When Can A School District Exit a Child from Special Education?

The IDEA requires that states receiving federal IDEA funds provide a FAPE to all public school children with disabilities residing in the state through age 21. 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101. This requirement ends when: 

1.  The student has exceeded the age of eligibility for FAPE under state law. 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101; Iowa Admin. Code r. 281–41.102(1)(a). In Iowa, this is until the student's 21st birthday or through the end of the school year in which the student turns 21. 

2.  The student no longer meets the legal definition of a “child with a disability.” 34 C.F.R. § 300.8(a); 34 C.F.R. § 300.306(b); Iowa Admin. Code r. 281—41.305(1)(b)(1).

3.  The student’s parents or guardians revoke consent in writing for the continued provision of special education and related services. 34 C.F.R. § 300.300(b)(4); Iowa Admin. Code r. 281–41.300.2(d).

4.   The student has graduated from high school with a regular high school diploma or higher diploma, but a regular high school diploma does not include a recognized equivalent of a diploma, such as a general equivalency diploma, certificate of completion, certificate of attendance, or any similar lesser credential. 34 C.F.R. § 300.102(a)(3)(iv); Iowa Admin. Code r. 281–41.102(1)(c)(4).  

A Regular High School Diploma Cannot Be Based on Coursework Aligned with Iowa’s Alternative Academic Achievement Standards and Alternative Assessment

 In the past year, I've responded to several calls from parents who were struggling to respond to challenges from their child’s private and Medicaid insurers, asking the parents how their children, who the parents and school district said had substantially limited expressive and receptive communication skills and functioned at the level of a two-to-three-year old, had earned regular high school diplomas. 

Calls like this concern me because students whose high school instruction was entirely or mostly based on Iowa’s Essential Elements are not eligible to receive a regular high school diploma.  

Under state and federal law, a regular high school diploma may not be based on high school credits in courses based on Iowa’s Essential Elements for Students with the Most Significant Cognitive Disabilities. 34 C.F.R. § 300.102(a)(3)(iv); Iowa Admin. Code r. 281–41.102(1)(c)(4). A regular high school diploma is the high school diploma (or a higher form of diploma) awarded to the vast majority of graduating students, and doesn’t include any other form of diploma, GED, certificate of completion, certificate of attendance, or any similar lesser credential. 34 C.F.R. § 300.102(a)(3)(iv); Iowa Admin. Code r. 281–41.102(1)(c)(4).

The reasons state and federal law do not permit a regular high school diploma to be based on high school courses aligned with alternate academic achievement standards include:

1. Preserving the Integrity and Value of the High School Diploma. The legal requirement that a regular diploma must be aligned with a state's regular academic achievement standards prevents dilution of the diploma’s value in certifying to employers, postsecondary institutions, and others that a graduate has met the state’s academic requirements. 34 C.F.R. § 300.102; K.L. v. R.I. Bd. of Educ., 907 F.3d 639, 652 (1st Cir. 2018).

2. Preventing Premature Termination of Special Education. The IDEA requires that students with disabilities receive a FAPE until they either age out or graduate with a regular high school diploma. If a regular diploma could be awarded based on alternate, less rigorous academic standards, school districts could use such diplomas to terminate special education services before students with disabilities have aged out of special education eligibility at age 21. See e.g., K.L. at 652.

3. Ensuring Access to the General Curriculum. Requiring that alternate academic achievement standards are based on the state’s regular academic achievement standards ensures access of children with significant cognitive disabilities to the general curriculum (34 C.F.R. 300.39(b)(3)(ii); Iowa Admin. Code. r. 281-41.39(c)(3)(ii)) and to prepare for further education, employment, and independent living. 20 U.S.C. § 1400(d)(1)(A).

4. Ensuring Transparency and Informed Decision-Making. The IDEA and the Every Student Succeeds Act require that IEP teams and parents be informed about the implications of taking courses based on alternative academic achievement standards and alternate assessments. 34 C.F.R. § 300.160(3); 34 C.F.R. § 200.6; Iowa Admin. Code r. 281-41.160.

Special Education, Long-Term Suspensions, and Transportation

 I am writing today because during the current school year, I've had an unusual number of cases in which the parents had the same special education issue. 

• The parents in each case have a child with an IEP that includes behavior goals.

• The parents live and work in a town located 15 or more miles from the school building is located to and from which their children ride the school bus.  

• Between late September and mid-December 2023, each of the children was suspended from school for the remainder of the school year after making a statement at school that was regarded as a threat by their school district. 

• All of the children were evaluated and none of them were found to be a danger to themselves or others.

After the children missed ten days of school, their suspensions became a  “change of placement,” requiring their school districts to provide them with services for the rest of the suspension period, to enable them to continue to participate in the general education curriculum and make progress toward their IEP goals. 281-41.530(4)(d).

• Each school district provided those services at a public school or education center located 19 to 36 miles away from the child’s home. 

• To provide these children with a FAPE during the suspension period, their IEP teams should have added transportation as a related service to their IEPs. 281-41.34(1), or, contingent on the parent's willingness to provide the transportation, the school district should have compensated the parent for providing the transportation.

• However, when the parents asked their children’s IEP teams to add this to their IEPs,  school administrators said their school districts do not provide transportation for suspended students, and the IEP teams were unwilling to add transportation to the IEPs.

Until after those parents contacted me and their matters were resolved, every school day they were making two round-trip home-to-facility drives (morning and afternoon).

• Depending on the specific home-to-facility distance from their homes to the facilities, the parents were driving distances ranging from 300 to 700 miles each week. 

• Using the 2024 IRS mileage rate of $0.67, the parents' weekly expenses for those trips ranged from $201.00 to $467.00.

Each time I ponder these cases, I wonder -

• why did the school districts deny transportation when special education law so clearly requires them to provide transportation as a related service when due to the program's location, the children need transportation to access those services? 281-41.412(1), and 

• why didn't the school district and area education agency professionals on the children's IEP teams recognize that denying transportation as a related service under these circumstances was inconsistent with providing the children with a Free Appropriate Public Education?

 

When a Child’s IEP Team Proposes an Out-of-District Placement

 [Note: This post does not address cases in which a parent initiates an out-of-district placement or another public agency initiates such a placement.]

Unless a child’s IEP requires another arrangement, the child enrolled in public school must be educated in the school the child would attend if the child did not have a disability. A child with an IEP may not be removed from the resident school district solely because of modifications needed in the general education curriculum. See 281 I.A.C. 41.116(1). 

“Placement” refers to the child's services on the continuum of placements as determined by the IEP team. “Location” refers to the physical place the child receives those services. A local school district cannot override an IEP team’s placement determination. However, only the resident school district may determine the specific out-of-district “location” (classroom, building, or facility). The choice of the location of the services is a school district decision as long as the location selected is consistent with the IEP team’s placement determination. See Letter to Trigg, 50 IDELR 48 (OSEP 2007).

When an IEP team considers placing a child in an out-of-district school, it must address issues including the least restrictive environment and any potential harmful effects on the child or on the quality of services the child needs. An out-of-district placement must have an “educationally relevant purpose” based on the child’s IEP, be located as close as possible to the child’s home, and be determined at least annually. See 281 I.A.C. 41.116. An “educationally relevant purpose" is one required by the IEP to address the child’s unique disability-related needs that interfere with the child’s ability to benefit from the child’s education in the resident school district. For example, if a child with deafness requires a sign language interpreter and one cannot be obtained by the resident school district, placement in an out-of-school district that can provide the interpreter is an “educationally relevant purpose.” In the case of a child whose emotional-behavioral issues impeded the child from benefitting from education in the child's school district of residence and the child requires education in a residential treatment school, that placement would be an “educationally relevant purpose,” rather than placement for treatment. See, e.g., Iowa Admin. Code r 281—41.116; see also C.B. v. Special Sch. Dist., 636 F.3d 981 (8th Cir. 2011).

Out-of-district placement must be at no cost to the child’s parents. When the child lives at home, “at no cost” means the costs of education and transportation. In the case of a residential placement, it means the costs of education, room, board, and transportation (but does not include medical services). See 281 I.A.C. 41.104. The resident district is obligated to pay the actual cost of the special education instructional program. See 281 I.A.C. 41.907(2). If the child’s IEP team recommends a residential placement, the child’s school district and area education agency of residence may not seek the costs of room and board from the child’s parents. See Letter to Hornbeck, 211 IDELR 65 (OSEP 1978). However, with parental consent, they may seek reimbursement from the parent’s public or private insurance. However, a parent’s refusal to provide consent cannot be used to delay or deny a free appropriate public education (“FAPE”). See  281 I.A.C. 41.154. 20 U.S.C. § 1412(a)(5)(B). Federal law prohibits a public school district and AEA from refusing, based on actual or perceived financial inability to pay, placement of a child with an IEP who requires an out-of-district placement to receive a FAPE.

Out-of-district placements are subject to the terms of a written tuition contract that: 

• must ensure that all the requirements of the child’s IEP will be met, 

• require periodic reports to ensure the adequacy and appropriateness of the child’s special education and related services provided, and

• conditions payments on delivery of the child’s special education and related services as required by the child’s IEP in compliance with special education law.  See 281 I.A.C. 41.903(2).

Before the IEP team establishes a child’s out-of-district placement, it must answer the following questions:

• What accommodations, modifications, and adaptations does the child require to be successful in a general education environment?

• Why is it not possible for these accommodations, modifications, and adaptations to be provided within the general education environment?

• What supports are needed to assist the teacher and other personnel in providing these

• accommodations, modifications, and adaptations?

• How will receipt of special education services and activities in the general education environment impact the child?

• How will the provision of special education services and activities in the general education environment impact other students?   See 281 I.A.C. 41.116(4)(a). 

If all or some of the child’s special education would be provided in a special school, the child’s IEP must also address the following additional questions concerning that placement:

• What are the reasons the eligible individual cannot be provided an education program in an integrated school setting?

• What supplementary aids and supports are needed to support the eligible individual in the special education program?

• Why is it not possible for these aids and supports to be provided in an integrated setting?

• What is the continuum of placements and services available for the eligible individual?

See 281 I.A.C. 41.116(4)(b).

Compensatory Education

When a school district fails to provide a child with a free and appropriate education (FAPE), the IDEA doesn’t provide for recovery of money damages. However, it allows for reimbursement through the provision of compensatory educational services. See Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2020).

Compensatory Education "compensates" the child's educational deprivation (loss of FAPE) resulting from a school district's failure to provide special education services. When those services are not provided or the IEP is not appropriate for the child, the parent may assert a claim for compensatory education.

Whether the school district provides the child a FAPE going forward is irrelevant to an award of compensatory education. See Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2020). An award of compensatory education is backward-looking in nature; its purpose is restorative and intended to put the child in the education position the child would have been had the school district appropriately provided a FAPE. Id.

Example 1: A child’s IEP stated that each week she would receive 45 minutes of specially designed instruction (SDI) in social skills. A year later, the child’s parents found out that the SDI was never provided. The parents filed a complaint and were awarded an equivalent number of hours of compensatory education to make up for the child’s educational loss. 

Example 2: A school district failed to identify a child as eligible for special education. His parents paid the cost of private tutoring to remediate his academic deficits and filed a complaint. They were awarded reimbursement for the cost of tutoring.* The reimbursement was calculated according to the actual costs of tutoring. 

On June 30, 2020, the U.S. Eighth Circuit Court of Appeals issued a decision upholding the due process hearing award of compensatory education. Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1076 (8th Cir. 2020). Under the facts of that case, the school district knew the child was missing significant time due to mental health issues and was receiving treatment at a psychiatric facility. Id. However, the district did not refer her for a special education evaluation because she was of above-average intelligence. The Eighth Circuit, finding that the school district violated its IDEA child-find obligation since the student's eligibility for special education was not foreclosed by her intellect, the Court reinstated the due process award (1) finding that the student eligible for special education and related services; (2) requiring the school district to develop an IEP providing the child with a FAPE; (3) requiring the school district o conduct quarterly meetings to consider changes to the IEP; (4) requiring the school district to reimburse the parents for the past diagnostic and educational expenses they incurred; and (5) requiring the school district to pay for compensatory services in the form of private tutoring and the cost of attendance of the Student's psychiatrist and private tutor at IEP meetings.  Id. 

* In Iowa, one of the duties of the Iowa Department of Education’s School Budget Review Committee may grant supplemental aid to a school district from any funds appropriated to the Department of Education to address any unusual need for additional funds for special education or compensatory education programs. See Iowa Code§ 257.31(5)(h).

The Long and Winding to School-Supported Private School Placement

I receive a number of calls from parents of children with IEPs asking how they can require their child’s school district to pay the tuition and related costs for their child's placement in an out–of–state private school. 

I explain that unless a school district agrees to the placement and to payment of the tuition and fees, a parent will have a long, tough road ahead. An example of this complex terrain is demonstrated by the following abbreviated history of the Steckelberg v. Chamberlain School District case.  

Background:

The Steckelberg's son, AMS, was a special education student in a South Dakota public school high school. He had several diagnoses, including autoimmune disorder, PANS/PANDA, Obsessive Compulsive Disorder, Tourette's Syndrome, and random tic disorders. His symptoms prevented him from sitting still in the classroom, paying attention to his teachers, and learning the information being taught. It was difficult for AMS to control his challenging behaviors which included shouting, swearing, not following rules, cheating, and sexual behaviors. 

2018:  

• In February, a behavior analyst hired by the school district who had performed a Functional Behavior Assessment of AMS, developed and gave to the school district a behavior support plan. However, it was never shared with AMS's parents, teachers, or the IEP team, and was never implemented.
• In the summer, before AMS started his junior year, he had a sexually related incident with a six-year-old girl that resulted in criminal charges.
• On December 14, the principal sent an email to the parents stating, "I'm at the point where I don't think being at Chamberlain High School is the right setting for [AMS]." 

2019: 

• The IEP team met on January 25 with the parents in attendance. During the meeting, the parents agreed to home placement of AMS, believing that AMS would receive behavioral and educational supports and services at home. However, the School District did not provide those supports and services, and the home placement was a disaster.
• In April, the parents gave to the School District information about some possible out-of-state placements for AMS that they had located. Their list included the Kaizen Academy, a residential treatment facility in Utah. The School District contacted Kaizen to see if AMS might be a fit for that facility. The District didn't pursue the placement when it learned that Medicaid would not pay any portion of the costs associated with AMS's attendance at Kaizen.
• On August 26, although neither Medicaid nor the School District was willing to pay any portion of the costs for educational and therapeutic services, room, board, or transportation, the parents enrolled AMS at Kaizen Academy.
• On August 30, the parents filed a due process complaint with the South Dakota Department of Education, alleging that the school district had denied AMS a FAPE and that his placement at the Kaizen Academy for therapy and education should be paid for by the School District under the Individuals with Disabilities in Education.*

2021: 

• On July 8, the hearing officer ruled on the parents' due process complaint, likening AMS's circumstances to those of the special education student in S.B. v. Murfreesboro City Sch., 2016 U.S. Dist. LEXIS 31675, 2016 WL 927441 (M.D. Tenn. March 11, 2016), in which the district court found that the student's educational difficulties could not be separated from his emotional and behavioral problems, and that the residential placement was needed for the student to benefit from special education. The hearing officer in the Steckelberg parents' due process case ruled that the School District failed to offer AMS a free appropriate public education ("FAPE"), that the private placement at Kaizen Academy was proper, and that the School District was responsible for reimbursing the parents for AMS's private tuition and travel expenses. 
• On August 6, the School District appealed the hearing officer's decision to the South Dakota State District Court. 
• On August 23, the parents filed a motion to remove the case from state court to the US District Court for the Southern District of South Dakota.

2022:  

• On January 18, the US District Court for the Southern District of South Dakota found in favor of the parents' request for the case to be removed from state to federal court. Steckelberg v. Chamberlain Sch. Dist., No. 4:21-CV-4147-LLP, 2022 U.S. Dist. LEXIS 10294 (D.S.D. Jan. 18, 2022).
• On the same day, it affirmed the hearing officer's due process decision. Steckelberg v. Chamberlain Sch. Dist., 77 F.4th 1167 (8th Cir. 2023).
• AMS graduated from high school at Kaisen Academy.

2023:  

• The School District appealed the federal district court decision to the Eighth Circuit Court of Appeals.
• On August 15, the Eighth Circuit issued a decision upholding the due process hearing decision and the federal district court ruling that both found that the School District failed to provide AMS with a FAPE and awarded reimbursement to the parents of his private school tuition and related costs. See Steckelberg v. Chamberlain Sch. Dist., 77 F.4th 1167 (8th Cir. 2023).

*The IDEA (20 U.S.C. § 1412(a)(10)(C)(i)) bars private school tuition reimbursement when a school district makes a free appropriate public education (FAPE) available by correctly identifying a child as having a disability and proposing an IEP adequate to meet the child's needs. Additionally, 20 U.S.C. § 1412(a)(10)(C)(iii) covers the circumstances under which the amount of reimbursement for private school tuition described in § 1412(a)(10)(C)(ii) may be reduced or denied by a public educational entity, such as when a parent fails to give 10 days' notice before removing a child from public school or refuses to make a child available for evaluation, and § 1412(a)(10)(C)(iv) lists circumstances in which a parent's failure to give notice may or must be excused. 

The Instructional Methods Blues

This week a parent called me to ask if it is true that the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.), does not require schools to provide instruction that is better suited to addressing their child’s learning needs because schools are only obligated to provide instruction is reasonably calculated to provide their child an educational benefit in light of the child's circumstances. 

The parent explained that he and a university reading expert had just attended his son's IEP meeting. They had presented a report of testing which documented that if the reading program currently used for his son’s specially designed instruction (SDI) were changed to a different reading program, this would more rapidly close the discrepancy between his son’s reading rate and comprehension skills and those of his non-disabled peers. Reading from his meeting notes, the parent said that after their presentation, the other IEP team members were silent and looked toward the AEA consultant who was chairing the meeting. The consultant replied that although the child would probably learn to read faster with better comprehension if the school changed to the recommended reading program, the school didn’t need to make the change because the child’s reading goal aim line is trending upward (albeit very slowly) and this means the child is already receiving “some benefit.” When the parent and university reading expert responded that changing reading programs would allow the child to meet his goal faster, the AEA consultant said: This doesn't matter. All the school district is required to do is provide him with 'some benefit.' This was proven last year in the Kass case.

I moaned inwardly and began explaining the “Kass case.”

On August 21, 2020, Charles and Lisa Kass, filed a due process complaint with the Iowa Department of Education. They claimed, among other things, that the school district and AEA had denied their son, BK, a free appropriate education (FAPE) because the method of reading instruction used was not reasonably calculated to enable him to learn to read. See 30 D.o.E. App. 032. At the due process hearing, the parents and their expert witness made the case that two other reading programs would have been a better choice for BK. Id.

After the due process hearing, Administrative Law Judge David Lindgren of the Iowa Department of Inspections and Appeals issued his decision finding against the parents. Among other things, he wrote that the issue was not whether there were better methods of reading instruction for BK, but whether the school district's choice of methods was reasonably calculated to provide him with a FAPE under the circumstances. Id. He wrote that a school district may use any educational methodology that enables a student with a disability to make progress appropriate in light of the child's circumstances. Id. The ALJ further stated that the IDEA does not require a school district to provide a special education student with the best education or services available and wrote that: "[n]either the parents' preference for a different methodology nor evidence that the student would make greater progress with a different technique will make the District's program inadequate." Id.

The parents appealed ALJ Lindgren’s decision to the Federal District Court for the Northern District of Iowa, which upheld the ALJ’s decision. See Kass ex rel. Kass v. Western Dubuque Community School District. 

The parents appealed the federal district court's decision to the Eighth Circuit Court of Appeals on December 5, 2022, and it was argued last week. The case number and title are #22-3506, Charles Kass  v.  W. Dubuque Comm. School Dist. When the court’s decision is published, we will learn whether the Eighth Circuit thinks “we don’t have to” is a good enough reason under the facts of this case for refusing to change a child’s reading program to one that would more effectively enable the child to master the skills needed to meet his reading goal.

Weeping, the parent told me that he couldn’t understand why the special and general education teachers weren’t interested in being more successful with his child. He noted: "If someone told me a simple way to do my job faster and more successfully, I’d be excited." I told him that as a former teacher, I didn't understand it either. I thought the best thing about teaching was finding an effective way to reach a student whose progress was delayed by disability challenges. I recalled that each time a new approach “worked” and a child made a leap of progress, I felt “over the moon.”

I explained that at the take-home message from the “Kass case” should be that it does NOT prove that the IDEA requires school districts and AEAs to limit their instruction to the type or amount that allows a child to make just enough progress to escape a legal finding that they denied the child a FAPE.  Moreover, I explained that although neither state or federal laws require school districts and AEAs to employ the “best” instructional methods for children with disabilities, there is nothing in the IDEA that requires school districts and AEAs to limit the methodologies they use for specially designed instruction to those that will prevent children from making progress beyond what they are currently achieving.

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.