Tuesday, August 5, 2014

2014 Iowa State Bar Association Juvenile Law Conference Presentation on Bullying and Students with Disabilities.

This is the text of the handout from my presentation.

Students with Disabilities and Bullying
Mary M. Richard

          When I was around seven years old, while walking home from school in Dallas Center, Iowa, a “big kid” and his buddies followed me on their bikes, calling out, Little girl, ohhh little girrrrlll.  As I approached the Hall & McDonald Law Office, they got off their bikes and the “big kid” began yanking my ponytail. I shouted at him to stop it.  Much to the boys’ surprise, out of the law office bolted my father, John McDonald, who, at that time, was the Dallas County Attorney and a member of the local School Board.  I was never bullied again.  Every child who is bullied should be so lucky. 

1.       Iowa’s Anti-bullying, Anti-harassment Statute

          In 2007, the Iowa General Assembly passed legislation requiring all school districts and accredited nonpublic schools to have anti-harassment/anti-bullying policies, make bully complaint forms available to victims, put investigative procedures into place, and collect and report data from those reports to the Iowa DOE.[1]  The statute defines  harassment and bullying as:

[A]ny electronic, written, verbal, or physical act or conduct toward a student which is based on the student's actual or perceived age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status, and which creates an objectively hostile school environment that meets one or more of the following conditions:
(1)  Places the student in reasonable fear of harm to the student's person or property.
(2)  Has a substantially detrimental effect on the student's physical or mental health.
(3)  Has the effect of substantially interfering with a student's academic performance.
(4)  Has the effect of substantially interfering with the student's ability to participate in or benefit from the services, activities, or privileges provided by a school.

            During the 2011-2012 school year, 10,797 bullying complaints were filed by students, parents, and school personnel.[2] The following table summarizes the complaints by bullying category and consequences to perpetrators.[3]

Founded



 No conse-quences
Founded
One or more full days of in-school suspen-sion
Founded





Detention
Founded


>10 days out of school suspension or expulsion
Founded

Less than or equal to 10 days out-of-school suspension
Other





Unfounded
Conse-quences under another school policy
Unfound-ed




Total


Physical Attributes
644
728
939
18
545
306
576
1,227
4,983
Real or
Perceived
Sexual Orientation
157
155
220
5
144
84
78
222
1,065
Race/
Ethnicity
53
105
131
1
73
46
52
90
551
Other
444
456
677
14
403
696
647
861
4,198
TOTAL
1298
1444
1967
38
1165
1132
1353
2,400
10,797

            Although this summary does not identify how many of the complaints involved students with disabilities, there should be no doubt that the students involved in these complaints included students with disabilities.

2.       Research on Students with Disabilities and Bullying
            Students with disabilities are more frequently bullied than their nondisabled peers.[4]  Researchers investigating bullying in U.S. schools have consistently found that students with a disability, whether visible or nonvisible, are bullied more frequently than their nondisabled peers.[5] Students with disabilities that cause significant social skills deficits are at the greatest risk for bullying.[6]  One study found that four factors are predictive of a student being bullied:  (1) receiving extra help in school; (2) being alone at recess; (3) having fewer than two friends; and 4) being male.[7]  Students with disabilities receive extra help in school, and are often less popular and have fewer friends.[8]  A study of students with learning disabilities found that they were threatened, assaulted, and had their possessions taken away from them more often than nondisabled students.[9]   

          Bullying increases the struggles peer rejection and loneliness of many students with disabilities, and increases the likelihood they will become bullies themselves.[10]  Some disabilities give rise to behaviors (e.g., impulsivity, aggression) that are characteristic of nondisabled students who bully others.[11]  Students with psychiatric and neurobiological disabilities characterized by impulsive and aggressive behaviors indicate that these students are more prone to use aggressive behaviors in response to victimization.[12]  

3.       The Legal Landscape:  Rocky Terrain

·         Iowa’s anti-bullying statute has given many parents false hope that they can use the law to compel their school district to take specific steps to end the bullying of their children, however it contains no right of private action.

·         Iowa’s Municipal Tort Claims Act[13] often immunizes teachers and administrators from parental claims that they were negligent in failing to protect students against bullying, or put an end to the bullying.

·         Neither the Individuals with Disabilities Education Act (IDEA),[14] Section 504 of the Rehabilitation Act of 1973,[15] nor Title II of the Americans with Disabilities Act[16] authorize claims against school officials in their individual capacities.[17]

·         Iowa’s Rules of Special Education don’t require that when a student has a disability that affects social skills development, or is otherwise vulnerable to disability-related bullying, harassment or teasing, the IEP team proactively set out services in the IEP, to teach the skills and proficiencies the student needs to assist him or her in avoiding and responding to bullying, harassment or teasing, nor are schools  required to take proactive steps to protect students with disabilities from harassment by classmates.[18]

·         Generally speaking, before a district court may exercise subject matter jurisdiction over an IDEA case, parents must first exhaust their administrative remedies.[19]

·         Money damages are not available under the IDEA.[20]

·         When bullying has caused a student with a disability serious and long-lasting injury, state and federal laws limit their means of redress, and the courts have set a high bar for recovery.

·         Even if a parent obtains a legal remedy in the courts, it may come long after the harm has been done.

4.       The Legal Landscape:  Tillable Acreage

·         In Tinker v. Des Moines Independent School District, the U.S. Supreme Court stated that students have a right "be secure and to be let alone" in school.[21]

·         With respect to whether bullying is an exercise of free speech, the Tinker Court ruled that the proper test is whether the student's expression created a material or substantial disruption of school work or infringed on a student's right to be let alone.[22]

·         The Third Circuit has announced: "there is no constitutional right to be a bully" and "Intimidation of one student by another, including intimidation by name calling, is the kind of behavior school authorities are expected to control or prevent."[23]

·         The Ninth Circuit has stated:  "Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses. As Tinker clearly states, students have the right to be secure and to be let alone. Being secure involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society."[24]

·         Several U.S. district and circuit courts have held that bullying of students with disabilities may amount to a failure to provide a free and appropriate education (FAPE).[25]

·         In T.K. v. New York City Department of Education, ruling in favor of parents whose daughter with learning disabilities had been bullied, the federal district court announced: “The rule to be applied is as follows: 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,”[26]

·         For well over a decade the U.S. Department of Education has been advising schools of their obligations, and possible liability under federal laws for disability harassment. [27]

·         In cases where harassment is known to school staff, the school is deemed to be on notice of the conduct and is required to investigate all related incidents that, taken together, may constitute a hostile environment.[28] 

·         Bullying conduct need not be outrageous to constitute a deprivation of rights of a disabled student; it is not necessary to show that it prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education.[29]

·         Where a student is abused repeatedly and suffers other indignities, and the school does nothing to discipline the offending students despite its knowledge of their actions, the student has been deprived of substantial educational opportunities.[30]

·         School districts violate federal civil rights statutes enforced by the U.S. Department of Education, when peer harassment creates a hostile environment and the harassment is tolerated, not adequately addressed, or ignored by school employees.[31]

·         “When disability harassment limits or denies a student's ability to participate in or benefit from an educational institution's programs or activities, the institution must respond effectively. Where the institution learns that disability harassment may have occurred, the institution must investigate the incident promptly and respond appropriately."[32]

·         “Conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of rights of a disabled student. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment.[33]  Where a student is verbally abused repeatedly and suffers other indignities such as having his property taken or is struck by his fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities.”[34]

          When parents of a student with an IEP believe that bullying is interfering with their student’s access to a free and appropriate education (FAPE)[35] pursuant to the IDEA, they should file a bully complaint with the school district, and call a meeting of the student’s IEP team.  If are not satisfied the responses, if any, they may receive, the IDEA’s procedural safeguards[36] provide them with the right to seek relief in the form of corrective action by requesting special education mediation[37] and/or a due process hearing.[38] 
          On the other hand, when parents of a student with an IEP are advised by school personnel that their child has engaged in bullying behavior, the parent should probably  request a meeting of the IEP team to discuss the behavior.  The next section of this syllabus applies when parents are notified that their child has been identified as a bully in a bullying complaint and may face suspension or expulsion.



[1] See Iowa Code § 280.28(2).
[2] Iowa Department of Education, Planning, Research, Development and Evaluation. Anti-Bullying by District (Public and Nonpublic) by Consequence, State Summary 2011-2012.
[3] Id.
[4] See Young, J., Neeman, A., & Gelser, S. Bullying and Students With Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011), http://www.stop bullying.gov/references/whitehouse conference/index.html; Glew, G.M. (2005). Bullying Psychological Adjustment, and Academic Performance in Elementary School. Archives of Pediatric and Adolescent Med., 159, 1026, 1026; Secunda, P.M. (2005). At the Crossroads of Title IX and a New “IDEA”: Why Bullying Need Not Be A Normal Part of Growing Up for Special Education Children, 12 Duke J. Gender L. & Pol'y 1, 4; Carter, B.C. & Spencer, V. G., (2006).The Fear Factor and Students With Disabilities. Int'l J. of Special Educ., 21, 12-21.
[5] See Young, J., Ne'eman, J., & Gelser, S. Bullying and Students With Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011).
[6] See Glew, G.M. (2005). Bullying Psychological Adjustment, and Academic Performance in Elementary School. Archives of Pediatric and Adolescent Med.159, 1026, 1026; Weber, M.C. (2002). Disability Harassment in the Public Schools, 43 Wm. & Mary L. Rev. 1079, 1090; Snyder, J. (2003). Observed Peer Victimization During Early Elementary School: Continuity, Growth, and Relation to Risk for Child Antisocial Depressive Behavior, Child Dev., 74, 1881, 1885.
[7] Id., See Carter, B.C. & Spencer, V. G., (2006).The Fear Factor and Students with Disabilities. Int'l J. of Special Educ., 21, 14.
[8] See Carter, B.C. & Spencer, V. G., (2006).The Fear Factor and Students With Disabilities. Int'l J. of Special Educ., 21, 12-21; Young, J., Ne'eman, J., & Gelser, S. Bullying and Students with Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011) (stating that 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.).
[9] Id., See Carter, B.C. & Spencer, V. G., (2006).The Fear Factor and Students with Disabilities. Int'l J. of Special Educ., 21, 18.
[10] See Carter, B.C. & Spencer, V. G., (2006).The Fear Factor and Students with Disabilities. Int'l J. of Special Educ., 21, 12-21; S. M., Espelage, D. L., Vaillancourt, T., & Hymel, S. (2010). What can be done about school bullying? Linking research to educational practice. Educational Researcher, 39(1), 38-47; Ne'eman, J., & Gelser, S. Bullying and Students With Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011);
Swearer, S.M. & Espelage, D.L. & Napolitano, S.A. (2010). Bullying Prevention and Intervention. Francis: New York; Nansel, T. R. (2004). Cross-national Consistency in the Relationship Between Bullying Behaviors and Psychosocial Adjustment, Archive of Pediatric and Adolescent Med. 730, 733-35; Van Cleave, J., & Davis, M. M. (2006). Bullying and peer victimization among children with special health care needs. Pediatrics, 118, 1,212-1,219.
[10] See Ne'eman, J., & Gelser, S. Bullying and Students With Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011); Van Cleave, J., & Davis, M. M. (2006). Bullying and peer victimization among children with special health care needs. Pediatrics, 118, 1,212-1,219.
[11] See Van Cleave, J., & Davis, M. M. (2006). Bullying and peer victimization among children with special health care needs. Pediatrics, 118, 1,212-1,219.
[12] See Kumpulainen, K., Räsänen, E., & Puura, K. (2001). Psychiatric disorders and the use of mental health services among children involved in bullying. Aggressive Behavior, 27, 102-110.; Van Cleave, J., & Davis, M. M. (2006). Bullying and peer victimization among children with special health care needs. Pediatrics, 118, 1,212-1,219; Kaukiainen, A., Salmivalli, C., Lagerspetz, K., Tamminen, M., Vauras, M., Maki, H. (2002). Learning difficulties, social intelligence, and self-concept: Connections to bully-victim problems. Scandinavian Journal of Psychology, 43, 269-278; Unnever, J. D., & Cornell, D. G. (2003). Bullying, self-control, and ADHD. Journal of Interpersonal Violence, 18, 129-147; Whitney, I., Smith, P. K., &Thompson, D. (1994). Bullying and children with special educational needs. In P. K. Smith & S. Sharp (Eds.), School Bullying: Insights and Perspectives, 213-240).
[13] See Iowa Code § 670.4(3). But see, Doe v. Cedar Rapids Cmty. Sch. Dist., 652 N.W.2d 439, 446 (Iowa 2002) (“The School had an affirmative duty to take all reasonable steps to protect its students. In protecting its children, a school must exercise the same care toward them ‘as a parent of ordinary prudence would observe in comparable circumstances.’" (citations omitted)).
[14] 20 U.S.C. 1400 et seq.
[15] 29 U.S.C. § 701 et seq.
[16] 42 U.S.C. §§ 12131–12165.
[17] See Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999), cert. dismissed, 529 U.S. 1001, 120 S. Ct. 1265, 146 L. Ed. 2d 215 (2000).
[18] Iowa has not joined the states that have enacted legislation recognizing that IEPs should take into account that students with disabilities are at high risk for being bullied. See e.g., Mass. Senate No. 2404 (2010), codified at § 71B.3 of the General Laws of the Commonwealth of Massachusetts (stating: “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 and proficiencies needed to avoid and respond to bullying, harassment or teasing.”).
[19] See 20 U.S.C. §1415(f). A few courts have held that under the circumstances of specific bullying cases, the parent did not need to exhaust administrative remedies before taking their case to district court. See, e.g., Blanchard v. Morton Sch. Dist. 420 F.3d 918 (9th Cir. 2005).
[20] See Miener v. State of Missouri, 673 F.2d 969 (8th Cir.).
[21] 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969).
[22] 393 U.S. at 508, 512-13.
[23] Sypniewski v. Warren Hills Reg.l Bd. of Educ., 307 F.3d 243, 264 (3d Cir. 2002). 
[24] Internal quotations and citation omitted. Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1178 (9th Cir. 2006).
[25] See e.g., T.K v. New York City Department of Education, 779 F.Supp.2d 289 (E.D.N.Y, 2011); Shore Regional High Sch Bd. of Educ v. P.S. 421, 381 F.3d 194, (3d Cir. 2004).
[26] T.K. v. New York City Dep't of Educ., 779 F. Supp. 2d 289, 316 (E.D.N.Y. 2011). (In which the court noted:  “[t]his standard does not impose a new obligation on schools. For at least ten years the Department of Education has informed schools that they are legally obligated to comply with it.”).
[27] U.S. Dep't of Educ. Bullying Law and Policy Memo, (Dec. 16, 2010); 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). ("Where the institution learns that disability harassment may have occurred, the institution must investigate the incident(s) promptly and respond appropriately.")
[28] See U. S. Dep't of Educ., Office of Civil Rights, Dear Colleague Letter: Bullying and Harassment, (Oct. 26, 2010). (“A school is responsible for addressing harassment incidents about which it knows or reasonably should have known. In some situations, harassment may be in plain sight, widespread or well-known to students and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, on a school bus, or through graffiti in public areas. In these cases, the obvious signs of the harassment are sufficient to put the school on notice. In other situations, the school may become aware of misconduct, triggering an investigation that could lead to the discovery of additional incidents that, taken together, may constitute a hostile environment.”).
[29] See T.K. v. New York City Department of Education, 779 F.Supp.2d 289 (E.D.N.Y, 2011) (in which the parents of a 12-year-old girl with learning disabilities brought suit against the New York City Department of Education (NYCDOE), alleging that its lack of response to their repeated communications about the bullying, deprived their daughter of the right to a FAPE because the bullying caused their daughter to resist attending school, harmed her academic performance, and damaged her emotional well-being. The NYCDOE claimed that she was progressing academically and was therefore not adversely affected by bullying.  However, the federal district court found that the student had a right to be protected against abuse at school, that there was enough evidence to conclude that she was bullied, that the school knew about it and did not take reasonable steps to address the bullying, and that the student's educational benefits were adversely affected as a result of the bullying).
[30] Id.
[31] U. S. Dep't of Educ., Office of Civil Rights, Dear Colleague Letter: Bullying and Harassment, at 2 (Oct. 26, 2010).
(reminding schools that student misconduct that falls under the school’s anti bullying policy also may trigger the school’s responsibilities under one or more of the federal anti-discrimination laws enforced by the Department’s Office for Civil Rights that protect students from harassment by school employees, other students, and third parties]; see also U.S. Dep't of Educ. Bullying Law and Policy Memo, Dec. 16, 2010; Reminder of Responsibility Under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act, July 25, 2000.
[31] 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).
[32] 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).
[33] Id.
[34] Id.
[35] See 20 U.S. Code § 1412 and § 1415.
[36] See 20 U.S.C. § 1415.
[37] See 281 IAC § 41.1002.
[38] See 281 IAC § 41.508.

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