Tuesday, September 30, 2014

Bullying of Kids With Disabilities - Part III

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

Bullying remains the hottest of hot button issues in special education law.  In an earlier 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 the last 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.)  

In this installment, I begin to review the literature on bullying.  Please note the court provided these words in its opinion. I cannot take credit for the analysis:

E. Bullying in America

Were bullying characterized as a disease affecting America's youth, a team from the Center for Disease Control charged with investigating epidemics would have been called in to study it. Joseph L. Wright, Address at American Medical Association Educational Forum on Adolescent Health: Youth Bullying 23 (2002), available at http://www. ama- msn.org/amal/pub/upload/mm/39/youthbullying.pdf. ("If [bullying] were a medical issue, for example an infectious disease in my pediatrics practice, we would have the Epidemic Intelligence Service people from the Centers for Control and Prevention investigate it. The prevalence and epidemiology is striking."). The problem is pervasive; it is perceived by educators as serious, particularly in the middle school years. Michaela Gulemetova, Darrel Drury, and Catherine P. Bradshaw, Findings Form the National Education Association's Nationwide Study of Bullying: Teachers' and Education Support Professionals' Perspectives, in White House Conference on Bullying Prevention, at 11-12 (March 10, 2011), available at http://www. stopbullying.gov/references/white_house_conference/index.html. ("Over 40 percent of [teachers and support staff surveyed] indicated that bullying was a moderate or major problem in their school, with 62 percent indicating that they witnessed two or more incidents of bullying in the last month, while 41 percent witnessed bullying once a week or more."). It is the most common type of violence in our schools. Macklem, supra, at 7.
The issue first seized the attention of the American public after the 1999 shooting at Columbine High School that killed fifteen students and wounded two dozen more. Susan P. Limber, Addressing Youth Bullying Behaviors, in American Medical Association Educational Forum on

Adolescent Health: Youth Bullying 5 (2002), available at http://www.amaassn. org/amal/pub/upload/mm/39/youthbullying. pdf. As part of the investigation that followed the Columbine massacre, the Secret Service examined thirty-seven shooting incidents. They determined that in two-thirds of those cases, the shooter described feeling bullied, persecuted, or threatened at school. Bill Dedman, Secret Service Findings Overturn Stereotypes, Chicago Sun-Times Report, Oct. 15-16, 2000, at 9; Limber, supra, at 5. "I just remember life not being much fun, a shooter recalls. Reject, retard, loser.' I remember stick boy a lot cause I was so thin." Dedman, supra, at 9.
More recently, stories of bullied victims taking their own lives have become common. See, e.g., John Schwartz, Bullying, Suicide and Punishment, N.Y. Times, Oct. 3, 2010, at Al (discussing the suicides of three teens as a result of online bullying); Limber, supra, at 5 (noting that internationally the study of bullying was triggered by the suicides of three young boys in Norway in the 1980s). Some one third of students are engaging in aggressive behavior directed at their peers, oftentimes with the goal of increasing their popularity. Tara Parker-Pope, Web of Popularity, Achieved by Bullying, N.Y. Times blog, (Feb. 14, 2011, 5:03 p.m.), available at http://well.blogs.nytimes.com/2011/02/14/ web-of-popularity-weaved-bybullying/' scp=1&sq=Tara% 20ParkerPope% 20bully&st=cse.
National leaders and educators continue to work toward a solution. President Obama held a summit and announced new federal programs that aimed at "dispel[ing] the myth that bullying is just a harmless rite of passage or inevitable part of growing up." Jackie Calmes, Obama Focuses on Antibullying Efforts,N.Y. Times, March 10, 2011, at A18.
Presidential summits and school shootings achieve headlines, but the day-to-day adverse affects of bullying in damaging educational opportunities to students are as real as they are unnoticed. It is a problem that affects the school performance, emotional well-being, mental health, and social development of school children throughout the United States. Tonja R. Nansel et. al., Cross-national Consistency in the Relationship Between Bullying Behaviors and Psychosocial Adjustment, 158 Archive of Pediatric and Adolescent Med. 730, 733-35 (2004). Whether a child is the victim, aggressor, or merely a bystander, research shows that those in a close vicinity to bullying are adversely marked. Id. See also, Macklem, supra, at 44, 90-92.

Monday, September 29, 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, September 26, 2014

The New GAO Report on Special Education Dispute Resolution: More Thoughts

English: The headquarters of the Government Ac...
 The headquarters of the Government Accountability Office in Washington. (Photo credit: Wikipedia)

A few days ago, we reported on the new GAO report on dispute resolution in special education.  You can read that post here.  

The report is very controversial.  It appears to reflect a dispute between the Congress (or the GAO, an investigative arm of Congress) about dispute resolution in special education.  Apparently in talking with the state officials, the GAO came away with a conclusion that the data reporting required by the Office of Special Education Programs is not transparent because hearings are taking a very long time to complete and OSEP only requires states to report the percentage (& raw numbers) of hearing decision that were issued within the 45 day timeline or an extension thereof.  The trouble, according to the GAO, is that some hearings have many extensions or long extensions so it is difficult to find meaning in the data.

Perhaps even more interesting is the GAO conclusion that OSEP's method of collecting data on parent involvement may be adversely affecting dispute resolution.  It is the last part of that sentence that is very interesting.  The report seems to be saying that some state officials feel that parents do not understand their dispute resolution rights- or at least OSEP's data is not capturing this,  I do believe that this is a problem at least in some states.  But I wonder how a state quantifies this problem and neatly places it in a report.

That's a lot to chew on.  I may be overreacting, but this report seems like pretty big news.

We will have more on the GAO report, which you should really read.  It has a wealth of information of dispute resolution in special education, and it will make you really happy if you don't live in DC, New York or Puerto Rico!  

Wednesday, September 24, 2014

Breaking: GAO Issues Report on Dispute Resolution In Special Education

David M. Walker (U.S. Comptroller General)
 (Photo credit: Wikipedia)

The Government Accountability Office (who else remembers when GAO stood for Government Accounting Office?) today issued a study of dispute resolution in special education. The report concludes that the U. S. Department of Education could enhance oversight of special ed dispute resolution.

The study found that:
From 2004 through 2012, the number of due process hearings—a formal dispute resolution method and a key indicator of serious disputes between parents and school districts under the Individuals with Disabilities Education Act (IDEA)— substantially decreased nationwide as a result of steep declines in New York, Puerto Rico, and the District of Columbia. Officials in these locations largely attributed these declines to greater use of mediation and resolution meetings—methods that IDEA requires states to implement. Despite the declines, officials in these locations said that higher rates of hearings persisted because of disputes over private school placements or special education services. GAO did not find noteworthy trends in the use of other IDEA dispute resolution methods, including state complaints, mediation, and resolution meetings. States and territories reported on GAO's survey that they used mediation, resolution meetings, and other methods they voluntarily implemented to facilitate early resolution of disputes and to avoid potentially adversarial due process hearings.
States, territories, and other stakeholders generally reported on GAO's survey or in interviews that alternative methods are important to resolving disputes earlier. Some stakeholders cited the potential of these methods to improve communication and trust between parents and educators. Some state officials said that a lack of public awareness about the methods they have voluntarily implemented was a challenge to expanding their use, but they were addressing this with various kinds of outreach, such as disseminating information through parent organizations.
The Department of Education (Education) uses several measures to assess states' performance on dispute resolution but lacks complete information on timeliness and comparable data on parental involvement. Education requires all states to report the number of due process hearing decisions that were made within 45 days or were extended; however, it does not direct states to report the total amount of time that extensions add to due process hearing decisions. Similarly, Education collects data from states on parental involvement—a key to dispute prevention—but does not require consistent collection and reporting, so the data are not comparable nationwide. Leading performance measurement practices state that successful performance measures should be clearly stated and provide unambiguous information. Without more transparent timeliness data and comparable parental involvement data, Education cannot effectively target its oversight of states' dispute resolution activities.
GAO recommends that Education improve measures for overseeing states' dispute resolution performance, including more transparent data on due process hearing decisions and comparable parental involvement data. Education neither agreed nor disagreed with the recommendations and proposed alternative actions. GAO does not believe these proposals will address the weaknesses in Education's performance measures and continues to believe the recommendations remain valid.

This is a big deal if you are involved in special education dispute resolution.  Here's where you can check it out.  You can read a summary by the GAO here.  A one page highlights sheet is available here. You can read the 43 page report here.  What are your thoughts on this sure to be controversial report?

Monday, September 22, 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, September 19, 2014

Bullying of Kids With Disabilities - Part II

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

Bullying remains a hot button issue in special education law. This is the second post in the current series on this topic.  In the last post, I discussed some of the key cases finding that bullying of children with disabilities can be a violation of the Individuals with Disabilities Education Act (or IDEA as we often refer to it here.)  With that analytic basis, we now turn to a more recent court decision.

(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 here. TK I remains good law.)  

The opinion in TK & SK ex rel LK v. New York City Dept of Educ 56 IDELR 228, 779 F. Supp. 2d 289 (E.D.N.Y. 4/25/2011) is a must read.The case involves a twelve year old girl with a specific learning disability. Her peers ostracized her, pushed her and ridiculed her daily.  They refused to touch any item that she had touched.  Yes kids can be very cruel.

The Court held that when facing a situation in which a child with a disability is allegedly being bullied, a school district must take prompt and appropriate action including making an investigation and taking steps to prevent future abuse. In this case, the Court found that the district did nothing despite parent requests to discuss the problem.  The Court held that where the educational benefit to the student was adversely affected by the bullying, FAPE had been denied. The Court awarded reimbursement to the parents for the tuition of the private school in which they had unilaterally placed the student.

In the next posts on this issue, I will quote some of the literature on bullying in America that was relied upon by the court in this case.  You can review the entire opinion here.

Wednesday, September 17, 2014

Breaking: Secretary Duncan Offers Guidance to Educators Concerning Undocumented Students

English: Seal of the United States Department ...
English: Seal of the United States Department of Homeland Security. (Photo credit: Wikipedia)

Two years ago, the Department of Homeland Security began offering the opportunity for young people to request consideration for Deferred Action for Childhood Arrivals (DACA) and obtain temporary relief from removal from the United States.  Over 580,800 young people from all over the world have received DACA since 2012. Today, current and former students who requested DACA beginning in 2012 are now becoming able to request consideration for renewal of DACA. 

Secretary Duncan recently wrote a letter to educators concerning how they could help support undocumented students who are requesting DACA relief or who are requesting renewal of DACA relief.  You can read the Secretary's letter here. Further information on DACA is available here.  Also our friends at the CEC Policy Insider blog have more on the topic here.

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

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
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
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
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.
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
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/
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
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
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
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