agree with me, that every single public school teacher needs all of the assistance we can provide.  Nevertheless, teachers don’t like it when “teacher in need of assistance” is capitalized and acronymized to TINA.  A TINA is a growth plan.  It indicates there is something wrong, or at least, something that needs improvement. 

But according to the 5^th Circuit, “an employer’s decision to place an employee on a performance improvement plan is not an adverse employment action.”  That pretty well shot down Guadalupe Welsh’s lawsuit alleging discrimination based on age, sex, and national origin.  To prevail on a discrimination case, the plaintiff has to prove that she suffered an “adverse employment action.”  Ms. Welsh’s employer, a Texas school district, did not fire her, did not nonrenew her contract, did not demote her.  It kept her employed and raised her salary.  However, an associate principal put Ms. Welsh on a TINA. She successfully fulfilled the requirements of the TINA and thus it was lifted after just one month. Then she asked the district to remove any reference to the TINA, but the district declined to do so. 

Here’s the hair-splitting part of this decision.  The court had no problem in determining that the discrimination claims failed from the get-go because there was no “adverse employment action.”  Previous decisions had made it clear that the term “adverse employment action” applies only to “ultimate employment decisions” like firing.  But that’s in the context of a discrimination claim. 

Ms. Welsh also brought a claim of retaliation, claiming that she was punished for making and pursuing claims of discrimination.  A retaliation claim also requires proof of an “adverse employment action,” but the Supreme Court has interpreted that term “slightly more broadly [on a retaliation claim] than the term is defined in the employment discrimination context.” 

Sidebar: that’s law practice for you.  You might think that words always mean the same thing.  You might think that an “adverse employment action” means the same thing regardless of context.  You might think that. But if you do, you are not thinking like a lawyer.

So here we have a case where the TINA is not an “adverse employment action” for purposes of a discrimination claim.  Might it qualify in the “retaliation” context?  The 5^th Circuit avoided the issue by concluding that Ms. Welsh had another problem: causation.  Key Quote:

We need not decide whether the TINA was a retaliatory adverse employment action because there is no causal relationship between the TINA and Welsh’s protected activities. This court has repeatedly held that gaps of eight to ten months between the protected activity and the alleged adverse employment action break a causal chain.

There are a couple of other interesting aspects to this story, which we will save for tomorrow.  The case is Welsh v. Fort Bend ISD, decided by the 5^th Circuit on October 30, 2019. We found it at 2019 WL 5588992.

DAWG BONE: A TINA IS NOT AN ADVERSE EMPLOYMENT ACTION….AT LEAST NOT IN A DISCRIMINATION CLAIM.

Tomorrow: Ms. Welsh, you need to take care of your fish….

New York changed its law about immunization and public school attendance.  The law had permitted parents to obtain an exemption from the immunization requirement based on health or religious reasons.  With the change, however, only health-related reasons would be permitted.  The parents of some students with disabilities challenged the change in the law, offering a novel argument. They asserted that the change in the law violated IDEA, our federal special education law. 

The court disagreed, holding that New York’s mandatory vaccination requirement did not violate IDEA, nor was it preempted by IDEA.   The plaintiffs also asserted that the change in law effectively barred their children from school, and thus it was a “change of placement” in violation of IDEA’s stay put rule.  Nope.  Key Quote:

To the contrary, it was plaintiffs’ affirmative decision not to comply with the neutral requirement imposed by the repeal that led to an alteration of services—not any unilateral action taken on the part of the state.

This won’t happen here.  Texas still permits an exemption based on an affidavit from the parent indicating an objection to immunization “for reasons of conscience, including a religious belief.”  Texas Education Code 38.001(c)(1)(B).

The case is V.D. v. State of New York, decided by the federal court for the Eastern District of New York on August 19, 2019. We found it at 74 IDELR 279.

DAWG BONE: THIS FIGHT WILL GO ON.

Tomorrow: Have you ever had a TINA?