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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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.

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Title IX: Questions and Answers Regarding the Final Rule

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. As you develop additional questions, please reach out to us.  As always, we are here for you!

  1. What is Title IX?

A law that prohibits discrimination on the basis of sex in educational institutions that receive federal funding.

  1. What is the purpose of the recently issued revision?

As provided for in the Summary of the Final Rule, the primary purpose of the newly issued regulation is to:

[e]ffectuate Title IX’s prohibition against sex discrimination by requiring recipients to address sexual harassment as a form of sex discrimination in education programs or activities. The final regulations obligate recipients to respond promptly and supportively to persons alleged to be victimized by sexual harassment, resolve allegations of sexual harassment promptly and accurately under a predictable, fair grievance process that provides due process protections to alleged victims and alleged perpetrators of sexual harassment, and effectively implement remedies for victims.

Additionally, Secretary DeVos’ Summary states that the regulations “clarify and modify Title IX regulatory requirements regarding”:

  • remedies the Department may impose on recipients for Title IX violations;
  • the intersection between Title IX, Constitutional protections, and other laws;
  • the designation by each recipient of a Title IX Coordinator to address sex discrimination including sexual harassment;
  • the dissemination of a recipient’s non-discrimination policy and contact information for a Title IX Coordinator;
  • the adoption by recipients of grievance procedures and a grievance process;
  • how a recipient may claim a religious exemption; and,
  • prohibition of retaliation for exercise of rights under Title IX.
  1. Who is protected by Title IX?

Any person in the United States who is involved in an educational program or activity that receives Federal financial assistance.

  1. What is the definition of sexual harassment for purposes of the revised regulations?

Any instance of quid pro quo harassment by a school’s employee, any unwelcome conduct that a reasonable person would find so severe, persuasive, and objectively offensive that it denies a person equal educational access, and any instance of sexual assault, dating violence, domestic violence, or stalking.

  1. What is “quid pro quo” harassment?

Pursuant to the Final Rule, Section 106.30(a) of the implementing regulations now defines quid pro quo harassment as “[a]n employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct.”

  1. What does the school’s education program or activity include?

Education program or activity includes locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurred. Title IX applies to all of a school’s education programs or activities, whether such programs or activities occur on-campus or off-campus.

  1. Does a district have to have a Title IX coordinator?

Yes.

  1. Who does the district have to notify of the Title IX coordinator’s contact information?

Applicants for admission and employment, parents or legal guardians of elementary and secondary school students, and all unions.

  1. What Title IX contact information is a district obligated to give out?

The name or title, office address, e-mail address, and telephone number of the Title IX coordinator.

  1. Does the district have to display the Title IX coordinator’s contact information anywhere else?

Yes.  Districts must display the contact information for the Title IX coordinator on their website.

  1. What triggers an obligation to respond to allegations of sexual harassment?

K-12 schools must respond whenever ANY employee has actual notice of sexual harassment, including allegations of sexual harassment. Previously, districts had actual knowledge when an official with authority to take corrective action was notified.

  1. Who can report sexual harassment?

As stated above, any person may report sexual harassment, either directly to the Title IX coordinator or to any other employee who is then responsible for forwarding the information to the Title IX coordinator.

  1. When does a report of sexual harassment have to be made to require a district to act?

At any time, including during non-business hours.

  1. What must a Title IX coordinator do after receiving a report of sexual harassment?

As revised, the regulations include specific obligations that the Title IX coordinator must undertake upon receiving a report of sexual harassment.  These include:

  • promptly contacting the complainant confidentially to discuss the availability of supportive measures;
  • considering the complainant’s wishes with respect to supportive measures;
  • informing the complainant of the availability of supportive measures with or without the filing of a formal complaint; and,
  • explaining to the complainant the process for filing a formal complaint.
  1. What must a district do after receiving a report of sexual harassment?

The district must follow the grievance process that aligns with the new regulations.

  1. After a report of sexual harassment is made, can the district discipline the alleged respondent?

No. The district must complete the grievance process and cannot impose any disciplinary sanctions or other actions against the student if the conduct in question arose out of the same facts of circumstances as a report of sexual harassment. However, the district may impose supportive measures against the respondent.

  1. What are supportive measures?

Individualized services reasonably available that are nonpunitive, non-disciplinary, and not unreasonably burdensome to the other party while designed to ensure equal educational access, protect safety, or deter sexual harassment.

  1. How does a school determine what supportive measures are appropriate?

A school’s selection of supportive measures and remedies should be based on what is not clearly unreasonable in light of the known circumstances.

  1. Is the district required to investigate all reports of sexual harassment?

No. Either the complainant or the Title IX coordinator determines whether the report of sexual harassment is to be investigated. A complainant’s wishes with respect to whether the school investigates should be respected unless the Title IX coordinator determines that signing a formal complaint to initiate an investigation over the wishes of the complainant is not clearly unreasonable in light of the known circumstances.

  1. Does the district have to investigate the report if the report does not meet the definition of sexual harassment or did not occur in the school’s education program or activity?

No. If the allegations in a formal complaint do not meet the definition of sexual harassment in the Final Rule, or did not occur in the school’s education program or activity against a person in the United States, the Final Rule clarifies that the school must dismiss such allegations for purposes of Title IX but may still address the allegations in any manner the school deems appropriate under the school’s own code of conduct.

  1. When must a district investigate a report of sexual harassment?

The school must investigate the allegations when any formal complaint is filed.

  1. What should the district do immediately after receiving a formal complaint?

The district must send written notice to both parties (complainant(s) and respondent(s)) of the allegations upon receipt of a formal complaint.

  1. Are hearings required, as part of the investigation, for K-12 schools?

While the Final Rule makes hearings mandatory at the post-secondary level, hearings are optional for purposes of K-12. However, the rule does require schools to provide an equal opportunity for both parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence during the investigation.

  1. Does the district have to afford each party the opportunity to question the opposing party?

Yes. The district must afford each party the right to question the opposing party. For postsecondary institutions, the school’s grievance policy must provide for a live hearing.  For K-12 schools, the grievance process may but need not provide for a live hearing.  With or without a hearing, after the school has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.

  1. Who issues the written determination of the investigation?

The decision maker, who cannot be the same person as the Title IX coordinator or the investigator.

  1. How does a district conclude an investigation?

The decision-maker (who cannot be the same person as the Title IX coordinator or the investigator) must issue a written determination regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, rationale for the result as to each allegation, any disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant. The written determination must be sent simultaneously to the parties along with information about how to file an appeal.

  1. Do the complainant and respondent have the right to an appeal of a district’s decision?

Yes. A school must offer both parties an appeal from a determination regarding responsibility, and from a school’s dismissal of a formal complaint or any allegations therein, on the following bases:

  • Procedural irregularity that affected the outcome of the matter;
  • Newly discovered evidence that could affect the outcome of the matter; and/or
  • Title IX personnel had a conflict of interest or bias, that affected the outcome of the matter.
  • A school may offer an appeal equally to both parties on additional bases.
  1. Can a district informally resolve a complaint?

Sometimes. A school, in its discretion, can choose to offer and facilitate informal resolution options, such as mediation or restorative justice, so long as both parties give voluntary, informed, written consent to attempt informal resolution. Any person who facilitates an informal resolution must be well trained. At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint. However, schools must not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.

  1. What requirement does the Final Rule impose with respect to retention of information related to Title IX incidents?

The final rule requires schools to document and keep records of all sexual harassment reports and investigation changes for seven years.

For more information, please see the following resources:

 

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Schools to Stay Closed for 2019-2020: TEA Rules Concerning Use of School Buildings by Teachers and Staff

by Holly James

On April 17, 2020, Governor Abbott ordered all schools to remain closed “to in-person classroom attendance by students” for the remainder of the 2019-2020 school year.  Teachers and staff are encouraged to continue to work remotely from home if possible, but are now permitted to “return to schools to conduct remote video instruction, as well as perform administrative duties, under the strict terms required by the Texas Education Agency.”

In accordance with the Governor’s order, TEA has established the following parameters that must be followed when allowing staff to enter school facilities:

  • School classrooms are closed for the remainder of the 2019-2020 school year.
  • Teachers may go into the classroom for video instruction, to perform administrative duties, and/or to clean out their classrooms.
  • Where possible, teachers and staff should continue to work remotely, and if they cannot do so, they should follow the parameters outlined by TEA.
  • Teacher and staff time at schools should be staggered at each individual campus to enable social distancing to be implemented effectively.
  • Teachers and staff must be in the classrooms or offices by themselves and must maintain social distancing of at least 6 feet from one another.
  • Teachers and staff should wear masks if available, or face coverings if masks are not available.
  • Teachers and staff must screen themselves before coming into school for: new or worsening cough; shortness of breath; sore throat; loss of taste or smell; feeling feverish or a measured temperature greater than or equal to 100.0 degrees Fahrenheit; or known close contact with a person who is lab-confirmed to have COVID-19.
  • Schools must clean and sanitize bathrooms, doorknobs, and other commonly touched surfaces.

Governor Abbott’s April 17th Order further mandates that “every 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.”  Our discussion about what constitutes an “essential service” is available here.  “Reopened services” consist of non-essential retail services provided through pickup or delivery beginning April 24, 2020.

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How Does Your District Calculate FMLA Leave? You May Want to Make a Policy Change

By Heather Castillo

We know that two new Family Medical Leave Act laws related to the COVID-19 pandemic went into effect on April 1, 2020, as follows:

  1. Emergency Family and Medical Leave Expansion Act (EFMLEA) which extends Family and Medical Leave; and
  2. Emergency Paid Sick Leave Act (EPSLA) which provides for emergency paid sick leave for absences.

These new provisions of the law are only effective for the limited time period of April 1 to December 31, 2020.

So, if you have employees who qualify for these special provisions, be sure to apply them and provide your employees with these additional benefits.

However, in the midst of the COVID-19 pandemic, please don’t forget the Family Medical Leave Act basics. We recommend that you review your District’s Board Policy DEC (LOCAL), Leaves and Absences. It contains the language that establishes how your District calculates an employee’s entitlement to 12 weeks of FMLA leave.

There are four different ways to calculate FMLA leave:

(1) the calendar year – 12-month period that runs from January 1 through December 31;

(2) any fixed 12-months – 12-month period such as a fiscal year (for example, October 1 through September 30), a year starting on an employee’s anniversary date (for example, September 22 through September 21), or a 12-month period required by state law;

(3) the 12-month period measured forward – 12-month period measured forward from the first date an employee takes FMLA leave. The next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period; or

(4) a “rolling” 12-month period measured backward – 12-month period measured backward from the date an employee uses any FMLA leave. Under the ‘‘rolling’’ 12-month period, each time an employee takes FMLA leave, the remaining leave entitlement would be the balance of the 12 weeks which has not been used during the immediately preceding 12 months.

The “rolling” (also called the “look-back”) option provides the most protection for your District. If you have questions about FMLA leave, how to change the way your District calculates FMLA leave, or any other personnel benefit questions, please contact any of our attorneys for assistance.

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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.

TEA Special Education and Special Populations Updates for the Week of April 13, 2020
Dean Micknal, Partner

The Texas Education Agency has continued to post and revise guidance regarding Special Education and Special Populations during the previous week.

The revisions have included updating the general COVID19 Special Education Q&A to:

  1. Emphasize that the requirement to continue services to students identified and receiving services for dyslexia is ongoing and remind districts that there are currently no state or federal requirements that preclude the provision of dyslexia services to students in a virtual environment due to the Governor having waived restrictions related to teletherapy for dyslexia therapists holding licensure through the Texas Department of Licensure and Regulation; and,
  2. Clarify that the SHARS parental consent and annual notice mandates have not been changed so as to allow a previous provided consent to bill Medicaid to suffice for purposes of telehealth services.

In addition to updating the Q&A, the Agency posted new guidance on progress monitoring, managing challenging behaviors for both parents and LEAs, counseling (both as a related service, and remote counseling and student support services), and Occupational, Physical and Speech Language Therapy.

Finally, with respect to Special Populations, TEA significantly revised the existing English Learner FAQ, identified a statewide webinar to be available through TEHCY to address how to support students and families experiencing homelessness during COVID-19, and posted new guidance on Pregnancy Related Services and Gifted/Talented Education.

How Does Your District Calculate FMLA Leave? You May Want to Make a Policy Change
Heather Castillo, Partner

We know that two new Family Medical Leave Act laws related to the COVID-19 pandemic went into effect on April 1, 2020, as follows:

  1. Emergency Family and Medical Leave Expansion Act (EFMLEA) which extends Family and Medical Leave; and
  2. Emergency Paid Sick Leave Act (EPSLA) which provides for emergency paid sick leave for absences.

These new provisions of the law are only effective for the limited time period of April 1 to December 31, 2020.

Please click here to continue reading.

Schools to Stay Closed for 2019-2020: TEA Rules Concerning Use of School Buildings by Teachers and Staff
Holly James, Senior Associate

On April 17, 2020, Governor Abbott ordered all schools to remain closed “to in-person classroom attendance by students” for the remainder of the 2019-2020 school year.  Teachers and staff are encouraged to continue to work remotely from home if possible, but are now permitted to “return to schools to conduct remote video instruction, as well as perform administrative duties, under the strict terms required by the Texas Education Agency.”

Please click here to continue reading.

Leasor Crass

LEASOR CRASS, P.C.

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