Bullying and the Student with Special Needs

1. Bullying and the Student with Special Needs September 27, 2012 Susan Traynor Chastain Karen Glasser Sharp

2. Bullying - Statutory Requirements • Ind. Code 20-33-8-0.2"Bullying" Sec. 0.2. As used in this chapter, "bullying" means overt, repeated acts or gestures, including:        (1) verbal or written communications transmitted;        (2) physical acts committed; or        (3) any other behaviors committed;by a student or group of students against another student with the intent to harass, ridicule, humiliate, intimidate, or harm the other student.

3. Bullying Rules – Statutory Requirements • Discipline Rules Adopted by the Governing Body Must: • Prohibit bullying; and • Include provisions concerning education, parental involvement, reporting, investigation, and intervention.

4. When Must Bullying Rules be Applied?IC 20-33-8-13.5(b) • On School Grounds - When a student is on school grounds immediately before, during, and after school hours or at any other time the school is being used by a school group. • Off School Grounds - When a student is off school grounds at a school activity, function, or event. • Traveling to School Functions -When a student is traveling to or from a school event. • Using School Equipment -When a student is using property or equipment provided by the school.

5. Bullying Rules – Use of School ComputersIC 20-33-8-13.5(c) • The school’s bullying rules must prohibit bullying through the use of data or computer software that is accessed through a: • Computer; • Computer system; or • Computer network • of a school corporation.

6. Cyberbullying Statistics(National Crime Prevention Council) • 55% of bullied students feel angry • 43% of bullied students feel helpless • 42% of bullied students feel scared • 36% of bullied students feel vulnerable • 23% of bullied students are looking for revenge.

7. Most Common Student Responses to Cyberbullying • Ask the bully to stop. • Block the online communication with the bully. • Sign offline when the bully is online. • Talk to friends about the bullying. • Do nothing. • Least likely response is that student will talk to his or her parent about the bullying.

8. Other Forms of Harassing Conduct • Verbal acts and name calling. • Graphic and written statements which can also be made via cell phone texting or Internet. • Creating false Facebook profiles. • Other conduct that may be physically threatening or harmful. • Harassment does not have to have a specific target or involve repeated incidents to create a hostile environment. • Hostile Environment Defined - Harassment creates a hostile environment when it is sufficiently severe, pervasive, or persistent that it interferes with or limits a student’s ability to participate in or benefit from the services, activities, or opportunities offered by the school.

9. Legal Liability for Bullying • Title IX • Section 504 • Title II of the ADA • IDEA / Article 7 • Section 1983 • Indiana Tort Claims Act

10. General Legal Framework for Bullying/Harassment Claims • 1. Is the student an individual with a disability? • Was the student was harassed or bullied on basis of disability? • Was the harassment severe or sufficiently pervasive that it altered the student’s education and created an abusive environment? • Did the District know of the harassment or bullying? • If so, was the District deliberately indifferent to the harassment or bullying?

11. Title IX and Bullying • Title IX - No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

12. Estate of Brown v. Ogletree58 IDELR 128 (S.D. Tex. 2012) • Student with Asperger's was socially awkward, spoke with a lisp, was short, and had a feminine walk. • Male students called him “queer” and “gay”, said he had sex with other boys, said that he had AIDS, and purposefully bumped into him to simulate sexual acts. • Parent repeatedly complained to school staff, school staff told parents they would respond. • Nothing was done by school staff and student committed suicide. • Student’s mother sued on behalf of the student’s estate for gender discrimination under Title IX and disability discrimination under Section 504.

13. May the Discrimination Lawsuit Proceed to Trial? • Yes. The severity of the bullying alleged and the district’s alleged apathy were sufficient to support a Title IX claim. • A district may be liable for sexual harassment under Title IX if: • The harassment is sufficiently severe, pervasive, and objectively offensive; • The harassments bars the victim’s access to educational opportunity; and • The district is deliberately indifferent.

14. Bullying and Section 504 / ADA • Section 504 • No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

15. Preston ex rel. A.P. v. Hilton Central School District112 LRP 36253 (W.D.N.Y. 2012) • High school student with Asperger’s was repeatedly taunted by other students with profanity-laden insults that included references to autism and intellectual disabilities. • The parents repeatedly complained to the district about these slurs based on the student’s disability. • The School did not investigate the harassment allegations. • The district was held liable for this peer-on-peer harassment. • The School’s failure to investigate, even though not motivated by discriminatory animus, constituted deliberate indifference to disability-related bullying.

16. Estate of Lance by Lance v. Kyer112 LRP 46066 (E.D. Tex. 2012) • 9-year old student with a disability who had been bullied committed suicide in a school restroom. • Parents filed Section 504, ADA, and Section 1983 claims against the School. • The School had adopted a policy of not investigating any reports of bullying, regardless of whether the victim is a student with a disability. • Court held that while the School’s course of action was inadequate, “risky” and unfortunate, the School’s alleged failure to investigate the bullying was unrelated to the Student’s status as a student with a disability and rejected the parents’ 504, ADA, and 1983 claims.

17. G.M. by Marchese v. Drycreek Joint Elem. Sch. Dist.112 LRP 45036 (E.D. Cal. 2012) • A student with dyslexia was bullied 5 times within 6 months in his PE class. • After the first incident, which involved name calling and hitting, the teacher vowed to watch the situation. • When a similar incident occurred a month later, the teacher and a school counselor met with the alleged harassers and barred them from working in a group with the student. • The School responded and took action after each additional incident, including having the counselor and the principal talk to the harassers.

18. G.M. by Marchese v. Drycreek Joint Elem. Sch. Dist.112 LRP 45036 (E.D. Cal. 2012) • The parents sued under Section 504, claiming the School knew the student was the subject of systematic harassment but was deliberately indifferent. • The Court held that deliberate indifference requires the parents to show that the district knew of the harm and failed to act upon it. • The Court ruled in favor of the School, noting that the teacher talked to the harassers after each incident. She also brought the School Counselor in to provide additional support. The counselor and principal spoke to the harassers, and the harassers were moved away from the student.

19. Corrective Action Under Section 504 and ADA • Once district is on notice of harassment, it needs to take the following steps: • Work with parents and students to develop procedure that allows them to report abuse in a timely manner. • Maintain a report of all complaints received and the district’s response to same. • Consider whether systemic action like staff training is needed to address the harassing conduct. • Inform parent of right to file grievance under Section 504.

20. Corrective Measures Include: • Disciplining the perpetrator. • Consultation with Section 504 Coordinator to ensure school’s response to reported bullying is thorough. • Training staff to recognize disability discrimination. • Monitor harassment to ensure it does not reoccur.

21. Impact of Bullying on District’s Special Education Obligations • Bullying as trigger to child find. • Bullying and eligibility. • Bullying and Duty to Reevaluate. • Bullying and FAPE. • Possible Remedies • Compensatory education. • Tuition reimbursement.

22. Bullying and Child FindNorthwest Indep. School District59 IDELR 118 (SEA Tex. 2012) • A student suffered from depression, had excessive absences, a decline in grades, and daily disciplinary incidents. • Student’s parent also claimed that Student was bullied. • Parent claimed that district breached its Child Find duties when it failed to identify this Student as IDEA-eligible.

23. Bullying and Child FindNorthwest Indep. School District59 IDELR 118 (SEA Tex. 2012) • District officials showed that despite diagnosis of depression, the student appeared happy at school, had friends, and made good grades. • The District also investigated each bullying incident and determined that the student instigated the majority of the incidents and was not bullied. • The student’s absences were attributable to stomach problems. • The only class where Student’s grade dropped was a rigorous elective. Student earned good grades in all other classes, including advanced placement classes. • No breach of Child Find duty.

24. Bullying and FAPEClark County Sch. Dist.112 LRP 27516 (SEA NV. 2012) • Parent claimed student was bullied on the bus, including an incident where he was hit on the head. Parent requested that student be moved to the special education bus, but the district declined the parent’s request. • District responded to alleged bullying by providing the student with “buddies” to sit with on the regular bus. • The plan fell through when the buddies forgot to sit with the student. • Thereafter, the parent placed the student in a private school and sought reimbursement.

25. Bullying and FAPEClark County Sch. Dist.112 LRP 27516 (SEA NV. 2012) • The student’s grades declined, but it was prior to the reported incidents. • Other factors led to the decline, including new grading standards and the student’s increased absenteeism. • The IHO ruled that if a teacher is deliberately indifferent to bullying and the abuse is so severe that the child can derive no benefit from his education, the child has been denied FAPE. • IHO concluded that School did not deny FAPE to the student and denied parent’s request for reimbursement.

26. Bullying vs. Harassment • Ind. Code 20-33-8-0.2 “Bullying”:"bullying" means overt, repeated acts or gestures . . . by a student or group of students against another studentwith the intent to harass, ridicule, humiliate, intimidate, or harm the other student. • Must be repeated acts • There is a targeted student • Intent must be assessed

27. Bullying vs. Harassment • But even if certain behaviors are not within the definition of bullying, they may constitute “harassment” within the meaning of the various civil rights statutes • Schools are obligated to investigate instances of harassment on the basis of disability even if it does not meet the definition of bullying

28. OCR Guidance • OCR issued a “Dear Colleague Letter” on October 26, 2010, which: • Clarifies the relationship between bullying and discriminatory harassment under the civil rights laws enforced by OCR • Explains how student misconduct that falls under an anti‐bullying policy also may trigger responsibilities under one or more of the anti‐discrimination statutes

29. OCR Guidance • Reminds schools that failure to recognize discriminatory harassment when addressing student misconduct may lead to inadequate or inappropriate responses that fail to remedy violations of students’ civil rights • Discusses racial and national origin harassment, sexual harassment, gender‐based harassment, and disability harassment and illustrates how a school should respond in each case

30. OCR Guidance • Purpose of the DCL: • The DCL was issued to clarify the relationship between bullying and discriminatory harassment and to remind schools that by limiting their responses to a specific application of an anti‐bullying or other disciplinary policy they may fail to properly consider whether the student misconduct also results in discrimination in violation of students’ federal civil rights

31. OCR Jurisdiction • OCR enforces: • Title VI • Title IX • Section 504 • Title II of the ADA

32. OCR Guidance • School’s obligations under these statutes: • Once a school knows or reasonably should know of possible student‐on‐student harassment, it must take immediate and appropriate action to investigate or otherwise determine what occurred

33. OCR Guidance • If harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment, and prevent its recurrence • These duties are a school’s responsibility even if the misconduct also is covered by an anti‐bullying policy and regardless of whether the student makes a complaint, asks the school to take action, or identifies the harassment as a form of discrimination

34. OCR’s 10-26-10 DCL • Difference between bullying and harassment: • Bullying is repeated acts, directed at a specific student, and includes intent to harm • Harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents

35. What this means to schools • Danger in addressing bullying solely as a disciplinary issue if the basis for the bullying is harassment due to membership in a protected class • If a student is bullied because of his/her disability, the school cannot simply discipline the perpetrator but must investigate and remediate the harassment • May be harassment even if not “bullying” • Failure to investigate could violate Section 504

36. Reasons to investigate • Must address bullying under discipline code • Must investigate potential harassment • Even when bullying or harassment is not a civil rights violation, schools should still seek to prevent it in order to protect students from the physical and emotional harms that it may cause

37. Effects of Harassment and Bullying • Lowered academic achievement and aspirations • Increased anxiety • Loss of self‐esteem and confidence • Depression and post‐traumatic stress • General deterioration in physical health • Self‐harm and suicidal thinking • Feelings of alienation in the school environment, such as fear of other children • Absenteeism from school

38. What is harassment? • Harassing conduct may take many forms, including: • verbal acts and name-calling; • graphic and written statements, which may include use of cell phones or the Internet; or • other conduct that may be physically threatening, harmful, or humiliating • When such harassment is based on race, color, national origin, sex, or disability, it violates the civil rights laws that OCR enforces

39. Examples • Several students continually remark out loud to other students during class that a student with dyslexia is "retarded" or "deaf and dumb" and does not belong in the class; as a result, the harassed student has difficulty doing work in class and her grades decline • A student repeatedly places classroom furniture or other objects in the path of classmates who use wheelchairs, impeding the classmates' ability to enter the classroom

40. Examples • A teacher subjects a student to inappropriate physical restraint because of conduct related to his disability, with the result that the student tries to avoid school through increased absences • A school administrator repeatedly denies a student with a disability access to lunch, field trips, assemblies, and extracurricular activities as punishment for taking time off from school for absences related to the student's disability

41. School’s obligations • A school is responsible for addressing harassment incidents about which it knows or reasonably should have known • A school has notice of harassment if a responsible employee knew, or in the exercise of reasonable care should have known, about the harassment

42. What constitutes notice? • 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

43. What constitutes 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

44. Policies and procedures • In all cases, schools should have well-publicized policies prohibiting harassment and procedures for reporting and resolving complaints that will alert the school to incidents of harassment

45. Policies and procedures • Schools must: • adopt and publish grievance procedures providing for prompt and equitable resolution of sex and disability discrimination complaints • notify students, parents, employees, etc. that the school does not discriminate on the basis of sex or disability

46. Responding to harassment • When responding to harassment, a school must take immediate and appropriate action to investigate or otherwise determine what occurred • The specific steps will vary depending upon the nature of the allegations, the source of the complaint, the age of the student or students involved, the size and administrative structure of the school, and other factors • In all cases, the inquiry should be prompt, thorough, and impartial

47. Addressing harassment • If an investigation reveals that discriminatory harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring

48. Addressing harassment • These duties are a school’s responsibility even if the misconduct also is covered by an anti-bullying policy, and regardless of whether a student has complained, asked the school to take action, or identified the harassment as a form of discrimination

49. Addressing harassment • Appropriate steps to end harassment may include: • separating the accused harasser and the target, • providing counseling for the target and/or harasser, or • taking disciplinary action against the harasser

50. Addressing harassment • These steps should not penalize the student who was harassed • For example, any separation of the target from an alleged harasser should be designed to minimize the burden on the target’s educational program (e.g., not requiring the target to change his or her class schedule)