Friday, July 27, 2012

Bullying of Children With Disabilities - Part XII

In My Room from the Bully Series
In My Room from the Bully Series (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.

In the next parts of this series, I will take a look at some of the points and issues raised by participants during my recent half day presentation on Bullying at the Seattle U conference. Some big issues were discussed there.
In the meantime, here is more from the TK court...these are not my words:

F. Effects on Children

3. Bystander

Bullies typically operate in front of a crowd, and the students who act as onlookers do not escape the effects of bullying. These students, who often watch, or even step away from the bullying actions, are more likely to feel powerless and to be fearful at school. Macklem, supra, at 91-92. Bystanders feel as though they are incapable of controlling the situation, and thus are not themselves safe. Id. at 91.
Students may go along with the group in the bullying behavior out of fear that if they were to speak up they might lose their space within the peer group and open themselves up to be the next victim. Id. As time goes on, if bullying persists at a high level, bystanders become desensitized and are less willing to step in to prevent the harassment. Id.



Enhanced by Zemanta

Wednesday, July 25, 2012

Procedural Safeguards - The series Part XII

Safeguards Transporter
Safeguards Transporter (Photo credit: Wikipedia)

This is the final 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. Be sure to tell me what you thought about the series.

Attorneys’ Fees

IDEA’04 changed the section on attorneys’ fees to provide that a school district or SEA may now recover their attorneys’ fees from the parent’s attorney who files a complaint that is frivolous, unreasonable, or without foundation or who continues to litigate after the litigation clearly becomes frivolous, unreasonable, or without foundation. Section 615 (i)(3)(B)(i)(II). Also, the statute now provides that a school district or SEA may now recover their attorneys’ fees from the parent or the parent’s attorney where the claim was presented for an improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation. Section 615 (i)(3)(B)(i)(III). The standard for an award against a parent’s attorney or a parent is very high, and it is unlikely that many awards of attorneys’ fees will be made against parent’s attorneys, and especially against parents without attorneys. These new provisions, however, may cause counsel who represent parents to decline borderline cases. There could also be awards in those rare cases in which parents clearly abuse the system. OSEP declined to clarify the standard for an award of attorney’s fees against a parent stating that judicial interpretations would likely vary on a case-by-case basis and should be left to the discretion of the court. 34 CFR Section 300.517(c)(2)(ii); 71 Fed. Register No. 156 at page 46708 (August 14, 2006).

The provision permitting an award of attorneys’ fees to parents who prevail in a due process or court proceeding remains unchanged in IDEA’04. The regulations provide that attorney’s fees may not be awarded for attending IEP team meetings, except where they are convened as a result of judicial action, an administrative proceeding, or in the discretion of the state, for a mediation. 71 Fed. Register No. 156 at pages 46708-09 (August 14, 2006).

ADDITIONAL RESOURCES: OSEP has also published a Question and Answer document, Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities (OSEP Revised June 2009). The Q & A document is available at the OSEP IDEA website:

In addition, NICHY, also known as the National Dissemination Center for Children with Disabilities, has issued a series of training module on procedural safeguards. The training modules are available online here. and as to all matters in volving dispute resolution, take a quick look at the CADRE website.

Enhanced by Zemanta

Thursday, July 19, 2012

Back in The Saddle Again

This week was about back to business.

I had three special education hearings this week.  I never talk about pending cases.  This involves the privacy of the parties as well as fundamental considerations of due process of law.  Some folks have suggested that I write in this blog about my experiences as a hearing officer and mediator.  I cannot do that.

Yet there is plenty to talk about here.  Beginning next week we will explore some of the lessons I learned during my extended session on Bullying and IDEA at Seattle U last week.  Bullying remains the hottest of hot button issues in special education law.  More later.

Monday, July 16, 2012

The Friendly Skies, Not So Much - Addendum

OK so to finish the story, I had an eventful trip back from Seattle. You can read the previous post  here.

The final flight landed at 2:37 am ET. This was 11 hours after my originally scheduled landing time.  Not that it eased my pain, but United sent me an email while I was in the air saying that the flight had been delayed.  Thanks a lot!

It took about an hour for my bags to clear Baggage Claim and about thirty minutes to get out of the parking lot.  By then it was after 4 am, and the normal motels in Manassas were full.  I ended up checking into what I'm pretty sure was the Bates Motel in Front Royal at 5am.  I slept until checkout time.  Then I got up and drove home. 

But I am fine.  Now fully rested, I have three due process hearings on the agenda  this week. 

Saturday, July 14, 2012

The Perils of Modern Air Travel - Part VI

Ok this is a complaint. After a very nice conference in Seattle, the uneven transition caused by the merger between Continental & United reminded me of the reality of the perils of modern corporate air travel.

I had booked a direct flight from Seattle to Washington-Dulles. So I dutifully get up at 4 am and get myself to the airport. About the time that the flight should be boarding there was an announcement that the flight had been cancelled.

Apparently the United Airlines "policy" (and yes this was in 2012!) for cancelled flights is something akin to the "survival of the fittest." That is, those with the best footspeed get the best deal. (I may have quick reflexes, but footspeed isn't my thing.) Not ready to be defeated, I warmed up my Blackberry and utilized the Google. After a 25 minute wait, I got a fellow at the United 800 number who was not a student of US geography. He said are you leaving Washington or travelling to Washington? I said yes.

Then he placed me on two US Airways flights- the first to Phoenix and the second to Reagan/National. I took the tram to the other end of the SEATAC airport. After I stood in the line at the US Air gate for about ten minutes, the agent asked if anybody was from the ill-fated United flight to Dulles and about half of us admitted to this offense. The agent said go tell United that they had said we didn't want any of "you people" and in any event the flight to Phoenix was also cancelled. She also advised us to leave the secure area and go to the United counter. This sounded wrong so I returned to the original United customer service area.

There the least fleet of foot were still waiting, and I joined them now at the end of the line. I was re-ticketed on a standby basis through Chicago O'Hare. The flight was full but I made it on the plane.

I had an email from United when I landed that the flight from Chicago to Dulles would be an hour late and land at Dulles at 1:30 am. Right now the flight is an hour and a half late and counting. I love Chicago but this is ridicules.

Three employees, a pilot and two gate agents, confided in me that they feel that the merger between United and Continental is causing some problems. I agree. Enough is too much!

Safe travels everybody, and good night!
Sent from my BlackBerry® wireless device from U.S. Cellular

Thursday, July 12, 2012

Live From Seattle U: Great Conference

Font and interior, Chapel of St. Ignatius, Sea...
Font and interior, Chapel of St. Ignatius, Seattle University. Architect: Steven Holl. (Photo credit: Wikipedia)

This post comes to you from the Seattle University Academy for IDEA hos.

The Conference is going very well.  I led off with a three hour presentation on Bullying of  Kids With Disabilities and IDEA.  The participants were very engaged, and I felt that the session went very well.  Bullying remains the hottest topic in special education law.

Other sessions were also very good.  One on Mediation and another on Eligibility and Evaluation were well received.  This afternoon I was on a panel with three other hos challenging the audience to say what they would do in difficult circumstances.  The high quality sessions continue tomorrow.

I have met some old friends, like most of my fellow hos from Pennsylvania, as well as many new friends from around the country.  I enjoy the networking as well as picking the minds of those who do work similar to the work that I do.
Enhanced by Zemanta

Monday, July 9, 2012

Fiat Lux; The Politics of Power

The lights came on Saturday. Still no cable or land internet.

The politics of how and where power was restored seems suspicious.

There was a PGA golf tournament ten miles away last weekend.  Rather than cancel the golf and worry about the people, the opposite seems to have occurred.  It seems that power was restored to motels and restaurants for golf fans before it was restored to residential neighborhoods.  Ah local politics- the stuff of legends.

I have to board a flight for the big conference in Seattle.  More from the west coast this week.

Sunday, July 1, 2012

Short Break - Waiting for Power

A big storm with crazy bad wind ripped through West Virginia this week. We have been without electrical power since Friday.

We lost a 120 year old Maple tree, but we are OK.

Bad time of year to be without A/C! At times I feel like tying my necktie around my forehead and plundering the town.

Seriously though, probably a short break between posts here until power is returned. Stay tuned. And thans for reading.

Sent from my BlackBerry® wireless device from U.S. Cellular