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.


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 –

Cyber Bullying is now a crime in New Jersey

New Jersey continues to be a leader in the country when it comes to efforts to reduce bullying and its consequences.  However, its latest effort avoids the most common forms of cyber bullying against students.

The new statute now criminalizes cyber-harassment for threats of harm to person or property; posts indecent material to or about someone; or threatens criminal conduct against someone.  http://www.njleg.state.nj.us/2012/Bills/S2500/2469_I1.HTM

Convicted persons under 16 are required to attend classes, and their parents are required to attend with them.  Those 16 and over face fourth degree criminal charges – up to 18 months in jail and/or $10,000 in fines.  If a person 21 or over pretends on-line to be a minor in the commission of this offense, they face third degree charges – 5 years and/or $15,000 in fines.

Unfortunately, because the most damaging cyber-bullying topics often do not focus on threats of physical harm or what others might consider “indecent” material, this statute will not be available in perhaps most cyber-bullying incidents.  The statute will also likely be challenged by “free speech” advocates due to its use of broad terminology and failure to make exceptions for public figures and the like.

But it will be another tool that raises the collective consciousness with respect to this issue, and will provide some recourse to victims in certain situations, where none might have existed without it.  I am pleased to see it.

Classroom Video in NJ Reveals Abuse of Student with Disabilities

Another special education teacher in New Jersey is facing disciplinary action for an inappropriate tirade against a child with special needs.  You may recall a case in New Jersey from last year in which a tenured teacher was discharged for inapropriately berating a special needs student, and now another such case may be coming down the pike.

According to news reports, a special education teacher was on his cell phone during class, and uttered a curse word overheard by the students.  One child with a brain injury from an accident said something to the effect of:  “You shouldn’t say that word.”  The teacher lost his temper and launched into a tirade against the child for not keeping his place in the teacher/student relationship, which culminated with the teacher telling the child to “go cry to your counselor.”  Fortunately for the students in the class, the berating of the child was caught on another student’s cell phone video.

You can watch the video and review one of the news reports here: http://fairlawn-saddlebrook.patch.com/groups/schools/p/fair-lawn-high-teacher-on-leave-following-video-leak

Perhaps what was most disappointing were comments from the community that were posted to some of the news reports.  Large numbers of residents were very much in support of the teacher, and emotionally charged against students with special needs.  One poster even assumed that the child with a brain injury must be some sort of “dirt bag.” Others claimed that inclusion was the problem.

Clearly, the work in educating the general public is still beginning.  On the one hand there is outrage at students who receive education in a non-public school because of the costs.   Yet on the other hand these same students are denigrated when educated in an inclusive setting because their disabilities sometimes create difficulties for others.   It appears that, for some, these students should not be educated at all.

One common additional factor in both of these examples is that the presence of video in the classroom was the only reason people gave these incidents serious attention.  Had the special education students merely reported the incidents without supporting evidence, it is highly unlikely that anything significant would have happened in either case.   It reminds us that (subject to obvious privacy issues such as recording in a bathroom) a student can legally record in New Jersey (a “one-party consent” state for purposes of recording) without the knowledge of the other person so long as the recorder is on his person, as opposed for example to leaving a recorder running unattended in a desk or coat room.

Perhaps one day cameras will be as common in the classroom as they now have become on police vehicles.  It would certainly act as a deterrent to teacher misconduct, as well as protect a teacher from false accusations.

I’m in favor.  Are you?

Good News Comes in Threes for Children with Dyslexia in NJ

During my representation of students over the years, I have dealt with several heart rendering cases in which students with Dyslexia had not been identified by their school districts until years into their school career.  In the meantime they were labeled as poor students, or mistakenly thought to have unrelated cognitive delays.  These students had either been inappropriately placed in non-college tract courses or in segregated classes for students with cognitive delays, while their only real deficit was Dyslexia.

It’s difficult to imagine how damaging an inappropriate placement and being unable to read can be to a child’s sense of self-worth and future place in the world.  Not to mention the delay in both addressing the student’s actual problem and the delay in the learning they would otherwise have achieved.  Fortunately, we were able to obtain proper services, supports and placements for these students at District expense and they eventually became competent readers with vastly increased confidence and expanded future opportunities.

This summer, the New Jersey legislature provided some strong legal advances for all children with Dyslexia, and there are positive indications that even more important supports are on the way.  Hooray for New Jersey!

In August 2013, New Jersey became one of a very few states in the nation that mandates by law that Dyslexia — as defined by the International Dyslexia Association — is specifically recognized in the state special education code as a Specific Learning Disability (“SLD”).  Adding the definition was an important change, because although “Dyslexia” was previously a possible SLD, the lack of definition often left children diagnosed with Dyslexia without services, because the more general definitions of an  SLD are often governed by vague and ever-shifting criteria.

Now, however, a child with a confirmed diagnosis of Dyslexia under the newly established legal definition has a far easier road to classification and services in New Jersey schools. The new statutory definition of Dyslexia in New Jersey is:

“a specific learning disability that is neurological in origin … characterized by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding abilities.  These difficulties typically result from a deficit in the phonological component of language that is often unexpected in relation to other cognitive abilities and the provision of effective classroom instruction. Secondary consequences may include problems in reading comprehension and reduced reading experience that can impede growth of vocabulary and background knowledge.” (http://www.njleg.state.nj.us/2012/Bills/AL13/131_.HTM)

The second recent positive change in the law is that the state is now funding two hours of specialized training for teachers in grades Kindergarten through the Third Grade, which will focus on “screening, intervention, accommodation, and use of technology for students with reading disabilities, including dyslexia.” (http://www.njleg.state.nj.us/2012/Bills/A4000/3606_U1.HTM)

The third, and still pending, change in the law may be the most important.  Now pending is a bill to actually require Districts to screen all children in Kindergarten through Second Grade for “potential indicators of dyslexia.”  (http://www.njleg.state.nj.us/2012/Bills/A4000/3605_R2.HTM)

If passed into law, this latter bill would greatly increase the likelihood of early detection and corrective action for children suffering from this disability.  Early detection is the best chance to end the cycle of the type of heartbreaking cases I discussed above.

However, due to the potential costs, this bill is encountering the most resistance.

I encourage all advocates of children with disabilities to contact their state representatives and impress upon them your strong support for this last measure to be put in place.  Spread the word and encourage similar action in other states.

Had something like this been in place ten years ago, the students I described above might have avoided years of shame, self-doubt and lack of learning.

Jerry Tanenbaum

Peer Mediation Is Inappropriate for Bullying

I was struck (no pun intended) by this recent news report — in which a Philadelphia student who was victimized by bullying was required by the school district to participate in a supervised meeting with the bully — and was again physically attacked by the bully during the meeting.   http://mobile.philly.com/news/?wss=/philly/news&id=232428261

Many school districts have become enamored of “peer mediation” or other forms of supervised meetings between students in conflict.  The idea is to promote problem solving on a personal level and break down barriers between the students.

However, psychologists knowledgeable of the dynamics of bullying and harassment are almost uniform in their rejection of such techniques in instances  when a student has been targeted for bullying, as opposed to other forms of student-vs-student disputes.  They explain that bullying/harassment almost always has an element of a power imbalance (social status or otherwise) in which the target and the perpetrator do not meet on equal footing.  Peer mediation puts pressure on the targeted child to open their damaged emotions to the harasser, to accept apologies (heartfelt of contrived), or to otherwise “let things go” — all of which are inappropriate when a child has been victimized by another.  Targeted students may of course have such responses on their own, but they should not be put in a social situation that pressures them to do so.

The mental health experts state that such pressure can in fact be very harmful to the targeted child.  Indeed, it is really just a softer form of bullying that implies some fault or control on the part of the victim that may not reflect reality – and which this time is coming from the adults who are supposed to be protecting and supporting the targeted child.

I can’t imagine the emotional and psychological trauma that the targeted student in this news article is going through after being attacked in the presence of her so-called protectors during a meeting that they insisted she attend to resolve prior harassment.

Jerry Tanenbaum




School District personnel in New Jersey have the mistaken belief that they can deny parents of a child who was the target of school bullying the right to review the records of the school’s investigation, or the discipline the school imposed on the bullying student.  School personnel believe that, because disciplinary records are school records protected under the Family Education Records Protection Act, 20 U.S.C. Sec. 1232(g) (“FERPA”), they cannot release such records without the permission of the bullying student’s family.  This is error.

FERPA does protect records from disclosure, but it also provides a family with the absolute right to review any school record that is “directly related to” their child.  The United States Office of Civil Rights states, therefore, that a child who is harrassed by another student has the stautory right under FERPA to review the records that establish what the District actually did in response to the harrassment, including what disciplne may have been handed out to the offending student.   OCR, Dear Colleague Letter, 13 (Apr. 4, 2011).

Even if that information is retained in the other student’s records, the parent of the targeted child has the right to that information.  New Jersey state law also provides such access into portions of another student’s record to the extent it has information about your child.  N.J.A.C. 6A:32-7.1. 

This does not mean that you can obtain the other student’s entire record, or any information involving his or her behavior toward other students.  But you are entitled to see the limited portion of the other student’s record that details the specific discipline for his or her behavior toward your child, because that portion of the other student’s record “directly relates” to your child.

Obtaining this information can often be critical.  Absent such information, the targeted child may be afraid to return to school, or the parents may be afraid to send the child back into a possibly hostile environment.  Indeed, the child’s fear, and/or her perception that the administration is not fully supportive, might be the cause of additional social-emotional problems for the child.   If the targeted child misses multiple days of school, the District may even initiate truancy proceedings — further victimizing the already traumatized child.

As the U.S. Office of Civil Rights reasons:  the targeted child has the right to make an informed choice as to whether and under what conditions she will return to the school.   OCR, Revised Sexual Harrassment Preamble (Jan. 19, 2001)(addressing FERPA).  

Further, you may also need these records if your school district did not agree that bullying occured, or otherwise decided not to take action, so that you can mount an effective and meaningful challenge in an appeal to the School Board.

Bullying and harrassment can cause very serious and long lasting harm.  I have been assisting students with respect to school related harrassment for more than a decade.  If your child is involved in school related bullying or harrassment, and you are not satisifed with your District’s response, contact this office for forceful assistance.