Bullying and Harassment of Students with Disabilities: USDOE Guidance, Court Analysis, - PowerPoint Presentation

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Bullying and Harassment of Students with Disabilities: USDOE Guidance, Court Analysis, Local Policy Ideas

Presented by

Jose Martín, Attorney

Richards Lindsay &

Martín

, L.L.P.

Austin, Texas

Copyright © 2014, 2016 Richards Lindsay & Martín, L.L.P.Slide2

Current circumstances:

Harassment and bullying in schools is a large, entrenched problem, with multifaceted negative consequences

Students with disabilities are particularly vulnerable (studies now confirm), and students with ASD even more so, due to social skills deficits

Frequency? A third of US students

report

bullying at schoolSlide3

Current circumstances:

Because of the persistent nature of the problem OCR has issued various guidance letters, starting in 2000.

Recent guidance letter is substantively cumulative (as of October 21, 2014)Slide4

October 2014 OCR Guidance

A Framework for Schools’ Legal Obligations

:

1. Disability-based

harassment can impact equal educational opportunity and FAPE

Inappropriate response to harassment is a form of discrimination on basis of disability

2.

Harassment on

any

basis can deny students a FAPE under §504 or IDEA and if so, must be remedied (FAPE-based claim)Slide5

October 2014 OCR Guidance

Disability-Based Harassment Points

:

If school knows or should know of conduct, it has a duty to investigate

If harassment creates a “

hostile environment

,” school must take action

“

Hostile environment

” means the conduct interferes with a student’s ability to participate in, and benefit from, program activities or opportunitiesSlide6

Disability-Based Harassment:

Broad Overview of Required School Actions:

End the conduct

Eliminate hostile environment

Prevent recurrence of conduct

Remedy negative effects, if any

Failure to appropriately respond violates §504 (a form of discrimination)—can lead to OCR complaints and §504 money lawsuits (which are increasingly common)Slide7

Other Harassment and Denial of FAPE:

Regardless of reason, harassment can impact education to the point it denies the student a FAPE

IEP teams/§504 Committees must address any negative effects of bullying through changes in IEPs/§504 Plans

Watch for drops in grades, behaviors, increased absences, outburstsSlide8

Outline of the OCR/ED Disability Harassment Standard

Once district on notice of possible disability-based harassment, it must

investigate and respond

appropriately

If (A) conduct is sufficiently serious as to deny or limit student’s ability to participate or benefit from program (“

hostile environment

”), (B)

district knew

or should have known about conduct, and (C)

district failed to take appropriate responsive action

, then a violation of §504/ADASlide9

Outline of the OCR/ED Disability Harassment Standard

3. If a

district employee

, in carrying out their responsibilities, engages in disability harassment sufficiently serious to deny or limit a student’s ability to participate or benefit in program, district is responsible whether or not it has notice

Appropriateness of responsive action is assessed on whether it is

prompt, thorough, and effectiveSlide10

Outline of the OCR/ED Disability Harassment Standard

5.

District response

must be designed to reliably investigate, stop the harassment, eliminate any hostile environment, address the impact on the harassed student, and prevent recurrence

6. Whether conduct creates a

hostile environment

involves following factors: type of conduct, frequency, severity, nature of disability, age and relationship of parties, settings and contexts, other incidents at the school, and other factorsSlide11

Overall Landscape in Federal Courts

Money actions becoming increasingly frequent, alleging physical and mental injuries; possibly, suicide

For parents, the legal path is a difficult one (procedural hurdles at pleading stage, summary judgment stage, other obstacles)

For schools, difficulty lies in need for reasonable, coordinated response among campus administration, §504 team, special educationSlide12

Overall Landscape in Federal Courts

Area of law is complex—circuits not in unison about applicable legal claims, differences in analyses, some frustration at lack of “fit” of current theories

Supreme Court has not ruled on applicable analysis, so courts have applied standards not necessarily intended for these specific situations

And, the OCR/ED compliance framework is different than what applies in federal courtsSlide13

Available Legal Theories

IDEA

—Generally, no money damages, only educational relief for educational harms, and sturdy administrative exhaustion requirement

Section 1983

premised on violations of Constitutional rights (usually 14

th

or 5

th

Amd

.)—Difficult to maintain due to pleading standards, inapplicability to disability harassment situations

Section 504/ADA

—Requires intentional discrimination, bad faith, or gross misjudgment—Courts now recognize “deliberate indifference” theory for peer-to-peer disability harassmentSlide14

Available Legal Theories

State law actions

(usually tort actions)—Depending on state, likely very limited by governmental immunity laws that shield schools from negligence actions (TX included)

Section 1983/Title IX actions

—If harassment is also of a sexual nature

State law actions against the harassing students

—Generally ineffective due to lack of “deep pockets” for monetary recoverySlide15

Examples of §1983/14th

Amd

Claim

Brown

v

. Kelly

, 62 IDELR 46 (

M.D.Pa

2013)

Horrific facts—Middle school student with disabilities is bullied over 3 years, culminating in an attack that left him a paraplegic

Bully also an IDEA student, with lengthy history of assaultive and bullying behavior, leading to suspensions, detentions, loss of privileges, BIP

1983/14

th

Amd

. claim generally does not apply to harms caused by peers, only employeesSlide16

Brown v. Kelly

, 62 IDELR 46 (

M.D.Pa

. 2013)

Exceptions: (1) “special relationship” theory (e.g., prison, institution, foster care), and (2) “state-created danger” by action of school staff

But, parent at most alleges

inaction

by school, in not separating students (despite requests), better supervising, and expelling bullySlide17

Brown v. Cypress-Fairbanks ISD

, 59 IDELR 293 (

S.D.Tex

. 2012)

Parent alleges school’s failure to enforce anti-bullying policy led to her son’s suicide

But, she apparently had not told school he had

Asperger’s

, and school had no reason to know

Thus, she was left only with §1983/14

th

Amd

constitutional claim

In 5

th

Circuit, that action works only under a “special relationship” theory, which applies only in jail, institutionalization, or foster care Slide18

Brown v. Cypress-Fairbanks ISD

, 59 IDELR 293 (

S.D.Tex

. 2012)

Why is this?

U.S. Const. is there to protect citizens from

government

abuse, not from other private persons, so claim is not a good fit for peer-to-peer harassment situations

Court disturbed school has policy assuming duty to respond to harassment, but no legal responsibility to enforce (and, state laws foreclose most negligence suits against schools)Slide19

The “Deliberate Indifference” Claim

Supreme Court’s

Davis

v

. Monroe

analysis for school sexual harassment claims transposed to school peer-to-peer disability harassment cases:

School awareness of problem

Conduct creates abusive/hostile environment

“Clearly unreasonable” response

Attempt to find a legal claim with better “fit”

Some circuits have not recognized (yet?)Slide20

The “Deliberate Indifference” Claim

Elements of Claim

:

Harassed student has disability,

Harassment is based on disability,

Conduct was so severe or pervasive it altered condition of student’s education and created an abusive educational environment,

School knew or should have known of conduct,

School was deliberately indifferent to harassment.Slide21

General Deliberate Indifference Cases

S.S.

v

. Eastern Kentucky University

, 50 IDELR 91 (6

th

Cir. 2008)

6

th

Circuit applies

Davis “

deliberate indifference” claim, noting many District Courts have as well

But, court reserves possibility of “considering a different standard” in a future case…

Here, claim fails—School responded to all incidents (interviews, directions to students, trainings, supervising, separating, mediating, disciplining, calling police and parents)Slide22

S.S. v. Eastern Kentucky University

, 50 IDELR 91 (6

th

Cir. 2008)

Court can’t see what school should have done differently, upholds summary judgment for school

Concurring judge proposes an alternate standard for review akin to a negligence claim (i.e., did school unreasonably fail to take appropriate prompt corrective action?)—closer to OCR analysis and tougher for schools…Slide23

Doe v. Big Walnut LSD

, 57 IDELR 74 (

S.D.Ohio

2011)

Middle

schooler

with Cognitive Disorder was teased, pushed, punched, insulted, and had food thrown at him, and had nose broken in a fight

School investigated all reported and known incidents (determined student was a participant in the conduct as well) and disciplined students (also called police)

School devised a “safety plan” (apprising teachers, adjusting schedules, counseling), which was later revised to add safeguardsSlide24

Doe v. Big Walnut LSD

, 57 IDELR 74 (

S.D.Ohio

2011)

Plan now included early class release, assigning an aide to monitor him in halls/lunch/playground, allowing use of office restrooms

Despite plan, some incidents still took place

School added social skills instruction, social exercises, close communication with parents

Court finds weak evidence of disability basis for harassment, none that his education suffered, and none to support deliberate indifferenceSlide25

M.J. v. Marion ISD

, 61 IDELR 76 (

W.D.Tex

. 2013)

Student with Bipolar and ADHD was target of verbal and physical harassment (sinus fractured after being punched in face)

Lots of conduct took place in Math Lab

School responded with some remedial action, but Math teacher never acted, and IEP team ignored student’s requests to address the issue in IEP

Court finds Math teacher’s alleged inaction could support a deliberate indifference claim, and allegations also supported abusive environmentSlide26

M.J. v. Marion ISD

, 61 IDELR 76 (

W.D.Tex

. 2013)

Court applies Davis “deliberate indifference” analysis although 5

th

Circuit not clear on viability (a variety of circuits recognize it)

But, court also notes that 5

th

Circuit also recognizes a §504 “gross misjudgment” claim if there is an egregious failure to modify an IEP that is not addressing the problem (

Stewart

v

. Waco,

60 IDELR 241 (5

th

Cir. 2013), pending)

See

B.M.

v

. South Callaway R-II Sch. Dist.

(8

th

Cir. 2013)(Also recognizing BG/GM theory)Slide27

Was Harassment Disability-Based?

At times, conduct itself shows it is based on student’s disability (calling student “seizure boy,” mimicking seizures, teacher openly questioning his seizure disorder—

Galloway

v

. Chesapeake Union EVS

, 60 IDELR 13

(

S.D.Ohio

2012)

.

See also

Sutherlin

v

. ISD No. 40 of Nowata Co

., 61 IDELR 69 (

N.D.Ok

. 2013)

(Calling student “retard,” “crazy,” “freaky,” “creepy” was reasonably inferred to make reference to social deficits due to

Asperger’s

)Slide28

Was Harassment Disability-Based?

Certain disabilities may render student more the subject to harassment (i.e., students with Autism,

Asperger’s

, ID, severe LDs, ED)—

T.K.

v

. New York City DOE

, 56 IDELR 228 (E.D.N.Y. 2011)

For these students, IEP teams can consider goals on coping skills, instruction on reporting harassment, addressing issue as part of social skills instruction, including issue in counseling goals, etc…

Court notes Massachusetts law requiring IEP teams to address avoiding/responding to bullying for students with disabilities that render them vulnerable to such conductSlide29

Case decision in T.K. v

. New York City DOE

, 56 IDELR 228 (E.D.N.Y. 2011)

is a virtual compendium of bullying studies and literature

Court in fact proposes an alternate IDEA denial-of-FAPE analysis in bullying situations—whether school failed to take reasonable steps to prevent bullying that substantially restricted a child’s educational opportunities

Closer to negligence analysis…

Update

—2

nd

Circuit has affirmed the decision on appeal (based on school’s refusal to allow discussion of bullying in IEP team meetings)Slide30

Was Hostile Environment Created?

Key Issue—Factors listed in OCR/ED guidance

:

Degree of adverse effect on education

Type, frequency, and duration of conduct

Age, sex, relationship of students

Number of individuals engaging in conduct

School size, location, context of conduct

Other harassment incidents at schoolSlide31

Was Hostile Environment Created?

Other indications?

See

M.A.

v

. Meridian Jt. SD No. 2

, 60 IDELR 192 (

D.Id

. 2013)

Allegation that student set fire to home in part due to bullying, which in turn led to 18-month incarceration, sufficient to show deprivation of education (at pleading stage, at least)

Court notes other relevant facts could include dropping grades, change in demeanor, need for homebound services, hospitalization, self-destructive or suicidal behaviorSlide32

Did the District Know?

School has a

duty to be vigilant

, including investigating tips that may lead to discovery of harassment

If responsible employee with duties under the harassment policy knew or should have known, then the district knew

If the

principal

knew, then

definitely

the school knew (

T.K.

v

. New York City DOE

—Principal refused to allow parents to report bullying of student with autism, although aides knew)Slide33

Did the District Know?

Awareness and training

are key for staff to understand school policies, reporting systems, and message to concerned parents

Duty to investigate is triggered by knowledge of harassment

, not just when a student or parent reports harassment

Factors determining urgency of investigation

include nature of info, seriousness, specificity of info, source, ability to identify victim, cooperation from victimSlide34

Investigations—prompt, thorough, and impartial

Leads generated initially can lead to additional info (i.e., such as names of witnesses that should be interviewed)

Campus administrators should be trained on documenting investigations and resultsSlide35

Did the District Respond Appropriately?

OCR/ED Guidance states that response must (1) take prompt and effective

steps to end conduct

, (2)

eliminate hostile environment and its effects

, and (3)

prevent recurrence

of conduct

OCR envisions a

multi-faceted response

, addressing the harasser, the victim, and the campus and its policiesSlide36

Did the District Respond Appropriately?

OCR/ED also envision a key role for

IEP teams and §504 committees

—reviewing and revising IEPs/504 plans to address impact of harassment on FAPE, and prevent recurrence of conduct

Requires coordination with campus administration, monitoring of investigation findings, FAPE-based data gathering, determining what response items belong in IEP

Discussion Point

:

Does every piece of campus response belong in IEP? If not, what does?Slide37

Did the District Respond Appropriately?

Discussion Point

:

What if the IDEA student is responding inappropriately to the bullying behavior?...

Key Point:

Response is not solely an administrative function, but also IEP team responsibilitySlide38

IEP Team Response Areas for ASD Students:

Counseling

Revision to BIP

Changes to social skills program

Addressing attendance problems

Addressing declining performance

Transportation

Bathroom arrangements

Parent issues

Aide supervisionSlide39

Did the District Respond Appropriately?

C.L.

v

. Leander ISD

, 62 IDELR 174 (

W.D.Tex

. 2013)

Parents alleged legally-blind boy was sexually assaulted in restroom in 4

th

grade, after continuous prior bullying

Police and school investigation concluded that students pulled boy’s pants to his ankles

Aside from another restroom incident in K, there were only some incidents of teasing and differences with other studentsSlide40

Did the District Respond Appropriately?

C.L.

v

. Leander ISD

, 62 IDELR 174 (

W.D.Tex

. 2013)

Court found evidence did not support allegation of “continuous harassment”

School responded “quickly, appropriately, and professionally”

Responses included discipline of harassers, calls to their parents, meetings with victim and parents, class discussions, and otherwise trying to quash any bullying of studentSlide41

M.A. v. Meridian Jt. Sch. Dist. No. 2

, 60 IDELR 192 (

D.Id

. 2013)

Reviews circuit court opinions on deliberate indifference

Key

: School knowledge of harm and failure to act

Test is not whether response is ultimately ineffective, but whether it is clearly unreasonable

and subjects student to further harassmentSlide42

Kowalski v. Berkeley Co.

Schs

.

, 111 LRP 51060 (4

th

Cir. 2011)

—Cyber-bullying case

Senior who created a “slut herpes” web page to harass a particular girl sued for violation of Free Speech after being disciplined

Student argued her speech took place off campus and was not school-related

Court disagrees, finding that

Tinker

case balances students’ speech rights with schools’ needs to maintain proper discipline and environment conducive to learningSlide43

Kowalski v. Berkeley Co.

Schs

.

, 111 LRP 51060 (4

th

Cir. 2011)

While student “pushed her computer’s keys in her home,” she knew the web page would reach the school and have impact at school (in fact, it was specifically meant to)

Schools have a right to restrict student speech if it materially interferes with proper discipline in the operation of the school

And, court noted OCR/ED letters indicating bullying as a major concern in schoolsSlide44

Kowalski v. Berkeley Co.

Schs

.

, 111 LRP 51060 (4

th

Cir. 2011)

“School administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning”

In closing, court strongly admonishes student, calling her conduct “particularly mean-spirited and hateful” and questioning the lawsuitSlide45

Kowalski v. Berkeley Co.

Schs

.

, 111 LRP 51060 (4

th

Cir. 2011)

Policy lesson

—School anti-harassment policies may need to include notice that certain off-campus “

e

-conduct” may lead to

disciplinary action…