LeasorCrass, Author at Education Lawyers

April 26, 2019 By LeasorCrass

Who Doesn’t Get an MDR? OSEP Clarifies Obligations for Children Not Yet Eligible for Special Education

In addition to being ineffective, disciplining a student for conduct that is caused by, or has a direct and substantial relation to a student’s disability, constitutes disability-based discrimination. Further, subjecting a student to a disciplinary removal that is based on the student’s disability can deprive a student of a free, appropriate public education when it constitutes a change in placement based on something other than the student’s educational needs. A manifestation determination review (MDR) is a procedural safeguard that is hard wired into IDEA to prevent this from occurring by requiring districts to review the behavior of students who have been identified as disabled before imposing a potentially discriminatory discipline consequence.

But what about students who might be disabled, but have not yet been evaluated and determined eligible for services under IDEA? As explained in the Office of Special Education Programs (OSEP) recently issued Letter to Nathan, the obligation to conduct an MDR isn’t dependent on eligibility, but arises as soon as a district is “deemed to have knowledge that a student has a disability.”

Given the emphasis that has recently been placed on referring and evaluating students with suspected disabilities here in the Lone Star State, administrators may be understandably concerned about the number of children who might be entitled to an MDR. Thankfully, “deemed to have knowledge” is statutorily defined and does not necessarily apply to every student who has exhibited a child find trigger. Pursuant to 34 CFR § 300.534(b), a school is deemed to have a basis of knowledge that a student has a disability so as to require an MDR, if before the behavior that precipitated the disciplinary action occurred:

the parent of the child has expressed concern in writing to supervisory or administrative personnel of the district, or a teacher of the child, that the child is in need of special education and related services;
the parent of the child actually requested an evaluation of the child for purposes of determining eligibility; or
the teacher of the child, or other district personnel, has expressed specific concerns about a pattern of behavior demonstrated by the child directly to the district’s director of special education or to other supervisory personnel.

Additionally, 34 CFR § 300.534(c) specifies three instances in which a district is considered to not have knowledge that a student has a disability:

the parent has been offered, but not allowed an evaluation under IDEA;
the parent has refused services under IDEA; or
the child has been evaluated under IDEA and determined to not qualify.

In addition to clarifying when an MDR must be conducted, Letter to Nathan also addresses the more confusing question of how a district should go about determining whether behavior is a manifestation of a suspected disability. Noting that IDEA does not allow a district to postpone an MDR pending completion of an initial evaluation and/or development of an IEP, OSEP explains that an MDR is not contingent on reviewing an IEP, but rather requires a district to “review all relevant information in the child’s file, including any teacher observations and any relevant information provided by the parents, to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability.”

In the case of a child who has not yet been evaluated, this relevant information would include “the information that served as the [district’s] basis of knowledge that the child may be a child with a disability under IDEA, such as concerns expressed by a parent, a teacher or other [district] personnel about a pattern of behavior demonstrated by the child.” Based on this information, the district would be charged with determining whether the conduct in question was caused by, or had a direct and substantial relationship to the child’s suspected disability.

The manifestation determination review is a vital procedural safeguard that protects students from disability-based discrimination that could deprive them of a free, appropriate public education. That said, we certainly recognize that MDRs are (understandably) frustrating to administrators who already feel spread too thin and difficult to explain to members of the school community concerned with a perceived undermining of accountability. If you have questions or concerns about OSEP’s latest guidance or complying with the MDR mandate in general, the attorneys at Leasor Crass, P.C. are ready, willing, and able to help.

January 14, 2019 By LeasorCrass

Report Raises Triple Threat: Safety, Discipline, & Special Education

The Federal Commission on School Safety recently issued its Final Report. A copy of the full report can be accessed via the Commission’s website here.

The Report has made early headlines primarily due to its criticism of the Obama Administration’s “Rethink School Discipline” guidance, which included rules targeting exclusionary discipline and requiring the application of disparate impact analysis when reviewing potentially discriminatory discipline practices.

However, the Report also implicates several issues related to student confidentiality under FERPA and special education. Most notably, the Commission’s findings that “[a]pproximately one in 10 children…experience a serious emotional disturbance (SED)” and that “up to 79 percent of school-age youth have unmet mental health needs” could have massive child-find and funding implications under both Section 504 and IDEA for school districts.

It should be noted that the Report and the Commission’s recommendations are just that…they do not constitute official regulations and place no additional legal obligations on districts. That said, they should not be ignored, as they can certainly be expected to drive further action by state and federal lawmakers.

October 26, 2018 By LeasorCrass

The Parent’s Always Right…Not

Did you know parents do not have a right to compel a school district to provide specific programming or employ specific methodology when teaching students with disabilities? According to a Special Education Hearing Officer’s interpretation of the IDEA, parents may provide meaningful input into the development of their child’s IEP, but are not entitled to dictate the outcome. When it comes down to a choice in methodology, deference is given to professional educators.

A due process hearing in June 2018 ruled on a dispute between a well-intentioned parent and a Texas school district. The central issue turned on whether the District’s proposal to implement a more holistic reading program and placement in a special education classroom for reading and math instruction was reasonably calculated to provide FAPE in the Least Restrictive Environment, or LRE. The “methodological dispute” arose following a February 2018 ARD meeting that ended in non-consensus on the District’s proposals.

The parent stated the student was making progress in the student’s private reading program, funded by the parent, and argued the District should incorporate lessons from the private reading program into the student’s school day. In contrast, the District wanted to increase the student’s instructional time in a special education classroom for Reading and Math and provide the student with a more holistic approach to reading. The District argued the special education classroom provided the student with more one-on-one assistance due to the lower student/teacher ratio and the proposed reading program catered to the student’s visual learning skills, a strength discovered in prior evaluations.

The Hearing Officer noted a parent is entitled to provide their child with whatever assistance they deem appropriate, but the law does not compel a district to employ the same assistance merely because it is the parent’s preference. While a parent may be committed to their child’s best interest, the best interest of the student is not the applicable legal standard under the IDEA. Rather, the IDEA requires the District to provide a program “reasonably calculated to provide [the] student with a meaningful educational benefit given [the] student’s unique circumstances.”

The District’s proposed program, in this case, utilized the student’s individual strengths as a visual learner and would instruct at an appropriate pace while taking into account the student’s processing deficits. The program was based on 1) research, 2) the student’s educational history, and 3) the student’s assessed strengths and weaknesses. Therefore, this program satisfied the requisite IDEA standard and was reasonably calculated to provide the student with a meaningful educational benefit in light of the student’s individual circumstances.

On a related note, the Hearing Officer also conducted an analysis of the least restrictive environment and named several factors to be considered in making an LRE determination. The noted factors include the nature and severity of the student’s disabilities, academic achievement, non-academic benefits of placement in a regular classroom, overall experience in the mainstreamed environment, and the effect of the student’s presence in the regular classroom. With respect to the last factor, the Hearing Officer explained that two questions should be asked when evaluating the effect of the student’s presence in the regular classroom. The first is whether the student’s behavior is so disruptive the education of the other students is significantly impaired. The second question is whether the student requires so much of the teacher’s attention the rest of the class suffers. If the answer to these questions is yes, the balance leans in favor of placement in a special education classroom.

In this case, the evidence showed the student became consistently frustrated attempting to keep up with the student’s non-disabled peers and that frustration disrupted the student’s own learning and the learning of other students. The student needed a high-level of teacher assistance and became disruptive when they did not receive it. Additionally, the student became increasingly frustrated and disruptive when the teacher was helping other students. These factors along with others led to the conclusion that the student’s LRE was placement in a mix of general and special education classrooms as proposed by the District.

This decision is a good illustration of the law surrounding parental rights to provide meaningful input, but not to compel or dictate the actions districts take. Districts should listen to and understand what the parent desires, but ultimately the District has both the right and obligation to make an individual determination based on the student’s unique circumstances. Additionally, when making a determination as to a student’s LRE the Fifth Circuit’s two part test, as set forth in Daniel R.R. v. State Board of Educ., should be followed. First, the analysis must be individualized and fact-specific. Second, careful consideration should be given to the nature and severity of the student’s abilities, disabilities, needs, and the district’s response to the student’s needs.

If you would like to read the full decision, click here and scroll down to Docket No. 146-SE-0218.

If you have any additional questions about this ruling or any other issue, please do not hesitate to contact the attorneys at Leasor Crass.

October 1, 2018 By LeasorCrass

Delegation Evasion

Tommy Fisher In the recent consolidated cases of Kane v. United Indep. Sch. Dist. and Volpe v. United Indep. Sch. Dist., the Commissioner of Education ordered a school district to adopt a grievance policy requiring a school board to hold grievance hearings, without delegation to a committee.

Under the district’s local grievance policy at issue, the board president was authorized to decide whether the board conducted the hearing, or if the grievance would be heard by a committee of the board. If the committee heard the grievance, the school board would make a final decision based on the committee’s recommendation. However, the grievant would not receive a hearing before the entire board if the grievance was delegated to a committee.

The commissioner found that school boards are required to give a grievant a board hearing. He stated that Texas Education Code §11.1511(b)(13) does not give a school board the option to grant a hearing or to substitute a board committee hearing for a board hearing, but rather requires the board to establish a process for hearings. In addition, §11.1513(i) specifically requires that a district’s employment policy give the employee the right to present a grievance to the school board itself. The commissioner also rejected the argument that the open comment portion of a school board meeting would give employees sufficient access to the board, because the open comment option was not mentioned in the policy nor did the open comment option provide due process.

What is the import of this decision? Initially, if your district has a similar policy that delegates responsibility for hearing grievances to a board committee, that policy should be changed immediately. If you have grievances in process that will ultimately be heard by a committee pursuant to a similar policy, it is recommended that the grievant involved be advised that the board will be the final decision maker for the grievance rather than a committee.

If you have any questions regarding this decision, please do not hesitate to contact the attorneys at Leasor Crass on this or any other school law issue.

September 21, 2018 By LeasorCrass

School Board Mean Girls

Mike Morath handed down a decision ruling Texas Education Code §37.105 “does not limit the right of a school board to exclude individuals from school property.”

The Lead-Up

This controversy started with Mr. Santiago Salinas, a member of the Webb Consolidated Independent School District’s Board of Trustees during the 2016-2017 school year and the father of a child enrolled in the district. In November 2016, the school board voted to ban Mr. Salinas from any district property for a period of one year due to alleged inappropriate behavior in a school setting, resulting in Mr. Salinas only being allowed on district property for legitimate business, including board meetings and parent/teacher conferences. After a subsequent violation of this order in June 2017, the board voted to extend this prohibition for another year and censure Mr. Salinas.

Following the extension and censure, Mr. Salinas filed a complaint against the District arguing Section 37.105 limits the authority of the school board to exclude a person from district property. The District, in reply, argued §11.151 gives school boards the same property rights as any other owner of real property. Therefore, a school board is allowed to exclude individuals from its property just as any owner of real property may exclude individuals. See Salinas v. Webb Consol. Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 034-R10-08-2017 (July 6, 2018)

The Rules

Section 11.151 sets forth the authority, powers, and duties of school boards, including the power to acquire and hold property. Additionally, this section provides that the trustees are vested with “all rights and titles to the school property of the district.” Tex. Educ. Code Ann. §11.151(c). Therefore, based on Section 11.151, it would seem school boards generally have the right to ban anyone from school property. This law, however, would have potentially been in conflict with the previous version of Section 37.105 that limited the authority of the board to exclude only those without legitimate business or to eject those who refused to leave peaceably upon request.

Section 37.105 was amended in 2017, so these two sections are now consistent. The amended Section 37.105(a)(1)-(2) states a school administrator, resource officer, or district peace officer may prevent a person from entering school property or eject a person from school property if the person refuses peaceably upon request and the person poses a substantial risk of harm or behaves in an inappropriate manner. Notably missing from the current version of the rule is any mention of the school board or the board of trustees. The Commissioner interpreted this absence to mean the Texas Legislature decided not to limit the authority of school boards to exclude an individual. Therefore, without this limitation, the school board does not have to consider whether an individual is objectionable, acting inappropriately, or has legitimate business to be on school property.

Based on this ruling, the board of trustees generally has the exclusive right to prohibit anyone from school property, with or without reason, including its own members. One of the few limitations to this exclusion power are likely individuals who have a statutory right to be on district property, such as students. It should be noted, however, that this authority rests with the board and §551.102 of the Government Code requires any final action, decision, or vote on a matter deliberated in a closed meeting be voted on in open session.

District Officials

District staff must follow local board policies when excluding or ejecting a person from school property. For example, §37.105 states a school administrator may refuse someone entry or eject someone from school property if the person refuses to leave peaceably and they pose a substantial risk of harm or the person behaves in an inappropriate manner for a school setting. If the person is behaving inappropriately, the school administrator must first issue a verbal warning to the person advising them that their behavior is inappropriate and may result in ejection or refusal of entry. The person must continue the behavior before the administrator is allowed to either eject the person or refuse them entry.

Additionally, the school district should maintain a record of all verbal warnings issued containing the name of the person given the warning and the date it was issued. At the time a person is refused entry or ejected from school property, the person must be given written information regarding the appeal process. If the person excluded is a parent or guardian of a child enrolled in the district, the district must make accommodations so the parent or guardian can participate in the child’s admission, review, and dismissal committee or in the child’s team under Section 504. Lastly, the term in which a person is excluded from school property may not exceed two years. The district must post notice of the provisions in §37.105 on the district’s website and on each campus’s website, including the applicable appeal process. See Tex. Educ. Code §37.105(a)-(h). Please note that a new rule issued by the Commissioner requires that a person appealing an exclusion from school property must be able to address the board in person within 90 days of filing the appeal/grievance. This means that even though a district can still require the person to go through the various appeal levels of the grievance process, there is now an ultimate deadline for a school board to hear this type of appeal.

When a school board uses a process that conforms with §11.151, such as a vote to exclude in open session, the additional provisions that other school employees have to comply with under §37.105(a)-(h) do not apply. Thus, this freedom, when used appropriately, allows the District, through its Board of Trustees, much greater power to police entry onto District property.

If you have additional questions regarding this ruling, please do not hesitate to contact the attorneys at Leasor Crass on this or any other school law issue.

Who Doesn’t Get an MDR? OSEP Clarifies Obligations for Children Not Yet Eligible for Special Education

Report Raises Triple Threat: Safety, Discipline, & Special Education

The Parent’s Always Right…Not

Delegation Evasion

School Board Mean Girls

LEASOR CRASS, P.C.

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