Special Education Law Blog

The Real Harm of Bullying

October was National Bullying Prevention month. Throughout our nation’s schools, students attended pep rallies, signed petitions, wore t-shirts with anti-bully messages, and participated in anti-bully marches. Anti-bullying Facebook pages, some with extraordinary amounts of helpful resources and information, were created. It was all a wonderful display of anti-bully sentiment which ensured that everyone was thinking about bullying behavior and its consequence, at least for awhile. So what happens in November? Now that anti-bullying month has ended, what is occurring today in your child’s lunchroom or on the playground? Were the October messages enough to reduce bullying? What really works to help reduce bullying? There is a huge amount of literature on the best methods and curriculums to defeat bullying. Yet some of it is contradictory. One strategy from one anti-bullying expert is deemed misguided by another. To add clarity to this discussion, the U.S. Department of Health and Human Services has defined 10 best practices for bullying prevention. Those 10 strategies are:

1. Focus on the social environment of the school

2. Assess bullying at your school

3. Garner staff and parent support for bullying prevention

4. Form a group to coordinate the school’s bullying prevention activities

5. Train your staff in bullying prevention

6. Establish and enforce school rules and policies related to bullying

7. Increase adult supervision in hot spots where bullying occurs

8. Intervene consistently and appropriately in bullying situations

9. Focus some class time on bullying prevention.

10. Continue these efforts over time.

Teaching Critical Skills to Become a Learner Not Just a Student

That standardized test scores can accurately predict whether a student will attend college, be gainfully employed, and be successful in life have become the bulwark of educational policy in this country.  How kids “measure up” on tests are linked not only to teacher performance evaluations, but also to determinations of whether or not a school is considered successful or a failure under No Child Left Behind. But standardized tests don’t tell the whole story about a student.   In fact, some researchers now argue that a student’s grades are better predictors of overall success in life than standardized scores.  Those seemingly intangible factors which keep a student in school and persevering—resilience, self-control, and grit--may be far more important in the long run than short-term mastery of course content.  

Travel Training a Key Missing Piece in Transition Plans for Students with Disabilities

Young adults with moderate to severe disabilities who age out of special education if at all possible must have the skills to navigate safely through their community using public transportation for the purposes of employment, post-secondary education or training, or recreation or leisure.  To lack these skills means that these young adults may effectively be trapped in their homes due to their constant dependence upon others for transportation.  “Travel training,” as this skill is called, can be taught, preferably well before the completion of high school.  (A different skill is taught to young adults who are blind or visually impaired.)  However, travel training is an often under-looked yet vitally important component of a child’s transition plan.  The Government Accountability Office cites limited access to reliable public transportation as a major obstacle for individuals with disabilities and may be one of the reasons for the high unemployment rate among young disabled adults compared to their peers (13.5% vs. 7.3%).  

Transition plans, which are the blueprint to assist the child in reaching his post-high school goals, are developed as part of an IEP usually when the child turns 14 but no later than 16.  A thoughtfully written transition plan will carefully delineate the steps needed to ensure the student can achieve those post-high school goals.  And for appropriately identified students, travel training can be a key related service in the transition plan.

Minority Students & Students with Disabilities Suspended at a Higher Rate

The Civil Rights Project (Proyecto Derechos Civiles) released a study in March demonstrating that minority students and students with disabilities are suspended at a far higher rate than their non-disabled or non-minority peers. At first blush, this is not news.  Other researchers have already documented these disproportionate rates, which have even been discussed in this blog.   But the new study, “Opportunities Suspended:  The Disparate Impact of Disciplinary Exclusion from School,” is different for two primary reasons. First, the authors, Daniel Losen and Jonathan Gillespie, use data from the Civil Rights Data Collection survey from the Department of Education, thereby providing the most comprehensive and exhaustive review of what is happening in our nation’s schools.  These DOE data are from 7000 schools districts and represent 85% of our nation’s students.  Second, the Civil Rights Project does not solely focus on the problem states or the problem districts that are suspending students at such horrific rates.  The study also provides the data for those states and districts that are not engaging in high suspension rates.  These districts have figured out how to keep students in school and engage them in learning.  These are the districts from which we need to learn. 

Retaliation Against Parents for Advocating: An Emerging Trend

Retaliation against parents for advocating on behalf of their special needs children with their school district is an unpleasant topic.  No one really knows how often retaliation occurs, but clearly it has happened frequently enough for parental advocacy to be protected by Federal statute.  Not only do Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) protect the disabled against discrimination, they also protect those acting on their behalf to ensure the rights of the disabled.  Specifically, Section 504, which references Title VI of the Civil Rights Act of 1964, states that recipients of Federal funds, which would include school districts, “shall not intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by the Act, or because the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part.”

Retaliation can be defined as “using official resources to ‘punish’ parents,” and it can take a wide range of forms from refusing to respond to emails or return phone calls, not allowing parents to view records, or continually canceling school meetings and conferences.  But sometimes the retaliation can be more sinister.  Anecdotally the internet is filled with stories of parents who claim their school districts have reported them to child protective services, filed truancy charges against them, or had restraining orders imposed on them, all as the result of their advocacy on behalf of their children. 

 

Food Allergies in School, How to Deal

In 2008, the Centers for Disease Control (CDC) estimated that almost 3 million children, or 1 in 25, had food allergy.  More recently in 2011, the CDC estimated that up to 6 million children, or one in 13 children, had food allergies. Practically speaking, this means that about two children in every classroom have food allergies. Additionally, almost 40% of children with allergies have had severe reactions, and nearly 30% are allergic to multiple foods.  Clearly, food allergies are becoming an increasingly serious problem for our nation’s children.

Recognizing the gravity of this problem, state legislatures are promulgating new laws to enable school staff to respond more rapidly to life-threatening anaphylactic reactions.  Current legislation has allowed schools to store and administer medication; namely, EpiPens, to students having allergic reactions provided a doctor’s prescription is on file.  Additionally, most states allow students to self-carry and self-administer EpiPens in the event of a reaction.  This protocol is problematic, however, in the event that a child forgets his or her medication, school personnel are either unavailable or unable to access the locked medication, or the reaction is occurring in a student with an undiagnosed allergy, which unhappily occurs frequently.  In fact, up to a quarter of severe allergic reactions occur in persons not previously diagnosed with food allergy, and up to 25% of first time reactions to peanuts or tree nuts have occurred in school settings.  Across the country, children have died while school staff waited helplessly for paramedics after calling 911.  In response, Illinois passed legislation last summer that allows schools to stock pile EpiPens, and, in an emergency, permits school nurses or other trained staff to administer medication to students with previously undiagnosed allergies who are experiencing life-threatening allergic reactions. Similar legislation is pending in five different states and in the federal government as well. 

Low Enrollment of Students with Disabilities in Charter Schools

The Government Accountability Office (GAO) recently released a report indicating that Federal intervention is needed to ensure that students with disabilities have access to their right to a Free Appropriate Public Education in the charter school setting. Charter Schools must adhere to Federal law, including the IDEA. However,  the report indicates that fewer students with disabilities enrolled in public charter schools (8.2%) than enrolled in traditional public schools (11.2%). Compared to traditional public schools, charter schools enrolled a lower percentage of students with intellectual disabilities (0.84% compared to 0.45%).

We have seen this problem in our office with the influx of charters being granted by strapped school districts. Unfortunately some charter schools misrepresent their ability to program for students with disabilities and some students are losing a year plus of a FAPE because they are not being appropriately supported in the charter school setting. The situation can also be confused further because every state has different laws as to who is the LEA (local education agency). When school districts get sued for the failure to provide a FAPE in a charter school, the finger pointing can often begin. The Department of Education said in response to the report that it would issue new guidance to charter schools on their obligations to serve all students. 

Maintenance of Effort Maintained

Advocacy groups and special education students won a recent victory this April when the Department of Education’s Office of Special Education Programs rescinded its instructions to school districts from last June that would have effectively allowed school districts to make permanent reductions in their spending on special education. School districts, however, are not happy as they want flexibility to cut and reallocate funds from special education  budgets.

Incarcerated Youth with Disabilities

It is extremely difficult for youth who have been living in correctional facilities to return to their communities, families, schools, and employment.  Because the youth are very likely to be returning to the very same environments into which they got into trouble in the first place (e.g., poverty, chaotic schools, substance abuse issues, or dysfunctional families), their rate of recidivism is extremely high.  According a new report from Project Forum released last December, approximately 55% of youth return to detention facilities or prisons within 12 months of their release. And that number is even higher for youth with disabilities.  As one researcher commented, “the most difficult part of many youths’ experience in the juvenile justice system is not being confined, but returning home.”

How many youth are incarcerated in our country, and what disabilities do they have?  In 2007, more than 87,000 youths were held in juvenile correctional facilities; an additional 3,650 were in state prisons.  Of these numbers, youth with disabilities are overrepresented.  One study showed that whereas only 9% of youth in our nation’s schools are eligible for special education services, an estimated 37% of youth in the juvenile justice system receive services under IDEA. Some reports suggest that the number of incarcerated youths with special needs in fact ranges from 30 to 70% of the population.  Of incarcerated youth, between 65% and 90% could be diagnosed with at least one mental health disorder.  Additionally, it is estimated that approximately 10% of incarcerated youth have learning disabilities, 50% have emotional disorders, 12% have intellectual disabilities, and as many as 50% have AD/HD. 

These youthful offenders have likely been served poorly by their home schools.  They have also likely been served poorly through the educational programs offered by the juvenile justice system.  Even though incarcerated, students who receive special education services are still entitled to FAPE (free and appropriate public education).  But the provision of FAPE can be problematic for youthful offenders. Incarcerated youth can be moved frequently, IEPs and educational records (if they are even obtained from home schools) do not always follow the offenders, families are minimally involved with educational planning, and some of the disciplinary procedures used for offenders are unhelpful to them educationally.  This is regrettable, because we know that youths who progress academically while incarcerated will have lower recidivism rates.

Despite the glum numbers, we know youth with disabilities who are engaged in work or school during the first three months of their release are 3.2 times less likely to return to custody and 2.5 times more likely to remain working or enrolled in school 12 months after leaving the correctional facility. These youth can successfully be returned to society. Thus, it is imperative that good transition programs are developed for these youth to ensure successful outcomes for them. 

To that end, Project Forum conducted a review of programs in four states (Arizona, Georgia, Hawaii, and Oregon) that offer what are considered “best practices” in their reentry programs for incarcerated youths. Historically, re-entry programs for youth tend to be fragmented, and too many offenders fall between the proverbial cracks of the system.  One of the main problems is that youth leaving correctional facilities are aging out of child-oriented social programs and being funneled into adult-oriented services.  Many of these adult programs are developmentally inappropriate for youthful offenders, who can be left floundering.

 To address these gaps in service, each state identified by Project Forum offered comprehensive, multi-disciplinary wrap-around programs to ensure that the needs of youth are met upon release.  Key to each of the programs is the use of a transition coordinator, who establishes relationships with the youths before their release, ensures that community-based services are set in the community upon release, and then continues to follow the youth once they are back in the community. In addition, each state is addressing the educational, employment, social and behavioral, substance abuse, housing, and transportation needs of recently released youth. 

 It is not inevitable that incarcerated youth will return to detention facilities, but the odds are stacked against them.  But as demonstrated by the Project Forum report, youth can be successfully transitioned back into their communities. However, it will take a lot of effort on the part of the juvenile justice system, communities, and social services agencies as well as the released youths and their families to succeed.

 

Retention v. Social Promotion

A mother in the Bronx is arguing against the social promotion of her 11-year-old son with special needs because she believes he is not ready for 6^th grade.  What the mother is asking for seems reasonable—if her son has failed to master 5^th grade work, why would he be able to do 6^th grade work?  Yet, the school’s desire to socially promote the student is unusual.  But is the alternative, grade retention, a more viable option? 

Social promotion became popular in the 1970s due to fears that its alternative; namely, retention, led to issues with self-esteem for those students who were “flunked” a grade.  However, social promotion fell into disfavor in the 1980s with the recognition that students who were receiving high school diplomas were ill­-prepared for either college or work.  Social promotion went on to became a political issue when President Clinton, in his 1999 State of the Union Address, declared that, “No child should graduate from high school with a diploma he or she can’t read.  We do our children no favors when we allow them to pass from grade to grade without mastering the material.”