The Toolbox is our firm’s all day training program that focuses on the disciplinary options in dealing with students with disabilities.  Today we turn our attention to an issue that could affect any student: vaping. 

We got a new bill on this from the legislature this year—SB 21.  It raises the legal age for possession or use of tobacco or a vaping device to 21.  Using a vaping device at school is a Class C misdemeanor, as is smoking.   But before you ask your campus cops to issue citations to students for this you have to stop and think about another law.  Texas Education Code Section 37.143(a):

A peace officer, law enforcement officer, or school resource officer may not issue a citation to a child who is alleged to have committed a school offense.

That raises two more questions: who is a “child”? And what is a “school offense”?

For that we look to Texas Education Code 37.141:

“Child” means a person who is (A) a student; and (B) at least 10 years of age and younger than 18 years of age.

“School offense” means an offense committed by a child enrolled in a public school that is a Class C misdemeanor other than a traffic offense and that is committed on property under the control and jurisdiction of a school district.

Thus you cannot issue a citation for a Class C misdemeanor to a student ages 10-17, based on misconduct at school, unless it’s a traffic offense.  So let’s consider a possible scenario.  You come across two students who are sharing a vaping device at school.  One is 17 and the other is 18. The 18-year old can be cited for a Class C misdemeanor. The 17-year old may not. The 17-year old is a “child” and this is a “school offense.”  No citations.  However, your Code of Conduct prohibits the use or possession of a vaping device at school.  Section 38.006 of the Education Code requires that you do that.  So as to both students, you can apply the appropriate consequence from the Code.

Isn’t it fun to study the details of the law?  Thanks to attorney Doug Brock for his help on today’s Daily Dawg!

DAWG BONE: NO CITATIONS FOR CLASS C MISDEMEANORS TO THE 10 TO 17 YEAR OLDS.

Tomorrow: SRO Training needed.

Believe it or not, it’s time to start thinking about the 2020 Census and what comes after that for single member districts.   You will very likely have to reconfigure your single member districts based on shifts in population. 

Our law firm has teamed up with a demographic firm to help out with this.  On October 23^rd, we will be providing an informative audioconference highlighting how the process works, and what you need to do to get ready.  You can sign up for this event at www.walshgallegos.com.  The audioconference will be conducted by Christine Badillo and Laura Rodriguez McLean, both of whom have extensive experience with this process from the 2010 census.  

DAWG BONE: GET READY!

Tomorrow: Toolbox Tuesday—vaping!

Here’s an interesting and insightful observation I picked up from a superintendent recently who explained why it was more difficult to be a principal than a superintendent. He noted that “for principals, it’s gameday every day.  For superintendents, it’s gameday once a month.”

Good observation! I also liked his description of the monthly school board meeting: “my monthly enema.”

DAWG BONE: WE’LL JUST LEAVE THAT RIGHT HERE WITH NO FURTHER COMMENT.

Whether the Horns beat OU or not, the Dawg will be back at his post on Monday.

Chapter 37 of the Texas Education Code describes several offenses as “mandatory” DAEP offenses. Thus a student who engages in one of those offenses must be assigned, at least for a while, to DAEP.

But in the law, words do not always mean what they mean in the dictionary.  The term “mandatory” in Chapter 37 is misleading. 

The first reason for that is due to federal law regarding special education. Nothing is “mandatory” in the discipline of a student with a disability.  If the student commits an offense that calls for a mandatory assignment to the DAEP, this is what the IDEA would call a “change of placement.” That means the ARDC must make a “manifestation determination.”   This is a formal process by which the ARDC determines if the misconduct was caused by the disability, or by the school’s failure to implement the student’s IEP. If the ARDC concludes that the behavior was a manifestation of disability, the student cannot be assigned to DAEP unless the behavior fits the “special circumstances” provision—drugs, weapons, or the infliction of serious bodily injury.

Then there is a state law, which now requires campus administrators to consider six factors before deciding on a disciplinary action. Importantly, the law says that the six factors must be considered “regardless of whether the decision concerns a mandatory or discretionary action.”   The factors are: 1) self-defense; 2) intent; 3) disciplinary history of the student; 4) disability that impairs the student’s ability to understand the wrongfulness of the conduct; 5) homelessness; and 6) foster care.

So campus administrators should think twice before describing a disciplinary infraction as “mandatory” and they should never use the term “automatic.” The only thing automatic in life is that your AC will go on the fritz in July or August.  Nothing is automatic in Chapter 37.

DAWG BONE: MANDATORY DOES NOT ALWAYS MEAN MANDATORY.

Tomorrow: What is the school board meeting like for the superintendent?

Have any parents brought a “seizure management and treatment plan” to the school?  A bill passed by the legislature this year authorizes parents to develop such a plan in conjunction with the treating physician.  Such a plan will 1) identify the health care services the student may receive at school or school activities; 2) evaluate the student’s ability to manage, and the level of the student’s understanding of the seizures; and 3) be signed by parent and doctor.

This new law, HB 684, will be codified at Texas Education Code 38.032 and .033.  The new law includes language designed to ease the anxieties of school officials when treating a student’s seizures. It says that the care of a student with a seizure disorder as per a treatment plan is “incident to or within the scope of the duties of the employee’s position of employment and involves the exercise of judgment or discretion.”  That language is borrowed from the statute that provides immunity from liability for school officials.

So look for these plans, and online training that will be required for a school nurse as well as any other employee “whose duties at the school include regular contact with students.” That’s just about everybody, isn’t it?

DAWG BONE: WE ARE ONE OF ONLY FOUR STATES WITH A LAW LIKE THIS. GOOD ON TEXAS!

Tomorrow: The misleading word “mandatory.”

When our firm presents The Toolbox we include a laminated card that we call the “Thinking Flow Chart.”  I tried hard to develop one of those nifty looking charts with diamonds, squares, circles and arrows demonstrating the linear process of determining how to handle a student discipline issue.  After hours of effort, I gave up. The backup plan is the Thinking Flow Chart, which guides administrators through a logical and sequential thought process. 

It starts with simple things that should be considered right off the bat.  Is this the type of conduct for which we normally call in law enforcement?  If so, use Tool #10.  Is this a “special circumstances” case?  If so, use Tool #5. 

No more spoilers!! If you are interested in the TFC and the Toolbox, let me hear from you. Have Toolbox, Will Travel.

DAWG BONE:  STILL WISH I COULD COME UP WITH ONE OF THOSE CHARTS…IN COLOR.

Tomorrow: Seizure Management and Treatment.

Thomas Jefferson once proposed what was considered a radical plan for education.  At the time, there was very little public education. Parents who could afford to do so would put their children in private schools or hire tutors.  So Jefferson’s plan to offer a free education to selected students was radical. 

The plan was very limited.  There were 20 parts to the Commonwealth of Virginia at the time, and Jefferson proposed a free ride for one “promising scholar” from each.  So 20 students—only white boys need apply—would be educated at public expense. 

What is most striking about the plan from the perspective of the 21^st Century is Jefferson’s colorful turn of phrase.  As you know, the man was a world class wordsmith.  Thus it is noteworthy that he said that this plan would enable Virginia to “rake from the rubbish” 20 promising scholars.

Would you like to see your district adopt that as a mission statement?  RAKING THEM FROM THE RUBBISH, DAY BY DAY!

I didn’t think so.

DAWG BONE: LEAST YOUR MISSION STATEMENT WOULD BE MEMORABLE!

Tomorrow: Toolbox Tuesday!!

We’ve spent all of this week on a single case.  Decisions from the 5^th Circuit create binding legal precedent for us in Texas, and thus they are particularly important.  Before we conclude the discussion, I want to make an observation that is strictly my own.

We are over legalizing education.  It would be nice if federal judges recognized that classroom teachers need to have the ability to control the classroom, just as much as the judge needs the ability to control the courtroom.   The ability to control requires the exercise of discretion.  This decision turns, in part, on the use of very short cool down periods that were given to a highly disruptive student at teacher discretion.  According to the court, the IEP called for such “cool downs.” But because the word “time out” did not appear in the IEP, the judges deemed the use of this very common disciplinary tool to be a violation of the student’s IEP.  Sharp lawyers, carefully parsing every word in our regulations, convinced the court that the teachers were using a procedure that had to be authorized as “time out” by the IEP.   

Well, I’m a lawyer and I can see how that argument was made, and why it worked.  But I can also see what’s going on here.  Legal formalities and technicalities become more important than results.  In the name of upholding the law, judges clip the wings of educators who struggle to find the formula that will work with our most challenging students. 

It sounds like nothing worked for the student in this case.  The school shortened the boy’s day near the end of the year, and one staff member noted that they were trying to “survive” to the end of the year.  The student’s parents end up placing him in an out-of-state residential facility.  In a situation like that, our special education system goes to fault finding, which plays into the wheelhouse of the legal profession. 

I don’t know why O.W. did not have a successful experience in 5^th grade in Spring Branch.  But I’d be willing to bet that it wasn’t because his IEP did not use the term “time out” to describe the five to ten minute cool downs that his teachers ordered. 

Special education is mired in process rather than results.  In this case, for example, if the court had simply looked at the results, and concluded that the boy did not make any educational progress, the decision would be easier to abide.  Instead, our detailed regulations force the parties to focus on petty issues.  Thus we have a high level court trying to figure out how far a desk has to be physically separated from the rest of the class to be “separated” as that term is used in the Texas Administrative Code.   That’s a silly thing to be arguing about.  Lawyers thrive on stuff like that. It doesn’t help educators much.  It doesn’t help parents. It doesn’t help kids.

Who are we trying to serve?

The case is Spring Branch ISD v. O.W., decided by the 5^th Circuit on September 16, 2019.  We found it at 2019 WL 4401142.

DAWG BONE: DESPITE ALL THAT, LET’S REMEMBER THAT THE MAIN THING IS TO KEEP THE MAIN THING THE MAIN THING. THE MAIN THING IS EDUCATIONAL PROGRESS.

Federal regulations permit parents and schools to modify a student’s IEP without the formality of an ARDC meeting, if there is a “written document” to that effect.  34 CFR 300.324(a)(4).   In its recent decision, the 5^th Circuit cites one modification that was properly done, and one that was not. 

On May 5, 2015, the school called in the cops to deal with a student who had “repeatedly struck his teacher with a closed fist and then charged at her.”  The next day, the school and the mother “without consultation with [the student’s] ARDC, agreed in writing that [the student’s] school day should begin at 9 a.m. instead of the normal 7:30 a.m.”

This shortened the student’s school day by 90 minutes, but the court was OK with it because the “formal written document” that the school and mother signed satisfied the requirements of the law.

Twelve days later the parties agreed that the school day for the remaining 11 days of the school year would be shortened to a mere three hours.  Note: the court’s decision says that the mother “agreed” to this.  However, there was no “formal written document” in place. The only “written” documentation the school could cite was an email from one staff member to another which noted that they had discussed this with the mother, and that a “brief ARD” would be necessary. That ARD was never held.  There was no written confirmation of the mother’s agreement. The court held that this was an “actionable violation” of the IEP.

That email said that this shortened day was needed in order to “survive the last 11 days of school.”  Reading this court decision, even years after these events, the weariness and frustration of school staff is evident. It’s also understandable. This was a challenging student, the year was almost over and everyone was exhausted.  In fact, at the suggestion of an outside counselor the boy was pulled out of school altogether for the final three days. So they did not “survive” the last 11 days. 

Of course emotional exhaustion is not going to factor into a court’s decision. The regulations require a formal written document. There wasn’t one. 

The case is Spring Branch ISD v. O.W., decided by the 5^th Circuit on September 16, 2019.  We found it at 2019 WL 4401142.

DAWG BONE: CHANGES TO AN IEP REQUIRE AN ARDC MEETING, OR A WRITTEN  AGREEMENT BETWEEN SCHOOL AND PARENTS.  NO EXCEPTIONS IN HARD CASES.

Tomorrow: Some opinions.

“Thus, an IEP or BIP which does not authorize the recurrent use of time-outs effectively prohibits its use.” 

Let that sink in.  This is a Key Quote from the 5^th Circuit in a case decided two weeks ago.  The upshot: you can’t use “time out” on a “recurrent” basis unless the IEP or BIP says that you can. 

The student in this case was frequently directed to a “take-desk.” Teachers would do this after redirection and warnings failed to deter the student from inappropriate behavior. The “take-desk” was in the classroom.  The boy would be sent there for five or ten minutes, where he would have the opportunity to “pursue replacement behavior, such as drawing.”

The school district argued that this was not “time out.”  The desk was in the same classroom—he was not sent elsewhere.  Moreover, he could engage in “preferred activities.” 

The court cited the very ambiguous definition of “time out” in our Administrative Code and concluded that the district was using “time out,” even though it didn’t call it that.  Key Quote:

While the School District is correct the desk was in O.W.s classroom and that O.W. was allowed to partake in preferred activities, nothing in the administrative definition of “time out” suggests the definition is limited to placement in a separate room or is inapplicable when the student is allowed certain activities.  Section 89.1052(b) only requires a “separation from other students for a limited period….”

So if the teacher sends the student to a desk, or a comfy beanbag chair that is in the same classroom but physically “separated” from the rest of the class, it’s a “time out.”  If this is done “recurrently” it has to be authorized by the IEP or BIP.  If it’s done recurrently and not authorized in the IEP or BIP, the district may be guilty of failing to implement the IEP.

That’s what happened according to the 5^th Circuit in the case of Spring Branch ISD v. O.W. 

This case has important implications.  It would be a good idea for principals and special education directors to survey teachers and find out if they are using any techniques, regardless of what the teachers call them, that might be characterized as “time out.”  It might also be a good idea to routinely authorize “time out” in IEPs or BIPs, particularly BIPs. If a student needs a behavior plan some short term “separation” from other students might be appropriate.  I hear a lot of references to “cooling down” spaces.  You might call it cooling down, but the 5^th Circuit might call it “time out” and examine the IEP to see if it is authorized.

The case is Spring Branch ISD v. O.W., decided by the 5^th Circuit on September 16, 2019.  We found it at 2019 WL 4401142.

DAWG BONE: IT WOULD BE NICE TO HAVE A CLEARER DEFINITION OF “SEPARATION.”

Tomorrow: More on the Spring Branch case.