Blog | Leasor Crass, P.C

November 20, 2019 By editor

Just When a District Thinks it is Done with a Student, FAPE Still Applies

A school district was found to have denied FAPE to a student when it failed to provide any IDEA services after the student was expelled from school for attacking another student.

What is FAPE, under IDEA?

Under IDEA, a free appropriate public education (FAPE) is special education and related services that:

Are provided at public expense without charge;
Are under public supervision and direction;
Meet the standards of the TEA;
Include an appropriate preschool, elementary, or secondary education in Texas; and
Are provided in conformity with the legal requirements of an IEP.

When does FAPE apply, under IDEA?

Under IDEA, FAPE applies to all children residing in the state aged 3-21, who are eligible for special education and related services.

Does FAPE still apply after a student is expelled or suspended, under IDEA?

Under the IDEA, the state must ensure that FAPE is made available to all children residing in the state between the ages of 3-21, including children with disabilities who have been suspended or expelled from school. Further, a school district is not relieved of the obligation to provide FAPE to a student who is expelled or suspended based on a district’s claim of difficult or near impossible means of finding a placement for the student.

In Schiff v. District of Columbia, a student was expelled from his nonpublic school after attacking a medically fragile student. After the student was expelled, the District contacted ten different nonpublic schools in an effort to find a placement for the student. However, every school contacted refused to take the student. Based on this perceived impossibility of finding a new placement, the District believed that it was relieved of its duty to provide FAPE and threw in the towel.

The District of Columbia’s State Education Agency initially agreed with the District. However, that administrative decision was appealed and ultimately reversed by the U.S. District Court. In adopting a federal magistrate judge’s report and recommendation, the Court explained that the “defense of impossibility” does not apply to IDEA’s express requirement that districts provide FAPE to students with disabilities who have been suspended or expelled from school. Further, the Court rejected a novel argument for adopting the doctrine of “unclean hands” (i.e., the student’s behavior created the difficulty in finding a placement option and therefore let the District off the hook), explaining that accepting this argument would undermine the very purpose of IDEA because the manifestation of a disability cannot be the basis for the deprivation of a FAPE.

Therefore, districts need to ensure that they are providing FAPE to students, even when the student is expelled or suspended because of their own behavior. If your district finds itself confronted with a situation like this or other special education matters, the attorneys at Leasor Crass are ready to help.

August 12, 2019 By LeasorCrass

Public Information Overload

The 86^th Legislature was hard at work this year drafting and pushing bills affecting school districts across Texas. One such bill you should be aware of may affect the way school districts handle the all too familiar Public Information Act request. Senate Bill 944 is effective September 1, 2019 and makes several changes to the Public Information Act. Most notably, the bill adds a definition for temporary custodians and sets forth the duties and penalties for any violations.

What is a temporary custodian and why should you care?

A temporary custodian can be any current or former employee or trustee who created or received public information in the transaction of official business or in their official capacity and who has not provided the information to the school district. In other words, if you have ever sent or received a text message on your personal cell phone regarding district business, you may be a temporary custodian.

Any information held by a temporary custodian is subject to records preservation, retention, and disposition laws under the Texas Government Code and Texas Local Government Code. This means any public information, even if located on a personal device, must be retained and preserved in accordance with the mandatory retention laws of the State.

Additionally, the bill makes clear temporary custodians have no personal or property rights in public information. Therefore, all current or former employees or trustees who maintain public information on their personal devices are required to (1) forward the information to the school district or the school district’s server; or (2) preserve and retain the information, in its original form, on the personal device for the legally mandated retention period.

School districts’ public information officers have a duty to use reasonable efforts to obtain requested information from temporary custodians if a public information officer is aware of facts amounting to a reasonable belief that a temporary custodian has possession, custody, or control of requested information. A temporary custodian is required to surrender and return any requested information in their possession, within ten (10) days of a request from a public information officer.

A violation under this law may result in disciplinary actions by the school district against the temporary custodian, if employed, and any penalties under the Public Information Act or other law. Penalties under the Public Information Act include criminal remedies, such as official misconduct and criminal negligence, and civil remedies.

What else should you know about Senate Bill 944?

Assuming a school district receives a public information request and is seeking an Attorney General decision, an original request from a requestor for information in the possession of a temporary custodian is not considered received by the school district until the date the information is surrendered or returned by the temporary custodian. Because temporary custodians are required to return or surrender such information within ten (10) days of a request from the public information officer, this results in the tolling of certain Public Information Act timelines.

Lastly, the bill allows school districts to designate one mailing address and one email address for receiving public information requests. Such addresses must be provided upon request. However, a school district that designates and posts the designated mailing and email address on its website or its Public Information Act sign is not required to respond to a request until it is properly submitted at one of the designated addresses, by hand delivery, or by another method properly approved by the school district. Please note a method is only considered approved by a school district if the district includes a statement indicating that a request for public information may be made by that method on its required Public Information Act sign or the district’s website. For example, a district may require all public information requests be submitted via email at a designated email address, by hand delivery at a physical address, or mailed to the department that handles all public information requests.

If you have any questions or concerns about how Senate Bill 944 may affect your district or need any policy recommendations for the future, please do not hesitate to contact the attorneys at Leasor Crass.

July 1, 2019 By LeasorCrass

In a World Where High School and College Degrees are Everything and Hard Work is Often Overlooked

By Victoria Elliott, Associate

In a world where high school and college degrees are everything and hard work is often overlooked, students in special education or those students who struggle to pass end-of-year assessments are already at a disadvantage. In the past, these students could not graduate high school with an endorsement if they were on modified curriculum or could not graduate at all if they failed the end-of-year assessments. However, this legislative session changed everything.

The Texas Legislature passed, and the Governor recently signed, House Bill 165 to allow special education students, including those on a modified curriculum, to be able to graduate with an endorsement on their transcript. This is incredibly significant, as most Texas universities require students to receive an endorsement before they will be considered for admission. As part of the requirement, the ARD committee for a special education student on modified curriculum will have to determine if the curriculum they are receiving is sufficiently rigorous. Further, the bill allows for special education students, with or without modified curriculum, to be able to graduate with an endorsement on their transcript without having achieved satisfactory performance on end-of-course assessments, if the ARD committee determines that it is not necessary to pass.

But wait, don’t stop there! The Texas Legislature also passed, and the governor recently signed, Senate Bill 213 to continue to allow general education students who fail, no more than two, end-of-course exams to be able to graduate. The previous law allowing students to be able to graduate regardless of failing, no more than two, end-of-course exams was set to expire on September 1, 2019. Now, the law has been amended to expire on September 1, 2023. The requirements for allowing these students to graduate has stayed the same. First, an individual graduation committee must be established. Next, the student must have completed all other requirements for graduation. Lastly, the committee will need to determine what other requirements need to be met in place of passing the end-of-course exams that were not satisfactory. For the student to graduate, the plan decided by the committee will have to be followed through.

These laws have truly helped students who are special needs or may be struggling to, at the very least, receive their diploma, and for special needs students to receive it with an endorsement. Hopefully, the law for general education students will continue to be amended after it expires. We will see what the future has to hold.

If you should have additional question regarding these two bills or the law concerning graduation requirements, please do not hesitate to contact any of the attorneys at Leasor Crass for assistance.

May 30, 2019 By LeasorCrass

These Quorums Weren’t Made for Walking

On May 24, 2019, Attorney General Ken Paxton handed down an opinion, at the request of Commissioner of Education Mike Morath, providing some much needed clarity regarding “walking quorums” and the Texas Open Meetings Act (“the Act”). The Request for Opinion came after the Court of Criminal Appeals ruled in State v. Doyal that Section 551.143 of the Open Meetings Act was unconstitutionally vague on its face. Section 551.143(a) provides:

“A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent [the Act] by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”

The questions asked by the Commissioner were likely similar to the questions most, if not all, school trustees, officials, and representatives had been asking since the Court of Criminal Appeals handed down their ruling in February. First, does the Open Meetings Act continue to prohibit a quorum of a governmental body from deliberating an item of public business outside of an authorized meeting through multiple communications, each making up less than a quorum (i.e. a walking quorum)? Second, if criminal sanctions no longer apply, what sanctions exist for those who violate the Act? Answering these questions requires a review of other sections of the Act, untouched by the Court of Criminal Appeals’ ruling.

In reference to the first question regarding whether “walking quorums” are still prohibited, the answer is yes. The Legislature’s overall purpose in adopting the Open Meetings Act is clearly to safeguard the public’s interest and encourage good government by ending closed-door dealings without public scrutiny. This intent is evidenced in Section 551.002 of the Act which requires “every regular, special, or called meeting of a governmental body” to be open to the public, with limited exceptions set forth in the Act.

The Act furthers this purpose in Sections 551.001(4)(A) and 551.001(2) which define “meeting” and “deliberation” respectively. A “meeting” includes “a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the body has supervision or control is discussed or considered.” Deliberation is “a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business.” A plain reading of these two definitions provides that a meeting occurs when a quorum of a governmental body has a verbal exchange about public business or policy within that governmental body’s jurisdiction.

There is no requirement deliberation occur simultaneously or in the same location to constitute a meeting, nor is there any support that a quorum must be physically present at the same time and same location for a violation of the Act to occur. For example, prior Attorney General Opinions state a series of email communications may constitute a deliberation and meeting depending on the specific facts of the case. In other words, simply because deliberation may occur through multiple communications (i.e. text messages, emails, phone calls, etc.), as opposed to a single place at a single time, does not mean deliberation among a quorum did not occur. The Texas Supreme Court held, “When a majority of a public decision-making body is considering a pending issue, there can be no ‘informal’ discussion. There is either formal consideration of a matter in compliance with the Open Meetings Act or an illegal meeting.” Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 300 (Tex. 1990). Therefore, if a governmental body, such as a school district’s board of trustees, deliberates about public business within their jurisdiction outside of an authorized meeting, that body has violated the Open Meetings Act.

In reference to the second question regarding whether sanctions exist for violating the Act, the answer is, once again, yes. While the Court of Criminal Appeals struck down the criminal sanctions for violating Section 551.143, civil remedies remain in place. For example, under Section 551.141, any action taken by a governmental body in violation of the Act is voidable. Additionally, Section 551.142 allows any interested person, such as community members, to file an action by mandamus or injunction to stop, prevent, or reverse a violation (or threatened violation) by the governmental body.

Lastly, regulatory sanctions may be imposed on certain governmental bodies who violate the Open Meetings Act. For example, Section 39.057 of the Texas Education Code gives authority to the Texas Education Agency (“TEA”) to conduct investigations of school districts that allegedly violate certain state or federal laws and take action, if warranted, based on the results of the investigations. At the same time, Section 11.051 of the Education Code requires a school board to only act by majority vote of present members at a lawfully called meeting. As a result, if the TEA conducts an investigation and finds a school board violated the Open Meetings Act, it could take any action authorized under Section 39.057(d) of the Education Code. These actions could potentially lower a school district’s accreditation status or accountability rating and the Commissioner could sanction the school district by taking any action authorized by Chapter 39A of the Education Code, including but not limited to issuing a public notice of deficiency, ordering a hearing before the commissioner, or appointing a conservator to oversee district operations.

While the Court of Criminal Appeals may have done away with the criminal sanctions for violating Section 551.143 of the Texas Open Meetings Act, governmental bodies, like school districts’ boards of trustees, must still comply with the Act. This Opinion makes clear “walking quorums” remain prohibited and civil remedies exist for violations.

If you would like to read the full opinion, click here.

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

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.

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