We’ve spent all of this week on a single case. Decisions from the 5th Circuit create binding legal precedent for us in Texas, and thus they are particularly important. Before we conclude the discussion, I want to make an observation that is strictly my own.
We are over legalizing education. It would be nice if federal judges recognized that classroom teachers need to have the ability to control the classroom, just as much as the judge needs the ability to control the courtroom. The ability to control requires the exercise of discretion. This decision turns, in part, on the use of very short cool down periods that were given to a highly disruptive student at teacher discretion. According to the court, the IEP called for such “cool downs.” But because the word “time out” did not appear in the IEP, the judges deemed the use of this very common disciplinary tool to be a violation of the student’s IEP. Sharp lawyers, carefully parsing every word in our regulations, convinced the court that the teachers were using a procedure that had to be authorized as “time out” by the IEP.
Well, I’m a lawyer and I can see how that argument was made, and why it worked. But I can also see what’s going on here. Legal formalities and technicalities become more important than results. In the name of upholding the law, judges clip the wings of educators who struggle to find the formula that will work with our most challenging students.
It sounds like nothing worked for the student in this case. The school shortened the boy’s day near the end of the year, and one staff member noted that they were trying to “survive” to the end of the year. The student’s parents end up placing him in an out-of-state residential facility. In a situation like that, our special education system goes to fault finding, which plays into the wheelhouse of the legal profession.
I don’t know why O.W. did not have a successful experience in 5th grade in Spring Branch. But I’d be willing to bet that it wasn’t because his IEP did not use the term “time out” to describe the five to ten minute cool downs that his teachers ordered.
Special education is mired in process rather than results. In this case, for example, if the court had simply looked at the results, and concluded that the boy did not make any educational progress, the decision would be easier to abide. Instead, our detailed regulations force the parties to focus on petty issues. Thus we have a high level court trying to figure out how far a desk has to be physically separated from the rest of the class to be “separated” as that term is used in the Texas Administrative Code. That’s a silly thing to be arguing about. Lawyers thrive on stuff like that. It doesn’t help educators much. It doesn’t help parents. It doesn’t help kids.
Who are we trying to serve?
The case is Spring Branch ISD v. O.W., decided by the 5th Circuit on September 16, 2019. We found it at 2019 WL 4401142.
DAWG BONE: DESPITE ALL THAT, LET’S REMEMBER THAT THE MAIN THING IS TO KEEP THE MAIN THING THE MAIN THING. THE MAIN THING IS EDUCATIONAL PROGRESS.