“No intent” to harm in hitting and spitting on a child in Swedesboro; therefore, no bullying?

A news story came out this morning about a young child in Swedesboro, New Jersey who is allegedly the target of repeated bullying during bus transportation – including being spit on and hit – to the point that he is now in therapy.  The District determined that the latest hitting incident was not “bullying” because the student who struck the child (the same student allegedly doing all the other spitting and hitting) did not “intend” any harm.  http://www.myfoxphilly.com/story/24833208/swedesboro-mother-claims-her-5-year-old-son-was-bullied

Regardless of the actual intent as to any one specific incident, it’s hard to imagine how there would be no finding of intent if the entire course of conduct was viewed as an ongoing unit, instead of looking at each separate act of abuse in isolation.  Unfortunately, this is a common approach taken by school Districts.  They investigate each alleged act as if it was a stand alone event, even in the face of an ongoing pattern of complaints.

It can be critical that parents who report abuse over time do not fall into the trap of treating each incident as if it were isolated from the whole.  When a child is targeted by individuals or groups for repeated bullying, schools cannot make appropriate decisions or take appropriate action unless they analyze the situation as a whole.

Pressure can be brought on school administrators to be certain that the larger picture is not ignored.  Don’t get trapped in the details of a single event to the exclusion of the whole.

Know Your Child’s “Stay Put” Rights in Special Education

An important right that children classified with special needs have is the right to “stay put” in their educational program during any litigation between the parents and the school.  This can be extremely important if the school is trying over the objections of the parents to take away important services, or is seeking to move the child to a different type of program.  The “stay put” rights can at least continue to provide the disputed services until the litigation is resolved.

The intent of the “stay put” provision is to protect the child.  Absent that right, the child could be moved back and forth from program to program during the course of a litigation through rulings and appeals, and yet again when the litigation is concluded.  The academic and emotional disruption if that were allowed could be significant.

Most important for parents to understand, is that such rights cannot be invoked unless they formally file for Due Process or mediation within a VERY SHORT period of their receipt of the formal proposal from the District to change the program.  In New Jersey, that period is fifteen days from receipt of the proposed IEP.  In Pennsylvania, it is only ten days from receipt of the NOREP.

If a parent fails to file before those short periods expire, the newly proposed program goes into effect and becomes the “stay put” program going forward – even if the parents do not sign the documents or otherwise refuse to give consent.  Many parents mistakenly believe that their verbal or written objections are sufficient to invoke “stay put,” only to learn to their dismay that the program has been changed.  Once that occurs, they can still litigate and obtain a ruling to change the program back to what it was, but their child will in the meantime be placed in the new program.

A recent case from the Third Circuit Court of Appeals has further clarified your child’s stay put rights – to reaffirm that stay put rights do not disappear or change during a litigation in which a lower hearing ruling favors one party and an appellate ruling favors the other.  For example, even if the first level hearing rules that the change in programming should go forward, if the parent appeals to the next level, the child remains in the initial “stay put” program.  This applies at least through appeal to the Circuit Court level.  See, M.R. v. Ridley Sch. Dist., No. 12-4137 (Feb. 20, 2014), http://www2.ca3.uscourts.gov/opinarch/124137p.pdf

“Stay put” rights do have nuances that can on some occasions be complicated, and whether to invoke such rights is an important strategic decision that varies depending on circumstances.  Please contact my office if you have any questions about this important right.

Jerry

Special Education Students Isolated in Solitary Confinement in the Juvenile Justice System

I have often spoken about the sometimes improper treatment suffered by special education students when they encounter the juvenile justice system.  An ongoing case in California paints a rather horrific picture of some of the more extreme elements of the plight of such students.  G.F., et al., v. Contra Costa Cty, 3:13-cv-03667, (N.D. Cal.).

The case is a class action on behalf of special education students who are confined in solitary confinement like settings for up to 22 hours per day.  The cells are tiny without even room to exercise.  Tutors visit the children in their cells for only 5-30 minutes per day, and provide educational worksheets.

One child with serious mental health disabilities was confined in that environment for a full 60 days during a 120 day period.  Another young girl with bi-polar disorder was subject to such confinement for 100 days in the last year.

The County runs the detention center, and the state Department of Education runs a school within the center.  The County is seeking dismissal on the ground that it is not responsible for education; and the Dept of Ed seeks dismissal because it claims no responsibility for the County’s disciplinary decisions.  Cute, right?

The United States of America has intervened on behalf of the children, arguing in part that — “Public entities cannot avoid their ADA and IDEA obligations by contracting … or sharing them with, another entity, especially one that is unwilling or unable to meet those obligations…. [P]ublic entities are not relieved from providing special education and related services to eligible youth with disabilities based on disciplinary reasons…. [T]hat youth have been charged with or convicted of a crime does not diminish their substantive rights … provided by the IDEA.”   http://dralegal.org/sites/dralegal.org/files/casefiles/159dojstmntinterest.pdf

Sometimes the government gets it right.  I’ll be watching this case for results.

Please contact this office to obtain guidance if your child is faced with issues involving the juvenile justice system.

Jerry Speaks About Access to Student Records When a Child is Bullied in School

Hello all — I’ve been invited to talk next week about a pet peeve of mine — the common, but improper, application of school confidentiality law in the context of school bullying.

Very often, the school district refuses to tell the parents of a student victim what discipline or other action the district took against the bullying child, on the grounds that those disciplinary records of the other child are protected from disclosure by FERPA.

In fact, the opposite is true, and the targeted child has the right under FERPA to receive those specific records.

It can become a real problem because the targeted child who does not have this information has no basis upon which to know if he is going to be safe at the school, and sometimes will therefore not return to school.  Districts (and their lawyers) have to be taught the nuances of FERPA so that they can stop this harmful misapplication of the law.

I will be explaining the proper application of FERPA in this context to the New Jersey Coalition for Bullying Awareness and Prevention — this coming Tuesday, February 18th,  9 a.m., at the NJ Law Center in New Brunswick.

If you have an issue or question about obtaining such information from your school district, please call my office.

Jerry’s on the Radio!! 920 AM – Sat, Feb. 08 at 1:00 p.m. — Sat, Feb. 15, 1:00 p.m.

Hello friends:

I was asked today to tape two unedited segmants for a radio show in New Jersey dedicated to school related bullying and harrassment issues.  It’s hosted by Stuart Green,  Director, of the NJ Coalition for Bullying.  If you go to their website, there is a guide about bullying and children with disabilities that I had a hand in writing for them a few years back.

The first show tomorrow centers on issues specific to children with special needs.  The second show the next week focuses on all kids, and addresses off campus cyber bullying and confidentiality of records.

Each one is only 1/2 hour!  Tell your friends and let me know how it went, as I have never done one of these before.  I may be able in future to attach them to my blog as podcasts.

Thanks for listening!!

Govt. Sticks it to Good Teachers … Again

Saw this post today — the Feds have eliminated the $250 tax deduction previously available to teachers to reimburse them for times that they reach into their own pockets to pay for class room supplies to help teach our kids.

It may seem small, but at a time when school budgets are being slashed, music programs are disappearing, and teachers are often maligned by politicians — it sure seems spiteful and petty to me.

http://www.huffingtonpost.com/adam-kirk-edgerton/stealing-from-teachers_b_4702064.html

Expanded Protection and Services under Section 504 and Americans with Disability Act for Students with Disabilities.

Giving us a good reminder that a far wider array of students in elementary, secondary and college level schools now qualify for ADA and/or Section 504 protection than ever before, the Department of Justice has announced proposed new regulations in the Americans With Disabilities Act to match the more expansive definitions and rules of construction that were added to the ADA in 2009.  http://www.gpo.gov/fdsys/pkg/FR-2014-01-30/pdf/2014-01668.pdf

Parents of students with Section 504 Plans or considering such coverage should pay close attention because Section 504 of the Rehabilitation Act is routinely construed under the same definitions that apply to the ADA.  All such students are entitled under both statutes to “reasonable accommodations” that address their disability related needs, and all such students are protected from discrimination because of their disability.

Many of the changes are expected to specifically help students with learning disabilities.

Although the ADA has always protected students who have a “disability” that “substantially limits” a “major life activity,” the Courts had previously insisted on very restrictive and rigid application of those definitions, thereby significanly limiting the numbers of protected students.

Now, the law requires that “disability,”and “substantially limits” must be construed broadly in favor of “expansive coverage” and should not require extensive analysis.  The focus now should be on services needed, not battles over the fine lines of qualification standards.

The postive impact of mitigating factors such as medication or assistive technology can no longer be used to exclude a child (simple measures such as eyeglasses can be used), and the fact that a disability is only episodic or is currently in remission does not preclude protection if that disability would, if active, substantially limit a major life activity.  This latter change should clarify some prior disagreements about serious allergies or toxic reactions such as to mold or peanuts and the like.

Other examples of mitigating factors that will no longer disqualify a student include that the student utilizes far longer hours or days to do her work; or uses special techniques to focus or to reduce stress.   These are now recognized as only “temporary supports” that, although may improve the student’s academic function, do not take away from the fact that the student has a substantial limitation in learning and therefore qualifies for protection.

Lastly, and a very important point for many students and parents — the Department now specifically explains that high academic achievment is NOT necesarily determinative as to whether her disability is substantially limiting.  Meaning – a person can be substantially limited in learning even where she ultimately achieves excellent grades, if, for example, it takes her far more time or effort to learn as compared to the general student population.

Many parents are still being refused Section 504/ADA accommodations because Districts do not yet fully understand these important clarifications in the law.    If you run into such problems, please feel free to contact my office.

All the best –