Special education litigation is often decided based on the “weight” of the evidence.  Often the court is faced with evaluations from qualified professionals that reach different conclusions. What’s true for hearing officers and courts is equally true for ARD Committees. When faced with disagreements between qualified professionals, the ARD has to weigh the evaluation data. This requires an exploration of the foundation of each report. 

Here's a good example.  A private psychologist found that the student had an SLD and required special education, while the school’s FIIE showed that she did not.  The hearing officer noted that both evaluations were done by qualified professionals.  Which one had a stronger foundation?   Here is how the court compared the private psychological with the school’s:

In addition to reviewing Brooklyn’s records and input from Brooklyn’s parents, the [school psychologist] obtained input from Brooklyn’s third and fourth-grade teachers; observed Brooklyn in her virtual classroom on two occasions; and conducted cognitive and achievement testing.  In contrast, the [private psychologist] based her conclusions on one interview with Brooklyn, one interview with the Parent, a parent input form, and a review of Brooklyn’s academic records.  Moreover, the [private psychologist’s] report gives very little attention to the potential impact of the COVID-19 pandemic and the death of Brooklyn’s grandfather on her social and emotional well-being, whereas the [school psychologist] more extensively took those factors into account.

Furthermore, the testimony of two experienced teachers tipped the scales.  Key Quote:

Even if the conclusions and testimony of the two psychologists are given equal weight, the Hearing Officer correctly found that the testimony from Brooklyn’s teachers tips the scales in favor of the district.

Between them the two teachers had 35 years of experience in special education and both had taught the child for a full year. They both testified that she was making academic progress and did not demonstrate a need for special education. It’s Brooklyn S.M. v. Upper Darby School District, decided by the federal court for the Eastern District of Pennsylvania on March 3, 2023.  It’s cited as 82 IDELR 197.

DAWG BONE: 35 YEARS OF EXPERIENCE AND FIRSTHAND EXPERIENCE WITH THE STUDENT IN THE CLASSROOM: THAT’S WEIGHTY TESTIMONY.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!

Yesterday we Dawged the case of the Softball Dad with an Exponential Amount of Opinions.  He was barred from attending games for one week, and sued over it.  His constitutional claims were dismissed as yesterday’s Daily Dawg explained.  But he also alleged a breach of contract.

It seems the Softball Dad paid $175 for preferred seating at the softball games, $150 for a “players’ fee” and $50 to get out of his turn at the concession stand.  This totals $375 for the entire season, and he was only suspended for a week. How many games would that be? One?  Two?  In any event, the amount in controversy here was pretty small.

So it’s not surprising that the federal judge tossed it out. Having already dismissed the claims arising under federal law, the judge also dismissed the breach of contract suit, noting that the Dad could pursue that claim in state court.

It’s McElhaney v. Williams, decided by the federal court for the Middle District of Tennessee and cited at 627 F.Supp3d 911.

DAWG BONE: IS THAT A TYPICAL PRICE FOR A SEASON OF HIGH SCHOOL SOFTBALL?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Coach Williams provided a “Parent-player information” sheet to the parents of the girls on the softball team. It included much encouragement to “be positive” and “supportive” and admonished parents that “playing time is a non-negotiable for coaches to talk directly to parents about.”  

Here are a few of the things that one of the softball dads included in his mid-season email to the coach:

”You need to look at the books and find out which kid has made the least amount of errors on the team.”

”[another player] has made two errors already at 2^nd base and you had to get onto her during the Dekalb County game and she does not cover bases at all. She has no idea what she is doing…..So you are benching an upper classman [Plaintiff’s daughter] to put her there. That is not understandable at all.”

Coach responds:

“It seems from the comments I have heard that have came from you outside the park that you are extremely displeased with how we are running the program and have an exponential amount of opinions on how we should be running it…crazy we have to have that conversation at 6-0 in the district but everyone is entitled to their own opinion.”

After this spirited exchange the principal suspended the dad from attending games for one week, hoping that this would “put some time and space between him and Coach Williams.” 

It didn’t. Dad, soon to be known as “the Plaintiff,” showed up at the next game and had to be escorted out by the School Resource Officer.  Dad then sued everyone above a foot tall, alleging violations of the First Amendment (Free Speech), the 14^th Amendment (Due Process) and a breach of contract.

The claims against the coach, principal, SRO, A.D. and another school official were dismissed based on qualified immunity.  The court held that the First Amendment right to have an unfettered right to attend games after ripping into the coach was unclear.  When the law is not “clearly established” the individual administrators cannot be held liable. Qualified immunity is what it’s called. 

The claims of a Due Process violation were also dismissed, but this time because the law on this is “clearly established.”  Citing an earlier ruling, the court noted that “to this Court’s knowledge, every court that has considered the issue has concluded that citizens, including parents, do not have a liberty or property interest in accessing school property.” 

That took care of the constitutional claims, but there remained that breach of contract claim. Tune in tomorrow for that.  It’s McElhaney v. Williams, decided by the federal court for the Middle District of Tennessee and cited at 627 F.Supp3d 911.  It’s on appeal to the 6^th  Circuit.

DAWG BONE: WHAT EXACTLY IS AN “EXPONENTIAL AMOUNT OF OPINIONS”?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: the contract for season tickets….

Our law firm is providing a webinar next week focused on the legal issues surrounding services to students with dyslexia. As Loyal Daily Dawg Readers are well aware, there have been a lot of changes in this area.  We’re delighted to offer you an on-demand webinar. Here are the particulars:

TOPIC: DYSLEXIA and HB 3928

PRESENTERS: JAN WATSON and LINDY FRENCH      

DATE: September 13, 2023

TIME:  10:00 a.m.

Jan and Lindy will be discussing the changes wrought by our new state law and the practical implications for screening, referral, identification, evaluation and service.  I’m delighted that Jan Watson can be a part of this, as she brings her experience as an educational diagnostician to the table along with her law degree and years of working with school districts. 

Sign up at www.walshgallegos.com. 

DAWG BONE: DYSLEXIA WEBINAR. SIGN UP NOW.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: did the coach go too far?

What would you do in light of this track record?  The 15-year old student had 52 disciplinary referrals over eight years in the school system. He’s a general education student, but he was  served in a “behavioral program” while in elementary and middle school.  Just last week he was suspended for a week for drug use, and in the first quarter of the school year he has three F’s and a D. 

Then there was the riot.  This involved 50 or more students with 10-15 school personnel trying to break it up. The student was arrested and then expelled. After the mother was informed of the expulsion hearing she obtained legal assistance from a “student advocacy group.” That’s when she, for the first time, requested a special education evaluation. 

How do you think this is going to come out? 

Our special education laws say that there are some students who are entitled to the legal protections of IDEA even though they have not been determined to be eligible for special ed.  It’s covered by a specific regulation, 34 CFR 300.534, that spells out three categories of kids that are entitled to IDEA legal protections.   

I’ve always referred to cases like this one as a “shouldaknown” case.  That’s because the issue boils down to if the school should have referred the student for an evaluation.  But I may need to re-think that terminology. This case points out that all three categories require that someone say something about a possible disability.  Poor behavior, even to this extent, is not enough. The three categories are:

1.  “The parent…expressed concern in writing” to a supervisor or “a teacher of the child, that the child is in need of special education and related services;
2. “The parent…requested an evaluation of the child” as per the federal regulations; or
3. “The teacher of the child, or other personnel of the LEA, expressed specific concerns about a pattern of behavior…directly to the director of special education…or other supervisory personnel.”  (Emphasis added).

Moreover, these expressions of concern must come before the incident that led to disciplinary action. 

The court held that the district was not required to evaluate the student prior to his expulsion, and in doing so, specifically rejected the “shouldaknown” standard: 

It may be tempting to conclude that the school district should have suspected that a disability might be causing such a bad behavioral record.  But such a “should have known” test does not exist, and would be contrary to the governing law.  If [the] mother could not prove that she ever asked for a disability evaluation or an exceptional student education plan, and not a single trained educator or school counselor over the years expressed any concern that a disability was causing [the student’s] behavior, the school board cannot be expected to leap to that conclusion on its own.

One more point is worth keeping in mind.  Not all judges would have ruled for the school on these facts.  Some would have concluded that even if 34 CFR 300.534 did not apply, the more general notion of Child Find did. 

It’s D.N. v. School Board of Bay County, Florida, decided by the Florida Court of Appeals for the 1^st District on May 31, 2023. The case is reported at 83 IDELR 86.

DAWG BONE:  “SHOULDAKNOWN” CASES ARE GOOD REASONS TO CALL YOUR LAWYER.  TREAD CAREFULLY.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow:   A webinar you don’t want to miss….

Forty years ago today I filed Articles of Incorporation to establish a new corporation: Doyal, Hairston, and Walsh, P.C.  Being low man on the letterhead I was the one who had to trudge through the heat to the Secretary of State’s office to get the new corporation on the books officially. And here we are now four decades later with a different name but the same mission: helping the people who help the kids by providing our public schools with high quality legal services.

We created a video to honor the occasion.  Hope you enjoy: 

Watch it here:

DAWG BONE: I’VE WORKED HERE 40 YEARS.  THAT GOES ON THE SHEESH-O-METER.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

In a recent case from the 9^th Circuit a former track athlete at the University of Arizona named two coaches as defendants.  As the Daily Dawg reported yesterday, the crux of the matter is the harassment the Plaintiff suffered from other track team members because they thought he was gay.  He alleges continual harassment for over a year and a failure to respond by the coaches. 

The University might face liability for this under Title IX, but not the coaches.  The court noted that “courts have consistently held that Title IX does not subject school officials to liability in their individual capacity.”  So the suit against the coaches was not based on Title IX, but rather, a failure to provide due process before the Plaintiff was kicked off the track team and lost his scholarship.

Does the Due Process clause of the constitution apply when a student is removed from an athletic team?  Loyal  Daily Dawg Readers know the answer to that question as it applies to public schools.  No, the Due Process clause does not apply.  Participation in extracurricular activities is a privilege and not a right.  Process is Due only when a “right” is being taken away. 

But the Plaintiff in this case had a college scholarship that was taken away from him.  That’s real money.  Not to mention the loss of potential revenue from NIL deals.  Isn’t that a “property right” that would require due process before it is taken away? 

The court did not directly decide that issue. Instead, it fell back on: “it’s not clearly established.”  Individual liability can be imposed under federal law only if the person violated legal standards that are “clearly established.”  According to the 9^th Circuit, a property right in an athletic scholarship was not something that was “clearly established” at the time the coaches booted the Plaintiff from the team.

I think they got lucky. The Plaintiff’s lawyers found a case from the 2^nd Circuit that they thought would help.  It flatly held that an athletic scholarship created a “property right” that was entitled to constitutional protection.  But the 9^th Circuit pointed out that the 2^nd Circuit case was decided in November, 2022, whereas the coach kicked this kid off the team in 2018.  So the coaches couldn’t have known about it. The law was not “clearly established” on this point. Therefore, the coaches have “qualified immunity.” Case over.

It’s Grabowski v. Arizona Board of Regents, decided by the 9^th Circuit on June 13, 2023. It’s cited at 69 F.4^th 1110.

DAWG BONE: THE PROBLEM WITH “CLEARLY ESTABLISHED” IS THAT ITS MEANING IS NOT CLEARLY ESTABLISHED.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: A significant anniversary….

Michael Grabowski, aka “the Plaintiff,” alleges that he is not gay, but the other members of the track team at the University of Arizona thought he was, and hassled him over it for over a year. The plaintiff alleged that he and his parents repeatedly reported this to track coaches who did nothing about it and ultimately kicked the plaintiff off the team and off scholarship because, according to one of the coaches, “there’s a certain atmosphere we are trying to establish on this team, and you do not fit in it.”

Is he the victim of discrimination “based on sex”?  The 9^th Circuit says that he is. 

Let’s rewind a bit.  In 2020 the Supreme Court held that Title VII prohibits discrimination based on sexual orientation or transgender status (Bostock v. Clayton County).  The Court was careful to point out that its ruling only applied to Title VII claims, which are about employment.  Does the same standard apply to Title IX claims, which would mean it extends to students?  In Bostock the Court chose not to tell us. 

In the Grabowski case the 9^th Circuit weighs in, holding that 1) Bostock applies to Title IX claims; and 2) discrimination based on the perception of a person’s sexual orientation is the same as discrimination based on their actual sexual orientation.  Therefore, the court held that the Plaintiff had alleged facts that, if true, would amount to retaliation in response to his good faith reports of sex-based harassment.  That would be a Title IX violation for which the University could be liable.

So to be clear: the holding here is that Title IX prohibits discrimination that is based on sex, based on sexual orientation, or based on the perception of sexual orientation. 

The other issue presented in this case involves the potential liability of the coaches who were at the heart of this complaint.  Tune in tomorrow for that.

It’s Grabowski v. Arizona Board of Regents, decided by the 9^th Circuit on June 13, 2023. It’s cited at 69 F.4^th 1110.

DAWG BONE: 5^th CIRCUIT HAS YET TO WEIGH IN ON THIS.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Will the coaches be liable?

Today we look at a Tool #6 case from California.  Tool #6 in the Walsh Gallegos Toolbox is a Disciplinary Change of Placement.  It involves removing the student from the placement called for by the IEP for more than ten consecutive days. Since it is a disciplinary removal, an MDR (Manifestation Determination Review) is needed.

C.D. (a/k/a “the Plaintiff”) was 16-years old and in the 9^th grade.  The court’s opinion tells us that C.D. had a number of mental health conditions that affected his behavior.  He had difficulty managing his frustration or anger, along with communication difficulties, learning deficits and ADHD. 

The starting point for a Tool #6 case is a violation of the Code of Conduct.  C.D. did several things  on May 3, 2022 that violated the Code. First, he refused to return to the campus after lunch.  Instead, he was hanging out at a nearby construction site, watching the workers.  Second, he refused to comply with directives to return to school from two teachers, an aide, the nurse, and the principal. His refusal was accompanied by vulgar insults such as “F you” to the teacher and “F off” to the principal.  Third, he took a pen out of his teacher’s back pocket and patted her buttocks. Finally, as he walked back to the campus and entered the office he twice shoved his teacher into the wall. 

The principal ordered a suspension, recommended an expulsion, and called for an IEP Team Meeting to conduct an MDR.  That’s exactly what Tool #6 requires.  The Team determined that C.D.’s behavior was not caused by his disability. Nor was it the result of any failure by the district to implement his IEP, including his BIP. 

The parent took the matter to a hearing and produced two witnesses. The hearing officer found Dr. Randall Ball’s testimony “speculative and unreliable.”  The hearing officer noted that Dr. Ball  muddied up his opinion with qualifiers like “probably” “may” and “likely.”  He never saw the scene of the incident, never questioned the student or his parents, never observed the student at the school and “had no personal knowledge” of the student’s functioning prior to this incident. 

The other witness was the mother, who testified that she could not think of a single inappropriate behavior of her son that was not caused by his disability. The hearing officer discounted this view, noting that the mom “lacked objectivity and reliability.”  

The witnesses from the school were united in their view that C.D. had time to think about his behavior before he shoved the teacher into the wall. The court cited in particular the testimony from the school psychologist and the speech therapist, both of whom agreed with the conclusions of the IEP Team. 

The hearing officer conducted a seven-day hearing and ruled in favor of the school. The federal court affirmed that decision, largely based on the deference that courts give to hearing officers who have the benefit of eyeballing the witnesses and hearing it live.  The court held that the hearing officer listened to all of the testimony, but gave more weight to the input from the educators who were on the scene when all this happened, and had considerable personal experience with the student.

The student was not really “expelled.”  Expulsion, as that term is historically used, is not available with Tool #6 or any other tool in the Toolbox.  Schools retain the duty to serve students, even after a serious violation of the Code of Conduct. The case does not make clear how this district served C.D., but simply noted that he was “out of placement” for 22 days. That’s a Disciplinary Change of Placement.

It's C.D. v. Atascadero USD, decided by the federal court for the Central District of California on June 5, 2023.  It’s cited as 83 IDELR 80.

DAWG BONE:  THE MDR REQUIRES CAREFUL REVIEW OF THE FACTS AND THE EVALUATION DATA PERTAINING TO THE STUDENT.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.  Tomorrow:  I’m not gay….they just think I am

As we swelter through the final days of August, think of what is on the horizon. First and most importantly we will (hopefully) see the high temperature drop below 100.  Second, football will be in full swing. Third, it looks like we will have an exciting pennant race between our two big league clubs—Rangers and Astros.  And Ken Paxton!

I expect all governmental activity to grind to a halt as the Senate conducts a trial to consider the impeachment of our Attorney General.  In fact, I think the Governor should declare a statewide holiday for everyone. I mean, really….who’s going to work while this is going on? 

Not me.

Consider: we have the Republican-controlled Senate considering removing from office the three-time elected Republican AG after he was impeached by the Republican-controlled House of Representatives. The Honorable Dan Patrick presiding.  Testimony from whistleblowers about shady financial dealings.  Allegations of the AG covering up some extra-marital hanky panky. And his wife in the Senate Chamber.  Yikes!  Then you have the lawyers. On both sides they are known to be 1) really good; and 2) colorful to the point of flamboyance.  And it’s going to be televised.  Bring the popcorn!!

Word on the street is that the special session to deal with public education will be called after the Paxton trial.  That makes sense. No one will be able to concentrate on any other matter of public business until we get this behind us.  So we sit back and watch. 

But I hope that educators will recognize the reality that the hard feelings this explosive trial is sure to produce will carry over into the special session. The dominant political party in our state is badly split and the trial will likely bring much of that into public view.   Meanwhile, educators who desperately need legislative support will be working to cultivate members who vote both for and against Ken Paxton’s removal. 

The message is simple: public education is more important than any of this. It’s more important than who gets to serve as our Attorney General. It should not be an issue that divides us on political grounds. All of us want and need a strong public education system.  The future of Texas depends on it. Teachers need a pay raise. The safety measures the legislature adopted in the regular session need to be fully funded.  And we don’t need to be siphoning off precious resources to private schools. 

The special session will be held at a time when superintendents, principals, and teachers are otherwise occupied, performing their day jobs to keep our schools running.  It’s a good thing that we have some organizations that can make their presence known at the Capitol, advocating for the five million public school children we serve.  They need your help and support. This historic impeachment trial will put on public display the fractures among our state leaders.  Let’s not let that distract us from our mission—getting the support our teachers, parents, and students deserve.

DAWG BONE: ANYONE KNOW WHAT THE LINE IN VEGAS IS ON THE PAXTON TRIAL?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!