Education Lawyers | Leasor Crass, P.C.

Welcome to Leasor Crass, P.C. Leasor Crass, P.C. is a boutique law firm located in Mansfield, Texas, with a main focus on the representation of public schools. The firm is managed by Mike Leasor and Rhonda Crass, seasoned attorneys with …

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May 11, 2020 By LeasorCrass

COVID-19 UPDATE

Below are today’s updates regarding COVID-19 and its impact on Texas public schools.  For additional resources, please visit our COVID-19 page.

Title IX: Questions and Answers Regarding the Final Rule
Dean Micknal, Partner and Victoria Elliott, Associate

On May 6, 2020, the US Department of Education issued an extensive update to the Title IX regulations (the “Final Rule”).  As the new regulations take effect on August 14, 2020, districts do not have much time to digest the information and prepare for implementation.  In an effort to assist our districts in learning the new material, Leasor Crass will be providing guidance and training over the next few months, beginning with the answers to what we expect to be some common questions listed below.

Please click here to continue reading.

TEA’s Updated Guidance on Graduation Ceremonies (*Updated 5.27.2020*)
Holly James, Senior Associate

On May 18th, TEA updated its guidance pertaining to graduation ceremonies.  Districts now have four options for ceremonies:

  1. Completely virtual ceremonies are approved and may proceed without the need for any further action on the part of the district.
  2. “Hybrid ceremonies” (those involving a compilation of pre-recorded videos of students filmed individually or in small groups) are now permitted to take place effective May 5th (moved up from May 15th).
  3. Vehicle ceremonies may proceed effective May 15th.
  4. Outdoor in-person ceremonies may take place in any county on or after May 29th.

a. Between May 15 and May 28, outdoor ceremonies are permitted in rural counties that have filed the required attestation form regarding five or fewer COVID-19 cases.

Indoor ceremonies are not permitted yet.

TEA’s guidance contains detailed conditions and restrictions for each of the different types of ceremonies currently allowed.  Note that the permissions and guidelines are subject to change at any time depending on changes to the public-health situation.

Note: Recommendations specific to Dallas County are available here.

TEA Special Education Updates for the Week of May 4, 2020
Dean Micknal, Partner

The Texas Education Agency updated the COVID-19 Special Education Q&A last week to address a number of issues relating to evaluations and graduating students.

First, TEA clarified that the expiration of Governor Abbott’s Stay at Home Order does not give LEAs the green light to start performing face to face evaluations.  Rather, districts will need to continue adhering to the statewide school closure requirements.

TEA also addressed several important issues that implicate ARD committee authority and duties:

  • Question 12 reiterates that ARD committees will need to make individualized determinations with respect to what additional or alternative services might be needed to meet transition goals when IEP prescribed transition services are not able to be provided due to the COVID-19 pandemic response.
  • Question 13 addresses how ARD committees should proceed in making determinations about graduation for a student with modified curriculum when the student was unable to complete all activities required by the IEP.
  • Question 14 discusses how ARD committees should approach the provision of compensatory services to students who are graduating in the Spring of 2020.
  • Finally, Question 15 explains that federal regulations still require any decision to exit a student from special education services to be “informed by a complete evaluation of all relevant areas of student performance”, meaning that ARD committees are not allowed to move forward with exiting a student if they have not been able to complete an evaluation.

Please contact one of the attorneys at Leasor Crass in the event you need additional guidance on any of these issues pertaining to special education.

Filed Under: Blog, Board Governance, COVID-19, Graduation, Personnel, School Boards, Section 504, Sexual Harassment, Special Education, Students, Title IX

May 6, 2020 By LeasorCrass

Limited Access to School Buildings by Students Now Permitted; TEA’s Guidance on Graduation Ceremonies

by Holly James

Under Executive Order GA-21, issued by Governor Abbott on May 5, 2020, school districts may now allow students to access school buildings as follows:

  • A student (accompanied by an adult if needed) may, as allowed by the school consistent with the minimum standard health protocols found in guidance issued by TEA, visit his or her school campus for either of the following purposes:
    • (a) for limited non-instructional administrative tasks such as cleaning out lockers, collecting personal belongings, and returning school items like band instruments and books; or
    • (b) for graduating seniors, to complete post-secondary requirements that cannot be accomplished absent access to the school facility and its resources, excluding any activity or assessment which can be done virtually.

Additionally, GA-21 provides that “schools may conduct graduation ceremonies consistent with the minimum standard health protocols found in guidance issued by the TEA.”  TEA’s guidance pertaining to graduation ceremonies, also released on May 5th, establishes the following restrictions:

  • In-person, indoor ceremonies are not permitted yet.
  • In person, outdoor ceremonies may take place in any county on or after June 1st, although this is subject to change depending on underlying public health conditions.
    • Between May 15 and May 31, outdoor ceremonies are permitted in rural counties that have filed the required attestation form regarding five or fewer COVID-19 cases.
  • Vehicle ceremonies may proceed effective May 15th, provided they comply with relevant executive orders and guidelines.
  • “Hybrid ceremonies” may proceed effective May 15th, provided they comply with relevant executive orders and guidelines. (Hybrid ceremonies involve a prerecorded production utilizing videos of students, either individually or in small groups, who may brought into school or other location to be filmed in caps and gowns, walking across the stage to receive their diploma, etc.)
  • Completely virtual ceremonies are approved and may proceed without the need for any further action on the part of the district.

With respect to hybrid and vehicle ceremonies, TEA notes that school districts should first consult their legal counsel to determine whether specific plans for the ceremony are permissible under Governor Abbott’s orders and any local orders that are not in conflict with the Governor’s orders.  TEA advises districts to then seek written approval from applicable local jurisdictions tasked with enforcement of COVID-19-related orders.

TEA’s guidance includes many creative ideas from Texas school districts regarding each type of ceremony listed above.  If you’d like us to review the specifics of any graduation plan your district is considering, we would be glad to help.

 

Filed Under: Blog, COVID-19, Graduation, Students

May 4, 2020 By LeasorCrass

COVID-19 UPDATE

Below are today’s updates regarding COVID-19 and its impact on Texas public schools.  For additional resources, please visit our COVID-19 page.

Don’t Forget About FERPA
Victoria Elliott, Associate

The Department of Education’s Student Privacy Policy Office has sent out information informing districts of the importance of updating FERPA/PPRA policies and notifications, as applicable, during online and virtual learning due to COVID-19.

If appropriate based on current policies, districts should revise the following:

  1. “the criteria specified in their annual notification of FERPA rights… as to who constitutes a school official and what constitutes a legitimate educational interest in order to permit the non-consensual disclosure of personally identifiable information from education records to school officials who have been determined to have legitimate educational interests under the school official exception…”; and
  2. “their directory information policies under FERPA.”

Please review the cover letter and annual notification here.

TEA and U.S. Dept. of Education Special Education Updates for the Week of April 27, 2020
Dean Micknal, Partner

After completely redesigning the COVID-19 Support: Special Education webpage last week, the Texas Education Agency had a relatively quiet week of updates.  The only update in the General Guidance section appears to consist of a minor correction to the COVID-19 Special Education Q&A regarding the requirement that SHARS informed consent include the name, rather than signature, of the district staff member who received information.

Please click here to continue reading.

Gov. Abbott’s Latest Executive Order and Its Impact on Graduations and Proms
Holly James, Senior Associate 

On April 27, 2020, Governor Abbott issued Executive Order GA-18, allowing certain businesses to physically reopen at 25% capacity.  Very little of GA-18 impacts schools in a new way, but as districts work to make decisions about graduation, prom, and other activities, it is useful to take a more in-depth look at the primary mandate contained in the order.

Please click here to continue reading.

Filed Under: Blog, COVID-19, Graduation, Section 504, Special Education, Students Tagged With: FERPA

May 4, 2020 By LeasorCrass

Executive Order GA-18, Essential and Reopened Services, Impact on Graduations and Proms

by Holly James

(NOTE: Executive Order GA-21 was issued May 5, 2020 and expands the list of reopened services discussed below. We have discussed certain provisions of GA-21 related to schools in an updated post available here.)

On April 27, 2020, Governor Abbott issued Executive Order GA-18, allowing certain businesses to physically reopen at 25% capacity.  Very little of GA-18 impacts schools in a new way, but as districts work to make decisions about graduation, prom, and other activities, it is useful to take a more in-depth look at the primary mandate contained in the order.

Schools are still ordered to remain closed to in-person classroom attendance by students and may not recommence before the end of the 2019-2020 school year.  As in the previous order, “teachers and staff are encouraged to continue to work remotely from home if possible, but may return to schools to conduct remote video instruction, as well as perform administrative duties under the strict terms required by [TEA].”  TEA’s guidelines for doing so are discussed here.

Executive Order GA-18, which will remain in effect until May 15th, reasserts the Governor’s previous mandate regarding in-person contact and adds additional guidance for individuals over 65:

[E]very person in Texas shall, except where necessary to provide or obtain essential services or reopened services, minimize social gatherings and minimize in-person contact with people who are not in the same household.  People over the age of 65, however, are strongly encouraged to stay at home as much as possible; to maintain appropriate distance from any member of the household who has been out of the residence in the previous 14 days; and, if leaving the home, to implement social distancing and to practice good hygiene, environmental cleanliness, and sanitation.  (All emphasis added)

The individual components of the first sentence above (underlined) are discussed below, including the extent to which gatherings may be allowed and what constitutes an essential or reopened service.  Regardless of what may fall within the scope of that first sentence, people are still prohibited by GA-18 from “visiting bars, gyms, public swimming pools, interactive amusement venues such as bowling alleys and video arcades, massage establishments, tattoo studios, piercing studios, or cosmetology salons.”

1. The Primary Mandate: Minimize Social Gatherings & In-Person Contact

 GA-18 does not define social gathering, nor does it specify a certain number of people who would constitute an impermissible gathering.  Previously, Governor Abbott banned gatherings of more than ten people, but that number was eliminated in GA-14 on March 31, 2020.  GA-14 imposed increased social-distancing restrictions by limiting all gatherings of any size except as necessary to provide or obtain essential services.  GA-18 reasserts this restriction, with certain adjustments to the list of excepted activities (discussed below).  The current ban on social gatherings should therefore be read in conjunction with the requirement to “minimize in-person contact” with people who do not live with you.

Governor Abbott specifically notes that GA-18 does not prohibit people from accessing essential or reopened services or engaging in essential daily activities “so long as the necessary precautions are maintained to reduce the transmission of COVID-19 and to minimize in-person contact with people who are not in the same household.”  GA-18 lists the following as examples of essential daily activities that may be performed with necessary precautions:

  • Going to the grocery store or gas station;
  • Providing or obtaining other essential or reopened services;
  • Visiting parks;
  • Hunting or fishing; or
  • Engaging in physical activity like jogging, bicycling, or other outdoor sports.

2. The Exceptions: Essential Services & Reopened Services

Under the language of GA-18, the only exceptions to the Governor’s prohibition of social gatherings and in-person contact are those activities that are “necessary” to provide or obtain (1) essential services or (2) reopened services.

(a) What is an “Essential Service” under GA-18?

 The previous order defined “essential services” as “everything listed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, Version 2.0 [CISA Guidance 2.0], plus religious services conducted in churches, congregations, and houses of worship.”  (Our discussion about what constitutes an “essential service” under Version 2.0 is available here.)  Homeland Security issued updated guidance in the form of Version 3.0 on April 17th.  Governor Abbott’s GA-18 incorporates everything listed in the new Version 3.0 into the definition of essential services.

While Version 3.0 adds several more pages to its list of those services deemed to be essential during the COVID-19 pandemic, most of the additions do not pertain to school operations.  None of the critical services identified in Version 2.0 appear to have been eliminated in Version 3.0.  There is still not a specific category in the Guidance devoted to schools or school-district operations; however, many aspects of district operations are identified in other industry categories, including the following:

  • The following are included within the category of “Other Community- or Government-Based Operations and Essential Functions”:
    • “Educators supporting public and private K-12 schools, colleges, and universities for purposes of facilitating distance learning or performing other essential functions.”
    • “Workers to ensure continuity of building functions, including but not limited to security and environmental controls (e.g., HVAC)[.]”
    • “Workers who maintain digital systems infrastructure supporting other critical government operations.”
    • “Workers supporting essential maintenance, manufacturing, design, operation, inspection, security, and construction for essential products, services, and supply chain and COVID 19 relief efforts.”
  • Additional aspects of school-district operations can be found in other categories of the CISA Guidance pertaining to food service, transportation and logistics, communications and information technology, financial services, and hygiene products and services:
    • “Government, private, and non-governmental organizations’ workers essential for food assistance programs (including school lunch programs)[;]”
    • “[Transportation] Workers supporting the distribution of food[;]”
    • “Employees supporting or enabling transportation functions, including truck drivers, bus drivers, dispatchers, maintenance and repair technicians, warehouse workers[;]”
    • “Workers supporting communications systems and information technology—and work from home solutions—used by law enforcement, . . . education, and other critical industries and businesses.”
    • “Employees required in person to support Software as a Service businesses that enable remote working, performance of business operations, distance learning, media services, and digital health offerings, or required for technical support crucial for business continuity and connectivity.”
    • “Workers who are needed to provide, process and maintain systems for processing, verification, and recording of financial transactions and services, including payment, clearing, and settlement[;]”
    • “Workers who support financial operations . . . , such as those . . . providing accounting services[;]”
    • “Workers providing disinfection services, for all essential facilities and modes of transportation, and supporting the sanitation of all food manufacturing processes and operations from wholesale to retail[;]” and
    • “Support required for continuity of services, including commercial disinfectant services, janitorial/cleaning personnel, and support personnel functions that need freedom of movement to access facilities in support of front-line employees.”

Version 3.0 also adds the following services to the category of Healthcare and Public Health that may be relevant to at-home services provided by districts under IDEA (though IDEA is not specifically referenced):

  • Healthcare providers such as nurses, physical therapists, speech therapists, occupational therapists, speech pathologists (all but speech therapists were included in Version 2.0);
  • Human services providers, especially for at risk populations such as:
    • Home delivered meal providers for older adults, people with disabilities, and others with chronic health conditions.
    • Home-maker services for frail, homebound, older adults.
    • Personal assistance services providers to support activities of daily living for older adults, people with disabilities, and others with chronic health conditions who live independently in the community with supports and services.
    • Home health providers who deliver healthcare services for older adults, people with disabilities, and others with chronic health conditions who live independently in the community with supports and services.

(b) What is a “Reopened Service” under GA-18?

Under the Governor’s previous order, “reopened services” were any non-essential retail services that could be provided through pickup or delivery (retail to go).  Under GA-18, the definition of “reopened services” is expanded to include the following:

  • In-store retail services, for retail establishments operating at up to 25% occupancy.
  • Dine-in restaurant services, for restaurants operating at up to 25% occupancy (but only those restaurants with less than 51% of gross receipts from alcohol); no valet services are allowed except for disabled parking.
  • Movie theaters operating at up to 25% occupancy for any individual theater for any screening.
  • Shopping malls operating at up to 25% occupancy of the mall, but food-court dining areas, play areas, and interactive displays and settings must remain closed.
  • Museums and libraries operating at up to 25% occupancy (but local public museums and libraries can open only if permitted by local government). Any interactive functions or exhibits must remain closed, including child play areas.
  • Services provided by an individual working alone in an office.
  • Golf course operations.
  • Local government operations, including county and municipal governmental operations relating to permitting, recordation, and document-filing services, as determined by the local government.

In counties with five or fewer cases of COVID-19, in-store retail, dine-in restaurant, movie theaters, shopping malls, museums, and libraries may open and operate at up to 50% total occupancy, provided the county has filed the required form with DSHS and is in compliance with its requirements.

As to these reopened services, Governor Abbott includes this warning:

Notwithstanding anything herein to the contrary, the governor may by proclamation identify any county or counties in which reopened services are thereafter prohibited, in the governor’s sole discretion, based on the governor’s determination in consultation with medical professionals that only essential services should be permitted in the county, including based on factors such as an increase in the transmission of COVID-l9 or in the amount of COVID-19-related hospitalizations or fatalities.

3. A Condition on the Exceptions

GA-18 states that, even when providing or obtaining essential or reopened services, “people and businesses should follow the minimum standard health protocols recommended by DSHS, found at www.dshs.texas.gov/coronavirus, and should implement social distancing, work from home if possible, and practice good hygiene, environmental cleanliness, and sanitation.”  Governor Abbott is also encouraging individuals to wear face coverings, but notes that civil or criminal penalties may not be imposed for failure to do so.

4. What’s the Impact of GA-18 in My County?

Governor Abbott expressly states in his order that GA-18 “shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services or reopened services allowed by this executive order, allows gatherings prohibited by this executive order, or expands the list of essential services or the list or scope of reopened services as set forth in this executive order.”

Although the “but only to the extent” language makes it seem as though counties have some wiggle-room, the clauses that follow have the practical effect of eliminating that flexibility.  Counties cannot restrict essential services or reopened services allowed under GA-18, and they are also now expressly prohibited from expanding the list or scope of such services.  Additionally, counties cannot allow any gatherings that are prohibited under the order.

The Attorney General issued an informal opinion letter on April 20, 2020 to Commissioner Morath regarding whether local orders could prevent and restrict teachers and staff from accessing public school buildings to perform essential services.  That letter explains that the Governor’s Executive Order supersedes any conflicting local order, and local officials cannot prohibit these essential services.  (Note that the Attorney General was interpreting the previous order, GA-16, at the time; however, the reasoning still applies to the current order, GA-18.)

5. What About Proms & Graduations?

(NOTE: Our updated discussion about graduations is available here.)

Unfortunately, there is not yet a clear answer about how to handle proms and graduations.  Proms and graduations are not expressly addressed in the language of GA-18.  Traditional, in-person proms probably would not comply with the Governor’s current ban on gatherings and instructions to minimize in-person contact with individuals not in the same household.

Graduations will depend.  Per TEA’s updated Guidance for 2020 Seniors, districts may conduct completely virtual graduation ceremonies without the need to obtain any approval from TEA or other authorities to do so.  As for in-person ceremonies, TEA has indicated that it is working with public-health specialists and a superintendent task force to identify the circumstances under which in-person ceremonies may occur and will be releasing guidelines soon.

Notwithstanding any guidance from TEA or executive orders, existing contracts with venues still need to be consulted to determine the parties’ obligations and remedies with respect to cancellation and how government orders impact contractual duties.

If you have questions about the current Executive Order or your district’s contract with a prom or graduation venue, please let us know.

Filed Under: Blog, COVID-19, Graduation, Students

April 27, 2020 By LeasorCrass

Class of 2020: Waiving Graduation Requirements

by Victoria Elliott

In the wake of COVID-19, many questions have arisen regarding graduation for the 2020 senior class.  During these times, it is important to remember that certain graduation requirements may be satisfied via an individual graduation committee (“IGC”) review:

  • Seniors who were enrolled in the district or charter school during the 2019–2020 school year may graduate via an IGC determination, regardless of the number of EOC exams they still need to pass.
  • In accordance with Texas Education Code (TEC) §28.0258, students must successfully complete the curriculum requirements for high school graduation as identified in Title 19 Texas Administrative Code (TAC), Chapter 74, Subchapter B. Districts and charter schools must determine if a student has met all other graduation requirements under TEC, §28.025(c), including successful completion of all curriculum requirements or an individualized education program.
  • A student who is on schedule to complete graduation requirements in Spring 2020, but who does not have the opportunity to retake a STAAR EOC assessment prior to graduation, is not required to pass that specific test to fulfill graduation requirements, but will need to successfully complete the IGC process to be eligible to graduate.
  • A student who is on schedule to complete graduation requirements in Spring 2020 and was scheduled to take a required EOC for the first time in Spring 2020 is not required to pass that specific test to fulfill graduation requirements. An IGC is not needed in such circumstances.

Further, TEA has advised that other graduation requirements may be addressed via waivers or alternative means of completing requirements.  For example, districts can apply for waivers if seniors have not yet met the requirement of receiving hands-on instruction regarding CPR.  Districts also have the authority to determine when and how students demonstrate proficiency in speech.  Lastly, if a senior who entered grade 9 in 2018-2019 or later is graduating early and has not yet completed instruction in proper interaction with law enforcement, the student may meet this requirement by viewing the TEA video, Flashing Lights: Creating Safe Interactions between Citizens and Law Enforcement.

It is important for districts to know that parents must still provide written permission allowing students to graduate under the Foundation High School Program without earning an endorsement. However, there are multiple ways parents can provide this written permission, including the following:

  • Complete the FHSP Endorsement Opt-Out Agreement (available in English or Spanish), add an electronic signature, and return the form to the district via email.
  • Write the statement below, sign the statement, and either take and return a picture of the statement to the district by email or return the signed statement itself to the district by mail.
    • “I have received written notice regarding the benefits to my child of graduating from high school with one or more endorsements, and I grant permission for my child to graduate under the Foundation High School Program without earning an endorsement.”

Lastly, TEA has reiterated that while calculation of GPA and class ranking is a local decision and is not required, districts must continue to identify junior and senior students in the top 10% of their class for purposes of eligibility for automatic college admission to a Texas institution of higher education pursuant to TAC 61.1201. If a district chooses to modify the policy for calculation of GPA, care should be taken to ensure that any method for calculation of GPA and class rank is applied to all impacted students equitably. One option may be to calculate GPA and class rank for the first four six weeks of the school year only.

For additional guidance regarding graduation of seniors, please refer to TEA’s guidance for 2020 Seniors and Individual Graduation Committees.

Filed Under: Blog, COVID-19, Graduation, Students

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