Tuesday, November 23, 2021
Wednesday, August 25, 2021
Thee United States Department of Education will be issuing guidance to schools notifying them that regardless of the COVID pandemic or how instructino is provided, students with disabilities must still receive a free appropriate public education (FAPE) in accordance with the Individuals with Disabilities Education Act (IDEA), and that infants and toddlers with disabilities and their families receive early intervention services. Here is the first guidance document, a Questions and Answers (Q/A) document, that outlines the key requirements and reminds schools of their requirement to appropriately implement IDEA's Child Find obligations. https://sites.ed.gov/idea/files/rts-qa-child-find-part-b-08-24-2021.pdf
Friday, July 2, 2021
Parents often ask:
Can the school exit my child from an IEP?
How can a school exit my child from an IEP?
The answer to these questions are that schools are not allowed to just dimiss - or exit - a student from an IEP without a formal evaluation. And so an IEP may not just say that a student no longer needs special educaiton and related services. Instead, the IEP team must arrange to re-evaluate the student in all areas of suspected disabilty, and only after the evaluation may the team decied whether or not the student continues to need special education and related services, that is, whether the student still continues to be eligible.
The federal regulation that addresses this is 34 CFR 300.305.
Wednesday, May 5, 2021
Bullying - When Special Needs Students Are the Victims or Instigators
What is Bullying? Bullying is unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance. The behavior is repeated, or has the potential to be repeated, over time. Both students who are bullied and who bully others may have serious, lasting problems. In order to be considered bullying, the behavior must be aggressive and include an imbalance of power repeatedly. Students who bully use their power—such as physical strength, access to embarrassing information, or popularity—to control or harm others. Power imbalances can change over time and in different situations, even if they involve the same people. Bullying behaviors happen more than once or have the potential to happen more than once. Bullying includes actions such as making threats, spreading rumors, attacking someone physically or verbally, and excluding someone from a group on purpose.
Types of Bullying: There are three types of bullying. One type is verbal bullying. Verbal bullying is saying or writing mean things. Verbal bullying includes teasing, name-calling, inappropriate sexual comments, taunting, and threatening to cause harm. A second type of bullying is social bullying. Social bullying is sometimes referred to as relational bullying. It involves hurting someone’s reputation or relationships. Social bullying includes intentionally excluding someone, telling other children not to be friends with someone, spreading rumors about someone and embarrassing someone in public. The third type of bullying is physical bullying. Physical bullying involves hurting a person’s body or possessions. Physical bullying includes hitting, kicking, pinching, spitting, tripping, pushing, taking or breaking someone’s things, and making mean or rude hand gestures.
Where and when does bullying take place? Bullying can occur during or after school hours. While most reported bullying happens in the school building, a significant percentage also happens in places like on the playground or the bus. It can also happen travelling to or from school, in the youth’s neighborhood, or on the internet (cyberbullying).
What is Cyberbullying? Cyberbullying is bullying that takes place using electronic technology. Electronic technology includes devices and equipment such as cell phones, computers, and tablets as well as communication tools including social media sites, text messages, chat, and websites. Examples of cyberbullying include mean text messages or emails, rumors sent by email or posted on social networking sites, and embarrassing pictures, videos, websites, or fake profiles. Students who are being cyberbullied are often bullied in person as well. Additionally, students who are cyberbullied have a harder time getting away from the behavior. Cyberbullying can happen 24 hours a day, 7 days a week, and reach a student even when he or she is alone. It can happen any time of the day or night. Cyberbullying messages and images can be posted anonymously and distributed quickly to a very wide audience. It can be difficult and sometimes impossible to trace the source. Deleting inappropriate or harassing messages, texts, and pictures is extremely difficult after they have been posted or sent. Whether done in person or through technology, the effects of bullying are similar.
Bullying of students with disabilities can amount to a denial of a FAPE as it creates a hostile learning environment such that may interfere with the student’s ability to access the curriculum. For instance, they may not want to go to school, or they may be distracted by thoughts of the bully.
The U.S. Department of Education policy guidance states that “disability harassment that adversely affects an elementary or secondary student's education may also amount to a denial of FAPE under the IDEA. Harassment of a student based on disability may decrease the student's ability to benefit from his or her education and amount to a denial of FAPE.” Dear Colleague Letter regarding Disability Harassment, 7/25/2000.
There are a growing number of cases and court decisions concerning bullying and finding that peer-on-peer bullying – and bullying by the student’s teacher – can result in a denial of FAPE in violation of the IDEA and/or 504:
· Bullying that is severe enough to alter the condition of student's education and create an abusive educational environment, coupled with the knowledge and deliberate indifference by school officials, is one way a student may establish a violation of the Rehabilitation Act. D.A. v. Meridian Joint School Dist. No. 2, --- F.R.D. ----, 2013 WL 588761 (D.Idaho, 2013).
· A teacher’s deliberate indifference to the abuse and teasing of a student with a disability could result in the denial of a FAPE under the IDEA. M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 650 (9th Cir.2005).
· A student with emotional disabilities was denied FAPE based on the likelihood that a proposed placement would subject the student to continued bullying because of his perceived effeminacy. Shore Regional High School Board of Education v. P.S., 381 F.3d 194 (3d Cir., 2004). The placement of the student at the local high school was inappropriate because the school would not be able to prevent or stop the continued bullying. The student had previously been subjected to relentless physical and verbal harassment as well as social isolation because he was "girlish." Because the placement would expose him to further bullying and harassment, the placement would in effect deny the student FAPE.
When the special needs student is the perpetrator, or bully, the student should be referred for a Functional Behavior Assessment (“FBA”) from which a Behavior Intervention Plan (“BIP”) can be developed and implemented.
Best practices for schools:
· Develop and publicize comprehensive policies regarding bullying, harassing, and hazing;
· Explain to students exactly what they should do if they are bullied or witness bullying;
· Have a formal reporting procedure in place;
· Inform students that they will not be punished for reporting bullying in good faith.
· Consider having an online system where students can report bullying. Many students become nervous, scared, or shy, and having a more informal system for students to report bullying may encourage them to do so;
· Respond promptly to all incidents and reports;
· Consider the totality of circumstances presented when determining whether the conduct objectively constitutes harassment or bullying;
· Enforce the policy consistently;
· Be sure that all students receive and review a copy of the student handbook containing a copy of the anti-bullying/harassment/hazing policies;
· Make it clear, particularly to athletes and upperclassmen, that hazing will not be tolerated and that students will face serious discipline, including criminal charges, for any violations;
· Be aware of the potential infringement of students’ First Amendment rights.
· Even when disciplinary action is not allowed, take steps to inform and engage parents in the anti-bullying efforts.
The IDEA protects students with disabilities in disciplinary proceedings that may result in long term suspension or expulsion. Suspension over 10 days in a school year requires a Manifestation Determination Review (“MDR”). A student with a disability (with an IEP) may be suspended for up to 10 school days in a school year without FAPE being provided. Suspension for more than 10 school days is considered a long term suspension.
The implementing regulations of the IDEA, at 34 C.F.R. § 300.530(e), require that a school conduct an MDR when the decision is made to change a student’s placement because of a disciplinary infraction. A disciplinary “change of placement” occurs for a student with a disability if: (1) The removal is for more than 10 consecutive school days; or (2) he student has been subjected to a series of removals that constitute a pattern because the series of removals total more than 10 school days in a school year; because the student's behavior is substantially similar to the student's behavior in previous incidents that resulted in the series of removals; and because of additional factors, such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another. 34 C.F.R. § 300.536.
If a student with a disability may be suspended for more than 10 school days due to a code of conduct violation, the public agency, parents, and relevant IEP Team members (determined by parents and district) must have a meeting to determine whether the student's behavior was a manifestation of his/her disability. At the meeting, all relevant information in the student's file, the IEP, teachers' observations and any other relevant information parents provide must be reviewed in order to determine whether the conduct was caused by or had a direct and substantial relationship to the student's disability, or whether the conduct was the direct result of the public agency's failure to implement the student's IEP. If either of the two conditions above were met then there should be a determination that the conduct was a manifestation of the student's disability. If it is determined that it was the public agency's failure to implement the student's IEP, then the public agency must take immediate steps to remedy those failures. 34 C.F.R. §300.530(e). When the determination is that the conduct was a manifestation of the student's disability, then the IEP Team must either conduct an FBA (unless the public agency already conducted one before the behavior violation occurred) and implement a BIP for the student or, if there is already a BIP in existence for the student, then the public agency must review the BIP and modify the BIP if necessary to address the behavior, and the student must be returned to the placement from which he/she was removed — unless the parents and public agency agree to a change of placement as part of the BIP or modification to the BIP.
Exception: The student may be placed in an interim alternative educational setting for no more than 45 school days without a manifestation determination review IF the student carried or possessed a weapon at school, knowingly possessed or used illegal drugs, sold or solicited controlled substances or inflicted serious bodily injury on someone else while at school or on school premises or at a school function. 34 C.F.R. §300.530 (f) and (g).
In cases where the behavior is determined to have NOT been a manifestation of the student's disability and the disciplinary changes in placement will exceed 10 consecutive school days, the same discipline may be imposed on the student with disabilities as a student without disabilities. HOWEVER, the student with an IEP must be provided with a FAPE; special educational services to enable the student to continue participating in the general education curriculum, even in another setting and make progress toward meeting the student's IEP goals. Additionally, if appropriate, the student is to receive a FBA, behavioral intervention services and modifications to address the conduct so that it does not recur. 34 C.F.R. §300.530 (c) and (d).
If parents disagree with the outcome of the MDR, they may appeal by filing file a due process complaint.
Students with Section 504 Plan: Students with 504 plans have similar protections to those students with IEPs. But there are some differences. The public agency may discipline a student with a disability under Section 504 just as it would a student without a disability if the student is currently engaging in the illegal use of drugs or use of alcohol, or in possession of illegal drugs or alcohol.
Additionally, the public agency is not required to provide educational services during a long term suspension or expulsion to a student with a 504 that committed a violation that was determined not to be a manifestation of his/her disability.
Discipline of students in Arizona public schools is covered in Arizona Revised Statutes at Title 15 (Education), Chapter 8 (School Attendance), Article 3 (Suspension and Expulsion of Pupils), Sections 15-840 through 15-844. In Arizona, all students are required to comply with school rules and submit to the authority of teachers and school administrators. A.R.S. § 15-841(A).
Students with IEPs and 504 Plans have extra protections under federal and state laws when it comes to discipline. But the cornerstone of student discipline is balancing two separate rights of students: the constitutional right to a public education, and the right to a safe and orderly learning environment. Procedures and laws in place to protect students from arbitrary and wrongful discipline are necessary, as are procedures and laws to allow schools to discipline disruptive and dangerous students.
First, let’s get the terminology down:
Suspension is the temporary withdrawal of attending school for a specified period of time. It can be “short term” – up to ten (10) days, or “long term,” eleven (11) or more days. A.R.S. § 15-840.
Expulsion is the “permanent withdrawal of the privilege of attending a school unless the governing board [of the school district or charter school] reinstates the privilege of attending the school.” A.R.S. § 15-840. Usually a student can re-apply for admission after one year. Although education is a right, note that the Arizona statute still calls it a “privilege.”
Students in Arizona may be expelled for continued open defiance of authority, continued disruptive or disorderly behavior, violent behavior that includes use or display of a dangerous instrument or a deadly weapon ("anything designed for lethal use, including a firearm"), use or possession of a gun, or excessive absenteeism." A.R.S. § 15-841(B). Students over age 16 and those who completed the course of study through tenth grade may be expelled for excessive absenteeism. Id. The law also allows school districts to expel students for actions other than those listed in the statutes as the school district deems appropriate." Id.
A school district or charter school “shall expel for a period of not less than one year” a student who brings a firearm to a school, or a student who is determined to have threatened an educational institution, except that the school district or charter school may modify these expulsion requirements for a student on a case by case basis. A.R.S. §§ 15-841(G) and (H). These subsections “shall be construed consistently with the requirements of the [IDEA].” Id.
The “Gun-Free Schools Act,” 20 U.S.C. § 1751, requires each state that receives federal funds to have in effect a state law requiring expulsion from school for not less than one year any student who brings a weapon to campus. Arizona’s state law is A.R.S. § 15-841(G). However, schools are not permitted or required to expel students with IEPs without adherence to the procedural safeguards of the IDEA and the Gun-Fee Schools Act does not eliminate the school district's obligation to provide the student with a free appropriate public education (FAPE) following the expulsion. Congressional guidance concerning state and local responsibilities under Gun-Free Schools Act states that students with disabilities removed from school pursuant to the Act must be provided with alternative programming during the disciplinary exclusion, and the Act specifically states that its provisions must be construed consistently with the IDEA. Magyar By and Through Magyar v. Tucson Unified School Dist., D.Ariz.1997, 958 F.Supp. 1423.
Students in Arizona may be expelled for continued open defiance of authority, continued disruptive or disorderly behavior, violent behavior that includes use or display of a dangerous instrument or a deadly weapon (“anything designed for lethal use, including a firearm”), use or possession of a gun, or excessive absenteeism.” A.R.S. § 15-841(B). Students over age 16 and those who completed the course of study through tenth grade may be expelled for excessive absenteeism. Id. The law also allows school districts to expel students for actions other than those listed in the statutes as the school district deems appropriate.” Id.
There are numerous sources of law governing student discipline, but no federal statutes. States’ Constitutions typically guarantee every child between five and 18 years of age the right to an educ. But that right to education is of course impacted by school suspensions and expulsions.
Schools districts and charter schools have student codes of conduct that provide for multi-tiered, or graduated, consequences, based on number of times the behavior occurred and the severity of the behavior. The codes identify the offenses or circumstances that either must (look for the word “shall”) or may (permissive, not mandatory) either long-term suspension or expulsion.
All students have a right to due process before being suspended for more than ten (10) days. That right to due process was established in 1975 in the Supreme Court case, Goss v. Lopez, 419 U.S. 565 (1975). Dwight Lopez was a high school student in Ohio. In February 1971, a number of students were involved in a disturbance in the school cafeteria causing property damage. Dwight denied he was involved, but he was suspended for ten days before he could give his side of the story. Schools in Ohio were allowed to suspend or expel a student for misconduct as long as their parents were informed of the discipline and the reasons for it within 24 hours. A student who was expelled was allowed to appeal the decision to the Board of Education but a student who was suspended was not allowed to appeal. Dwight and eight other students who were suspended brought suit in Federal District Court claiming violation of their 14th Amendment right to due process. The 14th Amendment states that: [No State …shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The District Court ruled in favor of the students, and the school district appealed the decision to the United States Supreme Court. The Supreme Court handed down its decision in January 1975 holding (declaring) that students facing suspension "must be given some kind of notice and afforded some kind of hearing" before being deprived of their education.” The United States Supreme Court held that all public school students have a legitimate entitlement to a public education that rises to the level of a constitutionally protected property interest.
Thus, a student’s property interest in their education cannot be taken from them without prior adherence to minimum due process standards. Thus, all removals of students from education for misconduct must comply with appropriate due process standards of notice and opportunity to be heard. The Supreme Court also held that lengthy suspensions or expulsions (over 10 consecutive school days) require a commensurately higher degree of formality in the due process protections than would short-term suspensions in response to more minor misbehavior. But all disciplinary removals require some degree of notice and opportunity to be heard.
Thus, all students suspended for fewer than 10 days are entitled to minimal due process, which is very informal, often just a verbal conversation between a student and a school administrator. For a suspension expected to last longer than 10 days, which is a long-term suspension, or an expulsion, a formal hearing is required – called a “disciplinary due process hearing,” not to be confused with an IDEA due process hearing - for both general education students and students with disabilities (although students with an IEP may not be expelled – discussed below). Thus, for long-term suspensions (more than 10 days) and expulsions, the elements of due process are much more formal.
Each school district and charter school has its own specific disciplinary due process hearing procedures, but most will include the following elements: notice and fair hearing with opportunity to be heard. The notice to the student and parent must be in writing, provide the date, time and location of the hearing, the specific charges, including applicable facts, rules violated, and a copy of the rules should be provided. The punishment being considered must be set forth, as well as a list of witnesses and copies of exhibits must be provided. Also, the name of the hearing officer must be provided. Every school district and charter school has in its policies the number of days in advance that the notice is to be sent and how it is to be sent, for example, first-class mail or certified mail.
The student and parent should also be informed of their right to attend the hearing, bring counsel at their own expense, access adverse evidence and student records prior to hearing, present witnesses and cross examine the district/school’s witnesses, make a recording of the hearing, or obtain a copy of the recording of the hearing. The parent is also given the option of having the hearing closed or open. The burden of proof is on the administration of the district or charter school. Both sides should have an opportunity to present an opening and closing statement if desired, and to present and cross-examine witnesses.
The hearing is held before a so called “Independent Hearing Officer” (“IHO”). The IHO should not have contact with any of the parties unless the parties are both present, and unless contact is limited to items like scheduling of the hearing, should not pre-judge the student prior to the hearing. and may be an employee of the district/charter school, but should not be an employee with a stake in the matter (e.g. the principal who is recommending long-term suspension or expulsion).
Hearing decisions should be in writing, should summarize the events of the hearing, should list applicable appeal procedures, and state the appeal procedures. Decisions regarding long-term suspensions can be appealed to Governing Board of the school district or charter school. Decisions regarding expulsions are not appealable if the hearing was conducted by Governing Board. If a recommendation was made to the Governing Board by an appointed Hearing Officer, the recommendation can be argued before the Governing Board makes the final decision regarding the expulsion.
Bear in mind that some states, including Arizona, allow school districts as well as charter schools to refuse to admit any student who has been expelled from another educational institution or who is in the process of being expelled from another educational institution. A.R.S. §§ 15-184(I)(charter schools)(“ A charter school may refuse to admit any pupil who has been expelled from another educational institution or who is in the process of being expelled from another educational institution”) and 15-841(C)(public school districts)(“ A school district may refuse to admit any pupil who has been expelled from another educational institution or who is in the process of being expelled from another educational institution”).
When we speak of restraints in school, we are usually referring to physical, such as being held by a staff member or mechanical, such as straps or handcuffs. Isolation is when a student is restricted to a certain location involuntarily and not permitted to leave. Some schools have rooms they call seclusion or, euphemistically, “scream rooms” or “calming rooms.”
To the extent that restraint could be considered corporal punishment, the U.S. Supreme Court has refused to impose constitutional restrictions on the common law privilege to allow educators use of “reasonable” corporal punishment. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401 (1977). However, many Circuits including the 9th Circuit (Arizona is in the 9th Circuit) have held that “excessive and unreasonable corporal punishment of public school students violates [students’] substantive due process rights.” Preschooler II v. Clark County School Bd. Of Trustees, 479 F.3d 1175, 1181-1182 (9th Cir.2007).
Arizona law allows corporal punishment, leaving it to the school district governing board to provide procedures for the use of corporal punishment, A.R.S. § 15-843(B)(2):
15-843. Pupil disciplinary proceedings
B. The governing board of any school district, in consultation with the teachers and parents of the school district, shall prescribe rules for the discipline, suspension and expulsion of pupils. The rules shall be consistent with the constitutional rights of pupils and shall include at least the following:
2. Procedures for the use of corporal punishment if allowed by the governing board.
The IDEA does not specifically address restraint or seclusion in schools. State laws and regulations vary on use of restraints. Back in 2010, Congress looked at the alarming number of fatalities and injuries caused by restraints and seclusions in schools and considered legislation with a House bill titled “Keeping All Students Safe Act,” and two Senate bills titled “Preventing Harmful Restraint and Seclusion in Schools Act” and “Keeping All Students Safe Act.” The bills would have limited the use of restraint and seclusion in schools to cases of imminent danger of physical injury to the student or others, provided criteria and steps for the proper use of restraint or seclusion, and promoted the use of positive reinforcement and other less restrictive behavioral interventions. The measures also would have authorized support to States in adopting more stringent oversight of the use of restraint and seclusion in schools, and would have established requirements for collecting data on the use of these practices in schools. Following debate, no federal legislation was enacted, and neither has action on such legislation been taken to date. See U.S. Department of Education, Restraint and Seclusion: Resource Document, Washington, D.C., 2012 https://sites.ed.gov/idea/files/restraints-and-seclusion-resources.pdf Thus, it is up to the individual states.
Arizona law is found in the statute:
1. The pupil’s behavior presents an imminent danger of bodily harm to the pupil or others.
3. The restraint or seclusion technique shall be used only by school personnel who are trained in the safe and effective use of restraint and seclusion techniques unless an emergency situation does not allow sufficient time to summon trained personnel.
D. Schools shall establish reporting and documentation procedures to be followed when a restraint or seclusion technique has been used on a pupil. The procedures shall include the following requirements:
1. School personnel shall provide the pupil’s parent or guardian with written or oral notice on the same day that the incident occurred, unless circumstances prevent same-day notification. If the notice is not provided on the same day of the incident, notice shall be given within twenty-four hours after the incident.
2. Within a reasonable time following the incident, school personnel shall provide the pupil’s parent or guardian with written documentation that includes information about any persons, locations or activities that may have triggered the behavior, if known, and specific information about the behavior and its precursors, the type of restraint or seclusion technique used and the duration of its use.
3. Schools shall review strategies used to address a pupil’s dangerous behavior if there has been repeated use of restraint or seclusion techniques for the pupil during a school year. The review shall include a review of the incidents in which restraint or seclusion technique were used and an analysis of how future incidents may be avoided, including whether the pupil requires a functional behavioral assessment.
E. If a school district or charter school summons law enforcement instead of using a restraint or seclusion technique on a pupil, the school shall comply with the reporting, documentation and review procedures established under subsection D of this section. Notwithstanding this section, school resource officers are authorized to respond to situations that present the imminent danger of bodily harm according to protocols established by their law enforcement agency.
F. This section does not prohibit schools from adopting policies pursuant to § 15-843, subsection B, paragraph 3.
1. “Restraint” means any method or device that immobilizes or reduces the ability of a pupil to move the pupil’s torso, arms, legs or head freely, including physical force or mechanical devices. Restraint does not include any of the following:
(a) Methods or devices implemented by trained school personnel or used by a pupil for the specific and approved therapeutic or safety purposes for which the method or device is designed and, if applicable, prescribed.
2. “School” means a school district, a charter school, a public or private special education school that provides services to pupils placed by a public school, the Arizona state schools for the deaf and the blind and a private school.
3. “Seclusion” means the involuntary confinement of a pupil alone in a room from which egress is prevented. Seclusion does not include the use of a voluntary behavior management technique, including a timeout location, as part of a pupil’s education plan, individual safety plan, behavioral plan or individualized education program that involves the pupil’s separation from a larger group for purposes of calming.
Added by Laws 2015, Ch. 300, § 1.