Legal Update

School Held Liable for Gender-Based Discrimination Against Student with Asperger's Syndrome

A federal court in Texas recently ruled that a school district may be liable under federal anti-discrimination laws for failing to take adequate steps to prevent the bullying of a student diagnosed with Asperger’s syndrome.  Although the court dismissed the parents’ disability-based discrimination claims, it sustained their claims of gender-based discrimination, showing the complex and overlapping requirements in this area of the law. 

Brown v. Ogletree (58 IDELR 128), Asher Brown, a middle school age student diagnosed with Asperger’s syndrome, was allegedly the victim of near-daily, ongoing bullying by classmates.  Asher was socially awkward and was short for his age and walked with a slight “sashay” due to being pigeon-toed.  Male students allegedly called him “queer” and similar names, simulated sex with him and on one occasion, pushed him down the stairs.  After two years at the school, Asher committed suicide. 
The court considered a number of discrimination based claims brought by Ashers’ parents, including claims for disability-based discrimination under Section 504 and gender-based discrimination under Title IX. 

The court dismissed the parents’ Section 504 claims, holding that they had failed to show a connection between the bullying and Asher’s disability and any action or inaction by his school.  The court noted that there was not even an allegation that the school was informed of Asher’s Asperger’s diagnosis. 

The court, however, allowed the parents’ gender-based discrimination claims under Title IX to proceed.  The court stated that school districts may be liable for student-on-student harassment where:

1. The district has actual knowledge of the harassment (met here because the parents had tried on multiple occasions to discuss the bullying with school officials and had filed multiple formal complaints with the school)
2. The harasser was under the district’s control (met here because the bullying took place at school during school hours)
3. The harassment is “severe, pervasive, and objectively offensive” and based upon sex, rather than personal animus (met here because almost every incident of alleged harassment was overtly sexual or involved sexual innuendo and was allegedly based upon the perception that Asher was gay)
4. The school district acted with “deliberate indifference” in that its actions were “clearly unreasonable in light of the circumstances” and subjected the student, or made him or her more vulnerable to, harassment (met here because the school allegedly did nothing to address the numerous incidents of alleged bullying)

The court notes that the standard of conduct required by school districts under the “deliberate indifference” standard is “surprisingly low,” in that it does not require the district to expel the harassers or even remedy the harassment, but merely to act in a manner that “is not clearly unreasonable.” 

Contrast against this relatively minimal “legal duty” the standard of conduct outlined by the Office of Civil Rights in its “Dear Colleague” letter dated October 26, 2010, which provided interpretive guidance for addressing harassment under Title VI (race, color and national origin), Title IX (sex) and Section 504/Title II (disability).  (Letter available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.) 

For example, OCR states that schools must immediately investigate any allegation of harassment that it knows about or reasonably should have known about.  If the harassment is found to have occurred, the school must take prompt and effective steps reasonably calculated to end the harassment (such as removing the harasser from having contact with the victim), to eliminate any hostile environment (such as by adopting policies and providing school-wide trainings) and its effects and to prevent the harassment from recurring (such as by following up with the victim to confirm that the bullying has stopped).

The contrast between these positions shows that meeting the minimal legal duties articulated by the Texas court may not be sufficient to satisfy the requirements of Section 504 or Title IX as they may be interpreted by OCR in, for example, the context of a compliance complaint.  The best course of action is, as always, to take allegations of bullying seriously by promptly investigating them and taking any corrective actions that may be required. 

How Do Your Mental Health Goals Measure Up?
(Student v. Marin County Mental Health Youth and Family Services (OAH Case No. 2011081106)).

Facts:
Student was 16 years old and eligible for special education under the categories of emotional disturbance and other health impairment due to a diagnosis of ADHD. Student demonstrated significant defiant and oppositional behaviors at school and was receiving poor grades. Student’s IEP contained one mental health goal that Student would utilize “specific coping skills and awareness of emotional issues to maintain attentional focus” so he could complete classroom assignments as required for 80 percent of the time. The parents argued, among other things, that this goal was inadequate to meet Student’s mental health needs and denied him a free appropriate public education (FAPE).

Held:
This goal did not meet Student’s mental health needs and denied Student a FAPE. The hearing officer explained that there was no evidence as to how progress on the goal would be measured, how a teacher would know if Student silently used a coping skill, or if Student had to initiate an announcement that he was aware of an emotional episode, or if someone was going to keep track of his vocal outbursts or moments of defiance and conclude that he had not tried to use a coping skill or “awareness” of an emotion, or if the incident had to be tied to not completing an assignment.

Practice Tips:
A pupil’s IEP must contain a statement of measurable annual goals that are designed to meet the child’s unique needs related to the disability to enable the child to be involved in and make progress in the general education curriculum. Here are a few tips on writing appropriate, educationally-related mental health goals:

1. Avoid writing goals that require the person responsible for implementation to “mind-read.”
2. Write goals to improve measurable behaviors that result from social-emotional problems and prevent a student from receiving FAPE.
3. Observations, classroom-based data collection, and/or other staff reports can provide useful quantified baseline data.
4. Wording in the baseline and the goal should be very similar.
5. Make the goals clear enough for a layperson to understand.
6. Keep goals simple – have only one variable.
7. Ensure all areas of need are addressed.

The Real World: Transition Planning and Community Experiences
(Student v. Horizon Instructional Systems Charter School (OAH Case No. 2011060763))

Facts:
A 17-year-old student was eligible for special education under the categories of autistic-like behaviors and speech and language impairment. For purposes of transition planning, the charter school provided Student with a “mock job” in a teacher’s office on campus in which he simulated answering telephones, writing resumes, filling out job applications, writing job inquiries, writing checks and depositing them in a pretend bank, and participating in interviews. Student filed for due process arguing that his IEPs for his junior and senior years in high school failed to address his needs for vocational training and community experience.

Held:
IDEA requires local educational agencies to provide students with transition services that facilitate community experiences and employment and other post-school living objectives. 20 USC 1401(34). Although the IDEA does not define "community," the hearing officer posited that "It is unlikely that Congress, in fashioning a plan to ease the transition of disabled students from the campus to the outside world (which it designated the "community"), meant to include the campus itself in that outside world." The few decisions addressing the location of vocational training have determined that on-campus simulated employment is not an adequate substitute for real world experience. The hearing officer explained that the artificial, protected setting permitted the student to safely practice skills but did not afford him the ability to employ them in the real world. Simulation and practical exercises are recognized teaching techniques that can usefully precede, augment, and prepare a student for real-world experiences. However, they cannot wholly substitute for those experiences.

Practice Tips:
IDEA’s definition of transition services is a coordinated set of activities. The definition further clarifies that transition services are based on the student’s interests and include the areas of instruction, community experiences, developing employment or other goals (such as further education), and any other related services the student may need to achieve his or her long-term goals.

Instructional activities may take place in the community, such as community-based instruction, to help students generalize the skills learned in the classroom to the real world. Examples of community experiences could include community-based instruction or work experience; training in how to explore a community, bank, shop, or travel; and instruction in where to find counseling services and recreational activities. This case emphasizes the need to provide students with special needs real-world community experiences outside the classroom setting.

Mental Health Services:  Back to The Beginning
From 1975 to 1984, local educational agencies were responsible for all mental health services for special education students who required such services. Then, for 26 years (1985-2011) mental health services--especially residential placement--became a county responsibility under AB 3632/26.5.  With the enactment of AB 114 in 2011, AB 3632/26.5 no longer exists. Local educational agencies are, once again, fully responsible for all IEP mental health services.

Here are some road signs to help guide local educational agencies:

• Assess in all areas of suspected disability, the first time.  There is no more two-step referral process for assessing mental health needs.
• Approach mental health services as related services/DIS which may be necessary for a student to benefit from the student’s education.
• Look for signs that students may need services such as counseling, parent counseling, psychological services and social work services in order to benefit from special education, e.g. look for non-situational changes in school behavior (quiet, withdrawn, depressed); academic performance falloff not attributable to ability or skills.  
• Slow down and consider that mental health services are not necessarily limited to those listed as related services or designated instructional services under IDEA and the Education Code, e.g. anger management training or social skill interaction groups.
• Proceed and continue to provide mental health services contained in IEPs that were previously provided by county mental health agencies.
• Remember, local educational agencies are not responsible for meeting student medical, social or emotional needs segregable from the learning process.  (If a medical license is required [except for certain assessments] the service is medical, not an IDEA required service.  If social or emotional needs are unrelated to educational performance they are not IDEA required services.)

CDE Provides Guidance on AB 114 Transition Issues

The California Department of Education (CDE) has been issuing guidance on a number of issues related to the changes to the provision of mental health services resulting from the passage of AB 114.

As a result of AB 114's adoption in 2011, many of the mental health services previously performed by county mental health agencies under AB 3632 have reverted to local educational agencies (LEAs). LEAs are now solely responsible for providing those mental health services falling within the scope of "related services" under the IDEA. Some examples of these related services include psychological services, counseling services, social work services in schools and parent counseling and training. (34 C.F.R. section 300.34.)

The changes resulting from AB 114 have spawned a host of questions from LEAs on topics such as which mental-health services LEAs must now provide, which personnel may provide these services, and where the funds to pay for the services will come from.

CDE has created a webpage that compiles guidance on these and other topics related to AB 114, including two frequently asked question documents:

• AB 114 Stakeholder Webinar Q&A (available at http://www.cde.ca.gov/sp/se/ac/stkhldr0923qa.asp)
• Mental Health Services FAQ (available at http://www.cde.ca.gov/sp/se/ac/mhsfaq.asp)

Guidance from CDE on other related topics, such as funding sources and parameters, medication monitoring and NPA certification, is also available at http://www.cde.ca.gov/sp/se/ac/ab114twg.asp. These documents may be useful to LEAs as they adjust to life post-AB 3632 and work to provide the mental health services previously provided by county mental health agencies.

Time After Time
You are in agreement that a student requires counseling in order to receive FAPE.  You also agree that the student should receive 600 minutes of counseling over a 16 week period. The parent wants the exact number of minutes for each session specified in the IEP not just total minutes over the 16 week period. You want to vary session times according to the student’s responsiveness, session activity and individual student needs and not specify the number of minutes for each session..

Question:
Do you have to specify the number of minutes for each session?

Held:
The federal Office of Special Education Programs has advised that most IEPs need to state minutes per session.  34 CFR 300.320(a) requires that an IEP include the anticipated duration of services.  However, there may be special circumstances where the amount of time for each session may be varied to meet individual student needs.  There is nothing in the IDEA to bar such an arrangement provided the IEP contains information that all involved understand the number of minutes to be provided during a specific limited duration.  Letter to Matthews (OSEP 2010) 55 IDELR 142. Whenever possible, the IEP should describe special education services, related services, supplementary aids and services, and program modifications and supports for school personnel using daily allotments of hours or minutes. Where a student’s disability and unique educational needs are such that it would not be appropriate to reflect the amount in a daily allocation, the IEP should identify specific allocations appropriate to the needed special education services, related services, supplementary aids and services, and program modifications and supports for school personnel, preferably in weekly allotments. Letter to Copenhaver, 21 LRP 2786 (OSEP 1994). In the case where it is impossible to describe special education services in daily or weekly allotments of time, the IEP must clearly describe the circumstances under which the service will be provided.

Time After Some Time
You have conducted an initial evaluation of a student but 6 months have elapsed without the IEP team making an eligibility determination.

Question:
Has there been an IDEA violation?

Answer:
It depends.  An initial evaluation must be made within 60 days of receiving parental consent of the evaluation. However, under the IDEA there is no specific number of days by which to make an eligibility determination.  An educational agency must make an eligibility determination within a “reasonable period of time” after an evaluation to ensure that an eligible child receives FAPE without delay.  Letter to Weinberg (OSEP 2009) 55 IDELR 50. Nonetheless, Education Code section 56302.1(a) provides that an IEP meeting shall also occur within 60 days of receiving parental consent for the evaluation, unless certain exceptions apply.