Saturday, March 26, 2011

Bullying: A Hot Button Issue In Special Education Part II

Bullying on IRFE in March 5, 2007, the first c...Image via Wikipedia
This is the second post in the series on bullying.  The first post last week looked at the current news on the subject.  Today we will look at some of the basic bullying caselaw.  Next week we will look at some of the recent caselaw.

Here are the cornerstone cases:
In Shore Regional High Sch Bd. of Educ v. P.S. 41 IDELR 234, 381 F.3d 194, (3d Cir. 8/30/04), the Third Circuit held that the school district’s failure to stop bullying may constitute a denial of FAPE. Bullies constantly called the student names, threw rocks and hit him with a padlock. Despite repeated complaints, the bullying continued and the student eventually attempted suicide. This was the first case at the federal appellate level to analyze bullying under IDEA.  You can read the opinion by then Circuit Judge Alito here.

In Lillbask ex rel Mauclaire v. State of Connecticut Dept. of Educ.  397 F.3d 77, 42 IDELR 230 (2d Cir. 2/2/05).  The Second Circuit Court of Appeals ruled that an IDEA hearing officer has the authority to review IEP safety concerns.  The court provided an expansive interpretation of the jurisdiction of the hearing officer, ruling that Congress intended the hearing officer to have authority over any subject matter that could involve a denial of or interference with a student’s right to receive FAPE, including safety concerns that might affect receipt of FAPE.

See also, Preschooler II v. Clark County Sch Bd of Trustees 47 IDELR 151, 479 F.3d 1175 (9th Cir. 3/21/7); Stringer v. St. James R-1 Sch. Dist. 45 IDELR 179, 466 F.3d 799 (8th Cir. 5/3/6); Scruggs v. Meriden Bd. of Educ. 44 IDELR 59 (D.Conn. 8/22/05); RP & MP ex rel KP v. Springdale Sch Dist 107 LRP 9778(W.D. Ark 2/21/7); Walden v. Moffett 46 IDELR 159(E.D.Calif 8/28/6).

Other courts have ruled that in certain cases involving bullying, the parent may not have to exhaust administrative remedies before proceeding to court to pursue possible money damages. See, Blanchard v. Morton Sch. Dist. 420 F.3d 918, 44 IDELR 29 (9th Cir. 8/19/05); Walden v. Moffett 46 IDELR 159 (E.D. Calif 8/28/6); Scruggs v. Meriden 44 IDELR 59 (D.Conn 8/22/05). 

These issues may well transcend special education. The Columbine tragedy raised our national consciousness concerning bullying and harassment of all kinds in the schools. The issue, however, has a big impact upon special education. Many children with disabilities report that they have been bullied.
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Thursday, March 24, 2011

New Stop Added to Jim Gerl 2011 Special Education Law Tour

Off the Plaza in Santa Fe, New MexicoImage via Wikipedia

As the season changes, I have begun to acquire a few additional speaking engagements for the 2011 Jim Gerl Special Education Law Tour. I enjoy seeing this great country and meeting those who enjoy reading this blog.  It is very satisfying to speak with those who utilize this tool for special education stakeholders of all types.

The newest stop added to the 2011 tour is the annual conference of the National Association of Hearing Officials.  I have been lucky enough to be a regular faculty member for NAHO for the last seven years.  NAHO is a group of hearing officers.  They are not just special ed hearing officers but all kinds of hos.  You can learn more about this fantastic organization here.

The annual conference will be held in Santa Fe, New Mexico form November November 13 - 16. This conference is a must for the hearing officers of the world.  I hope that I will see you there.
Conference details for all stops on the tour are included in the semi-permanent (I love that word) box on the lefthand side of the blog.
There are a few more possible additions to the tour agenda; I'll keep you posted.  By the way, these do not include in-house engagements where the public is excluded.  

If you will be at these conferences or if you are in the neighborhood, please find me and say hello.  I'm pretty hard to miss!
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Friday, March 18, 2011

Bullying: A Hot Button Issue in Special Education Law Part I

from main pageImage via Wikipedia
I predicted back in July 2007 that bullying based upon disabilities was a hot button issue in special education law.  Unfortunately, disability based bullying seems to be increasing rather than decreasing.

Last month a number of advocacy groups issued a report: "Walk a Mile in Their Shoes."  You can review the report on the website

Last week the President and First Lady convened an anti-bullying summit at the White House.

This week Representative  Jackie Speier (D-CA) and Representative Cathy McMorris Rodgers (R-WA) convened a briefing on the issue of bullying of kids with disabilities.  Reports note that Rep. Speier is planning on introducing legislation requiring school districts to report bullying and to spell out the number of bullying incidents that involve kids with disabilities as targets.

A new government website provides students, teachers, administrators and other with tools to end bullying.  Visit
More next week on the legal issues raised by bullying in Part II of this series.

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Tuesday, March 15, 2011

Are 80% of Schools Leaving Children Behind?

WASHINGTON - MARCH 10:  U.S. President Barack ...Image by Getty Images via @daylife

President Obama gave a major address on education yesterday.  He spoke at a middle school in Arlington, Virginia.  The speech provided an outline of the changes he will be proposing to the No Child Left Behind act.  You can read the speech here.

The portion of the address that got the most reaction was the claim by Education Secretary Duncan, that was repeated by the President, that 80% of schools in the country are failing under the NCLB standard.  20% won't get you a passing grade in many classrooms.

The President applauded the goals of NCLB.  Accountability and high standards are still a part of the playbook.  Shining a light on the achievement gap, between black and white students, and between those with and without disabilities, was also lauded in the President's speech.

One statement by the President was particularly encouraging.  Those of you who read this blog regularly know that I hate standardized tests.  They are particularly not suited for measuring good schools vs bad schools.  Poor children, for example, do not perform well on standardized tests.  I could go on, but I won't.

In the president's speech, he embraced the concept of measuring individual student progress vs. standardized tests.  Many of us advocate this method.  Yes, there are problems.  Even with the computerization of our society, it is a lot harder to measure the collective progress of individual kids than to have them sit for a big test, particularly if the kids have serious cognitive problems.  But this seems to be the new direction and that is great.  From a standpoint of fundamental fairness the progress method is a big improvement.

The changes still have to make their way through the Congress.  Lately the U. S. Congress has not been an inspiring place.  So hold your breath and get ready to write to your representatives.  This process of being a citizen is pretty time consuming, but it sure beats the alternative doesn't it?

So what do you think.  Should other changes be made to NCLB?  Do you like the President's approach?  Does the focus on the achievement gap help kids with disabilities?
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Saturday, March 12, 2011

"FAPE" Rhymes With Cape

Tarot card from the Rider-Waite tarot deck, al...Image via Wikipedia
FAPE rhymes with cape.  By the way if you haven't seen the new TV series, "the cape," you're missing out on some great television.  I think that every hearing officer and mediator should be issued a cape like the one with the magical powers used in the TV series.  Yes, I'll say it, My Powers Are Beyond Your Comprehension. (Note:  I just learned that like many shows I enjoy, the cape has been canceled. Yikes.)

But I digress...(sometimes the tangent is more fun than the main point!...It isn't easy being green...)  My original point is that FAPE rhymes with cape.  I have heard it pronounced many different ways.  One person said FAPE, rhyming it with cap.  My favorite was a person who pronounced it to rhyme with frappe.  (To be clear: the special education laws do not entitle anybody to a high end coffee infused beverage.)    

All of which was a preface (journalists call this burying the lead.  I am not a journalist!) to my real point which is my recent call for a middle ground on FAPE.  Why should the only choices be the basic floor of opportunity and potential maximization. An education should be more than a floor even if it cannot bring out the greatness in us.  There has to be a compromise position on the contours of a free and appropriate public education.  

What do you think?  I have gotten a lot of suggestions so far from our readers.  Please share your ideas.  I'm going to compile the best ideas and place them into my suggested changes for the reauthorization - when the time comes.  Let me know what you think.

Now then, where did I put my cape?   
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Friday, March 4, 2011

The Special Education Hearing Business is Booming

Mediation Cabal Logo-No TextImage via Wikipedia

The special education due process hearing business is booming.  Maybe it is counter-cyclical, but I'm getting a lot of hearings.  Right now I have at least one hearing scheduled in each of the four jurisdictions where I serve as a hearing officer.  That is pretty rare.

Yet I have had only one mediation in the last month.  I enjoy mediations a lot more.  I believe strongly that mediation is a better way to go.  Mediation, unlike many of the other dispute resolutions options available to parents and school districts who disagree about the education of a child with a disability, is uniquely able to work on repairing the all important relationship issues. 

It takes more than a village to raise a child; it takes a whole nation of caring and committed partners.  Education of a child has to be a collaboration.  When the relationship between parents and school personnel is poisoned, the child suffers.  Enter, mediation!

I have heard stories that the quality of mediators varies from state to state.  Although all of the mediators I have met are very impressive, I have likely only met the most committed, the best of the good ones.  But I have heard this complaint many times.  Training of mediators, like hearing officers, takes resources.  It costs money and it takes time.  In the current political, anti spending environment, money is scarce,  But the training of both mediators and hearing officers is critical to the kids with disabilities who we all care so much about.  (I admit that I have a bias here; I train hearing officers and mediators, but I stand by my argument despite my obvious bias.)

Good news for both mediators and hearing officers: CADRE, the Consortium for Appropriate Dispute Resolution in Special Education, is having one of their fantastic conferences.  It will be the last week in October and I will provide more details later.  Get ready for a true learning experience.

Tuesday, March 1, 2011

Announcing the Jim Gerl 2011 Special Education Law Tour

Fiddlers ReStrung Playing at the Rock and Roll...Image by cseeman via Flickr
Last year I had some fun with my special education law tour.  As I speak at conferences around the country, I like to let readers know so that they can drop by and say hello.  I have met a lot of the readers of this blog this way.  I always enjoy meeting our readers, and I get a lot of ideas for future posts through this method.  

We will need a new name for this year's tour.  Last year, after soliciting suggestions from readers, we called it the Gerls Rock Tour.  Once again, I'm requesting your tour naming ideas.  Be creative enough, and we might just select your suggestion as the tour name.

The following list of speaking engagements does not include in-house functions (such as hearing officer trainings or mediator trainings that I conduct) because you cannot hear me speak there. I'm looking forward to the tour:

April 25 - 28        Council For Exceptional Children Annual Conference      National Harbor, Md

July 12 - 15         10th Seattle U. IDEA Hearing Officer Academy             Seattle, WA

July 26 -  27        5th Annual Wyoming Special Ed Law Symposium            Lander, WY

Please note that there are likely to be another stop or two on the tour. But these have already been agreed to and I'm sure to be there.  Please find me and say hello if you will be at any of these fantastic conferences.  I will add new conferences to the list on the lefthand side of the blog as they are determined.  You can register for these conferences through the links on those lists.

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