All Things ConsideredCourt: Bullying Denies FAPE Decision: Yes – if facts alleged are true Student...

All Things Considered

Bullying Based on Disability

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Overview

Bullying as Disability Discrimination

Section 504 & Americans with Disabilities Act

Bullying as Denial of FAPE

IDEA

California Legislation 2011

District Action Items

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OCR Disability Discrimination

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OCR Guidance Letters

The Bottom Line. Bullying based on a student’s disability requires a response

Beyond that used for simple teasing, taunting, or hazing among peers

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Dear Colleague Letter I(OCR 2010)

Issued October 25, 2010

Purpose. To remind LEAs that bullying incidents may be disability discrimination

Message. LEAs must

Identify whether incident constitutes bullying based on the student’s disability

Respond to prevent recurrence

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Definition of “Disability Harassment”

OCR defines “disability harassment” as intimidation or abusive behavior based on a disability that creates a hostile environment

Disability harassment and bullying on the basis of disability used interchangeably

Dear Colleague Letter I (OCR 2010)

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Elements of Disability Harassment

Harassment based on disability

Sufficiently serious that it creates hostile environment

District response inadequate

Harassment encouraged, tolerated, not adequately addressed, or ignored by school staff


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Forms of Disability Bullying

Verbal acts and name-calling

Graphic and written statements

Other conduct that may be physically threatening, harmful, or humiliating


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Hostile Environment

Bullying creates a hostile environment when it is

Sufficiently severe, pervasive, or persistent

To interfere with or limit a student’s ability to

Participate in or benefit from the services, activities, or opportunities offered by an LEA


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Duty to Act: Know the Facts

A school is responsible for addressing harassment incidents about which it knows or reasonably should have known

On-campus incidents

Off-campus behavior including cyberbullying


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Duty to Act: Response

Discipline the perpetrator and counsel the victim –as a starting point

Prevent recurrence perhaps by addressing school climate


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Do not penalize the victim by

Moving to a more restrictive environment

Changing class schedule or transportation

Limiting access to recess and/or breaks


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Do not respond solely based on how the victim characterizes the incident

Look beyond disciplining the bullies

Does school climate tolerate bullying?


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OCR’s HypotheticalFacts:

SLD student

Repeatedly called an “idiot,” “retard,” and “stupid”

Student tackled, hit with binder, and personal items thrown in the garbage

Student complained to his teachers that he was being bullied


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OCR’s Hypothetical

District offered student counseling and a psychiatric evaluation

Did not discipline the offenders

Harassment continued

Student became angry, frustrated, depressed, and refused to attend school


cont.

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OCR’s Hypothetical Decision:

District is out of compliance with Section 504 and ADA

District failed to recognize the misconduct as disability harassment

The harassment prevented student from fully benefiting from the school’s education program


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Appropriate Steps to End Bullying

Develop user-friendly method for victim to register complaints

Separate the accused harasser and the target

Discipline the harasser

Meet with district’s Section 504/special education coordinator to ensure an effective response


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Appropriate Steps to End Bullying

Staff training on recognizing disability harassment

Monitor behavior of students to prevent recurrence

Provide counseling for the target and/or harasser

Issue/modify school policies as appropriate


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“Dear OCR Letter” from NSBA

Complaints about DCL I prompt OCR toissue DCL II

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Dear Colleague Letter II(OCR March 25, 2011)

Complaints from school community

OCR’s bullying guidance expanded current law

Current law requires “actual knowledge” of, and “deliberate indifference” to, bullying

OCR’s letter made districts liable for incidents about which they “should have known”

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OCR’s Response

The legal standard of actual knowledge and deliberate indifference applies to money damages

OCR’s standards for administrative enforcement are higher and different

Dear Colleague Letter II (OCR 2011)

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OCR Determinations Disability Discrimination

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Recognizing Disability-Based Bullying

Hemet (CA) Unified School District(OCR 2009)

Facts:

OHI student

Bullied and taunted at lunch, recess, and in PE

Peers mimicked student’s speech and involuntary facial movements

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Facts:

District actionSuspended one student

Increased playground supervision

Counseled some students on appropriate language

Issue:

Did district respond adequately to bullying incidents?

cont.

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Decision:

NoDistrict failed to see incidents as

disability related

District responsible for providing a learning environment free from discrimination

District failed to investigate complaints

Hemet (CA) USD (OCR 2009)

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Decision:

Parent’s failure to identifyharassment as disability-basedDoes not relieve district of duty to recognize it

and correct it

If the student’s own conduct provoked some of the incidentsConduct should have been addressed through

the IEP process

cont.


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Lessons Learned:

PositivePrompt and effective response

NegativeDismissal of incidents as normal peer-to-peer

interaction

No counseling or discipline of bullies

No IEP assistance for student


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Failure to Remedy Bullying

Santa Monica-Malibu (CA) Unified School District (OCR 2010)

Facts: Eighth grade student bullied daily, resulting in

student’s absenteeism and school phobia

Parent complained about bullying to school officials via email

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IEP team convened to discuss alleged harassment

IEP team added a self-advocacy goal, but district failed to implement

Santa Monica-Malibu (CA) USD (OCR 2010)

cont.

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Decision:

OCR found that district was out of compliance

Rationale:

District made efforts to address harassment but failed to implement them


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Failure to Remedy BullyingLessons Learned:

PositivePolicies and procedures adopted

Staff designated

Anti-bullying training

NegativePolicies not implemented

IEP anti-harassment goals not implemented

Failed to investigate

No discipline of harasser

cont.


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Success in Remedying BullyingCase #1

Kearney R-I (Mo) School District (OCR 2010)

Facts:

Second grader had severe peanut allergy

At lunch classmates often waved pieces of bread with peanut butter in front of her face

Principal promptly spoke with offending students

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Principal met with the entire second grade class to explain the seriousness of a peanut allergy

Offered counseling to address the child’s fears

Kearney R-I (Mo) SD (OCR 2010)

cont.

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Issue:

Did district violate Section 504 when it failed to address bullying of student on the basis of her peanut allergy

Decision:

District responded appropriately and thus satisfied Section 504 requirements



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Lessons Learned:

Positive

Quick and appropriate response

Systemic approach

Negative

Lack of parent communication



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P.R. by Rawl v. Metropolitan School Dist. of Washington Township(S.D. Ill.) 2010

Facts:

Middle school student with HIV

Teased at school and through text messages, instant messages, and emails

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Soccer coach asked student whether she was HIV positive while on a team bus

Student withdrew from school

District staff warned harassers about seriousness of actions

District reprimanded soccer coach

Parent sued for damages

cont.

P.R. by Rawl v. Metropolitan SD of Washington Township (S.D. Ill., 2010)

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Issue:

Was district liable for failing to respond to harassment of HIV-positive student?


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Decision:

No. Lawsuit dismissedStudent failed to show that district was

“deliberately indifferent” to disability harassment

District took prompt action, including meeting with students and parents of harassers


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Rationale:

The court cited to the prompt andeffective response of the district

The court rejected student’s argument that a harsher punishment required“School administrators enjoy a great deal of

flexibility when making disciplinary decisions and responding to allegations of harassment”(Id. at *8.)


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Lessons Learned:

Implement a comprehensive response

Be on the lookout for cyberbullying

Respond to bullying by staff

P.R. by Rawl v. Metropolitan SD of Washington Township (S.D. Ill.) 2010

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IDEA – Bullying as a Denial of FAPEN.Y. Federal District Court

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Court: Bullying Denies FAPE

T.K. v. New York City Dept. of Educ.(E.D.N.Y., April 25, 2011)

Facts:

12-year old female eligible under SLD

Ostracized, pushed, and ridiculed daily

Parent attempted to discuss thebullying matter with school officialsIgnored and rebuffed

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Parent filed due process complaint with administrative hearing office. Hearing officer found district did not deny student a FAPE

Parent appealed to federal district court

cont.

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Issue:

“…under the IDEA, the question to be asked is whether school personnel were deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in their educational opportunities”


T.K. v. New York City Dept. of Educ. (E.D.N.Y, 2011)

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Decision: Yes – if facts alleged are true

Student was isolated and harassed

Parents reported incidents but school took no action

Student withdrew, did not want to go to school

Where bullying reaches a level where student is substantially restricted in learning opportunities, she has been deprived of a FAPE

T.K. v. New York City DOE (E.D.N.Y., 2011)

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Lessons Learned:

Discuss incidents at IEP

Investigate incidents

Pay attention to complaints

Have a complaint process and use it effectively


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Compare:

N.Y. Court’s High FAPE Standard

Student substantially restricted in learning because of bullying

9th Circuit’s Lower FAPE Standard

Student derives no benefit from IEP because of bullying


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IDEA – Bullying as a Denial of FAPEOAH Decision

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OAH: Bullying Denies FAPE

Student v. La Canada Unified School District (OAH 2006)

Facts:14-year old male student with speech

delay-lagged behind in social skillsOver a three-year period

Student bullied, teased, and physically abusedTaunted for going to speech therapy, spit on,

backpack pulled offStudent anxious, depressed, refused to go to schoolParent provided tutoring and therapy

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Issue:

Did district fail to address the bullying and teasing of student such that it denied him a FAPE for the last three years?

Student v. La Canada USD (OAH 2006)

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District Contended:

Incidents of bullying against student were due to student’s own behaviors

Parent Contended:

District repeatedly failed to stop the bullying; student deteriorated sociallyand emotionally


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Decision:

District did not provide student with a FAPEStudent suffered emotional harm

Student maintained his grades only because of extra services paid by parent

The large emotional harm to student was so severe that student made de minimus progress on his IEP


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Rationale:

The ALJ explained, “the District points to the very needs of Student, his inability to respect others’ space, his lack of impulse control, and his inability to read others’ cues, as the reason for bullying. This belies District’s failure in addressing Student’s primary needs in social interaction, social skills,and pragmatic communication”


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Lessons Learned:

Student’s own behavior cannot be blamed

No systemic anti-bullying measures

Failure to implement remediation program

Failure to consider social and emotional needs

Failure to offer supervision


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Legal StandardBullying as Denial of FAPE

Bright Line Test

Chronic Bullying

Failure to Prevent Bullying

Student Receives No Benefit from Services as a Result

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Chronic Bullying

Chronic bullying ranges from:One reported incident per year for three years

Daily for at least one year

Regularly for three years

Teasing

Teasing and pushing

Teasing and pushing and cyberbullying

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Prevention

Failure to prevent bullying ranges from:Failure to prevent bullying successfully

Failure to take steps to prevent bullying

Deliberate indifference of staff to bullying

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Resulting Educational Loss

Resulting educational loss ranges from:Student derives no benefit from services

Student suffers emotional harm and does not benefit

Student substantially restricted in educational opportunities

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Legal StandardBullying as Denial of FAPE

Bottom Line:

The more aggravated the bullying, or the weaker the school response, the more likely a FAPE violation!

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California Legislationon Bullying, 2011

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Assembly Bill 9

Effective on July 1, 2012

Requires school districts to develop policies and complaint procedures to address bullying based on . . . a student’s disability

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Assembly Bill 9

Requires CDE to ensure that school districts have the following in placePolicy that addresses bullying on the basis of

actual or perceived disability

Complaint process for receiving and investigating complaints regarding bullying on the basis of actual or perceived disability

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Assembly Bill 9

Complaint process must also include A requirement that school personnel that

witness bullying take immediate steps to intervene when safe to do so

A timeline to investigate and resolve bullying complaints

An appeal process for complainant if he or she disagrees with resolution

Translation of all forms pursuant to Education Code section 48985

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Assembly Bill 1156

Effective July 1, 2012

AB 1156 amends the definition of bullying under Education Code section 48900The “reasonable person” standard for evaluating

the impact of bullying includes “an exceptional needs pupil”

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Assembly Bill 1156

Current LawPlacing a “reasonable pupil” in fear of harm

Causing a “reasonable pupil” to experience substantial interference with academic performance, physical or mental health, and/or ability to benefit from school

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Assembly Bill 1156

New definition of “Reasonable Pupil”Includes “an exceptional needs pupil”

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Assembly Bill 746

Broadens the definition of bullying by electronic actsTo include “a post on a social network Internet

Website”

Ed. Code, § 32261(g)

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District Action Items

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Action ItemsPolicies & Procedures

Adopt and implement policies and procedures with respect to bullying

Review and update existing policies and procedures

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Action ItemsPolicies & Procedures

Complaint procedureA process for receiving and investigating

complaints of bullying based on actual or perceived disability

A timeline for investigating and responding to bullying complaints

An appeal process if parent or student disagrees with resolution of complaint

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Action ItemsAddressing Complaints

Best Practices: Investigate bullying incidents

Evaluate impact of bullying on student’s civil rights and FAPE

Keep parents in the loop

Systemic approachHow are you dealing with bullying impact on

learning?

How are you dealing with parents?

How are you responding to school community?

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Action ItemsPrevention & Recognition

Train all staff and students on bullying

Make reporting bullying easier

Example: A school district adopts a “bully box”at each school site where students can place forms into a locked box

Talk with parents(See Appendix for Checklist: Addressing Parent Concerns on Bullying)

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Conclusion

The Goal - A school culture where bullying is unacceptable to everyone

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HAGLBHave a good lunch break

We will promptly reconvene at 1:00 p.m.

All Things ConsideredCourt: Bullying Denies FAPE Decision: Yes – if facts alleged are true Student...

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