It sure is nice to see the good work of educators recognized by the 5th Circuit.

We are approaching a break in the school year in which we celebrate with loved ones and seek to foster peace on earth and good will toward all.  So I want to start the final week of 2018’s Daily Dawgs with a wonderful affirmation of the good work done by educators in Spring Branch ISD.  Sifting through the dry legal analysis of the 5th Circuit I could clearly see the professionalism and caring of educational professionals.

The case involved a little girl with significant disabilities and health issues.  Despite the fact that she lived just one block from Frostwood Elementary, she was assigned to Wilchester because that’s where the Life Skills unit was.   Everyone was happy with this arrangement for several years.  In April, 2014, the ARDC met to consider the IEP for 4th grade.  The IEP was agreed to, including the placement in the Life Skills unit at Wilchester.

One week later the school decided to transfer the girl to Frostwood, where a new Life Skills unit would be opening for the 2014-15 school year. No ARDC meeting was held to discuss this.  Upon being informed of it, the parents were nervous. They were very happy with everything at Wilchester and wondered if this change would be good for their little girl.

To make a long story short, I will just say that there was a lot of back and forth between parents and school during that fall semester at Frostwood.   In January, the parents pulled their child out of Spring Branch, placed her in a private program and sought a due process hearing to recover tuition.  The parents alleged that the district had failed to provide FAPE.

The hearing officer ruled for the school, as did the district court, and as did the 5th Circuit.  The court’s decision features two legal headlines. First, the court held that the SCOTUS ruling about FAPE in Endrew F. v. Douglas County is not a game changer for us in the 5th Circuit as it is consistent with the way we have always interpreted what “FAPE” means. Second, the court affirmed that this ARD-less transfer was just a change of location—not a change of placement. Thus, an ARD meeting was not necessary.

Beyond those legal points, though, the court cited many ways in which the school responded to parental concerns professionally.

*At parent request, the school transferred to the new school an aide who was familiar with the child.

*The principal immediately granted the dad’s request for a change in morning drop off procedures.

*In response to parent concerns, the school nurse trained a number of staff members to assist the student in the event of a medical emergency.

*The court cited the extensive and “free-flowing” communication between teacher and parents, including a blog.  The mom and the teacher texted each other “frequently during the day.”

*The teacher agreed to microwave the student’s food to make it more appealing.

*When the Life Skills teacher was going to be absent for a time due to her own medical issues the school held a meeting with all of the parents in that unit.

*In response to the teacher’s absence from the classroom, the father, a lawyer, threatened to sue “with unimpeded professional aggressiveness.”   The district responded to this by reassuring the father that a certified teacher would be in the classroom.  The district’s behavioral coordinator visited the classroom the next day and brought in an instructional facilitator who specialized in teacher training.

Some of these are big things and some small. But overall, the court painted a picture of caring educators addressing parental concerns with patience and professionalism. Do these things factor into the court’s legal analysis?  You bet they do.  The professionalism of the school staff made it easy for the court to see that there was no “predetermination” here:

SBISD had not predetermined the outcome of E.R.’s 2014-15 IEP at the ARDC meeting.  Again, E.R.’s parents agreed with the end result. There is no reason to believe SBISD would not have listened to, and considered E.R.’s parents’ positions about adding more goals to E.R.’s IEP.  The facts are replete with accommodations made by SBISD. From a blog, to emails, to personal meetings, SBISD communicated with E.R.’s parents.

So congratulation to Spring Branch ISD and its staff.  This is how it’s supposed to work.

The case of E.R. v. Spring Branch ISD was decided by the 5th Circuit Court of Appeals on November 28, 2018.  We found it at 2018 WL 6187765.


 Tomorrow: Well….just tune in tomorrow.