Category Archives: Uncategorized

Dawg Bones, Uncategorized

Dear Dawg: Who do they think I am—Lance Armstrong????

Dear Dawg: I try to stay in shape, but you know….it gets tough as the years go by.  Motivation is tough.  Hell—just getting up in the morning is tough. So when the principal asked me to be Billy’s one-to-one “biking aide” I thought this might be just what I needed.  You see, I’m a teacher’s aide in the Rim of the World School District. We are located in the beautiful mountains of California and we pride ourselves on our Mountain Biking Team.  This is a very competitive activity around here.

This year we had a kid named Billy who wanted to participate.  Sweet kid—been here a few years and everyone loves him. Billy’s on the autism spectrum, and so everyone figured that being a part of the Mountain Biking Team would be good for him.  Only problem was that Billy needs an aide to be with him all the time—including on extracurriculars.

So the principal asked me to serve as the “biking aide.”  Sure, I thought!  The scenery around here is spectacular, as is the weather.  And how hard could it be, keeping up with Billy?

Well, it wasn’t so hard at first. But Billy applies himself to everything he does, and pretty soon, he was outpacing me.  I just couldn’t make it up some of the mountains, and even on the flat parts, Billy left me so far behind that I lost sight of him.  He got stronger. I got older.  He got faster.  I got fatter.

Now the parents are making a legal issue out of this. Can you believe that???? A LEGAL issue! They claim that the district is obligated to provide an aide “who can keep pace” with Billy.  Dawg, this kid is a very good bike rider. I’m not sure we have anyone who can keep pace with him.  Is this really something we have to do?  TAKING MY TIRED BONES TO THE HOT TUB RIGHT NOW.

DEAR TAKING MY BONES:  Funny you should ask. It turns out that your very school district was involved in a dispute just like that involving a student named Madison Meares.  The parents alleged that the IEP had not been properly implemented, seeing as how the district had run out of aides capable of keeping up with Madison on the mountain bike.

The court ruled for the district, though.  The court was not convinced that Madison’s IEP required an aide for extracurricular activities, but even if it did, the court held that the district provided aides who were adequately trained for the job.  Moreover, the court made this observation:

The Court questions how far Plaintiffs’ logic might be extended; if Madison was the preeminent mountain biker in Southern California, would the District be required to somehow locate a biking aide to keep pace?

So go soak in the hot tub and don’t worry about this one. The case is Meares v. Rim of the World School District, decided by the District Court for the Central District of California on August 13, 2015. We found it at 66 IDELR 39.

DAWG BONE: TEACHER AIDES HAVE TO BE TRAINED, BUT THEY DON’T ALWAYS HAVE TO BE IN SHAPE.

Dawg Bones, Uncategorized

News Bulletin: Female Coaches Can be Just as Crude and Vulgar as Their Male Counterparts! All Hail Title IX!!

We can’t accurately describe all the comments allegedly made by Coach Anne Monterrubio to Coach Catherine Clark at Alamo Heights Junior High.  It would never get past your school district’s filter. Suffice it to say that there was a good deal of vulgarity, some of it focused on Coach Clark’s female parts.  Coach Clark complained about this to the Athletic Coordinator and later to the principal.  Coach Clark eventually filed a lawsuit alleging sexual harassment and retaliation.  In the suit, she alleges that the district did not respond much, and did not follow its own policies. The district tried to get the case tossed out, asserting that Coach Clark had not properly alleged a genuine cause of action. The Court of Appeals refused to dismiss the case.

That does not mean that Coach Clark has a good case—it just means that she alleged facts that, if proven true, could amount to a legitimate cause of action.  The court was ruling on a preliminary matter—a “Plea to the Jurisdiction.”  That means the court has to give the benefit of every doubt to the plaintiff. Keep that in mind as you read on.  This case has a long way to go.  In fact, the district has filed a Motion for En Banc Reconsideration.  That Motion primarily argues that the court erred in seeing these facts as harassment “because of sex.”  The Motion asserts that Coach Monterrubio dispensed inappropriate remarks to male and female coaches alike.  Behavior like that might be called bullying, but the Motion asserts that is it not “based on sex” and therefore, is not sexual harassment.

We shall see what the court does about that, but in the meantime, we think the case is worth your attention because of the court’s interpretation of a TASB-promulgated local policy that has been adopted by many districts.

The lawsuit alleges that Coach Clark first reported that she was being harassed to the Athletic Coordinator.  The suit alleges that “[The Athletic Coordinator]…failed to report Clark’s complaint to any member of the administration as required by district policy.” (Emphasis added).

Later, Coach Clark reported harassment to the principal.  The principal did exactly what you would expect a principal to do. She investigated the matter by interviewing the key players;  she made a decision; she communicated that decision.   So how did she supposedly fail to follow policy?  The court put it this way:

Instead of reporting Clark’s complaint to the appropriate district official, [the principal] conducted her own investigation….”

After the investigation was complete, the principal sent a letter to Clark including her findings, but the court noted that “[the principal’s] report was not filed with a district official as required by district policy.”  (Emphasis added).

Where does the court get the idea that sexual harassment has to be reported to someone other than the principal?  From Policy DIA (Local). In a footnote, the court notes that this policy in AHISD required that employees should report sexual harassment to the employee’s immediate supervisor or the principal. But it goes on to say that “Any district supervisor who receives a report of prohibited conduct shall immediately notify a District official, including the Title IX coordinator….or the Superintendent.”

The court reads this policy as requiring the principal or supervisor who receives a report to also notify the Title IX coordinator or the superintendent.  When all the evidence is presented, the court may find that the proper parties were, in fact, notified.  But the allegation of a failure to follow policy was sufficient to create a “prima facie” case for the plaintiff.

So take a look at your DIA Local.  We looked up two districts’ policies. They both included the following language:

NOTICE OF REPORT:

Any district supervisor who receives a report of prohibited conduct shall immediately notify the appropriate District official listed above and take any other steps required by this policy.

In both districts the term “District official” was defined to include the Title IX Coordinator, the ADA/504 Coordinator and the superintendent.

The case is Clark v. Alamo Heights ISD, decided by the Court of Civil Appeals in San Antonio on October 21, 2015. We found it at 2015 WL 6163252.

DAWG BONE: MAKE SURE YOUR ADMINISTRATORS REVIEW POLICY DIA (LOCAL).

Dawg Bones, Uncategorized

Let’s add this to the list of “things not to say” about bullying.

J.R. was a student in New York City who was picked on by the other kids. The court case tells us that J.R. had “major depressive disorder, panic disorder with agoraphobia, and borderline personality disorder,” and that he was bullied based on his race, gender and “perceived femininity.”

It was pretty bad for J.R.  He was hospitalized more than once due to depression and suicidal ideation.  The lawsuit filed by J.R. and his parents alleges that the New York City schools should be held legally liable for the bullying of J.R.

Parents have a high burden of proof in a case like that.  They have to prove that the bullying was really bad; that it was based on disability (Section 504 cases) or gender (Title IX); that the district knew about it; and that the district was “deliberately indifferent.”

It’s that last part that presents the highest hurdle. School officials make mistakes, but are rarely “deliberately indifferent.”  Thus most of these cases get tossed out of court for lack of evidence of any “deliberate indifference.”

This case is not being tossed out—largely because of the principal’s response to the student’s request for a transfer to a different bus. The court cited this as the type of evidence that a jury might rely on to conclude that the school was “deliberately indifferent.” Here’s how the court put it:

For example, in response to complaints about the harassment endured by J.R. on the bus, the QCPC principal did not intervene; instead, she told Plaintiffs that the bullying was likely to continue given the violent nature of the student body.  Although the “deliberate indifference” standard does not require that teachers and school administrators successfully prevent or eradicate all bullying behavior, surely some effort to discourage that conduct and announce its unacceptability is required.

So let’s learn from New York’s mistakes.  If a student requests a transfer to another bus, or another classroom, due to bullying, let’s not respond with: “Well, we can do that. But you know these kids today. The bullying is going to continue.”

Let’s say something better than that. The case is J.R. v. New York City Department of
Education, decided by the federal district court for the Eastern District of New York on August 20, 2015.  We found it at 66 IDELR 32.

DAWG BONE: PROOF OF “DELIBERATE INDIFFERENCE” USUALLY COMES STRAIGHT OUT OF A SCHOOL OFFICIAL’S MOUTH. THINK BEFORE YOU TALK.

Dawg Bones, Uncategorized

It’s Toolbox Tuesday!! Our special education director told me there were “mandatory” BIPs and “discretionary” BIPs. Really? What’s this all about?

Tool #1 in The Toolbox is a BIP—a Behavior Intervention Plan.  We call it your most important tool, in part because if it works, you can put the rest of the Toolbox away.  A BIP is the only tool in the Toolbox that is designed to improve the student’s behavior.

The law does not use the terms “mandatory” and “discretionary” with regard to BIPs, but we  know where your director got that terminology, and we think it makes sense.  The law requires a BIP in some cases; and leaves it to the discretion of the ARDC in others. Thus: mandatory, discretionary.

A BIP is mandatory under IDEA only when 1) the student violates the Code of Conduct in a way that would call for a change of placement; and 2) the ARDC determines that the student’s behavior was a manifestation of disability.  For example, a student with autism physically assaults another student.  This is a violation of the Code of Conduct that would normally result in a change of placement to the DAEP. But the ARDC determines that the assault was directly caused by the student’s disability.   IDEA regulations say that in a case like that, the ARDC must either develop a BIP for the student, or review and revise an already existing BIP.  This is mandatory.

In all other cases, BIPs are discretionary.  ARDCs should consider developing a BIP for students “whose behavior impedes the child’s learning or that of others.”  34 CFR 300.324(a)(2)(i). This is one of the “special factors” that ARDCs are required to consider in connection with each IEP. So it should be on your agenda for consideration at each annual ARDC meeting.  Ask the team: does this child’s behavior impede his/her learning? Or that of others?  If the ARDC says “yes” then the team must “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” Notice that it is mandatory that you ask the question: does behavior impede learning? But even when the answer is “yes,” it is not mandatory that you develop a BIP.  It’s discretionary.

Either way—a mandatory or discretionary BIP—Texas requires that the BIP be included in the student’s IEP:

The committee [ARDC] may determine that a behavior improvement plan or a behavioral intervention plan is appropriate for a student for whom the committee has developed an individualized education program.  If the committee makes that determination, the behavior improvement plan or behavioral intervention plan shall be included as part of the student’s individualized education program and provided to each teacher with responsibility for educating the student.  T.E.C. 29.005(g), emphasis added.

So that’s a quick reminder about some of the features of Tool #1—a BIP.  The Toolbox is a one day training program for school administrators and special education staff, providing 10 tools designed to enable you to maintain safety, while serving each student appropriately and in the least restrictive environment. Interested in a Toolbox training?  Contact me (jwalsh@wabsa.com) or Haley Armitage (harmitage@wabsa.com).

DAWG BONE: TOOL #1 IS, AND SHALL FOREVER BE, YOUR MOST IMPORTANT TOOL!

 

Dawg Bones, Uncategorized

Here come the “holidays.” Is it OK if we call it “Christmas”?

Sigh.  The lights are already up all over my neighborhood.  There are plastic reindeer, large candy canes and Santa Claus displays all over the place, and of course, the incessant advertising is well under way.  It would be nice if we could at least wait until December before we start celebrating Christmas, dontcha think?

But ready or not, here it comes, so we thought it would be a good idea to remind you of the Merry Christmas bill passed by the Texas legislature in 2013. You can find it at Section 29.920 of the Texas Education Code.  The TASB Policy Reference Manual includes a summary of the bill in Policy FNA(Legal).

The law was designed to push back against excessive political correctness, by assuring school officials that it is OK to say things like “Merry Christmas” right out loud in the school.  The law is not very long and you might want to read the entire thing, but we can summarize it as follows:

1. It says that schools may teach kids about “the history of traditional winter celebrations.”  In our culture, Christmas is clearly the predominant “traditional winter celebration.” So the bill tells us that it is OK to teach kids the history of the event; why it is celebrated; what it’s about; why it is such a big deal.  You can do that without encouraging or discouraging religious belief.  In fact, you have to do it that way to comply with the U.S. Constitution. Of course it’s important to remember that while Christmas is the predominant “traditional winter celebration” around here, it’s not the only one.

2. It says that it is OK for kids and teachers to say things to each other like “Merry Christmas” or “Happy Hanukkah” or “happy holidays.”

3. It says that you can have a display on school property to honor the season, as long as it either a) includes symbols of at least two religions; or b) includes a symbol of one religion along with one secular symbol.

4. But it also says that your display “may not include a message that encourages adherence to a particular religious belief.” That provision is a recognition by the legislature of the constitutional issues.

School communities in Texas run the gamut in terms of diversity.  Some of our large, urban districts are a microcosm of the world, including every religion, culture and language you can imagine.  Then there are those small, rural districts where a non-Christian (non-Baptist?) can hardly be found.  The constitutional requirements are the same, regardless of where you live, but the community attitude and the pressure on the school officials will vary from place to place.

We need a large dose of common sense to navigate this sensitive issue.  Advocates on the extremes tend to exaggerate and over-react.  It never was illegal to teach kids about Christmas.  There is no court case holding that a teacher cannot say “Merry Christmas” to her students.  No court has held that you have to call it a “holiday tree,” when we all know that it’s a Christmas tree.

But those who dismiss the concerns over this issue as mere “political correctness” are equally off base.  If the decorations, songs, celebrations and greetings that take place in the public school are indistinguishable from what we see at the local church, then the school is not educating kids about the holidays—it is indoctrinating.  If we teach children about the origins of Christmas, with no reference to the winter celebrations of groups that are fewer in number, we are not teaching properly.

The constitution allows public schools to teach about religion—but prohibits them from  encouraging or discouraging religious belief.  May this month be a useful teachable moment for all of us.

DAWG BONE: HAPPY HANUKKAH (December 7)!  MERRY CHRISTMAS (you know)!  HAPPY KWAANZA (December 26)!  HAPPY BOXING DAY (December 26)!

Uncategorized

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