That “unwritten rule” in special education matters….

Here at the Daily Dawg we have often mentioned the “Unwritten Rule” that courts and hearing officers seem to apply when they decide cases.  Today we report a Texas case that nicely illustrates how the courts apply this “Unwritten Rule”-- at all times and in all circumstances act reasonably.  That means respectful, kind, patient, courteous, and focused on serving the student well.

The Dawg reported the case of Washington v. Katy ISD in early 2022 when the district court issued its decision in favor of the district.  Now the 5th Circuit has affirmed that decision.  It’s one of those cases where the parties disagree about the facts, and who was responsible for the student’s lack of attendance.  It’s an excellent illustration of the Unwritten Rule.

The story begins with what sounds like unreasonable behavior by the school: “In November 2016 [the student] was repeatedly tased by a school resource office during a confrontation with District staff.”  After that happened, the student did not attend school much at all.  He missed 98 days of school in the spring of 2017, and 200 days over all in 2017 and 2018.  Not good.  However, there was evidence of good performance when the student was in school, and there was a lot of evidence of the district’s good faith efforts to get the kid back in school.

Much of the decision is based on the interactions of the parties after the tasing incident.  The court noted a few factors that seemed to tilt the decision in favor of the district:

  1.  “Multiple employees reached out to [the mother] after the tasing incident.”  An assistant principal talked with her about it on the day of the incident.
  2. In a subsequent phone call “The assistant principal and [the mother] discussed the tasing incident, but [the mother] ended the phone call before the assistant principal could fully explain.”
  3. The district pointed out that the mother had testified that she had spoken to the diagnostician “billions” of times; to one of the teachers “frequently,” to another teacher “every other day.”  This undercut the allegations that the district had been non-communicative.
  4. The mother declined to give consent for district staff to discuss the student with some of his outside mental health providers.
  5. The district recommended ESY, but the mother declined to accept the district’s offer of transportation for this.
  6. It was difficult to schedule an ARD meeting, due in part to non-responsiveness from the parent.

The court’s opinion never uses the term “parental responsibilities,” but they are implied.  IDEA is built on a framework that assumes good faith collaboration between people who all want the same thing: that the student have a good experience in school.  This means that parents should actively cooperate in finding a time for an ARD meeting; give consent to evaluations that are called for, unless there is some strong reason not to; allow school staff to speak with outside professionals who have worked with the student; take advantage of any and all educational services the district offers.  In this case the 5th Circuit summed it up like this:

Simply put, a parent cannot agree that the services her child is receiving are sufficient, prevent the school from administering those services by withholding the child, hinder the school’s ability to provide additional services by failing to file necessary paperwork, then later sue on the basis that the school did not do enough.

It’s Washington v. Katy ISD, decided by the 5th Circuit in an unpublished decision on March 16, 2023. It’s cited at 2023 WL 2535273. 


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Tomorrow: a “serial filer”….