Ask the Attorney: Special Education Edition

In today’s episode, the TSBA Staff Attorneys are back and answering the most asked legal questions received from board members across the state. This version of “Ask the Attorney” focuses solely on questions regarding the law around board policy. Questions from “what is the function of the policy committee” to “how can a board member propose a policy change” are tackled during today’s episode.

Click here if you wish to read the transcript of today’s podcast episode.

Episode Transcript

(00:06):
I'm Jenna Zwan and I'm Emily Warren and you'relistening to TSBA, Your Education Source.
Welcome back everyone. You are listening to TSBA,Your Education Source, the podcast. And today,
bringing back to you by popular demand is an Ask theAttorney episode and this is all special

(00:29):
education focused. And to help us with thisconversation, we have Ben Torres who is the
Assistant Executive Director and GeneralCounsel here at TSBA. And Jennifer White who's the
Director of Policy Services and Staff Attorney aswell. Thank you both for being here today. Thank
you for having us. Yeah, thank you. So let's startoff basic and then let's kind of go down to

(00:49):
specifics. Let's start off with talking aboutwhat is special education? So typically when you
hear that term, especially if you're a newer boardmember or this just isn't something that's
impacted you personally, you may have questions.Generally when we use that term, we're talking
about the law, usually federal law, sometimesstate law, but primarily federal law has

(01:12):
protections in place to help students who havesome kind of barrier to the educational
environment. So that can look like there's reallythree different main terms that come up. There's
the ADA, there's the Americans with DisabilitiesAct that's going to apply to students, employees,
maybe the general public. The Americans withDisabilities Act or the ADA, that provides access

(01:33):
to facilities. I think that's the easiest way tothink about it. It does other things too, but
primarily we can think of wheelchair ramps,right? That's a good basic example. Someone
literally can't access the building, the law saysthat's a problem. Having people be able to access
the building. That's also going to cover thingslike service animals, we can get into that and
maybe an example later on. The two main ones forstudents in the educational aspect, you may hear

(01:57):
the terms 504 plans or IEP plans. So those are twodifferent federal laws. Generally a 504 plan is
going to be for a student who has some kind of, theyneed some kind of extra assistance in accessing
the curriculum. So that could be a student who has ahearing impairment, a student with a visual

(02:18):
impairment. So for either of those students, theymight need an interpreter perhaps. So a blind
student, they may need Braille, a student withhearing impairment, they may need a sign language
interpreter. So they need something extra thathelps that student in particular access the
learning environment. In IEP, that is going to besomething that is very student specific. There

(02:40):
are very certain specific criteria, 13 differentcategories a student could fall into that makes
them eligible for an IEP. The similar strainrunning through all of these things is what does
that student need in order to be able to getcurriculum just like everybody else. So it's not,
sometimes people can think of it as, oh, well theyneed extra things. And yes, it is different, it's

(03:03):
extra, it's something that has its own uniqueprocess, but it's really about making sure that
kid has the same access as other kids. And if theyfall into those categories, state law, federal
law rather, sometimes supplemented by state lawis going to say, hey, in order to get that free
appropriate public education that every otherkid gets, this student needs something else to get
them to that level, to make sure they haveeverything they need. And I think it's important

(03:27):
also to think about it this way too. Jennifermentioned three different laws, specifically
504s and IEPs. And we'll talk a little bit about504s and IEPs, specifically IEPs. But just
remember that there's a potential where a studentmay qualify for a 504 and qualify for an IEP, or a

(03:48):
student may start off with an IEP and move later onto a 504. So when you're talking about special
education, you can think of it in the big realm ofthose students with 504s and IEPs, or you can think
of it in a smaller, in smaller terms of just thosestudents that have an IEP under IDEA. So certainly

(04:14):
a way to think about it. So when somebody mentionedspecial education in your district, I would
encourage you to be a little bit more specific,okay? Are we just talking about students with an
IEP? Or are we talking about all of our studentsthat have some type of plan to ensure they receive a
free appropriate public education and access toour schools? And I think that's why these episodes

(04:36):
are so great, as the attorney episodes. It'shelping our listeners give you vocabulary to use
when you're talking to your administration, yourdirector. If a parent approaches you, you now know
what to then pass along to the director of schools.Thinking about students who do need extra
assistance during the day, let's talk aboutplacement. How does school district determine

(04:58):
placement of a student with a disability? So itreally depends on which category we're talking
about. So let's talk about, really the focus ofthis are those students that fall under IDEA that
have an IEP or an individual education program.Those students, their placement is determined by

(05:20):
something called the IEP team. So when we look at anIEP, this is a document that determines the
services a student will receive in order to get afree appropriate public education. A lot of terms
were thrown around. I get it. We use acronymsbecause, I mean, there are so many different terms

(05:42):
that come into play. And the IEP team and the IEPreally work together. So overall, when you're
looking at the structure of the way this works,let's say a teacher or, you know, a school
counselor or even a medical provider believesthat a student has some type of disability. And
it's one of those disabilities that fall underIDEA that Jennifer mentioned earlier. The school

(06:07):
district is going to get notified by either theparent, the teacher, and then the school district
is going to conduct an evaluation. Now, there's awhole evaluation process depending on the type of
disability will depend on the evaluation. So it'snot a one size fits all box. If everybody receives
this evaluation, it is 100% determined based onthe possible disability that the student has. And

(06:31):
sometimes it's going to be more recognizable thata student has a disability than other students.
You may have students that you would, you wouldn'tthink they have some type of learning disability,
but the learning disability that they have fallsunder the categories listed in IDEA. So Jennifer

(06:52):
had mentioned earlier 13 for our listeners whowere thinking about this, trying to process. What
are a few? Way to put us on the spot there, Emily. No.So one of them that comes to mind is specific
learning disability. And that deals with thingssuch as dyslexia, that ADHD, those things could

(07:14):
fall under specific learning disability. If theymeet the criteria in the evaluation for specific
learning disability. So there are a number of themin Tennessee, for instance, just in Tennessee at a
state level, gifted students are consideredspecial education students and are eligible for

(07:37):
an IEP at the school district level. So those aretwo examples, one at a federal level and one at a
state specific level. Those at a state specificlevel under state law still receive the,
generally they still receive the sameprotections as those students under federal law.
So those are some examples of where it can come intoplay. And you can have situations where students

(07:59):
fall into multiple categories and they have aprimary and a secondary. So it can get really
complicated, really, really fast. And just totell you how complicated it is, there are some
attorneys, this area of the law, that is all theydo. They do not do anything else. It is strictly

(08:20):
special education law. That's how justcomplicated and in depth it can be. And they're the
experts in it, exactly like you're saying,because it's so in depth. So hopefully at the
outset you're appreciating how complex it can be,but also just to kind of put this in your ear. If you
hear the term special education come up in a boardcontext, just student disciplinary context or a

(08:44):
parent concern, whatever it is, hopefully, justas Ben was explaining, that's enough to kind of
alert you to, hey, this is very complex. I'm goingto need to know some more information. So this
could be a time to get with your director to theextent they can share information about what may
be going on. Maybe the special ed director, thoseare the people who are going to have more in depth

(09:04):
information about how exactly a specific studentis being served. Because just like Ben said, it's
not a one size fits all thing. That means that IEP isnot a one size fits all situation either. And this,
as we're going to talk about later, can impactdiscipline, lots of different things. But just
know if you're talking about a kid in a specialeducation context or that term even comes up,

(09:24):
there's probably some kind of documentationabout, you know, probably a whole paper trail,
right, about what the school has been doing to tryto serve that student, what medical
considerations there might be. And the IEP, Ithink of it, I tried to explain it to people
sometimes is almost a contract, right? It's a veryspecific legal document that lays out
obligations. And so that's going to be hugelyimportant in any kid's situation in a school.

(09:48):
Yeah, certainly. And once they once they have thatevaluation, they have an IEP team meeting. So
that's made up of individuals such as the specialeducation teacher, special education director,
representative of the district, which can be thespecial education director, the students
teacher, the parent, all those individuals getsit down inside a room and say, OK, this is the

(10:13):
disability that your student has. We conduct anevaluation. You know, let's let's look at
specific learning disability and dyslexia, forinstance. We'll narrow in on that to make it a
little bit more easy. So an evaluation isconducted to determine if the student has
dyslexia. If the evaluation comes back, which isusually multiple tests conducted by a school

(10:34):
psychologist. They look at test scores. I believethey look at benchmark scores. They look at a
number of different areas and they put it all in areport and they present it to the parent and say,
OK, here's the evaluation from the schoolpsychologist. Here are benchmark scores. Here
are testing scores. This is how the student isperforming during the regular school day in the
classroom. Classroom observations are anotherpart of that. All that is placed into a report and

(11:00):
then the IEP team looks at that report and says, OK,the student has dyslexia. These are the issues
that are coming up in the classroom. That report,based on the tests that were administered, will
narrow down what are the specific areas where thestudent is struggling the most. The report will
narrow down those areas and then the IEP team cansay, what are the interventions that need to occur

(11:23):
for that student so that student can have access toa free appropriate public education. Do we need to
make sure that the student is pulled aside or hasone-on-one instruction so many times a week? Do we
need to make sure that during the testing process,there are additional accommodations made so the
student can have extra time or be in an area thatwithout any additional time. There is no

(11:46):
distraction. Those are different thingspractically that the team will look at to address
those issues. Once all of that is agreed upon, itgoes into this contract that Jennifer mentioned.
It's an IEP and the parent receives that IEP andit's a document outlining everything that will
happen over a time period. It will also includegoals. What are the goals for the student and how do

(12:13):
you get to those goals? So that's what an IEPactually is. It's those interventions that are
being documented and agreed upon that would beprovided to the student to ensure the student
receives a free appropriate public education.And that's a key phrase in the law. I also sometimes

(12:34):
kind of shorthand it for people as saying theacronym for that is FAPE. But I also refer to it as,
what does this kid need so that they basically havea fair shot? What for them makes the learning
environment accessible? Just like we wouldn'tfrom a federal law standpoint, right? Just take
out all the wheelchair ramps and say, oh, sorry,you can't access this building. I think that's a

(12:55):
helpful framework. If psychologists, parents,teachers, all of these team members have
determined this kid needs XYZ and you've put it inwriting. Well, if that kid isn't getting XYZ,
that's going to be a problem for the district, theparents, the student. There could be lawsuits as a
result because it's like a contract like we'vebeen saying. And you as individual board members,
you may receive feedback from, let's say, a parentand a parent, their student is evaluated and they

(13:20):
may not be eligible for an IEP. Well, just becausethe student is not eligible for an IEP under IDEA
does not mean the student is not eligible for a 504plan under Section 504, the Rehabilitation Act.
So that's where it can get even more complicated.Like we mentioned earlier, you have 504 plans, you
have IEPs, a student could be eligible for both.They could be eligible for one. So it's really

(13:43):
important to understand just how complicated andwe're talking about it at really a 30,000 foot
level. Just the overall basics. Because like Isaid, you have attorneys that specialize in this
area because it is so complicated. And it is trulyfat dependent and fat driven. Which I think is a

(14:06):
good thing because the idea is that every kid getsexactly, hopefully, right? The very specific
things that they need. Because otherwise it wouldbe, oh, just check a box and then here's the box of
tools that you get, but that's not how it works.Which I think is good, but also, of course, makes it
more complicated. So practically speaking, ifyou're listening in and you're a board member and
you're thinking through, OK, have a parentcomplaint about a situation or you hear things

(14:30):
from the administration side. Whose job is it todetermine which child has a disability? Should
the parent be coming to the school district or is iton the school district? To flag. If the parent
believes that the student has a disability, theparent can put in writing, put something in

(14:53):
writing to the school and provide it to the schooland that puts the school on notice that the student
has a disability. On the flip side of that, if ateacher notices in the classroom that a student is
struggling, the teacher could refer the studentto the special education teacher or the special
education director in the district for anevaluation. So there's multiple ways that it can

(15:14):
occur. So it's not a one size fits all, I guess, toanswer your question. The parent can make the
request, the teacher can make the request. So to goalong with that, and maybe this ties it all
together, there's a child find obligation. So infederal law, a district has the obligation to go

(15:37):
out, find and provide services to those studentsthat are eligible under IDEA, which is the federal
law for students with disabilities. So there's anaffirmative obligation on behalf of the district
to go out and find those students and provideservices. So that's where it comes into play, like
I said, the teacher can make the referral,somebody in the school district can see that. Or

(15:58):
even though that's an obligation of the district,that doesn't prohibit or prevent the parent from
saying, hey, my student has these issues. Andsometimes that's helpful too, you know, as the
student is entering school, that the parent isalready aware of an issue or some type of
disability. Providing that information justallows those services to be provided to the

(16:20):
student that much sooner. And I think that shouldideally make the district take those concerns
from the parents very seriously because when theyhear things like that, that should trigger them to
take the next step, which should be these optionslike they mentioned. So let's shift a little bit
and let's talk about discipline. So that issomething that we receive lots of questions about

(16:42):
whether it be from board members or directors ofschools. So let's talk about discipline in a
school setting for the students withdisabilities. Let's talk about the laws in place
when we're talking about what's appropriate whenit comes to discipline. So the answer to that is it
depends. Favorite attorney answer. Favoriteattorney answer. And this is why I say that. So

(17:06):
let's say you have a student that has a disabilitybut also has behavioral issues associated with
that disability. Well within the IEP, you couldhave certain actions that must occur if a student
has an issue in the classroom. So maybe the IEP iswritten to such an extent that if the student has an

(17:30):
emotional outburst or an emotional issue, theteacher notifies someone and they allow the
student to go to a separate location where they cancalm down or address whatever issue needs to be
addressed and then return the student to theclassroom. That is an example of where the IEP is
truly dictating what happens in that situation,which that can occur. But then you may have a

(17:55):
situation where a student doesn't have that in theIEP. And in that situation they could potentially
be disciplined like any other student. Now it'scertainly more complicated than that but that's
kind of the general idea. That you're exactlyright for those kinds of smaller, I don't want to

(18:18):
minimize them, but things that aren't like acalendar year expulsion, right? If that's what
we're talking about, that is a completelydifferent thing and I think for good reason. So if
you're talking about removing a kid from theireducational environment, not just for the 10
minutes they need to cool down or whatever, ifwe're talking 10 days, that's the standard in
federal law for let's say they get sent to thealternative school for 10 days or they are being

(18:41):
told that they need to sit at home for 10 days,right? There's different options. The key phrase
is change in placement. Yes, thank you. Key phrasefrom federal law standpoint. If that is what is
happening then the district and hopefullyeveryone's aware, right? Usually people are
going to know, right? If we're talking aboutdiscipline for a kid who has an IEP, that should

(19:02):
trigger a very specific process. You're going towant to think about the next key phrase which is a
manifestation hearing, right? So basically whatthe district is going to need to do and it's very
fact specific, but if you're going to change theplacement for that length of time, the district is
going to need to be thinking, okay, why did thishappen? Is what happened a result of the student's

(19:25):
disability or is it possible the result of thedistrict not meeting their IEP obligations?
Either way, if one of, if the answer is yes to one ofthose two things, that student is going to be
disciplined differently than a typical studentwould be. And that's the, as Jennifer mentioned,
the manifestation determination. That's the,that's where that it depends really comes into

(19:46):
play because depending on the situation willdepend on the answer to those questions and that's
where it's so fact dependent. So for example, if astudent is being disciplined because they hit
somebody, but let's say in this hypothetical thestudent has uncontrollable muscle spasms,
right? If their arm literally just flew up, theywere not intending to hit anybody. I think that's

(20:09):
maybe a simpler example where most people can see,okay, that's not you haul haul it off and punch
someone if your arm literally spasmed, you had nocontrol over your arm, right? That's, it made up
hypothetical, but hopefully that helps explainlike, if you literally could not control what was
happening in the instance and it's directlyrelated to your disability, that's going to be
treated differently under federal law. And thedisciplinary consequence is going to be

(20:31):
different than a student who is actually activelyhitting someone intending to, you know, punch
them. Well, and that's the other side of theexample. So let's go back to our student with
dyslexia for instance. And they're out on theplayground and they just walk over and shall we kid
off the monkey bars and the student is injured?Well, that is not a result of their disability. So

(20:56):
if the student is suspended for an extended amountof time, maybe it's multiple events, well, they
could potentially have a manifestationdetermination hearing. And if it's not a
manifestation of the disability, they'redisciplined like any other student. So that's why
when people try to, try to categorize specialeducation and discipline in a one size fits all

(21:17):
box. Yes, there are federal requirements thatcome into play, but you have to truly take an
individualized look at that student. What are thedisabilities? What was the situation? You know,
what has been the discipline for that student overthe course of the year? There's a lot of things that
come into play and it isn't a one size fits all box.So before we sign off today, Jennifer and Ben, as

(21:42):
part of TSVA's legal team, they filled questionson a day to day basis from board members, directors
of schools, administration, board secretaries,you name it. So when you think about across the
state of Tennessee, I'm curious, what are some ofthe common questions that you all receive about
special education? Honestly, the thing that Ihear the most about is student discipline and as

(22:03):
Ben just mentioned very well, that can be socomplicated. And we, you know, I always
appreciate hearing from people and trying to helpwith concerns, but usually if someone is calling
us about that, we're not at the level where we canresolve it, right? We can't step in and make some
kind of determination. What we, I would sayoverwhelmingly recommend in those situations is
if it's gotten to the point where someone'scalling a board member, to me, my first assumption

(22:27):
is there's probably been a breakdown incommunication somewhere. And I feel for them, I
feel for the parent who was so concerned that theycalled their board member, but the people who are
going to have all that information about exactlywhat happened, maybe what has frustrated the
parent or maybe gone wrong, that's going to be yourdirector, your special education person, board
members can certainly kind of channel, right,redirect that parent to the director of schools.

(22:51):
They could also reach out to the director and say,Hey, I keep hearing these concerns. Is there
something about the way this is beingcommunicated to parents that can be improved? But
it's not for the individual board member. And itmakes sense. It's just not set up that way. There's
a lot of confidentiality laws. There's a lot ofconcerns. At the same time, I can absolutely
appreciate how when it's someone's kid beingdisciplined, of course, those are the things

(23:12):
people call board members about. They care, ofcourse they do. And here's the thing about that.
There's a whole due process system establishedunder IDEA that must be followed. So in that
situation, if somebody jumps outside of the dueprocess procedures, you know, they're putting

(23:33):
themselves in a situation where they may not haveaccess to certain remedies in the future. So
that's why it's always important to redirectthem. And even when you call here, we can we can tell
you, okay, this is the process. This is what anevaluation looks like, you know, all that stuff is
public. But when it gets down to it, it's going to betruly dependent upon that individual student and

(23:54):
where they are at in the process. Absolutely. Aswell as the contents of their IEP, which we don't
know and nor should we, right? That's privateinformation for a reason. But so student
discipline, we hear a lot about occasionallyservice animals is something that comes up. I
always recommend one talk with your boardattorney, especially if you're having some kind
of situation that is landed you in litigation or islikely to. Usually when I hear about it, it's a

(24:22):
miscommunication. Sometimes districts willhave either an outdated policy or procedure that
requires advanced notice in writing sometimesfor someone to come onto property with a service
animal. I generally say again, reach out to yourattorney. But that would not be my go to move on that
because that applies so broadly, right? What youprobably are not intending is to borrow a parent

(24:46):
from a parent teacher conference who has a serviceanimal, right? You're probably not intending
that but that can happen. You're also probably notintending to tell a transfer student who doesn't
know the rules, maybe is visually impaired thatthey have to stay home because they have a service
animal. So just checking up on that, making sureyou know what kind of the assumptions or the go to

(25:07):
procedures are in the central office on that,making sure they align with what you're
intending, what's in your current policy. Youmentioned service animals. We're hearing a
increase in districts who are bringing therapydogs, therapy animals to school. In a five second
snippet, tell me the difference between the two ofthem. Emily, can attorney say anything in five

(25:29):
seconds? Let's find out. So federal law protectsservice animals and that's why I mentioned that in
this context. So federal law says you can'tessentially just close the school door to someone
who has a service animal because you're denyingthem the same kind of opportunities other people
have. It says nothing about therapy dogs. That'sthe very short answer. It doesn't mention them at

(25:50):
all. That's essentially a new category, a termthat people are using. It just doesn't exist in
federal law. So that's not to say you shouldcompletely close the door on those either. I think
you have some room to think about whether you wantto permit that. Say it's at your discretion, you
need to be thoughtful about it. A separatecategory of things though, though it's becoming

(26:10):
more common. My son goes to a school that has atherapy dog. So it's different if the school has a
program, right? And you have a dog like the school,his school's dog is named Star. She actually came
to our TSP convention in the fall. And Star and herhandler have a parking spot, right? They have
preferred parking. It's a whole thing. I say thisto note that it's a formal program. It's not like

(26:31):
some teacher just brought their dog to school oneday. But it's a formal program. They've got a
system in place for it. If you're looking to startthat up, I recommend that you have a plan, right? I
wouldn't. I recommend everyone just startbringing their dogs. You want to make sure you've
talked with your insurer. You want to make sure youhave a policy in place that outlines this. You also
want to think through just some practical thingsof are there kids with severe allergies? Like I

(26:54):
have to sign a form every year stating, you know,whether my son has severe allergies to dogs and
whether it's okay for him to be around the therapydog. Those kinds of things are what you're going to
want to be aware of. And a lot of districts aremoving that direction and they use it as good
behavior rewards for students. So my kids go to adifferent district, completely different

(27:15):
district, and they have a therapy dog at one oftheir schools. And it's a good behavior reward.
They get to spend time with the therapy dog and theyabsolutely love it. But it's another way that this
type of, you know, process can be used for theentire student population, not just a specific

(27:39):
group of students. For sure. Yeah, in his class, ifyou get to walk the dog, that's one of the things you
can use your good behavior like tickets for is youcan spend them on taking the dog and walk. Oh,
you're just like the coolest kid. If you got to dothat that day and everyone knows you took star for a
walk. So yes, it's I think it's very effective. Andthat's something that districts are moving
towards. Well, so now we have reached the end of thepodcast, I believe. And we're going to just give a

(28:04):
little disclaimer that we provide legaleducation information as a general service to our
members. Everything we stated in the informationwe provided certainly doesn't establish an
attorney-client relationship. And it'sprovided for informational purposes. It should
not be interpreted or used as a substitute for alegal opinion from a school attorney,
specifically your school board attorney. And wealways encourage board members before making any

(28:29):
legal decisions. You as a board member and youradministrators should consult with your
attorney or some other qualified counsel.Perfect. Jennifer, Ben, thank you both for
another great Ask the Attorney's episode. Thankyou. You bet. Thanks for joining us today. Whether
you're driving to work or on your back porchenjoying your morning coffee, we hope you enjoyed

(28:53):
this dive into public education. For futureepisodes, subscribe to our podcast by going to
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(29:18):
we're doing and tell us what topics you want to hearabout. Thanks again for listening. We hope you
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