As a result of T.E.A.’s explanation of the new dyslexia landscape after HB 3928 we get a new initialism!  PDI: Provider of Dyslexia Instruction. 

No doubt you will want to work this into some of your reports.  I already saw one that read like this:

The student was on a 504 until HB 3928 and the FAQs from TEA after which we came to understand that all EBDPs, including SPDI are actually SDI as defined in IDEA.  So we held a 504, gave out the NPS and the new TEA form, did a REED and recommended an FIIE. Now we are looking for an LDT, LDP, CALT or CALP to be a PDI!  How else can we implement the IEP in the LRE and provide FAPE?

I think the function of a PDI is pretty obvious from the title.  The key to being a PDI is training:

This person must be fully trained in the LEA’s adopted instructional materials for students with dyslexia…This means that a PDI must be fully trained in the LEA’s evidence-based dyslexia program and able to use individualized, intensive, multisensory, phonetic methods, and a variety of writing and spelling components described in the Dyslexia Handbook.

There is no required certification or licensure for PDI status, but the FAQ encourages schools to seek out LDTs (Licensed Dyslexia Therapists), LDPs (Licensed Dyslexia Practitioners), CALTs  (Certified Academic Language Therapists), CALPs ((Certified Academic Language Practitioners), or “those with structured literacy certifications.”

They don’t have to have special ed certification “unless the LEA employs the PDI in a position that requires the certification.”   This is going to require a little clarification.  The new law makes it clear that any form of “dyslexia instruction” is a form of “special ed.”  We all know that special ed can only be provided by teachers certified in special ed. So how can the PDI not be providing special ed?  Further clarification on this point would be helpful.

Can it be a paraprofessional?  No:

Because paraprofessionals must work under the supervision of teachers, a paraprofessional cannot be the person providing instruction to students in the evidence-based dyslexia program.

I expect that PDIs will be serving on many ARD Committees as well as the Multidisciplinary Team that evaluates a student for dyslexia.  The new law requires that someone “with specific knowledge in the reading process, dyslexia and related disorders, and dyslexia instruction must serve” on the Team and the Committee if dyslexia is under consideration. However, they don’t have to be at every ARD meeting. The requirement regarding ARDs only applies when the ARD is considering initial eligibility or “a change in and /or continued eligibility…as in a re-evaluation.”

Editorial comment: good for Texas.  Good for T.E.A.  This has been a long time coming.  We’ve been whomped up the side of the head by the Department of Education for a long time based on how we serve students with dyslexia. IDEA offers better services to students than a 504 plan does, along with better legal protection for parents, and a little bit of federal money to help.  These changes in procedure should result in fewer Child Find violations.  But change is difficult and will require training of staff and lots of information to parents. Let us know if we at Walsh Gallegos can help you with any of that.

DAWG BONE: ONWARD THROUGH THE FOG…..

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

The FAQs published by T.E.A. on August 3^rd addressing HB 3928 are a must-read for Special Ed Types.  Yesterday, we talked about the Big News—the elimination of 504 as a way of providing instructional services to address dyslexia.  Today, we focus on how to make the transition with the many students who are currently on a 504 plan. 

It’s directly addressed in Q7 in the FAQs. 

Q7:  What about students who currently receive evidence-based dyslexia programs through an accommodation plan under Section 504?

We can summarize the response in four points.

First, schools cannot unilaterally move students from 504 to IDEA. So we don’t want to see any directives from Central Office declaring that “all students who have dyslexia and are on a 504 plan are hereby moved into an IEP under IDEA.” Nope. That won’t do.   Nor can the school order that 504 services will cease until the kids get properly moved into IDEA-Land. This is a transition that will take some thought, planning, and time.  And meetings. That’s our second point.

Second, we need to have a 504 meeting for each student who is currently receiving “evidence-based dyslexia” services through a 504 plan.  The FAQ instructs us to have these meetings ASAP, but then gives a very generous definition of ASAP:

…TEA anticipates that each LEA should hold a Section 504 meeting as soon as possible but no later than the end of the 2024-25 school year to determine whether the student continues to require an evidence-based dyslexia program. 

Third, if the result of that meeting is that the student continues to need an “evidence-based dyslexia program” the district must refer the student for an FIIE.  If the parent refuses to consent to that “the LEA has the option of using due process and/or mediation to seek consent to evaluate.”

Fourth, the FAQ offers suggestions on how to prioritize. Top priority goes to those students “the LEA initially declined to evaluate under IDEA, as well as those students who are not progressing appropriately…”

To emphasize the difference between 504 and IDEA services T.E.A. will be publishing a form “explaining the rights under IDEA that may be additional to those under Section 504.”  Schools are required to give parents a copy of this form as well as the standard-issue Notice of Procedural Safeguards when a referral is made based on concerns over dyslexia.  That’s two forms that will need to be given to parents when dyslexia is in play as opposed to the one form that we use with all other suspected disabilities.  The new form “will be available soon.”  We can call it “The IDEA is Better Than 504” form. 

Tomorrow we’ll take a look at a few other specifics of the new law as outlined in the FAQs. 

DAWG BONE:  THOUGHTFUL PLANNING AND MANY MEETINGS. 

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

Tomorrow: HB 3928 continued….

I’m going to spend the rest of this week discussing the major changes in how we will be serving students with dyslexia.  T.E.A. has issued a thorough and straightforward set of FAQs (August 3) that will form the basis for the Daily Dawg today, tomorrow and Friday. 

For today, the Big News: IDEA is the only game in town for kids who need instruction to address their dyslexia.  Texas has moved in this direction incrementally.  Historically, Texas served students with dyslexia mostly through Section 504 programs.  A few years ago T.E.A. made it clear that the evaluation process needed to be one that satisfied IDEA standards. Now the other shoe has dropped. It’s not just the evaluation that has to meet IDEA standards, but also, the day-to-day instruction. 

The new law (HB 3928) directs the State Board to revise the Dyslexia Handbook in a way that “makes no distinction” between “standard protocol dyslexia instruction” and “special ed.”  But T.E.A. is not waiting for those revisions.  The law is in effect now, and T.E.A. is putting schools on notice.  Look at Question 6 in the FAQ:

Q.  Is an evidence-based dyslexia program (also known as SPDI) considered SDI, i.e. a special education service?

A.  Yes, an evidence-based dyslexia program is a special education service.

And this from Question 8:

The provision of an evidence-based dyslexia program is considered SDI, as that term is defined under IDEA. This means that an evidence-based dyslexia program is only available to students who have been identified with dyslexia and are served under IDEA, which prescribes the legal requirements for special education and related services.

Think of it this way: SPDI=Evidence-Based Dyslexia Program=Special Education.

In simple terms, this means that if an ARD Committee determines that the student 1) has dyslexia; and 2) needs the type of instruction we provide through “standard protocol dyslexia instruction” or any other “evidence-based dyslexia program” the student is eligible for special education, and can only receive those services pursuant to an IEP.  A 504 plan will not cut it.

Are there students with dyslexia who do not need instruction to address their needs?  Yes. These students would not be eligible for instructional services to address their dyslexia, but they could have accommodations in the regular classroom.  The FAQ offers some examples of “regular education aids and services” such as “giving extra time for assignments and allowing speech-to-text capabilities when given a writing assignment.”  Then this:

While a Section 504 plan could be appropriate for those needs, the need for an evidence-based dyslexia program crosses over into a special education need.

Notice the difference.  Extra time and speech-to-text translation are 504 accommodations because they are not instruction.  Special ed is about instruction, and any instruction that is designed for students with dyslexia is special ed.

What if a parent balks at these changes?  There are many kids currently served with a 504 plan, and many parents are happy with this arrangement.  This is addressed in Q7:

If the parent of a student receiving this type of instruction under a Section 504 accommodation plan refuses to consent to an FIIE, the LEA has the option of using due process and/or mediation to seek consent to evaluate.

Absent any directives prescribed by the SBOE through its upcoming rule and Handbook revisions, TEA expects that a student will no longer be eligible to receive instruction in an evidence-based dyslexia program through a Section 504 accommodation plan if a parent refuses to consent to an FIIE.

Got dyslexia?  Need instructional services?  IDEA is the only game in town. 

So…where does that leave us with those students on a 504 plan? How quickly do we need to move?  Tune in tomorrow!

DAWG BONE: SPDI=EBDP=SDI.  ONLY GAME IN TOWN.

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

Tomorrow: the transition from 504 to IDEA….

The folks in the Central School District in New York called it a “safety plan” rather than a “stop the bullying plan.”  They developed the plan at a meeting that the parents attended and participated in, but it was not an IEP Team meeting and the safety plan was not incorporated into the student’s IEP.  Later, when the parents placed the child in a private school and sought reimbursement for tuition, the parents alleged that these were fatal errors by the school amounting to a denial of FAPE. 

In New York, cases go to an IHO (Impartial Hearing Officer) and SRO (State Review Officer) before they can go to court.  The court deferred to the findings of the IHO and SRO that the safety plan the district put in place adequately addressed concerns over bullying, it did not have to be developed at an IEP Team meeting or incorporated into an IEP.  There are many ways to address bullying, and the substance matters more than the form. 

As to whether the bullying denied the student FAPE, the court relied on the four-part test set out by the 2^nd Circuit:

1. Was the student a victim of bullying;
2. Did the school have notice of substantial bullying of the student;
3. Was the school deliberately indifferent to the bullying, or did it fail to take reasonable steps to prevent the bullying; and
4. Did the bullying substantially restrict the student’s educational opportunities.

This is not the test for whether bullying occurred. It’s the test for whether bullying denied the student FAPE.  Different issue.  Since the district did address the bullying, there was no denial of FAPE. 

Except for one problem.  The IHO held that the district was late in addressing bullying and on that basis held that the district denied FAPE for a part of the school year. The IHO ordered the district to reimburse the parents for 25% of the tuition they paid that year.

On appeal, the federal court had the good sense to notice that the safety plan was put in place on September 6, which was exactly four days into the school year.  Thus the denial of FAPE lasted four days—not one-quarter of the year.  The federal judge was better at arithmetic than the IHO.  Four days equals 25% of the semester?  Nope. 

It’s the IHO decision demonstrating poor math skills that gets this one on the infamous Sheesh-O-Meter. 

It’s B.D. v. Eldred Central School District, decided by the federal court for the Southern District of New York.  It’s published at 83 IDELR 31.

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

Tomorrow: HB 3928 and the TEA FAQs…

I know.  You already started.  The Dawg is a bit late with this annual celebration, but be that as it may: here’s hoping for a wonderful 2023-24 school year! 

In our firm we have a tradition of sharing “first day” pictures of our kids and grandkids.  Jameson Baker started us off this year on August 7 with his picture of the impossibly cute Brynn, proudly holding the placard that displayed her age (3), height (3’5”) and ambition: “When I grow up I want to be an artist.”  Brynn’s smile has enough wattage to power a small village for several months.  What a good way to start the annual Walsh Gallegos First Day Photo Fest!

It got me to thinking about that common question: “what do you want to be when you grow up?”  If someone asked me before my first day of kindergarten I’m pretty sure my answer would have been “Center Fielder for the Chicago White Sox.” 

How would it work if, when we asked kids that question, we told them to answer with an adjective rather than a noun?  What if we asked them to consider answers like: “happy; kind; loving; compassionate; grateful; friendly.” Or of course the answers might be “rich; good looking; popular.” 

This might be a good question to ask yourself as you start off on Another Lap Around the Track. Visualize June 1, 2024. As you look back on the school year just completed, how do you hope to feel?  How do you expect to feel? 

I’m guessing that “exhausted” and “relieved” would be common answers. But let’s leave room for “grateful” and “satisfied.”

Best of luck for the new school year, Loyal Daily Dawg Readers.  Let’s all remember that the main thing is to keep the main thing the main thing. 

DAWG BONE: NEW SCHOOL YEAR!

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

Tomorrow: Toolbox Tuesday!!

Judge Diane Wood of the 7^th Circuit writes simple and straightforward opinions.  I like the way she sets the stage for her opinion in A.C. v. Metropolitan School District of Martinsville:

Litigation over transgender rights is occurring all over the country, and we assume that at some point the Supreme Court will step in with more guidance than it has furnished so far.  Until then, we stay the course and follow Whitaker.

Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7^th Cir. 2017) is the binding precedent in the 7^th Circuit on transgender students and bathrooms. In it, the court granted an injunction that allowed transgender students to use bathrooms conforming with their gender identity.  By “staying the course” the 7^th Circuit in this recent case simply followed its own precedent.

The court acknowledged the Circuit split on this issue:

The 4^th Circuit has decided that denying gender-affirming bathroom access can violate both Title IX and the Equal Protection Clause, while the 11^th Circuit found no violations based on substantially similar facts.  Compare Grimm v. Gloucester County School Board, 972 F.3d 586 (4^th Cir. 2020), with Adams ex rel. Kasper v. School Board of St. John’s County, 57 F.4^th 791 (11^th Cir. 2022) (en banc). 

Judge Wood’s decision keeps the 7^th Circuit aligned with the 4^th. 

So you must be wondering: where does this leave us?  We have no binding Supreme Court decision, nor do we have one from the 5^th Circuit.  Our Circuit is notably conservative and most scholars would predict that the 5^th would align with the 11^th Circuit on this hot button issue. But that hasn’t happened so far.

What do we do?  Take a deep breath.  Assess each situation on its own merits, and with the goal of providing safe and respectful bathroom access for every student. If litigation is threatened, you know what to do: contact the school attorney who can help you sort out the legal risks.  As for this school attorney, I’m hoping the Supreme Court will take up Judge Wood’s suggestion.

This one is A.C. v. Metropolitan School District of Martinsville, decided by the 7^th Circuit on August 1, 2023.  It’s cited at 2023 WL 4881915.

DAWG BONE: JUDGE DIANE WOOD.  THE DAWG ASKED HER ON A DATE LONG AGO.  MOTION WAS DENIED.

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

WE’RE ZOOMING TODAY!! HOPE YOU CAN JOIN ME AND JAMESON BAKER AT 10:00 FOR A DISCUSSION OF SOME OF THE MORE IMPORTANT NEW LAWS THAT ARE GOING INTO EFFECT. SEE YOU AT 10!

What Happened in Salt Lake City? The district policy was to provide services to students with cognitive disabilities at certain “hub” schools, rather than the neighborhood school.  Two parents and the statewide advocacy organization sued, claiming that the district was not individualizing its placement decisions and that the hub policy deprived students of the right to be served in the neighborhood school.  The school district sought dismissal of the case and challenged the standing of the plaintiffs to bring the case.

What Did the Court Do About Standing?  The court easily concluded that the parents of the students had standing. It was a closer call for the association, but the court held that it also had standing.  The court noted that an association, such as the Disability Law Center, can sue if 1) its members would be able to sue; and 2) the interests it seeks to protect are germane to the purposes of the organization.  DLC passed that test.

What Did the Court Do About the Placement Decision?  Citing 10^th  Circuit precedent, the court ruled that the district’s policy was permissible.   Key Quote:

…if a student’s IEP calls for placement in another school in order to receive specialized services, a school district “is not obligated to fully explore supplementary aids and services before removing a child from a neighborhood school.” 

What Can We Learn?  Contrary to what some believe, there is no “right” to be served in the neighborhood school. Schools can centralize services to meet the needs of low-incidence populations.  But notice how important it is to determine what goes into the IEP before deciding placement. The ARDC should come to consensus on the present levels, the annual goals, the instructional services needed, the related services needed, and the methods of measuring progress. Then and only then is the ARDC ready to determine what is the LRE in which that array of services can be provided.  These students both had IEPs that required a level of services that could not feasibly be provided in the neighborhood school. That’s why the court upheld the placements in the “hub” schools.

It’s Jacobs v. Salt Lake City School District, decided by the federal district court in Utah in 2023 and cited at 83 IDELR 40.

DAWG BONE: AGREE ON THE IEP FIRST. THEN DECIDE PLACEMENT.

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

Tomorrow: the latest transgender case

Last year there was a major decision from the 4^th Circuit that emphasized the high burden schools face in efforts to justify any distinction in a school dress code based on sex.  That was Peltier v. Charter Day School, Inc., which was Daily Dawged on August 29, 2022.  Today, some follow up. 

SCOTUS declined the opportunity to consider the Peltier decision, so it stands as a high level court ruling holding that 1) Title IX applies to your dress code; and 2) any distinction based on sex must be justified by an “exceedingly persuasive case” to the effect that the distinction serves an “important governmental objective.”   The case has now been returned to the district court which will determine if the charter school can satisfy that standard. Or the case might settle.

Meanwhile there is a federal court decision from Colorado that many Texas districts will want to rely on in the event of a challenge. It involved a five-year old boy in the Rocky Mountain Classical Academy charter school. The court described the little guy as “simply a boy who wants to wear earrings at school as a matter of personal preference.”  The school tolerated this for several months, while repeatedly warning the parents that boys were not allowed to wear earrings at school.

Tolerance ended in December when the school first suspended and then “disenrolled” the student. That’s when he became John Doe: Plaintiff, alleging that the dress code violated Title IX and the Equal Protection Clause. 

Nope.  The court held that dress codes that draw distinctions between boys and girls are not automatically discriminatory.  Instead, the test was one of “comparable burdens.”  Key Quote:

So long as the burdens of the dress code on both sexes are comparable and evenly enforced, the fact that there are different rules for each sex does not amount to sex discrimination.

The court noted that the girls in the charter school “have a few more options than boys when it comes to dresses, capris, earrings, and haircuts” but that this is “simply a reflection of the community norms for what constitutes a traditional conservative appearance for boys and girls.”

It’s Doe v. Rocky Mountain Classical Academy, decided by the federal court in Colorado on September 30, 2022.  It’s located at 2022 WL 16556255. And it’s headed to the 10^th Circuit. 

Meanwhile, the OCR ignores the “comparable burdens” test in favor of a simpler approach.  Here’s a quote from a Resolution Agreement OCR made with a Pennsylvania district:

There is no dispute that the District currently employs a dress code that prohibits male but not female students from wearing earrings. Thus, through the enforcement of the dress code policy, the District engages in prohibited discrimination by treating male students less favorably than female students with regard to the use of jewelry.  July 5, 2022: Wayne Highlands School District, Pennsylvania.

So where are we?  I offer four points to ponder:

1. This issue will continue to draw a lot of interest from advocacy groups. There were approximately a gazillion friend of the court briefs in the 4^th Circuit case.  If you make distinctions in your dress code based on sex, don’t be surprised if you end up in litigation.
2. If it goes to the OCR it’s pretty clear what the decision will be.
3. If it goes to court, it’s not so clear. It will be interesting to see what the 10^th Circuit decides in the Rocky Mountain case, and you can count on reading about it in the Daily Dawg.
4. School administrators have to enforce the dress code the district adopts. School board members who approve those dress codes need to ask themselves the Old Question: Is this worth fighting over?

DAWG BONE: STAY TUNED!

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

Tomorrow: LRE and the neighborhood school….

The latest hazing/bullying scandal in the national headlines is at Northwestern University.  The football coach has been sacked, and I’m sure the University and some of its personnel will be mired in litigation for years to come.  Public schools, of course, can also be sued if bullying or hazing occurs and the school fails to address it properly.  A district in Utah recently settled a case for a reported $2 million.

The allegations in a case from New Jersey are less shocking than the ones at Northwestern. In fact, “bullying” is probably not the right word to describe what was alleged.  Bullying is a student-to-student matter, whereas the case in Jersey alleged that the student was “bullied” and harassed by her guidance counselor via numerous comments to the effect that the student was faking her health and anxiety problems to avoid attending school.

The school responded to this promptly and effectively.  The principal immediately appointed a different counselor to work with the student and investigated the original counselor for bullying.  The counselor denied any wrongdoing and the investigation concluded that there was no bullying or harassment.  Nevertheless, the parent suedthe district, the principal, the assistant principal, the counselor and the district’s bullying coordinator.

Based upon the school’s swift and thorough response, the court held that no reasonable jury could conclude that the district failed to address the issue.  The court therefore ruled in favor of the district and its employees. The court also dismissed the claim under the state’s Anti-Bullying Act, noting that it did not authorize a private right of action.  The Texas anti-bullying law, David’s Law, has a similar provision. 

It's C.S. v. Bridgewater-Raritan Regional School District BOE, decided by the New Jersey Supreme Court, and cited at 82 IDELR 165.

DAWG BONE: LISTEN. INVESTIGATE.  REACH CONCLUSIONS.  COMMUNICATE.  TAKE CORRECTIVE ACTION IF CALLED FOR.

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

Tomorrow: where are we on dress codes?

We’re Zooming again, Loyal DD Readers!  This Thursday, August 17^th at 10:00 I’ll be Zooming along with my partner, Jameson Baker, as we review some of the more high profile laws that are going into effect with the start of the school year.  This is a free monthly event for all Loyal Daily Dawg Subscribers. 

Jameson and I hope you can join us.  If you are not sure you are registered for these events, please contact Liz Clay at lclay@wabsa.com. Liz can make sure you are set up.

The agenda for this month’s Zoom will involve 1) changes to how we serve students with dyslexia as per HB 3928. This one also has implications for your kids in DAEP which we will discuss; 2) Speaking of DAEP, we’ll talk about HB 114 that calls for mandatory time in DAEP for those vapers; and 3) HB 3—an armed security person on each campus. How will you handle that?

In the past we have done the Zoom call on the third Thursday of the month. This year it’s going to move around a bit.  Here’s the schedule for Zooming with the Dawg this school year. Hope you will mark your calendars to make time to join us:

August 17

September 28

October 26

November 30

December 21

January 25

February 22

March 28

April 25

May 23

All of that subject to change as things come up, but that’s the schedule for now.

DAWG BONE: SEE YOU THURSDAY!

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

Tomorrow: Toolbox Tuesday!!