Monday, April 30, 2012

More Fun With Numbers: The CADRE Stats 2009-2010

Evolução do preço do petróleo cru
Evolução do preço do petróleo cru (Photo credit: Wikipedia)

One important requirement that the federal government takes very seriously in the realm of special education is data.  Gotta have lotsa data. For those of us who are arithmetically challenged, these are also know as numbers or figures.  Lest I get too folksy, ...

One of the many excellent services that the great people at CADRE offer is to make sense of the dispute resolution data.  If you are interested in special education, you should be aware of these data compilations.

The new information was posted on the CADRE website recently. You can find the CADRE website here

If you are interested in how your state compares with others over the last five school years in terms of numbers of mediations, due process hearings and state complaints, you should check out the tables.  Particularly useful are the tables showing numbers of dispute resolution events by 10,000 special education students.  These charts allow comparisons not altered by differences in population or number of students served.

Here are a few quotes from the introduction to the data analysis by Dr. Dick Zeller of CADRE:

"Nationally, the filing of written state complaints peaked in 2004-05 (6,201) and has declined by more than 20% since then (see Table 1). Complaint reports issued and complaint reports with findings have decreased even more over the same period (30.3% and 28.9%, respectively)...

The number of mediations reported (see Table 2) peaked in 2004-05 (7,121), then declined sharply in 2005-06 and 2006-07 as the resolution process was implemented. Most of that decrease in mediation activity was in mediations related to due process; it appears that the resolution process was not only an additional dispute resolution option, but also initially replaced what would have been mediations held related to due process complaints. For three years, the number of mediations held then increased again to 6,054 mediations in 2008-09, with 4,246 agreements reached, followed by a decline in mediation activity for 2009-10. . From 2004-05 to 2005-06 due process related mediation as a percentage of all mediation activity dropped for both mediations held (from 60% to 50%) and for mediation agreements (from 58% to 44%), then has varied in the past four years. A shift away from due process related mediation may reflect an increased interest in using third party neutrals to assist parents and schools to resolve due process complaints in the resolution process, particularly where strained relationships may benefit from external support...

Due process (DP) complaint filings peaked in 2004-05, rising to over 21,000 filings (see Table 3). Since then, due process filings have declined by just over 18% to just 17,228 in 2009-10. The reported number of fully adjudicated due process hearings also peaked in 2004-05 and has declined sharply (by >68%) over the past years. The percentage of DP complaints that result in a hearing has declined substantially over these six years (from 35% to 14%, although about 75% of this reduction is due to one entity’s reduction in activity). The percentage of pending DP complaints has increased over the same period from 11% of requests to 145 to 16% of requests (the peak in pending hearings in 2007-08 nationally can be attributed largely to two states). The increase in pending complaints is likely due, at least in part, to the effective increase in the timeline when the resolution process runs its full 30 days...

The percentage of due process complaints resolved without a hearing has grown with the implementation of the resolution process (from 54% of filings in 2004-05 to 70% in 2009-10). The proportion of these resolutions that are the result of a Written Settlement Agreement increased to about 25% in 2009-10. If this trend continues, it suggests that the resolution agreement process is indeed having a positive impact on the resolution of due process complaints without resorting to a hearing. A few states have included summaries in their APRs that breakdown of “resolved without a hearing” into subcategories (e.g., by written settlement agreement, by other settlement after the resolution period, by DP related mediation agreement, by DP complaint withdrawal, by Hearing Officer insufficiency determination), but comparable national data of this sort does not exist across states..."

CADRE and Dr. Zeller welcome questions from the field about the data.

Here are a few other gems that I have unearthed to whet your appetite.  In school year 2009-2010 the number of mediations per 10,000 special ed kids in the following states was: Massachusetts 57.3; California 39.4; Connecticut 39.3; Louisiana 0.8; South Carolina 0.5; Georgia 0.0.

Also for school year 2009-2010: the number of due process hearings held per 10,000 special ed kids were: District of Columbia 248; Hawaii 21; New York 9.2; New Jersey 2.4; Pennsylvania 2.2; Michigan 0.2; Minnesota 0.2; Kentucky 0.1. I'm not sayin'...I'm just sayin'  ...

You can review the charts and the data plus the CADRE analysis of the data  here.  Let me know what you find.
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Wednesday, April 25, 2012

Bullying of Children with Disabilities - Part IX

this is my own version of what bullying looks like
this is my own version of what bullying looks like (Photo credit: Wikipedia)
Bullying remains the hottest of hot button issues in special education law.  We interrupted the series for my thoughts on the Rowley standard as applied to bullying cases.  Now we are back
 In the first installment of this series, 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.

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

5. Bullying and Students With Disabilities

The United States Department of Education has defined disability harassment as "intimidation or abusive behavior based on
[ 779 F.Supp.2d 303 ]

disability that creates a hostile environment." U.S. Dep't of Educ., Reminder of Responsibility Under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act July, 25 2000, available at (hereinafter DOE Reminder of Responsibilities Letter). Studies have shown that students with a disability, whether it is visible or non-visible, are subject to increased bullying that is often directed at the disability. John Young, Ari Ne'eman, and Sara Gelser, Bullying and Students With Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011), available at These students are also at more risk for bullying directed at factors other than their disability. Id. at 77. Harassing conduct may take many forms, including verbal acts and name-calling, as well as nonverbal behavior, such as graphic written statements, or conduct that is physically threatening, harmful, or humiliating. DOE Reminder of Responsibilities Letter, supra.
Overall, students with disabilities are less popular, have fewer friends, and struggle more with loneliness and peer rejection, increasing the likelihood they will become the victim of bullying. Carter, supra, at 12-21 (noting a study that indicated child with even mild learning disorder had fewer friends and another that indicated those who are bullied are more likely to be alone at play time); Young, supra, at 74 ("Many students with disabilities have significant social skills challenges, either as a core trait of their disability or as a result of social isolation due to segregated environments and/or peer rejection. Such students may be at particular risk for bullying and victimization."). Students who suffer from learning disabilities and emotional disorders often lack social awareness, which makes them more vulnerable. Carter, supra, at 12. Other research concludes that disabled students themselves are more likely to perpetuate bullying behavior in response to being bullied. Swearer, supra, at 4.
Despite an increased focus in recent years on instructing special education students in general education classrooms, there has not been a corresponding concern about the way these children integrate socially in the classroom. Carter, supra, at 11. Without healthy social interaction, students with disabilities become targets of harassment.
One study found that four factors were predictive of a student being bullied: 1) receiving extra help in school; 2) being alone at playtime; 3) having fewer than two friends; and 4) being male. Id. at 14. While disabled students often receive extra help, they sometimes struggle to make friends. In one study, learning disabled children reported that they were threatened, assaulted, or had their possessions taken away from them with greater frequency than non-learning disabled students. Id. at 18.
Some states have recognized that students who suffer from a learning disability are at a greater risk for bullying than their non-disabled peers and that IEPs should take this into account. In passing a comprehensive law dealing with school bullying, Massachusetts recently adopted the following requirement:
Whenever the evaluation of the Individualized Education Program team indicates that the child has a disability that affects social skills development or that the child is vulnerable to bullying, harassment or teasing because of the child's disability, the Individualized Education Program shall address the skills
[ 779 F.Supp.2d 304 ]

and proficiencies needed to avoid and respond to bullying, harassment or teasing.
Mass. Senate No. 2404 (2010) (emphasis added).
Massachusetts Advocates for Children sought to determine how often children along the autism spectrum are harassed at school. Eighty-eight percent of those parents who responded indicated their child was bullied while at school. Massachusetts Advocates for Children, Targeted, Taunted, Tormented: the Bullying of Children with Autism Spectrum Disorder 2 (2009), available at (finding that verbal harassment was the most common form reported at 88.7 percent).
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Tuesday, April 24, 2012

The Rowley Standard for FAPE - Are the Bullying Cases Changing the Standard? Part II

No Bullying sign - School in Racine, Wisconsin
No Bullying sign - School in Racine, Wisconsin (Photo credit: Wikipedia)

We have interrupted our series on Bullying because a light bulb flicked on. (For the smart alecs out there, yes my light bulb still has an on position!) In Part I, I described the Rowley standard for FAPE.  This is the closest thing that we have to a hornbook rule, gold standard in the slippery metaphysical world of special education law. 

But as we reported in a previous post, professor Mark Weber has written a law review article that wonders whether the Supremes prematurely decided the issue.  Rather than wait for a split among the Circuits and rather than wait for the common law to develop first, the high court jumped in and announced a standard. In a nutshell, the Supreme Court determined in Rowley that FAPE was not a potential maximizing standard.  Rather the test was "some educational benefit."

Professor Weber's article also mentions, however, that there are some cases where the Rowley standard is not strictly adhered to. In cases not involving FAPE, like least restrictive environment, FAPE is not in issue and Rowley does not govern.  I am summarizing a lengthy academic article here, and as those of you who know me know, that can be dangerous.  But two of the other  areas he specified where the strict interpretation of Rowley's some benefit test are cases involving inadequate transition services or inadequate behavior interventions.  He cites some examples and for me, this notion is an eye opener.

In thinking about the bullying cases, I believe that they may also fit into the grey area concerning the FAPE standard.  In particular in 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), which is being highlighted in our ongoing series on bullying, the court set a higher bar than Rowley seems to require.  There the court ruled that the parents do not need to show that the student was deprived of all educational benefit or that she regressed; rather, the parent only needs to show that her educational benefit was adversely affected by the bullying. Where the bullying reaches a level where the student is substantially restricted in learning opportunities, this court says that FAPE has been denied.  

OK so my new theory, inspired by the creative thinking of Professor Weber, is that FAPE is always FAPE, but sometimes it isn't.  In particularly hot button cases, like bullying cases, maybe the courts are not applying the strictest version of Rowley.  The courts always cite and quote from Rowley, but the application of the standard involves a higher bar for FAPE.  

My theory here is based upon the old saw from law school that good facts make good law.  So maybe the newer hot button issue cases can have juicer facts.  Bullying of kids with disabilities can provide some outrageous facts.  So can the restraint/seclusion cases.  Is it possible that courts are applying a higher FAPE standard when they are nauseated by the facts of a case? And that these newer hot button issues are pushing the envelope?  I know that this one is going to get some reaction.  What do you think?

By the way, you really should read Professor Weber's article.  The citation  is "Common-Law Interpretation of Appropriate Education: The Road Not Taken in Rowley," 41 Journal of Law & Education  95  (January 2012).  Also he has provided a link to the internet version of the article on the social science research network:

Have I stumbled onto something here?
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Thursday, April 19, 2012

The Rowley Standard for FAPE - Are the Bullying Cases Changing the Standard? Part I

The Supreme Court of the United States. Washin...The Supreme Court of the United States. Washington, D.C. Français : La Cour suprême des États-Unis. Washington D.C., États-Unis. ‪Norsk (bokmål)‬: Høyesterett i USA. Washington, D.C. (Photo credit: Wikipedia)

This is the first of a two part series.  As I have said many times, special education law is a lot closer to metaphysics than it is to contract law.  Older lawyers (obviously I mean those older than me) are confounded by it; teachers and parents find it difficult to understand. Assistant principals in charge of student discipline curse it.  It can indeed be slippery.

The one hornbook rule that we have, though,  is the standard for a free and appropriate public education. The basic requirement of the IDEA is that states and school districts must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, § 612(a)(1).

     The IDEA defines “FAPE” as: special education and related services that:
(A)  have been provided at public expense, under public supervision and direction, and  without charge;
(B)  meet the standards of the State educational agency;
(C)  include an appropriate preschool, elementary school or secondary school education in the state involved; and
(D)  are provided in conformity with the individualized education program required (…hereunder.).
IDEA, § 602(9).  See also 34 C.F.R. §§ 300.101 to 300.113.

     The IDEA defines “special education” as: Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including
(A)    instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B)    instruction in physical education.
IDEA, § 602(29).

          The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of  Board of Education of Hendrick Hudson Bd. of Ed. v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982).  The facts of the case were that the student had a hearing impairment.  The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes.  Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowley, supra, 102 S.Ct at 3039-3040.

          Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student.  The U. S. Court of Appeals for the Second Circuit affirmed.  See, Rowley, 102 S.Ct. at 3040. The Supreme Court reversed.  Rowley, supra, 102 S.Ct at 3052.  After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowley, supra, 102 S.Ct at 3043-3051.

          The Supreme Court noted that the individualized Educational Program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE. Rowley, supra, 102 S.Ct at 3038, 3049.  The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act.  Rowley, supra, 102 S.Ct at 3050-3051.  The Court also cautioned the lower courts  that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 102 S.Ct at 3051.

          The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability.  Rowley, supra, 102 S.Ct at 3048.  Accordingly, the Court concludes that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowley, supra, 102 S.Ct at 3048.

          The Supreme Court instructed lower courts that the inquiry in cases alleging denial of FAPE should be twofold:  First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.”  Rowley, supra, 102 S.Ct. at 3051.

The Rowley decision pertained to the adequacy of an IEP, but the ruling is regarded generally as the gold standard for whether FAPE has been provided in any situation.  In the next installment in this mini series, we will look at whether the bullying cases may be in the process of altering the Rowley FAPE standard.  Stay tuned.
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Wednesday, April 18, 2012

Procedural Safeguards - The Series Part VIII

Complaint Department GrenadeComplaint Department Grenade (Photo credit: Wikipedia)

This is the eighth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues are not fully understood. Please keep me posted as to your reaction to the series.

State Complaint Procedures (NOTE these are different from due process complaints which lead to due process hearings; these are complaints investigated by the state department of education.  More on due process complaints in a later installment of this series.)

Each state education agency must maintain a state complaint procedure. 34 C.F.R. §§300.151-300.153. OSEP has stated that the state complaint system is required even though Congress has not specifically provided or addressed a state complaint system in the IDEA. 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Within one year of an alleged violation of the Act, any entity may file a state complaint. 34 C.F.R. §§300.151-300.153. A ruling is required within 60 days subject to extension for exceptional circumstances or an agreement to mediate. 34 C.F.R. §300.152. Only agreement, and not consent, is required to extend the 60 day time limit for processing complaints. 71 Fed. Register No. 156 at page 46604 (August 14, 2006). Here is an analysis by the Regional Resource Centers concerning how the exceptional circumstances exception should be applied. Where a state complaint and a due process hearing are requested on the same topic, the complaint investigator must set aside the portion of the complaint being addressed by due process until the hearing officer issues a decision. 34 C.F.R. §300.152(c). 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Where a state complaint investigator finds that IDEA has been violated, a corrective action is ordered. The relief that may be awarded includes compensatory education and reimbursement. 34 C.F.R. § 300.151(b). The purpose of this change to the federal regulations in 2006 was to make it clear that states have broad flexibility in awarding an appropriate remedy in resolving state complaints. 71 Fed. Register No. 156 at page 46602 (August 14, 2006).

When a state has finished processing a state complaint, a party who disagrees with the result may file a due process hearing complaint on the same issue if the statute of limitations has not passed. 71 Fed. Register No. 156 at page 46607 (August 14, 2006).

Here is the OSEP Topic Brief on State Complaint Procedures:

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Wednesday, April 11, 2012

More Regarding Academia: New Book on IEPs & Guest Speaker

Meeting roomMeeting room (Photo credit: Wikipedia)

As I said in a recent post, one of the really cool perks of writing this blog is that great thinkers in special education law send me useful stuff. This happened again recently.  My friends Barbara Bateman and Mary Anne Linden recently sent me a copy of the new edition of their book, Better IEPs: How to Develop legally Correct and Educationally Useful Programs (Verona, Wisconsin: Attainment Company, Inc. 2012).

A number of my other friends have described this book as the Bible on how to write an IEP.  I have reviewed it, and I agree.  If you are a member of an IEP team (and many of the readers of this blog are), you should have a copy of this book. It explains the IEP process in great detail, and it explains how to write a good one.  I'm happy to have it as another great resource.

Once again, however as a good mediator/hearing officer/consultant, I must reveal a bias.  I know Barb and Mary Anne.  Also, I am impressed that the new edition of this very important book favorably mentions my recent presentation on service animals at the Seattle University Academy for IDEA Hearing Officers.  In addition, the authors generously list this blog as one of the resources suggested to their readers in the resource Appendix.  So obviously, I like these folks.

On a different subject, I was honored by  my friend Professor Sarah Redfield. She asked me to address her special education law class at the University of New Hampshire School of Law this week. In my opinion, there aren't enough law schools that offer classes in this ever-growing field of law.  The students asked a number of excellent questions, and as those of you who have seen me as a presenter know, I love interaction with my audience.  It was a great experience and a chance for me to think some more about the issues concerning dispute resolution and special education law. Thanks!
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Tuesday, April 10, 2012

Bullying of Children with Disabilities - Part VII

Some guys doing intimidation in Instituto Regi...Some guys doing intimidation in Instituto Regional Federico Errázuriz, Santa Cruz, Chile (Photo credit: Wikipedia)
Bullying remains the hottest of hot button issues in special education law.  In the first installment of this series, 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.

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

3. How Bullying Differs Between Boys and Girls

Children of both genders experience the gamut of bullying behavior. Olweus, supra, at 18. Boys are more likely to bully and to be bullied than girls. Id. When they do bully, boys are inclined to engage in direct bullying such as hitting or taunting, while bullying among girls most often takes the indirect forms of social exclusion or rejection. Id.; Macklem, supra, at 55; Devoe, supra, at 4. Boys physically striking one another and girls harassing with their words has become "an accepted part of peer culture." Rodkin, supra, at 35. Girls often bully by slandering a classmate, spreading rumors about her, and manipulating friendships to harass their target. Olweus, supra, at 19. Because bullying among girls is most often more subtle, it is underreported. Macklem, supra, 55. Girls know that these actions are "mean," but they are unlikely to report them as bullying. Id. Such harassment enables the bully to have "power over others by controlling relationships and friendships." Macklem, supra, at 56. This form of bullying brings with it the ability to damage the victim's reputation or status within the peer group. Id. It is a behavior among girls developed early. Children are able to use this method as early as five years old, and as they get older continue to rely on it. Id. at 57. This may be because it is the most effective and tolerated form of bullying. Id. "Girls use relational bullying earlier than boys, which may be due to the more sophisticated nature of relational aggression." Id. at 60.

4. Why Kids Bully

Children interact in various settings: school, home, church, neighborhoods. Within each there are risk factors. Swearer, supra, at 3. How children interact in these various backgrounds helps to define bullying and why children engage in it. Id. "There is no one single causal factor for bullying." Id.
When asked why certain children are selected for ridicule, students typically point to external differences such as "obesity, red hair, an unusual dialect, or wearing glasses." Olweus, supra, at 30. Research does not support this conclusion. Id. The one external characteristic that is likely to play a role in whether a male child will be bullied is lack of physical strength. Id. This does not hold true for girls, however, who are more likely to bully those who are actually physically stronger than they are. Macklem, supra, at 55. Differences among students in areas such as religion, disability, or ethnicity have the ability to affect the struggle for power among young people and lead to a student being singled out as an object of harassment. Rodkin, supra, at 35.
Several other factors play a major role in determining what makes students more likely to bully. One is the climate of the school. When a school is not supportive or is negative, bullying thrives. Swearer, supra, at 5. When teachers downplay bullying or view it as kids being kids, bullying rates are higher. Macklem, supra, at 27-29.
One study suggests that the aura of the school with respect to bullying has more to do with whether bullying occurs than the
[ 779 F.Supp.2d 302 ]

behavior of the victim. Id. at 26. The school's atmosphere includes the disciplinary system, preventive policies, the architecture of the building itself, resources, support services, and morale. Id. School control is at its worst when staff and dominant students model this behavior, bullying is ignored or reinforced, or it is accepted as normal and expected. Id.
Parents play a role in determining whether someone is likely to bully. Bullies tend to come from homes with "low cohesion, little warmth, absent fathers, high power needs [that] permit aggressive behavior, physical abuse, poor family functioning, and authoritarian parenting. [Those who are both bully and victim] come from families with physical abuse, domestic violence, hostile mothers, powerless mothers, uninvolved parents, neglect, low warmth, inconsistent discipline, and negative environment." Swearer, supra, at 6. See also, Macklem, supra, at 15-20 (discussing the potential correlation between family environment and bullying.)
Bullying may also be the result of a life cycle where students believe it is simply their turn to play the abusing role. Kathy Liguori, Time to Get to the Heart of Bullying, Newsday, March 21, 2011, at A36 (quoting a student who explained he was bullying a younger student because he thought it was his turn to do so). Children use bullying to demonstrate to their peer group that they are able to dominate. Olweus, supra, at 35; Macklem, supra, at 38-39; Rodkin, supra, at 33. In this way, bullying becomes a social event where the dominance of the bully is put on display for an audience. Research demonstrates that in 90 percent of observed cases, a bully was playing to an audience. Rodkin, supra, at 36. See also, Deborah A. Pepler et. al., Peer Process in Bullying, in Handbook of Bullying in Schools: An International Perspective 472 (2010) ("Even though a vast majority of students report that they find it unpleasant to report bullying, the vast majority of bullying episodes have an audience."). "Thus the problem of bullying is also a problem of the unresponsive bystander, whether that bystander is a classmate who finds the harassment to be funny, or a peer who sits on the sidelines afraid to get involved, or an educator who sees bullying as just another part of growing up." Rodkin, supra, at 36.
For those students who are connected with their social group, bullying serves as a way to control their peers. Id. at 33. For those bullies who are excluded by their peers, bullying represents a way to lash out at a social system that keeps them on the periphery. Id. A majority of bullies who are marginalized are male; students being controlled by their peer group are evenly split between both genders. Id. at 34.
These bullies who are integrated within their peer social groups are easy to ignore or mischaracterize—leading two researchers to describe them as "hidden in plain sight." Id. at 36. They have a variety of friends and possess strengths such as good social skills, athleticism, and attractiveness. Id. at 34.
Culture is weighty in determining why someone will bully. Television, video games, and the Internet may be linked to increased aggression and an increased likelihood for bullying behavior. Macklem, supra, at 21-23. These influences, if they have any affect at all, are not as strong as other cultural influences such as the neighborhood and the environment in which the child is raised. Id. at 24.
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Friday, April 6, 2012

More Thoughts on Dispute Resolution; Tech Update

It is pretty rare that I make it all the way around all of those mountains to get to the Northern Panhandle of West Virginia.  It is a long ride.  This year I have already been there twice.  And yes this does mean that I passed by my favorite road name again. (See photo above.) I also drove very slowly through the speed trap formerly known as "McMechen."

More importantly, I again was able to contrast the value of mediation as a tool for dispute resolution in special education.  I serve as both a hearing officer and as a mediator.  I also train hos and mediators.  I continue to believe strongly that mediation is the better way to go.  Mediation is better suited to resolve those relationship issues which are so critical to the education of a child.  This is one of the topics that I discuss on the CADRE interviews, which you can find here.  By the way, there is a wealth of other useful information about special ed dispute resolution in these interviews.

Also a quick tech update.  The LinkedIn special education law group continues to prosper with over 2650 members.  Check it out.  The Facebook Special Education Law Group was "archived" by the evil corporate masters of Facebook because members were not updating their status every five seconds. That still burns.

I do have a question for readers though.  Before the new timeline, Facebook used to list my blog posts on my notes section automatically after I tinkered with the settings.  This stopped and I wonder if there is a way to automatically have my blog posts appear on Facebook? Any ideas?

The best way to support the blog is to take one of the free subscriptions available on the left hand side of the blog.  Numbers count in the blogosphere. You can get the posts delivered to your email inbox, or via RSS feed.  You can even get a blidget (=blog + widget) to place inside your own website or blog.   Thanks again to all our readers.
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Wednesday, April 4, 2012

Procedural Safeguards - The Series Part VII

Peer MediationPeer Mediation (Photo credit: Jessica.James)
This is the eighth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful.


Mediation is a highly flexible way to resolve disagreements between school systems and parents of children with disabilities. An impartial person, called a mediator, helps parents and school district personnel to communicate more effectively and develop a written document that contains the details of their agreement. The mediator has been trained in effective mediation techniques.

Participation in mediation is completely voluntary; parents and school districts only have to participate if they choose to. The mediation process is also confidential; discussions cannot be used in any future due process hearing or court proceeding. 34 CFR § 300.506(b)(8); 71 Fed. Register No. 156 at pages 46695-96 (August 14, 2006).

IDEA requires state education agencies to provide a mediation system at no cost to the parties; mediation is free for both parents and school districts. Mediation must be available at any point in the process, including disputes arising before a due process complaint has been filed. IDEA §615(e).

A mediation agreement must state that mediation discussions are confidential and may not be used in a subsequent due process hearing or court proceeding. § 615(e)(2)(F)(i). IDEA specifically provides that mediation agreements are enforceable in court. § 615(e)(2)(F)(iii). OSEP has noted that nothing prevents parties to a mediation from agreeing to have the mediator facilitate an IEP team meeting. 71 Fed. Register No. 156 at page 46695 (August 14, 2006).

Mediators must be selected on a random, rotational or other impartial basis, and one such impartial basis would be agreement by the parties. 71 Fed. Register No. 156 at page 46695 (August 14, 2006). Because mediators are not selected by the parents, states are not required to provide a list of their mediators or their qualifications to the parents or the public in general. 71 Fed. Register No. 156 at page 46695 (August 14, 2006).

ADDITIONAL RESOURCES for MEDIATORS: In addition to the general IDEA resources, mediators should frequently visit the CADRE website. The Consortium for Appropriate Dispute Resolution in Special Education is an OSEP funded group that encourages mediation, IEP facilitation and other means of special education dispute resolution that are less formal and legalistic than due process hearings. Their website is loaded with helpful articles, materials and other information.  
Here is the OSEP Topic Brief on Mediation:

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