Blog | Leasor Crass, P.C

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.

August 30, 2018 By LeasorCrass

Guns, Drugs, & Interloping

by Mike Leasor

Although the title sounds like that of a bad heavy metal song, it actually refers to three very recent news topics on the legal front that may affect your school district.

Guns: If your school is a polling location, the Election Judge can carry at your school.

In Opinion No. KP-0212, Attorney General Ken Paxton answers the question on whether sections 46.02 and 46.03 of the Penal Code apply to presiding election judges licensed to carry a handgun under chapter 411 of the Government Code. Section 46.03 is the statute that prevents any licensed handgun carrier, other than law enforcement and certain other exceptions, from entering on to a school premise or attending a school related activity.

Because he can, the Attorney General opined that election judges who are licensed to carry may be on school premises with their handgun while performing their duties under the Election Code. The Attorney General based his opinion on a case that is over 100 years old. He stated that in performing their duties at the polling place, the Election Code gives presiding judges the power of a state district judge to enforce order and preserve the peace. More than 100 years ago, a Texas court addressed whether that statutory authority in a predecessor statute allowed presiding judges to carry arms to a polling location. See Hooks v. State, 158 S.W. 808, 808 (Tex. Crim. App. 1913). That court concluded that because a presiding election judge had the same power as a district judge to enforce order and keep the peace, and because a district judge could carry arms to a polling location, the presiding election judge likewise had authority to do so. Id. Thus, in the event your school is used as a polling place, the official election judge may be armed.

Drugs: Epinephrine auto-injectors and defining “all hours the campus is open.”

The Texas Department of State Health Services has issued a new rule, effective August 1, 2018, that is causing concern and confusion. Texas Education Code §38.208 states that a district that adopts a policy regarding the maintenance, administration, and disposal of epinephrine auto-injectors at each campus in the district or school must ensure the policy requires that each campus have one or more school personnel members or school volunteers authorized and trained to administer an epinephrine auto-injector present during all hours the campus is open. In the past, the District has been allowed to define “all hours the campus is open.” However, the new rule defines all hours the campus is open to mean “at a minimum, during regular on-campus school hours, and when school personnel are physically on site for school-sponsored activities.”

Most districts have received this new language in the form of a new policy. The new proposed FFAC (LOCAL) accurately reflects the regulations found in 25 TAC Sections 37.601 and 37.611, which went into effect on August 1, 2018. Based on this new definition, here are some recommendations that you may want to follow:

The District could choose to discontinue the practice of unassigned epinephrine auto-injectors.
Although the District has been provided with a definition of “all hours the campus is open” in policy, it has not been provided with the definition of school-sponsored activity. The District could draft a regulation that defines school-sponsored activity.
The regulation might also include where to place the injectors, notice to parents, and who has access.
It is my understanding that TASB will be issuing a model regulation this month that addresses this issue. Additionally, TASB Legal Services is also in the process of creating guidance for districts on epinephrine auto-injectors that will address other requirements and considerations that stem from the finalized rules.

As written, this is a very onerous requirement. However, you might define school-sponsored activity as any meeting or event on school campus that requires a certified staff member to be present during that meeting. This might exclude PTAs and other groups. By placing this in a regulation, you are able to define as you wish and better control the provisions of use.

Finally, it should be noted that a person who in good faith takes, or fails to take, any action related to the administration of epinephrine auto-injectors is immune from civil or criminal liability or disciplinary action resulting from that action or failure to act. See Texas Education Code §§38.215 and 22.052(a), (b). Thus, if mistakes are made, then there is no liability for the District, only any publicity or political fallout.

Interlopers: Ejecting people from district property and their right to appeal.

In a final piece of news, the Texas Education Commissioner has updated the rules regarding the ejection of unauthorized persons on school grounds. Specifically, he has provided guidance on the appeal process, which was mandated by the legislature. The revised rule, 19 TAC §103.1207(h), requires a school district’s board of trustees to adopt a policy that uses the school district’s existing grievance process to permit a person refused entry to or ejected from property controlled by the school district to appeal such refusal of entry or ejection. The policy must permit a person appealing under this section to address the school district’s board of trustees in person within 90 days of the commencement of the appeal, unless the appeal is granted before the school district’s board of trustees considers the appeal. Additionally, subsection (g) requires a school district to post on the district’s Internet website and any campus websites a notice regarding the provisions of this section, including the appeal process set forth in subsection (h) of this section.

It is recommended that the appeal process link include the statement found in (h) and have links to Board Policies FNG (LOCAL) and GF (LOCAL). Although TASB will probably introduce a revision to Board Policy GKA (LEGAL) and (LOCAL) soon regarding the 90 day time limit to hear the appeal, districts should be mindful of the time limit if an appeal is filed in the interim.

It is worth noting that the Commissioner authored 19 TAC §103.1207(h) pursuant to Texas Education Code §37.105. This law has caused confusion and consternation among districts in that its requirements can be onerous and do not necessarily allow for immediate action. However, under a District of Innovation plan, districts may choose to be exempt from this section.

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

February 9, 2018 By LeasorCrass

TEA SEEKING INPUT REGARDING DRAFT CORRECTIVE ACTION PLAN

Dean Micknal As detailed in a monitoring report released by the U.S. Department of Education’s Office of Special Education Programs (“OSEP”) last month, TEA’s use of the 8.5 percent special education representation indicator was determined to have contributed to a statewide pattern of practices that violated the Individuals with Disabilities Education Act (IDEA) child find requirements, resulted in a failure to make FAPE available to all eligible children with disabilities residing in the State, and demonstrated a failure on the part of TEA to fulfill its general supervisory and monitoring responsibilities under IDEA. TEA is now seeking “significant stakeholder engagement” regarding an initial draft of its plan to bring it back into compliance with IDEA. Detailed information about opportunities available for providing feedback (including a link to an online survey and calendar of upcoming stakeholder meetings) is available online here. This opportunity to provide input should not be ignored, as the plan has serious repercussions for public school districts.

Those wishing to review a full copy of OSEP’s 14 page monitoring report can access it here. However, the critical issue identified by OSEP can be summarized as a perceived widespread confusion on the part of local school districts with respect to the obligation to refer students for evaluation under IDEA as required by 34 CFR §300.111. Specifically, OSEP identified serious and systemic problems with how this “child find” mandate relates to Response to Intervention (“RtI”), Section 504, and the state’s dyslexia laws. The report emphasizes OSEP’s position that supports being provided in the general education environment through these and other programs cannot serve as a basis to delay or deny the referral of a struggling learner who is suspected of having a disability and needing special education and related services.

School districts should be aware that TEA’s initial proposal for remedying this issue includes the following provision:

TEA will require every district and charter school to identify all students who were in RtI for 6+ months, only had a Section 504 plan, or were exclusively in a dyslexia or dyslexia-related program. Schools must connect with the parents of these identified students not yet in special education and notify them of the corrective action plan and opportunity for a special education evaluation. The cost of identifying and conducting assessments for students suspect of having a disability has always been the responsibility of the district, which will continue.

While well intentioned, implementing this proposal could prove problematic for local school districts. First, the plan doesn’t address incidents in which a district might have legitimate reasons for refusing to conduct an evaluation. Second, it doesn’t consider the logistical issues that might arise from attempting to complete a potentially massive number of evaluations within the statutorily imposed timeframe. Finally, districts should recognize that the “costs of identifying and conducting assessments for students suspected of having a disability” includes costs associated with the procedural safeguards provided to the parents seeking those evaluations. These costs include the obligation to provide an Independent Educational Evaluation (IEE) at public cost and/or the right to request a due process hearing in response to disagreements regarding the evaluation.

Despite its fundamental importance, Child Find has proved to be a deceptively complicated concept. While undeniably challenging, the potential benefit of developing clear, concise, and unambiguous guidance in response to OSEP’s findings should not be overlooked. In the meantime, if you have questions about your district’s responsibilities under IDEA and/or participating in TEA’s efforts to address OSEP’s concerns, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.

LEASOR CRASS, P.C.

OFFICE LOCATION