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TEXAS SCHOOL ADMINISTRATORSʼ

Publishers: Frank Kemerer, Jim Walsh and Eric Schulze Managing Editor: Eric Schulze Co-Editors: Laurie Maniotis and Jennifer Childress www.legaldigest.com

LEGAL DIGEST TM

Volume 19, Number 5

May 2003

retire to rehire: making the system work for your district By JoAnn S. Wright Attorney at Law Walsh, Anderson, Brown, Schulze & Aldridge, P.C. Irving, Texas

These days, the main thought on the mind of many retiring educators is not on what beach they will be spending their golden years. Instead, they want to know how quickly they can get back to work. One prime incentive to returning to work is financial, not only for retirees but sometimes for the employing school districts as well. The retirees can get a paycheck and an annuity check each month. The district can have experienced educators in the classrooms teaching kids, sometimes at a reduced cost. Of course, there are other reasons for “retire to rehire.” Some retiring educators are young at heart and want to continue teaching the school children of Texas. Many districts have teaching vacancies that cannot be filled otherwise. Whatever the motivation, retire to rehire is a hot topic these days. The challenge is how to get the retiree back to work as soon as possible without violating the laws and regulations that govern benefits available under the Teacher Retirement System of Texas (TRS). The consequences of violations could be grave. Retirees could lose their monthly benefits. Further, anyone intentionally misrepresenting information to TRS in an attempt to circumvent the rules could be subject to penalties. It is important that everyone who deals with the retire to rehire process understand the rules and regulations and that they act with good faith and honesty. This article will take an in-depth look at the retire to rehire phenomenon and its effects on Texas public schools. The article will discuss the current standards under the Texas Administrative Code, the Texas Government Code, and the TRS rules for the provision of benefits to retired educators who come back to work in the Texas public school system. The article then will review Texas Attorney General Greg Abbott’s opinion letter regarding the recent trend of school districts to contract with third party private companies that provide teaching services to the district. Immunity and liability issues also will be discussed. Finally, this article will provide practical guidance for school districts to deal with the retire to rehire phenomenon. IN THIS ISSUE . . .

THE CURRENT STANDARDS Texas Government Code Title 8 controls public retirement systems in Texas. Subchapter C covers the TRS. This subchapter contains broad provisions regulating the system, membership, and benefits. In addition to the statutory provisions, TRS has administrative rules found at 34 Texas Administrative Code, Part 3.1 Both the laws and the rules set out in detail how retirees can return to employment in Texas schools and still retain their retirement benefits.2 The TRS website at www.trs. state.tx.us has ample information about the retirement process and the retire to rehire phenomenon. Retirees can continue receiving a service retirement annuity if they are employed in private schools, in public schools in other states, in private business, or in other entities that are not TRS-covered employers.3 This article explores how the retirees can return to work in the place they love–a Texas public school. The Required Break In Service For retirement to be valid, each retiree must completely break his or her employment with a public school district. Specifically, the retiree must not be employed by a public school during the first full month following the month of his or her effective date of retirement.4 This is the date the contract ends, as opposed to the date the employee actually stops working.5 However, a person who works until as late as June 15 in order to complete all the required work may be considered to have ended employment on May 31 for retirement purposes. In that case, the retiree must not be employed for two months after the date of retirement.6 One very important element to the break in service rule is that the educator cannot have an agreement to return to a Texas public school. If the educator has a contract for future employment in a public school at the time of retirement, the

• Retire to Rehire: Making the System Work for Your District (JoAnn S. Wright)

• Law Dawg (Jim Walsh) • Legal Developments


2 retirement is invalid unless the employment is allowed under one of the “return to work” exceptions outlined below.7 A person who has not effectively retired or who revokes retirement because of a premature return to employment is not eligible for a retirement annuity and is required to return all annuity or lump sum payments to TRS.8 If the educator has an agreement in violation of the break in service rule, the retirement will be treated as though it never took place. Thus, it is imperative that a district not enter into an agreement to employ an educator prior to the effective date of retirement, unless one of the following exceptions applies. Exceptions to the Loss of Benefits Rule TRS benefits are paid monthly upon the retirement of a teacher. These monthly benefits generally are lost, however, for any month that the retiree is employed by a Texas public school or other entity subject to TRS.9 There are limited exceptions to this rule. If one of the exceptions applies, the retiree can collect both monthly TRS benefits and a paycheck from a school district.10 The exceptions include: 1. For persons who retired prior to January 1, 2001, they may return to work in any position up to full time without loss of benefits.11 2. For persons who retired after January 1, 2001, they may return to work without loss of benefits in the following instances:12 a. As a substitute at the district’s established daily rate for substitutes. b. In any position working one-half time per month. c. In any position working full time for no more than six months of the school year. d. As a classroom teacher, working as much as full time, if all of the following conditions are met: • retirement without reduction for early retirement • certified by the State Board for Educator Certification (SBEC) to teach the subjects assigned; • teaching in a critical-shortage area as determined by the board of trustees of the hiring school district, according to guidelines adopted by the Commissioner of Education; and • separation from service for at least twelve months. Texas School Administrators’ Legal Digest ISSN 0882 – 021X Managing Editor Co-Edited By Eric Schulze Laurie Maniotis & Jennifer Childress Published monthly except July and December Individual subscription..................................................................... $120 Copyright 2003. Reproduction of all or part of this publication requires permission from the editor. Texas School Administrators’ Legal Digest welcomes your comments and contributions, though publication is not guaranteed. The views of feature article authors are their own and do not necessarily reflect the views of the DIGEST. The information provided in the DIGEST is not intended to constitute specific legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Direct correspondence and subscription inquiries to: Texas School Administrators’ Legal Digest Editorial Office Business and Conference Office P. O. Box 2156 610 North Bell Avenue Austin, TX 78768 Denton, TX 76209 512-454-6864 940-382-7212 FAX 940-383-3809 Email info@legaldigest.com Website www.legaldigest.com

e. As a principal or assistant principal, working as much as full time, if the following conditions are met: • retirement without reduction for early retirement; • certified by the SBEC as a principal or assistant principal; and • separation from service for at least twelve months. f. As a bus driver working as much as full time. Substitute Service A retiree may return to work as a substitute teacher and still retain his or her retirement annuity. TRS defines a substitute as a person who serves on a daily, on-call basis in a position normally filled by another regular employee.13 A “permanent substitute” who teaches every day as a full time teacher does not qualify for the substitute teacher exception. A retired educator may work as a daily substitute without forfeiting his or her retirement annuity, as long as the pay does not exceed the daily rate of substitute pay established by the district.14 This exception does not apply for the first month after the employee’s effective date of retirement (or the first two months if the educator’s retirement date was set on May 31 pursuant to 34 Tex. Admin. Code § 29.14).15 A retiree who works for any part of one day is considered to have worked for one full day.16 The substitute service exception is not available to retirees who have elected to use the six month exception, described below, except as set forth in that section.17 One-Half Time Per Month Exception A retiree may return to work on a one-half time per month basis without forfeiting service retirement annuity payments.18 Under this exception, “one-half time” means one-half the fulltime load for the particular position as determined by the district or 92 clock hours, whichever is less.19 One-half time must be determined on a monthly basis because the time required for a full time position varies from month to month. Actual course instruction during any month shall not exceed one-half the normal load for full-time employment at the same teaching level.20 For bus drivers, one-half time employment shall not exceed 12 days in a calendar month, unless the retiree qualifies for the bus driver exception (see below).21 Work for any part of a day counts as a full day.22 The one-half time per month exception and the exception for substitute service (above) may be used during the same school year, as long as the substitute service and one-half time employment do not occur in the same month.23 Six Months Per Year Exception A retiree may return to work as much as full time under the six months per year exception without forfeiting his or her service retirement annuity if: (1) all work occurs within a six month period, and (2) the work takes place in a school year that begins after the effective date of retirement (or no earlier than October 1 if the retirement date is August 31).24 A retiree who already has used the exception for substitute service or for one-half time employment during a school year is eligible to use the six month exception during the same school year; however, all employment must take place within the same six month period.25 A retiree who returns to work under the six month exception cannot work as a substitute or one-half time employee during the six month off period.26 A retiree will forfeit an annuity payment for any month worked in excess of the six month period, even if the work otherwise would qualify for one of the exceptions under the TRS rules.27 The six month count begins during the first month that any work occurs.28


3 Acute Shortage Area Exception A retiree may continue receiving a service retirement annuity under the acute shortage area exception if the following conditions are met: (1) the individual is retired without a reduction for early retirement (pursuant to Texas Government Code § 84.202(a)); (2) the individual teaches at least one classroom hour per day in an acute shortage area; (3) the individual is certified by SBEC to teach the subjects assigned; and (4) the individual separated from service with all public schools and other entities covered by TRS for at least 12 consecutive months following his or her retirement.29 Acute shortage areas are determined by the board of trustees of the hiring school district, according to guidelines adopted by the Commissioner.30 The Commissioner most recently determined that the current acute shortage areas are (1) mathematics for grades 6-12, (2) science for grades 6-12, (3) all levels of special education, (4) languages other than English for grades 6-12, (5) all levels bilingual/English as a Second Language, and (6) technology applications for grades 6-12.31 The board may consider whether there are additional acute shortage areas in the district based on guidelines set forth by the Commissioner, which include suggested criteria for identifying local acute shortage areas.32 The district must develop procedures by which it actively recruits qualified applicants. When all recruiting efforts have been exhausted and the district still is unable to fill the vacancies, the board then can designate those areas as acute shortage areas. However, preference in hiring in acute shortage areas must be given to a certified applicant who is not a retiree.33 Districts should maintain documentation to demonstrate that preference was given to applicants who are not retirees. Can a district refuse to hire a retiree in a vacant position? The practice of refusing to consider a retiree for employment could be found discriminatory under the Age Discrimination in Employment Act (ADEA)34 and Chapter 21 of the Texas Labor Code, both of which prohibit employment discrimination based on age. However, salary costs or other expenses may be a legitimate nondiscriminatory reason for a district’s decision not to hire a retired educator. In EEOC v. Francis W. Parker School,35 the Court found that a school did not violate the ADEA when it refused to hire certain employees because their experience required that they be paid a higher salary. Similarly, the Fifth Circuit has found that high salaries and rapidly approaching retirement “would not be sufficient alone to support a finding of age discrimination because the ADEA prohibits discrimination on the basis of age, not salary or seniority.”36 This issue is yet to be tested, but a good argument may be that the cost associated with rehiring certain retirees is a nondiscriminatory reason for a district’s decision not to hire them. Principal or Assistant Principal Exception An educator who has retired without reduction for early retirement may be hired by a school district as a principal or assistant principal under certain circumstances without losing his or her retirement annuity.37 The retiree must be certified by SBEC as a principal or assistant principal, pursuant to Ch. 21 of the Education Code. In addition, the retiree must not have worked at a public school district for 12 consecutive months following his or her retirement.38 Bus Driver Exception An educator who retired without reduction for early retirement is eligible for the bus driver exception to the break in service rule. Under that exception, the retiree may drive one

or more TEA-approved bus routes per day for a school district without losing his or her retirement annuity.39 Recall that a retiree also may work as a bus driver under the one-half time per month exception (above). Disability Retirement Annuity As with a service retirement annuity, a person receiving a disability retirement annuity forfeits the annuity payment for any month in which the retiree is employed by a school district or other public educational institution covered by TRS, unless an exception applies.40 However, a person receiving a disability retirement annuity may not exercise the following the exceptions: (1) six month exception, (2) acute shortage area exception, (3) principal or assistant principal exception, or (4) bus driver exception.41 A person receiving a disability retirement annuity may be employed under the substitute service or one-half time per month employment exception under the same conditions as above, except that total substitute service and one-half time employment may not exceed 90 days during any school year.42 As with a service retirement annuity, these exceptions do not apply for the first month after retirement (or the first two months if the retirement date is May 31 pursuant to 34 Texas Administrative Code § 29.14).43 In addition, a person receiving a disability retirement annuity may be employed on a one-time only trial basis (1) as much as full time, (2) for a period of no more than three consecutive months of a school year, and (3) in a school year beginning after the retirement date (or no earlier than October 1 if the retirement date is August 31).44 Working any portion of a month counts as working a full month under this exception. This one-time only exception is in addition to the 90 days of work allowed for substitute or one-half time per month service.45 Reporting Requirements Each month, a school district or other reporting entity shall send TRS a certified statement concerning all employment of TRS service or disability retirees.46 The statement should contain enough information so that TRS can classify the retiree’s employment into either (1) one of the six exceptions noted above, (2) full-time employment, (3) trial employment of a disability retiree for three months, or (4) employment of a service retiree who retired before January 1, 2001. A retiree who wants to work under either the acute shortage area exception or the principal or assistant principal exception must elect to do so in writing on a TRS form by the end of the first month of employment or 30 days after beginning employment, whichever is later.47 If a retiree elects to use either: (1) the six month exception, (2) the acute shortage area exception, (3) the principal or assistant principal exception, or (4) the bus driver exception but has not been reported in that manner, the school district or other reporting entity must notify TRS in writing by amending the previous TRS 118, Employment of Retired Member reports.48 CONTRACTING WITH PRIVATE COMPANIES FOR TEACHING SERVICES In addition to the statutory exceptions listed above, another method exists for retirees to return to work at public school districts. The retirees are hired by a private company, and the district then contracts with that company for the provision of teaching services. This type of arrangement does not violate the return to work rules because the educator is not employed by the school district. Instead, the employer is the private company.


4 Under this scenario, current school district employees who are eligible for full retirement benefits retire from the district and begin drawing benefits. They are then hired by a private company that contracts with school districts to provide educational services. The school district subsequently enters into a contract with the private company. The company places educators approved by the district in teaching positions for a specified period of time. The district pays the private company an agreed upon amount, and the private company then pays its employees. Typically, the private company will characterize the services as “temporary” in the contract with the school district to place the retired educator. Because these educators already are receiving TRS benefits, they typically are on the TRS health insurance plan; thus, likely neither the school district nor the private company must help fund the educator’s health insurance premiums. Private companies often assert that employing them to provide retired teachers saves districts health insurance costs, unemployment insurance costs, workers’ compensation costs, TRS payments, and Federal Insurance Contributions Act (FICA) contributions. And, because the teachers are employees of a private company, their employment qualifies as quarters needed for Social Security/FICA benefits. The contract between the private company and the school district must not create an employment relationship between the educator and the school district. The contract: • should not include any commitment by the school district to accept for placement any specific educator for any specific period of time; • should not include any provisions that the educator is under the direct supervision of the district; • should specify some supervisory responsibilities for the private company, possibly to include conducting evaluations and verification of certification requirements; • should not include any provisions that make the employment arrangement anything but an at-will arrangement; • should not include any provisions that promise benefits to the retired educator from the school district, including insurance, sick leave, or due process rights; and • should not include an indemnification clause requiring the school district to indemnify the private company for any claims arising out of the actions or omissions of the district. Such indemnification clauses have been held to be unconstitutional for public entities such as school districts, and the courts generally have prohibited school districts from entering into such agreements. The school district should include criteria for all educators assigned to the district but should not specify which educators should be hired by the private company and placed in the district. At most, the district might specify which retired educators could be eligible for rehire by the school district. The school district should not promise future employment or eligibility for retirement benefits to any retiring educator. Recently, Texas Attorney General Greg Abbot affirmed the legality of this type of arrangement but noted its limitations as well. In response to recent queries on the subject, the Attorney General narrowed the issue to three questions: 1. Whether the Government Code provisions for loss of retirement benefits (discussed above) are triggered by this type of employment; 2. Whether a retired educator employed by one of these services is a “professional employee of a school district” for personal liability/immunity purposes; and

3. Whether the third party employer is subject to provisions of the Texas Labor Code concerning “staff leasing.”49 To answer the first question, the Attorney General turned to sections 824.005(b) and 824.601 of the Texas Government Code. Under these provisions, the key factor in triggering the revocation of benefits is whether these educators are “employed in any position” by the school district while they are providing services through a third party instead of direct employment with the school district. To make this determination, the Attorney General harmonized the relevant Government Code provisions with TRS rules, and the position of the Texas Federation of Teachers (TFT).50 First, the Government Code defines employee as: a person who is employed, as determined by the retirement system, on other than a temporary basis by an employer for at least one-half time at a regular rate of pay comparable to that of other persons employed in similar positions.51 As this definition leads to the TRS rules by reference, the Attorney General next turned to a letter brief written by TRS on the same issue.52 In this letter, TRS outlined a process of factual inquiry to determine whether or not an educator fell within the category of “employed in any position.”53 The key factor in this inquiry is whether or not the third-party service provider is a private entity. TRS reiterated that school districts are allowed to contract with private entities for the provision of educational services, pursuant to the Texas Education Code.54 Thus, according to the Texas Government Code and the TRS rules it incorporates by reference, retired educators who contract with third party providers of educational services to school districts should not forfeit retirement benefits. Next, the Attorney General had to reconcile the argument of the TFT with the above-drawn conclusion. The TFT argued that retired educators should be considered “employees of a school district” based on the actual relationship between the district and the educator and, more importantly, the district’s right of control over the educator.55 Relying on Attorney General Opinion DM-335 (1995), TFT further asserted that section 11.157 of the Texas Education Code was never intended “to provide a mechanism for school districts to bypass compliance with statutory requirements by contracting with other entities.”56 Nevertheless, the Attorney General found that the law did not support TFT’s position. Because TRS characterizes these contracts as relating to the provision of temporary services, and the legislature gives TRS the utmost deference in matters involving school district employment and retirement benefits, TRS’s interpretation controls. Next, the Attorney General addressed whether a retired teacher who contracts back with a school district through a third party can be considered a “professional employee of a school district” for purposes of immunity from personal liability.57 This question is important because section 22.051 of the Texas Education Code provides limited personal liability to educators, but only to those who are “professional employees of a school district.” The Education Code defines “professional employee” as “(1) a superintendent, principal, teacher, supervisor, social worker, counselor, nurse, and teacher’s aide; [and]...(4) any other person whose employment requires certification and the exercise of discretion.”58 Based in part upon this definition, but more importantly upon his analysis of the first question herein, the Attorney General concluded that the educator is an employee of the third party, not the school district.59 Finally, the Attorney General briefly addressed the issue of whether the third party entity in these cases is subject to chapter 91 of the Labor Code, which regulates “staff leasing services.”60 Chapter 91 of the Labor Code imposes specific


5 requirements on employment arrangements that constitute staff leasing services. Staff leasing services generally involve long-term or continuing services as opposed to temporary or seasonal assignments. Moreover, staff leasing services generally encompass a situation where a majority of the work force at a given work site is made up of assigned employees of the third party contractor. Thus, the nature of the services provided to each individual school district by the third party must be considered to determine whether Chapter 91 of the Labor Code applies to each scenario. “However, unless the employment arrangements were in fact of a long-term or continuing nature and the majority of a given work force either at a particular school or in the school district were assigned employees of the third-party contractor, Chapter 91 of the Labor Code would not be implicated by this situation.”61 Contracting with private companies raises significant liability issues. Statutory immunity under state law is available only to professional employees of a school district, as noted in the Attorney General’s opinion discussed above. The private employee is not protected under the immunity laws and likely would not have any common law immunity. A private employee would not be an employee of a school district, and thus could be sued and held personally liable for actions taken in the course of performing his or her duties as an educator. The district most likely will not be able to extend its liability insurance to the private employees. If the school district is providing insurance coverage for actions and omissions of the educator, the district probably will lose the ability to assert this immunity on behalf of the private employee. Contracts should include a provision clearly stating that the district will not be liable for acts taken by private employees and should require the private company to certify that it has liability coverage in place to defend lawsuits against the private employees. Districts should check the language of their insurance policies to confirm that private employees are not covered under the insurance policy. Taking the precautions recommended cannot eliminate school district exposure to liability for federal causes of action filed as a result of an act of a private employee. The school district possibly could be held jointly liable with the private company for acts of its employees under a theory of joint venture liability. Because this program is a new concept, it is impossible at this point to ascertain the degree of risk of these types of claims. School districts should keep in mind that private companies have been willing to modify contracts with school districts to address many of the issues listed above. Any such contract should include a termination clause in case future changes in the law or regulations makes this type of contract illegal or unfeasible. RIGHTS OF RETIRED EDUCATORS HIRED BY A SCHOOL DISTRICT In negotiating contracts to rehire retired employees, school districts also should be aware that the rights of educators in the retire to rehire situation are not always clear under state law. For example, the Texas Education Code requires that all fulltime educators and all classroom teachers who teach at least four hours a day be employed by Chapter 21 contracts. There is no exception under the law for retired educators who return to work. In addition, the Texas Education Code requires that all classroom teachers and all full-time counselors, librarians, and nurses be paid according to the state minimum salary schedule. Again, there is no exception for retired educators who are rehired. Moreover, the Texas Education Code does not

provide retired educators with an exception to the requirement that all district employees be afforded five days per year of state personal leave. Further, the Attorney General has indicated that nepotism rules will not apply to retired educators who contract back with school districts through a private company. The Texas Education Code and the Texas Insurance Code do not clearly require that retired educators be provided access to and contributions to health insurance benefits (state and/or local), but they do not specifically exempt retired teachers, either.62 The Texas Education Agency and TRS have been asked to provide an interpretation of these requirements. The Texas Insurance Code, however, does exempt retired educators from employee health coverage or compensation supplementation.63 While local benefits, such as local salary supplements and local sick and personal leave, may be discretionary with a local school district, denying these benefits to retired educators employed by the district may lead to age discrimination challenges under the ADEA.64 Thus, there are many issues that school districts must consider before entering into contracts with retired educators or private companies for retire to rehire plans. SUGGESTIONS FOR REHIRING RETIRED EDUCATORS While many school attorneys and the Texas Association of School Boards (TASB) advise that it is not necessary to have policies or guidelines in place for hiring retired educators, many school districts choose to create and implement their own policies and/or guidelines. In formulating and implementing these local policies and guidelines, school districts should contemplate several issues. First, school districts should not promise in policies, administrative procedures, guidelines, and/ or in counseling sessions to rehire any retiring educators, unless the retiring educator plans to gain employment under one of the “return to work” exceptions outlined above. Absent the applicability of one of the exceptions, the school district should offer a new contract to a returning retired educator only after the required break in service following the educator’s effective retirement date in order to avoid a loss of benefits. School districts should be cautious not to make any guarantees regarding the educator’s eligibility for full retirement benefits in any written or oral communications with an educator considering retirement. It is possible that an educator’s retirement benefits could be revoked at some point in the future (thereby possibly requiring the employee to pay back benefits already earned) for some reason related to the school district’s employment of the educator. In that event, the school district would not want to have created any basis for the educator to pursue legal action against the district for detrimental reliance on the district’s written or oral statements concerning retirement benefits. A school district may inform the educators of the TRS rules regarding full-time employment and eligibility for benefits but should avoid any express statement that the employee will be entitled to full retirement benefits. CONCLUSION Rehiring retired school teachers has been found to benefit districts, students, and retirees. However, the process can be risky for districts and the retiree. As always, districts should seek advice from its attorneys when contemplating complex contractual agreements.65 ENDNOTES continued on page 16


6

LAW DAWG

by Jim Walsh Attorney at Law Walsh, Anderson, Brown, Schulze & Aldridge, P.C.

Dear Dawg: I need to know if we can do anything about hateful, spiteful talk radio hosts. It is getting out of control. There are five small towns in our county, and each has its own radio station. Each one has someone who seems to think he is Tony Kornheiser, Dr. Laura and Rush rolled into one. These guys used to provide a useful service. They would support all of the schools in the county. They were invaluable as resources when we had bad weather, or other emergency conditions. But now, it’s all about verbal oneupsmanship. Each guy tries to be quicker, wittier and more outrageous than the others. They started taking shots at our coaches and then at me (I’m the superintendent). I didn’t like it, but what can you do? It’s a free county. But now they are making fun of our cafeteria managers. I think this goes too far. It started when one of the stations decided to make the daily recitation of the school lunch menus into an entertainment act. They brought in “Larry the Lunch Guy” who supposedly has a Ph.D. in nutrition to comment on the various offerings. There are 22 campuses among the five school districts in the county. Larry the Lunch Guy converted the boring recitation of 22 lunch menus into a ten minute piece of performance art, complete with sound effects. If it was hamburgers, we heard the moo of the cow. For chicken, we heard the cluck of the hen. Well, that was OK, but as the other stations got into the act, it has, predictably, gone downhill from there. Our five local radio stations now offer us a choice of 1) Larry the Lunch Guy; 2) Tina the Cafeteria Czarina; 3) Leo the Lunchroom Bully; 4) Jake Johnson, Nutritionist and Plumber; and 5) some fellow who calls himself “The Artist Formerly Known as Eat Your Own Shorts!” The production values of these performances has risen, or fallen, depending on your view of Western Civilization. The sound effects we hear now include toilets flushing, children screaming, the ax falling on the chicken’s neck, and the unmistakable sound of human flatulence. One station runs a contest in which First Prize is One Week of Free Lunches Prepared by the School Cafeteria. Second Prize is Two Weeks of Free Lunches. One station singles out a GASTRO-DISASTER of the DAY and sends a bottle of Pepto Bismol to the first kid from that school to call in and moan as if he is suffering from dysentery. Our cafeteria managers are livid, and have asked me to find out if they have any legal recourse. What do you think? WHERE HAVE YOU GONE, PAUL HARVEY? DEAR WHERE HAVE YOU GONE: We’re not sure exactly when we all decided not to be polite to each other, but it certainly has happened, hasn’t it? We are not experts on the law of defamation. We do know, however, that slander has been committed only when defamatory statements are made and they are not true. We have eaten in many a school cafeteria and would simply point out that when the quality of the food is poor, we may feel disappointed but we are never shocked. So keep in mind that some of the statements by these radio bozos may be painfully close to the truth. The law permits much harsher ridicule and satire of “public figures” as opposed to unwashed humanity. The term “public figure” applies to a school superintendent, and probably a high school football coach, but we don’t think it would extend to a cafeteria man-

ager. So we would not rule out a successful defamation suit. But other tactics may be more effective. Perhaps you should try to organize an economic boycott of the radio stations. Or try the carrot rather than the stick, and have the cafeteria managers offer to fix a nice big hot lunch for these five local celebrities. If the meal is good, maybe the lunch menu recitation will return to its proper place — five boring minutes in between the weather and the local deaths.

DEAR DAWG: I am the custodian of public records for our school district, and must respond to a very unusual request. Yesterday’s mail brought a request for “a copy of Ms. Doris Doogan, 8th grade science teacher.” I have drafted the following response and would appreciate your feedback: We have received your request for a copy of Ms. Doris Doogan. I am hereby notifying you that our school district does not have the capability of duplicating Ms. Doogan. Nor does the District have a contract with Texas A&M where cloning might be possible. We do, however, own a rather sizable photostatic copy machine. Thus while we cannot copy Ms. Doogan, we can make a two-dimensional paper version of her. We estimate that 83 pages will be required to copy the entirety of Ms. Doogan. We also estimate that lifting Ms. Doogan onto the copier, along with accurately re-positioning her on the copier bed 82 times will require four strong persons and will take approximately 16 hours. By law and policy, the permissible charges for copies in excess of 50 pages include $15 per hour personnel time and $3 per hour for overhead in addition to the .10 cents per page. Thus we estimate a total of $1123.20 in costs to fulfill your request. Upon receipt of your cost bond in that amount, we shall comply with your request and ship a copy of Ms. Doogan by UPS. Please advise if you have any particular preference for how Ms. Doogan should be dressed. Ms. Doogan has agreed to comply with any such request, if reasonable. Waddyathink? CUSTODIAN OF THE RECORDS. DEAR CUSTODIAN: We think there would be no great harm in calling the person who made this request to seek a clarification of the request. We suspect that the person wants copies of Ms. Doogan’s certification, service record, contract, or some such thing — not an actual copy of Ms. Doogan. We could be wrong, of course, but we just think it might be prudent to make an inquiry before hoisting Ms. Doogan onto the copier. If they do, in fact, want a copy of Ms. Doogan, then we think your response is right on target. Good luck!

Got a comment or question for the Dawg? Send it to jwalsh@wabsa.com.


LEGAL DEVELOPMENTS

THE FIFTH CIRCUIT COURT OF APPEALS

Factual Disputes Required A Trial As To Whether The School District Terminated The Secretary In Retaliation For Filing A Sexual Harassment Complaint In February of 1991, the school principal gave the campus secretary a poor work evaluation and recommended that she be terminated. Shortly thereafter, the secretary filed a charge of discrimination and sexual harassment with the Equal Employment Opportunity Commission (EEOC). The woman alleged that the principal had made unwelcome and sexual remarks, and that when she complained to the principal about his behavior, he gave her a poor work evaluation in retaliation. In a letter dated September 30, 1992, the EEOC informed the secretary that the evidence gathered by the EEOC in its investigation failed to establish retaliation. The EEOC concluded that (1) the woman’s claims were unsubstantiated, (2) her assertion that she had complained to the principal about his behavior was uncorroborated by witnesses, and (3) witnesses instead testified that she was having problems at work because the principal was displeased with her performance. The EEOC dismissed her charge and the woman declined to file a civil lawsuit at that time. Despite the EEOC’s determination that the sexual harassment and retaliation claims were “unsubstantiated,” the secretary was not discharged as the principal had recommended. Instead, the assistant superintendent granted the woman’s request for an immediate transfer to another school within the district. During the secretary’s first five years at the new school, she received favorable performance evaluations from the principal. However, in 1996, the principal was replaced and the new principal immediately began having problems with the secretary. In March of 1997, the new principal officially “reviewed” the secretary’s work and gave the woman several critiques of her performance. On October 1, 1997, the principal ordered the secretary to leave campus and drive to a print shop to pick up report card forms which the principal believed the secretary failed to order on time. Rather than pick up the forms as she was asked, the secretary decided to wait for the forms to be delivered the following day. On October 2, the principal met with the secretary to discuss the report card incident. During that meeting, the secretary became upset and left. She then called the district’s director of personnel services seeking advice about securing a transfer to another school. The personnel director advised the woman to report to his office the following Monday and not to report to school until that time. On Monday, October 6, 1997, the personnel director informed the secretary that the principal had recommended her termination. The recommendation was in the form of a letter sent to the assistant superintendent. In the letter, the principal described the incidents that occurred on October 1 and 2, and outlined several areas in which she was dissatisfied with the secretary’s performance as campus secretary. The assistant superintendent concurred with the recommendation to terminate the secretary and wrote the official notice of termination. The secretary appealed her termination and on October 13,

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1997, pursuant to the district’s policy concerning at-will employees, an independent evaluator appointed by the district conducted a “review session” to evaluate the woman’s termination. The secretary was represented by counsel at the review session. The assistant superintendent, the personnel director, and the principal represented the district’s position. During the session, the assistant superintendent “took the lead” in representing the district. During that session, the assistant superintendent provided the evaluator documents related to the woman’s employment with the district. Among those documents were the 1991 EEOC determination letter received by the district which described the woman’s 1991 sexual harassment complaint as “unsubstantiated.” When asked why the district wanted to fire the secretary, the assistant superintendent responded that the woman was a “problem employee,” and cited among other instances of “problem” behavior the fact that the woman had filed an unsubstantiated EEOC claim in 1991. The assistant superintendent then asked the personnel director to read the EEOC determination aloud during the review session and then present the letter to the evaluator. On October 17, 1997, the evaluator returned a finding in support of the district’s decision to terminate the secretary. In particular, the evaluator concluded that (1) the principal had been unhappy with the secretary’s job performance since December of 1996, (2) the principal’s expectations of the woman were reasonable, and (3) it would not be in the best interest of the district to reinstate the secretary. In January of 1998, the secretary filed a second charge of discrimination with the EEOC alleging both age discrimination and retaliation. The EEOC found the age discrimination claim to be unsubstantiated, but found that the evidence showed there was reasonable cause to believe that the termination was in retaliation for the secretary’s 1991 EEOC charge. The woman later sued the school district alleging retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII). The trial court, however, granted judgment in favor the district prior to trial. The woman then appealed. Title VII prohibits retaliation against employees who engage in protected conduct, such as filing a charge of sexual harassment. In this case, it was undisputed that the secretary had engaged in the protected activity of filing a Title VII charge of discrimination and that she was subsequently terminated. The sole issue on appeal, therefore, was whether the termination was motivated, in part, by the fact that the secretary previously had filed an EEOC complaint. The appeals court determined that the secretary had provided direct evidence of retaliatory motive on the part of the district. For example, during the “review session” the assistant superintendent attempted to justify the termination because the secretary was a”problem employee.” As evidence of the “problems,” the assistant superintendent mentioned the 1991 EEOC complaint. Based on that evidence, the appeals court determined that a reasonable jury could conclude that the secretary was fired, in part, because she filed the unsubstantiated sexual harassment complaint. The burden then shifted to the school district to disprove the secretary’s retaliation claim. That is, the district had to prove that it would have terminated the woman even if the woman had not filed the 1991 EEOC charge. The district offered ample evidence that it fired the woman because of poor job performance. However, according to the appeals court, the evidence was not sufficient for the district to secure a judgment in its favor prior


8 to trial. Instead, the evidence established that factual disputes required a trial as to whether (1) the termination was motivated, in part, by the previous sexual harassment complaint, and (2) the district would have discharged the woman regardless of the complaint. The appeals court reversed the judgment in favor of the district and returned the case to the trial court. Fabela v. Socorro ISD, Dkt. No. 02-50138 (5th Cir. 2003).

The Student’s Individualized Education Plans Were Reasonably Calculated To Provide Educational Benefit; To Show A Violation Of IDEA Based Upon Procedural Defects, The Student Must Show That The Procedural Violation Produced Substantive Harm In the Fall of 1998, the school district determined that Adam was eligible for special education services as a child with an emotional disturbance. The district convened an Admission, Review, and Dismissal (ARD) Committee meeting, developed an individual education plan (IEP), and placed the student in a highly-structured behavior modification class at the high school. In October of 1998, Adam’s parents privately arranged another psychological evaluation. That evaluation revealed that the student suffered from Asperger’s Syndrome (a form of autism) and Oppositional Defiant Disorder. The parents, however, did not notify the district of the new diagnosis until May of 1999. Later that month, the ARD Committee reconvened and reclassified Adam’s “primary” disability as Asperger’s Syndrome. In September of 1999, Adam’s parents placed their son in a private residential facility due to severe behavioral problems at home. The boy earned no academic credits while in the private facility. He returned to the district’s high school in January of 2000, where he successfully completed the spring semester. By August of 2000, his behavior improved and he was able to maintain employment at a local fast food restaurant. As a result, the district removed Adam’s “emotional disturbance” eligibility. In the Fall of 2000, however, Adam’s behavior declined and he was involved in several major disciplinary incidents. Those incidents included throwing a chair at a staff member and throwing lighted matches at other students. After the fire incident, the ARD Committee determined that Adam’s behavior was not a manifestation of his disability. As a result, the student was placed in an alternative education setting for fifteen days. When he returned to the high school, the district provided him with a personal aide and his behavior improved. In May of 2001, the ARD Committee met to develop an IEP for the 2001-02 school year and determined that Adam should remain in special education classes with the option of enrolling in regular education electives. The IEP also called for parent and teacher training. However, the district did not commit to assigning a full-time aide to the student. The ARD further noted the student’s academic progress and an overall decrease in behavioral problems. Adam’s parents disagreed with the proposed IEP and contended that private placement, at the district’s expense, would be more appropriate for their son. The parents requested a due process hearing. Following the hearing, the hearing officer concluded that the district’s proposed IEP was appropriate and denied all relief requested by the parents. The parents appealed the decision by filing suit in state district court. The lawsuit later was moved to federal court, the federal trial court ultimately granted judgment in favor of the school district, and the student appealed. On appeal, the student first alleged that the hearing officer who presided over the due process hearing was biased. The appeals court disagreed. The student simply failed to provide evidence of bias on the part of the hearing officer. Moreover, Adam presented no evidence of bias on the part of the trial court, which reviewed the entire record of the due process hearing and also ruled in favor of the school district. Adam argued that the trial court erred in concluding that

he “took the same courses as other students, but tailored to his special needs.” The student claimed, instead, that his classes were almost exclusively in special education and that such classes were not sufficiently challenging given the ARD Committee’s determination that he was academically gifted. The appeals court observed, however, that a free appropriate public education (FAPE) need not be the best education possible, or the one calculated to maximize the child’s educational potential. Instead, it only has to provide an educational opportunity designed to meet the student’s specialized needs, with sufficient support services for him to benefit from the instruction. The appeals court determined that Adam’s IEPs were reasonably calculated to provide the boy with meaningful benefit. Adam also argued that his progress was hampered by the low level of instruction that he received in special education classes. For example, he claimed that his behavioral problems increased in late 2000 and early 2002. The record showed, however, that his behavioral problems actually improved in 2001 when the student returned from the alternative education program and began working with an aide. The district also provided evidence of Adam’s academic progress and anticipated graduation. Thus, the record supported the trial court’s conclusion that the boy had made progress under the program provided by the district. The appeals court also agreed with the trial court that Adam had failed to show that private placement at the district’s expense was appropriate. The student had failed to produce evidence of the private school facilities, curriculum, or other educational benefits offered there. Further, Adam had not explained how the private school would better suit his academic and behavioral needs. Next, Adam argued that the district did not comply with procedural requirements of IDEA. Specifically, the student alleged that the district failed to (1) include “measurable long-term goals and short-term objectives” in his IEP, (2) update Adam’s parents through regular report cards, and (3) indicate Adam’s baseline “level of competency” on at least one IEP. The boy claimed that as a result of those procedural errors, he was denied FAPE and his parents were denied “full participation in what were supposed to be collaborative efforts by the ARD members.” The appeals court held, for the first time, that a procedural violation of IDEA alone will not warrant a finding that the school failed to provide FAPE unless the procedural violation results in substantive harm, such as a loss of educational opportunity. In this case, Adam failed to prove that any alleged procedural violation (1) resulted in the loss of educational opportunity, or (2) infringed on his parents’ right to participate in the IEP process. The boy admitted that the parents were present at every ARD meeting and frequently submitted supplemental “parent statements” to express their concerns and frustrations. The appeals court thus concluded that the district sufficiently complied with IDEA’s procedural requirements. The parents failed to demonstrate that “(1) a procedural violation of the IDEA produced substantive harm, or (2) [the student’s] IEP’s were not reasonably calculated to provide an educational benefit.” Hence, the appeals court affirmed the trial court’s judgment in favor of the district. Adam J. v. Keller ISD, Dkt. No. 02-11032 (5th Cir. 2003) (not yet reported).

The State Of Louisiana Was Entitled To Sovereign Immunity Against Claims Brought Under § 504 Of The Rehabilitation Act The State of Louisiana and several of its state agencies were the subject of two lawsuits. The first suit involved a university student with a disability whose eligibility for financial aide was revoked. The second suit involved a blind computer instructor whose teaching duties were eliminated. Both men sued under § 504 of the Rehabilitation Act. The court of appeals consolidated the two cases and issued one decision covering both cases. The main issue on appeal was whether state sovereign immunity barred the § 504 claims


9 against the State of Louisiana and its state agencies. Generally, the Eleventh Amendment to the United States Constitution prohibits suits against a state and its agencies unless (1) Congress specifically overrides the state’s sovereign immunity through its power under § 5 of the Fourteenth Amendment, or (2) a state waives its immunity by consenting to suit. Here, the court of appeals concluded that Congress had not acted properly to override the state’s immunity and the state had not waived that immunity. Thus, the § 504 claims brought against the State of Louisiana were barred by the Eleventh Amendment. Johnson v. Louisiana Dept. of Education, Dkt. No. 02-30318 (5th Cir. 2003) (not yet reported).

TEXAS COURTS OF APPEAL The University Professor Failed To Show That The State University Fired Him For Complaining About The University’s Smoking Policy In Violation Of The Texas Whistleblower Act The man began working for the state university in 1989 as an associate professor. At that time, the university had no policy prohibiting smoking. The professor contacted the Texas Department of Health and consulted the federal Occupational Safety and Health Administration (OSHA) guidelines. He concluded that the university was violating OSHA guidelines by not having a policy prohibiting smoking. The man notified university officials about his conclusions. In response, the university officials told the professor that although technically they were not violating any laws with the lack of a nonsmoking policy, they would try to satisfy the man’s need for a nonsmoking environment. As a result, the university allowed smoking only in certain areas and moved the man’s office further from those areas. Not satisfied with the university’s response, the professor continued to complain about the policy. He first complained in 1990. The record showed that his contract for employment was renewed that same year. The man again complained in 1991. Again, his employment contract was renewed. In 1992, however, the university terminated the man’s employment. The professor ultimately filed suit against the university claiming that it violated the Texas Whistleblower Act (“the Act”). The Act prohibits governmental employers from terminating an employee who (1) in good faith, (2) reports a violation of the law by the employer, (3) to an appropriate law enforcement authority. In response, the university filed a motion requesting that the trial court dismiss the case. The university argued that the man had failed to present evidence to show that his termination was the result of the complaints he made regarding the university’s lack of a smoking policy. The trial court granted the university’s motion and dismissed the man’s Whistleblower lawsuit. The professor appealed. The appeals court observed that an employee suing under the Whistleblower Act must prove that without the alleged reports of violations of law, the retaliatory conduct would not have occurred. The record, in this case, showed that the professor’s employment contract was renewed twice after his smoking policy complaints to university officials. Significantly, however, evidence presented by the professor also showed that the university fired the professor after he (1) cursed at a student, using profane language, (2) during class, referred to another female professor by using an obscene name, (3) engaged in a heated conversation with the same female professor when she confronted him about the name-calling, (4) repeatedly banged his head against a wall while students took an exam, and (5) was charged with assault

because he shoved his department chairman several times and held the man by the wrists to prevent him from leaving the professor’s office. Given the professor’s own evidence that he was not terminated until after he physically attacked the department chairman, the appeals court concluded that the man failed to show that the university fired him for complaining about the smoking policy. The appeals court affirmed the trial court’s dismissal of the professor’s Whistleblower lawsuit. Ginn v. Stephen F. Austin State University, Dkt. No. 03-02-00443-CV (Tex. App. – Austin 2003) (not yet reported).

TEXAS ATTORNEY GENERAL The School District, Having Won A Whistleblower Lawsuit Brought By An Employee, Had No Obligation To Pay The Employee’s Legal Fees; Any Such Payment Would Violate Article III, Section 52 Of The Texas Constitution The Attorney General recently was asked whether a school district that prevailed in a lawsuit brought under the Whistleblower Act may pay legal fees to the law firm that represented the non-prevailing employee. The Attorney General observed that, as a general rule, a governmental body may pay a public employee’s legal expenses to defend against a suit related to the employee’s official duties. However, there is no basis to suggest that the same rule applies to a public employee who unsuccessfully sues his employer. Article III, section 52(a) of the Texas Constitution generally provides that “the Legislature shall have no power to authorize any county, city, town, or other political corporation or subdivision of the state . . . to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever . . .” Further, when a governmental entity is not liable on a claim, the payment of that claim constitutes a “pure gift or donation” and violates the Constitution. In this case, the employee had lost the Whistleblower lawsuit and had no legitimate claim against the district. This was not an instance involving the settlement of potential claims. The district simply had no obligation to the employee. Paying the employee’s legal fees would not serve a public purpose. Accordingly, the payment of any sum as legal fees for the employee would be a gift of public funds in direct violation of article III, section 52(a) of the Texas Constitution. GA-0062 (2003).

Texas Education Code § 39.051(b) Specifically Requires As An Academic Excellence Indicator The Use Of Dropout Rates And District Completion Rates For Grade Levels Nine Through Twelve; The State Board Of Education Did Not Have The Authority To Require That Such Rates Be Computed Based Upon District Completion Rates Alone The Commissioner of Education asked the Attorney General questions concerning the relative authority of the State Board of Education and the Commissioner with regard to the adoption of academic excellence indicators and the evaluation of school districts under chapter 39 of the Texas Education Code. The questions arose out of a controversy between the Board and the Commissioner regarding the responsibility for defining the appropriate dropout rate to be used in determining school district performance and accreditation status. Texas Education Code § 39.073(a) provides that TEA “shall annually review the performance of each district and campus on


10 the indicators adopted under sections 39.051(b)(1) through (7) and determine if a change in the accreditation status of the district is warranted.” The Board shall adopt a set of indicators of the quality of learning on a campus and shall review those indicators biennially to consider any necessary revisions. The first question was whether the Board may, pursuant to § 39.051(a), require that a high school completion rate replace the annual dropout rate in the accountability rating system. The Attorney General ruled that the Board may not adopt such a requirement. The Attorney General explained that the 77th Legislature specifically required that academic excellence indicators under Education Code § 39.051(b) be “dropout rates, including dropout rates and district completion rates for grade levels 9 through 12.” Accordingly, the Board did not have the authority to require that such rates be computed based upon district completion rates alone. Second, the Legislature further amended Education Code § 39.051(b) to remove the Board’s authority to adopt additional academic excellence indicators. However, any such indicators adopted by the Board before the effective date of that legislation remain in full force and effect. GA-0060 (2003).

Under Current State Law, The City Could Not Issue Certificates Of Obligation To Finance The Construction Of Facilities For An Open-Enrollment Charter School; The Texas Legislature, However, Is Considering Legislation That Would Allow A City To (1) Borrow Funds, (2) Issue Obligations, And (3) Spend Its Funds To Construct Buildings For An Open-Enrollment Charter School In January of 2002, the Texas Education Agency granted a charter for an open-enrollment charter school to the City of Westlake. The Attorney General was asked whether the city could issue certificates of obligation to finance the construction of facilities for the school. Local Government Code chapter 271, subchapter C, allows municipalities to authorize certificates to pay for certain contractual obligations. Because those provisions allow municipalities to create debt, they have been construed strictly only for purposes expressly provided by statute. The City of Westlake contended that it had the authority to finance the construction of facilities for the charter school under the Certificate of Obligation Act, Local Government Code § 271.045(a). That provision states that an issuer may authorize certificates “to pay a contractual obligation to be incurred for,” among other things, the “construction of any public work,” or “purchase of materials, supplies, equipment, machinery, buildings, land, and rights-of-way for authorized needs and purposes.” To determine whether § 271.045 allowed the city to finance the construction of charter school facilities, the Attorney General first considered whether the city was authorized to undertake the particular “public work or purchase.” According to the Attorney General, no provision outside of the open-enrollment charter school provisions in the Education Code authorizes a city to operate a school or to construct a school building. Further, no prior Texas judicial or Attorney General opinion indicated that operating or constructing a school is within a city’s authority. Traditionally, Texas cities and school districts have exercised separate powers, and the authority to operate and support schools has been reserved to school districts. Thus, the city had no inherent authority to operate or construct a school. In addition, § 12.101(a) of the Education Code precludes a municipality from operating its charter school in a municipal facility. Thus, a municipality lacks authority to construct a charter school facility and may not pay for obligations incurred in constructing such a facility with certificates of obligation. At the time of this opinion, the Seventy-eighth Legislature was considering legislation that would permit an eligible entity to operate an open-enrollment charter school in its own facilities and expressly would authorize a municipality that was granted a charter to (1) borrow funds, (2) issue obligations, and (3) spend its funds to construct buildings for the charter school. Tex. H.B.

1564, 78th Leg., R.S. (2003). That legislation would authorize the city to issue certificates of obligation to finance the construction of a facility for its open-enrollment charter school. The Attorney General concluded that, although the law might change, under current state law the city could not issue certificates of obligation to finance the construction of facilities for the open-enrollment charter school. GA-0069 (2003).

SPECIAL EDUCATION HEARINGS The Girl Did Not Qualify For Special Education Services; Testing Showed That The Student Did Not Suffer From Dyslexia Ivana was a ten-year-old, fifth grade student during the 2002-03 school year. At the beginning of that school year, Ivana’s mother requested that the district test her daughter for dyslexia. Two days later, the district issued a notice of a Section 504 meeting to be held the following week. That meeting was attended by the girl’s parents, her classroom teacher, a reading specialist, the dyslexia program teacher, and the principal. At that meeting, the parents discussed their concerns about Ivana’s asthma and reading difficulties. The committee reviewed the student’s TAAS scores and academic progress during the third and fourth grade. Based on the mother’s request, the committee decided to test Ivana for dyslexia. The results of the dyslexia testing were considered at a follow-up meeting on November 5, 2002. At the meeting, Ivana’s mother was informed that her daughter did not qualify for the dyslexia program or for Section 504 services. Instead, to address the parents’ concerns about Ivana’s difficulties with school work, the district began providing the girl with tutoring for one hour twice per week. The tutoring was done by the school librarian and focused on developing the girl’s phonemic awareness skills and improving reading comprehension. In addition, the fifth grade class was given spelling tests on Mondays instead of Fridays to allow more time for students to prepare. The mother disagreed with the district’s determination that Ivana did not qualify for the dyslexia program and requested a due process hearing. The parents requested that the district provide their daughter with (1) further testing, (2) a remedial reading program, and (3) a summer reading program. The record showed that the district twice tested Ivana for dyslexia, in 2000 and 2002. However, the testing showed that Ivana did not qualify for the dyslexia program. Further, Ivana had passed the third and fourth grade standardized tests, including the reading portions of the exams. Moreover, the student was passing all of her fifth grade classes with B’s and C’s. She was an average student overall, in the high average in math but low average range in reading. Ivana’s fifth grade teacher testified further that he believed that she would pass all elements of her fifth grade class. The hearing officer ruled that the parents’ concerns for Ivana’s difficulties in reading did not suffice to warrant the girl’s placement in special education. The girl consistently had met all expectations for each grade level and passed all of her classes. Ivana had experienced some difficulties with syntax, phonemic awareness, reading comprehension, and focus. Nevertheless, her educational performance demonstrated continued progress. Further, the district responded appropriately to the parents’ concerns and Ivana’s difficulties by offering her additional tutoring services and monitoring her progress. The record showed that Ivana, her parents, and the girl’s fifth grade teacher communicated frequently and were able to address any difficulties Ivana encountered. Thus, the hearing officer ruled in favor of the district and denied all relief requested by the student’s parents. Ivana R. v. Harlandale ISD, Dkt. No. 431-SE-0802 (Jan. 27, 2003).


11 The Student No Longer Qualified For Special Education Services As A Student With A Learning Disability; The Student Was Eligible For Graduation Ricardo was a 21-year-old student who qualified for special education based on a learning disability. He also was eligible for English as a second language (ESL) services because Spanish was the language spoken in his home. On May 30, 2001, an Admission, Review, and Dismissal (ARD) Committee met to discuss Ricardo’s three-year reevaluation. The boy’s mother attended the ARD along with an interpreter. The reevaluation indicated that Ricardo no longer qualified for special education as a learning disabled student. The ARD Committee also developed a graduation plan for Ricardo. The ARD observed that the student had maintained a full-time job without support from the district. The mother expressed concerns that her son had poor reading skills but, ultimately, agreed with the ARD’s determination. The mother, nevertheless, requested a due process hearing complaining that her son should not have been allowed to graduate. She requested compensatory services in reading. The record showed that Ricardo’s I.Q. was 90 and was in the average range. There were no severe discrepancies between cognitive ability and achievement. The student received 80’s and 90’s on standardized tests and was passing all of his classes. Further, the student was a senior and had earned enough credits to graduate. As a result, the district properly determined that Ricardo no longer qualified for special education services and that he was eligible for graduation. (Eventually, Ricardo graduated from the high school, worked at a retail store for about a year, and enrolled at a community college.) The hearing officer determined that the student no longer qualified for special education and denied the parent’s request for compensatory reading services. Ricardo N. v. Edinburg CISD, Dkt. No. 187-SE-0202 (Feb. 28, 2003).

The School District Properly Concluded That Threatening Statements Made By The Special Education Student Were Not A Manifestation Of The Student’s Disability Jonathan was a twelve-year-old student who qualified for special education and related services due to attention deficit hyperactivity disorder (ADHD). As part of the boy’s educational program, he had a behavior intervention plan (BIP) to address problems with his behavior. From the beginning of the 200203 school year, Jonathan had received numerous disciplinary referrals. Then, on October 25, 2002, one of Jonathan’s teachers heard him tell another student, “I am going to put a bee-bee in your damn lung.” On November 7, 2002, an ARD Committee met to address concerns about Jonathan’s behavior. The Committee considered the numerous disciplinary referrals that the student had received since the beginning of the 2002-03 school year, including the October 25 incident. A school psychologist at the meeting was concerned that the boy’s ADHD impaired his ability to control his behavior. The ARD did not conduct a manifestation determination review of the October 25 incident at that time. Instead, the meeting recessed at the mother’s request. On December 9, 2002, the ARD conducted a manifestation determination review of the October 25 incident. The Committee determined that Jonathan’s IEP and placement were appropriate and that the behavior intervention strategies provided under the IEP were implemented properly. The Committee also concluded that the boy’s ADHD did not impair his ability to understand the impact and consequences of his behavior on October 25, 2002. Further, Jonathan’s disability did not impair his ability to control his behavior. Consequently, the Committee determined that the student could be removed from his current educational placement and placed in an alternative education program under the district’s student code of conduct. Jonathan’s mother did not agree with

the Committee’s conclusions and requested a due process hearing. The hearing officer observed that the December 9, 2002, ARD Committee properly considered Jonathan’s (1) behavior, (2) IEP, and (3) ability to understand the impact and consequences of his behavior in light of his disability. Evidence of the October 25, 2002, incident showed that approximately two minutes had passed between redirection by the teacher for Jonathan to return to his seat and the boy’s confrontation with the other student. The ARD Committee, thus, correctly concluded that Jonathan’s disability did not impair his ability to control his behavior during that incident. The hearing officer ruled that the ARD Committee made an appropriate manifestation determination concerning the relationship between Jonathan’s disability and his behavior. Jonathan R. v. Socorro ISD, Dkt. No. 109-SE-1202 (Feb. 26, 2003).

The School District Denied The Student FAPE When It Failed Timely To Refer The Boy To Special Education; The Parents Were Entitled To Reimbursement For The Costs Of A Private Comprehensive Evaluation During the 1998-99 school year, when Michael was in the first grade, the boy’s parents began suspecting that he had a reading problem. In April 2000, during the second grade, Michael’s parents asked the district to test Michael in reading. In response, the district administered the Texas Primary Reading Inventory. The evaluator found that the boy’s reading skills were below the second-grade level, and that he needed additional assistance in reading. Based on the discrepancy between the student’s intellectual functioning and his reading level, the evaluator recommended dyslexia testing. However, those tests showed that the boy exhibited no characteristics of dyslexia or any other language disorder. In April of 2000, a Campus Student Study Team (CSST) met to discuss Michael’s test results, but did not recommend a special program or other intervention. Instead, the student attended summer school for reading. The following school year, he took the Iowa Test of Basic Skills (ITBS). The results showed that he was still reading on a first-grade level and that he was ranked at the bottom six percent of third-graders nationally. During the 2000-01 school year, the district provided the student with an extraordinary amount of tutoring. Specifically, from September 2000 through April 2001, the district provided Michael tutoring for roughly eight hours per week. Notwithstanding the many hours of individual tutoring, Michael continued to struggle with reading. In the Spring of 2001, the boy’s teacher recommended the summer school reading program. The parents declined that offer and requested additional testing. Meanwhile, in April of 2001, Michael passed the third-grade TAAS test. As a result, the district reduced the amount of tutoring it had been providing. For the last nine-week period of the school year, Michael received a failing grade in reading. By the first grading period of the 2001-02 school year, Michael’s fourth grade teacher had developed serious concerns about the student’s reading ability. As a result, she placed him in a small reading group and provided him with individual assistance. She later referred the boy to the CSST. The CSST met four times and ultimately decided to provide Michael with dyslexia services. On December 22, 2001, Michael’s parents hired a psychologist who was a licensed specialist in school psychology to conduct a comprehensive evaluation of Michael’s cognitive, academic, and emotional functioning. The psychologist found that the boy’s academic skills were at the kindergarten level in written expression and at the second grade level in basic reading and reading comprehension. She concluded that Michael qualified for special education services under the learning disability and emotional disturbance classifications. In February of 2002, Michael’s parents initiated a due process proceeding but eventually dismissed the proceeding when the district agreed to perform a Full and Individual Evaluation


12 (FIE). Following the FIE, in April of 2002, Michael was admitted into special education under the learning disability classification. The parents, nevertheless, requested another due process hearing complaining that the district failed to (1) provide Michael an appropriate reading program before November 30, 2001, (2) reimburse them for the private comprehensive evaluation, and (3) reimburse them for private tutoring and other private services. The hearing officer first observed that the Individuals with Disabilities Education Act (IDEA) imposes upon school districts a “child find” duty, which requires them to identify, locate, and evaluate all children with disabilities who (1) reside within their jurisdictional boundaries and (2) are in need of special education services. In this case, the hearing officer concluded that the district should have referred Michael for a special education evaluation long before the April 2001 TAAS test. The record showed that Michael’s parents requested that their son be tested as early as April 2000. One screening tool used by the district showed that Michael (1) read below grade level, (2) had a significant discrepancy between his intellectual functioning and his reading level, and (3) lacked the skills to decode unfamiliar words. Even after participating in the district’s summer reading program, testing determined that he was still reading at a first-grade level. The district then tried a rigorous schedule of individual tutoring with little success. The hearing officer, thus, found that the district should have referred Michael for special education testing by January 2001. The district’s failure to do so denied the student a free appropriate public education (FAPE). Further, the failure to identify the boy’s reading disability in a timely manner significantly contributed to emotional difficulties he experienced. Consequently, the student was entitled to a compensatory reading program equivalent to the number of hours he should have received between January 2001 and November 2001. The hearing officer next concluded that the parents were entitled to reimbursement for the cost of the private comprehensive evaluation. The district’s failure to refer Michael for a special education evaluation in a timely manner caused the parents to seek the private evaluation. The district argued that the parents could not seek reimbursement for a private evaluation unless they proved that they disagreed with the district’s evaluation. In this case, however, the district failed to conduct any evaluation with which the parents could disagree. The private evaluation was appropriate and was obtained after the district should have referred the student for a special education evaluation. The parents, however, did not present any evidence to support their claim for reimbursement for the costs of private tutoring and other services. The hearing officer concluded that (1) the district denied Michael FAPE when it failed to refer him to special education in a timely manner and (2) the parents were entitled to reimbursement for the costs of a private comprehensive evaluation. Michael R. v. Harlandale ISD, Dkt. No. 311-SE-0502 (Jan. 28, 2003).

The School District Denied The Special Education Student FAPE When It Failed To Provide Him With A Statement Of Measurable Annual Goals Erik was a five-year-old student who qualified for special education due to autism and a speech impairment. The boy’s parents requested a due process hearing complaining that the district failed to provide a statement of measurable annual goals in their son’s individualized education program. In response, the district admitted that it had failed to do so. The hearing officer concluded, therefore, that the district had denied the student FAPE when it failed to provide the boy a statement of measurable annual goals. As a result, the district was ordered to conduct an ARD Committee meeting to develop measurable annual goals for Erik. Erik K. v. El Paso ISD, Dkt. No. 126-SE-1202 (Feb. 6, 2003).

The Behavior Services Classroom Was The Appropriate Placement In The Least Restrictive Environment For The Boy Who Exhibited Severe Behavioral Problems In Regular Education Classes John was a twelve-year-old seventh grade student eligible for special education due to severe attention deficit hyperactivity disorder (ADHD). He entered special education at the age of eight and had a long history of hyperactivity, impulsivity, and fidgety behaviors that interfered with his academic performance. From the beginning of middle school, he had been extremely oppositional and disruptive. His behavior interfered with both his own education and that of his classmates. During the sixth grade, John had approximately 38 disciplinary referrals. By October 2002, of his seventh grade year, he already had 12 referrals. His behavior at school included (1) angry outbursts, (2) profanity, (3) defiance and arguing with teachers, (4) verbal and physical altercations with peers, (5) leaving class without permission, (5) refusing to stay seated, (6) knocking over chairs and other objects, (7) throwing things in class, and (8) refusing to do class work. John constantly had to be monitored by teachers in order to stay on task. Further, at least some of his teachers spent 10 to 20 minutes each class period redirecting him. His conduct persisted throughout the sixth and seventh grades despite medication and private therapy. In addition, the district provided a BIP, academic modifications, counseling at school, the use of a peer escort, cooling-off periods outside the classroom, one-on-one attention from teachers, a study skills class, and consultations with teachers by his counselor. In September of 2002, John’s ARD Committee proposed placing John in a behavior services classroom (BSC) for all academic classes, with mainstream electives. The class used elements of the Crane/Reynolds level system for behavioral training, but without the time-outs or isolations. On average, working through the level system took three weeks per level. When a student attained Level 5, he was sent out to one mainstream class. If the student’s behavior was satisfactory, additional mainstream classes were added. The mother disagreed with John’s placement in the BSC and requested a due process hearing. She argued that the proposed placement there did not provide her son with education in the least restrictive environment. The hearing officer observed that John was entitled to be educated with nondisabled peers to the maximum extent appropriate. The record showed that John’s behavior severely limited his ability to benefit from instruction in the regular classroom. Further, it caused significant disruption to the instruction of his peers. The ARD had considered the resource room for John but determined that it was inappropriate because he was on grade level. The resource room primarily was used for students with learning disabilities and would not have provided John an appropriate academic challenge. The ARD also considered and rejected a classroom aide for the boy. His teachers, counselors, and administrative staff believed that an aide would not be effective and he would not tolerate the presence of one. The mother argued that the district should have followed recommendations by two independent evaluators who concluded that the BSC was not appropriate for him. However, the hearing officer noted that the two experts had not reviewed John’s discipline records, observed him in school, spoken to his teachers, or been provided with teacher behavior rating scales. Further, the experts did not know of the boy’s failing grades until the hearing. Thus, the hearing officer concluded that in light of John’s failing grades and continued disruptive behavior, he needed structured behavior training with a high degree of one-on-one attention from a trained teacher to get his misconduct under control. The hearing officer ruled that the behavior services classroom was the appropriate placement for John. John H. v. Houston ISD, Dkt. No. 020-SE-1002 (Jan. 13, 2003).


13 The School District Provided Appropriate Educational Programs For The Speech Impaired Student; The District Was Not Required To Provide The Parents Written SpanishLanguage Translations Of ARD Documents Fernando was a 20-year-old student who qualified for special education under the speech impairment classification. The boy suffered from speech disorders known as anomia and apraxia. Individuals with anomia have difficulty retrieving known words, information, and ideas stored in their brain. Apraxia interferes with the process of articulating words after they have been retrieved. Fernando’s ARD Committee met three times to plan his educational program for the 2001-02 school year. The ARD approved speech therapy, with goals designed to provide expressive-language skills and improve articulation and intelligibility. The ARD sought to provide the student all of the classes he needed to graduate in May 2002. The district also provided Fernando reading instruction in a sheltered reading class that was a regular education class with modified curriculum and materials. During the 2001-02 school year, his reading skills were at a third- or fourth-grade level. During the 2001-02 school year, Fernando received speech therapy from a certified therapist who worked with a bilingual aide. When Fernando used a Spanish word or phrase while otherwise speaking English to the therapist, the aide seldom interpreted for the therapist. At the end of the 2001-02 school year, the student’s speech continued to be mostly unintelligible to listeners unfamiliar with it. Nevertheless, for the 2001-02 school year, Fernando’s IEP reports reflected that he achieved most of his IEP goals and objectives. Fernando’s ARD Committee met twice to plan his educational program for the 2002-03 school year. Aware that the student no longer wanted to attend high school on campus, the ARD sought a vocational program consistent with his interests and vocational needs. The district’s vocational staff recommended the following three options for the boy: (1) the cable-networking program at a nearby community college, (2) the vocational advancement and social skills training program at another community college, or (3) full-time employment with an initial period of support. The ARD Committee determined that the cable-networking program was the best one for Fernando. The student had shown an interest in cable-networking, the program had bilingual program materials, and it was taught by a bilingual instructor using a multi-sensory approach. Fernando’s mother requested a due process hearing challenging her son’s (1) speech therapy services, (2) reading program, (3) social skills program, and (4) educational program for the 2002-03 school year. The woman also claimed that the district failed to provide her with written Spanish-language translation of ARD documents and failed to provide Fernando with counseling as a related service. With respect to Fernando’s speech therapy services, the hearing officer concluded that the use of a non-Spanish speaking therapist and a bilingual aide did not render Fernando’s speech therapy inappropriate. At the due process hearing, Fernando was questioned in English and most of the time he responded appropriately without help from the interpreter. The hearing officer also observed two videotaped speech therapy sessions. The videotapes showed the therapist speaking directly to Fernando in English, and the boy responding appropriately. Thus, the student’s oral comprehension of English had progressed sufficiently to render his speech therapy in English appropriate without an interpreter. For the 2002-03 school year, the district assigned Fernando a bilingual speech therapist that it recently had hired. It increased Fernando’s speech therapy from 30 to 45 minutes per week. It developed speech goals and objectives designed to provide the student a cable-networking vocabulary. The ARD also provided two hours per week of content mastery support. At the due process hearing, the district provided expert testimony that the

“bilingual communication helper model” used by the district here was an appropriate means of delivering speech therapy. Thus, the hearing officer concluded that the boy’s speech therapy services were appropriate. The hearing officer next considered Fernando’s vocational program. The record showed that the district’s vocational personnel carefully considered the available options before providing recommendations for Fernando. The cable-networking program was an appropriate match for Fernando. However, the hearing officer noted that Fernando would need more content mastery designed to help him succeed in that program. The mother next complained that the district failed to provide Fernando an appropriate reading program. The woman wanted a reading program designed to improve her son’s reading skills by several grade levels to prepare him for college. Considering that Fernando was almost 21 years old and only read on the fourth-grade level, the hearing officer concluded that the mother’s request reflected unrealistic expectations. The mother also complained that the district failed to provide written translation of ARD documents from English to Spanish. At the end of each ARD meeting the district provided Fernando’s parents an audiotaped, Spanish-language translation of their son’s IEPs. Texas law provides that an audiotaped translation of the IEPs is an adequate substitute for a written translation. The evidence at the due process hearing included nine audiotapes of district employees orally translating Fernando’s IEPs from English to Spanish for the boy’s parents. Having listened to all nine audiotapes, the hearing officer concluded that the translations provided by the district were accurate. The hearing officer ruled in favor of the school district and denied all relief requested by the parent. Fernando P. v. Pasadena ISD, Dkt. No. 366-SE-0702 (Jan. 9, 2003).

The Special Education Student’s Placement In A Self-Contained Life Skills Classroom Was Appropriate; The Teachers And Staff Assigned To The Boy’s Classrooms Were Appropriately Certified Ahmed was a seventh-grade student eligible for special education services due to a severe speech impairment and mild mental retardation. In August of 2002, the student transferred to the school district from Massachusetts. At that time, an ARD Committee met and determined that the student would be placed temporarily in the self-contained life skills classroom. In September of 2002, the ARD met again to consider possible placement options for Ahmed. The Committee determined that the boy needed a more restrictive small group environment due to (1) his skills level and (2) his need for time and individual attention to master IEP goals and objectives. The Committee ultimately selected the self-contained life skills classroom for Ahmed. It also recommended the math resource room. The parents disagreed with the ARD’s placement decision. The first life skills teacher assigned to Ahmed’s classroom during the 2002-03 school year was not a certified teacher. She was employed in that position for about six weeks. The second teacher assigned to the life skills classroom in October of 2002 had a valid Texas educator certificate with an emergency permit as a secondary special education teacher. The ARD Committee met in September and twice in November to review Ahmed’s progress. At each of those ARD meetings, the parents continued to object to their son’s placement in the life skills classroom. At the third ARD meeting, the Committee agreed to provide the parents with an independent educational evaluation (IEE). The evaluation was conducted in January of 2003. The evaluator concluded that the appropriate placement for the boy was in a self-contained class with a relatively small number of children with similar needs. The parents ultimately requested a due process hearing com-


14 plaining that the district failed to (1) place their son in a proper classroom setting and program, (2) provide their son with qualified special education teachers, and (3) ensure proper staffing of the boy’s classrooms and program. The hearing officer observed that whether the student’s placement was proper depended on whether the district (1) complied with procedural requirements of IDEA, and (2) designed and implemented a program and placement reasonably calculated to enable the child to receive educational benefit. In this case, the ARD followed IDEA’s procedural requirements in that it reviewed Ahmed’s IEPs from his previous school district, gave the parents an opportunity to participate in the decision, and documented its placement decision based upon the boy’s needs. The parents argued that their son should have been placed in a self-contained speech unit with other students who had similar needs. However, the parents failed to demonstrate that the self-contained life skills classroom and its mix of students interfered with Ahmed’s ability to receive educational benefit. The parents next complained that Ahmed’s special education teachers and other district staff who worked in the boy’s classrooms were not qualified. Under guidelines established by the Texas Education Agency, special education personnel must be certified, endorsed or licensed as appropriate for their area of assignment. The record showed that for about a month, Ahmed had a special education teacher who was not certified. However, that person was replaced and evidence showed that the life skills classroom thereafter was taught by a special education certified teacher. Further, there was insufficient evidence to show that as a result of the initial teaching assignment, Ahmed was denied meaningful educational benefit. Similarly, the district provided certified special education teachers assigned to him in the resource rooms and there was no evidence to show that Ahmed had not received educational benefit as a result of staffing at his school. The hearing officer denied all relief requested by the parents. Ahmed D. v. Houston ISD, Dkt. No. 115-SE-1202 (Feb. 20, 2003).

The School District Properly Concluded That The Special Education Student’s Threat To Kill Somebody Was Not A Manifestation Of His Disability Josh was an 18-year-old high school student with a learning disability in written expression. The boy’s IEP for the 2002-03 school year provided for all classes in the general curriculum, with the only modification being modified tests/text in Spanish. During that school year, Josh earned grades in the 80’s and 90’s. Although the boy was well-liked by his teachers, he had had some “run-ins” with the school principal beginning in the Spring of 2002 and continuing in the 2002-03 school year. As a result, he had been placed in in-school suspension (ISS) several times during that year. On December 17, 2002, Josh learned that he would have to take the semester exams in his classes, contrary to his expectations. After learning this, he went to the classroom where his mother was working rather than go to his next class. The boy’s mother instructed him not to talk to the school principal about the semester exams. Despite his mother’s warnings, Josh went to talk to the principal. At some point during the conversation with the principal, Josh stated something to the effect that “I’m so mad I could kill somebody” or “I guess I’ll have to kill somebody.” The principal interpreted Josh’s statement as a terroristic threat and decided to place the student at the alternative education program (AEP) for 30 days. The district prepared a functional behavior assessment (FBA) in connection with the December 17 incident. The FBA showed that Josh was well-liked by his teachers. The student’s records showed two other incidents of behavior problems. One incident occurred in Spanish class when he used profanity when talking to the teacher. The other was an obscene gesture directed at the principal. Meanwhile, Josh’s father hired a clinical psychologist to

conduct a comprehensive evaluation of Josh. An ARD Committee met on January 8, 2003, to conduct the manifestation determination review of the December 17, incident. The parents provided a letter from the psychologist, along with a 1993 report from another evaluation that indicated a diagnosis of ADHD. The parents also requested that the ARD wait until the psychologist finished his evaluation of Josh before it completed the manifestation determination review (MDR). The ARD declined to wait for the psychologist to complete his evaluation of Josh and proceeded with the MDR. The ARD ultimately determined that Josh’s behavior was not a manifestation of his disability and that disciplinary procedures applicable to nondisabled students could be applied to Josh. In a 42-page report dated January 20 and 22, 2003, the psychologist hired by Josh’s father concluded that the boy had attention deficit hyperactivity disorder (ADHD) and a nonverbal learning disability. The psychologist believed that the boy’s nonverbal learning disability placed him in a position of expressing himself verbally without intending to communicate the actual content of the statement. The problem worsened under times of pressure or frustration. The parents requested a due process hearing complaining that because the district failed to consider the psychologist’s evaluation report before conducting the MDR, the ARD improperly determined that the December 17 incident was not a manifestation of Josh’s disability. The hearing officer observed that in conducting a MDR, the ARD had to determine that (1) the boy’s IEP and placement were appropriate at the time of the incident, (2) the child’s disability did not impair his ability to understand the impact and consequences of his behavior, and (3) the child’s disability did not impair his ability to control the behavior subject to disciplinary action. The record showed that Josh was able to perform successfully in school for many years without any behavioral interventions. The parents argued that based on the psychologist’s evaluation, which the ARD did not consider, Josh had a nonverbal disability that may have impaired his ability to understand and control his behavior. According to the hearing officer, however, a nonverbal learning disability was not a disability recognized by the Individuals with Disabilities Education Act (IDEA). Significantly, in this case, Josh went to his mother’s class before going to see the principal. The mother warned him not to confront the principal, but he did anyway. Thus, Josh’s behavior was volitional and he knew there would be repercussions. The hearing officer upheld the district’s MDR that found that Josh’s threats were not a manifestation of his disability. Joshua S. v. Shallowater ISD, Dkt. No. 139-SE-0103 (Feb. 23, 2003).

Because Aqua Therapy Served Educational Goals, The School District Improperly Discontinued Aqua Therapy As A Related Service For The Orthopedically Impaired Student Cole was a four-year-old eligible for special education services as a student who was orthopedically impaired. Cole was born with congenital myopathy and severe neuro-muscular scoliosis. He had extremely low muscle tone and weakness in his joints. The weakness and looseness of his joints caused him to hyper-extend his knees and required him to walk with a walker. He wore a body brace to assist in standing, walking, and sitting upright. As part of the Preschool Program for Children with Disabilities (PPCD), Cole received extensive occupational and physical therapy services. Beginning in August of 2001, the school district contracted with a physical therapist to provide Cole with 72 sessions of aqua therapy. The boy’s IEP included, as objectives, that he would stand using support from surroundings, squat to pick up objects from a bench six inches high, seat himself with correct positioning of the walker, walk timely in crowded hallways using an assistive gate device, walk to school facilities within


15 200 feet without an assistive device, walk on uneven surfaces without an assistive device, and ascend and descend stairways using one hand for assistance. Physical therapy performed in the pool was prescribed to assist Cole in increasing his endurance and strength. It also assisted him in maintaining flexibility and avoiding problems with his joints. The student’s work in the pool helped with coordination and helped to eliminate hyperextension of his knees and ankles. Cole also received occupational therapy and physical therapy out of the pool. The boy’s integrated physical therapy education program included land activities which required him to carry, kick and roll balls, perform push-ups, and walk on ramps and stairs. In May of 2002, an ARD Committee met to consider Cole’s progress. The therapist who provided aqua therapy to the student reported to the ARD that the boy had made significant progress during aqua therapy sessions. She provided a detailed report of the boy’s progress toward achieving classroom goals due to the aqua therapy. However, following the therapist’s presentation to the ARD, the school principal announced to the ARD that the district no longer would fund aqua therapy as a matter of “school policy.” The principal also served as the district’s special education coordinator. He also expressed his opinion that aqua therapy was medical in nature rather than educational. Following the May 2002 ARD, aqua therapy no longer was listed as a “related service” in Cole’s educational program. The parents disagreed with the removal of aqua therapy as a related service and requested a due process hearing. The main issue before the hearing officer was whether the aqua therapy was an educational or medical service. The hearing officer determined that the boy’s aqua therapy had educational goals. Cole could not walk or carry a tray and had difficulty holding a pencil with enough pressure to produce print. He did not have age appropriate endurance and was unable to go to the bathroom by himself. Further, he had difficulty moving from one classroom to another in a timely manner because his balance was uncertain. The goal of aqua therapy was to assist Cole in his preparation to enter kindergarten and the first grade. The record showed that Cole was able to make progress in his physical therapy in the pool ahead of what he had accomplished in land based therapy. The district’s unilateral determination that aqua therapy was medical was not supported by the evidence. Further, under prior United States Supreme Court case law, “medical services” referred only to services that had to be performed by a physician or medical worker. In this case, aqua therapy did not require a physician or similar medical worker. Because Cole’s aqua therapy served educational goals, the hearing officer concluded that the district improperly terminated the student’s aqua therapy as a related service. Cole K. v. Corpus Christi ISD, Dkt. No. 380-SE-0702 (Feb. 21, 2003).

Residential Placement At The District’s Expense Was The Least Restrictive Environment For The Severely Emotionally Disturbed Student To Receive FAPE Andrew was adopted by his parents when he was six weeks of age. At the age of two, the boy began demonstrating unusual social and emotional behaviors. During preschool, he exhibited a high degree of social anxiety and withdrawal that resulted in a referral for social skills therapy in kindergarten. During his first through third grade years, Andrew showed increasingly oppositional and defiant behavior at home. He also experienced learning difficulties in school. In June of 1996, before Andrew started the third grade, Andrew’s father committed suicide. Following his father’s death, the student experienced greater levels of depression, rage, and internal conflict. Ultimately, he experienced two psychotic episodes so severe that he was placed in a psychiatric treatment facility in March of 1997. Andrew withdrew from public school to attend private programs designed for special needs children. He was asked to leave the first

school he attended because of his behavior. His mother removed him from the second private school, which he attended through the seventh grade, because he did not progress academically. The mother then enrolled Andrew at the school district for the 2001-02 school year, which was Andrew’s eighth grade year. At first, the district only considered him eligible for special education services based on a learning disability. The mother provided previous psychological evaluations of her son to the district, but the district declined to put them in the boy’s file deeming them “too stigmatizing.” Andrew was placed in a resource setting for Language Arts, Reading, and Math, and a general education setting for Social Studies, Science, and his electives. By October of 2001, Andrew began demonstrating increased negativity, unwillingness to complete school work, as well as argumentative and disruptive behaviors. He experienced ongoing serious attendance problems. The boy’s behaviors also escalated at home, in that he (1) exhibited angry and violent outbursts, (2) acted aggressively toward his mother and sister, (3) refused to comply with his mother’s rules, and (4) became extremely irritable and oppositional. By March of 2002, Andrew demonstrated significantly increased defiance at school and he incurred numerous disciplinary referrals that led to his placement in the district’s alternative education program (AEP). An ARD Committee met to consider his disciplinary problems and discussed whether the general education setting was the proper placement for him. However, no change in placement was made at that time. Between March 22 and 26, Andrew was placed at a psychiatric hospital following a disruptive behavioral incident at school. Upon discharge, the hospital recommended that Andrew be placed in a residential treatment center (RTC) to treat his mood disorder, receptive and expressive language disorder, and developmental motor coordination disorder. Doctors there believed that Andrew needed a highly structured school environment that could provide emotional support and meet Andrew’s needs for his learning difficulties. On March 27, 2002, an ARD Committee met and Andrew’s mother requested RTC for her son based on the psychiatric hospital’s discharge plan. The ARD concluded, however, the boy’s needs could be met within the district and decided to try other options before placing him in RTC. The ARD reconvened on April 4, 2002, to review the prior psychiatric evaluations, the hospital’s discharge plan, and teacher reports about the student’s classroom performance. Records showed that he was deteriorating in his classes and failing four out of seven subjects. The ARD added emotional disturbance to his special education eligibility classification and referred him to a mental health center that provided services for the district. The ARD also conducted a Functional Behavioral Evaluation (FBE) and developed a BIP for the student. The mother continued to disagree with his placement within the district. Andrew’s ARD met in May of 2002, to assess his progress under the BIP and to consider placement for the 2002-03 school year. The mother again requested RTC for Andrew. However, the ARD disagreed and, instead, placed him in the Behavior Problems Unit (BP) at one of its high schools for his ninth grade year. Meanwhile, between May and September of 2002, Andrew and his mother attended outpatient therapy. Andrew began the 2002-03 school year at the district’s high school with his core classes in the BP Unit and his electives in a regular education setting. When he was unable to transition successfully to mainstream classes, his placement was changed to the BP Unit for the entire day. In September of 2002, after the boy’s behaviors escalated substantially, Andrew’s mother removed him from school so that he could live in Chicago with his grandmother. When Andrew returned from Chicago in November of 2002, his behavior and attitude worsened considerably both at home and at school. In December of 2002, the ARD met to address Andrew’s failing grades and deteriorating behavior. The boy’s mother continued to request RTC. However, the district believed that he had not been back at school from his stay in Chicago long enough for him to be successful. Nevertheless, throughout December of 2002, he


16 continued his same behaviors, was failing all of his classes, and ultimately assaulted a teacher. Andrew’s treating psychiatrist at the district’s youth and family center recommended RTC for Andrew as of December 2002 due to the boy’s escalating behaviors and the failure of less intensive therapeutic treatments. Further, in connection with a pending truancy case, the district submitted a report to the court stating that Andrew needed a residential placement and that extensive family counseling, individual counseling, and school behavior modification efforts had been exhausted. Despite the district’s own conclusions made in that report, the district refused to place Andrew in RTC. Andrew’s mother thus requested a due process hearing, arguing that RTC was the appropriate placement for Andrew. The hearing officer observed that IDEA requires public funding of a residential placement only when such a placement is necessary for the student to receive a free appropriate public education (FAPE). The residential placement must be necessary for educational purposes and not primarily due to medical problems or problems within the student’s home that are separate from the learning process. Further, residential placement is not appropriate when the student is progressing adequately at school even though the student may be exhibiting serious behavioral or emotional problems at home or in the community. In this case, the evidence established Andrew’s need for RTC

placement in order to obtain educational benefit. Throughout 2002, the student consistently exhibited behaviors resulting from his disability that seriously impeded his progress at school, both behaviorally and academically. Andrew’s frequent absences from school, unstabilized medications, refusal to attend class and complete school work, and aggression at school resulted in his inability to obtain educational benefit during the 2002-03 school year. Those issues resulted from Andrew’s emotional disturbance and disabilities. By December of 2002, Andrew was failing every class and was unable to complete any school work at all. Andrew’s grades, school disciplinary records, and teacher testimony supported the conclusion that the boy was unable to, and did not, receive an educational benefit in the district’s BP Unit. Further, every mental health professional who treated Andrew during 2002 recommended a residential placement as necessary for him to function. Nevertheless, the district argued that RTC should not be at the district’s expense because the placement was not for educational purposes. The hearing officer disagreed and determined that Andrew’s educational needs could not be separated from his emotional and medical needs. Rather, Andrew’s emotional needs had to be addressed before he could receive educational benefit. Thus, residential placement at the district’s expense was the least restrictive environment in which Andrew could receive FAPE. Andrew S. v. Dallas ISD, Dkt. No. 112-SE-1202 (Feb. 21, 2003).

ENDNOTES continued from page 5

ENDNOTES   1. TRS rules were amended March 12, 2003, as required by the 78th Texas Legislature.   2. For Texas Administrative Code provisions, visit the website of the Secretary of State at www.sos.state.tx.us. Readers should confirm that the rules on that site are the most current. For statutory provisions, visit the website of the Texas Legislature at www. capitol.state.tx.us.   3. 34 Tex. Admin. Code § 31.11(c).   4. Tex. Gov’t Code § 824.005(b).   5. Tex. Gov’t Code § 824.002(a).   6. 34 Tex. Admin. Code §§ 29.15(a), 31.3.   7. Tex. Gov’t Code § 824.002(c).   8. 34 Tex. Admin. Code § 31.3; Tex. Gov’t Code § 824.005(b).   9. Tex. Gov’t Code § 824.601; 34 Tex. Admin. Code § 31.11(b). 10. 34 Tex. Admin. Code § 31.12. 11. 34 Tex. Admin. Code § 31.11(a). 12. Tex. Gov’t Code § 824.602; 34 Tex. Admin. Code § 31.12. 13. 34 Tex. Admin. Code § 31.1(b). 14. 34 Tex. Admin. Code § 31.13(a). 15. Id. 16. 34 Tex. Admin. Code § 31.13(b). 17. 34 Tex. Admin. Code § 31.13(a). 18. 34 Tex. Admin. Code § 31.14(a). 19. 34 Tex. Admin. Code § 31.14(b). 20. Id. 21. 34 Tex. Admin. Code § 31.14(c). 22. Id. 23. 34 Tex. Admin. Code § 31.14(d). 24. 34 Tex. Admin. Code § 31.15(a), (b). 25. 34 Tex. Admin. Code § 31.15(c). 26. 34 Tex. Admin. Code § 31.15(f). 27. 34 Tex. Admin. Code § 31.15(d). 28. 34 Tex. Admin. Code § 31.15(c). 29. 34 Tex. Admin. Code § 31.16(a). 30. Tex. Gov’t Code § 824.602(m). 31. See Letter to the Administrator Addressed dated 03/14/2002. 32. See Board Policy DC (LEGAL); Tex. Gov’t Code § 824.602(m)(2). 33. Tex. Gov’t Code § 824.602(m)(3). 34. 29 U.S.C. § 621 et seq. 35. 41 F.3d 1073 (7th Cir. 1994). 36. Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir. 1995). 37. 34 Tex. Admin. Code § 31.17(a). 38. 34 Tex. Admin. Code § 31.17(e). 39. 34 Tex. Admin. Code § 31.18(a). 40. 34 Tex. Admin. Code § 31.31(a). 41. 34 Tex. Admin. Code § 31.31(b). 42. 34 Tex. Admin. Code §§ 31.32(a), 31.33(a). 43. Id. 44. 34 Tex. Admin. Code § 31.34(a), (b). 45. 34 Tex. Admin. Code § 31.34(e). 46. 34 Tex. Admin. Code § 31.2. 47. 34 Tex. Admin. Code §§ 31.16(b), 31.17(b). 48. 34 Tex. Admin Code §§ 31.15(c), 31.16(d), 31.17(d), & 31.18(b). 49. Tex. Att’y Gen. Op. No. GA-0018 (2003) [hereinafter AG Opinion]. 50. See AG Opinion at 2.

51. Tex. Gov’t Code Ann. § 821.001(6). 52. Brief from Conni H. Brennan, General Counsel, Teacher Retirement System of Texas, to Susan Denmon Gusky, Chair, Opinion Committee, Office of Attorney General at 4 (Sept. 16, 2002) (on file with Opinion Committee) [hereinafter TRS Brief]. 53. Id. 54. Tex. Educ. Code Ann. § 11.157. 55. Brief from Martha P. Owen, Wiseman, Durst, Owen & Colvin, to Honorable John Cornyn, Texas Attorney General at 5 (Oct. 4, 2002) (citing Wirtz v. Lone Star Steel Co., 405 F.2d 668 (5th Cir. 1968) and Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir. 1986)) (On file with Opinion Committee) [hereinafter TFT Brief]. 56. Id. 57. See AG Opinion at 3. 58. Tex. Educ. Code Ann. § 22.051. 59. See AG Opinion at 4. 60. Tex. Labor. Code Ann. §§ 91.001-91.063. 61. AG Opinion at 5. 62. See Tex. Educ. Code § 22.004 and Tex. Ins. Code Article 3.50-7. 63. See Tex. Ins. Code Article 3.50-8. 64. 29 U.S.C. § 621 et seq. 65. The author wishes to extend a special thank you to Walsh Anderson attorney Shellie Hoffman Crow for her invaluable assistance in creating this article.

PRSRT STD U.S. Postage PAI D Denton, TX 76202 Permit No. 207


May, 2003