I heaved a sigh of relief when I read what the 5^th Circuit said about the use of physical restraint and the intervention of law enforcement when dealing with students with disabilities.   In the Toolbox Training that our firm provides, we address these issues specifically.  A very recent 5^th Circuit ruling is consistent with what we have been saying. 

Let’s take up each issue. 

Issue One: Does the IEP or BIP have to “authorize” the use of physical restraint?  No.  Key Quotes:

Unlike the use of time-outs, the law contains no provision requiring that the use of physical restraints be expressly authorized by a student’s IEP. 

Therefore, so long as the School District’s use of physical restraints complied with state law, the use of restraints did not violate the IEP.

Issue Two: If the IEP/BIP calls for positive interventions, calm interactions and the avoidance of power struggles, is it a violation of the IEP when the school calls in the cops?  The 5^th Circuit said no.  Key Quote:

These strategies are not necessarily violated by a mere request for police presence, particularly to deal with a violent and escalating situation such as a student repeatedly striking a teacher and charging at her, as was the case here.

That’s the ruling in 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: BUT REMEMBER: PHYSICAL RESTRAINT IS OK ONLY IN AN “EMERGENCY.”

Tomorrow: Did you notice that reference to “time out”?  Tune in tomorrow.

Two weeks ago the 5^th Circuit issued an important decision with implications for general and special educators. Because of the significance of the case, and the number of key legal issues it addresses, we are going to spend all week on O.W. v. Spring Branch ISD.  Today, we take up one specific component of the Child Find responsibility.

The issue is this: once the school has notice that the student may have a disability, how long does the school have to begin the process by making a referral for testing?  We know exactly how long we have to conduct an evaluation after the parent has given consent for it—that timeline is spelled out in the law. But let’s consider what happens before that.  Suppose you have clear indications that the student may have a qualifying disability. Do we have to refer the child that day?  Within a week?   A month?  What’s the timeline?

Courts have the luxury of looking backward and pinpointing a specific date when the district was “on notice.”  In the hectic rush of day to day schooling, it’s rarely that clear.  In this case, the court concluded that the district had notice of a possible disability by October 8, 2014.  That was the date when the school held a 504 meeting, declared the student eligible for a 504 plan and began implementing a BIP (Behavior Intervention Plan). 

The school implemented that 504 plan for the rest of that fall semester, but by January 15, 2015, the school concluded that more extensive services might be needed. Thus on that date the school initiated a referral for a Full Initial Individual Evaluation (FIIE)—the first step toward determining the student eligible for an IEP.

So there is your timeline: we have “notice” of a possible need for special education on October 8^th. We refer for testing on January 15^th.  That’s 99 days.  Is that OK?

The court noted that the law did not provide a specific timeline, so we look to the standard of “reasonableness.”  How long of a delay is “reasonable”?  Courts look to their earlier decisions to decide issues like this.   Here, there were two cases that were relevant.  In Dallas ISD v. Woody the 5^th Circuit held that a delay of 89 days was reasonable.  But in Krawietz v. Galveston ISD the 5^th Circuit held that four months (120 days) was too long.  So 89 days is OK; 120 is not OK. How about 99?

The court did not base its decision on a specific number.  Instead, the overall reasonableness of the actions of the school would be the decisive factor. Here is the key holding:

Taken together, Krawietz and Woody stand for the proposition that the reasonableness of a delay is not defined by its length but by the steps taken by the district during the relevant period.  A delay is reasonable when, throughout the period between notice and referral, a district takes proactive steps to comply with its child find duty to identify, locate, and evaluate students with disabilities. Conversely, a time period is unreasonable when the district fails to take proactive steps throughout the period or ceases to take such steps.    

So what “proactive steps” did the district take from October 8^th to January 15^th?  In accordance with our state regulations, the district attempted regular behavioral interventions—specifically RtI, Response to Intervention.  The Texas Administrative Code requires schools to consider general education interventions, including RtI “prior to” making a referral for special education testing.  

The 5^th Circuit rode roughshod over that regulation, noting that RtI strategies “cannot be used to delay or deny the provision of an “cannot be used to delay or deny the provision of an [evaluation] .”  The court did not say that RtI would never be an appropriate “proactive step” but only that it should have been obvious that it wasn’t going to work in this case.  Key Quote:

The record in this case reflects that as of the October 8 notice date, the School District had attempted to engage with O.W. and his parents for the purpose of offering positive incentives and that such attempts had utterly failed to improve O.W.’s behavior. 

Thus the court concluded that “the continued use of behavioral interventions was not a proactive step toward compliance with the School District’s child find duties and that, therefore, a child find violation occurred.

This is a 5^th Circuit decision that sends a strong message.  A 504 plan is not an adequate substitute for a student who needs “specially designed instruction” under IDEA.  RtI cannot justify the delay of a referral of a student demonstrating signs of a disability under IDEA.    

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.  More on this case tomorrow.

DAWG BONE: IT’S SAFER (LEGALLY) TO MAKE THAT IDEA REFERRAL SOONER RATHER THAN LATER.

Tomorrow: the 5^th Circuit addresses some Toolbox issues!

Suppose the parent of one of the kids in your special education program informs you that for the  2019-20 school year, the child will be attending a private school that is located in your neighboring district.  You wish the family well and go on to deal with other issues. 

You don’t hear from the family again, until April 2020, when the parent sends you a letter that reads “I am still interested in public school placement for my child and request the District provide an offer of FAPE for the 2020-21 school year.”

What to do?  Let’s hope you do not respond like Bellflower USD in California did.  BUSD informed the parent that it would not hold an IEP Team meeting or offer FAPE until the child enrolled in BUSD. The letter from the BUSD noted that the child was attending a private school that was outside of BUSD’s boundaries.  So BUSD was no longer responsible.

That’s wrong.  The court held that the district was required to hold an IEP Team meeting and its failure to do so denied FAPE and meaningful parent participation.  The parents were entitled to tuition reimbursement. 

The school district simply misunderstood the law.  If the parent sought “proportionate services” while attending the private school, the neighboring district where the private school was located would be responsible. But the duty to offer and/or provide FAPE belongs to the district of residence.  The kid lived in Bellflower. Bellflower was responsible for offering FAPE, and the parent did not have to enroll the child to hear what that offer would be.  Bellflower should have held the IEP Team meeting, and offered an IEP. Then the parent could take it or leave it. The student is not entitled to receive FAPE until the student enrolls and attends.  But the parent is entitled to an offer of FAPE if the student is a resident of the district.

It’s  Bellflower USD v. Lua, decided by the district court for the Central District of Florida on July 8, 2019. We found it at 74 IDELR 231.

DAWG BONE:  DO THEY LIVE IN YOUR DISTRICT?  THEN YOU ARE RESPONSIBLE FOR FAPE.

Coming up—the Best Month of the Year!  See you Monday.

When parents of students bring a report to the school that comes from an outside source, the school should respond with four steps. We get a lot of reports from doctors, reading specialists, Board Certified Behavior Analysts, psychologists and others. Regardless of the source, the response should include these four elements. 

1. Say Thank You!  Parents are helping the school when they bring us information that might help us serve the student better. So say thanks.

2. Ask the parent to sign a FERPA consent form to enable you to contact the person who wrote the report and get some further information.  You can’t have a conversation like that without disclosing confidential information about the student. You need parent consent, in writing, to do that. So ask.

3. When you contact the person who wrote the report, engage in mild cross-examination.  You don’t need to go to law school to learn how to do this.  Marriage is a great training ground.  Having adolescent children is even better. So most of you already know how to engage in mild Cross-X. 

4. Take the report, along with the results of your cross examination to the relevant group for further consideration. This might be the ARD committee, the 504 team, or an RtI team. 

I came across a Circuit Court decision recently that provides an excellent example of why “mild cross-examination” is called for.   It was a fight over funding of an IEE—an Independent Educational Evaluation.  The court ruled that the school was not required to pay for the IEE, and  noted that the hearing panel gave little weight to the independent report. Here’s why: 

…[the person who wrote the IEE] had neither met nor observed Student, was not aware of Student’s programs in her current placement, and was not familiar with the most recent data collected for Student.

How did the court come to that conclusion?  Somebody engaged in mild Cross-X. 

The case is A.H. v. Colonial School District, decided by the 3^rd Circuit Court of Appeals in an unpublished decision on July 10, 2019.  We found it at 74 IDELR 219. 

DAWG BONE: JUST THE MILD VERSION. DON’T TRY TO BE TOM CRUISE TO JACK NICHOLSON.

Tomorrow: Kid lives here, goes to private school in another district. Who is responsible?

Many readers will recall the case of the principal who sent a nude selfie to her husband.  This was a private communication between spouses, perhaps a Valentine’s or birthday gift.  But some unknown person found the picture and, well, you can guess what happened next.  The court tells us that the picture was “widely disseminated within the local community.” 

This is not a good thing for a middle school principal.  On August 25, 2016, the board gave the principal notice of proposed termination.  The board followed through on that, and Commissioner Morath upheld the decision to terminate the principal’s employment.  The Daily Dawg reported the decision on July 19, 2017. 

The principal contended that her termination was an act of sex discrimination.  To pursue this, she filed a complaint with the Texas Workforce Commission (TWC) on January 24, 2017.  I would not bother you with the dates when things happened, but it turns out that the most recent decision is all about timelines rather than sex discrimination, marital privacy or any of the other juicy issues this case presents. 

So here are the relevant dates:

6-22-16: The principal is told she can resign or be fired.

6-23-16:  The principal is informed that she is suspended with pay during an investigation.

7-20-16:  The principal is informed that she will be reassigned.

8-25-16:  The principal receives notice of proposed termination.

1-24-17:   The principal files a sex discrimination complaint with TWC.

11-3-17:   TWC gives the principal a “right to sue” letter.

12-22-17:  The principal files suit against the district.

The law requires that plaintiffs who file a suit over sex discrimination must first file an administrative complaint with the TWC or EEOC.  The plaintiff has 180 days to file that complaint, and the 180 days begin on the date “the alleged unlawful employment practice occurred.” 

So when did the “alleged unlawful employment practice” occur?  The school district argued that it was on 6-22, when the principal was first informed that she was in deep trouble.  If that’s when the 180 days begins, the principal was late in filing with TWC and the case should be dismissed. 

The principal argued that the timeline began to run on 8-25-16 when she got notice of proposed termination. If that’s the case, then she was timely and the case continues.

The Court of Appeals ruled in favor of the principal, noting that “The provisions of the education code and the terms of [the principal’s] contract appear to grant the ECISD Board of Trustees the power to terminate her contract, not the superintendent…”  Thus there was, at a minimum, a factual dispute over when the timeline began to run and the lower court goofed when it dismissed the principal’s case.

We would prefer to be writing about the more interesting issues this case presents, but you have to go with what you’ve got. This is what we’ve got.  Ms. Esparza’s suit against the district will continue. 

The case is Edinburg CISD v. Esparza, decided by the Court of Appeals for Corpus Christi-Edinburg on August 22, 2019.  It ain’t over. Stay tuned.

DAWG BONE:  TIMELINES ARE BORING. BUT IMPORTANT.

Tomorrow: Mild Cross-X: a great example

On Tuesdays we highlight The Toolbox—our firm’s full day training program regarding disciplinary options with students in your special education program.  One topic we dwell on is the proper and improper use of physical restraint. 

Our regulations empower trained individuals to use physical restraint in an “emergency.” This term is defined to include both “imminent, serious physical harm” and “imminent, serious property destruction.” 

The lawyers in our firm recently discussed the meaning of “serious” as applied to property destruction and it turns out that one of us wrote an article about that very topic while in law school! How cool is that?  Jennifer Carroll (Irving office) wrote the article for the Texas A&M University Journal of Property Law in 2016.  Quoting from the article, Jennifer tells us that our regulations “do not provide a clear, applicable definition.” However, she goes on to say, when we look at the statutes, the regulations, the case law and good old Black’s Law Dictionary (a must buy for first year law students) “a definition of ‘imminent, serious property destruction can be inferred.”

To cut to the chase, Jennifer’s conclusion is that “serious” will generally mean property valued at $1500 or more.  However, that should be treated as a general guideline, rather than a hard and fast cutoff.  That dollar figure does not appear in the regulations.  When TEA received comments to the proposed regs about the ambiguity of terms like “serious” it responded by saying that “the agency believes that these terms have commonly understood meanings and do not need to be further defined.”  TEA comments also note that “reasonable and professional judgment” should come into play.

Thanks to Jennifer for input on today’s Dawg!

DAWG BONE: RESTRAINT: ONLY IN AN EMERGENCY.

Tomorrow: A story that starts out with a lot of pizazz fizzles out.

I love “first day of school stories.”  That’s why I want to pass along the best one I heard this year. I got it directly from a superintendent at the district, which shall remain anonymous.  It turns out that everything was ready on the first day—buses gassed up, classrooms properly prepared, teachers coffee’d up and ready to go.  And then they found out that there was zero toilet paper in one of the elementary schools.

This must have led to an emergency procurement at WalMart.

So just a word of warning for your checklist for the start of school next year.  Toilet paper.

DAWG BONE: DETAILS.  DETAILS.

Tomorrow: Toolbox Tuesday!

Plaintiffs proceed in litigation under the pseudonym “John Doe” or “Jane Doe” to hide their identity.  Courts can approve this practice if it’s deemed appropriate due to the personal nature of the allegations, or other concerns regarding confidentiality.   But sometimes it’s the defendant that ought to be proceeding under a veil of confidentiality. Such is my very favorite Doe case—Doe v. State of Hawaii Department of Education.

The John Doe in this case was a wiggly second grader.  After he’d been “horsing around” the vice principal ordered him to stand still against the wall as a “time out.”  The little guy failed to comply.  You know how it is with second graders.  It was then that our VP made his fateful mistake.  He could have recited the Serenity Prayer, realizing that the behavior of young Doe was out of his control. But instead, he escalated the situation, threatening to impose a harsher punishment if the wiggling didn’t stop.   

It didn’t.  We’ll let the court describe what happened next:

[The vice-principal] followed through on his threat to take Doe outside and tape him to a nearby tree if he did not stand still.  The vice principal used masking tape to tape Doe’s head to the tree. The record is unclear as to whether Doe’s face was pressed against the bark.

The hero of our story is a 5^th grade girl who showed early signs of leadership:

The tape remained for about five minutes until a 5^th-grade girl told [the vice principal] that she did not think he should be doing that.  He instructed the girl to remove the tape, which she did.

Now that is the EFFECTIVE use of shaming! That girl should grow up to be a school superintendent.

The court held that our VP was not entitled to qualified immunity, noting that “Taping [Doe’s] head to a tree for five minutes was so intrusive that a 5^th grader observed that it was inappropriate.”

So ask yourself: who should be proceeding with a pseudonym here?  It seems to me that the VP has far more to be embarrassed about than 8-year old John Doe.

The case is Doe v. State of Hawaii Department of Education.  It was decided by the 9^th Circuit Court of Appeals on June 30, 2003.  We found it at 334 F.3d 906.

DAWG BONE: DON’T THREATEN TO DO IT IF DOING IT WOULD BE STUPID. 

See you next week, Readers!

I’ve been a proponent of restorative practices from the start.  Restorative practices are designed to strengthen the most important infrastructure that supports your school.  Your school is supported by a physical infrastructure, a financial infrastructure and a policy infrastructure. But the most important infrastructure is the web of relationships that create the climate in your school building. 

Restorative practices are about nurturing strong relationships, and healing them after something goes wrong.  Punitive practices don’t do that.  In fact, punitive practices often damage that relationship infrastructure.

The third annual conference on Restorative Practices, sponsored by the National Educators for Restorative Practices and ED311, will take place on November 4^th and 5^th at the Irving Convention Center.  I’m delighted to have the opportunity to speak at this conference this year.  I hope to see you there. 

Go to www.ed311.com/events to register.

DAWG BONE: SEE YOU IN IRVING!

Tomorrow: A duct tape case.

The 11^th Circuit has now joined the 4^th, 5^th, 8^th and 9^th Circuits in holding that a failure to implement an IEP is a denial of FAPE only when the school “materially” fails to do so.  Key Quote:

The plaintiff must prove more than a minor or technical gap between the plan and reality; de minimis shortfalls are not enough.  A material implementation failure occurs only when a school has failed to implement substantial or significant provisions of a child’s IEP.

Here, the court held that the school passed this test.  There were services in the IEP that the school did not provide, but that was often because the student refused to attend school.  Moreover, the court concluded that the student’s refusal to attend was not attributable to any failing on the part of the school.     

This is an important high level court decision that includes a good discussion of the distinction in cases between those that are about the IEP as written vs. the IEP as implemented.  Thus it makes for important reading for lawyers.

However, it is also an example of how broken our system of legal review is. This decision from 2019 is about an IEP that was written for the 2005-06 school year.  Due to continuous litigation, that IEP (for third grade) remained in effect due to “stay put.”  The administrative law judge conducted a hearing that lasted 18 non-consecutive days over a two year period.  That hearing concluded in October, 2009, but it was more than a full year later when the ALJ issued a decision. The case then went to federal district court, which made its ruling six years (SIX YEARS!!!) later.  Then it went to the Circuit Court.  The Court noted this:

As a result, L.J.—now 26 years old—is long gone from the Broward County school system, and any compensatory education he could receive from this case is surely less valuable than it would have been during his middle school years.  

No kidding. This one scores high on the Sheesh-O-Meter.

L.J. v. School Board of Broward County, Florida was decided by the 11^th Circuit on June 26, 2019. We found it at 74 IDELR 185 (11^th Cir. 2019).

DAWG BONE: LAWYERS MADE A LOT OF MONEY ON THIS ONE. DID ANYONE ELSE BENEFIT?

Tomorrow: Restorative Practices conference coming up!