Responding to Allegations of Disability Harassment in Schools--Advice for Administrators

I highly recommend that administrators investigate all incidents of reported harassment.  This practice protected a school district from having to make a private school placement at parental request (Waco Independent School District, 59 IDELR 57, SEA TX 2012) when the parent of a student with Asperger syndrome alleged that bullying was the cause of her child's school anxiety.  School officials investigated and found no evidence of threats to the child's safety.  They also provided documentation that the alleged bullying didn't prevent access to learning and that the student had normal intelligence and could participate in the general curriculum with appropriate support.  The independent hearing officer over this case commented that it seemed as though the student was experiencing the normal stages of growing up and that his Asperger syndrome may have contributed to his negative thoughts regarding peer communications.  When allegations of bullying and/or harassment are made, the subsequent investigation could include interviews with multiple witnesses (if applicable) to help verify that statements are accurate.  In some cases, the responses may reveal that comments were mean or rude versus meeting the definition of bullying or harassment.  Reviewing student records (e.g., IEPs, developmental history, functional behavior assessments/behavior intervention plans, and discipline records) may also help clarify if a student's disability may be impacting his or her self perceptions and the interpretation of the meaning of other students' comments during social interaction.  IEP teams may determine it is in a child's best interest to make changes to his or her IEP even if bullying or harassment is not taking place.  In the Waco case, the team may have considered adding a goal to improve social skills and interpreting communication cues.   

Yes...my daughter is still in Cairo. She took this picture of a father and son riding on a burro. I believe she still prefers a cab.

In Johnston County (NC) Schools , 56 IDELR 305 (OCRXI, D.C. (NC) 2011), the Office for Civil Rights (OCR) determined that a school district violated Section 504 of the Rehabilitation Act of 1973 when it conducted a manifestation determination review (MDR) after a student with ED and ADHD completed his suspensions. OCR explained that under Section 504 a reevaluation, including a MDR in the case of a disciplinary exclusion, must occur prior to a signficant change of placement. On February 5, 2010, the school district imposed a 10-day suspension to take effect the same day. However, the district had suspended the student two times earlier in the year. When MDR concluded that the student's conduct was a manifestion of the student's disability the parent claimed the school district violated Section 504 by imposing suspension prior to the MDR. In the case of a series of short-term suspensions, the MD review must occur prior to the last in a series of suspensions that cumulatively amount to more than 10 days.

No Consent for the 3-year Reevaluation

In Gwinnett County School District, 53 IDELR 341 (SEA GA 2010), a parent did not provide consent for the triennial revaluation of their child with a disability. The IEP team resorted to reviewing data with regard to progress toward IEP goals and objectives, anecdotal reports, and test results. Ultimately, the team determined there was enough documentation to make an elibility determination that the student continued to have a disability and needed special education services. An administrative law judge determined the placement was appropriate and that proposed goals were adequate. When parents choose not to sign consent for re-evaluation, IEP teams should examine existing data from the following sources: the student (ask what his/her strengths are), teachers, disciplinary reports, progress toward the current IEP, guidance counselors, behavior observations, assessment results, outside agencies (if you have a release for information), and parents.

Middle School Student's Misconduct Determined Unrelated to ADD

In Hollingsworth v. Hackler, 53 IDELR 298 (Texas Court of Appeals 2009), the court reversed the denial of appellants' (principal and assistant principal) motions for summary judgment and rendered judgment that the parents take nothing on their Individuals with Disabilities Education Act claims brought under the Civil Rights Act. In this case the student made an obscene gesture at classmates who were making fun of him. An admission, review, and dismissal (ARD) committee meeting was held and the committee found that the student's behavior was not a manifestation of his attention deficit disorder. According to the case summary, a dispute ensued and the parents sued. The principal and assistant principal challenged the denial of their summary judgment motion under as to the parents' claim. On appeal, the court reversed and rendered judgment that the parents take nothing on this claim. The parents were members of the ARD committee that conducted the manifestation determination review of the student's behavior. The parents did not show that the disciplinary procedures applicable to children without disabilities required parental involvement in the school's disciplinary decisions, for purposes of 20 U.S.C.S. § 1415(k)(5)(A). There was no evidence that the district violated the student's rights under the Act by placing him in a disciplinary alternative education program for 45 days without referring the disciplinary decision to the ARD committee. Thus, principal and assistant principal were immune from individual liability to the parents for civil damages.

IDEA Does Not Require Students to be Classified by Their Disability

In Pohorecki v. Anthony Wayne Local School District, 53 IDELR 22 (N.D. Ohio 2009), a court determined that the IDEA does not require children to be classified by their disability type. It does require that a child identified as needing special education and related services be regarded as a child with a disability and that a free and appropriate public education be provided. The label or disability category assigned merely guides IEP teams as they develop an appropriate education plan. There was sufficient evidence in this case that the student met the IDEA's definition of ED and that classification was appropriate.

Disability Harassment/Retaliation

In Wilbourne V. Forsyth County School District (11th Circuit, 2009), a case was dismissed that involved a teacher who argued that a school district retaliated against her by issuing a "letter of directive" to be placed in her personnel file. The district also filed a complaint against the teacher with the Professional Standards Commission (PSC) for "unprofessional conduct" after she filed a complaint with the PSC regarding an incident involving a teacher abusing her disabled son and then confonting an administrator at her son's school about the school's projected discipline of her son. To establish a case of ADA retaliation, a plaintiff must show three things: (1) that the teacher engaged in a statutorily protected activity; (2) that she suffered an adverse employment action; and (3) a causal link between the protected activity and the adverse action. Once a plaintiff has established a case of retaliation, the employer has an opportunity to present a legitimate, non-retaliatory reason for the challenged employment action. If this is accomplished, the plaintiff then bears the burden of showing that the reason provided by the employer is a pretext for prohibited, retaliatory conduct. Here, the teacher presented insufficient evidence to establish that the district's reasons for taking adverse action against her were pretext for discrimination.

Lewellyn v. Sarasota County School Board, 53 IDELR 288 (M.D. Florida 2009)

In this case, parents claimed the school district disciplined their two sons with disabilities unfairly when it revoked a school choice privilege for one boy (attending a school outside their attendance area) and offered the other deferred expulsion and a behavior contract. The Section 504 and ADA claim filed was discontinued as the District Court determined the district did not discriminate based on disability. The manifestation determination review revealed the boys' behavior was not related to their disabilities which allowed school officials to wage the district discipline policy as it would for students without disabilities. The change in schools back to the one boy's home attendance area does not constitute a change in placement as the Office of Special Education Programs (OSEP) has written that transferring a student to another school does not constitute a change in placement unless it substantially or materially alters his educational program (Letter to Fisher, 21, IDELR 992 (OSEP 1994).

FERPA Allows Districts to Release Contact Information Under Certain Conditions

In Disability Law Center of Alaska, Inc. V. Anchorage School District, 53 IDELR 2, 581 F.3d 936 (9th Circuit 2009), the court determined that FERPA and the provisions of the IDEA regarding confidentiality do not bar a Protection and Advocacy (P & A) agency from obtaining from school officials contact information for the parents/guardians of diabled students when the P & A agency has probable cause to believe students are being abused or neglected. According to Court records, "The agencies stated that 'if a school or other facility could refuse to provide the name and contact information, it could interfere substanially with a [protection and advocacy agency's ] investigation of abuse or neglect, thereby thwarting Congress' intent that [protection and advocacy agencies] act to protect vulnerable populations from abuse or neglect.'" Although FERPA prohibits releasing personally identifiable information without parental consent or court order, the U.S. Department of Education and the U.S. Department of Health and Human Services have interpreted the Developmental Disabilities Act as creating a limited exception to FERPA.

Protection and Advocacy Did Not Have Probable Cause To Suspect Abuse and Neglect

In Disability Law Center v. Discovery Academy, 53 IDELR 282 (D. Utah 2010), the court concluded a Protection and Advocacy agency was not entitled to access to student records at a therapeutic boarding school as the agency did not produce any factual evidence that the school used inappropriate seclusion and restraint techniques. The P & A agency claimed there was probable cause to believe neglect had occured and argued that it had sole authority under P & A for Individuals with Mental Illness Act (PAMI) to decide whether there is probable cause to investigate. This argument was rejected as the agency would be able to conduct what was effectively a "warrantless search and seizure" of the school's records--a practice that would raise serious constitutional concerns. Court records state "The [agency] fails to provide any factual support for what the allegations were, who made the allegations, what the substance of the complaint was, or the name of the supposed victims of the abuse."

Teacher's Use of Seclusion and Restraint Does Not Violate Student's Constitutional Rights

In C.N. v. Willmar Public Schools, 53 IDELR 251, 591 F.3d 624 (8th Circuit 2010), the parent of a third grade student identified with a disability under IDEA reenrolled her daughter in another district after learning her daughter was subjected to physical and verbal abuse by a special education teacher. After transferring, the student's mother sought to challenge the adequacy of the former district's educational services. The subsequent challenges to the student's previous education became moot because according to the U.S. Court of Appeals for the Eighth Circuit in Thompson, if a student changes school districts and does not request a due process hearing, his or her right to challenge prior educational services is not preserved. Rather, the new school district is responsible for providing a due process hearing. The Section 504 claim was properly dismissed for the same reason. As for plaintiff's Section 1983 claims, there was no Fourth Amendment violation since the special education teacher's use of restraints and seclusion was authorized by the student's individualized education program. Her behavior intervention plan allowed her teacher to use seclusion and restraint as behavior managment techniques.

Calling Police Does Not Violate Student's Constitutional Rights

In B.L. Boyertown Area School District, 52 IDELR 42 (E.D. Pennsylvania 2009), a court granted a school district's and principal's motion to dismiss action for damages under Section 1983, 504, and the ADA. Where the student's Behavior Intervention Plan provided that the Principal had broad discretion when the student hurt or threatened others or used profanity, the principal's action of calling the Pennsylvania State Police was within the provisions of the BIP when the student used profanity towards his one-to-one aide. Telephoning the police to deal with the child does not constitutute a clear violation of the child's consitutional rights and it was reasonable for the principal to assume that this action was in compliance with the law.

Money Damages Sought Under IDEA

In Blanchard v. Morton School District., 52 IDELR 3 (W.D. Washington 2009), a prior decision that a district made a free and appropriate education available to a student with autism and other severe limitations was affirmed. Additionally, claims under the ADA and 504 require a showing of deliberate indifference and the plaintiff must establish the following: (1) the defendants had knowledge from which an inference could be drawn that harm to a federally protected right is substantially likely, and (2) the defendant actually draws that inference and fails to act upon the likelihood. There was no evidence in this case that remotely reached a level of deliberate indifference and there was no evidence that even reached a level of negligence.

Compensatory Damages Are Not Available Under IDEA

In Doe v. Westerville City School District, 51 IDELR 245 (S.D. Ohio 2009), the plaintiffs initiated a case alleging that for the school year commencing in 2002-2003 through and including the 2006-2007 school year, Defendants violated the IDEIA by failing to provide a FAPE for John Doe, Jr. and by failing to create and follow an IEP that provided instruction premised on scientifically based reading research in violation of NCLB. The Plaintiff requested a jury trial and sought both equitable relief and compensation damages. The U.S. District Court determined the Plaintiffs were limited to the remedies available under the IDEA for violations of the law (e.g. funds to reimburse parents for expenses on special education that a school board should have, but did not provide) and could not seek compensatory damages, including damages for emotional injuries. There was no right to a jury trial in a case alleging IDEA violations and there was no private right of action under the NCLB Act.

Students With Disabilities Must Benefit From Public School Special Services

In Cone ex rel. Cone v. Randolph County Schools Board of Education, 53 IDELR 113 (M. D. N. C. 2009), the U.S. District Court, Middle District of North Carolina, determined that a district did not provide appropriate services to meet the education needs of a high school student with Fragile X syndrome and Autism. While the court did not indicate the student required a residential placement, it did note that the IEP did not provide a plan for transitions throughout the school day, consistent instruction in all environments, or a plan for communication between school and the student's home. U. S. District Judge Thomas D. Schroeder wrote "[The district's expert] also agreed that more consistency in the information and techniques used with [the student] is beneficial to those with his condition." IEPs teams must be mindful of each student's individual needs when developing educational plans to confer educational benefit.

Fifth Grader With Emotional Disturbance Receives FAPE

In L.F. by Ruffin v. Houston Independent School District, 53 IDELR 116 (S. D. Texas 2009), the court concluded a school district met FAPE requirements when it placed a fifth grade girl with an emotional disturbance in a self-contained program designed to address behavior, academics, and social skills. The placement was determined to be the least restrictive environment as the student was mainstreamed for study hall and physical education. Although the parent charged the district with procedural violations, paperwork indicated the parent was informed of the placement and received appropriate and timely notification of IEP meetings. Cypress-Fairbanks Independent School District v. Michael F., 26 IDELR 303 (5th Circuit 1997) outlined 4 prongs used to determine whether or not a special education program is appropriate: (1) addresses student's individual needs; (2) is administered in the LRE; (3) is implemented in a coordinated and collaborative manner by key stakeholders; and (4) allows the student to obtain academic and nonacademic benefits. The district met all four elements in this case and the court rejected the parent's substantive claim as well.

IEPs Should Indicate Services Being Provided to Students

In J.P. and R.P. v. Enid Public Schools., 53 IDELR 112 (W.D. Oklahoma 2009), an administrative decision in a school district's favor was made despite the district's failure to delineate services in a high schooler's IEP. U.S. District Judge Joe Heaton wrote "While [the student's] IEP documents themselves fail to specify every area in which [the student] was in need of special services, the IEPs in practice provided him with an array of special education servives personalized to his own neeeds and calculated to provide him an educational benefit." The IEPs did not spell out how services to address organizational, transition and academic services were going to be provided; however, special education instruction included showing the student how to outline chapters, use a daily planner, breaking tasks in smaller units, how to use indexes and glossaries, interviewing skills, and how to fill out applications for employment. Although the court ruled in favor of the district, case managers of IEPs should not take chances. Special education services required to address student needs should be delineated in IEPs.

Parents Need to Exhaust Administrative Remedies Under IDEA Before Making Discrimination Claims

In C. B. v. Sonora School District, 53 IDELR 115 (E. D. California 2009), the parents of a sixth grader with mood disorder filed a claim for disability discrimination after a school employee called police when the student "shut down". The police handcuffed the student then took him to a relative's home. The parents claimed discrimination and charged school personnel with not following the behavior intervention plan which outlined specific interventions to try when the student "shut down". The U. S. District Court (Eastern District in California), held that administrative remedies under IDEA must be exhausted before seeking relief under a Section 504 claim and Title II. Since the parents claimed the BIP was not being followed, the U. S. District Court does not have jurisdiction until administrative remedies under IDEA have been exhausted.

Statute of Limitations and Section 504

Since Section 504 does not have its own statute of limitations, courts can use statutes of limitations from closely related state laws or even a federal law if the federal law is more analagous to the law under consideration. In P. P. by Michael P. and Rita P. v. West Chester Area School District, 53 IDELR 109 (3d Circuit 2009), the 3d U.S. Circuit Court reversed the District Court's decision which applied Pennsylvania's two-year statute of limitations for personal injury claims (50 IDELR 133) and determined that Section 504 is more closely related to IDEA 2004 which also has a two-year statute of limitations. However, it is important to note that the limitations period is not applicable if a school district does not provide required information to parents or if they falsely misrepresent the issue as being resolved.

Students With Disabilities Transfering Within the Same State

The IDEA (34 CFR 300.323 (e)) states that districts must provide comparable services to students with disabilities transferring between districts in the same state and within the same academic year when an IEP was in effect in the prior district. In Clovis Unified School District, 52 IDELR 236 (SEA CA 2009), a student with autism transferred from one school district to another over the summer in California. Although the receiving district was not required to offer comparable services since the student transferred between school years, it was determined the receiving district denied FAPE because it failed to provide adequate services to address deficits in reading and writing. When a school receives an IEP from another district it is imperative to review the most recent academic records, psychoeducational report, IEP, and progress reports. Input from parents and former teachers is also valuable.

Does a District Owe Compensatory Speech-Language Due to Shortage of SLPs?

In M.L. ex rel. A.L. v. El Paso Independent School District, 52 IDELR 159 (W.D. Texas 2009), a 12-year-old with a speech-language impairment had an IEP calling for 60 minutes of speech-language services a week. Unfortunately, the districts experienced a shortage of Speech-Language Pathologists (SLPs) and since they were unable to fulfill the IEP the district contacted the parents to inform them compensatory services would be considered. Although the student missed at least 19 hours of therapy, the IEP team determined the student was no longer eligible for speech-language services. The parents filed a due process complaint requesting compensatory services but their request was denied since their child was no longer a child with a speech-language impairment. U.S. District Judge Kathleen Cardone wrote, "Ultimately, providing additional compensatory speech therapy services for [the student] when [he] has no speech disability would only serve as a form of damages, a remedy that is not appropriate under the IDEA."