Harassment and Bullying 101 (Pennsylvania) - PEN Webinar


Uploaded by parentednet on 10.04.2012

Transcript:
(Jackie) The way today will work is Jeff Ruder will
be our presenter today, and I will have him kind of tell a little bit about himself. So,
at this point, I'm going to go ahead and turn this over to Jeff, and you should be able
to see the agenda of what we're going to be discussing today. So thank you so much Jeff
for being with us today.
(Jeff) It's my pleasure Jackie, thank you. Hi everybody,
my name is Jeff Ruder. I'm filling in--as some of you heard during when I first logged
on--I'm filling in for Charlie Jelley. Charlie is picking a federal jury today in the Western
District of Pennsylvania, in a civil rights trial. So he was unavailable, and he asked
me to fill in for him.
And filling in for Charlie is always--always problematic. Charlie is really one of the
best minds we have in Pennsylvania, and probably regionally, in terms of addressing IDEA and
Section 504 disability issues. So regrettably, I'm going to be not only working off his materials,
but I'm not going to be able to give you the usual brilliance that you get through Charlie.
And I am hopeful that I can still make this a somewhat useful experience for you.
I'm going to explain a little bit about who I am and why Charlie called me to help out
in this. I'm an attorney, and I've been practicing for about 15 years. I work out of Pittsburg,
and I've been--I guess my first due process hearing was probably around 15 years ago.
I also am an Allegheny County solicitor. I work with abused and neglected kids, but over
the past ten years or so, my primary area of practice has been working with children
with special needs and addressing special education and disability rights issues.
What I'm hopeful we can do is go over some practical, practical tips on how to address
bullying and harassment issues for children with special needs. And--as well as giving
you, you know, a more sort of academic overview of the law. But as an initial step, I wanted
to sort of talk about why bullying is such a big deal. And it seems as though, you know,
it's common sense that bullying can really be troubling for any kid, typically developing
or a kid with special needs. But what ends up happening is that for the kids with special
needs, bullying ends up being magnified.
A solid--I would say, one of the primary issues I have in all of--in my practice right now,
is children, primarily children on the autism spectrum, who have begun to develop aversive
reactions to school situations, either peers or teachers. And this is sometimes a results
of actual harassment from peers, but equally as often, it's the result of kids with special
needs having heightened sensitivity to social interactions and difficulties with pragmatic
speech and social exchanges, which magnifies things a lot. And what ends up happening is
that--the reason why bullying and harassment is such a big issue for us, is because you
can have a great IEP, you can have a great instructional team, but if a kid is feeling
as though they are persecuted or whether they're being harassed, and they start abstaining
from school or start, you know--it's very, very common for me to have kids who are resistant
to going to school because of social and--social and harassment issues.
You know, what it ends up doing is it ends up stopping the kid's education entirely,
and they become consumed with these issues. And until they're addressed in some fashion,
everything's put on hold. What makes this an even more complicated issue is the fact
that school administrators are really very-- [exhales] depending upon the district, but
many school administrators don't have a toolkit that is readily available to them to help
them deal with some of these complex issues. These are issues that sometimes can be addressed
through the discipline procedure, but just as often as not, you know, there is a requirement
that more will be needed to be done. And what I'm hoping to explain today is to talk about
how, as parents or people who give advice to parents, what initial steps you can take
to assist in dealing with some of these harassment and bullying issues, and when you can tell
when you need to contact either an advocate or an attorney.
Okay, so what I'm going to talk about is really going to be primarily parent-focused. I have
to be honest about where I come from. I'm a parent advocate and sometimes I might think
of things from a parent advocate's position. If I am being unfair or unkind, I'm going
to urge anyone to--in my assessment of how districts behave sometimes--please stop me.
I usually don't, but I want to make sure that my biases are open and out there. This is
what I do for a living, and I believe in it. So sometimes you'll hear something slip a
little bit. And I realize that districts have really difficult problems in addressing these
complex situations, but I--you know, I'm eager to make sure that both sides of this issue
are being presented fairly. So if somebody--if I stray too far, please pop a question in
there or, somehow, maybe put your hand up; I don't know how you do it on this. But make
sure you get my attention so I can back up and analyze it a little bit more thoroughly.
The other question I want to ask was, what sort of--and Jackie, I hope we can get this
through maybe the questions. If people could talk about what sort of specific bullying
issues they've encountered directly, so I can sort of make sure I'm answering relevant
questions.
(Jackie) And that could be something, if it's harassment,
if it's bullying, they can just pose in the questions. I mean, I do have a particular
question that a parent has popped in already.
(Jeff) Perfect.
(Jackie) You know, just basically, and I'm sure you'll
go across this, but just keeping in the back of your mind, they're also a parent and an
advocate. They have a child who is being bullied, and if they want to sue, do they still have
that two years to do so?
(Jeff) Okay, so. Yes, and that's a really specific
question, but for most of these issues there is a two year statute of limitations. And
I think it's always a good sort of--rather than worry about the complexities of exceptions
to those statute of limitations, which courts and hearing officers are still struggling
with now, I think it's always good advice just to consider it as being a two year statute
of limitations. But really, you know, the issue of statute of limitations doesn't really
come up that much in bullying situations, because most of the time when bullying and
harassment occurs, it's a very immediate need. But certainly, if there was bullying that
did occur in the past and it did lead to perhaps your child exiting school--being educated
in a different environment, then maybe that will be a relevant question. But yes, two
years is certainly the---two years is certainly the statute of limitations, which I go by
generally.
Jackie, did anyone else talk about what sort of situation they've rolled in, or should
I just start talking?
(Jackie) I would ju--yeah just start talking, 'cause
I don't have any other questions at this point.
(Jeff) Okay, well then I'll just proceed. You know,
one of--and Jackie, I'm going to start out with just giving an overview of special education
law and disability law as it relates to bullying. And what I can say is that this is really
an embryonic area of the law. It's in its--it is very rarely seen in higher court decisions,
and where most of this is coming from right now is an office from the Department of Education,
the Federal Department of Education Office for Civil Rights has been really pushing this,
in both--in the area of disability discrimination and actual--and sexual discrimination and
harassment; they've been pushing this. And in a recent letter, you know, the OCR, the
Office for Civil Rights, warned that bullying--the words she used was "fosters a climate of fear
and disrespect that can seriously impair the physical and psychological health of its victims
and create conditions that negatively affect learning."
And this was--they're really out in front of this in many ways. But courts have had
some varied decisions regarding this. What--and they're so varied that there's, you know--Charlie
has up there a definition of harassment, the definition of bullying. Courts and the Office
for Civil Rights have used these words interchangeably in different situations. Bullying, you know,
a common definition we've seen courts recognize has been defined as a "physical, verbal or
psychological action inflicting or attempting to inflict discomfort upon another through
real or perceived imbalance of power." Harassment can be described as intimidation or abusive
behavior towards a student based upon a protected class, either sex or disability. They really
seem to overlap a great deal.
What the courts and the Office for Civil Rights have said is that districts have a duty to
respond when they see disability-based harassment create what they--under the law is considered
a hostile work environment, or a hostile environment. A hostile environment is when harassment or
bullying is sufficiently severe, pervasive or persistent, so as to interfere with or
eliminate a student's ability to participate and/or benefit from the services, activities
or opportunities operated by a school. And, you know, OCR has recognized that harassment
can take many forms. It can be something as simple as verbal acts and name calling, written
statements, using the cell phone, all the stuff going on with Facebook and the Internet;
these are all what can constitute disability harassment.
But not every time that there is some sort of inappropriate behavior, and this is something
that I've had to explain very recently to clients. Just because someone's being a jerk
towards your kid, doesn't mean that it constitutes harassment under the law. It needs to be--let
me pull up the language of the law--it has to be so pervasive that it interferes with
a student's ability to receive instruction. And it also must be related, and there must
be a nexus between the teasing, or the bullying or the harassment and the student's disability.
There are some cases which courts and OCR have found that if, you know, if you're teasing
a student based upon their clothes or their language, and not their disability, then no
matter how severe the teasing is, it doesn't raise to that level. So the two things that
are really what makes something actionable is the rela--the nexus to a disability and
the--it must be so pervasive and significant that it interferes with a student's ability
to learn.
Now one of the things that is also important to keep in mind, and this is, again, a recent
issue that I've gone through in a private case, is whether or not it must be objectionable
and--whether the conduct must be objectionable just to your kid, or whether it must be objectively
objectionable. And courts have found, at least in--I've only looked in the Third Circuit,
which is where Pennsylvania is, but courts have found that the--that it must not just
be your child or the child in question feeling like this was so pervasive, but the conduct
itself must be so pervasive that a reasonably sensitive person would find it--what's the
language I want to use--so sufficiently severe, pervasive, persistent as to interfere with
a reasonable person's benefit from school. So it's not just whether or not it's your
kid or the kid in question, but it must also be what a reasonable kid would feel. And that's
sometimes an issue that comes up as we're evaluating these sort of cases.
I've done a broad outline of sort what disability discrimination looks like, and I think the
things I'd like to give you are sort of some techniques and strategies on how to handle
them when you run into them, either giving advice to parents or when you run into them
as parents in dealing with these issues with your family. The first thing that I would
encourage you to do is to get familiar with your district's school board policies.
And Jackie, would you mind bringing up the first of those two policies?
I've asked Jackie to link to a local school district's harassment policy. The way school
board policies work in Pennsylvania is that the Pennsylvania School Board Association
promulgates policies and disseminates them to local school boards. What ends up happening
practically is that, you know, these are usually adopted more or less the same way from every
school. Every school usually has very similar policies, because they have all come out of
the school board association. So using this one, this is a school district in Western
Pennsylvania called Pine-Richland, but it could well be your local district. They most
likely have a local--
[Jeff pauses]
regulation which is almost the same as this. And if you look down, there's going to be
a purpose. If you look on this there's a general purpose where, you know, they will explain
why they're enacting this policy. If you look down to Section 3: Definition, harassment
shall--again this is sort of what we talked about a moment ago--harassment shall consist
of verbal, written, graphic or physical conduct related to an individual's race, color, national
origin, ethnicity, sex, age, disability, sexual orientation or religion. When such conduct
is--and again it gets in--here's the parts we were talking about--sufficiently severe,
pervasive and persistent that it acts in a--an individual's individual--excuse me--ability
to participate in or benefit from the educational program, interferes with an individual's academic
program and otherwise adversely affects the individual's learning opportunities. So we're
talking about the same thing.
Jackie, can you pop it over to the next page please?
[Jeff pauses]
One of the things--and while Jackie is doing this--one of the things that the--one of the
things that schools struggle with is that most principals and teachers don't know about
the fact that--don't know that their district has a policy like this. Many building principals
don't. And that's why when you look down on--and I'm not going to read every word of this,
because, heaven knows, webinars are boring as they are, and I'm trying to make this at
least superficially interesting.
But the--if you look down, if we jump down to Section 4, if you can raise that up Jackie,
there's a compliance officer almost in every school. And--this is--if you run into an issue
where you believe your child is being harassed, then the basic best advice you can do is start
the machinery working within the school's bureaucracy and force them to cooperate with
an investigation. Now, if you go down--so in here, there's a desig--the board, it says,
for the board designates the superintendent or designee as district's compliance officer.
In almost every school there's going to be one person who is--who has the ball for investigating
harassment complaints. Now it doesn't really matter whether they're good at this or not,
and I will bet that when you do one of these complaints, unless you have an extraordinarily
sophisticated district with sophisticated parents, you know, this may be the first time
that someone has ever done one of these--these complaints. So, you know they're going to
be figuring this out quite often as you're figuring it out.
But what--and if we can scroll down a little bit farther--it talks about what their role
is, and they're going to talk about what different people's roles are and who should be responsible
for things. But what I want to get to is guidelines for reporting. One of--and I'm not going to
go through this, because it might be minorly different for every school district, but right
there where it says "Step 1: Reporting." One of the best, practical--practical tips that
I can offer is document this, document it through the procedure that the district gives
you. I would send it to the compliance officer. I would send it, in addition to the compliance
officer, I would CC it to the superintendent, I would superintendent to your kid's district--to
your kid's building principal. Okay? Let them know and be specific about what you're concerned
about.
Because if things don't get better, okay, if things progress and get worse--and these
things frequently do progress and get worse--and what ends up happening is that the district
will begin explaining--or one of their defenses will be "We didn't know about this." Okay?
And if things go that far, then where you--you know, you're talking about this, it's--there's
going to be a lot blame shifting, in my experience. And again, I want to apologize to the educator
in our audience, because this doesn't happen in every situation, but frequently when things
get to the point where they go out of control, then there's going to be a lot of "Well we
never knew." We never had a--we never--the district will sometimes say, "We didn't know
it was that bad."
Frequently, and what ends up happening is the district's really right about a lot of
this stuff. A lot of our kids hold it together during school. You know, a kid who is being
harassed isn't necessarily going to be whimpering in a corner someplace where staff is going
to be able to understand--see it and react to it. This is especially true for middle
school and high school kids, where there's this whole idea of something called relational
aggression, and it's especially prevalent among young girls, where instead of being
harassed by somebody calling someone names directly, what will happen is kids will be
shunned, kids will be manipulated by other kids, and there's not often direct evidence
that the school can see about how a child is being harassed.
So, what is extraordinarily helpful is if you give as much information as possible,
including a wide range of dates. Talk about children who you know and say there were children
who were unknown who were involved in this. And give as clear a picture as possible to
the school about what your concern is.
Can you roll down to the next page, where it talks about investigation, Jackie?
[Jeff pauses]
So, here's where--here's where this really works pretty well. Okay? And this is why I
find it very useful to use these procedures, because they are--this district has a very
detailed--and I didn't go shopping for great policies, this is one I just picked out at
random. And this district has a strong policy talking about what the investigation should
consist of. It is broad, and it--in terms of--in terms of--
[Jeff exhales]
it doesn't really direct the school to do things, but it says this is what you may do
if it's appropriate. Okay?
What I would encourage is, eventually you're going to have a meeting with the principal
who will prepare--or the compliance office, excuse me. And about what they--and you see
down there "Step 3: Investigative Report." Eventually they will provide a report. If
you don't like what's in that report, again, I would urge you to look through the steps
of the investigation and press the district on: did you talk to people who had direct
knowledge? Who did you interview? How many people did you interview? Did you--what questions
did you ask these people? To make sure that they did the right sort of investigation to
figure out what was happening.
Can we pop that back down? Or, I'm sorry, you popped that back up.
The investigative report: so here it says the building principal, but it may the compliance
officer, it could be anyone within your district, shall prepare a written report within 15 days--remember
these timelines and press the district to do these things. These are their own rules,
which should help. Okay? Because what ends up happening is a lot of these discipline
problems end up being diverted from, you know--just the--from the initial stage. What ends up
happening is that a parent will give a verbal complaint to a building principal about what
happened to their kid. The building principal will handle it the way they handle any of
the hundred discipline issues that go on in that school during a week. What you want to
do is you want to make sure that the building principal and the compliance officer and whoever
is involved in your case, that they understand this isn't a discipline issue alone. While
discipline might be involved in this, this is different. This is a concern regarding
harassment, this is concern about my child's disability, and this--and I have a different
set of expectations of what you're going to do.
It's not enough for a principal, when you're talking about your child, if you say, you
know, Jackie hit Susie at the bus stop. The typical way a district is going investigate
that is that they'll talk to Jackie and Susie, they'll talk to their parents, they'll, you
know, the teachers--the principal will investigate this in an informal way because it's not--it
is a low level incident. By making this a harassment investigation, you're sort of using
the district's own resources to help you get the resolution that you want.
It comes down here to District Action, step 4 where they talk about district action. The,
you know, here's where this is a really difficult--
[Jeff exhales]
this is where this becomes a really difficult problem. The district shall take prompt, corrective
action; if you look there, I think it's in the first paragraph. If there's a finding
that the complaint is factual and constitutes a violation of this policy, the district shall
take prompt, corrective action to ensure that such conduct ceases and will not recur. Now,
this is where this becomes a really difficult issue, because we know that as vulnerable
as the population we work with is, sometimes, it is difficult to imagine ways that the district
can do something which will make a--an immediate difference. Discipline won't do it alone.
And the courts have held that discipline, if the discipline doesn't stop the behavior,
then the district has to resort to more than discipline. But the question sort of becomes,
what do we do--what can a district do besides discipline?
What I will talk about now is, if they've disciplined a kid, and let's say the discipline
happened and then on--you end filing a complaint and the district says, "Well it happened again,
and we're going to discipline them again." Because discipline didn't work, what I will
usually recommend is doing other non-disciplinary measures. I would talk about training teachers
and staff who supervise the children how to recognize the signs of bullying or harassment,
how to--what steps do they take to intervene? What--how do they know, if you're not going
to catch someone in the act actually doing it, what questions do you need to be asking
a child to assess whether or not this an ongoing problem? A lot of it will involve staff training,
in terms of what are we expecting them to do next? And this is where I think parents
really need to be--
[Jeff exhales]
persistent and unrelenting in what are you doing to fix this? Because the natural inclination
of any large resource, of any large bureaucracy with limited resources, is to try to sort
of, you know, wrap it up in a little ball and say, "We've taken care of this," and then
hope it doesn't happen again. And, as a parent, what I think parents' best opportunity is
to get concrete action from districts in terms of how they're going to--and they usually
won't do it after the first time, but after the second time, if it happens, you can say,
"Look, this isn't--you're saying you're going to take steps to make sure this stops. What
you did the first time didn't do that. We can't expect the same things that didn't work
last time to somehow work this time. What are you going to do differently now to make
this stop?"
One of the things that I think is really a great idea is there are actually evidence-based
anti-bullying programs, which are school-wide. These are, you know, you can buy them pre-packaged,
or you can have someone train your staff, a school staff, on how to create an atmosphere
where it's not just about the kid who is a victim on that one case, but throughout the
whole school of creating an atmosphere where bullying and intolerance is not tolerated.
That's something else that many clients of mine would ask schools to provide, and in
some instances schools will say, "We'll bring in a consultant," or "We'll purchase a program
and implement this as a school-wide program."
(Jackie) Jeff?
(Jeff) If you go down to--Jackie could we scroll
down to the next--Yes?
(Jackie) Jeff, question for you, regarding the investigative
report. Number one, "Where do parents obtain who is the compliance officer?" One--
(Jeff) Okay, okay. Well let me--can we go as you
go?
(Jackie) Yes.
(Jeff) You should be able to call the district office
and call the superintendent's office and say--if it's not available on the website, or even
if it is available--call up and say, "Hey, who's the compliance officer for harassment
complaints?" And they'll give you that information. And if they don't--if they say, "We don't
have one," or "they're off sick," or, you know, "their position has not been filled,"
then I would direct it directly to the superintendent.
(Jackie) Okay, so it is a staff employee, then?
(Jeff) It has to be a staff employee--absolutely.
(Jackie) Gotcha. The second part of it is "In the actual
investigative report, does it--should it include names of who was interviewed? How does that
work with HIPAA?"
(Jeff) So, this is all really a complicated issue.
And to my knowledge, nobody has really come out with a really good answer to what districts
have an obligation to provide to parents when they do one of these reports. I think they
can--What I think--they can claim, and I'm being very cautious in my language here, they
can claim that HIPAA prevents them from disclosing student identities for any number of things.
Okay? They can claim--and really what we see more is FERPA. Where they'll say, "You know
what, FERPA prevents us from distributing or disseminating a discipline record; this
is a discipline record, and we can't tell you what we exactly did." Different schools
will handle this differently. What I would focus on is, I wouldn't focus on the name,
I would focus on what they are doing to fix it. And if they can't give you a--I think
what their policy is saying is they're going to take corrective action, and they have to
explain what the corrective action is. It doesn't--I don't think it necessarily has
to be, you know, student-specific, but I think what they're doing to fix it needs to be specific
to your child and other students who may be perpetrators. And each school is going to
do this a different way, but I still maintain that the way to turn the pressure up on the
district is to use these sort of protocols to get answers.
And can I do a show of hands, just because I'm curious about this. Did other--is this
a common thing that-- [quietly] I'm going to try and find my "show of hands" dock.
Have other folks, have other attendees used these policies for investigative purposes
and seen results from them? I'm not seeing the hands go up. Okay, one person.
(Jackie) Yes and there are some questions, and I don't
know if this is a good time to stop and answer questions.
(Jeff) You know, let me--and again I'm not digging
into--Charlie, if you've been on these before, and I've heard Charlie talk a dozen times,
Charlie's legal knowledge is really unsurpassed in this area, and I'm sort of talking more
about practical steps. Let me wrap up with some more practical steps, or just one last
one really.
One of the things that-- [exhales] I recommend my clients to do is to--if you have a child
with a disability that is not necessarily related to an emotional disturbance (anxiety,
depression, or other sort of mental health issues), one of the things I will frequently
recommend is that you get a new evaluation either privately through a clinical psychologist
or through a family physician who refers you to a psychiatrist, and have your kid assessed.
Okay? I would get that assessment and simultaneously, or maybe not simultaneously, depending upon
how quickly you get it, if you get a quick finding from your physician or psychologist
that your child is likely to suffer from anxiety or depression or some other mental health
ailment as a result of the harassment, what I would do is consider either requesting 504
protection (Section 504 protection, Title 15 protections) for your child as a protected
handicap student with a disability and forcing them to come up with a 504 plan for your kid.
And part of the 504 plan might be, and this is really for kids who are not identified
yet, I would ask that they either come up with a 504 plan for your kid, or, if it is
interfering with their education to such a degree that they are not--that their grades
are dropping, that they're missing school, or when they're in school, they're so distracted
that they can't really learn, I would also consider requesting an IDEA evaluation to
see whether or not they might be eligible for special education.
If your kid already has an IEP, I would request a re-evaluation; that the district do a re-evaluation,
and if they refuse to do a re-evaluation, I would request an independent educational
evaluation to assess whether or not your child is, in addition to being a child with a disability
for the pre-existing, to see whether or not they should be considered a child with a disability
due to--under the emotional disturbance--and I hate that word, but that's what the law
calls it--under the emotional disturbance category. If they are feeling so oppressed
by the harassment and the bullying, that this is affecting them negatively, then I would
sic the school on--you know what, I want you to investigate how this is affecting my kid.
Because, again, it does the same sort of thing that using the harassment protocol does. It
starts building a coalition of people in the school who understand your kid's needs and
will be responsive to your concerns. And that can be done by either, you know, showing them--working
through the harassment, or by having that built into your kid's instructional team,
their IEP team, and making sure that they become aware of the issues, the emotional
issues and the harassment and bullying issues that your kid's experiencing.
That is a natural segue, because that's sort of me talking about practical things. And
then if we didn't have questions, I would probably talk about the law and follow Charlie's
outline a little better than I've been doing it. But, I think this would probably be a
good time for questions, Jackie, if you've got some.
(Jackie) Okay. The one question that I do have, this
particular parent has a child who is very sensitive to others telling him what he can
and cannot do. He typically does not have any behavior problems such as pushing or touching
others, but recently started going through puberty and pushing a child on the bus who
was arguing with him. And this child was also--was videotaped on the bus last year, and the video
was posted on YouTube. They were contact--the family was contacted by the police; no charges
were pressed, but the other child just lost their phone, and was punished by the school
with detention.
(Jeff) Well it sounds like--it sounds like this is
the sort of situation where our kids end up getting into these sort of situations because
of their disability affects the way in which they interact with their environment, and
the way in which they interact with others. And I'm going to guess that this kid is--my
bet would be this is a fifth through seventh grader or probably around that age, because
that's when I start seeing these sort of complaints coming in. I think that there are some--these
are difficult questions to parse, because some of these are issues that might be better
addressed through revisions of your child's IEP, regarding--because some of these are
related to your child's disability. Your child's disability affects the way that they perceive
the outside world as being either demanding, hostile or intrusive in a way that might trigger
a reaction in your kid. What I would be interested in pursuing would be talking about ways of
teaching--well, I think first off there should be two components, there should be teaching
for your child on how do you discern what is, you know, what is a reasonable statement
and what is a--what is something that is intrusive and inappropriate. But that's sort of easier
said than done. That would be addressed through social skills training, through the guidance
counselor or perhaps sometimes through a speech and language practitioner who is working on
pragmatic speech issues.
But that teaching issue won't get the job done. I think you would need to also talk
about the--how do you accommodate your son? And I'm guessing it's a son, I don't know
whether you said that. But how do you accommodate your son and make sure that these sort of
social exchanges don't mushroom into things where he ends up either getting detention,
assaulting another student, or getting in trouble. My sense would be that this would
be a--that there should be some--I guess I'm thinking about this off the top of my head--I
would want a functional behavioral assessment and a behavioral support plan to be put in
place. So that there is a plan in place on how to address that. And these are really
IEP--these are issues, as the question was phrased, that appear to be about your child's
special needs. It doesn't appear that this is an environment of harassment or bullying.
It appears that this is more about how do you both instruct and accommodate your child
in interacting with other students in a way that is going to keep him safe and keep him
from getting into situations which are going to interfere with his learning. And, so without
knowing more, I think that's probably the best sort of advice I can give in this sort
of situation.
(Jackie) Okay. The next question we have is this parent
has a high-functioning child with autism, who is being bullied and is being disregarded
because school administrators believe the child's pragmatic and expressive language
is skewed due to personal perception. Any additional tips on how to handle--
(Jeff) And that's--and again that's really the exact
situation I run into. And frequently high-functioning kids on the spectrum are going to develop--
[exhales] sensitivities or aversions towards, you know, sometimes it can be a teacher, sometimes
it can be an environment--
[Jeff pauses]
or a peer. And the question is sort of how do you tease out whether or not it is related
to your child's perception, or whether or not it's related to the child's environment.
And, you know, you're not going to get a lot of--you're not going to get a lot of evidence
that it was really about peers, because the way that primarily peers are going to handle
this sort of aggression, it's going to be very, very subtle, and it's going to be very
hard to prove. I would--I guess my starting point would be that I would say, "One way
or the other, whether it's my kid's disability which is the problem, or whether or not it's
other kids who are the problem, it doesn't matter, it's still the school's problem."
And I would say that it would be either about revising--if it is based upon his expressive
and pragmatic language skills, then I think, okay, then how is the IEP team going to deal
with these sort of things? How are we going to start giving him or her better social and
pragmatic group instruction to help him make these distinctions. And I would again encourage
the use of not just having him sit with a guidance counselor and talk about his feelings,
I would always encourage use of an evidence-based program that would help him develop the ability
to figure these things out.
And again, I would also, if they are saying this is about your child's disability, I'd
want to know how they got there. And this is why I think the investigative report, that
we talked about a few moments ago, is really important. How did you reach this decision?
How did you conclude that this isn't about him being different and being targeted because
he's different? Who did you talk to? Were the--did you interview the child? Did you
interview other students? Tell us, you know, how did you get there? Because it's important
for us to listen to our kids, but it's also important for us to realize that the picture
that we're getting from our kids might be an incomplete picture, and while it may be
the easiest route might be saying, "It's because of other peers," if it turns out that it is
in fact an issue related to the disability that needs to be addressed, we're going to
be kicking ourselves down the road if we don't do--if we don't try to address that component
of his disability. So, I think, while I'm always skeptical if someone reaches a conclusion
like that without any investigatory basis, you know, if they do have a good investigation
and it does seem like it might be true, I think that parents have to be open to the
idea that it could be one or the other, or both. But either way, and I'll say this again,
it doesn't matter whether it is just your kid's problem, that becomes the school's problem.
Because if it develops and continues to get worse, eventually he's going to become so
preoccupied or so anxious or so nervous during school because of social issues that he's
going to be unable--it's foreseeable that he would be unable to gain the benefits of
his education.
(Jackie) Jeff, how new have school districts been making
policies related to bullying and harassments; that if a parent has had issues within say
the past two years, I guess wouldn't they need to look at when the actual board policy
was created?
(Jeff) These board policies, and I want to point
out there's another policy. And there's also a--could you--Jackie can you pop over to the
bullying policy?
(Jackie) The bully--the second one, the bullying and
the cyberbullying policy?
(Jeff) Yep, that's the second one. Yep.
(Jackie) This particular one?
(Jeff) And you can see right here, this one was adopted
in 2009. The other one I didn't see the date of when it was adopted. These are relatively--the
bullying is--these are both relatively new. So in terms of--and I think there was a second
part of your question, Jackie, in terms of, you know, does it matter when this policy
was in place, in terms of, should they be investigating things that happened before
this policy?
I think if this policy is in place within your district, I think that it is a very good
idea to--it's a good idea to request an investigation, but if you're going back a couple years, then
you're really talking about making it very difficult for the investigation to take place.
These are really useful tools when it's an acute problem that your kid is dealing with,
you know, on a frequent basis. If this is something that happened in the past, I don't
think that these are going necessarily to be effective tools. But you know, if they
happened in the past, and they're not recurring, then I would want to talk to my client and
say, "Okay, why are we doing this? What do we hope to get out of this?" And see whether
or not there might be another way of reaching that goal.
(Jackie) We do have a question of a parent whose child
has cleft palate--cleft lip--
(Jeff) Okay.
(Jackie) who has been physically and verbally harassed
and they are just asking what rights do they have as a parent. I think this is a really
good question, because this fits this sort of situation very easily. Based upon the harassment,
and I can imagine that if they're being called names about their disability, I imagine these
are really graphic and really just awful things that are being said, it will be very easy
to link it to the disability. So if you don't have a problem with saying, "Is my kid being
teased because they have--because they lost at kickball, or are they being teased because
of their disability. So it's easy to establish the nexus between the disability and the treatment
and the harassment in this sort of case. I would start--I would go to both--I would use
both of these sort of provisions. If your school has either, I would use either; if
they have both, I'd use both. And I would say I'm worried that my kid is being bullied,
I'm worried that my kid is being harassed, and I would follow this sort of protocol.
If they--where this ends up is that if the district, and this is the other part of the
webinar, which I really haven't gotten to and I apologize, but districts can be liable
for--
[Jeff exhales]
violating Section 504 of the Rehabilitation Act and also liable for violating the IDEA,
if they don't take steps to ensure that your child is free from either this harassing conduct,
or if it interferes with your kid's education, by making sure that they address it appropriately:
either through provision of services in the 504 agreement or in the IEP. What my sense
would be is that--it's hard to give much more of an answer based upon the question--but
what I would start off with would be initiating these sequences and trying to see what results
they have within the district. But if they're so bad that your kid is suffering emotional
harm, where your kid is crying or is refusing to go to school, I would think about doing
a couple of things. I would certainly make sure it's documented, because districts are
only liable if they knew of the harassment that's occurring. If they never knew about
it, they can't be expected to fix it. If they know about and they, under the law, they show
a--they call it a "deliberate indifference," then they might be liable.
So, then I would--
[Jeff pauses]
I think that establishing their knowledge of it would very important if you wanted to
push it farther. And I want to talk about, before we leave, I want to talk about the
two ways, the primary ways of--
[Jeff pauses]
getting relief, if these two internal processes don't work, that I've recommended before.
You can file a complaint with the Office for Civil Rights. And I would, you know, anyone
can file the complaint, just "google," you know, "Office for Civil Rights complaint."
What they will do is they will look into--they will initiate an investigation of bullying
and harassment incidents for children with disabilities, so long as you can posit a nexus
between the child's disability and the harassment. And what they will do is they won't--they
will--there's a recent letter that came out that says they're not looking to find things
beyond a--there's different legal standards. There's beyond a reasonable doubt for criminal
charges, there's clear and convincing evidence, but what the Office for Civil Rights is saying
is that if they find it is more likely than not that (using a simple, it's a called a
preponderance of the evidence standard), then they will order school districts to implement
a corrective action plan to fix it. So, I would look to the Office for Civil Rights,
because of their expertise with bullying.
Another alternative would also be filing a complaint with the Pennsylvania Commission
on Human Relations, who--again, you can "google" that and it might be in some of Charlie's
materials, there might be an "outlink" in there--but what my sense is--
[Jeff pauses]
and let me see if I can--
[Jeff pauses]
I'm trying to think if there's any other resources that we should be talking about for pursuing
enforcement. If you're interested in getting the situation fixed, those are the two that
I would recommend. If you are interested instead of perhaps getting tuition reimbursement,
and sometimes these matters get so bad where a kid is effectively chased out of a school
and have to enroll in a different educational program. You know, these are the times when
you need to call an attorney. And--because these becomes complex issues which are going
to need to be litigated, but if things get so bad, that can be where this ends up.
It can--you know, there are--there's case law out there talking about if a child is
sufficiently bullied and harassed and there's a nexus between their disability or protected
status and the conduct, school districts have been forced to defend cases where parents
are requesting tuition reimbursement. And these aren't easy cases to prove, I think,
largely, because judges and hearing officers aren't used to seeing them. I think the law
is there, and I think as--the reality is going to be is, in light of the boom in autism numbers
that we're seeing, students are going, in light of kids on the spectrum's sensitivity
to harassment and bullying, I think we're going to start seeing the next ten years a
lot more cases like this, where parents are going to say, "You know what, you're not taking
care of my kid's needs. You're not understanding just because it doesn't happen and you don't
see it at school, doesn't mean that it's not happening, and we're going to have to go and
enroll our kid someplace else where that we know he's going to be safe. So I think over--in
the coming years, you're going to see a lot more cases like that.
(Jackie) Okay, well I hate to say this already, but
our time has already come, it is 2:00. Um--
(Jeff) Well, Jackie, if you don't mind, let me--I
know sometimes people have additional questions.
(Jackie) Yes.
(Jeff) And what I always, I'm sure Charlie does this
as well, if you've got questions about what I've said, and, heaven knows, when you talk
for an hour you're frequently inarticulate, and I really think I probably was at least
three or four times during my talk; you might want some clarification on issues, let me
give you my e-mail address if anyone wants to contact me.
My name again is Jeff Ruder (R-U-D-E-R), and my e-mail is jeffruder@gmail.com. And if any
of the participants in the seminar are interested in following up on any of the things I talked
about, I'd be happy to help out any way I can.
(Jackie) Okay, well than you so very much, and thank
you so much, Jeff, for taking time out of your day to present in Charlie's absence of
this presentation. We are very, very, very grateful.
(Jeff) It's my pleasure, and I'm just pleased that
I was able to--you know when you do this job long enough, it becomes sort of--it's not
just a job, it just sort of becomes who you are. So I'm always happy to talk.
(Jackie) Thank you so much. Have a good day!
(Jeff) [muffled] everybody. Thank you so much.