What We Are Learning From Court Cases

Peggy Burns, Esq.Education Compliance Group, Inc.

303-604-6141www.educationcompliancegroup.com

peggy@educationcompliancegroup.com Copyright © 2012, Education Compliance Group, Inc. All rights reserved.

What is the difference? The importance of label What is the appropriate response?

“Knew or should have known” standard

Has the educational environment become “hostile”?

Need for comprehensive approach to elimination

A Distinction without a Difference?

Example from OCR “Dear Colleague Letter” 10/26/10

Several classmates repeatedly called a student w/ a learning disability “stupid,” “idiot,” and “retard” in school and on the bus. One occasion was particularly violent. The student complained to his teacher and the driver. He was offered counseling and psychiatric evaluation, but the district did not discipline the aggressors. The harassment continued. The student, who had been performing well academically, became angry, frustrated, and depressed, and often refused to get on the bus, causing him to miss school.

Dangerous Fact Patterns

Harassment begins with one aggressor. District fails to address the conduct appropriately, and other students join in. This treatment becomes sufficiently persistent and pervasive that it interferes with the student’s participation in the educational program.

Student is subjected to extreme isolation, ostracism, and taunting. Drivers and aides – like classroom teachers – ignore efforts of other students to advocate for her, and, in fact, view the victim as the trouble-maker.

Dangerous fact patterns (contd.)

Long term, on-going, peer harassment can become entrenched and “unfixable”; school bus provides harassers a “ripe opportunity” to continue harassment

The bus was a “hell hole” that typified the “racial tidal wave” existing at school. Administrators imposed “meaningless” consequences with no emphasis on prevention. Administrators, including superintendent, are non-responsive to parent

Dangerous fact patterns (contd.)

Students are involved in a serious incident of sexual molestation at the end of the school day. Despite knowledge of the incident, school officials permit victim to board the bus with aggressor, with no information to the transportation department in general, or the driver in particular. The aggressor picks up where he left off.

District’s failure to follow its own policy for investigation and consequent discipline for harassment led to continued victimization of student.

Strive for an “under control bus”

Controlled bus environment is a stronger goal than a “bully-free” or “fight-free” or “alcohol-free” environment. Here are the indicators: Students are required to remain in their seats Effective seating charts are designed and

enforced Students who require supervision are

identified and supervised Drivers speak up, pull over as necessary, and,

generally intervene in student-student conflict

Under-control bus, contd.

Drivers process write-ups Transportation administrators forge

relationships w/ school administrators Students are encouraged to report bus

incidents Students are assured that their complaints will

be taken seriously and those who hurt or intimidate them will be penalized

Students w/ disabilities are more vulnerable

Studies have shown that students with a disability, whether it is visible or non-visible, are subject to increased bullying that is often directed at the disability. These students are also at more risk for bullying directed at factors other than their disability. Young, Ne'eman, and Gelser, Bullying and Students

With Disabilities, in White House Conference on Bullying Prevention, (March 10, 2011), available at http://www. stopbullying. gov/references/white_ house_ conference/index.html.

Specifics of Lopez settlement

Staffing monitors on all special education buses Video monitoring equipment on all sped buses Comprehensive screening procedures to

remove risks that might be associated w/ student w/ a disability being assigned to a particular bus

Protocols for report with notification to parents of procedures

Weekly review by designated official of all complaints received; specific response required when know unreasonable risk of sexual harassment on a special needs bus

Lopez settlement, contd.

Expediting investigation of all suspected acts of sexual harassment involving students w/ disabilities

Ensuring open lines of communication between transportation officials and school-based personnel

“Bus rosters” w/ “bus transportation order” outlining special transportation needs generated w/ IEP process. Communicated to driver, monitor, sub driver, sub monitor

Comprehensive annual training for all staff who have at least one special needs student on a bus

Figure 1. Students Who Experienced Sexual Harassment during the 2010–11 School Year, by Gender

Figure 11. Actions Students Took after Being Sexually Harassed, by Gender

Figure 14. Student Suggestions for Reducing Sexual Harassment at School, by Gender

Your obligations

Recognize – drivers and attendants must be alert to behavior which is not just developmentally appropriate horseplay; bullies can terrorize their victims.

Respond – when you’re aware, doing nothing is never the right thing. Intervene; say something!

Report – to meet the district’s obligation to investigate, your staff must provide full & timely information as required by policy. But, reporting is not an alternative to response!

Reassure – show the victim that you get it, and will do your part to avoid a repeat performance.

Training for action Foster compliance with

relevant policies Explain expectations for

seating arrangements, other preventive student management techniques.

Review information issues. Communicate with

school administrators about transportation professionals’ need to know student information that will impact the ride

Work as a team to avoid “re-victimizing” the victim. Never take the position

that students should learn to cope with harassment

Typically, any negative impact of change should be on harasser, not the victim (but watch out for harasser with special needs for whom transportation is a related service.)

Training for action, contd.

Instruct drivers to report to their supervisors or to a building administrator in accordance w/ policy

What do policy and practice establish as the applicable range of consequences? Who administers them?

What back up plans are necessary (for example, if an attendant is required, what if s/he’s absent?)

What information, direction do you provide to attendants?

Responding: Be Fair, Consistent and Clear

Tell the student what s/he’s doing that s/he must stop

Explain possible consequences Recognize when telling and explaining

isn’t enough Handle similar situations similarly Work with school administrators where

behavior on bus is only a microcosm of the atmosphere in school

Reporting expectations

Even if BOE policy doesn’t make reporting by all staff members mandatory, you should

Encourage prompt oral reports from your staff, with written follow-up

While you should respect the discomfort on religious or moral grounds that staff may have with reporting what a student actually said or did, reports must be factual and detailed.

Complaint Handling and Investigation Strategy

Who knows about what? Interaction with police Is action against individual harassers

sufficient if district never addresses overall and continuing harassment?

See, www.educationcompliancegroup.com, Point of Law, for “Invincible Investigations”