For most of you, school is starting today. Woo Hoo!! Another year begins.  It will bring stress, heartache, anger, frustration.  There will come that moment when you want to turn your back on the whole thing and walk away. 

It will also bring laughter, pleasant surprises, victories, and joy.  There will be that moment when you know you are making a positive difference in the life of a child.    

I have a friend who taught me to greet each day with this thought:  “I just woke up to something much bigger than myself that’s already going on. Now I get to take part in it.” 

That’s true for everyone, but especially for educators.  Walsh Gallegos prepared this short video that celebrates the power of your work – because your work matters! We hope you enjoy it!

DAWG BONE:  WAKING UP TO SOMETHING MUCH BIGGER THAN MYSELF, ALREADY GOING ON.  NOW I GET TO TAKE PART.

Tomorrow: Toolbox Tuesday!

Let’s wrap up the summer (school starts next week, doesn’t it?)  with a reminder about the infamous Doe Family.  These people are relentlessly litigious. You can find their fingerprints on lawsuits all over the country, usually involving their son, John, or their daughter, Jane.  You should examine the names of the children who have enrolled in your school for the upcoming year.  Has the Doe Family moved to your district? If so—take proactive measures. Take them out to dinner. See what they want. Give it to them. Keep them happy.  It may prevent litigation.

The latest example comes to us from Cape Elizabeth, Maine.  The family claimed that the local school district flunked the “Child Find” test.  They argued that their daughter—Jane again—should have been referred for testing for a disability. 

The court sided with the district on this one, holding that the district satisfied its child find obligations.  The student had good grades, very few absences, and no reported discipline problems in school.   However, there were many emotional and behavioral issues at home.  For 9^th and 10^th grades, this did not affect school performance and so no referral was called for. When absences increased in 11^th grade the school initiated a 504 referral which the court found reasonable.

One noteworthy aspect of this case is the court’s appreciation for the fact that “Child Find” is more art than science. Key Quote:

School staff considering a student’s need for either an accommodation or special education services are not charting planetary motion with astronomical instruments, but are instead deciding how best to facilitate educational objectives for a unique child with particular issues in a particular school setting.  In this sense, the child-find factors, in my view, should not be regarded as a clockwork armillary sphere. The standard of reasonableness calls for a measure of leeway to explore whether a school’s referral occurred at an appropriate time.

“Armillary sphere”????  I had to look that one up too.  I found that it is “a model of the celestial globe constructed from rings and hoops representing the equator, the tropics, and other celestial circles, and able to revolve on its axis.”

You know: sorta like your Child Find procedures.

The case is Doe v. Cape Elizabeth School Department, decided by the federal court in Maine on April 29, 2019. We found it at 74 IDELR 95.

DAWG BONE:  THE DOE FAMILY MAY BE HEADED YOUR WAY.  TAKE PRECAUTIONARY MEASURES.

More Dawg Bones next week!

SB 2293 is the major piece of legislation affecting charter schools this year. 

NOT A POLITICAL SUBDIVISION.  It specifies that an OECS (Open Enrollment Charter School) operated by a tax exempt entity is not a political subdivision, a local government or a local governmental entity unless the applicable statute is made applicable to charters by the statute or by a provision in Chapter 12 of the Education Code. 

COMMON APPLICATION FORM.  The Commissioner will create a common admission application form which must be used by all charters. However, those charters that specialize in a performing art may require an audition as well. This is not in effect until the 2020-21 school year. The form must be adopted by the Commissioner by January 1, 2020.

ABOUT THOSE WAITING LISTS…. The Commissioner will develop guidelines for waiting lists for charters that have more eligible applicants than available positions. Goes into effect with the 2020-21 school year, but the guidelines must be adopted by January 1, 2020.

REPORTING TO TEA.  By the last Friday of October, the charter must report to the Agency for each campus 1) the number of students enrolled; 2) the school’s capacity; 3) if the charter uses a waiting list, the total number of students on it, and the numbers disaggregated by grade.  The charter must also report the same information aggregated for all campuses operating under the charter.

The charter must also provide information required by the Commissioner so as to identify each student admitted to or on a waiting list who is or was previously enrolled in a public school.

CORPORATE AFFILIATES. The Commissioner will identify each group of charter holders the Commissioner considers to be corporate affiliates or substantially related charter holders, and will aggregate the information for each group of charter holders.  Not later than March 15, the Commissioner will post this information on the TEA website.

All of this reporting goes into effect with the 2020-21 school year.

COLLECTIVE BARGAINING?  Our laws that prohibit collective bargaining and strikes by public employees apply to charters.  However, any collective bargaining agreement entered into prior to the effective date of this act remains in effect. But it cannot be renewed.

DAWG BONE: WE LOOK FORWARD TO INFORMATION ABOUT THAT WAITING LIST.

Tomorrow: Has the Doe family moved into your district?

Sally Superintendent has a dilemma.  Mr. Robinson just retired after a lengthy and distinguished career as a teacher.  There was only one fly in this ointment. Last year a student made an allegation that Mr. Robinson had touched him inappropriately.  The matter was thoroughly investigated and the superintendent had concluded that there was nothing to it.  But now the teacher is resigning and there remains some evidence in the record (testimony of the student) of previous wrongdoing.  Does Sally need to report this to SBEC?

Last year she probably would have made that report, prefacing it with “I am making this report in an abundance of caution.”  She would then explain the situation—that there was “evidence” but that it had been discredited through a thorough investigation.

This year Sally will not have to make that report.  Pursuant to SB 1476, schools will no longer be required to report to SBEC about educators who were accused of inappropriate conduct with a student if the superintendent or director 1) completed an investigation of the matter before termination or resignation of the employee; and 2) determined that the educator did not engage in the alleged misconduct.

Breathe easy, Sally, and enjoy your retirement, Mr. Robinson!

DAWG BONE:  COURSE CORRECTION FOR OUR REPORTING DUTIES.

Tomorrow: A major new law for charters.

The Toolbox is our firm’s full day training program about the discipline of students with disabilities.  In the training we discuss ten “tools” that are available to help the school fulfill its mission. That mission is to serve every student appropriately, while maintaining a safe and orderly campus. 

Several of the tools can only be operated by the ARDC.  We have three tools that involve a change of placement, and that’s something that can only be done by the ARDC. The most important tool in the Toolbox is Tool #1—the creation of a BIP. That’s also something that the ARDC does. So the ARDC plays a crucial role. 

That’s why the Toolbox includes Tool #9: Leadership at the ARDC Meeting, particularly the so called “Hard ARD.”   When we have difficult decisions to make, and particularly when the parents oppose the school’s course of action, the ARDC needs to have good leadership from the principal or her trusted administrative designee.  Here are five things to keep in mind about that leadership role. 

 1. It’s an all year thing.  The principal cannot be the leader we need unless the principal is that leader all year long. 

2. A strong leader builds a climate of trust among the staff, so that teachers, aides and other service providers will be comfortable telling hard truths, if that’s what’s needed.

3. The leader needs to remember that in special ed, leadership is much more about listening than dictating.  The principal is not the quarterback, dictating the play for the rest of the team.

4. The leader should take the primary responsibility for good communication with the parent at the meeting. Body language matters.  Seating arrangements matter. Staying for the whole meeting, and staying engaged matters.

5. The principal needs to be willing and skilled at bringing a meeting to closure when it is not in consensus.

We are about to launch a new school year. Hard ARDs lie ahead.  Let me know if you are interested in a Toolbox training in your district or at your local ESC.

DAWG BONE: TOOL #9: LEADERSHIP AT THE HARD ARD.

Tomorrow: Have you ever used the expression “in an abundance of caution”?

The big news this legislative session was HB 3 and its radical rework of school finance. But that lengthy piece of legislation also addressed educator misconduct.  Here are four highlights:

1. It requires TEA to create a “do not hire” registry available through an Internet portal.  People on the registry will not be eligible for employment with a school district, an ESC, an SSA, a DOI or any kind of charter school.  If they are already working for such an entity, they must be discharged.

2.  There are three categories of employees who will be listed on the registry: 1) a person not eligible for educator certification due to a criminal record or criminal history; 2) a person whose certification or permit has been revoked by SBEC based on certain types of misconduct; and 3) a person determined by the Commissioner to have engaged in certain types of misconduct.

3.  Private schools will have access to the registry also.

4.  Schools will now be required to make a report to TEA about a non-certified employee who is terminated or resigned when there is evidence of certain types of misconduct—the same standard as applies to certified employees.  The timelines and standards for these reports are the same as those that were imposed for certified employees under SB 7 from the 2017 session. The only difference is that certified employees get reported to SBEC and non-certified employees get reported to TEA.   HB 3 includes due process protections for the accused employee. They will be given notice of the allegations and will have an opportunity to have a hearing.

DAWG BONE: LET’S HOPE THIS WORKS! 

Tomorrow: Toolbox Tuesday!!

Texas is a long way from Colorado.  Geographically this may not be true, but as far as tolerance for certain controlled substances, it is.  We are a long way from legalizing recreational pot.   However, we are delicately tiptoeing into the controversy. 

Prior to this session, our Legislature had already approved of Low-THC cannabis for people diagnosed with epilepsy.  When cannabis is “low THC” it is not capable of taking you to the happy place.  But it may have some medicinal value, thus the term “medical marijuana.”  This session, the Lege has passed HB 3703, which adds seven additional conditions that could qualify for a prescription.  They are: seizure disorder, MS, spasticity, ALS, autism, terminal cancer, or an incurable neurogenerative disease. 

There are strict limits on the qualifications doctors must satisfy before they can prescribe this stuff.

We have many students, and some employees, with autism and/or a diagnosed seizure disorder. So it will not be surprising to hear that some of them have obtained a proper prescription.  You can expect this to show up at the school at some point. 

DAWG BONE: WHAT WOULD YOUR MOTHER THINK?  WHAT DOES YOUR MOTHER THINK?

The Dawg barks again next week.

In addressing school safety this year the Legislature went with the “both/and” approach rather than “either/or.”  There were those who emphasized hardening our school facilities, providing a stronger law enforcement presence, adding more school marshals, and other such efforts. Others advocated an emphasis on mental health—addressing causes and conditions through prevention.  Fortunately, the Legislature did both. 

HB 18 is the major mental health bill.  Here are the highlights.

*Requires changes to the district improvement plan to address best practices on grief-informed and trauma-informed care; a comprehensive school counseling program; and an expansion of information about financial aid and college admission to elementary students and their parents.  We already required that information for parents of middle and high school students.

*Requires that teacher certification programs must include strategies for teaching and intervening with students with mental health conditions or substance abuse.  The law consistently lists substance abuse as a condition separate from a mental health condition, but equally significant.

*Requires that continuing education for teachers, principals and counselors must address serving students with mental health conditions or substance abuse. Staff development provided by schools may include these topics along with how grief and trauma affect student learning and behavior.

*Requires that TEA must maintain a website that provides resources for working with students who engage in substance abuse.  The law previously referred only to “mental health conditions.” This bill adds substance abuse as a separate category.

*The health curriculum must address mental health, substance abuse, managing emotions, maintaining positive relationships and responsible decision making. The TEKS must address the science, risk factors, causes, etc. of substance abuse. 

*Duties of the SHAC are spelled out (School Health Advisory Commission).

*Requires a school’s handbook and the district’s website to include a statement of the policies and procedures that promote physical and mental health of students, the resources available at each campus, contact information, and for each campus a statement of whether the campus has a full time nurse or full time counselor.

*Authorizes schools to employ or contract with a psychologist who is designated as a health-service provider, an RN with a master’s or doctorate in psychiatric nursing, a licensed clinical social worker, a professional counselor or a marriage and family therapist.  Such people are authorized to recommend that a child be evaluated by a physician or non-physician mental health professional

*Requires TEA to make available to schools coordinated health programs re: physical and mental health and substance abuse.

*Makes it clear that school boards can establish a school-based health center on a campus without a recommendation from a Health Education and Health Care Advisory Council.  OECS may do so also.  Such centers may provide services for physical and dental health, along with treatment for mental health conditions and substance abuse. 

*Authorizes charters to establish a Health Education and Health Care Advisory Council.  Traditional schools were already authorized.  The membership of these Councils is spelled out in the statute and will now require school counselors.

*Requires TEA to work with the Health and Human Services Commission to develop guidelines for schools to partner with local mental health and other service providers. 

*Requires school procedures to address how support will be provided to a student returning to school following hospitalization or residential treatment for a mental health condition or substance abuse, as well as suicide “prevention, intervention and postvention.”

That’s a lot!  It may take years before we can see an appreciable improvement in student mental health as a result of all of this emphasis and training, but HB 18 has set us on that path.  Let’s hope we make swift progress. 

DAWG BONE: TEXAS GETS SERIOUS ABOUT ADDRESSING STUDENT MENTAL HEALTH.

Tomorrow:  Interested in medical marijuana????

There were a couple of bills passed by the legislature this year that restrict how administrators document and evaluate teachers.  We told you about SB 1451 on July 24^th. That one prohibits low appraisal scores for a teacher based solely on office referrals. In a similar vein, HB 4310 tells us that schools may not penalize a teacher who does not follow the recommended scope and sequence for a course if the teacher determines that students need more or less time in a specific area. However, the school may take appropriate action regarding the teacher for deviating from the S&S based on documented evidence of a deficiency in classroom instruction obtained through observation or substantiated and documented third-party information.

These two bills come from a similar mindset—that we should not second guess teachers about how to teach and how to maintain classroom discipline.  Both bills draw a distinction between inferring vs. observing.  Inferring your way to a conclusion about a teacher’s performance is dangerous.  But observing the teacher in the classroom provides a more solid foundation for your conclusion. 

An example: Principal Jones notices that Teacher Smith sends more kids to the office than anyone else. But Jones has not personally observed Teacher Smith.  Instead, Principal Jones uses the office referrals to infer that Teacher Smith is weak in classroom management. 

Principal Jones is on shaky ground.  Until there is classroom observation to support the appraisal rating, there can be no deficiency based solely on an inference.  The same goes for that teacher who deviates from scope and sequence. The wise principal will investigate that situation and talk to the teacher about why this is happening.  HB 4310 tells us to let the teacher decide how strictly scope and sequence must be followed…at least until the administrator observes in the classroom.

DAWG BONE: DON’T INFER.  OBSERVE.  AND WHILE YOU’RE AT IT, LET’S NOT CONFUSE “INFER” WITH “IMPLY.”

Tomorrow: our new mental health bill

Toolbox Tuesday is all about the ten tools that we present in a full day training program dealing with the management and discipline of students with disabilities.  One of those tools, in fact the most important one, is Tool #1—a BIP.  When we talk about BIPs, we emphasize that a BIP should not restrict the use of physical restraint in an emergency.  State law and regulation restricts the use of restraint, and our new law pertaining to “aversive techniques” needs to be considered as well. But even with all those restrictions in place, there are times when some use of physical restraint is required to prevent greater harm.

But how do you respond to the parent of a student whose disabilities may be the direct cause of their loss of control?  You can understand the parents’ desire that schools not use physical restraint with their child.  But you are responsible for safety, and sometimes there is no alternative.  Can you use physical restraint on a student with an emotional disturbance when the disability is the direct cause of the student’s violent behavior? 

This came up in a recent federal court case from Kansas.  The court ruled in favor of the school district in a case where the parent alleged that the district used restraint to deal with behavior that was a manifestation of disability.  The parent argued that this amounted to disability discrimination in violation of Section 504 and the ADA.  The court refuted that argument, citing 10^th Circuit precedent that permits certain types of “regulation” of conduct even when the behavior is a manifestation of disability:

Even though E.C. alleges that all of his actions were “manifestations of his disability,” the 10^th Circuit has specifically held that “a student’s conduct may be regulated,” even if it is a “manifestation of his disability.” 

This is a fundamental point that is often overlooked.  The manifestation process is required only when the school proposes a disciplinary removal that amounts to a change of placement.  Other forms of regulation of conduct, such as restraint, are permitted even when behavior is a manifestation.

The case is E.C. v. USD 385 Andover. We found it at 74 IDELR 94 (D.C. Kan. 2019).

DAWG BONE: RESTRAINT IS NEVER THE FAVORED OPTION, BUT IT HAS TO BE AN OPTION.

Tomorrow: That teacher who deviates from scope and sequence.