2/24/15 Bullying & Students with Disabili9es: Legal requirements in iden9fying, inves9ga9ng, and responding Midwest Symposium for Leadership in Behavior Disorders-­‐2/27/2015 Mitchell L. Yell (myell@sc.edu) Antonis Katsiyannis (antonis@clemson.edu) Mickey Losinski (mlosins@ksu.edu) Introduc9on Bullying •  Disability status is a notable risk factor in the bullying dynamic –  Diagnos9c correlates-­‐Kids with BD more likely to vic9mize, kids with social skills deficits (e.g., ASD) are more likely to be vic9ms •  White House Summit on Bullying-­‐August, 2010 •  U.S. Department of Educa9on website: hTp://www.stopbullying.gov –  One stop comprehensive site for resources on bullying and preven9on •  “A reinvigorated Office of Civil Rights means complaints of bullying and harassment will be vigorously inves3gated-­‐Arnie Duncan Outline •  The problem of bullying in public schools •  Interpre9ng dear colleague leTers & court cases •  Sec9on 504 & bullying –  Bullying as a viola9on of Sec9on 504 •  The IDEA & bullying –  Bullying as a denial of the free appropriate public educa9on (FAPE) mandate of the IDEA •  Recommenda9ons for school districts “There is broad consensus that bulling is wrong and cannot be tolerated in our schools, the sad reality is that bullying persists in our schools today, and especially so for students with disabili9es who are frequently the targets of bullying” (U.S. Department of Educa9on, Office of Civil Rights, 2010, p. 1). 1 2/24/15 Dear Colleague LeTers Interpre9ng Dear Colleague LeTers & Court Cases •  Guidance by issued by federal departments to assist public en99es in mee9ng their obliga9ons under federal law. •  In special educa9on, DCLs are primarily issued by the Office of Special Educa9ons Programs (OSEP) and the Office of Civil Rights (OCR) in the U.S. Department of Educa9on. •  As guidance documents, DCLs do not add to law. Court Cases Federal & State Laws on Bullying •  No federal laws •  State laws-­‐All states except Montana have an9-­‐bullying laws –  www.bullypolice.org •  State an9-­‐bullying laws are not par9cularly strong because they lack incen9ves & sanc9ons 2 2/24/15 •
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Federal Laws Sec9on 504 Sec9on 504 of the Rehabilita9on Act of 1973 Title VI of the Civil Rights Act of 1964 Title IX of the Educa9on Amendments of 1972 Title II of the Americans with Disabili9es Act Individuals with Disabili9es Educa9on Act •  No otherwise qualified individual with a disability in the United States…shall, solely by reason of his or her disability, be excluded from par9cipa9on in, be the denied the benefits of, or be subjected to discrimina9on under any program or ac9vity receiving Federal financial assistance (Sec9on 504 of the Rehabilita9on Act of 1973, 29 U.S.C. 7954(a). Federal Civil Rights Statutes •  Title VI prohibits discrimina9on on the basis of race, color, or na3onal origin •  Title IX prohibits discrimina9on on the basis of sex •  Sec9on 504 & the Americans with Disabili9es Act (ADA)-­‐prohibits discrimina9on on the basis of disability Bullying & Viola9ons of Sec9on 504 •  Viola9ons may occur when peer harassment based on race, color, na9onal origin, sex, or disability is sufficiently serious that it creates a hos3le environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees 3 2/24/15 DCL: Bullying & Disability Harassment DCL: Bullying & Disability Harassment •  DCL issued by OCR/OSERS on July 25, 2000 •  DCL issued by OCR on October 26, 2010 •  The purpose of the DCL was to (a) develop greater awareness of the problem of bullying, (b) remind school personnel of their legal responsibili9es to prevent and respond to incidences of bullying, and (c) suggest measures to respond to bullying •  If school personnel understand their legal responsibili9es under federal civil rights laws are in the best posi9on to iden9fy, address, and correct viola9ons of these laws –  hTp://www2.ed.gov/about/offices/list/ocr/docs/
disabharassltr.html •  OCR and OSERS “are commiTed to doing all we can do to help prevent and respond to disability harassment.” DCL: Bullying & Disability Harassment •  DCL issued by OCR on October 22, 2014 –  hTp://www2.ed.gov/about/offices/list/ocr/leTers/colleague-­‐
bullying-­‐201410.pdf •  “The sad reality is that bullying persists in our schools today, and especially so for students with disabili9es.” •  This problem of bullying “underscores the need for schools to fully understand their legal obliga9ons to address and prevent disability discrimina9on in our schools.” •  “The bullying of a student with a disability on any basis can similarly result in a denial of FAPE under Sec9on 504 that must be remedied.” –  hTp://www2.ed.gov/about/offices/list/ocr/leTers/
colleague-­‐201010.pdf •  Bullying or harassment based on a student’s disability may cons9tute discrimina9on under Sec9on 504 & the ADA DCL: 2014 •  Overview of federal protec9on –  Both Sec9on 504 and Title II of the ADA –  Public schools, charter schools, magnet schools, post secondary schools •  Bullying based on a disability may cons9tute disability based harassment under Sec9on 504 & the ADA and a school must take immediate ac9on to inves9gate and take prompt and effec9ve steps to end the bullying 4 2/24/15 Bullying as Discrimina9on •  Four elements from OCR: 1.  The student had a disability 2.  Student was harassed based on that disability 3.  The harassment was sufficiently severe or pervasive that altered student’s educa9on or created an abusive environment 4.  The LEA was deliberately indifferent to the harassment •  If yes, discrimina9on has occurred OCR Rulings-­‐Bullying by teachers •  Yucaipa-­‐Calimesea (CA) Joint Unified School District, 2006 •  Las Angeles (CA) Unified School District, 2006) •  Made modifica9on to a student’s IEP but failed to implement the modifica9ons OCR Rulings •  Fairfield-­‐Suisun (CA) Unified School District (2008) –  “Lackluster” response to bullying •  Philadelphia (PA) School District (2006) –  Failed to inves9gate, inform parents, or address nega9ve effects on vic9m •  Santa Monica-­‐Malibu (CA) Unified School District (2010) –  Made modifica9on to a student’s IEP but failed to implement the modifica9ons •  Williamson (MI) County Schools (2010) –  No complaint but no excuse not to inves9gate Davis v. Monroe, 1999 •  Facts of the case •  Rulings in U.S. District Court & U.S. Court of Appeals for the 11th Circuit •  Appeal to the U.S. Supreme Court –  Jus9ce Sandra Day O’Conner 5 2/24/15 Davis v. Monroe, 1999 •  Ques9on before the Court: Could a school board be held responsible under Title IX for student-­‐on-­‐student sexual harassment. •  Ruling in the U.S. Supreme Court –  Jus9ce Sandra Day O’Conner Individuals with Disabili9es Educa9on Act •  Free appropriate public educa9on (FAPE) •  Special educa9on & related services that are: – Provided at public expense – Meet the standards of the SEA – Includes preschool, elementary, or secondary educa9on, – Are provided in conformity with the individualized educa9on program (IEP) The Davis Test •  The harassment must be severe, pervasive, or persistent; •  The harassment must have a concrete, nega9ve effect on the school district personnel must have had knowledge of the harassment •  School district personnel were delibera9vely indifferent to the harassment and failed to respond adequately to the situa9on. DCL: Bullying & Disability Harassment •  DCL issued by OSERS on August 20, 2013 –  hTp://www.ed.gov/policy/speced/guid/idea/
memosdcltrs/bullyingdcl-­‐8-­‐20-­‐13.doc •  If bullying of a student with disabili9es results in a student’s failure to receive meaningful educa9onal benefit it cons9tutes a denial of FAPE under the IDEA •  Bullying based on a disability may cons9tute discrimina9on under Sec9on 504 & the ADA 6 2/24/15 Bullying as a Denial of FAPE •  Two Elements –  Did then school personnel know, or should have know, that the effects of the bullying may have affected the student’s FAPE (academic or behavior) under IDEA or Sec9on 504? –  Did the school personnel meet their ongoing obliga9on to ensure FAPE by determining whether the student’s educa9onal needs were s9ll being met by making changes to the student’s IEP or Sec9on 504 plan Bullying as a Denial of FAPE •  School officials have an obliga9on have an obliga9on to ensure that bullied students with disabili9es con9nue to receive FAPE in accordance with his/her IEP •  The student’s IEP/Sec9on 504 team should be convened to determine the effects of the bullying and if the IEP should be modified (cau9on, avoid unilateral ac9ons!) •  If yes, a FAPE viola9on has occurred Preven9ng Bullying Addressing Bullying •  Create a school environment that is sensi9ve to disability harassment and educates students, staff, and parents about what bullying is •  Provide counseling to students who bully other and vic9ms of bullying •  Widely publicize an9 bullying policies •  Proac9vely address the needs of vic9ms •  Provide consistent and up to date training of staff about bullying based on disability, what is is and how to prevent it •  Consequences must be put in place to address the students who engage in bullying •  Implement monitoring programs to follow up on bullying and to ensure a bullying free environment •  Systema9cally assess and modify bullying policies and programs 7 2/24/15 Lessons for Educators •  Develop, publicize, and implement school district policy on preven9ng & addressing bullying •  Adopt a research-­‐based bully program –  SAMHSA’s Na9onal Registry of Evidence-­‐based Programs –  U.S. Department of Educa9on –  Na9onal Center on Posi9ve Behavior Support •  Provide professional development on bullying Lessons for Educators •  Be on the lookout for incidences on bullying –  Use common sense, be aware, don’t wait for a complaint –  Have a use friendly inves9ga9on form •  Respond to bullying quickly and effec9vely –
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Discipline the perpetrator Eliminate the hos9le environment Address the needs of the vic9m Ensure bullying doesn’t reoccur •  Document and keep all par9es informed of the inves9ga9ons THE MOST IMPORTANT LESSON D.D.D.S.!! Thank you!! 8