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Ch14BullyingCharterSchoolsResponsetoInterventionRecordsandLiability.pptx

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The Law and Special Education

Fifth Edition

Chapter 14

Additional Issues: Bullying, Charter Schools, Response to Intervention, Educational Records, and Liability for Student Injury

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Learning Objectives (1 of 2)

14.1 Describe how bullying and school personnel’s reaction to bullying can result in a violation of Section 504 of the Rehabilitation Act.

14.2 Describe how bullying and school personnel’s reaction to bullying can result in a violation of the Individuals with Disabilities Education Act.

14.3 Describe the content of the Dear Colleague Letters on bullying from the U.S. Department of Education.

14.4 Describe charter schools and their responsibilities to student with disabilities.

14.5 Describe the basis of response to intervention and multi-tiered systems of support and the Individuals with Disabilities Education Act.

Learning Objectives (2 of 2)

14.6 Describe the Family Education Rights and Privacy Act.

14.7 Describe intentional torts and negligence torts as they may apply to educators.

14.8 Describe the four elements that must be proved for a negligence case to succeed.

Issue #1: Bullying

Students with disabilities are frequently the targets of peer-on-peer bullying.

Bullying may be a violation of the Civil Rights of Students with Disabilities under Section 504 and F A P E under the I D E A

At the first White House Summit on Bullying Dr. Arnie Duncan asserted that a reinvigorated Office of Civil Rights (O C R) would vigorously investigate complaints of bullying and harassment in schools

To assist administrators and teachers in addressing bullying when it is directed toward students with disabilities, the O C R and the Office of Rehabilitative and Special Education Services (O S E R S) have issued public policy guidance documents in the form of open letters, called Dear Colleague Letters addressing school district responses to the bullying of students with disabilities.

Dear Colleague Letter (D C L) from O S E R S and O C R, 2000

When students with disabilities are harassed in a severe, persistent, and pervasive manner, a hostile school environment is created in which a student may be denied a F A P E and an opportunity to participate in or benefit from the educational program, thus potentially being a violation of the Individuals with Disabilities Education Act (I D E A) and Section 504.

Harassment based on disability results in a hostile environment in which a student is denied an equal opportunity to participate in a school’s educational program, a possible violation of Section 504.

According to the D C L it is critical that school officials develop and disseminate a school district policy on harassment and bullying. When incidences of disability-based harassment or bullying occur, school personnel should investigate the incidences promptly and respond accordingly.

D C L from O C R, 2010 (1 of 2)

When harassment or bullying is based on a student’s disability, race, color, national origin, or sex, school administrators must promptly investigate and respond to all such incidences

If district officials fail to appropriately address the discriminatory aspects of the bullying, that failure, in and of itself, may constitute a violation of a student’s civil rights.

School districts are also responsible for addressing harassment “about which it knows or reasonably should have known.”

D C L from O C R, 2010 (2 of 2)

When bullying or harassment or the suspicion of bullying and harassment come to the attention of school district personnel, they have a duty to respond by taking immediate and appropriate action to investigate or determine what occurred.

The inquiry should be prompt, thorough, and impartial and if bullying or harassment is uncovered, school district officials should take immediate actions to end the harassment, eliminate the hostile environment, and prevent the harassment from recurring.

D C L from O S E R S, 2013

Students’ I E Ps and Section 504 plans are the proper forum for responding to bullying of a student with disabilities.

To address bullying in an appropriate manner, officials at O S E R S suggested that school personnel convene a student’s I E P or Section 504 team to determine whether, as a result of the effects of the bullying, the student’s needs had changed so that the I E P or Section 504 plan no longer provided meaningful educational benefits.

If a student’s needs have changed, the I E P or Section 504 team should revise the I E P or Section 504 plan so that a F A P E will be provided.

D C L from O C R, 2014

Officials at O C R wrote again that disability-based harassment is a violation of Section 504 and Title

of the A D A when (a) a student is bullied based on a disability; (2) the bullying is sufficiently serious to create a hostile environment; (3) school officials know or should know about the bullying; and (4) the school does not respond appropriately

O C R officials also noted that bullying of a student with a disability on any basis can similarly result in a denial of F A P E under Section 504 that must be remedied

Lessons from Litigation & Legislation (1 of 5)

Principle 1: Develop and publicize the school district’s policy for preventing and addressing bullying

Principle 2: Adopt a research-based bullying prevention program and implement it

Principle 3: Prove administrators, teachers, and staff with professional development on bullying prevention

Principle 4: Be on the lookout for incidences of bullying

Principle 5: Respond to incidences of bullying quickly and effectively

Issue #2: Students with Disabilities in Charter Schools

Charter schools are public schools and, therefore, are required to fulfill the same duties relating to student with disabilities as do all public schools.

Public charter schools can operate as either as a school within a local education agency (L E A) or as an L E A itself. No charter is permanent and the charter must be renewed regularly based on student enrollment and educational results.

If a charter school is a school within a L E A or a charter school operating as a L E A and receives federal funding, the charter school must adhere to the requirements of Section 504 of the Rehabilitation Act.

The Every Student Succeeds Act (E S S A)

According to the E S S A a charter school is a public school must meet the following requirements:

is developed in accordance with a state’s charter school laws.

is exempt from many State and local rules that inhibit the flexible operation and management of public schools.

is not exempt from federal laws, rules, and regulations, including Section 504 and the I D E A

is operated under public supervision and direction

is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution

Has a written performance contract with the authorized public chartering agency in the State that includes a description of how student performance will be measured in charter schools

Charter Schools and I D E A

Charter school operators must

publicize and conduct child find activities,

Follow all I D E A procedural requirements (e.g., notice and consent)

evaluate students suspected of having a disability and needing special education services,

provide special education and related services to eligible students with disabilities that confers a free appropriate public education (F A P E),

collaborate with a student’s parents to develop an individualized education programs that delineates his or her special education program,

place a student in the least restrictive environment (L R E) that is appropriate to the student’s needs.

Eligible students with disabilities and their parents retain all their rights and protections under Part B of the I D E A

Lessons from Litigation & Legislation (2 of 5)

Principle 1: Provide thorough professional development on federal education laws to charter school directors, administrators, teachers, and staff

Principle 2: Appoint a contact person in the charter school to address special education issues

Principle 3: Special education should be a foundational aspect of a charter school’s educational program

Principle 4: Charter schools must adhere to the I D E A regulations and Section 504

Response to Intervention (R T I)

Changes to special education law in the Individuals with Disabilities Education Improvement Act (I D E I A) of 2004

States could no longer require school districts to a discrepancy formula to identify students with learning disabilities

School districts could use response to intervention for identification

In a policy memorandum from the Office of Special Education Programs (O S E P), officials noted that although O S E P was not endorsing any one R T I model, the noted important core characteristics:

High-quality, research-based instruction in general education;

Continuous progress monitoring;

Screening for academic and behavior problems; and

Multiple tiers of progressively more intense instruction

Early Intervening Services

Early intervening services permits school districts to use up to 15% of the I D E A Part B funds that the district receives each year in combination with other funds (including funds from the Every Student Succeeds Act) to develop and implement E I S for students in kindergarten through grade 12, with an emphasis on students in kindergarten through grade 3, who have not been identified as needing special education or related services but who need additional academic and behavioral support to succeed in the general education environment

The purpose of E I S is to identify young students who are at risk for developing academic and behavioral problems while they are still in general education settings, and then to address these problems by delivering interventions in a systematic manner using research-based academic and behavioral interventions along with progress monitoring systems.

A Warning from O S E P

Memorandum from O S E P in January 21, 2011 titled “A Response to Intervention (R T I) Process Cannot Be Used to Delay or Deny an Evaluation for Eligibility Under the Individuals with Disabilities Education Act”

When a parent requests an evaluation for a special education, there are only two acceptable responses:

Yes, we will conduct an evaluation. Here is a consent from along with a notice of your procedural safeguards

No, at this time we do not believe an evaluation is warranted. Here is your prior written notice explaining our and reasons for denying an evaluation at this time and a notice of your procedural safeguards

It is not acceptable to deny an evaluation because he student has not been through all tiers of an R T I system

Lessons from Litigation & Legislation (3 of 5)

Principle 1: Ensure that school district administrators, teachers, and staff understand their responsibilities under the I D E A

Principle 2: Develop an R T I/M T S S system based on best practices

Principle 3: Use instructional practices and progress monitoring systems that are based on evidence and research

Principle 4: Ensure that the R T I/M T S S system does not interfere with the I D E A’s child find or evaluation requirements

Student Records

In 1974, Congress enacted the Family Educational Rights and Privacy Act to address concerns regarding the confidentiality and accessibility of student records.

The law applies equally to both preschool-grade 12 school and institutions of higher education

When the Education for All Handicapped Children Act (now the Individuals with Disabilities Education Act, or I D E A) was passed in 1975, the confidentiality and access provisions of F E R P A were incorporated into the law.

Family Education Rights and Privacy Act (F E R P A)

F E R P A requires the following:

School districts must establish written policies regarding student records and inform parents of their rights under F E R P A annually;

Parents are guaranteed access to their children’s educational records;

Parents have the right to challenge the accuracy of the educational records;

Disclosure of these records to third parties without parental consent is prohibited; and

Parents may file complaints under F E R P A regarding a school’s failure to comply with the law.

An educational records are any records, files, documents, and other materials that contain information directly related to a student and are maintained by a school or by a person acting for the school

Parental Access Rights

Parents and eligible students over 18 years of age have the right to see, inspect, reproduce, and challenge the accuracy of educational records. These rights extend to custodial and noncustodial parents, unless a court order has been issued that denies the noncustodial parent access rights.

Parents can request access at any time and school districts must produce them for inspection within a reasonable time, and within 45 days of the request.

Privacy Rights

Information in the records cannot be disseminated to unauthorized third parties without written consent of the parents (specific consent that details what and to whom)

Persons who are authorized to see the educational records include School personnel (e.g., administrators, teachers, counselors) with a legitimate need to know and who are designated as such by the school.

Includes law enforcement personnel and in health and safety emergencies

Under limited circumstances educational researchers, federal & state officials, accreditation officials, court officials can view directory information (e.g., names, addresses, dates of birth)

Lessons from Litigation & Legislation (4 of 5)

Principle 1: School district officials should develop and publicize clear policies regarding students’ educational records

Principle 2: Ensure that school district administrators, teachers, and staff understand their responsibilities regarding student records

Principle 3: Appoint a case manager to keep a student’s special education and section 504 records

Liability for Student Injury

Tort laws: Laws that offer remedies to individuals harmed by the unreasonable actions of others. Tort claims usually involve state law and are based on the legal premise that individuals are liable for the consequences of their conduct if it results in injury to others

Intentional torts: Intentional torts are usually committed when a person attempts or intends to do harm. For intent to exist, the individual must know with reasonable certainty that injury will be the result of the act

Negligence: Negligence arises in instances where conduct falls below an acceptable standard of care, thereby resulting in injury. For negligence to occur, an injury must have been avoidable by the exercise of reasonable care.

Teachers & Intentional Torts

Assault & battery cases in education often result from attempts to discipline a student or stop a student from injuring someone

Because courts are reluctant to interfere with a teacher’s authority to discipline, teachers are given considerable leeway by the courts in assault & battery cases.

Courts have found teachers guilty of assault & battery when discipline is cruel, brutal, excessive, or administered with malice, anger, or intent to injure.

Determining Liability

When determining if a teacher’s actions or discipline constitutes excessive or unreasonable punishment, courts will examine:

The age of a student,

the instrument, if any, that was used,

the extent of the discipline,

the nature & gravity of a student’s offense,

the history of the student’s previous conduct,

the temper & conduct of the teacher

Negligence Torts

The difference between intentional torts and negligence torts is that in negligence the acts leading to injury are not intended to cause harm but were caused by a person failing to act reasonable to prevent the injury

Students bringing negligence claims must prove that school personnel should have foreseen and prevented the injury by exercising proper care

Accidents that could not have been prevented by reasonable care do not constitute negligence

The Elements of Negligence

Duty to Protect: The first element is that teachers have a duty to anticipate foreseeable dangers and take necessary precautions to protect students in their care

A reasonable standard of care: The second element occurs when teachers fail to exercise a reasonable standard of care in their duties to students. If a teacher fails to exercise reasonable care to protect students from injury, then the teacher is negligent.

Proximate cause: The third element that must be proved in a negligence case is a connection between the breach of duty by the teacher and the subsequent injury to the student. This element, referred to as proximate cause, often hinges on the concept of foreseeability; that is, was the student’s injury something that a teacher could have anticipated?

Actual injury: The final element that must be proved in negligence cases is that there was an actual physical or mental injury.

Lessons from Litigation & Legislation (5 of 5)

Principle 1: Develop policies and procedures regarding standards of care and supervision

Principle 2: Provide professional development to administrators, teachers, and staff

Principle 3: Involve students’ I E P teams or section 504 teams in discussing potential safety risks

Principle 4: If you see something occurring that you know to be wrong, report it to your supervisors

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