Wednesday, October 22, 2014

Breaking: New Guidance from OCR on Bullying

Seal of the United States Department of Education
Seal of the United States Department of Education (Photo credit: Wikipedia)

























The Office for Civil Rights of the U. S. Department of Education issued new guidance yesterday concerning bullying of students with disabilities.

The newest information in this guidance involves its interpretation that the bullying of children with disabilities on any basis can be a denial of FAPE for §504 purposes.  In other words if a child with a disability is bullied, it may be a denial of FAPE even if it is not based upon disability.

You can review the new guidance here. Here is more discussion by the Department of Education.

Tuesday, October 21, 2014

Odds & Ends; Tech Update

Nederlands: Linked In icon
 (Photo credit: Wikipedia)
English: A stack of copy paper.
(Photo credit: Wikipedia)
































Your reaction to my 2012-2013 caselaw outline has been overwhelming.  Thank you.  One question that many of you have asked concerns the purchase price.  The price of the outline is $295.00 and I have made arrangements to receive payments PayPal (which includes a credit card option). The 259 page outline is available as a .pdf file and it is searchable (at least on my computer.) If you would like more information about this very cool research tool please email me at jimgerl@gmail.com.

Other stuff: One of the great things about doing this blog is that I get to meet some great people.  One is Professor Mark Weber who teaches at DePaul Law School and who is one of the real thinkers in special education law.  Mark recently sent me copies of his last two published law review articles both of which were mentioned in this blog. The final version of his article defending IDEA due process hearings includes an acknowledgement of me for contributing my ideas to the article. The acknowledgement is most generous especially in view of the very limited feedback that I gave to him. Thanks Mark.

In tech news: Occasionally people ask me what is the best way to read the blog?  Well the answer is which ever way is best for you.  I recommend that you take a free subscription on the lefthand side of the blog. You can subscribe by email or have the posts appear via RSS feed in a reader or aggregator. Other folks follow our posts on Facebook or read the headlines via Twitter.  Some follow our microblog on Tumblr. Some people just bookmark or follow this blog directly. Others read the posts on LinkedIn. You should also check out our Special Education Law Group on LinkedIn which now has over 16,000 members.  Lots of good discussions and activities.  Links to all of these things are available on the lefthand side of the blog.

Also available on the lefthand side of the blog are all sorts of useful resources.  There are YouTube videos of me being interviewed by CADRE.  There are links to the law and regulations, an information clearing house, CADRE, our LinkedIn group and many other sites that special ed stakeholders may find useful. Please check it out and let me know what you think. There is a wealth of goos information there.

If you know of other resources that you'd like to see mentioned here, please let me know.  We do not promote websites that favor one side or the other; we are impartial here!  

Monday, October 20, 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?

Saturday, October 18, 2014

Bullying of Kids With Disabilities - Part V

English: A graph showing where electronic aggr...
 (Photo credit: Wikipedia)























Bullying remains the hottest of hot button issues in special education law.  In the first installment, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA.  In later installments, I have discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011).  This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.  (NOTE: What follows is a discussion of TK I.  Please note that we have subsequently done a post on the District Court's decision on the appeal of the SRO decision after the court's remand, or TK II. You can read that post hereTK I remains good law.)  




Here is more from the court...these are not my words:

With changes in technology, the Internet has become the venue where widespread hurtful bullying is inflicted by and on young people. See Jan Hoffman, As Bullies Go Digital, Parents Play Catch-up, N.Y. Times, Dec. 5, 2010, at A1 (examining the widespread nature of bullying on the Internet and difficulties schools have in stopping it); Schwartz, supra (discussing the suicides of three teens as a result of online bullying).
The Internet has become a fertile area for bullying behavior. Cyber-bullying is defined as "willful and repeated harm inflicted through the use of computer, cell phones and other electronic devices." Sameer Hinduja and Justin W. Patchin, Overview of Cyberbullying, in White House Conference on Bullying Prevention, at 21 (March 10, 2011), available at http:// www.stopbullying.gov/ references/white_house_conference/index.html. About 20 percent of eleven to eighteen year-olds
[ 779 F.Supp.2d 300 ]

have been cyberbullied at some point in their lives. Id.
Cyberbullying differs from traditional bullying in several ways. First, a cyberbully can attack anonymously. Id. at 22. Second, the bullying can go viral, with many people harassing the same target at once. Id. Third, the bully does not see the emotional toll his bullying creates, allowing the culprit to push further than he or she might in a face-to-face relationship where the adverse effects are clearly perceived. Id. at 23. Fourth, many parents and teachers do not have the technological know-how to monitor these actions. Id.

b. Increased State Efforts to Address Bullying

Legislatures across the country have been taking note of the problem in schools. In recent years, forty-five states have passed laws dealing with bullying and harassment in schools. Arne Duncan, Secretary of Education, Secretary of Education Bullying Law and Policy Memo, Dec. 16, 2010, available athttp://www2.ed. gov/policy/gen/guid/secletter/101215.html. In September 2010, New York's Dignity for Students Act was enacted; it goes into effect in July 2012. See New York Education Law, §§ 10-17 (2010) (protects students against discrimination on the basis of race, color, nation of origin, ethnic group, religion, disability, sexual orientation, or gender). See also, New York Civil Liberties Union,The Dignity For All Students Act (2010), available at http://www. nyclu.org/files/publications/OnePager_DASA.pdf. The Act requires incidents of bullying to be reported to the state Department of Education on at least an annual basis and the development of appropriate codes of conduct. Id. at § 12. ("No student shall be subjected to harassment by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function."); Id. at § 13 ("The board of education and the trustees or sole trustee of every school district shall create policies and guidelines that shall include, but not be limited to . . . [p]olicies intended to create a school environment that is free from discrimination or harassment. . . ."); Id. at § 15 ("The commissioner shall create a procedure under which material incidents of discrimination and harassment on school grounds or at a school function are reported to the department at least on an annual basis. . . ."). See also, Erin Cargile, Lawmakers Move Education Bill Forward, Austin News, April 14, 2011, available at http://www. kxan.com/dpp /news/texas_lege/Lawmakers-move-bullying-bill-forward.

Monday, October 13, 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?

Friday, October 10, 2014

Bullying of Kids With Disabilities - Part IV

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





















Bullying remains the hottest of hot button issues in special education law.  In the first installment, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA.  In a later installment, I discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011).  This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.  (NOTE: What follows is a discussion of TK I.  Please note that we have subsequently done a post on the District Court's decision on the appeal of the SRO decision after the court's remand, or TK II. You can read that post hereTK I remains good law.)  


Today I provide more of the court's opinion.   You really should read the whole thing.  These are not my words:

1. What Constitutes Bullying


Bullying is not a new phenomenon; literature is blotted with bullies, and many people have had personal experience with a schoolyard antagonist. Dan Olweus, Bully at School: What We Know and What We Can Do 1 (1993). The bully-victim relationship is characterized by a real or perceived imbalance of power and encompasses a variety of negative acts that are carried out repeatedly over time. Id. at 9; Nels Ericson, U.S. Dep't of Justice Office of Juvenile Justice and Delinquency Prevention Fact Sheet,Addressing the Problem of Juvenile Bullying 1 (2001), available at http://www.ncjrs.gov/pdffiles1/ ojjdp/fs200127.pdf. Negative actions can broadly be described as inflicting or attempting to inflict discomfort upon another. Olweus, supra, at 9. Bullying takes three forms: physical (e.g. hitting); verbal (e.g. taunting); and psychological (e.g. engaging in social exclusion). Ericson, supra, at 1. Indirect, psychological bullying, in the form of exclusion and isolation is often less visible, but not less corrosive. Olweus, supra, at 10.  "The consensus among physicians and social scientists, educators and youth development organizations, civil rights advocates and law enforcement is that bullying is neither inevitable nor normal. . . ." Julie Sacks and Robert S. Salem, Victims Without Legal Remedies: Why Kids Need Schools to Develop Comprehensive Anti-Bullying Policies, 72 Alb. L. Rev. 147, 147-48 (2009). Despite this consensus, bullying continues to occur at an alarming rate. A study by a group of psychologists provides an illustration. While observing groups of kindergarten and first grade students, researches noted an incident of bullying on the playground every three to six minutes. James Snyder et. al., Observed Peer Victimization During Early Elementary School: Continuity, Growth, and Relation to Risk for Child Antisocial Depressive Behavior, 74 Child Dev. 1881, 1885 (2003).
"(T)he highest prevalence of bullying is among elementary-school aged children." Gwen M. Glew et. al.,Bullying Psychological Adjustment, and Academic Performance in Elementary School, 159 Archives of Pediatric and Adolescent Med. 1026, 1026 (2005). Younger students of both sexes are the most likely to be singled out as victims. J.F. Devoe and S. Kaffenberger, U.S. Dep't of Educ., Student Reports on Bullying: Results from 2001 School Crime Supplement to the National Crime Victimization Survey 14 (2005), available at http://nces.ed.gov/pubs2005/2005310.pdf. Children who struggle academically are more likely to be victims or be both victim and aggressor. Glew, supra, at 1030. Bullying can be carried out by an individual or a group. Olweus, supra, at 9. The victim of school bullying is most often a single person. Id.
Initially, victimization is situational; "only over time does the field of children who are consistently victimized become narrowed on the basis of ongoing experience." Snyder, supra, at 1881; Macklem,supra, at 66 (finding that once a child is labeled a victim, his status within the peer group drops). This leads to a subset of children being caught up in a "vicious cycle in which victimization and maladjustment feed off one another." Snyder, supra, at 1881. In particular, girls who are unable to develop supportive peer relationships are at an increased risk for persistent ostracism and rejection. Id.at 1895.
"Youth who are victimized are likely marginalized from the mainstream peer group, lacking access to prosocial peers who provide role models of appropriate social skills, and also protection against bullying." Nansel, supra, at 735. The most common place for victimization in elementary school is the playground, followed by the classroom and gym class. Glew, supra, at 1029.

 


Wednesday, October 8, 2014

Supreme Court Asks For Brief in Special Ed Case

English: West face of the United States Suprem...
 (Photo credit: Wikipedia)

















The U. S . Supreme Court has only decided ten special education cases.  They have not taken one for a long time. Fortunately, special education is not a liberal vs conservative issue.  It generally receives strong bipartisan support.  (That does not mean that Congress will soon reauthorize IDEA however.)

There is currently one special ed case that the Court is considering.  It involves the stay put provision:
 IDEA § 615 (j) provides that (except in certain discipline cases), during the pendency of any due process or court proceedings pursuant to this section, unless the parties agree otherwise, the student ‘…shall remain in the then-current educational placement of the child…”  This is commonly referred to as the stay put provision.  The stay put placement is the last agreed upon IEP, unless the parties agree otherwise. See 34 C.F.R. § 300.518.

              The Supreme Court interpreted and endorsed the stay put decision in the case of Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988).  In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision.  Honig v. Doe, supra.  (NOTE; please note that IDEA’04  has added other provisions pertaining to danger/injury.)


Two circuits, DC and the Sixth, have held that once a District Court rules that FAPE is provided, the stay put protection, even if the child is in private school, ends.  So if the student is in private school, the school district no longer has to pay at that point.  Two circuits disagree, the Third and Ninth, holding that stay put applies until the case is concluded, so in our example the public school district would be on the hook for tuition at the private school until the end of the case. The case that the supremes are contemplating accepting is Ridley Sch Dist v MR by Parents, Docket No. 13-1547.

On October 6th, the Court invited the Solicitor General to file a brief in the case.  

If the Court accepts the case it will be a big deal; we don't have much Supreme Court guidance. What we do have falls into some odd categories like burden of persuasion, expert witness fees, pro se parties and related services (that's 50% of the cases!).  Not the pressing questions of the day although obviously still important.

Here is the SCOTUS blog page for this case.  Here is a post on Disability Scoop concerning the request for briefing by the Solicitor General. Here is the Supreme Court's docket page for this case.

We'll keep you posted.