Special Education Law and Academia: New Law Review Article

Academia Oamenilor de Stiinta din Romania / Th...Academia Oamenilor de Stiinta din Romania / The Academy of Romanian Scientists (Photo credit: cod_gabriel)


One of the truly cool things about doing this blog is that it has received a good reaction from the academic community. We appreciate their support.  Some of our favorite professors have their own blogs and are listed on the lefthand side of this blog. I was going to mention all of our friends in academia, but I was afraid that I might forget somebody.  So I'll just focus on a few. You know who you are and thank you.

And the academic community has been very kind to me and this blog.  For example, while I was doing a hearing officer training for the Part B and Part C hearing officers in South Carolina last year, I had the privilege of meeting Professor Mitchell Yell. He honored me by mentioning the blog, and he gave me a copy of his textbook, "The Law and Special Education."  It is a valuable resource.

Another good friend of this blog is Professor Mark Weber of DePaul University School of Law. Mark is one of the thinkers in the field of special education law, an to my knowledge he is still the only person to cite this blog in a law review article.

He has also provided a useful treatise.  Recently though, he sent me a copy of a recent law review article, "Common-Law Interpretation of Appropriate Education: The Road Not Taken in Rowley," 41 Journal of Law & Education  95  (January 2012). Too frequently, those of us who practice special education law take the few established principles in our field for granted. (As I have bemoaned, special education law is closer to metaphysics that contract law.)  For example, it is important to occasionally examine the Rowley standard and how it applies to our cases.

In the article, Professor Weber notes that without waiting for a clear conflict in the circuit courts to develop, the Supremes defined FAPE in Rowley as the basic floor of opportunity and in so doing foreclosed the opportunity to develop a common law of appropriate education. He points out that lower courts and commentators before Rowley and opted for a proportional maximization approach, meaning that appropriate would require services that would develop a child's ability to the same extent that non-disabled children are developed.  He also predicts that a number of categories of cases, while not rejecting Rowley, do not fit squarely within the "some benefit" standard Rowley establishes.

Obviously, I have summarized a long article here for our readers.  As with all articles by professor Weber, this one is a must read if you practice special education law.  Thanks for sharing it.
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Bullying of Children with Disabilities - Part VI

Some states of the United States have implemen...Some states of the United States have implemented laws to address school bullying. Law prohibits bullying of students based on sexual orientation and gender identity Law prohibits bullying of students based on sexual orientation School regulation or ethical code for teachers that address bullying of students based on sexual orientation Law prohibits bullying in school but lists no categories of protection No statewide law that specifically prohibits bullying in schools (Photo credit: Wikipedia)
 
 
 
 
 
 
Bullying remains the hottest of hot button issues in special education law.  In the first installment of this series, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA.  In later installments, I have discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011).  This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.

Here is more from the court...these are not my words:
 

2. Distinguishing Bullying From Horseplay

Every disagreement among children does not amount to bullying. "What distinguishes bullying from other forms of childhood aggression, whether a hard-fought basketball game or rough-and-tumble play, is unequal and coercive power." Philip C. Rodkin, Bullying and Children's Peer Relationships, in White House Conference on Bullying Prevention, at 33 (March 10, 2011), available at http://www. stopbullying.gov/references/white_house_conference/index.html. See also, Olweus, supra, at 10 ("It must be stressed that the term bullying is not . . . used when two students of approximately the same strength . . . are fighting or quarreling."). Increased power need not be actually present, but there must be at least a perceived advantage for the bully either physical or psychological. Id.; Bonnie Bell Carter and Vicky G. Spencer, "The Fear Factor
[ 779 F.Supp.2d 301 ]

and Students With Disabilities," 21 Int'l J. of Special Educ. 11, 12 (2006).
The bully-victim connection can be viewed as the opposite of a healthy peer relationship. Peers are equals on the same social standing, while a bullying nexus lacks equality of standing. Rodkin, supra, at 33. It is the inequality, abuse, and unfairness associated with bullying that makes it incompatible with what we conceive of as the appropriate "American character." Id.
 
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The CADRE Interviews: Must See TV

Bottom view of VHS videotape cassette with mag...Bottom view of VHS videotape cassette with magnetic tape exposed (Photo credit: Wikipedia)

Occasionally being famous is not good, but this is not one of those stories...

I am almost famous yet again.  Seriously though, I was recently honored by CADRE, the OSEP funded national technical assistance center that specializes in dispute resolution in special education.  CADRE's most recent project is "voices from the field." CADRE interviewed ten experts in special education dispute resolution as well as representatives from its four exemplar states and recorded the interviews.  I was lucky enough to be among those interviewed.

You can see the videos of the interviews, including mine, here. There is a wealth of information about this field on the videos. I recommend them highly.  But remember, the CADRE staff are not plastic surgeons; the video of me pretty much looks like me, so take all appropriate cautions when viewing!

Seriously, though, CADRE is a fantastic organization and if you work in the special education dispute resolution field, you should be familiar with the wealth of resources on their website.  There is a permanent link to the CADRE website on the left hand side of the blog.  You can also find it here. Check out these user friendly resources.

Thank you CADRE for another useful tool.
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Procedural Safeguards - The Series - Part VII

Students and facilitator discuss a text in a t...Students and facilitator discuss a text in a typical Shimer College class. (Photo credit: Wikipedia)
This is the seventh installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. Please let us know if you are enjoying the series.

In this installment, we continue our discussion of dispute resolution in special education.


Facilitated IEPs


In order to help IEP teams reach agreements, several states and districts have been experimenting with facilitated Individualized Education Program (IEP) meetings. The use of externally facilitated IEP meetings is a growing national trend. When relationships between parents and schools are difficult, facilitated meetings may be helpful.

While a facilitator does not chair the IEP team meeting, he helps keep members of the team focused on the development of the IEP while at the same time defusing conflicts and disagreements that may arise during the meeting. At the meeting, the facilitator uses a number of communication and other skills that create an environment in which the IEP team members can listen to and consider each other’s suggestions and work together to complete the development of an IEP that will provide FAPE for the child.

The type of person who facilitates the meeting varies. Sometimes, a member of the team will facilitate the meeting. In some cases, a district representative with expert facilitation skills may be called in to help the team complete the IEP process. In other cases, another parent, a trained parent advocate, or support person may facilitate the meeting. Occasionally a student may lead his own IEP meetings.

When IEP teams reach an impasse or meetings are expected to be extremely contentious, however, an independent, trained facilitator not affiliated with the team or school district may be able to help guide the process. The presence of the trained facilitator helps keep the team members on task. The facilitator also is trained in using techniques to help prevent miscommunication and disagreements from derailing the IEP process.

A helpful guide to IEP Facilitation by the TAA Alliance and CADRE may be found here:

All of the materials from the presentations at the National Conference on IEP Facilitation sponsored by CADRE are available here.


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Bullying of Children With Disabilities - Part V

English: An example of cyber-bullying on gmail...Image via Wikipedia
Bullying remains the hottest of hot button issues in special education law.  In the first installment, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA.  In later installments, I have discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011).  This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.

Here is more from the court...these are not my words:

With changes in technology, the Internet has become the venue where widespread hurtful bullying is inflicted by and on young people. See Jan Hoffman, As Bullies Go Digital, Parents Play Catch-up, N.Y. Times, Dec. 5, 2010, at A1 (examining the widespread nature of bullying on the Internet and difficulties schools have in stopping it); Schwartz, supra (discussing the suicides of three teens as a result of online bullying).
The Internet has become a fertile area for bullying behavior. Cyber-bullying is defined as "willful and repeated harm inflicted through the use of computer, cell phones and other electronic devices." Sameer Hinduja and Justin W. Patchin, Overview of Cyberbullying, in White House Conference on Bullying Prevention, at 21 (March 10, 2011), available at http:// www.stopbullying.gov/ references/white_house_conference/index.html. About 20 percent of eleven to eighteen year-olds
[ 779 F.Supp.2d 300 ]

have been cyberbullied at some point in their lives. Id.
Cyberbullying differs from traditional bullying in several ways. First, a cyberbully can attack anonymously. Id. at 22. Second, the bullying can go viral, with many people harassing the same target at once. Id. Third, the bully does not see the emotional toll his bullying creates, allowing the culprit to push further than he or she might in a face-to-face relationship where the adverse effects are clearly perceived. Id. at 23. Fourth, many parents and teachers do not have the technological know-how to monitor these actions. Id.

b. Increased State Efforts to Address Bullying

Legislatures across the country have been taking note of the problem in schools. In recent years, forty-five states have passed laws dealing with bullying and harassment in schools. Arne Duncan, Secretary of Education, Secretary of Education Bullying Law and Policy Memo, Dec. 16, 2010, available at http://www2.ed. gov/policy/gen/guid/secletter/101215.html. In September 2010, New York's Dignity for Students Act was enacted; it goes into effect in July 2012. See New York Education Law, §§ 10-17 (2010) (protects students against discrimination on the basis of race, color, nation of origin, ethnic group, religion, disability, sexual orientation, or gender). See also, New York Civil Liberties Union, The Dignity For All Students Act (2010), available at http://www. nyclu.org/files/publications/OnePager_DASA.pdf. The Act requires incidents of bullying to be reported to the state Department of Education on at least an annual basis and the development of appropriate codes of conduct. Id. at § 12. ("No student shall be subjected to harassment by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function."); Id. at § 13 ("The board of education and the trustees or sole trustee of every school district shall create policies and guidelines that shall include, but not be limited to . . . [p]olicies intended to create a school environment that is free from discrimination or harassment. . . ."); Id. at § 15 ("The commissioner shall create a procedure under which material incidents of discrimination and harassment on school grounds or at a school function are reported to the department at least on an annual basis. . . ."). See also, Erin Cargile, Lawmakers Move Education Bill Forward, Austin News, April 14, 2011, available at http://www. kxan.com/dpp /news/texas_lege/Lawmakers-move-bullying-bill-forward.

 
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Procedural Safeguards - The Series - Part VI

WASHINGTON - MARCH 02:  The statue 'Authority ...Image by Getty Images via @daylife




This is the sixth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. Today we talk about dispute resolution.

There are four dispute resolution mechanisms provided by the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq, (hereafter sometimes referred to as “IDEA”) and the accompanying federal regulations: mediation, state complaints, resolution sessions, and due process hearings. In addition, some states and districts are experimenting with fifth method-facilitated IEP meetings.


Special education disputes may be resolved through any of the five methods or by any combination of the methods. It is highly unusual under the law for an aggrieved party to be permitted to invoke more than one resolution option. Although mediation is often used in combination with litigation, it is rare for other formal methods to be combined. An unhappy party could file a state complaint wait for the results and then file a due process hearing over the same dispute. The same dispute can be submitted at any time in the process to mediation. A resolution session occurs in every due process filed by a parent unless waived or submitted to mediation in lieu thereof. It is true that if the complaint and due process are filed at the same time, the portions of the state complaint duplicating the due process complaint are held in abeyance until resolution of the due process, but if they are not filed at the same time, there is no prohibition upon the utilization of multiple methods.

Adding to the frustration of this lack of finality is the fact that the result of most of the options may also be appealed to one or more levels of the court system. The U. S. Supreme Court has noted that the judicial review process for special education cases takes a long time, referring to the appellate process as “ponderous.” Town of Burlington v. Dept of Educ 471 U.S. 358, 105 S.Ct. 1996, 556 IDELR 389 (1985).

This link is to the NICHCY Training Program – Module 18: Options for Dispute Resolution:


Here is the OSEP Questions and Answers (Document) On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities:
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Bullying of Children With Disabilities - Part IV

Some states of the United States have implemen...Image via Wikipedia

Bullying remains the hottest of hot button issues in special education law.  In the firstr installment, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA.  In a later installment, I discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011).  This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.


Today I provide more of the court's opinion.   You really should read the whole thing.  These are not my words:

1. What Constitutes Bullying


Bullying is not a new phenomenon; literature is blotted with bullies, and many people have had personal experience with a schoolyard antagonist. Dan Olweus, Bully at School: What We Know and What We Can Do 1 (1993). The bully-victim relationship is characterized by a real or perceived imbalance of power and encompasses a variety of negative acts that are carried out repeatedly over time. Id. at 9; Nels Ericson, U.S. Dep't of Justice Office of Juvenile Justice and Delinquency Prevention Fact Sheet, Addressing the Problem of Juvenile Bullying 1 (2001), available at http://www.ncjrs.gov/pdffiles1/ ojjdp/fs200127.pdf. Negative actions can broadly be described as inflicting or attempting to inflict discomfort upon another. Olweus, supra, at 9. Bullying takes three forms: physical (e.g. hitting); verbal (e.g. taunting); and psychological (e.g. engaging in social exclusion). Ericson, supra, at 1. Indirect, psychological bullying, in the form of exclusion and isolation is often less visible, but not less corrosive. Olweus, supra, at 10.  "The consensus among physicians and social scientists, educators and youth development organizations, civil rights advocates and law enforcement is that bullying is neither inevitable nor normal. . . ." Julie Sacks and Robert S. Salem, Victims Without Legal Remedies: Why Kids Need Schools to Develop Comprehensive Anti-Bullying Policies, 72 Alb. L. Rev. 147, 147-48 (2009). Despite this consensus, bullying continues to occur at an alarming rate. A study by a group of psychologists provides an illustration. While observing groups of kindergarten and first grade students, researches noted an incident of bullying on the playground every three to six minutes. James Snyder et. al., Observed Peer Victimization During Early Elementary School: Continuity, Growth, and Relation to Risk for Child Antisocial Depressive Behavior, 74 Child Dev. 1881, 1885 (2003).
"(T)he highest prevalence of bullying is among elementary-school aged children." Gwen M. Glew et. al., Bullying Psychological Adjustment, and Academic Performance in Elementary School, 159 Archives of Pediatric and Adolescent Med. 1026, 1026 (2005). Younger students of both sexes are the most likely to be singled out as victims. J.F. Devoe and S. Kaffenberger, U.S. Dep't of Educ., Student Reports on Bullying: Results from 2001 School Crime Supplement to the National Crime Victimization Survey 14 (2005), available at http://nces.ed.gov/pubs2005/2005310.pdf. Children who struggle academically are more likely to be victims or be both victim and aggressor. Glew, supra, at 1030. Bullying can be carried out by an individual or a group. Olweus, supra, at 9. The victim of school bullying is most often a single person. Id.
Initially, victimization is situational; "only over time does the field of children who are consistently victimized become narrowed on the basis of ongoing experience." Snyder, supra, at 1881; Macklem, supra, at 66 (finding that once a child is labeled a victim, his status within the peer group drops). This leads to a subset of children being caught up in a "vicious cycle in which victimization and maladjustment feed off one another." Snyder, supra, at 1881. In particular, girls who are unable to develop supportive peer relationships are at an increased risk for persistent ostracism and rejection. Id. at 1895.
"Youth who are victimized are likely marginalized from the mainstream peer group, lacking access to prosocial peers who provide role models of appropriate social skills, and also protection against bullying." Nansel, supra, at 735. The most common place for victimization in elementary school is the playground, followed by the classroom and gym class. Glew, supra, at 1029.

 


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US DOE Press Release: Moving from Compliance to Results

LONDON, ENGLAND - DECEMBER 03:  Charity runner...Image by Getty Images via @daylife
In a press release issued last Friday, the  Secretary of United States Department of Education announced that the focus of the department will shift from a compliance driven approach to a results oriented approach. Secretary Duncan said. ""For too long we've been a compliance-driven bureaucracy when it comes to educating students with disabilities. We have to expect the very best from our students—and tell the truth about student performance—so that we can give all students the supports and services they need. The best way to do that is by focusing on results,"

You can read the entire press release here.

Maybe it is the nature of my work and all that legal training and experience, but I always get nervous when the emphasis on compliance gets reduced.  That scares me.

Does this mean that the Department will be targeting the achievement gap between student with disabilities and their non-disabled peers?  Will the Rowley standard need to be changed?  Am I putting too much meaning into a bureaucratic press release?  I'm not sure, but this may be a very interesting time to be in the special education law business!  Stay tuned.
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Mediating; Favorite Road Name; Tech Update

I realized again this week that mediation is the best way to resolve special education disputes.  It helps the live the various options to see what might work and what may not work...

In route to the action, I passed my favorite road name in the world, or what I've seen of it so far.  If you have a better street or road name, snap a photo and send it to us.  As of right now mine is the winner. See photo above. But remember as always, this is an exhibition not a wager.

By the way some people have asked about the various groups.  The LinkedIn Special Education Law Group is the biggest and most active with over 2,000 members.  The Facebook Special Education Law Group was also quite large, but the most evil corporate moguls at Facebook archived the group despite my protest.  Now members have to rejoin to still be members.  Why???  More information on the groups may be found by following the links on the lefthand side of the blog.

Subscriptions are still the best way to make sure that you receive our posts.  They are free and come to your email inbox or to your aggregator, like NetVibes or Google Reader, etc.  You can even get a blidget (=blog+widget) to insert into your own website or blog.  Please subscribe; numbers matter in the blogosphere. 

Also, please vote for this blog for a Bammy Award.  We have been nominated and hope to win an award.  Follow the link on the button on the lefthand side iof the blog or vote here.
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