Special Education Law Blog

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.

Programming for Twice Exceptional Students

Although it seems almost a contradiction, children can be both gifted and have special needs, such as learning disabilities.  Yet, because of their unique blend of talents and challenges, these students, known as “twice exceptional” or 2e students, can be difficult to identify and diagnose.  Often their combinations of intelligence and special needs mask each other, leaving the child performing at grade-level.  Other 2e children have been identified as learning disabled with teachers who may be unaware of the student’s high cognition.  Conversely, those students who are identified as gifted but not LD may fail to meet their potential, leaving them underperforming, frustrated, and often with significant emotional issues.  School districts may label these students lazy or unmotivated, and it can be difficult for parents to convince schools that the student has a disability that is affecting their performance in school. 

 “Giftedness” is not recognized as a disability under the Individuals with Disabilities Education Act (IDEA), and it can be difficult for some families to obtain special programming for gifted children.  Where families live can make a difference.  According to the National Association for Gifted Children, only about half of states (28 in 2008-2009) had a mandate to identify gifted children.  How many of these states go further to identify those students who are both gifted and have a disability is unclear.  Some states, such as Colorado and Idaho, have clear policies with accompanying guidelines on their websites.  The National Association for Gifted Children has an interesting web page that provides data on gifted education by state, which parents may find useful.

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.