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Bullying of Students with Disabilities_ New Guidance, Case ...

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Bullying and Harassment of Students with Disabilities: USDOE Guidance, Court Analysis, Local Policy Ideas
Presented byJose Martín, AttorneyRichards Lindsay &Martín, L.L.P.Austin, TexasCopyright © 2014, 2016 Richards Lindsay & Martín, L.L.P.
Current circumstances:Harassment and bullying in schools is a large, entrenched problem, with multifaceted negative consequencesStudents with disabilities are particularly vulnerable (studies now confirm), and students with ASD even more so, due to social skills deficitsFrequency? A third of US studentsreportbullying at school
Current circumstances:Because of the persistent nature of the problem OCR has issued various guidance letters, starting in 2000.Recent guidance letter is substantively cumulative (as of October 21, 2014)
October 2014 OCR Guidance
A Framework for Schools’ Legal Obligations:1. Disability-basedharassment can impact equal educational opportunity and FAPEInappropriate response to harassment is a form of discrimination on basis of disability2.Harassment onanybasis can deny students a FAPE under §504 or IDEA and if so, must be remedied (FAPE-based claim)
October 2014 OCR Guidance
Disability-Based Harassment Points:If school knows or should know of conduct, it has a duty to investigateIf harassment creates a “hostile environment,” school must take action“Hostile environment” means the conduct interferes with a student’s ability to participate in, and benefit from, program activities or opportunities
Disability-Based Harassment:Broad Overview of Required School Actions:End the conductEliminate hostile environmentPrevent recurrence of conductRemedy negative effects, if anyFailure to appropriately respond violates §504 (a form of discrimination)—can lead to OCR complaints and §504 money lawsuits (which are increasingly common)
Other Harassment and Denial of FAPE:Regardless of reason, harassment can impact education to the point it denies the student a FAPEIEP teams/§504 Committees must address any negative effects of bullying through changes in IEPs/§504 PlansWatch for drops in grades, behaviors, increased absences, outbursts
Outline of the OCR/ED Disability Harassment Standard
Once district on notice of possible disability-based harassment, it mustinvestigate and respondappropriatelyIf (A) conduct is sufficiently serious as to deny or limit student’s ability to participate or benefit from program (“hostile environment”), (B)district knewor should have known about conduct, and (C)district failed to take appropriate responsive action, then a violation of §504/ADA
Outline of the OCR/ED Disability Harassment Standard
3. If adistrict employee, in carrying out their responsibilities, engages in disability harassment sufficiently serious to deny or limit a student’s ability to participate or benefit in program, district is responsible whether or not it has noticeAppropriateness of responsive action is assessed on whether it isprompt, thorough, and effective
Outline of the OCR/ED Disability Harassment Standard
5.District responsemust be designed to reliably investigate, stop the harassment, eliminate any hostile environment, address the impact on the harassed student, and prevent recurrence6. Whether conduct creates ahostile environmentinvolves following factors: type of conduct, frequency, severity, nature of disability, age and relationship of parties, settings and contexts, other incidents at the school, and other factors
Overall Landscape in Federal Courts
Money actions becoming increasingly frequent, alleging physical and mental injuries; possibly, suicideFor parents, the legal path is a difficult one (procedural hurdles at pleading stage, summary judgment stage, other obstacles)For schools, difficulty lies in need for reasonable, coordinated response among campus administration, §504 team, special education
Overall Landscape in Federal Courts
Area of law is complex—circuits not in unison about applicable legal claims, differences in analyses, some frustration at lack of “fit” of current theoriesSupreme Court has not ruled on applicable analysis, so courts have applied standards not necessarily intended for these specific situationsAnd, the OCR/ED compliance framework is different than what applies in federal courts
Available Legal Theories
IDEA—Generally, no money damages, only educational relief for educational harms, and sturdy administrative exhaustion requirementSection 1983premised on violations of Constitutional rights (usually 14thor 5thAmd.)—Difficult to maintain due to pleading standards, inapplicability to disability harassment situationsSection 504/ADA—Requires intentional discrimination, bad faith, or gross misjudgment—Courts now recognize “deliberate indifference” theory for peer-to-peer disability harassment
Available Legal Theories
State law actions(usually tort actions)—Depending on state, likely very limited by governmental immunity laws that shield schools from negligence actions (TX included)Section 1983/Title IX actions—If harassment is also of a sexual natureState law actions against the harassing students—Generally ineffective due to lack of “deep pockets” for monetary recovery
Examples of §1983/14thAmdClaim
Brownv. Kelly, 62 IDELR 46 (M.D.Pa2013)Horrific facts—Middle school student with disabilities is bullied over 3 years, culminating in an attack that left him a paraplegicBully also an IDEA student, with lengthy history of assaultive and bullying behavior, leading to suspensions, detentions, loss of privileges, BIP1983/14thAmd. claim generally does not apply to harms caused by peers, only employees
Brownv. Kelly, 62 IDELR 46 (M.D.Pa. 2013)Exceptions: (1) “special relationship” theory (e.g., prison, institution, foster care), and (2) “state-created danger” by action of school staffBut, parent at most allegesinactionby school, in not separating students (despite requests), better supervising, and expelling bully
Brownv. Cypress-Fairbanks ISD, 59 IDELR 293 (S.D.Tex. 2012)Parent alleges school’s failure to enforce anti-bullying policy led to her son’s suicideBut, she apparently had not told school he hadAsperger’s, and school had no reason to knowThus, she was left only with §1983/14thAmdconstitutional claimIn 5thCircuit, that action works only under a “special relationship” theory, which applies only in jail, institutionalization, or foster care
Brownv. Cypress-Fairbanks ISD, 59 IDELR 293 (S.D.Tex. 2012)Why is this?U.S. Const. is there to protect citizens fromgovernmentabuse, not from other private persons, so claim is not a good fit for peer-to-peer harassment situationsCourt disturbed school has policy assuming duty to respond to harassment, but no legal responsibility to enforce (and, state laws foreclose most negligence suits against schools)
The “Deliberate Indifference” Claim
Supreme Court’sDavisv. Monroeanalysis for school sexual harassment claims transposed to school peer-to-peer disability harassment cases:School awareness of problemConduct creates abusive/hostile environment“Clearly unreasonable” responseAttempt to find a legal claim with better “fit”Some circuits have not recognized (yet?)
The “Deliberate Indifference” Claim
Elements of Claim:Harassed student has disability,Harassment is based on disability,Conduct was so severe or pervasive it altered condition of student’s education and created an abusive educational environment,School knew or should have known of conduct,School was deliberately indifferent to harassment.
General Deliberate Indifference Cases
S.S.v. Eastern Kentucky University, 50 IDELR 91 (6thCir. 2008)6thCircuit appliesDavis “deliberate indifference” claim, noting many District Courts have as wellBut, court reserves possibility of “considering a different standard” in a future case…Here, claim fails—School responded to all incidents (interviews, directions to students, trainings, supervising, separating, mediating, disciplining, calling police and parents)
S.S.v. Eastern Kentucky University, 50 IDELR 91 (6thCir. 2008)Court can’t see what school should have done differently, upholds summary judgment for schoolConcurring judge proposes an alternate standard for review akin to a negligence claim (i.e., did school unreasonably fail to take appropriate prompt corrective action?)—closer to OCR analysis and tougher for schools…
Doev. Big Walnut LSD, 57 IDELR 74 (S.D.Ohio2011)Middleschoolerwith Cognitive Disorder was teased, pushed, punched, insulted, and had food thrown at him, and had nose broken in a fightSchool investigated all reported and known incidents (determined student was a participant in the conduct as well) and disciplined students (also called police)School devised a “safety plan” (apprising teachers, adjusting schedules, counseling), which was later revised to add safeguards
Doev. Big Walnut LSD, 57 IDELR 74 (S.D.Ohio2011)Plan now included early class release, assigning an aide to monitor him in halls/lunch/playground, allowing use of office restroomsDespite plan, some incidents still took placeSchool added social skills instruction, social exercises, close communication with parentsCourt finds weak evidence of disability basis for harassment, none that his education suffered, and none to support deliberate indifference
M.J.v. Marion ISD, 61 IDELR 76 (W.D.Tex. 2013)Student with Bipolar and ADHD was target of verbal and physical harassment (sinus fractured after being punched in face)Lots of conduct took place in Math LabSchool responded with some remedial action, but Math teacher never acted, and IEP team ignored student’s requests to address the issue in IEPCourt finds Math teacher’s alleged inaction could support a deliberate indifference claim, and allegations also supported abusive environment
M.J.v. Marion ISD, 61 IDELR 76 (W.D.Tex. 2013)Court applies Davis “deliberate indifference” analysis although 5thCircuit not clear on viability (a variety of circuits recognize it)But, court also notes that 5thCircuit also recognizes a §504 “gross misjudgment” claim if there is an egregious failure to modify an IEP that is not addressing the problem (Stewartv. Waco,60 IDELR 241 (5thCir. 2013), pending)SeeB.M.v. South Callaway R-II Sch. Dist.(8thCir. 2013)(Also recognizing BG/GM theory)
Was Harassment Disability-Based?
At times, conduct itself shows it is based on student’s disability (calling student “seizure boy,” mimicking seizures, teacher openly questioning his seizure disorder—Gallowayv. Chesapeake Union EVS, 60 IDELR 13(S.D.Ohio2012).See alsoSutherlinv. ISD No. 40 of Nowata Co., 61 IDELR 69 (N.D.Ok. 2013)(Calling student “retard,” “crazy,” “freaky,” “creepy” was reasonably inferred to make reference to social deficits due toAsperger’s)
Was Harassment Disability-Based?
Certain disabilities may render student more the subject to harassment (i.e., students with Autism,Asperger’s, ID, severe LDs, ED)—T.K.v. New York City DOE, 56 IDELR 228 (E.D.N.Y. 2011)For these students, IEP teams can consider goals on coping skills, instruction on reporting harassment, addressing issue as part of social skills instruction, including issue in counseling goals, etc…Court notes Massachusetts law requiring IEP teams to address avoiding/responding to bullying for students with disabilities that render them vulnerable to such conduct
Case decision inT.K.v. New York City DOE, 56 IDELR 228 (E.D.N.Y. 2011)is a virtual compendium of bullying studies and literatureCourt in fact proposes an alternate IDEA denial-of-FAPE analysis in bullying situations—whether school failed to take reasonable steps to prevent bullying that substantially restricted a child’s educational opportunitiesCloser to negligence analysis…Update—2ndCircuit has affirmed the decision on appeal (based on school’s refusal to allow discussion of bullying in IEP team meetings)
Was Hostile Environment Created?
Key Issue—Factors listed in OCR/ED guidance:Degree of adverse effect on educationType, frequency, and duration of conductAge, sex, relationship of studentsNumber of individuals engaging in conductSchool size, location, context of conductOther harassment incidents at school
Was Hostile Environment Created?
Other indications?SeeM.A.v. Meridian Jt. SD No. 2, 60 IDELR 192 (D.Id. 2013)Allegation that student set fire to home in part due to bullying, which in turn led to 18-month incarceration, sufficient to show deprivation of education (at pleading stage, at least)Court notes other relevant facts could include dropping grades, change in demeanor, need for homebound services, hospitalization, self-destructive or suicidal behavior
Did the District Know?
School has aduty to be vigilant, including investigating tips that may lead to discovery of harassmentIf responsible employee with duties under the harassment policy knew or should have known, then the district knewIf theprincipalknew, thendefinitelythe school knew (T.K.v. New York City DOE—Principal refused to allow parents to report bullying of student with autism, although aides knew)
Did the District Know?
Awareness and trainingare key for staff to understand school policies, reporting systems, and message to concerned parentsDuty to investigate is triggered by knowledge of harassment, not just when a student or parent reports harassmentFactors determining urgency of investigationinclude nature of info, seriousness, specificity of info, source, ability to identify victim, cooperation from victim
Investigations—prompt, thorough, and impartialLeads generated initially can lead to additional info (i.e., such as names of witnesses that should be interviewed)Campus administrators should be trained on documenting investigations and results
Did the District Respond Appropriately?
OCR/ED Guidance states that response must (1) take prompt and effectivesteps to end conduct, (2)eliminate hostile environment and its effects, and (3)prevent recurrenceof conductOCR envisions amulti-faceted response, addressing the harasser, the victim, and the campus and its policies
Did the District Respond Appropriately?
OCR/ED also envision a key role forIEP teams and §504 committees—reviewing and revising IEPs/504 plans to address impact of harassment on FAPE, and prevent recurrence of conductRequires coordination with campus administration, monitoring of investigation findings, FAPE-based data gathering, determining what response items belong in IEPDiscussion Point:Does every piece of campus response belong in IEP? If not, what does?
Did the District Respond Appropriately?
Discussion Point:What if the IDEA student is responding inappropriately to the bullying behavior?...Key Point:Response is not solely an administrative function, but also IEP team responsibility
IEP Team Response Areas for ASD Students:CounselingRevision to BIPChanges to social skills programAddressing attendance problemsAddressing declining performanceTransportationBathroom arrangementsParent issuesAide supervision
Did the District Respond Appropriately?
C.L.v. Leander ISD, 62 IDELR 174 (W.D.Tex. 2013)Parents alleged legally-blind boy was sexually assaulted in restroom in 4thgrade, after continuous prior bullyingPolice and school investigation concluded that students pulled boy’s pants to his anklesAside from another restroom incident in K, there were only some incidents of teasing and differences with other students
Did the District Respond Appropriately?
C.L.v. Leander ISD, 62 IDELR 174 (W.D.Tex. 2013)Court found evidence did not support allegation of “continuous harassment”School responded “quickly, appropriately, and professionally”Responses included discipline of harassers, calls to their parents, meetings with victim and parents, class discussions, and otherwise trying to quash any bullying of student
M.A.v. Meridian Jt. Sch. Dist. No. 2, 60 IDELR 192 (D.Id. 2013)Reviews circuit court opinions on deliberate indifferenceKey: School knowledge of harm and failure to actTest is not whether response is ultimately ineffective, but whether it is clearly unreasonableand subjects student to further harassment
Kowalskiv. Berkeley Co.Schs., 111 LRP 51060 (4thCir. 2011)—Cyber-bullying caseSenior who created a “slut herpes” web page to harass a particular girl sued for violation of Free Speech after being disciplinedStudent argued her speech took place off campus and was not school-relatedCourt disagrees, finding thatTinkercase balances students’ speech rights with schools’ needs to maintain proper discipline and environment conducive to learning
Kowalskiv. Berkeley Co.Schs., 111 LRP 51060 (4thCir. 2011)While student “pushed her computer’s keys in her home,” she knew the web page would reach the school and have impact at school (in fact, it was specifically meant to)Schools have a right to restrict student speech if it materially interferes with proper discipline in the operation of the schoolAnd, court noted OCR/ED letters indicating bullying as a major concern in schools
Kowalskiv. Berkeley Co.Schs., 111 LRP 51060 (4thCir. 2011)“School administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning”In closing, court strongly admonishes student, calling her conduct “particularly mean-spirited and hateful” and questioning the lawsuit
Kowalskiv. Berkeley Co.Schs., 111 LRP 51060 (4thCir. 2011)Policy lesson—School anti-harassment policies may need to include notice that certain off-campus “e-conduct” may lead todisciplinary action…

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Bullying of Students with Disabilities_ New Guidance, Case ...