Monday, September 15, 2014

Weekly Question!

Bullying remains the hot button issue in special education law, and many people feel that it reflects a larger and ugly societal problem. Have you had any experiences with kids with disabilities being the victim of bullying?

Tuesday, September 9, 2014

Bullying of Kids With Disabilities - Part I

Seal, United States Court of Appeals for the T...
Seal, United States Court of Appeals for the Third Circuit (Photo credit: Wikipedia)
















Bullying is a real problem in our society.  Bullies often take advantage of those whom they perceive as weaker.  The Columbine tragedy brought the problem to a higher level of public awareness, but the problem persists.

Kids with disabilities are often singled out by bullies.  This has become one of the hottest of hot button issues in special education law.  Several laws could be implicated, but my focus here will be upon whether bullying can constitute a violation of IDEA.

In the next installments, I'll discuss a well-reasoned District Court decision, but first some background on the legal foundations for this analysis:

In the seminal decision by the Third Circuit in Shore Regional High Sch. Bd. of Educ. v. P.S. 381 F.3d 194, 41 IDELR 234 (3d Cir. 8/30/2004) recognized that bullying could prevent educational benefit, and a school district’s failure to respond could constitute a denial of FAPE.  See also, Gagliardo v. Arlington Central Sch Dist 489 F.3d 105, 48 IDELR 1 (2d Cir. 5/30/2007).

          Shortly, thereafter the Second Circuit ruled that a student with a disability cannot receive educational benefit or FAPE if he is not in a safe environment.  Lillbask ex rel Mauclaire v. State of Connecticut Dept. of Educ.  397 F.3d 77, 42 IDELR 230 (2d Cir. 2/2/2005).  

           These cases provide the analytical foundation.  

Monday, September 8, 2014

Weekly Question!

Bullying remains the hot button issue in special education law, and many people feel that it reflects a larger and ugly societal problem. Have you had any experiences with kids with disabilities being the victim of bullying?

Wednesday, September 3, 2014

TK II and the Bullying of Children With Disabilities

Some states in the United States have implemen...
Some states in the United States have implemented laws to address school bullying.(Photo credit: Wikipedia)





















I guess that this is a prequel to our upcoming series on bullying of  kids with disabilities.  But there has been a significant development and I didn't want to wait until after the series to get you the information.

The TK decision which is the leading case on bullying and which I think articulates a new FAPE BULLYING standard and which is the focus of our upcoming series has risen again.  The case came back to the District Court after having been remanded and the court issued its decision in late July. For clarity, I'm calling the remand decision TK II.

 On remand, the SRO found that the parents had not shown that the bullying substantially affected the student’s educational performance and denied reimbursement for a unilateral placement, but the district court reversed. The court held that the FAPE bullying standard is as follows: A disabled student is deprived of a FAPE when school personnel are deliberately indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child with learning disabilities in her educational opportunities.  The conduct does not need to be outrageous in order to be considered a deprivation of rights of a disabled student. It must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment. When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination.  The rule does not require that the bullying would have prevented all opportunity for an appropriate education, only that it was likely to affect the opportunity of the student for an appropriate education. Applying this standard, the court ruled that the student’s educational opportunities were substantially restricted by bullying and that the IEP team substantively denied FAPE by failing to address bullying. TK & SK ex rel LK v. New York City Dept of Educ   63 IDELR 256 (EDNY 7/24/14)

Wow that's a lot to digest.  What do you think about the standard articulated by the court? You can read the district court opinion here.

Monday, September 1, 2014

Happy Labor Day

English: Hon. Grover Cleveland, head-and-shoul...
. Grover Cleveland (Photo credit: Wikipedia)


























Happy Labor Day!  For your holiday reading here are some fun facts from our friends at the U S Census Bureau:


The first observance of Labor Day was likely on Sept. 5, 1882, when some 10,000 workers assembled in New York City for a parade. That celebration inspired similar events across the country, and by 1894 more than half the states were observing a “working men’s holiday” on one day or another.Later that year, with Congress passing legislation and President Grover Cleveland signing the bill on June 29, the first Monday in September was designated “Labor Day.” This national holiday is a creation of the labor movement in the late 19th century and pays tribute to the social and economic achievements of American workers. 
Who Are We Celebrating?
155.6 million
Number of people 16 and over in the nation’s labor force in May 2013. Source: U.S. Bureau of Labor Statistics, Table A-1 <http://www.bls.gov/news.release/pdf/empsit.pdf
>
                                          Our Jobs
Largest Occupations May 2013                                                       Number of employees
Retail salespeople                                                                                                4,485,180
Cashiers                                                                                                               3,343,470
Combined food preparation and serving workers,                                             3,022,880                including fast food
Office clerks, general                                                                                          2,832,010
Registered nurses                                                                                                2,661,890
Waiters and waitresses                                                                                       2,403,960
Customer service representatives                                                                        2,389,580
Laborers and freight, stock, and material movers, hand                                     2,284,650
Secretaries and administrative assistants, except legal                                       2,159,000
medical, and executive
Janitors and cleaners, except maids and housekeeping                                      2,101,810
            cleaners 

Source: U.S. Bureau of Labor Statistics, Occupations with the Highest Employment, May 2013, <http://www.bls.gov/oes/2013/may/featured_data.htm#largest
>
Largest Occupations 1910                                                               Number of employees
Farmers (owners and tenants)                                                                             6,132,000
Farm laborers, wageworkers                                                                               2,832,000
Farm laborers, unpaid family workers                                                                2,514,000
Operatives and kindred workers, manufacturing                                               2,318,000
Laborers, nonmanufacturing industries                                                              2,210,000
Laborers, manufacturing                                                                                     1,487,000
Salesmen and sales clerks, retail trade                                                                1,454,000
Housekeepers, private household – living out                                                    1,338,000
Managers, officials, and proprietors, retail trade                                                1,119,000
Mine operatives and laborers, crude petroleum and                                              907,000
            natural gas extraction

Source: Statistical Abstract, Bicentennial Edition: Historical Statistics of the United States, Colonial Times to 1970, Chapter D: Labor, Part 1, Page 20 of pdf, Series D 233-682. Detailed Occupation of the Economically Active Population: 1900 to 1970 <http://www2.census.gov/prod2/statcomp/documents/CT1970p1-05.pdf
>
16.0 million
The number of wage and salary workers age 16 and over represented by a union in 2013. This group includes both union members (14.5 million) and workers who report no union affiliation but whose jobs are covered by a union contract (1.5 million). Source: U.S. Bureau of Labor Statistics, Table 1 <www.bls.gov/news.release/pdf/union2.pdf
>

Service Occupations: 2012
14.8 million
Number of female workers 16 and over in service occupations in 2012. Among male workers 16 and over, 11.4 million were employed in service-related occupations. Source: U.S. Census Bureau, 2012 American Community Survey, Table C24010 <http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/12_1YR/C24010
>
1.8%
Percentage increase in employment (or 2.3 million) in the U.S. between December 2012 and December 2013. Employment increased in 286 of the 334 largest U.S. counties (large counties are defined as having employment levels of 75,000 or more).  Source: U.S. Bureau of Labor Statistics <http://www.bls.gov/news.release/cewqtr.nr0.htm
>
Another Day, Another Dollar
$49,398 and $37,791
The 2012 real median earnings for male and female full-time, year-round workers, respectively. Source: U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2012, Table A-4 <https://www.census.gov/prod/2013pubs/p60-245.pdf
>
Fastest Growing Jobs
49%
Projected percentage growth from 2012 to 2022 in the number of personal care aides (580,800). Analysts expect this occupation to grow much faster than the average for all occupations. Meanwhile, the occupation expected to add more positions over this period than any other is registered nurse (526,800). Source: U.S. Bureau of Labor Statistics <http://www.bls.gov/ooh/
>
Employee Benefits
84.5%
Percentage of full-time, year-round workers 18 to 64 covered by health insurance during all or part of 2012. Source: U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2012, derived from Table 7 <https://www.census.gov/prod/2013pubs/p60-245.pdf
>
Say Goodbye to Summer
Labor Day is celebrated by most Americans as the symbolic end of the summer and the start of the back-to-school season.
25,455
The number of shoe stores for back-to-school shopping in 2012. Other choices of retail establishments abound: there were 25,421 family clothing stores, 6,945 children and infants clothing stores, 7,443 office supply and stationery stores, 7,244 bookstores and 8,196 department stores. Source: U.S. Census Bureau, 2012 County Business Patterns, NAICS: 448210, 44814, 448130, 453210, 451211 and 4521 <http://factfinder2.census.gov/bkmk/table/1.0/en/BP/2012/00A1//naics~44813|44814|448210|451211|4521|453210
>
20,893
The number of sporting goods stores nationwide in 2012. In U.S. sports, college football teams usually play their first games the week before Labor Day, with the NFL traditionally playing its first game
 the Thursday following Labor Day. Source: U.S. Census Bureau, 2012 County Business Patterns, NAICS 451110 <http://www.census.gov/econ/cbp/
>
53,981
The number of travel agents employed full time, year-round in 2012. In addition, there were 16,526 tour and travel guides employed full time, year-round nationwide. On a weekend intended to give U.S. workers a day of rest, many climb into their drivers’ seats or board an airplane for a quick end of the summer getaway. Source: U.S. Census Bureau, 2012 American Community Survey, Table B24124 <http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/12_1YR/B24124
>
862,630
The number of paid employees (for the pay period including March 12) who worked for a gasoline station in the U.S. in 2012. Oregon (9,347 paid gasoline station employees) and New Jersey (16,408 paid gasoline station employees) are the only states without self-service gasoline stations. Oregon was the first state to make Labor Day a holiday in February 1887. Source: U.S. Census Bureau, 2012 County Business Patterns, NAICS 447 <http://factfinder2.census.gov/bkmk/table/1.0/en/BP/2012/00A1/0100000US.04000/naics~447
>
The Commute to Work
5.9 million
Number of commuters who left for work between midnight and 4:59 a.m. in 2012. They represented 4.4 percent of all commuters. The most common time was between 7 and 7:29 a.m. – with 19.8 million commuters. Source: U.S. Census Bureau, 2012 American Community Survey, Table B08132 <http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/12_1YR/B08132
>
4.4%   
Percentage of workers 16 and over who worked from home in 2012. Source: U.S. Census Bureau, 2012 American Community Survey, Table B08128 <http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/12_1YR/B08128
>
76.3%
Percentage of workers 16 and over who drove alone to work in 2012. Another 9.7 percent carpooled and 0.6 percent biked to work. Source: U.S. Census Bureau, 2012 American Community Survey, Table S0801 <http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/12_1YR/S0801
>
25.7 minutes
The average time it took workers in the U.S. to commute to work in 2012. Maryland and New York had the most time-consuming commutes, both averaging about 32 minutes. Source: U.S. Census Bureau, 2012 American Community Survey, Table R0801 <http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/12_1YR/R0801.US01PRF
>

Weekly Question!

I hate it when all violations of IDEA are described as a denial of FAPE. What other violations of IDEA can you list off the top of your head?

Friday, August 29, 2014

Bullying of Kids With Disabilities - The Series - Rides Again

English: Bullying on IRFE in March 5, 2007, th...
English: Bullying on IRFE in March 5, 2007, the first class day. (Photo credit: Wikipedia)
















Before I get to our newest bullying series, I want to thank our readers for the overwhelming response to my notice that my 2012-2013 caselaw outline is for sale.  We appreciate your ongoing support.  If you need information about the legal update, please shoot me an email at jimgerl@gmail.com.

Bullying remains the hottest of hot button issues in special education law. We are going to be running an updated version of our previous series on Bullying in the coming weeks.  The series is one of our most popular sets of posts, please let me know whether you find it useful.

One development that we will highlight is the recent of courts to view bullying as an IDEA, or at least a potential IDEA issue.

As always we appreciate your reading the blog!