In the Toolbox Training, we talk about how to count to ten.  Of course this is “elementary” as Watson might say to Holmes, but in special education law, counting to ten is not so easy.  Counting to ten is important because the school administrator has unilateral authority to remove a student from the placement called for in the IEP for only ten days during an entire school year. We call that ten-day period The FAPE-Free Zone, because the school is not obligated to provide educational services on those days.  So we need to know what days count, which is where bus suspensions come in.

Suppose that Jessica is suspended from the bus for three days due to her misconduct on the bus.  She is still welcome at the school, but the parents will have to provide the transportation. And they do.  Jessica does not miss a minute of instruction. Do we count the three days? 

It depends on whether or not Jessica is receiving transportation as a “related service” called for in her IEP.  If her IEP calls for transportation as a related service, and the school does not provide it, then the school is not fully providing the FAPE that Jessica is entitled to. So those would be “FAPE-Free” days, and they would count toward the ten day limit, even though she got to school anyway.  If, on the other hand, her IEP does not call for special transportation, these days would not count because transportation was not part of FAPE for her.  So counting a day does not always depend on whether or not the student was at school. It’s about whether or not the school fulfilled its obligations under the IEP.

The Office of Special Education Programs affirmed this view in Letter to Sarzynski in 2012. This is one of the legal authorities we cite in the Toolbox book, which is provided to each Toolbox participant.

DAWG BONE:   LET’S KEEP THOSE BUSES ROLLING!

Tomorrow: Why classroom teachers have a say in determining if a student has an “emotional disturbance.”

Dwight named his wife, Alice, as the beneficiary of his TRS benefits in the event of his death.    Then they got divorced.  Dwight never changed the designation of his beneficiary.  Then Dwight died.   When Alice was denied the TRS benefits, she sued. 

TRS denied the benefits to Alice because of a law we have that addresses this situation.  It says that the ex-spouse does not get TRS benefits if the designation occurred while they were married, they later divorced, and TRS receives a certified copy of the divorce decree.  In other words, we have an assumption built into the law that people don’t want the ex-spouse to get their death benefits. Of course a person can override that assumption by designating the ex-spouse as beneficiary after the divorce.  No doubt some folks do that, but Dwight did not.

The very determined Alice appealed the decision to the TRS Manager of Benefits Processing, the Chief Benefits Officer, and the Deputy Director.  Denied at every stage. Then she took her appeal to an Administrative Law Judge with the State Office of Administrative Hearings. Denied.  Then it went to the TRS Board of Trustees. Nope.  Then she sued in Travis County, and lost.  Then she appealed to the Court of Appeals. No luck there either.

The point of the story today is to remind you to update your TRS info!  Since Dwight never did that, his benefits “would be issued in accordance with section 824.103 of the Texas Government Code.” Do you want some obscure section of the Government Code to decide who gets your money?  Or would you rather make that decision yourself? 

Contact TRS. Update that beneficiary designation.

The case is Jones v. TRS, decided by the Texas Court of Appeals in Austin on September 18, 2019.

DAWG BONE:  OR JUST DON’T GET DIVORCED.

Tomorrow: Toolbox Tuesday!!

Yesterday we told you about the federal court’s decision in a case alleging excessive force with an 8-year old.   In its opinion the court cited a 5^th Circuit decision from 1998 that involved a 5-year old in kindergarten.  Today, we’ll tell you about that one.

When we read of the use of force on a very young child it does raise an eyebrow.  The most shocking allegation in the suit was that the student was “slammed to the ground” by a police officer.   The 5^th Circuit judges noted that this “causes us concern.” But it was not enough to keep the suit alive. The court dismissed it, finding that there was no constitutional violation.

The judges seemed skeptical of the body-slam allegation, noting that:

other evidence in the record belies any inference that, if he was thrown to the ground, it was with unreasonable force.  Deposition testimony and medical records of the doctor who examined Dennis make clear that he did not suffer any significant harm as a result of the incident. 

The decision rests squarely on the deference that federal courts owe to public school administrators.  Key Quotes:

The fact that less force could have been used, or that a more appropriate punishment may have been available is not enough to establish that the punishment administered was unconstitutional. 

The 4^th Amendment’s reasonableness standard must afford school officials with a relatively wide range of acceptable action in dealing with disruptive students. 

This approach is “consistent with the Supreme Court’s view ‘that the education of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local officials, and not federal judges.’”

Some people hear of court decisions like this and wonder: are the courts saying that it is OK for a police officer to slam a 5-year old to the ground?   Not at all.  Any school employee who uses excessive force can be 1) charged with child abuse; 2) charged with a criminal assault; 3) sued personally in state court; and 4) fired.  There is no immunity that applies in those cases.  The school employee would be subject to the same consequences as any other person who injures another person through the use of excessive force. 

The message is not that excessive force by teachers and administrators is OK. It’s not. The message is that our foundational document—the Constitution—does not address these issues. Take them up in state court.

The 5^th Circuit decided Campbell v. McAlister on October 20, 1998.  We found it at 162 F.3d 94. 

DAWG BONE:  SOME LAWSUITS BELONG IN STATE COURT.   

We’ll be back with more Dawg Bones next week!

Have you been trained on the proper use of physical restraint with a student?  Have you had to put that training to use?  If so, you will find the case of Bradyn S. v. Waxahachie ISD interesting. 

The short version of the story is that school officials evacuated an elementary school classroom due to the violent behavior of an 8-year old.  The cops were called in, and the student was eventually restrained.  The suit alleges that the restraint was excessive.  If the case ends up in a trial the plaintiff will have the burden of proving that to be the case.

And the principal?  According to the suit, she “participated in the restraint of the child” and failed to inform the officer that the student had autism and a speech impairment.  The parents, on behalf of their young son, sued the district, the officers and the principal.  Today we will just focus on the suit against the principal. 

The court dismissed it, concluding that the principal was entitled to “qualified immunity.”  School officials are immune from personal liability as long as they do not violate legal standards that are “clearly established.”  In this case, the suit accused the principal of using excessive force in violation of the 4^th Amendment.  But there were multiple problems with that theory.

First, the suit failed to “allege sufficient facts to support that [the principal] used any force at all.”  In order for force to be “excessive” there has to be force. The lawsuit only alleged that the principal “participated” in the restraint. That was too vague, according to the court.  None of the allegations indicated that the principal “personally used any amount of force” against the student. 

Moreover, the court noted that even if force was used, it was not clear that it was unreasonable, given the circumstances:

…the court cannot assess whether any alleged force used by [the principal] was clearly excessive to the need considering [the student’s] behavior at the school leading up to the events at issue, namely, his continued attacks on students and teachers;

From there the court went on to observe the special factors that have to be considered when applying the 4^th Amendment in the school setting:

The 5^th Circuit has “recognized that preservation of order in the schools allows for closer supervision and control of school children than would otherwise be permitted under the 4^th Amendment.”  In the public school context, as is the case here, the 5^th Circuit has “gone to great lengths to emphasize the special circumstances facing school administrators in maintaining discipline in the classroom and on school grounds.”

The court gave the plaintiff an opportunity to amend the pleadings to fix the problems that the court pointed out. But as of now, the case against the principal is dismissed, due to qualified immunity. 

It’s Bradyn S. v. Waxahachie ISD, decided by the U.S. District Court for the Northern District of Texas on September 10, 2019.  We found it at 75 IDELR 37.  I’m pleased to let you know that Meredith Walker and Nona Matthews from our firm’s Irving office represented the district on this one. 

DAWG BONE: IT CAN’T BE EXCESSIVE FORCE WITHOUT SOME FORCE.

Tomorrow: What if it was a kindergarten student?

School districts can be liable for one student’s sexual harassment of another student only if the school district knew about it and responded to it with “deliberate indifference.”  Most of the lawsuits over this issue focus on that “deliberate indifference” requirement.  Occasionally we see a case that turns on what the district knew, and when it knew it.  That’s our case today.

An elementary student in Bryan ISD was having some problems.  He frequently visited the school nurse.   Often he did not want to go to school.  There was the time when he told the nurse that another student had hit him in the leg with a stick.  He missed school quite a bit.  On top of that, there were bathroom issues. His mom asked that he be allowed to use the nurse’s restroom, due to “potty-training issues.” 

So the school knew that the student was having some issues, and it responded as you would hope it would.  There were multiple contacts between the parents and various school officials during the spring semester of 2016. There were three ARDC meetings.  The nurse had “multiple contacts” with the mother.  The HR director and the principal were both involved in responding to parental concerns.  But in none of those communications did the mother tell anyone at the school that the boy was being sexually harassed by another student.   Did the school know that the boy was having some problems at school?  Yes, and school officials were working with the parent to address those issues.  Did the school know that the boy was being sexually harassed?  No.

That’s why the court dismissed the lawsuit against the district.  It wasn’t until April 28, 2016 that the mother informed anyone at school about an allegation of inappropriate sexual contact.  A CPS investigation ensued, but CPS was not able to identify the alleged perpetrator.  Meanwhile, Bryan ISD took interim measures to ensure safety by approving the boy’s transfer to another school the next day.

We lawyers are always harping about the importance of keeping a written record that reflects what you knew, when you knew it and what you did about it.  Here’s a quote from the court case that demonstrates why such documentation is so important:

[Bryan ISD] carried its burden on summary judgment by pointing to many pieces of evidence, including affidavits of school personnel with whom Plaintiff and [the student] interacted, ARD meeting notes, and medical treatment notes, that consistently demonstrate that neither Plaintiff nor anyone else reported peer-on-peer harassment to [the district] prior to the CPS investigation on April 28, 2016. This evidence unequivocally shows that, prior to that date, [Bryan ISD] did not have knowledge of facts that would give rise to a concern that someone was harassing [the boy], much less knowledge of the alleged peer-on-peer harassment against [the boy].

The court concluded that “no rational jury, in light of all of the evidence” would conclude that the school district “knew” about any sexual harassment of the student.  Case dismissed.

The case is J.G. v. Bryan ISD, decided by the U.S. District Court for the Southern District of Texas on July 30, 2019. We found it at 74 IDELR 257.  I’m pleased to report that Bridget Robinson, a longtime shareholder in our law firm, represented the district in this case. Good documentation by the client; good representation by the lawyer.  Good result.  

DAWG BONE:  WHAT DID YOU KNOW? WHEN DID YOU KNOW IT? WHAT DID YOU DO ABOUT IT?

Tomorrow: Have you ever “participated” in a physical restraint?

We are about two months into the school year.  You’ve had enough time to get some idea of how things are going.  Perhaps you have a student who is not doing well.  Is it time to consider a change of placement?

In the all-day Toolbox training that our firm provides we outline the various ways in which a change of placement can be accomplished.  If the parents and the school are on the same page on this issue, a change of placement is easily accomplished.   Have an ARDC meeting to discuss it, and make the change.  In Toolbox lingo, we call this Tool #2—an Educational Change of Placement with Parental Agreement. 

What if there is no agreement?  If the educators who work with the child on a daily basis are convinced that the present arrangement is not going to work, it may be time to call for an ARDC to propose a change.  We should not let a bad situation linger on for an entire school year.  But there are several things to do before you reach that point. 

First, we should be in contact with the parents to talk things over.  What is their perception?  Is there something else we should be doing?  The parents should not first hear of problems at the ARDC meeting.

Second, we should brainstorm among the staff.  Does anyone have any good ideas that we haven’t yet tried? 

Third, let’s make sure that the evaluation data that we have is up to date and accurate.  Should we seek out a new evaluation?

Fourth, consider reaching out to experts outside of the district for help. Education Service Centers are there to provide “service.” Take advantage of that.

If and when you get to the ARDC meeting on this issue you need to be prepared to demonstrate three things:

*First, the current placement of the student is not appropriate. It’s not working. 

*Second, we have really tried to make it work. We have made a good faith, consistent effort, and we’ve given it enough time. 

*Third, the change we propose will be an improvement for the student.  There are services we can provide in the placement we propose that we cannot feasibly provide in the current situation.

That’s a general outline of what we call Tool #3—an Educational Change of Placement Without Parental Agreement.

Here’s hoping you don’t have to use that tool this year.  May all your placements be, and remain, appropriate. 

DAWG BONE: TOOL #3 IS USED WHEN 1) IT’S NOT WORKING; 2) WE’VE TRIED HARD; AND 3) WHAT WE PROPOSE WILL BE AN IMPROVEMENT.

Tomorrow: What did you know? When did you know it? What did you do about it?

If the parents of a student with a disability seek legal relief for the denial of FAPE—Free Appropriate Public Education—they have to pursue a special education due process hearing. They cannot just stroll on down to the courthouse and file a lawsuit.  They have to go through the administrative hearing first. This is what the lawyers refer to as “exhaustion of administrative remedies.”   

The 5^th Circuit has now affirmed that basic rule.  The plaintiff in the case argued that the suit did not allege a violation of IDEA, but rather, discrimination based on disability in violation of Section 504.  The court said that did not matter. What mattered was not the labels the plaintiff used to describe the case, or the statutes cited, but the substance. Key Quote:

But both the substance and language of McMillen’s complaint reveal that he is challenging the denial of a free appropriate public education. 

The plaintiff also asserted that he did not have to “exhaust” his administrative remedies because he was seeking money damages, something you cannot get through the administrative process.  What about that?  Does the plaintiff have to “exhaust” his administrative remedies even when those remedies will not get him what he seeks?  The law says that administrative remedies must be used first if the suit is seeking “relief that is also available under this subchapter.”  Here, the court drew a distinction between the “remedy” preferred by the plaintiff vs. “relief that is also available.”  Key Quote:

[Most courts] read “relief available” under the IDEA “to mean relief for the events, condition, or consequences of which the person complains, not necessarily relief of the kind the person prefers.”  According to this view, because the IDEA can remedy the failure to provide a blind student with a reader by giving her one, a suit seeking damages for such a failure must first exhaust the IDEA’s administrative procedures.

This is an important precedent from our 5^th Circuit, as it is the first case that addresses “exhaustion of administrative remedies” after the Supreme Court’s decision on that issue, Fry v. Napoleon Community Schools (2017).  This one is McMillen v. New Caney ISD, decided by the 5^th Circuit on October 2, 2019.  We found it at 2019 WL 4855234. 

DAWG BONE: GET THAT HEARING FIRST. THEN GO TO COURT.

Tomorrow: Toolbox Tuesday!!

Don’t you think that grandparents should be immune from any claim of liability based on what the grandkids do?  I do.  And that applies in spades when the grandparent has actually taken on the responsibility of raising the little rascal. 

This came to mind when I read the case of Hernandez v. Fort Bend ISD, which involved a student-to-student sexual assault on the school bus.  Yesterday we told you why the court dismissed the claims against the school district.  Today, we focus on the suit against the grandma. 

The plaintiff alleged that grandma, who was raising the boy and acting as his guardian, was negligent in her supervision of the boy.  The suit alleged that grandma displayed:

Her inability or unwillingness to supervise [the boy’s] access to and use of the Internet, her failure to communicate the basic societal mores, taboos, and expectations of conduct to others, and especially to members of the opposite gender, and limitations on physical contact, particularly sexual contact.

The court dismissed grandma from the case, noting the general rule that “The mere fact of paternity or maternity does not make a parent liable to third parties for the torts of his or her minor children.” 

If the parents cannot be held liable for what their children do, then certainly the grandparents cannot be held liable.  I’m glad to see that the court dismissed the claims against grandma.  But grandma had to go to a lot of trouble to get out of this mess. 

Seems to me we should have a POPPY AND NANA PROTECTION AND IMMUNITY ACT, by which courts would be instructed to immediately dismiss any legal claim against grandparents for what the grands may have done.  And if the grandparents are actually doing double parental duty by raising the grandchild, the plaintiff who sued them should be required to pay a fine that goes toward the raising of the child.

The case of Hernandez v. Fort Bend ISD was decided by the U.S. District Court for the Southern District of Texas on September 13, 2019. We found it at 75 IDELR 34. 

DAWG BONE:  SEEMS ONLY FAIR, DONTCHA THINK?

The Dawg barks again next week!

A middle school boy sexually assaulted a middle school girl on the school bus.  Both students had intellectual disabilities.  The two students had just boarded the bus at the end of school. The driver was not yet on the bus.  The bus monitor was on the bus, but according to the court, she was “on her cellphone in the back of the bus” when the assault occurred in the first row of seats.  When another student got her attention, the monitor quickly intervened.

This was the basis for a lawsuit against the school district alleging disability discrimination, sex discrimination and negligence in the operation of the school bus. The federal district court dismissed all claims.  Let’s take these up one at a time.

The negligence claim was dismissed due to the Texas Tort Claims Act.  Pursuant to that law, school districts are liable for personal injuries only when they are caused by the negligent “use or operation” of a motor vehicle.  Here, as in many prior cases, the court concluded that “The bus was the location of the assault, but the bus operation had nothing to do with the assault or [the girl’s] injuries. 

The claim of disability discrimination failed for a couple of reasons. First, the plaintiffs failed to convince the court that the assault occurred because of the girl’s disability.  Second, the record showed that the district’s response to the incident was not “deliberately indifferent.”   The fact that the bus monitor failed to prevent this may show ineffectiveness, or even negligence.  The school district seemed to think so—it terminated the monitor’s employment. But neither ineffectiveness nor negligence equates with “deliberate indifference.” 

The court dismissed the Title IX sex discrimination claim for reasons similar to its dismissal of the disability claims.  The district was not “deliberately indifferent.”

Thus the entire case was dismissed.  Tomorrow we will tell you how the boy’s grandmother got included in this case, and what the court had to say about that.  If you are a grandparent, you will want to read tomorrow’s Daily Dawg!

This case is Hernandez v. Fort Bend ISD, decided by the U.S. District Court for the Southern District of Texas on September 13, 2019. We found it at 75 IDELR 34.   

DAWG BONE:  PLAINTIFFS SHOULD NEVER BE ABLE TO PROVE THAT A SCHOOL DISTRICT WAS “DELIBERATELY INDIFFERENT.”

Tomorrow: Let’s protect our grandparents!

A recent decision from the 5^th Circuit draws attention to the need for good training for SROs and other law enforcement personnel who may be called on to deal with students in school.  The case has a long way to go.  The 5^th Circuit held that there were fact issues that needed to be resolved before the case could be decided, and so it sent it back down to the lower court for further proceedings. But the facts that were outlined in the court’s decision indicate that the SRO handled things poorly.   The city that employed the SRO later described his conduct as “demeaning, berating and antagonizing” toward an 8-year old boy.

The story begins with that 8-year old boy out of control at school.   School officials called for the SRO to help, but instructed him to “stand and watch right here, say nothing.”  The SRO failed to comply with that directive.  Here’s how the court described it:

Seconds later, as [the student] was twirling his jump rope Baker [the SRO] handcuffed [the student] and took him to [the principal’s] office.  Baker sat face-to-face with [the student], screamed at him, called him names, including “punk” and “brat,” mocked [the student] and laughed at him.  While screaming, Baker indicated that he was reacting the way he was because of how [the student] had acted during a previous incident.

Baker continued antagonizing [the student] and aggravating the situation until [the student’s] parents arrived. When [the student’s] mother asked Baker if he realized handcuffing a child with autism would traumatize him, Baker replied: “You know what?  You’re right, I don’t know that.  I’m not a psychologist.”  With regard to [the student] having autism Baker said, “You know what, he has no sign on his head that says ‘I have autism, I hit people.’  You can’t do that in a free society.” Baker then continued to laugh and make comments like “Great parenting!”    [The student’s] mother yelled at Baker for laughing and asked for his information. Baker then demanded that they leave the school.

Yikes.  While this case has some important fact issues that are disputed, the court noted that “The parties do not contest these particular facts.”  It’s not surprising that the City’s internal investigation concluded that the officer’s conduct was “unprofessional and unreasonable,” leading to his termination.

The subsequent lawsuit was against the SRO, the City of Southlake and the police department.  As noted above, no ruling about liability has been made. But golly gee whiz does this not demonstrate that some SROs need to get some training on how to interact with children at school?  The case is Wilson v. City of Southlake, decided by the 5^th Circuit Court of Appeals on August 28, 2019.  We found it at 936 F.3d 326. 

DAWG BONE: DEALING WITH 8-YEAR OLDS IS DIFFERENT FROM DEALING WITH HARDENED CRIMINALS ON THE STREET.

Tomorrow: Distracted by the cell phone…