Special Education Law Blog

Threat Assessment Plans and Students with Special Needs by Charles P. Fox and Marilyn Green-Rebnord

It has happened again--yet another school shooting in our country with multiple fatalities.  This shooting is the 16th school shooting this year, an average of about one every week.  Parents and teachers are terrified, students are marching, politicians are offering thoughts and prayers, and administrators are struggling with how to protect our nation’s students.  We can anticipate over the next few days that someone will proclaim that the latest violence is the result of a “sicko;” we could not, however, predict that incoming NRA president Oliver North would blame the shootings on a culture of violence and all of the boys who have been on Ritalin since “their early years.”  Comments such as this only serve to increase the stigmatization of students with mental health issues or special needs. We must not let this happen.  The purpose of this blog is not to address the need for commonsense gun laws.  Instead, it focusses on addressing other strategies that can help prevent school violence, such as threat assessment plans, and recognizes what does not work, such as profiling of students with special needs (a la Oliver North).  

#MeToo and the Disability Community

Women across the world are embracing the hashtag #MeToo to publicly share their own experiences with sexual abuse and assault and to seek empowerment. The result of this movement has sent shock waves through our society as powerful figures in politics, journalism, and entertainment have been identified as abusers and suffered consequences.  Yet one group has been conspicuously absent from this conversation—the disabled.  And unfortunately, the disabled are among the most vulnerable in our society to sexual abuse and assault. Nancy Thaler, deputy secretary of the Pennsylvania Department of Human Services, said, “If this were any other population, the world would be up in arms.  We would be irate and it would be the No. 1 health crisis in this country.” 

Mental Illness and Gun Violence--A False Fallacy

Mass shootings keep happening. Mental illness is the easy answer but not the cause.  Almost monthly we read about horrific shootings in Las Vegas, Orlando, or small towns in Texas and California.  The subsequent finger pointing continues as to why these shocking killings keep occurring.  Whether you are for additional gun control laws or against, we clearly need to have a reasoned discussion about the root causes of these shootings.  These discussions need to be predicated on one fact:  we must not equate these shootings with mental illness. It is too facile to claim as did the President that “mental health is your problem here,” or that “Guns don’t kill people—the mentally ill do,” as did Ann Coulter. These statements are inaccurate and fail to recognize how complicated and nuanced the intersection between gun violence and mental illness is, because data show that the nexus is actually quite small. 

Although the image of a lone psychopathic mass shooter is an easy narrative to adapt to understand gun violence, the reality is that persons with mental illness are far more likely to be the victims of violence than the perpetrators.  According to the  Department of Health and Human Services, persons with severe mental illness are 10 times more likely to be the victims of violent crime than the general population. For instance, people with schizophrenia are 14 times more likely to be victims of violent crime than they are to be the perpetrator.  Convenient as it is blame the violence on mental illness, doing so risks further stigmatization of mental illness and subsequent failure for persons who need mental health care to seek treatment.

COPAA Applauds FDA Ban On Use of Electrical Stimulation

I am reproducing this press release from COPAA. It is always great to have a reason to celebrate progress even if long overdue. Ban specifically prohibits use due to significant psychological and physical risks. There is much more work that needs to be done on issues related to restraint, time out and universal use of nonaversive behavioral intervention in favor of positive proactive measures, but this announcement is an important step on that path.

WASHINGTON, DC – In support of the U.S. Food and Drug Administration (FDA) announcement to issue a ban on the use of electrical stimulation devices (ESDs) intended to reduce aggressive or self-injurious behaviors that disproportionately are used on people with intellectual or developmental disabilities, The Council of Parent Attorneys and Advocates, Inc. (COPAA) issued the following statement:

“I read this news with tears in my eyes and warmth in my heart to know that the end to this barbaric practice is finally in sight” stated Denise Marshall, COPAA executive director. “Too many labeled individuals have repeatedly suffered torture and abuse on the basis of their disability. We know this announcement cannot erase their pain, so in the words of Albert Einstein we must ‘Learn from yesterday, live for today, hope for tomorrow.’ Thank you to the FDA for taking this strong stance in protection of the rights of individuals with disabilities to be free from abuse.”  

Marshall continued, “COPAA has been at the forefront of this issue since 2008 with the release of our Declaration of Principles calling for every student in this country to be treated with dignity and respect and affirming that no person with a disability should be subjected to abusive treatment under the guise of providing [educational] services. We have repeatedly and unequivocally pushed for a ban because aversive techniques should never be used as planned consequences of their behavior or symptoms of their disability. Congratulations to all of our colleagues and the families whose relentlessness advocacy has made this happen!” 

For more information, please view the Federal Register display notice and the FDA Medical Device Bans webpage.

PTSD for People with Intellectual Disabilities

In recent years I have seen a disturbing trend of students with intellectual disabilities coming into my office with severe signs of PTSD, and in many cases given limited language abilities the issues can be very intractable. We are becoming much more aware of post-traumatic stress disorder (PTSD), perhaps because of the experiences of our service men and women in overseas deployments, and its devastating effects on those who suffer from it. However, PTSD as a distinct diagnosis did not enter the DSM-3 until 1980. PTSD, which occurs after exposure to such traumatic events as threat to life or severe injury to self or others, occurs in roughly 20 to 30% of people exposed to such traumatic events. Recent research suggests that those individuals with higher IQs are able to weather the effects of such traumatic events better, perhaps due to their ability to process and discuss their emotional reactions, as well as to gather the resources to ensure a support network. But persons with diminished cognitive abilities are not as fortunate, and it is only fairly recently that we have begun to appreciate that those persons with cognitive impairments are affected by PTSD; in fact, lower intelligence may even be a risk factor for PTSD. How often PTSD occurs in this population, however, is uncertain.

Miranda Rights and Your Child

Although I am a special education attorney and not a criminal defense attorney, occasionally I receive phone calls from parents who are angry and concerned because their child has been questioned or searched by school officials for disciplinary infractions or worse. Occasionally these incidents involve school resource officers or police, particularly when drugs or alcohol are involved. Fundamentally, these parents want to know:  were my child’s legal rights violated?  Can my child be questioned by the school or police without my knowledge or consent?  Can my child or his or her possessions be searched? This issue comes up a lot and all too often with serious consequences for the student. Schools play on their authority and make false promises to induce "confessions" even from student with language-based disabilities. Criminalization of school students especially those with special needs is large issue that has not been effectively addressed.

Law Enforcement and Disability

The recent deaths of Michael Brown of Ferguson, MO, Eric Garner of New York City, and 12-year-old Tamir Rice of Cleveland have brought to the national consciousness painful questions about race and police response.  Clearly, much hard work needs to be done to examine these questions further and find  solutions.  Although there is no indication that any of these victims had mental health or developmental issues, their deaths beg a subsequent question: “what happens when persons with disabilities or those with mental health issues interact with law enforcement?”  It’s an important question because up to 15% of all 911 calls in our country involve suspects who either have a mental illness or another disability. And the sad answer to the question is that these suspects fare very, very badly. Approximately half of those shot by police in the line of duty are estimated to have had mental health problems or other disabilities.

A Complete Breakdown in Support Systems in Sandy Hook Tragedy

The Connecticut Office of the Child Advocate has just released the results of its exhaustive study of the December 2012 horrific shooting at Sandy Hook Elementary School, which left 20 children and six educators murdered along with the shooter and his mother.  While the report recognizes the “ubiquitous” presence of guns as a causal factor, it carefully states that it is not assigning blame on any one individual or institution in its review.  Additionally, the report stresses that individuals with autism or such mental health issues as OCD and crippling anxiety, all diagnoses which Adam Lanza possessed, do not inherently become mass murderers.  When these conditions go untreated, however, they can still be destructive to the individual, the family, and the community.  The report is a sad, lengthy treatise depicting numerous lost opportunities and failures to communicate and coordinate care among the school system, parents, pediatrician, community psychiatrist, emergency room, and ultimately the Yale Child Study Center, which raised an urgent alarm about Adam Lanza’s deteriorating mental health—an alarm that went unanswered and unconsidered in Adam’s subsequent IEPs. The school district was overly focused on meeting Adam’s perceived curricular needs and not his urgent mental health needs.  Though the Child Advocate report clearly states that “no direct line of causation can be drawn” from the lapses and the ultimate mass murder, lessons clearly must be learned from this tragedy.

Role of School Staff in the Recovery of Students with Concussions

We are hearing a lot about concussions in the news these days.  To the recent disbelief of sports commentators and fans, a University of Michigan football coach left a 20-year-old quarterback in a game after a blow to the head despite his stumbling in the field immediately after impact. Meanwhile, NFL players have regularly been making the news for, to put it delicately, behaving badly.  There is speculation that some of the domestic violence in which these players have engaged may be the result of head trauma, a hypothesis deemed plausible by a University of Pennsylvania professor known as a “neurocriminologist.”  The fact remains, however, that concussions are traumatic brain injuries.  Although most patients with concussions are expected to recover fully, young children and teens, because of their developing brains, along with the elderly, are most vulnerable to the effects of concussion.  Thus, these children will need careful monitoring as they return to school and other activities.   

OCR Guidance On Bullying in Schools

The Department of Education recently released an extensive Dear Colleague letter  (Download Colleague-bullying-201410-1) detailing past guidance on the obligations of schools when students with disabilities are bullied either because of their disability or for any reason. The recent letter adds further guidance on this issue. One obligation that comes across repeatedly in this guidance letter is the need for school personnel to immediately investigate and respond to episodes of bullying in school. This recent OCR letter should provide a road map for addressing and advocating for students with disabilities who have been bullied in school. As an attorney and parent, I greatly appreciate the leadership of OCR on this painful issue.