Goldstein, Ackerhalt & Pletcher
70 Niagara Street, Suite 200 Buffalo , New York, 14202
Phone: 716-362-1533
Fax: 716-362-1534

The GAP Attorneys Blog

Meeting the needs of people with disabilities, their families, educators & service providers

Posts Tagged ‘bullying’

School’s failure to address bullying permits suit for damages

Monday, August 12th, 2013

M.J.  v. Marion Independent School District, 61 IDELR 76 (W.D. Tex. 2013): A federal district court allowed the parents of a student with bipolar disorder and ADHD to seek damages from a school district which failed to adequately address disability-based bullying.  The court concluded that, under Section 504, a school may be liable for failing to remedy disability-based peer-on-peer harassment.  Accordingly, the suit was permitted to proceed to resolve a genuine dispute as to whether the school acted with deliberate indifference or gross misjudgment when the student notified it of instances of harassment.

Tags: , , , , , , ,
Posted in Uncategorized | Comments Off on School’s failure to address bullying permits suit for damages

District’s awareness of ongoing bullying triggers duty to investigate under Section 504 and the ADA

Monday, August 5th, 2013

Sutherlin v. Indep. Sch. Dist. No. 40 of Nowata Cty., Okla., 61 IDELR 69 (N.D. Okla. 2013)—in this case, the parents of a thirteen year old student with Asperger’s brought suit against the school district. Among other things, the parents alleged that the district acted with deliberate indifference when it failed to follow its own policy to investigate allegations of bullying, by failing to respond to reports of at least 32 incidents. The parents alleged incidents of student-on-student bullying, through the use of name-calling and labeling the student based on his difficulties with socialization. Although finding the allegations insufficient to support a claim of district discrimination, the court found that the complaint sufficiently alleged deliberate indifference with regards to disability-based, student-on-student harassment under the ADA and Section 504. Also, the court found a basis for a claim based on the Equal Protection Clause and municipal liability. On those grounds, the parents were allowed to proceed with their claims against the district for disability-based harassment.

Tags: , , , , , ,
Posted in Uncategorized | Comments Off on District’s awareness of ongoing bullying triggers duty to investigate under Section 504 and the ADA

Failure to implement and revise IEP to address ongoing harassment may render school district liable under Section 504

Thursday, July 11th, 2013

Stewart v. Waco Independent School District, 60 IDELR 241 (5th Cir. 2013):  A federal court of appeals allowed a student’s claims relating to alleged harassment to proceed under Section 504, noting that, if taken as true, they could demonstrate that the school district exercised gross misjudgment.  The student, diagnosed with mental retardation, speech impairment, and hearing impairment, alleged she was subject to several instances of sexual harassment and abuse by peers, and that such instances directly resulted from the school district’s failure to implement the safety measures built in to the student’s IEP.  She also claimed that the school failed to revise her IEP to prevent harassment from recurring.

The court denied relief asserted under a theory of deliberate indifference, since the student failed to allege enough facts to meet that threshold.  However, the court permitted the case to proceed under a theory of gross misjudgment, noting that, when viewed favorably to the student, her allegations could show that the district’s course of action went “strongly against the grain of accepted standards of educational practice” if the district failed to satisfy an ongoing responsibility to provide the student with reasonable accommodations necessary to mitigate or eliminate the sexual harassment and abuse.

Tags: , , , , , , , , ,
Posted in Uncategorized | Comments Off on Failure to implement and revise IEP to address ongoing harassment may render school district liable under Section 504

Parents may pursue Section 504 claim for disability discrimination related to bullying

Monday, June 17th, 2013

D.A. v. Meridian Joint School District No. 1, 60 IDELR 192 (D. Idaho 2013):  A federal district court permitted a student’s Section 504 discrimination case to proceed where his parents alleged that he was the victim of “relentless bullying.”  The Court explained that “evidence of bullying severe enough to alter the condition of a student’s education and create an abusive educational environment, coupled with knowledge and deliberate indifference by school officials” is one way to establish a Section 504 violation.  Here, a student, diagnosed with Asperger’s and high functioning autism spectrum disorder, burned down his house, which behavior his parents attributed to the harassment he endured at school. Since the student’s fire setting incident resulted in an eighteen month incarceration, the student was deprived of his education (which constituted a denial of access to his education, a prerequisite to a valid Section 504 claim in this instance).  Accordingly, the parents’ claims may proceed to trial (at which time the parents would be required to prove their allegations, as well as knowledge and deliberate indifference by school officials).

Tags: , , , , , ,
Posted in Uncategorized | Comments Off on Parents may pursue Section 504 claim for disability discrimination related to bullying

Parents must exhaust IDEA administrative process before bringing a suit for damages relating to bullying of a student with a disability.

Thursday, October 4th, 2012

Wright v. Carroll County Board of Education, 59 IDELR 5 (D. Md. 2012):  A U.S. District Court dismissed parents’ suit for damages stemming from alleged bullying of a student with autism.  The Court held the parents are required to exhaust the administrative remedies available under the IDEA.

The parents sought to be excused from the exhaustion requirement by claiming that such remedies were futile.  They argued that since the IDEA provides no specific protection to victims of violations school disciplinary rules (e.g. – bullying victims), the administrative process could not suitably address claims for money damages for such victims.  The Court disagreed, and dismissed the parents’ claims under the IDEA and Section 504 for failing to exhaust their administrative remedies.

Tags: , , , , ,
Posted in Uncategorized | Comments Off on Parents must exhaust IDEA administrative process before bringing a suit for damages relating to bullying of a student with a disability.

School district’s efforts to prevent disability-based harassment/bullying proved ineffective

Monday, May 7th, 2012

East Rutherford (NJ) School District, 58 IDELR 54 (OCR 2011): The Department of Education, Office of Civil Rights (OCR) investigated eleven alleged bullying incidents of a student with Attention Deficit Hyperactivity Disorder (ADHD) and determined four of them to be disability-based harassment.   OCR stated that when a school district discovers the occurrence of disability-based harassment, which is a form of discrimination under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA), the school district must take prompt and effective action reasonably calculated to stop the harassment, prevent its recurrence and, as appropriate, remedy its effects.  OCR determined that although the school district’s actions to promptly investigate and attempt to stop the harassment were effective with many of the bullies involved, one of the bullies continued to harass the student despite the school district’s efforts.  As a result, OCR determined that it would monitor the school district’s implementation of a resolution agreement designed to prevent disability-based harassment against the student in the future.

Tags: , , , , ,
Posted in Uncategorized | Comments Off on School district’s efforts to prevent disability-based harassment/bullying proved ineffective

School district may be held liable for student’s suicide if it failed to address bullying.

Friday, November 25th, 2011

Estate of Lance v. Lewisville Independent School District, 57 IDELR 168 (E.D. Tex. 2011): A U.S. District Court allowed a suit to proceed alleging that a school district failed to protect a young student with disabilities who committed suicide. The nine year old student, who was diagnosed with an emotional disturbance, a learning disability, and a speech impairment, was bullied by his peers.

The student was called “gay” by other students due to his speech impairment. His classmates were intimidated to avoid him or find themselves subject to ridicule as well. Due to the repeated bullying, the district convened its IEP Team to discuss the student’s depression and resulting suicidal ideation. The district referred the student for a full psychological assessment, which noted a possible disorder on the autism spectrum. The district recommended counseling four times per six week period and implemented a behavior intervention plan.

The student was disciplined as a result of his responses to the bullying, resulting in his placement in an alternative school. Despite the parent’s insistence that the student’s behavior (which resulted in the discipline) was a response to bullying, the district failed to investigate. The student admitted to having suicidal thoughts, to the counselor at the alternative school, but there was no record of the counselor notifying anyone of such admission. After returning to his regular classroom, the student was again subjected to bullying and sent to in-school suspension. While using the restroom in the nurse’s office during his suspension, the student hung himself.

As a result of the circumstances surrounding the student’s suicide, the Court allowed the case to proceed due to a potential “special relationship” between the school and the student where, due to his disabilities, young age, and the affirmative acts taken by the district, the district may be held liable for a violation of the student’s constitutional rights.

Tags: , , , , , , ,
Posted in Uncategorized | Comments Off on School district may be held liable for student’s suicide if it failed to address bullying.

State of New York passes anti-bullying law

Friday, September 9th, 2011

Dignity for All Students Act:  The New York State legislature passed the “Dignity for All Students Act,” which aims to establish an environment free of discrimination and harassment in New York State schools.  The Act (effective as of July 1, 2012) applies to harassment and discrimination based on a student’s disability, race, color, weight, national origin, ethnic group, religion, religious practice, gender, and sexual orientation.   It instructs school districts to develop policies that create an environment free of discrimination and harassment, to create in-school training programs designed to raise awareness and sensitivity of school employees to potential instances of discrimination and harassment, and to enable school employees to prevent such acts of discrimination and harassment.  Moreover, the Act requires school districts to create guidelines to the development of nondiscriminatory instructional and counseling methods, as well as ensuring that at least one staff member is trained to handle human relations in all of those areas designated for protection against discrimination and harassment.  In addition, the curriculum in all grades (K – 12) must include a course on civility, citizenship and character education.

Tags: , , ,
Posted in Uncategorized | Comments Off on State of New York passes anti-bullying law

Massachusetts provides guidance to school districts relating to bullying policies and procedures.

Sunday, July 3rd, 2011

The Massachusetts Education Department provided guidance to its school districts regarding required bullying prevention and intervention plans.  A copy of such guidance can be found here.

The guidance indicates that bullying prevention and, in turn, bullying prevention plans, must include and identify school community leaders and solicit their input.  For example, consultation within the school community must include a public comment period before a bullying plan is adopted.

The plan itself should be the school district’s blueprint for preventing and responding to instances of bullying.  The state guidance identifies ten specific aspects of any bullying plan (and also strongly suggests identifying which school community leaders are responsible for which aspects).  In any event, the bullying plan must include a strategy for counseling and referral to appropriate services for both aggressors and targets, and must include appropriate guidance for principals (or other school designees) who will be responsible for investigating (including prompt notification to the parents of aggressors and targets) and responding to incidents of bullying.

The guidance specifically identifies students with disabilities as potential targets, and indicates that IEP teams should consider how to prevent or respond to bullying in students’ IEPs, when necessary, but especially for students with disabilities (such as autism) that affect social skills development.

Tags: , , , , ,
Posted in Uncategorized | Comments Off on Massachusetts provides guidance to school districts relating to bullying policies and procedures.

School district must respond to disability based harassment once the District is aware of its occurrence.

Saturday, July 2nd, 2011

Williamston (MI) Community Schools, 56 IDELR 22 (OCR 2010):  The U.S. Department of Education, Office for Civil Rights (OCR), determined that a school district did not properly respond to disability-based harassment of a student when the school district failed to take appropriate steps upon learning of the harassment.  The student had cognitive impairments that affected his communication skills and interfered with his ability to navigate social situations.  As a result, he participated in an alternative curriculum for most subjects and became the target of verbal and physical teasing.

OCR stated that once a school district knows, or reasonably should know, of possible harassment based on disability, it must respond promptly and effectively.  This is true even if the school district does not learn of the harassment from the harassed individual directly.  The student’s parent raised concerns about the bullying to the school district, and the student’s guidance counselor discussed bullying in general terms with the student.  However, the student was reluctant to fill out written incident reports of the bullying, and for that reason, the school district took little action to investigate and remedy all of the instances of disability-based harassment of which it was aware.  As a result, the school district failed to comply with Section 504.

Tags: , , , ,
Posted in Uncategorized | Comments Off on School district must respond to disability based harassment once the District is aware of its occurrence.

Entries (RSS) | Comments (RSS).