Just about every political poll these days shows a humongous differential in how Republicans and Democrats view the same facts.  In the recently reported annual poll on attitudes toward public education by Phi Delta Kappan magazine there is a similar chasm between teachers and principals. 

Here’s what I’m talking about:

Survey Question:  WHEN IT COMES TO THE TEACHER-PRINCIPAL RELATIONSHIP AT YOUR SCHOOL, IS STUDENT DISCIPLINE A MAJOR SOURCE OF FRICTION?

Answering YES:         TEACHERS: 52%                  PRINCIPALS: 24%

Survey Statement: TEACHERS AT MY SCHOOL FEEL EMPOWERED TO BRING PROBLEMS TO THE PRINCIPAL:

Those who “completely agree” with this:  TEACHERS:  25%                     PRINCIPALS: 69%

In the Toolbox Training our firm provides, we talk a lot about the interaction between teachers and campus administrators.  This survey reveals a yawning gap in perception.  Principals might want to address that.

DAWG BONE:  THERE MIGHT BE MORE FRICTION ON YOUR CAMPUS THAN YOU ARE AWARE OF.

Tomorrow: Anti-vaxxers in New York

For the second time in one month we have a 5^th Circuit decision on the Boring But Important issue of “exhaustion of administrative remedies.”  We told you about the first case, McMillen v. New Caney ISD, on October 21^st.  In that case, the 5^th Circuit tossed the case out of court because the plaintiff had not exhausted available administrative remedies prior to filing suit.  The court held that McMillen should have pursued a special education due process hearing before going to court.  Now we have a second case, Doe v. Dallas ISD. 

Astute readers might guess that since this is a “Jane Doe” case, it must be about sexual harassment.  It is.  The Jane Doe here was the mother of T.W., a student who alleged that she was repeatedly assaulted by a classmate.  The suit alleged that the district was informed of this harassment, but failed to put a stop to it. In fact, the suit alleges that the girl was actually raped at the school. 

That sounds like a straightforward Title IX lawsuit, which is exactly what it would be if  Ms. Doe’s child had not had a disability.  But because T.W. had a disability and an IEP, the school district argued that the suit sought relief that could have been obtained under IDEA, and therefore, exhaustion was required.  The federal district court agreed with that, and dismissed the case due to the failure of the plaintiff to exhaust administrative remedies. 

That prompted Jane Doe to file for a special education due process hearing. Better late than never, right?  Wrong.  The Texas one year statute of limitations had already run, and so the hearing officer dismissed the case.  Our determined plaintiff then went back to federal court and started over. Again, the federal district court dismissed the suit for failure to exhaust administrative remedies in a timely fashion.  The plaintiff appealed that decision to our Circuit Court.

Of course the school district argued that this case was just like the McMillen v. New Caney ISD case, and so the court should be consistent and require exhaustion.  The 5^th Circuit dismissed that argument in a footnote:

In McMillen, we held that because the gravamen of McMillen’s complaint was about the defendant’s failure to provide him with a FAPE, the IDEA’s exhaustion requirement applied even though McMillen sought money damages, a remedy not available under the IDEA.  Here, we do not hold that the gravamen of Doe’s complaint was about Dallas ISD’s failure to provide her with a FAPE. 

Notice the emphasis on “gravamen.”  This word is roughly translated as “the crux of the matter, the essence of it.”  The court noted that there were 13 pages of factual allegations in Jane Doe’s lawsuit, and 12 of them “detail the sexual harassment that another student committed against T.W., including being raped—and explain how school officials were repeatedly notified about the harassment.”  Thus the court concluded:

Here, Doe’s claim regards “simple discrimination, irrespective of the IDEA’s FAPE obligation.”  Were all traces of T.W.’s disabilities removed, Doe’s claim would look nearly identical to what exists now: allegations that the school was deliberately indifferent to T.W.’s sexual abuse. Thus, we conclude that the gravamen of the complaint is not about the denial of a FAPE and that the IDEA’s exhaustion requirement does not apply.

The court offered a question that would help future courts discern what the “gravamen” of the matter is:

In the situation before us, the proper hypothetical is along the lines of the following question: “Could a student without disabilities bring this same claim?”  If the answer is “yes,” then the essence of the suit is not the denial of FAPE, but is instead about sex discrimination.  As explained above, Doe’s suit is about sex discrimination; a non-disabled student could have brought Doe’s allegation that the school was indifferent to her sexual abuse….

It’s rare for us to get two important 5^th Circuit decisions in a single month, much less two decisions that address the same issue.  This is an issue that should not be brought up at ARD meetings or in conversations with parents.  It’s a lawyer issue.  If your school district is sued when a due process hearing has not first been sought, your lawyer will decide if the case calls for a Motion to Dismiss based on “failure to exhaust administrative remedies.”  It’s a question of legal strategy that should be guided by these two important decisions. 

Nevertheless, I think it’s helpful for educators to know how these things get sorted out by the courts. Moreover, the two cases give us a great opportunity to work “gravamen” into our everyday vocabulary.

The case is Doe v. Dallas ISD, decided on October 25, 2019.  We found it at Special Ed Connection: 119 LRP 41556.

DAWG BONE: GRAVAMEN: THE CRUX OF THE MATTER.

Tomorrow: Toolbox Tuesday!!

Section 38.030 of the Education Code now requires all school districts and open enrollment charters to “make available a protocol for school employees and volunteers to follow in the event of a traumatic injury.”  Let’s hope you don’t have to use that protocol, but it’s certainly a good idea to be ready. 

The statute also introduces new vocabulary: “bleeding control stations.” These must be “stored in easily accessible areas of the campus” as selected by the school’s safety and security committee. 

The protocol on this must also provide for instruction for our older students:

The protocol required under this section must: (4) require the district or charter school to annually offer instruction on the use of a bleeding control station from a school resource officer or other appropriate district or school personnel who has received the training…to students enrolled at the campus in grade seven or higher.

We’ve gotten some questions about this.  Must all students receive this instruction?  No. The statute says it must be “offered.”  Is this to be done as part of the regular instructional day?  The statute does not say, but it does say that it only has to be offered “annually.”  The bill required TEA to approve a course of instruction about this by October 1.  That’s done—go to TEA’s website and you will find that the Agency has approved two programs: www.bleedingcontrol.org and www.con10gency.com. 

Districts and charters have to have their protocol in place by January 1.  So get ready!

DAWG BONE: GOOD TO KNOW THAT IF I NEED A TOURNIQUET WHILE VISITING YOUR SCHOOL, YOU WILL BE READY!

The Dawg emerges from the Dawg house again on Monday.  See you then.

Phi Delta Kappan magazine has been reporting the results of its annual poll about attitudes toward public education for 51 years.  This year’s results are summarized in the September 2019 issue of the PDK magazine.

The most discouraging piece of data is that for the first time in the history of the poll a majority of teachers (55%) do not want their children to follow in their footsteps.  Half of the teachers polled said that they are seriously considering leaving the profession.  The most cited reason for this was poor pay and benefits. Surprised?  I didn’t think so.

As far as good news, 76% of parents give their child’s school a rating of A or B.  This is up from 70% last year. 

The poll results also including an interesting chart showing what is perceived to be the biggest problem facing our schools.  The answer to that question has changed over the years.

1969 to 1985:  Lack of discipline (every year except one).

1986 to 1992: drugs. 

1993 to 2001: a mixed bag of responses: discipline, drugs, gangs, lack of money.

2002 to 2019: lack of financial support.

You can access the whole thing at www.pdkpoll.org.  Interesting reading for those who care about our public schools.

DAWG BONE:  PROFESSIONAL EDUCATORS SHOULD CONSIDER SUBSCRIBING TO PDK.  GOOD STUFF. 

Tomorrow: Is your bleeding control station ready?

In October, 2016, the ARDC called for a change of placement for a 3^rd grade boy who was having some issues.  The student had autism, ADHD and a speech impairment.  He started first grade in the Learning to Learn classroom which was more restrictive than the mainstream.  He did very well in that setting. So well that the ARDC moved him to the Social Communication program for second grade. This meant most of the time would be in the mainstream classroom, a less restrictive setting than the Learning to Learn classroom.   

Second grade was also a success, and so the plan was to keep the boy in that setting for third grade. 

That’s when the problems began:

At the beginning of the school year, A.B.’s behavior took a turn for the worse.  He increasingly avoided doing his work in favor of various unproductive and sometimes disruptive activities, which ranged from going to the bathroom frequently and playing with the window blinds to flopping on the floor and screaming.  On occasions when he was disruptive, A.B. would be temporarily removed from the general-education classroom.

So the school proposed a move back to Learning to Learn, a more restrictive setting.  Parents objected and sought a due process hearing. This automatically invoked “stay put” which kept the student in the Social Communication program for the rest of the year.  Even though the parties were in litigation, the student had a good year:

During that time, with the assistance of plans put in place by the school district to address some of his struggles, A.B.’s behavior improved substantially.  By spring, he had ceased engaging in most of the misbehavior that had cropped up at the beginning of the school year.  He also continued to progress academically.

Given those fact findings, it’s not surprising that the hearing officer, the federal district court and now the 5^th Circuit all ruled in favor of the family on this one.  After all, if a student is doing well in a less restrictive setting, there is no reason to go to the more restrictive setting. The 5^th Circuit decision does not break any new legal ground, but simply affirms the basic LRE analysis that has been in place since we got Daniel R.R. v. SBOE thirty years ago.

The case is A.B. v. Clear Creek ISD, decided by the 5^th Circuit on October 10, 2019. We found it at 119 LRP 39471. 

DAWG BONE: SUCCESSFUL IN THE LRE?  DON’T MAKE A MOVE.

Tomorrow: the annual PDK poll.

On Tuesdays around here we like to emphasize our firm’s all day training program about the discipline of students with disabilities.  We call it The Toolbox because it provides ten “tools” that are available in various situations.  One of those—Tool #6—can only be used if the ARD Committee concludes that a student’s behavior is NOT a manifestation of the student’s disability.  Tool #6 is a Disciplinary Change of Placement. As that name implies, this is a punitive measure. The student continues to receive appropriate educational services, but in a different and stricter setting.  This is the consequence that is applied to non-disabled students who commit serious violations of the Code of Conduct. If a student with a disability does the same type of thing, and it’s not caused by the disability, the consequence should be the same. 

But what do you do when the members of the ARDC are not in agreement?  For today, let’s just consider internal disagreements.  There are times when all of the school staff members of the Committee are in agreement and the parent dissents. But today we want to talk about disagreements among the school staff.  Here are a few things to think about.

 1. This is to be expected.  The law sets up ARD Committees with a variety of members so that different perspectives can be shared.  The teacher may view the child differently than the assistant principal does. The school psych does not have the day-to-day experience with the child that the teacher does, but she does have more expertise and training about certain issues. So don’t be surprised or alarmed when people see things differently. 

2. You can hold a staffing to discuss this situation in advance of the ARDC meeting.   The federal regulations guarantee that parents have the right to participate in “meetings” about the IEP and placement of the child.  That same regulation goes on to say that this right does not extend to “preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.”  34 CFR 300.501(b)(3). 

3. You should give more weight to the input of the person with the most expertise in the specific area you are dealing with.   On October 30^th in the Daily Dawg we told you about a case where the specific issue was eligibility.  A private psychologist said that the student should be eligible because she had an emotional disturbance.  The ARDC disagreed, largely based on teacher input as to “educational need.” The court agreed with the school. Notice: if you are talking about “educational need” the insights of classroom teachers with personal experience with the student should carry more weight than those of a qualified school psychologist.  That is not the case when you are making a manifestation determination about a student who has already been declared eligible due to an emotional disturbance.  When you are focusing on whether or not a behavior is a manifestation of a disability, particularly with a student who has an emotional disturbance, the school psych will generally have more expertise than a teacher or administrator. Everyone’s input counts, but some more than others.

4. Ultimately, the school does have to speak with a united voice at an ARDC meeting, and that voice should come from the person designated as the representative of the district.  However, that person should not dictate the school’s position, but rather, give voice to it after careful consideration of all of the input.

DAWG BONE: PROVIDING LEADERSHIP AT THE ARDC IS NO SIMPLE TASK.

Tomorrow: 5^th Circuit on Least Restrictive Environment.

The answer to that question is no. The teacher did not do that.  That may be why the U.S. Supreme Court refused to take up the case of Wood v. Arnold, thus leaving in effect the decision of the 4^th Circuit Court of Appeals. If the teacher had really required a student to express personal belief in Islam (or any other religion) SCOTUS probably would have taken up the matter. But that’s not at all what happened.

What happened was that an 11^th grade world history class spent a week on “The Muslim World.”  The curriculum called for a study of the “formation of Middle Eastern empires including the basic concepts of the Islamic faith and how it along with politics, culture, economics, and geography contributed to the development of those empires.” 

There was one worksheet designed to test the student’s understanding of the Five Pillars of Islam.   The worksheet said:

There is no god but _____ and Muhammad is the _______________. 

The correct answers to be filled in were “Allah” and “messenger.”  The plaintiffs argued that this worksheet effectively required the student to profess belief in Islam.

Nope.  The worksheet was simply designed to give the student the opportunity to demonstrate that she had studied the material and knew a little something about one of the world’s major religions. 

The 4^th Circuit wisely pointed out how dangerous it is to take single statements out of context, particularly in a school curriculum:

Manifestly, if courts were to find an Establishment Clause violation every time a student or parent thought that a single statement by a teacher either advanced or disapproved of a religion, instruction in our public schools “would be reduced to the lowest common denominator.”  Such a focus on isolated statements effectively would transform each student, parent, and by extension, the courts into de facto “curriculum review committees” monitoring every sentence for a constitutional violation.

High school graduates should know something about our major religions and how they have influenced our society and culture.  How can you understand today’s news without some foundational understanding of religion?  How can you understand history?  The civil rights movement in our country?  Martin Luther King? 

This lawsuit was promoting ignorance in the guise of upholding our constitutional values.  This lawsuit was not only against the school district where the world history class took place—it also named as defendants the principal and assistant principal.  What is that about?  The suit was supported by a non-profit advocacy group: The Thomas More Society.   Those lawyers should know better.  This case goes on the Sheesh-O-Meter.  The case of Wood v. Arnold was decided by the 4^th Circuit on February 11, 2019. We found it at 915 F.3d 308. 

DAWG BONE: TEACHING ABOUT RELIGION IS NOT TEACHING BELIEF IN RELIGION.

Tomorrow: Toolbox Tuesday!! Whose voice counts the most in an MDR?

I think I’ll just quote from the Petition filed in an SBEC disciplinary case:

The administration found seven empty beer cans, a gallon jug filled halfway with urine, and two coffee mugs that smelled of liquor and beer in a storage cabinet in Respondent’s classroom.  That same day, Respondent was placed on administrative leave. 

Respondent confirmed that the empty beer cans and urine found in Respondent’s classroom belonged to him.  Respondent also stated that there was urine in a milk jug in his classroom because he would urinate in the jug throughout the day and then empty it at the end of the day.  Respondent also stated that he brought two full beer cans with him that morning and…he stated that it had become habitual for him to bring two beers to school every day.

The man is no longer working for a Texas school district, has had his certificate suspended, and is a strong candidate for the Do Not Hire Registry the TEA is developing.

This happened somewhere in Texas. Let’s just leave it at that, and hope that this guy gets some benefit from the substance abuse treatment program he has been ordered to complete. 

DAWG BONE: SCHOOL LAW DOES NOT LACK FOR COLORFUL STORIES.

See you next week, Readers!

I guess you know that it’s Halloween! No doubt this is one of the more exciting and/or challenging days of the year for school administrators.  It’s also a good time to remind you of a provision in the Education Code about parental rights.  Section 26.010(a) of the Texas Education Code says:

A parent is entitled to remove the parent’s child temporarily from a class or other school activity that conflicts with the parent’s religious or moral beliefs if the parent presents or delivers to the teacher of the parent’s child a written statement authorizing the removal of the child from the class or other school activity. 

The statute goes on to say that this parental authority cannot be used to avoid a test or to prevent the child from taking a subject for the entire semester.  And the student must satisfy grade level or graduation requirements of the school. 

I always think about this part of the Education Code on October 31^st.  In my career, that’s the first instance I can recall of parents seeking an exemption from school activities.  Those objections were usually based on a religious view, and they pre-dated the enactment of Education Code 26.010.  But since 26.010 has been in place, it’s been clear that the right of parental exemption applies to any school activity, and the objection does not have to be based on a religious point of view. Thus we have parents who will object to the dissection of animals, or the assignment of particular reading material. 

So Happy Halloween!!

DAWG BONE: MAY THE GHOSTS AND GOBLINS BE FRIENDLY TO YOU.

Tomorrow: One for the Sheesh-O-Meter.

In a lawsuit involving a Texas school district the parents produced a private psychologist who declared that the student qualified for special education services because she had an emotional disturbance.  Two private counselors agreed with that.  Despite all of that professional input, the student’s ARD Committee decided that she did not qualify for special education services.   The dispute ended up in a due process hearing, and then an appeal to federal court.  Both the hearing officer and the federal judge agreed with the school district—the student was not eligible.

The definition of an “emotional disturbance” in our federal special education law requires that the student demonstrate at least one of five characteristics:

1. An inability to learn that cannot be explained by intellectual, sensory, or health factors;
2. An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
3. Inappropriate types of behavior or feelings under normal circumstances;
4. A general pervasive mood of unhappiness or depression;
5. A tendency to develop physical symptoms or fears associated with personal or school problems.

That’s pretty ambiguous.  What are “inappropriate types of behavior or feelings”?  What are “normal circumstances”? 

Fortunately, there is more to the definition.  The student must demonstrate at least one of these characteristics “over a long period of time and to a marked degree.”  OK—so a little mid-winter slump will not do it.   A short blue period after the breakup with the girlfriend is not sufficient.

On top of that is the part of the definition that ties this into school performance. The student must demonstrate one of the five characteristics, for a long time, to a marked degree “that adversely affects a child’s educational performance.”  34 CFR 300.8(c)(4)(i).

That was the sticking point in this case.  The court did not deny that the student had some emotional issues, but also noted that she:

consistently makes A’s and B’s, maintains friendships, and is liked by her teachers.  Accordingly, her educational performance has not been adversely affected by the characteristics of her emotional disturbance, even the ones allegedly only seen at home.  

This is one of the reasons that eligibility is determined by the entire ARDC—not just a psychologist.  If a student receives psychological help in a private setting, the diagnosis of the student as having an “emotional disturbance” would be done by the psychologist.  But for purposes of eligibility under IDEA, the input of teachers is critical.  If the student is doing well in school, the student does not meet eligibility criteria. 

The case is D.H.H. v. Kirbyville CISD, decided by the U.S. District Court for the Eastern District of Texas on August 27, 2019.  We found the court’s decision at 75 IDELR 4, and the recommendation of the magistrate at 119 LRP 33254.

DAWG BONE: ELIGIBILITY IS DETERMINED BY THE ENTIRE ARDC—NOT A SINGLE INDIVIDUAL.

Tomorrow: You know what tomorrow is, right?