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.

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[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.

Medicaid and Special Education Consent Form -- Should You Sign It?

Iowa parents frequently ask me if they should sign the consent form given to them by their child’s public school to give permission to the school district or AEA, to bill Medicaid for some of the services set out in the child’s IEP. 

I generally answer “No.”

Before school districts and AEAs request parental consent to bill Medicaid to pay for services set out in a child’s IEP, they are required by federal law to determine that all of the IDEA’s “no cost” requirements set out in 34 CFR §300.154(d)(2)(i)-(iii) are met. See 34 CFR §300.154(d)(2)(iii).  However, parents have told me that when they asked schools and AEAs, those agencies were unable or unwilling to respond in regard to whether school/AEA use of the child’s benefits might have any of the following effects :  

• Decrease the available lifetime coverage or any other insured benefit (e.g., decrease the plan’s allowable number of mental health or physical therapy sessions available to the child);
• Result in the parent being liable to pay for serices that would otherwise be covered by the  public benefits or insurance program because the child also requires those services outside of the time the child is in school;
• Increase the premium or lead to cancellation of the public benefits or insurance; or
• Cause the parent or child to risk the loss of their eligibility for home and community-based waivers based on total health-related expenditures.

The IDEA prohibits any use of a child's or parent's public benefits or insurance if it may have any of these effects. See 34 CFR §300.154(d)(2)(iii).

The IDEA regulations that govern school district and AEA use of a child' public benefits and insurance are addressed by the federal Department of Education Office of Special Education Programs (OSEP) in "Letter to McKinney." In that letter, OSEP explains that BEFORE a school district may bill Medicaid for school services, it must make a determination that school use of those benefits won’t violate the IDEA’s requirement that special education services must be “free.” It further explains that a school district or AEA may not require parents to sign up for, or enroll in Medicaid or any other public benefits or insurance program as a condition of the school/AEA’s provision of services to the child that the IDEA.

The "Letter" also explains that a school district or AEA may not require the parent to pay an out-of-pocket expense, such as the payment of a deductible or co-pay amount for filing a claim for services that the district is otherwise required to provide the child without charge.  For example, if a child’s IEP includes mental health counseling, and the parent’s or child’s insurance requires a $25 co-pay or deductible payment for a session, the school/AEA must to pay the cost of the co-pay or deductible if it bills the parent’s or child’s public benefits or insurance program for the particular service.

Good things to know.

OSEP’s Letter to McKinney is available at http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/13-013615rwa-mckinney-medicaid9-3-13.pdf

  

Iowa's Autism Support Program and ABA Therapy

Iowa’s Autism Support Program went into effect this year.  The Iowa Legislature established the program with a funding level of $5 million, to assist in supporting the costs of applied behavioral analysis (ABA) services for children under age nine, who have a diagnosis of autism who are not otherwise eligible for such services through Medicaid or private health insurance.

The program’s regulations are set out in the Iowa Administrative Code at https://www.legis.iowa.gov/docs/ACO/chapter/441.22.pdf state the requirements for diagnostic and financial eligibility requirements, provider qualifications, and appeal procedures. 

Families enrolled in the program with a household income of between 200% and 400% of the federal poverty level, share the cost of the ABA treatment.  The amount of family’s portion is determined on the family’s income. Generally speaking, the family will be required to pay no more than 10% of the costs of the services provided.  Families who are not able to share the cost may ask to be excused from doing so.

See http://www.autismdailynewscast.com/iowa-puts-5-million-into-autism-program/13976/adn/

Bullying of Students with Disabilities in Public Schools

In August, the U.S. Department of Education Office of Special Education and Rehabilitative Services (OSERS) reached out again to educators, school administrators, and parents, in an effort to address the needs of students with disabilities subjected to bullying by other students.  In its Dear Colleague letter, OSERS provided an overview of the related school district responsibilities under the Individuals with Disabilities Education Act (IDEA). 

OSERs restated that bullying of a student with a disability which results in the student not receiving meaningful educational benefit constitutes a denial of a free appropriate public education (FAPE) under the IDEA.   It noted that even when bullying does not rise to that level, it can interfere with a student’s academic development.  OSERS further noted that students with disabilities are disproportionately affected by bullying, and that students who are bullied are more likely to experience lower academic achievement and aspirations, higher truancy rates, feelings of alienation from school, poor relationships with peers, loneliness, or depression.   It further indicated that the impact of bullying in the school environment can “foster fear and disrespect and negatively affect the school experience, norms, and relationships of all students, families, and school personnel.”  

OSERS stated that as part of an appropriate response to reported bullying of a student with a disability, the school should convene the IEP Team to examine whether changes are needed in the student’s IEP in order to ensure that it is designed to provide the student with a meaningful educational benefit.   If the team finds that that additional or different special education or related services are needed, it must revise the IEP accordingly.  The letter further noted that parents have the right to request an IEP Team meeting at any time, and public agencies generally must grant a parental request for an IEP Team meeting where a student’s needs may have changed as a result of bullying.  If a student with a disability engaged in bullying behavior, OSERS states that the IEP Team should review the student’s IEP to determine if additional supports and services are needed to address the inappropriate behavior.  In either case, OSERS recommended that the IEP Team and other school personnel should consider examining the environment in which the bullying occurred to determine if changes to the environment are warranted. 

In concluding the letter, OSERS encouraged the state agencies and school districts to reevaluate their policies and practices in regard to bullying, and provided them with an attached resource titled: “Effective Evidence-based Practices for Preventing and Addressing Bullying,”   The entire document and attachment are available at:  http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.pdf

Special Education Due Process Hearings Part 4: Appealing Due Process Decisions

This is the fourth article in a series about special education due process hearings.

After a due process hearing, the administrative law judge (ALJ) or hearing officer weighs the merits of each party’s argument, evidence, and witnesses, in light of what the IDEA, state law, and their implementing regulations require, and keeping in mind the legal interpretations of the courts in regard to their provisions. As set forth in the IDEA regulation concerning hearing decisions, 34 C.F.R. §300.513 states:

(a) Decision of hearing officer on the provision of FAPE. (1) Subject to paragraph (a)(2) of this section, a hearing officer’s determination of whether a child received FAPE must be based on substantive grounds.

(2) In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies—

(i) Impeded the child’s right to a FAPE;

(ii) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or

(iii) Caused a deprivation of educational benefit.

(3) Nothing in paragraph (a) of this section shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under §§300.500 through 300.536.

It’s important to understand the meanings of two words used above: "substantive" and "procedural." Substantive law is the law governing rights and duties (e.g., timely provision of special education services set out in the IEP), while procedural law governs the technical procedures (e.g., giving of meeting notice) involved in implementing and enforcing laws.

An party to the due process proceeding who disagrees with the decision of the ALJ has the right to bring a civil action in state or federal district court with regard to the outcome of that decision.

However, if the decision is not appealed within the time limit allowed by law, the ALJ’s decision is final. Under §300.516(b), in a one-tier due process system (the vast majority of the states), the party must bring the civil action within 90 days of the date of the decision (or within the state’s time frame if the state’s law has established a different one).

In a civil action, when an appeal has been filed, the court receives the records of the administrative proceedings and, at the request of either party, may hear oral arguments. The district court bases its decision on the preponderance of the evidence and grants the relief that it determines to be appropriate.

Special Education Due Process Hearings Part 3: What Happens at the Hearing?

Special education due process hearings are formal administrative hearings, and have many features similar to that of trial proceedings. In Iowa and the majority of states that have one-tiered due process systems, an administrative law judge (ALJ) presides over the hearing. There is no jury. Although the law allows parents to represent themselves in due process proceedings, given the legal nature of the proceedings, most are represented by attorneys.

The parent(s) and public agencies whose names appear in the caption at the top of the due process complaint are called the "parties." If the parent files the complaint, then he or she is called the "complainant" and the school district, area education agency, and any other public education agency named are the "respondents." The complainant is the party who must carry the burden of proof on one or more issues of the case in order to prevail.

Prior to the hearing, the IDEA provides parents with the right to decide whether or not the hearing will be open to the public.

The hearing begins when the ALJ enters the hearing room and announces that the hearing is in session. It’s important to remember that whenever the ALJ enters or exits the hearing room, the parties, their attorneys, and all persons attending the hearing must rise and remain quietly standing until the ALJ is seated or has departed the room.

Due process hearings are stenographically recorded by a court reporter so that there is an official transcript of the testimony given during the proceedings. In order for the court reporter to make an accurate record of the proceedings, it is important that all witnesses and attorneys speak clearly, refrain from interrupting, and avoid using nonverbal responses instead of "yes" and "no."

After the ALJ has convened the hearing, he or she will give the complainant’s attorney an opportunity to give an opening statement. An opening statement generally includes an overview of the evidence that is expected to be presented. After the complainant’s attorney has finished, the ALJ will provide the same opportunity to the attorney or attorneys for the Respondents. In some cases, the ALJ will allow the respondents’ attorney to delay the opening statement until after the complainant’s attorney has finished presenting evidence, and it is the respondents’ turn to present their evidence.

After the opening statements, the ALJ directs the complainant’s attorney to present his or her client’s case. The complainant’s attorney can only raise the issues that were stated in the due process complaint filed with the state department of education, unless the other party agrees otherwise. During the hearing, each party has the opportunity to present their views using witnesses, testimony, documents, and legal arguments that each believes is important for the ALJ to consider in order to decide the issues in the case. Parties generally present evidence by calling witnesses and asking questions.

In presenting evidence, each party must abide by the state’s Rules of Evidence which govern what evidence is admissible, and how it is presented. If the attorney for one of the parties believes the other party is not following the rules, he or she may raise an objection. The ALJ will then either sustain or overrule the objection, or defer a ruling until a later time.

The complainant’s attorney examines (i.e., questions) his or her witnesses and evidence first. After he or she has examined a witness, the respondents’ attorney has the opportunity to cross-examine the witnesses. When the complainant’s attorney has finished putting on witnesses, then it is the respondents’ attorney’s turn to present their case. As before, after the respondents’ attorney has finished examining his or her witnesses, the Complainant’s attorney has the right to cross-examine them.

Once the parties have completed examining the witnesses, the ALJ provides each party’s attorney with an opportunity to make closing arguments. Closing arguments must be based upon the evidence produced in trial. At the close of the hearing, the ALJ may ask the attorneys to submit post-hearing briefs which set out the facts and points of law of their clients’ cases. After the hearing, at no cost to the parent, the parent’s attorney receives a transcript of the hearing.

The ALJ’s written decision of the ALJ is later issued and copies are immediately sent to the parties. The ALJ must make a decision on substantive grounds based on a determination of whether the child received a free appropriate public education (FAPE). In matters alleging a procedural violation, an ALJ may find that a child did not receive a FAPE only if the procedural inadequacies:

1. Impeded the child’s right to a FAPE;
2. Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the child; or
3. Caused a deprivation of educational benefit.

The next in this series of articles will address matter of what a parent may do if he or she disagrees with the ALJ’s decision.

Special Education Due Process Hearings, Part 2: What Happens After a Due Process Complaint is Filed?

This is the second in a series of articles describing special education due process hearings and procedures.

The regulations for Part B of the federal Individuals with Disabilities Education Act (IDEA) and state special education regulations which govern special education due process procedures and hearings set forth a series of deadlines that apply to the parties (the parent, school district, area education agency and other public education agency named in the complaint). The "clock" starts when the parent or the parent’s attorney files the due process complaint with the state department of education and serves it on the school district and other named parties. The process described below reflects the time lines and procedures used in Iowa.

Determining the "Sufficiency" of the Complaint
 
Within five days after the complaint is filed, the administrative law judge must decide whether or not the complaint is "sufficient" and must immediately notify the parties in writing of that decision. The sufficiency of the complaint is determined on the basis of whether the complaint contains the required information and the dispute described is one for which the law may provide a remedy. A complaint which alleges that a child is not receiving a free appropriate public education (FAPE) because she needs more or different special education services is likely to be deemed sufficient, whereas a complaint which alleges that a public school district is not providing a FAPE because it hasn’t adopted the Peters Projection map of the world.

After the ALJ has deemed a complaint to be sufficient, the parties may gather information and evidence from each other through the use of "discovery procedures." These procedures have their own requirements and deadlines, and described in detail in each state’s Rules of Civil Procedure. 

School District's Answer to the Complaint

Within 10 calendar days after receiving the Complaint, the school district, area education agency, and any other public education agency named in the Complaint must file with the state department of education and provide a copy to the parents, a written Answer specifically addressing the issues stated in the Complaint.

Prior Written Notice to the Parent

Within 10 calendar days of receiving the complaint, if the school district has not sent Prior Written Notice to the parents concerning the subject of the complaint, they must send the parents a response providing:

• An explanation of why the school proposed or refused to take the action addressed in the due process complaint;

• A description of other options that the school district considered and the reasons why those options were rejected;

• A description of each evaluation procedure, assessment, record, or report the school district used as the basis for the proposed or refused action; and

• A description of the other factors that are relevant to the school district’s proposed or refused action.

The 30 Day "Resolution Period"

A 30-calendar day "Resolution Period" begins when the school district, area education agency, and the Iowa Department of Education all receive the due process hearing request.

Resolution Meeting

Within 15 calendar days of receiving the Complaint, the school district must convene a Resolution Meeting with the parent and members of the IEP Team unless the school district, and parent agree in writing to waive the meeting. If all the parties do not waive the meeting, then the parent must attend it. If the parent does not attend, the ALJ may dismiss the parent’s Complaint.
If the district fails to hold the resolution meeting within 15 calendar days of receiving notice of your due process hearing request, OR fails to participate in the resolution meeting, the parent may ask the ALJ to order that the 45-calendar day due process hearing time line begin.

Within 45 calendar days after the 30-day resolution period:

If the dispute is not resolved during the 30-day resolution period, the state department of education must ensure that a due process hearing has been completed in no more than 45 days, unless a party asks the ALJ for, and the ALJ chooses to grant an extension.


Deadline for Disclosures

At least five business days prior to the hearing, all of the parties are required to have disclosed to each other all evaluations completed by that date and the recommendations based on those evaluations that they intend to use at the hearing. An ALJ may prevent any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other parties.