What would you do in this situation?  The student was served pursuant to Section 504.  The annual 504 Team meeting is coming up. The parent forwarded to the school an email he had received from the child’s private psychologist.  It read:

We understand that with her specific diagnoses A.B. [the student] qualifies as OHI and is eligible for an IEP—is tutoring covered by her IEP?  Is there something that is covered by an IEP that can benefit her?

The parent informed the school that he wanted to discuss the topics raised by the psychologist when the 504 Team met.  The court doesn’t tell us what happened at the 504 meeting, but it’s clear what did not happen. The school did not offer to evaluate A.B’s eligibility for special education, did not provide a copy of the Procedural Safeguards, and did not provide a Prior Written Notice explaining why it chose not to look into the student’s eligibility.

Loyal Daily Dawg Readers know where this is headed. The 4^th Circuit held that the email along with the parent’s request to discuss it triggered the district’s Child Find duty. The district should have given the parent’s the Procedural Safeguards document along with either 1) a consent form for the evaluation; or 2) a Prior Written Notice explaining why it was declining to do an evaluation.

Defending the district’s failure to act, the lawyer for the district argued that the parent never specifically asked for an IDEA evaluation. The court had little trouble with that line of argument, noting that “magic words” were not required, and that it should have been obvious to public school educators that the parent was asking if his child was eligible for special education. 

What about the fact that the parent knew his rights under 504?  The court held that 504 rights and IDEA rights are different. When Child Find is triggered under IDEA it’s the IDEA rights that must be explained. 

Because of the district’s failure to act, the court held that the statute of limitations had not begun to run. So even though the parent’s initial request for due process hearing came later than allowed under the statute, that didn’t matter. The court held that the district improperly withheld important information from the parent. 

It’s Charlotte-Mecklenburg County BOE v. Brady, decided by the 4^th Circuit Court of Appeals on April 19, 2023. It’s located at 2023 WL 2994168 and will be published in the Federal Reporter. 

DAWG BONE: LOOK AT THE COMMON SENSE OF THE SITUATION. WHAT IS THE PARENT ASKING ABOUT?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Some of the parents who object to some of the books in the school library have chosen to read passages from these books during the public comment portion of the school board meeting.  For example, Alison Hair read from “Extremely Loud and Incredibly Close” at the board meeting in Forsyth County, Georgia. She didn’t get very far.  As she read from this book, it went like this:

“I know that you give someone a blow job by putting your penis….”

That’s when the gavel came down.

This and other incidents led to litigation with the colorful name of Mama Bears of Forsyth County v. McCall.  There is a lot to unpack in the court’s decision, but for today I’m just going to comment on the district’s effort to keep things civil and polite.  The policy about public comment at the board meetings included this:

Speakers are asked to keep their remarks civil.  The use of obscene, profane, physically threatening or abusive remarks will not be allowed.  Loud and boisterous conduct or comments by speakers or members of the audience are not allowed.

Let’s review how the court looked at each component of that. 

KEEP IT CIVIL, PLEASE.  The court was OK with this as an aspirational goal.  The policy did not demand civility, it just asked for it. So far so good.  However, in reviewing the evidence, the court found that the standard was not applied properly. It looked to the court like the board applied the “civility standard” when speakers chose to criticize the board.  That’s not OK.  Accepting praise and barring criticism under the guise of “civility” is viewpoint discrimination. 

OBSCENITY.  The court noted that obscenity is not protected under the First Amendment, so it was permissible for the board to prohibit obscene speech during public comment. However, the court cautioned that this can only be applied to material that meets the Supreme Court’s strict definition of what is “obscene.”  That definition would surprise a lot of school board presidents.

PROFANITY.  This is the most interesting part of the court’s decision. The court notes that restrictions on profanity are “content-based.” That means they will be OK as long as they are “reasonable and viewpoint-neutral.”  The court then noted the lack of definition of the term, and the inherent subjectivity of it.  Then concluded:

Had the Board qualified the language to restrict profane remarks or profanity that was actually disruptive of the Board’s business, that might have been a different story. But it did not, and as written, it cannot stand.

The board argued that reading sexually explicit excerpts from books amounted to “profanity,” but the court didn’t buy it. The court cited several cases suggesting that the board could prohibit sexually explicit material at a board meeting, but then observed that “nowhere in the public participation policy is that term [sexually explicit] used. Rather, the term ‘profane’ is used without further definition.”

That sounds like an invitation to school board attorneys to modify public participation policies in a way that specifically bars speech that is sexually explicit or graphic. After all, there are often young children at the meeting.

ABUSIVE REMARKS.  The court held that the district could not categorically bar remarks that are disrespectful or even abusive, while acknowledging that boards can prohibit the use of “hateful racial epithets.” 

LOUD OR BOISTEROUS. This portion of the policy was similar to the part about civility. It’s OK to prohibit loud or boisterous behavior that disrupts the board meeting, but again, this has to be applied evenly.  In the one instance under consideration the court noted that it seemed that the board chair acted reasonably.

Mama Bears of Forsyth County v. McCall was decided by the federal court for the Northern District of Georgia on November 16, 2022. It’s at 2022 WL 18110246.

DAWG BONE:  MANY BOARD MEMBERS LONG FOR THE DAYS WHEN BOARD MEETINGS WERE BORING.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Read those emails!

Three things stand out about the Commissioner’s decision in Parents v. Cuero ISD. 

1.  A cheerleading dispute can get to the Commissioner’s office. These parents alleged that their daughter was denied Equal Educational Opportunity as required by T.E.C. 1.002.  The decision notes that this statute applies to all school activities, including cheerleading. So the Commissioner took jurisdiction of this dispute.
2. Complaining parties cannot bring something up at T.E.A if they failed to bring it up at the school board level.  The parents made several arguments when they presented their complaint to the Cuero ISD board, but they did not allege racial discrimination.  They attempted to raise that issue with the Commissioner who held that since “Petitioners failed to raise this argument before the school board, they cannot make it before the Commissioner.”
3. “Substantial evidence” is not substantial. The Commissioner will affirm a school board’s decision on a case like this if there is “substantial evidence” in the record that would support that decision. The word “substantial” is misleading.  The Commissioner notes that “substantial” evidence has to be “more than a scintilla” but what the heck is a “scintilla” anyway? 

The decision informs us that “the substantial evidence standard is the lowest standard for determining factual sufficiency.”  A ruling in favor of the district does not mean that the Commissioner agrees with it, or thinks it was the right decision. It just means that there was some factual basis in the record to support it.

I found it interesting that one of the complaints in this case was that the district reduced the number of cheerleaders from 16 to 12.  This strikes the Dawg as inherently risky. I once heard a wise school administrator express his school’s policy on the matter which was:

DO YOU WANT TO BE A CHEERLEADER?  YES?  THEN YOU ARE A CHEERLEADER!

They rejected no one.  Less chance of a legal challenge with that policy, I’m just sayin’…..

The Commissioner decided this one on February 1, 2023. It’s Docket No. 042-R10-06-2022.

DAWG BONE: WE CONTINUE TO HUNT FOR SCINTILLAS—A SMALL FUR BEARING MAMMAL COMMON TO CENTRAL TEXAS.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: From scintillas to mama bears….

Educators sometimes ask if there are any circumstances in which a student’s behavior is so disruptive or dangerous that a disciplinary change of placement can be implemented without doing an MDR (Manifestation Determination Review). 

No.  Keep in mind that there are Special Circumstances offenses (Tool #5 in the Toolbox) involving drugs, weapons, or the infliction of serious bodily injury.  In those cases, the administrator can order an immediate removal to an IAES (Interim Alternative Educational Setting) for up to 45 school days. This can be done regardless of the outcome of the MDR, but the school still has to conduct the MDR.  The MDR does not drive the placement decision, but it should inform how the IEP and/or BIP should be adjusted to prevent repetition of the behavior.

This came to mind as I read a recent case involving a charter school in the District of Columbia.  The teacher reported the student to the administrative office for what the teacher viewed as flashing gang signs. This was a behavior that the student had engaged in before. In fact, it was targeted as a behavior to be addressed in his BIP.  When the student was told which teacher had reported him, this happened:

[The student] “got centimeters from her face [the teacher’s] and said, ‘Why the f*** did you say I did that?’”  DCI administrators instructed the rest of the students to leave the classroom.  At that time, [the student] chose to leave the classroom.  While in the hallway, [the student] stated “I’m going to shoot [the teacher].”

Notice that this situation does not present any of the three “Special Circumstances” offenses. No drugs, no weapon, no injury.  So Tool #5 was not available and the school, instead, used Tool #6—a Disciplinary Change of Placement.  The IEP Team concluded that the student’s behavior was not a manifestation of his disability, nor was it due to any failure by the school to implement his IEP.  The parent sued, with the student taking over as plaintiff when he turned 18, and the court ruled in favor of the charter school. The MDR was properly done.

The case doesn’t teach us much about how to do an MDR, but it is a good reminder of the necessity for an MDR regardless of how alarming the student’s behavior was.  It’s Lemus v. District of  Columbia International Charter School, decided by the federal court for the District of Columbia on March 27, 2023.  We found it in the Individuals with Disabilities Education Law Reporter at 83 IDELR 18.    

DAWG BONE: DISCIPLINARY CHANGE OF PLACEMENT WILL ALWAYS REQUIRE AN MDR. 

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: It’s been a while since we had a cheerleader case!

Coach Burkhart challenged the constitutionality of two UIL rules.  The UIL District Executive Committee (DEC) found the coach guilty of recruiting an athlete. The State Executive Committee (SEC) affirmed that decision, and the coach sued the UIL and the members of the SEC. 

BURDEN OF PROOF.  The UIL does not carry the burden of proof in DEC or SEC hearings.  Section 410 of the UIL Constitution puts the burden of proof on the party accused of violating a rule.  The rule says that the burden “to disprove the allegations at issue rests with the member school, member school district or covered school district personnel charged with the violation.” (Emphasis added). Isn’t that un-American?  Unconstitutional? 

The court held that the UIL’s take on burden of proof was perfectly OK. That’s because the burden shifts to the employee only “after a prima facie violation is found.”  Let me quote Rule 409 more completely:

If a DEC or the SEC determines that a complaint or report of a violation has enough validity or substance to hold a hearing, the burden by the preponderance of the evidence to disprove the allegations at issue rests with the member school, member school district or covered school district personnel charged with the violation.

The court viewed the decision to hold a hearing as a “prima facie” finding that the complaint has merit.   Under those circumstances, putting the burden on the complaining party to “disprove” the allegations is acceptable. It’s not unconstitutional. Is it un-American? The Dawg will not chew that bone.

VAGUENESS.  The coach also challenged the definition of “recruiting” in Rule 409 of the Constitution: 

Recruit: to encourage a student in any way to change schools for the purpose of participating in UIL activities at any grade level. It could include offering a student or the student’s parent cash, waiver of tuition, board or lodging, transportation, promise of better conditions at the participant school or on its team, a job or other valuable consideration to induce the student to enroll in a participant school. 

Would you describe yourself as a person of “common intelligence”? If so, can you understand what behavior that definition covers?  This matters because the court noted that a statute is unconstitutionally vague when “men of common intelligence must necessarily guess at its meaning.”  I always think of the effort of some state a few years ago (it was either Montana or Wyoming) to set its highway speed limit at a “reasonable and prudent speed.”  “Men of common intelligence” would have to guess at how that translates to a number. So would women.

In this case the court found the definition of “recruiting” to be good enough to pass muster.  Case dismissed and the coach’s three-year suspension from coaching stands.  It’s Burkhart v. UIL, decided by the federal district court for the Western District of Texas on April 13, 2023, and is located at 2023 WL 2940026.

DAWG BONE:  THE UIL USUALLY WINS.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!

Yesterday we told you how the 4th Circuit held that parents lacked standing to complain about the Equity Ambassadors program in a Virginia school district because the children of the parents had neither applied to be Ambassadors, nor expressed interest in doing so. But the parents had better luck with their complaint that one component of the program might infringe on the right of free expression.

This was all set up by the district in an effort to address campus climate. The school’s hired consulting firm recommended that the school set up “student affinity groups at all levels to support the social and cultural identities of students of color.” These efforts led to the creation of a Share, Speak Up, Speak Out Bias Reporting Form, which allowed for anonymous complaints of incidents of perceived bias.

The parents alleged that the form was having the effect of “chilling” free speech rights. The parents noted that the Student Equity Ambassadors cited “a framework of ‘colorblindness’ that sees people as individuals rather than members of a race as examples of microaggressions.” Then this:

Then the parents address the reasons the bias reports have chilled their children’s speech. They allege that their children “believe that everyone is equal and that we should strive for a color blind society.” The parents also allege that the children “wish to speak out on [Critical Race Theory], race, and gender identity, and other controversial political issues within the LCPS community,” but that their views are not shared with others in the community.

In short, the students were afraid to speak out on these issues, afraid that their comments would be reported and investigated as “bias incidents” or “microaggressions.”

The court held that this was enough to allow the case to go forward. The parents had standing to sue over this because they had alleged that the bias reporting system “caused the parents’ children to experience a non-speculative and objectively reasonable chilling effect on their speech.”

The case now returns to the federal district court, which, perhaps, will make a ruling on the merits. It’s Menders v. Loudoun County School Board, decided by the 4th Circuit Court of Appeals on April 14, 2023. The case is cited at 2023 WL 293607.

DAWG BONE: WE’RE NOT EXPECTING MANY TEXAS DISTRICTS TO GO THIS ROUTE.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

The story in Loudoun County, Virginia begins in 2019 when the school board retained the Equity Collaborative as a consultant to assess campus climate. The consultant found that there were limited opportunities in the Loudoun County Public Schools for “Black/African-American and Muslim students to convene in a network of social and cultural support.” Equity Collaborative recommended that the school create “student affinity groups at all levels to support the social and cultural identities of students of color.”

About a year later the district published its “Action Plans to Combat Systemic Racism.” The plan included the Student Equity Ambassador Program, which would consist of two or three students from each middle and high school to serve as “Student Equity Ambassadors.” The Ambassadors would participate in district-wide “Share, Speak-Up, Speak-out” meetings where the students would discuss issues of race and equity.

Are you surprised to hear that some parents were unhappy about this? Are you surprised that there was a lawsuit? I didn’t think you would be.

The parents who sued alleged that the program violated their children’s rights to Equal Protection and Free Speech. The school district moved for a dismissal of the case, arguing that the parents and the students lacked standing to sue over this program. The matter went to the Circuit Court which agreed with the school as to one part of the suit, but disagreed on the other. So the case will continue.

The parents alleged that the Ambassador program discriminated on the basis of race and viewpoint. The original criteria for being an Ambassador did, in fact, limit membership to “students of color.” The school dropped that factor, but still said that those chosen to be Ambassadors “will be responsible for amplifying the voice of Students of Color by engaging in discussions about student stories/experiences regarding issues of racism, injustice and inequity.” Student Ambassadors would have to “have a passion for social justice.” The parents alleged that the criteria for Ambassador status discriminated in favor of students of color, and against those who lacked a “passion for social justice,” as defined by this program.

It would have been interesting to see a court ruling on the merits, but that’s not what we have. Instead, the court held that the parents did not have standing to make these claims for the simple reason that their children had neither applied to be Ambassadors, nor expressed interest in serving in that capacity. Thus the court lacked jurisdiction to address the issues raised.

The parents were more successful in their challenge to a particular component of the program. We’ll tell you about that tomorrow. This very interesting case is Menders v. Loudoun County School Board, decided by the 4th Circuit Court of Appeals on April 14, 2023. The case is cited at 2023 WL 293607.

DAWG BONE: IF YOU DIDN’T APPLY, YOU CAN’T COMPLAIN.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: the rest of the story….

The short opinion from the 4th Circuit caught my attention because of the way the court laid out in plain language some of the basics of IDEA. Examples:

ON CHILD FIND: But the child find obligation does not require schools to provide an IEP to any student whose parent believes their child is entitled to one.

ON ELIGIBILITY: The IDEA does not cover every student who is struggling in school; rather, its protections are limited to a student who has a qualifying disability and who, for that reason, “needs special education and related services.”

ON EDUCATIONAL NEED: But a student does not “need” such services if the student is already getting what would qualify as a free appropriate public education without them.

ON INDEPENDENT EVALUATIONS: The IDEA does not require school districts to defer to the opinions of private evaluations procured by a parent. To the contrary, the IDEA instructs school districts to rely on diverse tools and information sources in making an eligibility determination.

ON MISSED DEADLINES: This Court has held, however, that a bare procedural violation of the IDEA does not warrant a remedy unless a plaintiff shows the violation resulted in the student being denied a free appropriate public education.

It’s Miller v. Charlotte-Mecklenburg Schools BOE, decided by the 4th Circuit Court of Appeals on April 6, 2023. It’s published at 64 F.4th 569.

DAWG BONE: NO LEGALESE HERE. JUST THE PLAIN TRUTH.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: a school district attacks systemic racism….

Our firm’s Toolbox training is based on IDEA and its regulations pertaining to the discipline of students with disabilities. What about the kids who are covered by a 504 plan?

The short answer to that is that discipline standards under 504 are very similar to the discipline rules under IDEA. However, there are a few specific distinctions. One of those involves alcohol. Section 504 includes a specific section that addresses the topic:

For purposes of programs and activities providing educational services, local educational agencies may take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student who is an individual with a disability and who currently is engaging in the illegal use of drugs or in the use of alcohol to the same extent that such disciplinary action is taken against students who are not individuals with disabilities. Furthermore, the due process procedures at section 104.36 of title 34 CFR (or any corresponding similar regulation or ruling) shall not apply to such disciplinary action. 29 U.S.C. 705(C)(iv).

In short, with regard to alcohol, as long as the school treats the student with a 504 plan as it would a general education student, the school has not violated Section 504.

This was the decisive factor leading to the dismissal of a student’s suit against a charter school located in Katy. The school expelled the student for possession and consumption of alcohol while at school. The student sued, alleging disability discrimination. The court tossed it out, citing the portion of the statute quoted above. It’s W.G. v. Aristoi Classical Academy, decided by the federal court for the Southern District of Texas on March 23, 2023. It’s published by the Individuals with Disabilities Education Law Reporter at 1123 LRP 13352.

IDEA does not directly address alcohol, but it does include drug possession or use as one of the “special circumstances” that the Toolbox identifies as Tool #5. IDEA does not allow schools to treat the student with drugs as it would any other student. There must be an ARD meeting and a manifestation determination. However, since drugs create a “special circumstance” the school is authorized to remove the student to an IAES (Interim Alternative Educational Setting) for up to 45 school days regardless of the outcome of the MDR.

So with regard to 504, the starting point is that discipline is very much like it is under IDEA. But there are a few distinctions, as this case illustrates.

DAWG BONE: ALCOHOL MERITS ITS OWN PARAGRAPH IN THE SECTION 504 LAW.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: 4th Circuit on special ed…

The leaders of the Minnesota school district apparently felt that they were being unfairly blamed. The state agency had issued a “corrective action” plan that required the district to provide compensatory services to three students due to the fact that the students received no services during the 2021-22 school year. It was true that the students received no services in 2021-22, but the district argued that it made the services available and would have provided them if the parent would permit it. The district sued the state agency.

The court ruled in favor of the district, noting that “parents have a ‘reciprocal obligation’ to cooperate within the procedural framework of IDEA.” The court focused on the words “are provided” in the law and state regulations, and held that the agency misinterpreted the term. “Are provided” does not mean that the services were “received.” It means that they were prepared and made available. The court noted also that the agency’s interpretation of the law “would result in liability and corrective action for school districts based on circumstances completely beyond their control.”

The background to this is COVID. The parents were fearful of their children being exposed. The court noted that the district offered in-school services, a pod where everyone would be masked, homebound services, and variations on those themes. The parents rejected every offer.

It’s In re: Special Education Complaint from Waconia ISD, decided by the Minnesota Court of Appeals. It’s published in the Individuals with Disabilities Education Law Reporter at 82 IDELR 11.

DAWG BONE: PARENTS HAVE RIGHTS, BUT ALSO “RECIPROCAL OBLIGATIONS.”

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday! Booze at the charter school….