SCHOOL BULLYING: WHAT ADVOCATES NEED TO KNOW ABOUT … · uncomfortable by wearing make-up. ... facilities, privileges, advantages or accommodations in a place of public accommodation

SCHOOL BULLYING: WHAT

ADVOCATES NEED TO KNOW

ABOUT THE CHANGING

LANDSCAPE OF LAWS ADRESSING

BULLYING IN SCHOOL AND THE

RIGHTS OF LGBTQ YOUTH

Bradford A. King

(804) 783-7263

[email protected]

mailto:[email protected]

What does “transgender” mean?

A transgender person has a gender identity (one’s

internal sense of gender) that is different from the

gender identification listed on the individual’s birth

certificate.

A “transgender male” is a person born female,

transitioning to or living as a male.

Transgender individuals may or may not seek

medical intervention, including hormone treatment

or sex-reassignment surgery.

Protections for Students: Federal Law

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX):

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

U.S. Department of Education’s Office for Civil Rights (“OCR”) interprets this to include gender-based harassment.

Gender-based harassment includes verbal, non-verbal or physical aggression, intimidation, or hostility based on sex or sex stereotyping, including failing to conform to stereotypical notions of masculinity or femininity.

Protections for Students: Title IX

School divisions are not liable for one student harassing another, but may be liable for failing to respond adequately, whether or not the harassed student makes a complaint or asks the school to take action.

School division may violate Title IX if:

Harassing conduct is sufficiently serious to deny or limit the student’s ability to participate in or benefit from the educational program;

The division knew or reasonably should have known about the harassment; and

The division failed to take appropriate responsive action.

Protections for Students: Title IX

When a school division knows or reasonably should know of possible harassment, it must take immediate and appropriate steps to investigate or otherwise determine what occurred.

If an investigation reveals that the harassment created a hostile environment, the school district must then take prompt and effective steps reasonably calculated to:

End the harassment;

Eliminate the hostile environment;

Prevent its reoccurence; and

As appropriate, remedy its effects.

Office for Civil Rights Complaints

Arcadia Unified School District (CA) – July 2013 landmark OCR decision.

Complaint alleged discrimination on the basis of sex against a student, born female but identified as male.

Specifically, school division prohibited him from accessing (1) sex-specific facilities designated for male students, and (2) sex-specific student cabins for male students during a school-sponsored overnight camp.

Without admitting unlawful conduct, school division entered into a resolution agreement agreeing to create “a safe, nondiscriminatory learning environment for students who are transgender or do not conform to gender stereotypes.”

Office for Civil Rights Complaints

Downey Unified School District (CA) – OCR Resolution Agreement issued October 14, 2014:

The complaint alleged descrimination based on sex.

1) transgender student born male subjected to different treatment and harassment by District employees because of her gender identity and gender nonconformance; and

2) subjected to sexual and gender-based peer harassment and the District failed to provide a prompt and equitable response to the notice of harassment.

OCR investigated the complaint under its Title IX authority.

Prior to the conclusion of the investigation, the District expressed interest in voluntarily resolving the case and entered into a Resolution Agreement.

Downey Investigation

Transgender girl first informed District of her gender identity in kindergarten.

During the years K-5, the student continued to assert a female gender identity but had not made a gender transition to attend school as a girl – continued to use male name, pronouns, etc.

She began coming to school dressed as a girl in the fifth grade.

Complainant asserted that make-up was confiscated, had to write an apology letter for making male students uncomfortable by wearing make-up.

She was also discouraged from discussing her gender identity with her friends.


Complainant asserted that after her non-surgical

gender transition, school pictures reflected the

Student’s male name even though wearing a dress

and used female name on the picture forms.

Frequently verbally harassed by her peers – “fag,

whore, bitch,” etc.

After complaint, elementary administrators

suggested she transfer to another school where no

one knew she was a transgender girl.


Prior to start of middle school, Complainant requested to be called by female name and given option of using female restroom or staff restroom.

Middle school administrator receptive to her requests and she used female restroom and locker room without incident.

However, she continued to experience peer harassment, being called her former male name, and questioned often about her anatomy.

The District denied her request for school-wide assembly on gender-based harassment/bullying.

Downey Unified School District

Resolution Agreement – October 2014

Memorializes the Student’s use of female-designated facilities.

District agrees to otherwise treat the Student as a girl in all respects.

District agrees to amend policies and procedures, train staff, provide age-appropriate instruction to students, survey parents and students about harassment, and ensure appropriate supports for the Student and other transgender students who request it.

State Law Protections for Transgender

Students (not exhaustive)

California (August 2013) – Requires pupils be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with their gender identity, irrespective of the gender listed on their pupil records.

12 states and D.C. all have laws specifically protecting transgender students in public schools from discrimination.

19 states and D.C. have anti-bullying laws or statewide regulations protecting transgender students from bullying.

Transgender Student Athletes

Virginia High School League transgender student-athlete policy (54-6-1) – adopted December 2014

Student must submit various documents to their respective principal or athletic director, including a written statement affirming their own gender identity; one or two letters from friends, parents, or teachers confirming their gender identity; a complete list of all treatments and medications; written verification from a health-care professional; and any other relevant documentation.

Principal reviews the documents, adds the student's current transcript and registration information, and adds his/her determination that the student's gender identity "is bona fide and not for the purpose of gaining an unfair advantage in competitive athletics.“

No medical hormones or surgery required.

Transgender Student Athletes

As of March 2016 - 16 states have inclusive policies

like Virginia – no medical hormones or surgery

required

7 states require use of birth certificate to determine

student-athletes’ gender for participation in sports.

Case law

Doe v. Regional School Unit 26 (Also – Doe v. Clenchy)–Maine Supreme Judicial Court (January 30, 2014)

Suit filed pursuant to Maine Human Rights Act (MHRA) –prohibits discrimination based on sexual orientation in public accommodations, educational opportunities, employment, housing, and other areas.

Transgender female had been allowed to use girl’s restroom pursuant to a 504 plan that addressed her gender identity issues and upcoming transition to fifth grade – “gender dysphoria.” Gender dysphoria – medical term for psychological distress

resulting from having a gender identity different from the sex that one was assigned at birth.

In fifth grade a male student followed her into the restroom on two occasions claiming he was entitled to use it also.

Case law

Doe, continued.

The Court had to consider the relationship between MHRA and a provision of the state Sanitary Facilities law, which requires schools to provide clean toilets that are separated according to sex.

Court found that Sanitary Facilities law does not establish guidelines for the use of school bathrooms, rather it establishes cleanliness and maintenance requirements.

The school division’s decision to ban student from the girl’s bathroom, based not upon a change in student’s status but on others’ complaints, constituted discrimination prohibited by MHRA.

Case law

Doe, continued.

Over the student’s parents’ objections, the school required her to use the single-stall, unisex staff bathroom.

The 504 team met again to discuss transition to middle school and determined student would not use girl’s bathroom in middle school.

Court acknowledged that many of the school officials exhibited tremendous sensitivity and insight over several years, but the school came under intense public scrutiny which caused it to reconsider the steps it had taken and reverse course.

First time a state court declared it unlawful to deny a transgender student access to the bathroom that matches the gender with which she identifies.

Case law

Coy Mathis v. Fountain-Fort Carson School District 8 – June 17, 2013 decision of Colorado Division of Civil Rights

Found sufficient evidence to find that the school district “discriminatorily denied the Charging Party equal terms and conditions of goods, services, benefits, or privileges; equal treatment based on harassment; and the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations in a place of public accommodation due to the Charging Party’s sex and sexual orientation.”

Case law

Mathis, continued.

Charging Party – six year-old transgender girl who had, since 18-months old, non-verbally expressed her female gender identity through her likes and dislikes.

Between ages of 4 and 6 began articulating her belief that she was a girl.

Enrolled in kindergarten as a boy, but wore girl’s clothes, chose female playmates.

Between August 2012 and December 2012 (in first grade) – Charging Party used the girl’s restroom, accompanied by a female classmate without issue.

Case law

Mathis, continued.

Superintendent found out and instructed the Principal to inform the family that the Charging Party could no longer use the girl’s restroom, but could use the boy’s restroom or adult staff single-user restrooms. (changed to gender-neutral after the Mathis family left school). School district had received only one complaint from a former

district parent regarding her use of the girl’s restroom.

The division of civil rights relied on the fact that Charging Party identifies as female and possesses documents identifying her sex as female in finding that school district discriminated against student.

The evidence demonstrated that socially, legally and medically the Charging Party is considered female (without gender reassignment surgery), and therefore she was discriminated against.

Case Law

4th Circuit Court of Appeals – Grimm v. Gloucester School Board

Oral Argument – January 28, 2016 – whether school board policy requiring all students to use single-stall private restrooms or restrooms associated with their “biological genders” is discriminatory.

ACLU representing Grimm – asking for a reversal of US District Court decision in favor of the school board.

Amicus Briefs in favor of student – National Women’s Law Center et al., School Administrators, World Professional Association for Transgender Health, U.S. Department of Justice, Gender Benders, GLSEN, et al.

Amicus Briefs in favor of School District – 4 Attorneys General (South Carolina, Arizona, Mississippi, West Virginia) and 2 Governors (Maine, North Carolina).

Case Law

Grimm v. Gloucester School Board

Student born female, but diagnosed with gender dysphoria; dressed male; changed name, including on driver’s license; requested to be called by male pronouns; psychologist recommended he begin hormone treatment.

Freshman year of high school, notified educators of transgender status, name change, etc. Educators changed his official records; he met with guidance counselor; e-mails to teachers regarding his identity.

Originally used separate nurse’s bathroom; beginning of following year, felt the practice was stigmatizing, so requested to use male restroom; did NOT request to use male locker room.

School allowed him to use male bathroom; community members complained to School Board members, who added meeting agenda item “Discussion of Use of Restroom/Locker Room Facilities.”

Case Law


On 6-1 vote, School Board adopted Resolution:

“Whereas the [Gloucester County Public Schools] recognize that some students question their gender identities . . . Whereas the [Gloucester County Public Schools] seek to provide a safe learning environment for all students and to protect the privacy of all students, therefore . . . It shall be the practice of the [Gloucester County Public Schools] to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.”

Case Law


After adopting resolution, school installed three unisex, single-stall restrooms; raised the doors and walls around the bathroom stalls so that students cannot see into an adjoining stall; and installed partitions between urinals in the boys’ restrooms.

Grimm alleges that using the separate, single-stall restrooms serves as a reminder that the school views him as “different” and that the school community knows they were installed for him.

He also alleges that when he previously used the girls’ restrooms, female students reacted negatively due to his masculine appearance; that continued use of the girls’ restroom would cause him “severe psychological stress” and would be “incompatible with his medically necessary treatment for Gender Dysphoria.”

Case Law


Grimm brought Title IX and Equal Protection Claims

District Court Granted School Board’s Motion to Dismiss Grimm’s Title IX Claim and Denied Motion for Preliminary Injunction

Specifically referenced only other opinion regarding whether Title IX prohibits gender identity discrimination – Johnston v. University of Pittsburgh(W.D. Pa. 2015)(policy separating bathrooms by birth sex did not violate Title IX because sex discrimination does not include discrimination against transgender individuals).

Concluded that an exception in the Title IX regulations (34 C.F.R. § 106.33) controlled: “A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”

Court admonished the federal government for attempting to create a de facto new regulation in the form of an opinion letter issued by OCR, rather than proceeding through rule-making.

Case Law


The District Court denied Grimm’s Motion for Preliminary Injunction, following a significant discussion regarding the privacy rights of other students.

Grimm argued that other students may use the unisex bathrooms if they are uncomfortable with his presence. “It does not occur to [Grimm] that other students may experience feelings of exclusion when they can no longer use the restrooms they were accustomed to using because they feel that [Grimm’s] presence in the male restroom violates their privacy. He would have any number of students use the unisex restrooms rather than use them himself while this Court resolves his novel constitutional challenge.”

To date, the Court has not ruled on the Equal Protection claim.

4th Circuit Decision – April 19, 2016

In a 2-1 Decision, the 4th Circuit reversed the district court’s dismissal of Grimm’s Title IX claim, and vacated its denial of Grimm’s motion for preliminary injunction.

Does Title IX require schools to provide transgender student access to restrooms congruent with their gender identity? The court agreed with OCR’s interpretation that a school generally must treat transgender students consistent with their gender identity as it is “not plainly erroneous or inconsistent with the text of the regulation.”

District court erroneously looked only to third factor –balance of hardships- in determining a preliminary injunction was not warranted and misstated evidentiary standard governing preliminary injunction hearings. “abused its discretion when it denied Grimm’s request for a

preliminary injunction.”

Gloucester School Board Request for

en banc hearing – May 3, 2015

The School Board filed a petition requesting an en banc hearing on May 3, 2016.

“This decision will have far-reaching consequences for schools throughout the country without having addressed whether the restroom and locker room policy violates Title IX.” The board’s attorneys argue that the 4th Circuit’s decision leaves too much uncertainty as to how Title IX should apply to “separate living facilities, locker rooms, shower facilities, athletics and employment.”

4th Circuit stays panel’s decision pending the petition for rehearing.

Case Law

Doe v. Fairfax County Public Schools – Fairfax County Circuit Court

Suit challenging Fairfax County Public Schools’ policy providing protections for gay and transgender students dismissed on February 19, 2016 for lack of standing.

The lawsuit alleged that the school board overstepped its authority when it changed its policies to ban discrimination against gay and transgender students and staff because state law does not include such protections.

The lawsuit further alleged that the policy will cause student confusion, raise privacy and safety issues, and affect both student-to-student and student-teacher relations.

2016 Virginia General Assembly

HB 663 - Use of restroom facilities; penalty. Requires the Director of the Department of General Services and local school boards to develop and implement policies that require, respectively, that every restroom designated for public use in any public building on property that is owned, leased, or controlled by the Commonwealth and every public school restroom, locker room, and shower room that is designated for use by a specific gender to solely be used by individuals whose anatomical sex matches such gender designation. Such policies may also provide that a student may, upon request, be granted access, to the extent reasonable, to a single stall restroom or shower, a unisex bathroom, or controlled individual use of a restroom, locker room, or shower. The bill defines "anatomical sex" and provides a civil penalty for a willful and knowing violation.

Did not pass the House of Delegates.

2016 South Dakota Legislature

South Dakota was poised to enact first statewide

restriction on transgender students – requiring

transgender students to use separate restrooms and

locker rooms.

Governor vetoed on March 2, 2016.

North Carolina Legislation

The General Assembly of North Carolina passed a bill that establishes a statewide nondiscrimination ordinance that explicitly supersedes any local nondiscrimination measures (at least 6 LGBT ordinances were nullified).

The statewide protections cover race, religion, color, national origin and biological sex — but not sexual orientation or gender identity.

It also requires all government-controlled facilities — including schools and universities — to assign all multiple-occupancy bathrooms and locker rooms to a single sex and prevent anyone who doesn't match that biological sex from using the facility.

DOJ – May 4th, 2016 - North Carolina LGBT law violates civil rights

A letter from the Justice Department to North Carolina Gov. Pat McCrory, said the law violates Title IX of the Civil Rights Act.

Could lead to North Carolina losing hundreds of millions of dollars in federal school funding.

May 9th Deadline

United States Senate

Proposed U.S. Senate Amendment 2093 (to the

Every Student Succeeds Act) to end discrimination

based on actual or perceived sexual orientation or

gender identity in public schools; not agreed to

(7/14/2015).

Palatine, Illinois District OCR Complaint

In November 2015 U.S. DOE (through the Office for Civil Rights) gave 30 days to School District to reach a resolution with a transgender student or face enforcement which could include administrative law proceedings or a Justice Department court action.

Student (biological male) played on a girls’ sports team, called “she” and referred to by female name.

The district required student to use separate, private changing and showering facilities – OCR determined that the directive violated student’s rights under Title IX.

The letter to the district stated that the student should be given access to girls’ facilities, including showers.

Resolution agreement provided that the student could have access to girls’ locker rooms, “based on Student A’s representation that she will change in private changing stations in the girls’ locker rooms.”

Hypothetical

How would you handle the following: a school club

is going on an overnight excursion underwritten by

the parents, where they plan to bunk four students

per hotel room. What accommodations if any would

your school districts make for a transgender student

in terms of sleeping arrangements?

Transgender Student Records

Arises often with transgender alumni seeking employment or applying to other educational institutions after graduation.

The Family Educational Rights and Privacy Act (FERPA) allows parents or eligible students to review education records and request that the school change records that are inaccurate, misleading or in violation of the student’s privacy.

1991 Family Policy Compliance Office opinion letter concluded that FERPA does not apply to a transgender former student requesting a name and gender change in his or her education records.

Rationale is that the change is substantive decision of the school division.

This rationale may be changing based on privacy standard.

Changing the records avoids the possibility of a discrimination claim and maintains the student’s privacy. By not changing the records, school is essentially disclosing that student’s transgender status to anyone who sees their records.

Transgender Student Records

Declining to update records is simple, consistent approach, less administrative burden.

However, not changing the records may cause the person viewing them to question the applicant’s honesty, forcing the individual to disclose their status.

If a district would amend or change a record for a change in name based on marital status, then it should process a name change based on gender status in the same manner.

It is not unlawful to require a court order or amendment of state/federally issued identification prior to changing records.

Trending

Non-binary students – neither male nor female, sometimes known as “genderqueer”.

Genderqueer was one of 56 gender identity options added to Facebook in February 2014.

February 2016 – Longwood University -- Dukes is bigender and transmasculine, a senior English major who accepts the personal pronoun “she” — but now also is a member of an all-male fraternity at Longwood University.

Argument: the legal construct of how gender is tracked and recorded is Binary (male/female), therefore there is no legal authority for the accommodation requested.

http://en.wikipedia.org/wiki/Facebook

Bullying + Sexual Harassment

Doe v. Board of Educ. Of Prince George’s Cnty., No. 1302537 (4th Cir. Apr. 7, 2015).

Ruled that plaintiffs claiming peer sexual harassment under Title IX must show that school division was deliberately indifferent in order to hold division liable for money damages and not just negligent. (Davis v. Monroe standard)

Court concluded that liability for the same sex peer on peer harassment could not be imputed to the school board, even though it did not adhere to its own sexual harassment policies – the school board must be clearly unreasonable in response to alleged harassment.

School division had allowed student to avoid being in the same bathroom with alleged harasser, contacted harasser’s parents, imposed suspension.

Bullying + Sexual Orientation

Maine Human Rights Commission – July 2014

Found reasonable grounds to determine that the Brunswick School Department discriminated against a former junior high school student bullied by other students for more than two years because of his perceived sexual orientation.

The school division “allowed a hostile education environment to persist for a lengthy period of time”

Superintendent insisted that administrators took the complaints seriously and acted quickly, creating response plans.

1. Federal Statutory Law

2. Dear Colleague Letters

3. Virginia Law

4. Court decisions

Roadmap – Bullying Based on

Disability

The Federal Department of Education Office of Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) are the enforcement mechanisms for these federal statutory laws.

Complaints may be filed by ANYONE (does not need to be the alleged victim) who believes that an educational institution which receives federal financial assistance has discriminated against someone on the basis of a disability.

Department of education

Title II of the Americans with Disabilities Act (ADA)

• 42 U.S.C. § 12132

• Prohibits discrimination and harassment based on disability in

public entities.

Section 504 of the Rehabilitation Act of 1973

• 29 U.S.C. § 794(a)

• Prohibits discrimination and harassment based on disability in

programs that receive federal financial assistance.

Ocr authority – federal statutory law

Individuals with Disabilities Education Act (IDEA),

42 U.S.C. § 12132

• Ensures services to children with disabilities.

Schools also have a responsibility to ensure that a Free

Appropriate Public Education (FAPE) is available to all eligible

students with disabilities under Section 504, Title II, and the

Individuals with Disabilities Act.

OSERS authority – federal statutory law

Once the complaint is filed OCR and OSERS decide whether or

not to investigate based upon:

(1) Whether or not the issue is already being investigated by

another agency’s formal grievance procedure;

(2) Whether the complaint was made within 180 days from the

last date of alleged discrimination.

Complaint process

DEAR COLLEAGUE

LETTERS

Evolution of disability harassment from the federal department of

education

“Disability harassment can have a profound impact

on students, raise safety concerns, and erode efforts

to ensure that students with disabilities have equal

access to the myriad benefits that an education

offers”

Section 504 and Title II are enforced through OCR

IDEA is enforced through OSERS

July 25, 2000 – joint letter from ocr and osers

Harassment can also violate state and local civil

rights, child abuse, and criminal laws. In some

situations, schools have an obligation to coordinate

with other agencies or police to stop such disability

harassment.

July 25, 2000 – Joint letter from ocr and osers

“Disability harassment under Section 504 and Title II is intimidation or abusive behavior toward a student based on disability that creates a hostile environmentby interfering with or denying a student’s participation in or receipt of benefits, services, or opportunities in the institution’s program.”

Letter lists multiple examples of “hostile environment.”

July 25, 2000 – joint letter from ocr and osers

“Disability harassment that adversely affects an elementary or secondary student’s education may also be a denial of FAPE.”

1) If a school learns that disability harassment may have occurred, “the institution must investigate the incident(s) promptly and respond appropriately…and prevent it from recurring, and where appropriate, remedy the effects on the student who was harassed.”

2) Develop and disseminate an official policy statement prohibiting discrimination based on disability.

3) Establish grievance procedures that can be used to address disability harassment:

• Notifies students that disability harassment is unacceptable, violates federal law, and will result in disciplinary action.

What does the school have to do?

This letter echoes the 2000 letter, and covers harassment and bullying.

“I am writing to remind you, however, that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights…By limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment.”

October 26, 2010 – OCR Letter

“Section 504 and Title II prohibit discrimination on the basis of disability. School districts may violate these civil rights statutes…when peer harassment based on…disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.”

“Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school. When such harassment is based on…disability, it violates the civil rights laws [Section 504 and Title II] that OCR enforces.”

October 26, 2010 – OCR LEtter

“Schools are responsible for addressing any harassment about which it knows or reasonably should have known….A school has notice of harassment if a responsible employee knew, or in the exercise of reasonable care should have known, about the harassment.”

Schools must adopt well publicized policies prohibiting harassment and procedures for reporting and resolving complaints that will alert the school to incidents of harassment.

In response to any complaint of harassment, a school must take immediate and appropriate action to investigate or otherwise determine what occurred…The inquiry should be prompt, thorough, and impartial.

School’s responsibility

School should:

1) Take prompt and effective steps reasonably calculated to end the harassment

2) Eliminate any hostile environment and its effects

3) Prevent the harassment from recurring

4) Separate the accused harasser and the target

5) Counsel the target and/or the harasser (this step alone “often is insufficient”)

6) Take disciplinary action against the harasser

7) Provide training or other interventions for the larger school community

8) Prevent retaliation

9) Make sure the harassed student and her/his family knows how to report any subsequent problems

10) Conduct follow-up inquiries

11) Continue to respond promptly and appropriately to any new problems

If the school finds harassment occurred

ANY ACTION SHOULD NOT PENALIZE THE

STUDENT WHO WAS HARASSED

- Don’t make the harassed switch classrooms!

Compare, Va. Code 22.1-33, Transfer of Students

Under Certain Circumstances

• If a crime is committed against a student, the student

may request to be switched to any comparable

classroom within the district.

“Several classmates repeatedly called a student with a learning disability “stupid,” “idiot,” and “retard” while in school and on the school bus. On one occasion, these students tackled him, hit him with a school binder, and threw his personal items into the garbage. The student complained to his teachers and guidance counselor that he was continually being taunted and teased. School officials offered him counseling services and a psychiatric evaluation, but did not discipline the offending students. As a result, the harassment continued. The student, who had been performing well academically, became angry, frustrated, and depressed, and often refused to go to school to avoid the harassment.”

Example of disability harassment from ocr

“In this example, the school failed to recognize the misconduct as

disability harassment under Section 504 and Title II. The harassing

conduct included behavior based on the student’s disability, and

limited the student’s ability to benefit fully from the school’s

education program (e.g., absenteeism). In failing to investigate

and remedy the misconduct, the school did not comply with its

obligations under Section 504 and Title II.”

Ocr’s evaluation

“Counseling may be a helpful component of a remedy for harassment. In this example, however, since the school failed to recognize the behavior as disability harassment, the school did not adopt a comprehensive approach to eliminating the hostile environment. Such steps should have at least included disciplinary action against the harassers, consultation with the district’s Section 504/Title II coordinator to ensure a comprehensive and effective response, special training for staff on recognizing and effectively responding to harassment of students with disabilities, and monitoring to ensure that the harassment did not resume.”

OCR’s Recommended response

Enforces the IDEA

IDEA prohibits the denial of FAPE

The purpose of the letter is to “provide an overview of a school district’s responsibilities under the Individuals with Disabilities Education Act (IDEA) to address bullying of students with disabilities…This letter is intended to supplement the July 25, 2000, joint Dear Colleague Letter from OSERS and…OCR.”

August 20, 2013 –osers letter

“Whether or not the bullying is related to the student’s

disability, any bullying of a student with a disability that

results in the student not receiving meaningful education

benefit constitutes a denial of FAPE under the IDEA that

must be remedied.”

August 20, 2013 – osers letter

What is Bullying?

“Bullying is characterized by aggression used within a relationship where the aggressor(s) has more real or perceived power than the target, and the aggression is repeated, or has the potential to be repeated, over time.”

“Cyberbullying…can include offensive text messages or e-mails, rumors or embarrassing photos posted on social networking sites, or fake online profiles.”


OSERS cites the Journal of School Psychology and

Journal of Developmental Behavioral Pediatrics to find

that “students with disabilities are disproportionately

affected by bullying. For example, students with

learning disabilities, attention deficit or hyperactivity

disorder, and autism are more likely to be bullied than

their peers.”

August 20, 2013 –osers letter

School’s Responsibility:

“Schools have an obligation to ensure that a

student with a disability who is the target of

bullying behavior continues to receive FAPE in

accordance with his or her IEP.”


School’s Response to Bullying:

1) Convene the IEP team to determine if there have been any changes in the student’s needs as a result of the bullying.

2) Parents have the right to request an IEP meeting at any time.

3) “Keep the student [the victim] in the original placement unless the student no longer receives FAPE in the current LRE [Least Restrictive Environment] placement.”

4) “May not attempt to resolve the bullying situation by unilaterally changing the frequency, duration, intensity, placement, or location of the student’s special education and related services. These decisions must be made by the IEP Team.”

August 20, 2013– osers letter

Recommendations for Schools:

Use a Comprehensive Multitiered Behavioral Framework

• Engages the whole school community

1) Teach Appropriate Behaviors and How to Respond

2) Provide Active Adult Supervision

3) Train and Provide Ongoing Support for Staff and Students

4) Develop and Implement Clear Policies to Address Bullying

5) Monitor and Track Bullying Behaviors

6) Notify Parents when Bullying Occurs

7) Address Ongoing Concerns

8) Sustain Bullying Prevention Efforts Over Time


Last issued Letter

“Today’s guidance explains that the bullying of a student with a disability on any basis can similarly result in a denial of FAPE under Section 504 that must be remedied; it also reiterates schools’ obligations to address conduct that may constitute a disability-based harassment violation and explains that a school must also remedy the denial of FAPE resulting from disability-based harassment.”

Section 504 requires any school receiving federal funds to provide students with disabilities equal educational opportunities (FAPE).

“OCR, however, enforces the Section 504 and Title II rights of IDEA-eligible students.”

October 21, 2014 – ocr letter

Level of Knowledge:

“school officials know or should know about the bullying”

• This is the standard when a plaintiff is seeking injunctive relief.

• The standard when a plaintiff is seeking damages is higher = “actual knowledge and deliberate indifference” (Long v. Murray Cnty. Sch. Dist., (11th Cir. 2013)(applying the test from Davis v. Monroe Cnty. Bd. of Ed. (1999)).


Action Taken:

“Immediate and appropriate action to investigate or

otherwise determine what occurred.”

“Investigation should include determining whether that

student’s receipt of appropriate services my have been

affected by the bullying.”


School Responsibilities

“When a school knows or should know of

bullying conduct based on a student’s disability,

it must take immediate and appropriate action

to investigate or otherwise determine what

occurred.”

OCTOBER 21, 2014 – OCR letter

1. “Ongoing obligation to ensure that a qualified

student with a disability who receives IDEA FAPE

services or Section 504 FAPE services and who is

the target of bullying continues to receive FAPE -

an obligation that exists regardless of why the

student is being bullied.”


2. “Convene the IEP team or Section 504 team to

determine whether, as a result of the effects of

the bullying, the student’s needs have changed

such that the student is no longer receiving FAPE.”

August 21, 2014 – ocr letter

3 part test:

1. The student’s educational needs have changed;

2. The bullying impacted the student’s receipt of IDEA FAPE services or Section 504 FAPE services;

Examples include:

sudden decline in grades,

onset of emotional outbursts,

increase in the frequency or intensity of behavioral interruptions,

an increase in missed classes or sessions of Section 504 services.

3. Additional or different services, if any, are needed.

THEN, the school should “ensure any needed changes are made promptly.”


3. “Success must continue to ensure that Section

504 FAPE services are provided in an educational

setting with persons who do not have disabilities”

= DO NOT REMOVE THE VICTIM FROM THE

CLASSROOM WITH THE PERPETRATOR.


What would cause OCR to find a violation of disability-based harassment?

If any of the following exists:

1. The student was bullied based on a disability

2. The bullying was sufficiently serious to create a hostile environment

3. The school (through its officials) knew or should have known about the bullying

4. The school failed to respond appropriately (it did not take prompt or effective steps to end the conduct, eliminate the hostile environment, prevent it from reoccurring, and remedy its effects when necessary)


What would cause OCR to find a violation of

Denial of FAPE?

1. IF the student is receiving IDEA FAPE or Section 504 FAPE

services, and any of the above factors exist, then OCR

has a basis and may investigate whether there was also

a denial of FAPE under Section 504.


2. The school knew or should have known that the effects of

bullying may have affected the student’s receipt of IDEA

FAPE services or Section 504 FAPE services

• Adverse changes in academic performance

• Change in behavior

IF “yes,” then OCR asks…


3. “Did the school meet its ongoing obligation to ensure

FAPE by promptly determining whether the student’s

educational needs were still being met, and if not,

making changes, as necessary, to his or her IEP or Section

504 plan?”

“NO” = VIOLATION OF DENIAL OF FAPE


At the start of the school year, a ten year-old

student with ADHD and a speech disability is fully

participating in the classroom, interacting with his

peers at lunch and recess, and regularly attending

speech therapy twice a week.

Example from ocr of a violation of

both disability based harassment and

denial of fape

Three months into the school year, students in his P.E. class begin to repeatedly taunt him by speaking in an exaggerated, high-pitched tone, calling him names such as “weirdo” and “gay,” and setting him up for social embarrassment by directing him to ask other students inappropriate personal questions. The P.E. teacher witnesses the taunting, but neither reports the conduct to the appropriate school official, nor applies the student’s behavior supports specified in his 504 plan. Instead, she pulls the student aside and tells him that he needs to start focusing less on what kids have to say and more on getting his head in the game. As the taunting intensifies, the student begins to withdraw from interacting with other kids in P.E. and avoids other students at lunch and recess. As the student continues to withdraw over the course of a few weeks, he misses multiple sessions of speech therapy, but the speech therapist does not report his absences to the Section 504 team or another appropriate school official.

Example from ocr of a violation of both disability

based harassment and denial of fape

In this example, OCR would find a disability-based

harassment violation. The student’s peers were making fun

of him because of behaviors related to his disability. The

taunting was therefore based on his disability. The school

knew about the bullying because the P.E. teacher witnessed

the conduct. Yet the P.E. teacher not only failed to provide

the student behavior supports as required in the student’s

504 plan, but also failed to report the conduct to an

appropriate school official. The school’s failure to

appropriately respond to the bullying violated Section 504.



OCR would also find FAPE violations under Section 504. First, when the P.E. teacher failed to

implement the behavior supports in the student’s Section 504 plan, the school denied the student

FAPE under Section 504. In addition, and independent of the failure to provide behavior

supports, because the bullying impacted the student’s receipt of Section 504 FAPE, the school

should have addressed the student’s changed needs; by failing to do so, the student was denied

Section 504 FAPE. The school should have known about the missed Section 504 services and

related changes in behavior.

The P.E. teacher knew about the bullying but did nothing to report the student’s behavioral

changes (e.g., the student’s increasing efforts to isolate himself from other students) to the Section

504 team members or other appropriate school official.

Similarly, the speech therapist knew that the student was missing speech therapy but did not

report this to the 504 team or to an appropriate school official. By failing to address the

adverse effects of the bullying on FAPE, the school did not make necessary changes to ensure

the student was provided FAPE under Section 504.



If, OCR and the district were to enter into a resolution agreement, OCR could

require that the district:

(1) ensure that FAPE is provided to the student by convening the Section 504 team to determine if the

student needs different or additional services (including compensatory services) and, if so, providing

them;

(2) offer counseling to the student to remedy the harm that the school allowed to persist;

(3) monitor whether bullying persists for the student and take corrective action to ensure the bullying

ceases;

(4) develop and implement a school-wide bullying prevention strategy based on positive behavior

supports;

(5) devise a voluntary school climate survey for students and parents to assess the presence and effect

of bullying based on disability and to respond to issues that arise in the survey;

(6) revise the district’s anti-bullying policies to improve the district’s response to bullying;

(7) train staff and parent volunteers; and

(8) provide continuing education to students on the district’s anti-bullying policies.



A thirteen-year-old student with depression and Post-Traumatic Stress Disorder (PTSD) who receives counseling as part of her Section 504 services is often mocked by her peers for being poor and living in a homeless shelter. Having maintained an A average for the first half of the academic year, she is now getting B’s and C’s, neglecting to turn in her assignments, and regularly missing counseling sessions. When asked by her counselor why she is no longer attending scheduled sessions, she says that she feels that nothing is helping and that no one cares about her. The student tells the counselor that she no longer wants to attend counseling services and misses her next two scheduled sessions. The counselor informs the principal that the student has missed several counseling sessions and that the student feels the sessions are not helping. Around the same time, the student’s teachers inform the principal that she has begun to struggle academically.

The principal asks the teachers and counselor to keep her apprised if the student’s academic performance worsens, but does not schedule a Section 504 meeting.

Example of ocr finding a fape violation, but not a

disability-harassment violation

In this example, whether or not the school knew or should have

known about the bullying, OCR would not find a disability-based

harassment violation under Section 504 because the bullying

incidents were based on the student’s socio-economic status, not

her disability.

Example of ocr finding a fape violation, but not

a disability-harassment violation

Independent of the basis for the bullying and regardless of whether school officials knew or should have known about the bullying, the school district still had an ongoing obligation under Section 504 to ensure that this student with a disability was receiving an education appropriate to her needs. Here, the student’s sudden decline in grades, coupled with changes in her behavior (missing counseling sessions), should have indicated to the school that her needs were not being met. In this example, OCR would find that these adverse changes were sufficient to put the school on notice of its obligation to promptly convene the Section 504 team to determine the extent of the FAPE-related problems and to make any necessary changes to her services, or, if necessary, reevaluate her, in order to ensure that she continues to receive FAPE.

Example of ocr finding a fape violation, but not a

disability-harassment violation

A seven-year-old student with a food allergy to peanuts has a Section 504 plan that provides for meal accommodations, the administration of epinephrine if the student is exposed to peanuts, access to a peanut-free table in the cafeteria, and the prohibition of peanut products in the student’s classroom. In advance of the upcoming Halloween party, the teacher reminds the class that candy with peanuts is prohibited in the classroom at all times, including Halloween. That afternoon, while on the bus, a classmate grabs the student’s water bottle out of the student’s backpack, drinks from it, and says, “I had a peanut butter sandwich for lunch today, and I just finished it.” The following day, while having lunch at the peanut-free table in the lunchroom with some friends, a classmate who had been sitting at another table sneaks up behind her and waves an open candy bar with peanuts in front of her face, yelling, “Time to eat peanuts!” Though the candy bar does not touch her, a few other classmates nearby begin chanting, “Time to eat peanuts,” and the student leaves the lunchroom crying. When the student goes back to her classroom and tells her teacher what happened at lunch and on the bus, the teacher asks her whether she came into contact with the candy bar and what happened to the water bottle. The student confirms that the candy bar did not touch her and that she never got the water bottle back from the classmate who took it, but says that she is scared to go back into the lunchroom and to ride the bus.

Ocr example of Neither violation

The teacher promptly informs the principal of the incidents, and the peers who taunted the student on the bus and in the lunchroom are removed from the lunchroom, interviewed by the assistant principal, and required to meet with the counselor during recess to discuss the seriousness of their conduct.

That same week, the school holds a Section 504 meeting to address whether any changes were needed to the student’s services in light of the bullying. The principal also meets with the school counselor, and they decide that a segment on the bullying of students with disabilities, including students with food allergies, would be added to the counselor’s presentation to students on the school’s anti-bullying policy scheduled in the next two weeks. Furthermore, in light of the young age of the students, the counselor offers to incorporate a puppet show into the segment to help illustrate principles that might otherwise be too abstract for such a young audience. In the weeks that follow, the student shows no adverse changes in academic performance or behavior, and when asked by her teacher and the school counselor about how she is doing, she indicates that the bullying has stopped.

Ocr example of neither violation

In this example, based on the school’s appropriate response to the incidents of bullying, OCR would not find a disability-based harassment violation under Section 504. The bullying of the student on account of her food allergy to peanuts was based on the student’s disability. Moreover, the physically threatening and humiliating conduct directed at her was sufficiently serious to create a hostile environment by limiting her ability to participate in and benefit from the school’s education program when she was near the classmates who bullied her in the lunchroom and on the bus. School personnel, however, did not tolerate the conduct and acted quickly to investigate the incidents, address the behavior of the classmates involved in the conduct, ensure that there were no residual effects on the student, and coordinate to promote greater awareness among students about the school’s anti-bullying policy. By taking prompt and reasonable steps to address the hostile environment, eliminate its effects, and prevent it from recurring, the school met its obligations under Section 504.


OCR also would not find a FAPE violation under Section 504 on these facts. Once the school became aware that the student feared attending lunch and riding the bus as a result of the bullying she was experiencing, the school was on notice that the effects of the bullying may have affected her receipt of FAPE. This was sufficient to trigger the school’s additional obligation to determine whether, and to what extent, the bullying affected the student’s access to FAPE and take any actions, including addressing the bullying and providing new or different services, required to ensure the student continued receiving FAPE. By promptly holding a Section 504 meeting to assess whether the school should consider any changes to the student’s services in light of the bullying, the school met its independent legal obligation to provide FAPE under Section 504.


“Where does the [department] get the authority even to issue a guidance or even a rule or regulation on bullying?...It’s not up to the office of civil rights to make a law when the federal law doesn’t say anything about bullying and the United States Congress is still debating it.”

Response to dear colleague letters

Senator Lamar Alexander (R-TN),

Chairman of the Health, Education, Labor,

and Pensions Committee, former Education

Secretary under President H. Bush:

Amy McIntosh, Principal Deputy Assistant Secretary in the Office of Planning, Evaluation and Policy Development, says, Dear Colleague Letters are “guidance that the department issues and do[es] not carry the force of law.”

Dear colleague letters = law?

• Also, “guidance” does not

carry the weight of a

regulation

Department of Education has NOT classified the bullying guidance as “significant” so there is not a requirement for public Notice and Comment which is required under the Administrative Procedures Act (APA).

However, the 2014 DCL opened by saying “OCR…has received an ever-increasing number of complaints concerning the bullying of students with disabilities and the effects of that bullying on their education….This troubling trend highlights the importance of OCR’s continuing efforts to protect the rights of students….through vigorous enforcement of Section 504…and Title II…in this critical area of disability discrimination.”


“It [bullying] is a serious problem, but the United States Senate doesn’t agree that the federal government ought to be telling the local school what its bullying policy ought to be, so how does the Department of Education get the right to make a guidance?…” - Senator Alexander

Senator believes that the Department of Education is creating a National School Board.


Virginia statutory law

Virginia Code 22.1-276.01

A. For the purposes of this article, unless the context requires a different meaning:

"Bullying" means any aggressive and unwanted behavior that is intended to harm, intimidate, or humiliate the victim; involves a real or perceived power imbalance between the aggressor or aggressors and victim; and is repeated over time or causes severe emotional trauma. "Bullying" includes cyber bullying. "Bullying" does not include ordinary teasing, horseplay, argument, or peer conflict.

Definition was added by the General Assembly in 2013

Bullying

“State law requires local school boards to

establish character education programs that

include addressing the inappropriateness of

bullying…Bullying may also occur through the use

of electronic means and is referred to as cyber

bullying…”

Responsibility of School Boards

Virginia Code § 22.1-208.01, Character education

required

“Each school board shall establish…a character

education program in its schools…the basic

character traits taught may

include…respect…tolerance, and courtesy…The

program shall also address the inappropriateness of

bullying, as defined in §22.1-276.01.”

Character Education

A report by HealthDay News found that amoung states

who have adopted at least one component of the U.S.

Department of Education's guidelines on bullying:

(1) Teens were 24% less likely to be bullied;

(2) Teens were 20% less likely to be cyberbullied.

Effect of state bullying laws

2 main types of claims:

1. Peer-on-peer harassment based upon the student’s disability.

2. Intentional discrimination based upon the student’s disability.

The great majority of court decisions from across the country are not consistent with OCR’s guidance given in the Dear Colleague Letters. Almost all of them rule in favor of the school districts at the dismissal stage of a lawsuit.

What the courts say

Dorsey v. pueblo school district, 2015 U.S. Dist. LEXIS

144845

U.S. District Court of Colorado

October 26, 2015

• Student with hypoglycemia, asthma, and a progressive muscular/skeletal weakness

sued the school for a violation of Section 504 and Title II

• Had a Section 504 Plan

• While in gym class, she participated in a human pyramid, became dizzy, fell, and was

injured

• Alleges that she was verbally and physically harassed over several months by her

peers (including taking her snacks that she used to help control her hypoglycemia)

• Plaintiff withdrew from school a few days after she was physically beaten-up by other

students, was diagnosed with depression, and was treated for PTSD

• Plaintiff now attends a different school

Dorsey v. Pueblo School District

Court DISMISSED the Title II and Section 504 Claims (with leave

to amend) because of a lack of connection between the bullying

and the plaintiff’s disability.

A plaintiff is required to show:

1. Intentional discrimination, and

2. A causal connection between the disability and the

intentional discrimination.


“Plaintiff’s Complaint fails to allege, or give rise to

any inference, that her bullying allegations are

linked, even in part, to her claimed disabilities. Any

claims under the ADA and Section 504 must fail

without this necessary factual basis.”


Court found that the instances of taking the

plaintiff’s snacks and being part of a human

pyramid did not constitute intentional

discrimination.


Intentional Discrimination “can be inferred from a defendant’s

deliberate indifference to the strong likelihood that pursuit of its

questioned policies will likely result in a violation of federally

protected rights” (quoting Alexander v. Choate).

“The test for deliberate indifference in the context of intentional

discrimination comprises two prongs:

(1) knowledge that a harm to a federally protected right is

substantially likely, and

(2) a failure to act upon that…likelihood” (quoting Barber v. Colo.

Dep’t of Revenue).


“It does not follow that they [the school] knew

it was ‘substantially likely’ that Plaintiff’s

federally protected rights as a disabled

student would be violated if she participated

in a risky physical activity, or her snacks were

delayed for three hours on a single occasion.”


Court dismissed (without leave to amend) the Section 1983

claim that the school violated the student’s due process:

“Liability under Section 1983 cannot be predicated on a theory of

respondeat superior…The Monell Court ‘expressly held that municipal

defendants – public school districts and school boards included – can’t be

held liable under 42 U.S.C. Section 1983 solely because they employ a

person who violated the plaintiff’s constitutional rights.” (quoting Lawrence

v. Sch. Dist. No. 1 and Monell v. Department of Social Services)


“Instead, it must be shown that the employee’s unconstitutional

actions were representative of the municipality's ‘official

policy or custom…or were carried out by an official with final

policy making authority with respect to the challenged

action’…The policy at issue must be the ‘moving force behind

the constitutional violation,’ and must exhibit the municipality’s

‘deliberate indifference’ to the constitutional rights of those

affected.’” (quoting Seamons v. Snow, Lankford v. City of Hobart, and City of Canton v.

Harris)


Test is that the policy or custom must shock the conscience to be due

process violation under Section 1983.

Regarding the delayed snacks and human pyramid, the Court held

“these events do not shock the conscience, even assuming the state

actors acted intentionally…The circumstances are not conscience-

shocking so as to rise to the level of a constitutional violation.

Rather, these and Plaintiff’s other allegations more properly sound

in common law tort rather than substantive due process.”

Spring v. Allegany-Limestone Central School District,

2015 U.S. Dist. LEXIS 134845

District Court for Western District of New York

September 30, 2015

Plaintiffs sued the school for a violation of

Section 1983, 504, and Title II

Spring v. Allegany-Limestone

Central School District

Plaintiff was a special education student who had Tourette’s

Syndrome, ADHD, and Callosum Dysgenesis

Alleged that he was subjected to bullying throughout middle and

high school

In April 2012, Plaintiff was disciplined and removed from the

school’s baseball team because of “horseplay”

On November 8, 2012, Plaintiff physically responded to a fellow

student alleging unrelenting harassment and bullying

Plaintiff alleges that this response was a manifestation of his

disability

Plaintiff was suspended for this action and criminally prosecuted

Plaintiff committed suicide on June 17, 2013

Spring v. Allegany-Limestone Central School

District

Section 1983 Claim:

Claim was dismissed because such a claim is not valid against a

school district or school board (same holding as Colorado District

Court) and this situation did not meet either of the 2 exceptions to this

rule for liability of an individual .

“Absent an underlying constitutional violation by an individual

Defendant, a Monell claim against the municipal defendants, the School

District and School Board, cannot lie.”



Section 1983 Claim:

Plaintiffs alleged a violation of 14th Amendment due process rights.

Supreme Court Rule is “nothing in the language of the Due Process Clause itself requires

the State to protect the life, liberty, and property of its citizens against invasion by private

actors.” (DeShaney)

2 exceptions to this rule: (if either exists, then a district can be held liable)

1. The state or its agents may owe a constitutional obligation to the victim of private

violence if the state had a “special relationship” with the victim.

2. The state may owe such an obligation if its agents “in some way had assisted in

creating or increasing the danger to the victim”

Spring v. Allegany-Limestone Central School

District

Section 1983 Claim:

1. Court said that for cases involving peer-to-peer bullying, the first

exception “does not apply in the public school context, even if school

attendance is compulsory” = there is not a special relationship.

2. For the second exception, “passive conduct, such as the failure to

punish, does not fall within this exception” and the actions must be

alleged to have been done by a specific individual = not state created

danger .



Title II and Section 504 Claim:

Both claims were dismissed by the Court for an inability to find that the Plaintiff

had a qualifying disability.

“To state a prima facie cause of action under the relevant provisions of the ADA

or Rehabilitation ACT, a plaintiff must show:

(1) That [he] is a qualified individual with a disability;

(2) That the defendants are subject to [the pertinent statute]; and

(3) That [he] was denied the opportunity to participate in or benefit from

defendants’ services, programs, or activities, or was otherwise discriminated

against by defendants, by reason of [his] disability.”

(quoting Preston v. Hilton Cent. School Dist. and Harris v. Mills)




The statute defines disability as:

(A) A physical or mental impairment that substantially limits one or more major life

activities of such individual;

(B) A record of such an impairment; OR

(C) Being regarded as having such an impairment…

Major life activities include: caring for oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,

learning, reading, concentrating, thinking, communicating, and working.




“Plaintiff’s argument that ‘it is not unreasonable to infer that

such disabilities interfered with major life activities’ is without

merit.”

“Further, the fact that a plaintiff receives special education

services does not necessarily mean that the plaintiff qualifies

as an individual with a disability under the ADA or

Rehabilitation Act.”

Nevills v. Mart independent school district

608 Fed. Appx. 217

5th Circuit Court of Appeals

April 21, 2015

Parents sued the school district for a

violation of the ADA and the

Rehabilitation Act.

The 5th Circuit affirmed the District Court’s granting of the school district’s motion for

summary judgment .

“It is disputed whether A.N. suffers from a form of Tourette Syndrome.”

Most of the complaints involved name-calling: “retard, chickenhead, twitch, tic-toc,

and spaz.”

Section 504 Claim of peer-on-peer disability harassment: All 5 elements must be proven for a claim:

(1) Plaintiff was an individual with a disability;

(2) Plaintiff was harmed based on his disability;

(3) The harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment;

(4) Defendant knew about the harassment; and

(5) Defendant was deliberately indifferent to the harassment.

This 5-part test comes from the U.S. Supreme Court’s Davis v. Monroe County Bd. Of Educ. discussing sexual harassment.

Nevills v. Mart independent school

district

5th Circuit found that there was no dispute of material fact because the evidence proved that the school board was not deliberately indifferent to the harassment of the plaintiff.

“The deliberate indifference standard does not require schools to ‘purge’ themselves of harassment and the standard grants a high level of deference to a school’s judgment.”

“‘The deliberate-indifference inquiry does not transform every school disciplinary decision into a jury question.’” (quoting Estate of Lance v.

Lewisville ISD (5th Circuit))


district

Court looked to:

(1) school notes of investigations into multiple incidents

(2) decisions to discipline some students and not others

(3) training from nationally-recognized programs to counter

bullying to students and teachers

as evidence that the school was NOT deliberately indifferent

to such harassment.


district

Prior 5th Circuit decision from 2014, Estate of Land v. Lewisville Independent School District, similarly found that a school was not deliberately indifferent because of evidence showing:

(1) District’s investigation of altercations;

(2) Punishment of student offenders;

(3) Efforts to promote positive relationships between the students;

(4) Adoption of anti-bullying policies; and

(5) Provision of training to personnel on bullying.


district

Intentional Discrimination Claim:

Plaintiff must prove all three elements:

(1) Plaintiff has a qualifying disability;

(2) Plaintiff is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and

(3) That such discrimination is by reason of his disability.


district

“[Defendant] alleges that [Plaintiff] was removed

only because of disruptive behavior, unexplained

tardiness and absences, or inability to get along

with others at school…There is insufficient evidence

that A.N. was ever removed from class due to

intentional discrimination based on his disability.”


district

District Court for Maryland

August 26, 2013

Parents claimed a violation of Title II of the ADA and Section

504 of the Rehabilitation Act for “invidious discrimination by

virtue of [Plaintiff’s] disability.”

Wright v. carroll county board of education, 2013 U.S. Dist. LEXIS 120892, 2013 WL 4525309

Plaintiff was autistic and allegedly:

• “Endured cruel and ‘serious episodes of student-on-student

violence.’”

• As a result, Plaintiff became “extremely school avoidant.”

• School officials placed Plaintiff in a lower grade level.

• Diagnosed with PTSD.

• Received at home services for the remainder of the school

year and then was eventually placed in another school.

Wright v. carroll county board of

education

Invidious Discrimination:

Court used the same 3-part test that the 5th Circuit used in

Nevills:

(1) Plaintiff has a disability;

(2) Plaintiff is otherwise qualified to participate in the

defendant’s program; and

(3) Plaintiff was excluded from the program on the basis of

his disability.


education

Quoted language from Sellers v. Sch. Bd. (4th Circuit) to

find that the Plaintiff did not prove sufficient evidence to

meet the 3-part test:

“To prove discrimination in the education context,

‘something more than a mere failure to provide the [FAPE]

required by [IDEA] must be shown’…Either bad faith or

gross misjudgment should be shown before a Section 504

violation can be made out, at least in the context of

education of handicapped children.”

Wright v. carroll county board of education

“That defendants moved [Plaintiff], but not [one of the accused bullies] to a lower class grade does not, by itself, demonstrate bad faith or gross misjudgment, even if plaintiffs believe that it was ‘not merited by [plaintiff’s] educational achievement.’”

“That a court may…come to the conclusion that an incorrect evaluation has been made, and that a different placement must be required under [IDEA], is not necessarily the same thing as a holding that a handicapped child has been discriminated against solely by reason of his or her handicap.”


Claim for peer-on-peer harassment based upon disability:

Court applied the same 5-part test:



(3) The harassment was sufficiently severe or pervasive that it

altered the condition of his education and created an abusive

educational environment;




Court found that there was harassment based upon bullying. However:

“There are no allegations by plaintiffs that were repeatedly and deliberately ignored. As the Davis court noted, a claim for deliberate indifference does not offer relief for a ‘child who refused to go to school because the school bully calls him a scaredy-cat at recess.’”

“Given ‘the inevitability of student misconduct,’ a deliberate indifference claim for student-on-student harassment is not available to redress isolated instances of bullying.” (quoting Davis)


4th element: “knew of the harassment”

“Actual knowledge standard required for a deliberate

indifference claim”

NOT negligence standard of “knew or should have

known.”


education

• United States District Court of Nevada

• April 21, 2015

Plaintiff had an eye condition which required her to wear glasses and then contacts. One day, a fellow student approached her from behind and grabbed her head allegedly causing injuries to her neck, back, eyes, brain and systems. The other student then acted like she was going to strike the Plaintiff.

A teacher was in the room when this happened.

Parents sued claiming discrimination based upon her disability under the ADA and Rehabilitation Act.

Visnovits v. white pine county school district,

2015 U.S. Dist. LEXIS 52248

The 9th Circuit has not yet adopted the 5-part test from

Davis, but “The Court finds the deliberate indifference

analysis from Davis and S.S. to be persuasive. Thus, White

Pine can only be held liable under Title II of the ADA or

Section 504 of the RA if evidence indicates that the school

or a representative of the school is deliberately

indifferent to conduct that violates the ADA or RA, ‘of

which they have actual knowledge, that is so severe,

persuasive, and objectively offensive that it can be said to

deprive the victims of access to the educational

opportunities or benefits provided by the school.”

(quoting Davis)

Visnovits v. white pine county school

district


(2) Plaintiff was harmed based on her disability;

(3) The harassment was sufficiently severe or pervasive that

it altered the condition of her education and created an

abusive educational environment;


(5) Defendant was deliberately indifferent to the

harassment.


district

Court found that the 2nd, 4th, and 5th element were not

present:

“[Plaintiff’s] own statements preclude any dispute as to

whether Anderson’s action was based on [Plaintiff’s]

disability [#2], whether [Defendant] knew about any

harassment against [Plaintiff] [#4], and whether

[Defendant] was deliberately indifferent to any such

harassment [#5].”

Visnovits v. white pine county school district

Plaintiff admitted that the other student did not know

about her disability. (#2)

The Plaintiff did not report any incidents to a teacher,

principal, vice principal, or school counselor. (#4)


district

• White Pine did not know about any discriminatory

treatment of the Plaintiff based upon her disability, so

they could not have been deliberately indifferent. (#5)

• Different standard from the District Court of Maryland for

deliberate indifference, “requires both knowledge that a

harm to a federally protected right is substantially likely,

and a failure to act upon that likelihood.” (quoting Duvall

v. County of Kitsap (9th Circuit)

Visnovits v. white pine county school district

G.m. v. dry creek joint elementary school district

595 Fed. Appx. 698 (Unpublished)

• 9th Circuit Court of Appeals

• December 24, 2014

Court found that there was not a valid Section 504 Claim for peer-on-peer

disability harassment because the school was NOT deliberately indifferent to the

disability-based harassment.

Found that the school counselor had met with the alleged offender of the

harassment after three incidents and the gym teacher had prohibited the Plaintiff

and offender from working together.

District Court for D.C.

September 14, 2014

• Plaintiff had a phobia of school and Bell’s Palsy.

• Was bullied by other students.

• Missed many days of school for hospitalization.

s.s. v. district of columbia,

wl 4650885

Court held that “his failure to make academic

progress…was due to his substantial absences for

his medical conditions, not due to bullying or any

alleged reluctance to attend school.”

No denial of FAPE because of bullying or

disability harassment.

s.s. v. district of columbia

District Court for Northern District of California

May 28, 2015

• Plaintiff had echolalia (repetition of another’s words or

phrases) and was placed at a private school, but still rode

on the public school district’s bus.

• Plaintiff was being assaulted and bullied on the bus by

two students in particular who were “offended by

[Plaintiff’s] echolalia.”

v.s. v. oakland unified school district,


Bus driver had informed the Plaintiff’s father “that she couldn’t do anything to protect [Plaintiff] from the resulting bullying and assault by other students on the bus; and confirmed that she had informed the school and district staff about her concerns.”

Parents additionally notified the school district by fax and mail of the “dangerous conditions on the school bus.”

School District took no action.

v.s. v. oakland unified school district

Court found that there was a viable claim under both the ADA and Rehabilitation Act.

Court found that the bullying was related to Plaintiff’s disability because the record showed that the other students were “offended” by the Plaintiff’s “socially inappropriate” behaviors.

Additionally, the Court found that the school district was notified about the bullying on the bus and it “failed to respond and protect [Plaintiff], demonstrating deliberate indifference to her safety.”

v.s. v. oakland unified school district

District Court for the Southern District of Iowa

April 20, 2015

• Plaintiff had ADHD and had repeated 8th grade and had some limited instruction in the special education classroom.

• Students called him “dumb-ass,” “stupid,” “moron,” “retard,” “idiot,” and “gay.”

• While on the football team, Plaintiff alleged that other players intentionally threw footballs at his head and hit his helmet.

• Plaintiff ended up going to the hospital for visual problems, balance problems, headaches, and neck pain.

k.r.s. v. bedford community school district,


Court found that Plaintiff did have a valid Section 504 claim for peer-on-peer harassment based on Plaintiff’s disability.

Used the same 5 part test from Davis:



(3) The harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment;



k.r.s. v. bedford community school district

Regarding #2 “Harassment based on disability”

Court held that Plaintiff’s disability was a “cognitive disability” and that the other students “were aware that [Plaintiff] had cognitive difficulties negatively impacting his ability to learn…There are sufficient disputes of material facts.”

Court looked to evidence that:

(1) The school was small and intimate (around 200 students).

(2) Plaintiff had to repeat 8th grade.

(3) Plaintiff regularly left his regular classes to receive special education instruction.

k.r.s. v. bedford community school

district

Bradford A. King

[email protected]

21th Annual Robert E. Shepherd, Jr. Juvenile Law and Education Conference

Advocating for Children – The New Frontiers

Friday, May 13, 2016

SCHOOL BULLYING: WHAT

ADVOCATES NEED TO KNOW ABOUT

THE CHANGING LANDSCAPE OF

LAWS ADRESSING BULLYING IN

SCHOOL AND THE RIGHTS OF LGBTQ

YOUTH

mailto:[email protected]

Documents

SCHOOL BULLYING: WHAT ADVOCATES NEED TO KNOW ABOUT … · uncomfortable by wearing make-up. ... facilities, privileges, advantages or accommodations in a place of public accommodation