Special Education Law Blog

Keeping All Students Safe Act Introduced in Congress

The “Keeping All Students Safe Act,” which was introduced in the U.S. Senate last December, would limit the use of physical restraint and seclusion of students who are out of control or may pose harm to themselves or others.  According to Senator Harkin, the Democratic sponsor of the bill, “Every child should be educated in a supportive, caring, stimulating environment in which they are treated as an individual and provided with the tools they need to succeed.  They should never be subjected to abusive or violent disciplinary strategies or left alone and unsupervised.  This bill will set long-overdue standards to protect children from physical and psychological harm and ensure a safe learning environment for teachers and students alike.”

When Zero Tolerance Goes Too Far

 In our post-Columbine world and in an understandable effort to ensure that schools are safe, schools enacted “zero tolerance policies” resulting in expulsions or suspensions for infractions involving weapons, drugs, or other violent acts.  These policies were designed to ensure that schools respond harshly and consistently to serious student misconduct.  With time, however, the list of violations for which zero tolerance applies has been broadened to cover acts involving defiance, noncompliance, or disrespect.  These policies, when rigidly adhered to (and they often are), deny administrators the opportunity to consider any extenuating circumstances related to the incident, or in many cases, the application of plain common sense when meting out discipline.  One report has dubbed zero-tolerance policies as “zero-thinking policies.”  

Idaho School Focusing on Effective Suicide Prevention

Suicide is a serious and widespread issue for many students and in turn schools. Unfortunately the magnitude of this issue is sometimes only realized after a death occurs or even more than one. Administrators and principals in the Coeur d’Alene School District recently held a management retreat to address the issue of suicide prevention.  The special session was the result of four tragic suicides committed students within the district in the past 15 months. One of the saddest things about this brief blurb in the local paper was the comment posted to the newspaper’s online website, which said, “Why are we coddling these people and using taxpayer money to do it?  School is only to teach the 3 R’s, nothing more.  And only through the 6^th grade, then these parasites are on their own!” [Can only hope this person is not a parent or at least has no children under his roof!]

The callousness of the writer, who is clearly fortunate to not have had loved ones struggle with suicide or mental illness, is stunning.  According to the National Center for Health Statistics, suicide is the third leading cause of death among teens and young adults from 15 to 24 years in the United States.  The National Health Association estimates that up to 2.5% of children and 8.3% of teens in the United States suffer from depression.  At any given time, the American Academy of Child and Adolescent Psychology estimates that about 5% of children are suffering from depression.

And what about our children with special needs?  The data is limited, but Steve Forness, professor of psychiatry and bio-behavioral sciences at the University of California, estimates that 30 to 40% of students in ED classes and 10 to 20% of students in LD classes suffer from depression. Experts believe there is no mystery as to why students with special needs are more prone to depression.  These children may be predisposed to depression due to biological factors related to their disorders.  In addition these kids may suffer from the stigma of having a disorder, and their disabilities may make them stand out to their peers.  As a result, children with special needs are two to three times more likely to be victims of bullying than their non-disabled peers.  A study in a British journal stated that 60% of students with special needs reported being bullied compared to 25% of their non-disabled peers. The unfortunate reality even faced with empirical and reliable subjective data from parents and other sources, many schools continue to deny that there is an issue with bullying especially towards students with special needs. If only denying a problem could make it true, but it cannot.

Children with special needs are not alone with higher rates of depression.  Many experts believe that gifted students are also prone to depression.  These are the students who tend to be perfectionists and who are overly harsh in their self-criticism.  According to James Webb, the founder and co-director of Supporting the Emotional Needs of the Gifted, a “B” on a report card can be shattering to a gifted student.  Furthermore, Webb argues that these students can suffer from “existential depressions,” where they confront basic issues of existence, death, freedom, isolation, and meaninglessness—all issues that are difficult and painful for any 16- to 18-year-old to confront.  The even larger problem here is that given the good and even exceptional grades that gifted students receive, schools refuse to even consider these students for a case study, even in the face of a clear and imminent risk to the student’s emotional well being in school.

Fortunately, organizations like the National Association of School Psychologists (NASP), as well as the Coeur d’Alene School District, are attempting to be proactive in an effort to help depressed students and head off potential suicides.  NASP, which states that suicides may be preventable, offers detailed information and suggestions on risk factors, warning signs, what to do, and the role of the school in suicide prevention.  Many, many, many other groups are also recognizing this sobering issue and confronting it.  Parents must be aware that our children are at risk for depression.  We must not be afraid to seek help in the form of an IEP or out of school mental health services, when we suspect our children are in trouble emotionally, even when that student is getting average or above average grades.

 

 

 

A New Bill Introduced in Congress Attempts to Combat Bullying

A congresswoman out of California introduced the Safe Schools Improvement Act during the week of April 11, the measure is meant to combat bullying. The Safe Schools Improvement Act (SSIA) would amend the Elementary and Secondary Education Act to require schools and districts receiving federal funds to adopt codes of conduct specifically prohibiting bullying and harassment, the bill would also require schools to collect data on incidents of bullying.  The SSIA would also require that states report data on bullying and harassment to the Department of Education.  Additionally, the SSIA would require that school districts establish and monitor performance indicators for the prevention of bullying and would have to inform parents of who in the district is designated to deal with reports of bullying. 

Bullying is an issue that we are seeing frequently in our office. Students have required hospitalization for the physical and mental health ramifications of bullying. It is an issue that schools are often ill-equipped or unwilling to handle. With the reason string of bullying-induced suicides this is a vital issue. The bullying seems to be occurring based on real or perceived differences including a disability. The SSIA would provide accountability for the schools who are often not doing enough to stem the tide of bullying. 

 

 

Bullying In Class, On Playgrounds and Online: Schools Still Out of Touch

The Office for Civil Rights recently provided guidance on when bullying can rise to the level of a federal civil rights violation. Discrimination based on disability status was a topic covered in the OCR letter. Section 504 of the Rehabilitation Act and the Americans with Disability Act (ADA) prohibit disability-based discrimination. The recent OCR letter outlines several examples of harassment and discrimination, here is just one example and the letter's response: 

Several classmates repeatedly called a student with a learning disability "stupid," "idiot," and "retard" while in school and on the school bus. On one occasion, these students tackled him, hit him with a school binder, and threw his personal items into the garbage. The student complained to his teachers and guidance counselor that he was continually being taunted and teased. School officials offered him counseling services and a psychiatric evaluation, but did not discipline the offending students. As a result, the harassment continued. The student, who had been performing well academically, became angry, frustrated, and depressed, and often refused to go to school to avoid the harassment.

In this example, the school failed to recognize the misconduct as disability harassment under Section 504 and Title II. The harassing conduct included behavior based on the student's disability, and limited the student's ability to benefit fully from the school's education program (e.g., absenteeism). In failing to investigate and remedy the misconduct, the school did not comply with its obligations under Section 504 and Title II. 

This is just one example of the type of discrimination that is occurring in schools across the country. Bullying is an issue that we hear about from parents far too often. It is important that parent's and student's understand their rights and that schools are held accountable for turning a blind eye. A critical element of establishing responsiblity is for the parent to write to adminstrative staff who have the power and control to make meaningful changes and after being informed failed to take reasonable actions.  It is also important for parents to review and know the bullying and harassment policies for the school/district.

Fortunately President Obama has brought the power of the presidency to this issue. Many schools that I see, however, are in a profound state of denial when it comes to bullying. I have even had a few schools who meet parents' cliams of bullying with bullying conduct of their own to squelch advocacy on this topic. We should mark the just passed "Columbine" anniversary with more action especially since bullying is still so prevalent in our schools.

 

New Report on STDs and Teens

A recent report finds that  many students who claim to be abstinent from sexual activity are testing positive for STDs. The conclusion is that doctors need to do more than just take the teen patients word on their sexual activity and more outreach needs to take place.  While the report focuses on teenaged students generally, it further highlights students with special needs, who are especially vulnerable for a variety of reasons.  For many students that I represent there are particular issues of impulsive behaviors, lower self-esteem making them vulnerable to peer pressure, and lack of a meaningful curriculum that applies to them.

I was recently at an IEP meeting where the teacher actually modified the curriculum and adopted curriculum for her self contained class of students providing a diagnostic report at the end of the unit.  The teacher is young and enthusiastic about teaching, but most importantly she had the support of her special education director and superintendent. Without this leadership she would not have had the leeway to take such an innovative approach to her teaching.  Hopefully this new report will put even more emphasis on appropriate teaching to keep all students safe, and especially those who are the most vulnerable, students with special needs.

Illegal Holds, Restraint and Seclusion by Nicole T. Jorwic

Here is a message to school personnel "take your hands off the students!" I was recently at a school for a meeting for one of my clients. The meeting had gone well and I was exiting the building ready to get back to the office, when I was stopped in my tracks. I saw a young and small elementary student, who appeared to be a student with special needs, being "lead" by staff with his arms held behind his back. I also heard the offending staff saying to him "come on it's time to use the bathroom."

Seeing this sight caused my blood to boil, this student was much smaller then the staff that was manhandling him, and he was obviously in distress. I immediately said something to the staff, asking why they had their hands on the student, she retorted "who are you?" and I answered "a lawyer." The mention of the "lawyer" word (which I invoke sparingly), at least in the immediate instant, got the staff to unhand the student. I quickly explained that I was trained in the techniques that I assumed she was attempting to use and that the hold she was using was not one of the approved holds, but before she could answer I saw another, even smaller student being pulled even harder by the arm to go to the bus. At this point I was feeling like if I didn't get out of this school someone was going to have to restrain me! I calmly walked over to the new offending staff member and had a similar exchange. 

Traumatic Brain Injuries in the Spotlight on American Idol and Beyond

In the past month traumatic brain injuries have been getting a lot of media attention, from press coverage of the shooting of U.S. Rep. Gabrielle Giffords to the recent American Idol episode where contestant Chris Medina shared a personal story of his fiancée’s struggle. Medina  told “Idol” judges Jennifer Lopez, Steven Tyler and Randy Jackson that two months before their wedding, his fiancée was in a serious accident. She sustained serious brain damage, and was in a coma for a month and a half.

Mr. Medina told the judges that after she awoke, “Everything changed.” This is a phrase that all traumatic brain injury survivors and their families can relate to. His fiancée is not partially paralyzed and looks like a shadow of the person in the photographs from before the accident that were shown on the show.

TBIs occur when an external force traumatically injures the brain. BI can cause a host of physical, cognitive, emotional, and behavioral effects, and outcome can range from complete recovery to permanent disability. Because of the range of effects TBIs can be difficult to plan for and accommodate in the school setting. It is important that individuals with TBIs and their families work with the school to assure that supports are in place for students with TBIs to progress and receive a free and appropriate public education.

Adults with Developmental Disabilities Facing Dire Circumstances

Over this past year I have increasing represented families whose children need residential placements.  While I have no illusions that simply placing a child in residential is the answer to all prayers, it is almost always a the final culmination of years of trying less restrictive placements. Despite what too many school personnel think, residential placements are not an effort to rid the family of a troubling child, but rather to save the child so he or she can have a life and a real connection with the family.  

One family I represented the student was openly homicidal, but according to the school that was only at home so there was no educationally-relevant need.  Unfortunately the majority of cases (and I have researched this topic thoroughly) do not consider home-based issues of primary relevance in making a residential placement decision. I think of this case often and hope not to see his name in the paper in connection with a homicide at school or at home.  Remarkably the private day school where was placed described him as sterling citizen in the school.  This description and the overall stance seemed to be about keeping him in the private day school and the funding that went along with his placement.  I lost all respect for that staff that day!

The even more troubling situation is when students age out of residential placements. Most residential schools do not serve students over the age of 18. Moreover, as described in the video clip below, states are increasingly cutting back on funding any residential placement even though this placement is mandated under IDEIA. To paraphrase my long standing reader of this blog, Daunna Minnich, schools view students one way when they are young children but take and entirely different view when they are 18 and above. She squarely is confronting the hard and incredibly frightening reality of raising an adult with severe developmental disabilities with little or no resources. Planning is a nightmare in the best of economic times; these are obviously not even those times.  Creative juggling of time and money only goes so far, when basic issues of safety and supervision are the essential issues. Daunna eloquently and painfully puts a spot light on the reality of adults with developmental disability. I am deeply grateful to Daunna and PBS [click here for the video] for  laying out the stark reality. Now politicians need to act and reorder our collective priorities so people are in fact put first.

 

New Application for Apple Products Tries to Protect Students from Sexting

This fall Apple started to develop a technology that could help prevent sexting . This technology would allow parents to block incoming or outgoing texts containing certain words. Considering the recent incidents of sexting in the news, this would allow parents to put up one more line of defense against sexting.