1. What We Are Learning From Court Cases
Peggy Burns, Esq.
Education Compliance Group, Inc.
Copyright © 2012, Education Compliance Group, Inc. All rights reserved.

2. A Distinction without a Difference?
What is the difference?
The importance of label
What is the appropriate response?
“Knew or should have known” standard
Has the educational environment become “hostile”?
Need for comprehensive approach to elimination
Dr. Nan Stein: “federal civil rights laws trump bullying frameworks which can work to gloss over harassment concerns that amount to federal civil rights violations”
If it’s harassment, discipline may not be enough. Must eliminate hostile environment created by the harassment, address its effects, take steps to assure that harassment does not recur
Recognize
Respond
Report
Reassure
In TK, 2011 NY case – judge says, bullying and harassment create “unacceptable toxic learning environment; makes a student “emotionally unavailable to learn.”

3. Example from OCR “Dear Colleague Letter” 10/26/10
Several classmates repeatedly called a student w/ a learning disability “stupid,” “idiot,” and “retard” in school and on the bus. One occasion was particularly violent. The student complained to his teacher and the driver. He was offered counseling and psychiatric evaluation, but the district did not discipline the aggressors. The harassment continued. The student, who had been performing well academically, became angry, frustrated, and depressed, and often refused to get on the bus, causing him to miss school.
School failed to recognize the conduct as disability harassment – It failed to investigate and remedy. No comprehensive approach to eliminating hostile environment. Steps should have at least included disciplinary action against the harassers, consultation w/ the districts Section 504 coordinator to ensure 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.

4. Dangerous Fact Patterns
Harassment begins with one aggressor. District fails to address the conduct appropriately, and other students join in. This treatment becomes sufficiently persistent and pervasive that it interferes with the student’s participation in the educational program.
Student is subjected to extreme isolation, ostracism, and taunting. Drivers and aides – like classroom teachers – ignore efforts of other students to advocate for her, and, in fact, view the victim as the trouble-maker.
Watch for 1st student’s behavior beginning to influence other students
TK – girl originally diagnosed as autistic, reclassified as learning disabled. Judge:
“The problem of bullying is also the problem of the unresponsive bystander.” Bullying can be grounds for failure to provide FAPE – if deliberately indifferent (cd have 504 $$$ implications.

5. Dangerous fact patterns (contd.)
Long term, on-going, peer harassment can become entrenched and “unfixable”; school bus provides harassers a “ripe opportunity” to continue harassment
The bus was a “hell hole” that typified the “racial tidal wave” existing at school. Administrators imposed “meaningless” consequences with no emphasis on prevention. Administrators, including superintendent, are non-responsive to parent
2d bullet – NY racial harassment case – 2011
And in September 2011, another NY district was sued for $6 million for alleged racial harassment for failing to protect her from bullying , racial discrimination and harassment

6. Dangerous fact patterns (contd.)
Students are involved in a serious incident of sexual molestation at the end of the school day. Despite knowledge of the incident, school officials permit victim to board the bus with aggressor, with no information to the transportation department in general, or the driver in particular. The aggressor picks up where he left off.
District’s failure to follow its own policy for investigation and consequent discipline for harassment led to continued victimization of student.
In second case (TN – 2011) – victim reported to district administrators that another student threatened several times to beat him up. Where the aggressor hired a 3rd student to actual do the beating on his behalf, it was foreseeable, and the administrators’ failure to follow direction in policy to assign a complaint manager to investigate and follow established disciplinary guidelines led to continued victimization.

7. Strive for an “under control bus”
Controlled bus environment is a stronger goal than a “bully-free” or “fight-free” or “alcohol-free” environment. Here are the indicators:
Students are required to remain in their seats
Effective seating charts are designed and enforced
Students who require supervision are identified and supervised
Drivers speak up, pull over as necessary, and, generally intervene in student-student conflict
2/22/2012: Indicators of School Crime and Safety: report by National Center for Education Statistics & Bureau of Justice Statistics indicates that 6% of students report being bullied on the bus. All indications are that such students may have been bullied elsewhere in addition.
The failure of school districts to respond to a pattern of bullying results in the greatest potential of harm to students and vulnerability to liability

8. Under-control bus, contd.
Drivers process write-ups
Transportation administrators forge relationships w/ school administrators
Students are encouraged to report bus incidents
Students are assured that their complaints will be taken seriously and those who hurt or intimidate them will be penalized

9. Students w/ disabilities are more vulnerable
Studies have shown that students with a disability, whether it is visible or non-visible, are subject to increased bullying that is often directed at the disability. These students are also at more risk for bullying directed at factors other than their disability.
Young, Ne'eman, and Gelser, Bullying and Students With Disabilities, in White House Conference on Bullying Prevention, (March 10, 2011), available at stopbullying. gov/references/white_ house_ conference/index.html.

10. Specifics of Lopez settlement
Staffing monitors on all special education buses
Video monitoring equipment on all sped buses
Comprehensive screening procedures to remove risks that might be associated w/ student w/ a disability being assigned to a particular bus
Protocols for report with notification to parents of procedures
Weekly review by designated official of all complaints received; specific response required when know unreasonable risk of sexual harassment on a special needs bus
$1,475 mil settlement

11. Lopez settlement, contd.
Expediting investigation of all suspected acts of sexual harassment involving students w/ disabilities
Ensuring open lines of communication between transportation officials and school-based personnel
“Bus rosters” w/ “bus transportation order” outlining special transportation needs generated w/ IEP process. Communicated to driver, monitor, sub driver, sub monitor
Comprehensive annual training for all staff who have at least one special needs student on a bus

12. Figure 1. Students Who Experienced Sexual Harassment during the 2010–11 School Year, by Gender
Crossing the Line: Sexual Harassment at School presents new evidence on sexual harassment, including cyber-harassment, in middle and high schools. It examines sexual harassment as reported in a nationwide survey of students in grades 7–12 conducted in May and June The survey confirms that sexual harassment remains an unfortunate part of school culture, affecting the educational experiences of millions of students, especially girls. Still, only a fraction of students who were sexually harassed during the 2010–11 school year reported the incident to a teacher or other adult at school. Many students told no one about their experience.
This chart shows us the prevalence of sexual harassment during one school year. In this chart, the purple bar refers to all students, the red bar refers to girls, and the yellow bar refers to boys. As we can see, many students experienced harassment both in person and online.
The chart shows us that about 30 percent of students were sexually harassed online and 44 percent were harassed in person. Looking at students who experienced either form of harassment, we find that nearly 1 in 2 students (48 percent) were sexually harassed during the 2010–11 school year. A significant difference exists between girls and boys, with 56 percent of girls and 40 percent of boys reporting experiencing some of form of harassment during the 2010–11 school year.

13. Figure 11. Actions Students Took after Being Sexually Harassed, by Gender
The AAUW survey also asked students about their response later on, after the sexual harassment occurred.
After being sexually harassed, 50 percent of students did nothing about it, including 44 percent of girls and 59 percent of boys. Girls were much more likely than boys to talk with someone about what happened or to report it. Nearly one-third of girls but only 20 percent of boys said they talked to a parent or other family member. Twenty-nine percent of girls but only 15 percent of boys talked to their friends about what happened. Only 9 percent of students (12 percent of girls versus 5 percent of boys) reported the incident to a teacher, guidance counselor, or other adult at school.
These findings are important when thinking about prevention strategies and educating students about how to assertively and effectively respond to sexual harassment.

14. Figure 14. Student Suggestions for Reducing Sexual Harassment at School, by Gender
AAUW’s survey clearly shows that sexual harassment continues to be a common problem in middle and high schools, affecting the educational experience of millions of children.
Fortunately, as I’ll discuss during the rest of the presentation, everyone can help address and prevent sexual harassment, starting with the recommendations students themselves offered in the survey.
Creating a way for students to report problems anonymously was a top recommendation given by more than half of all students. It is likely that many students are deterred from reporting because they fear retaliation and teasing. More than half of the students wanted assurance that their complaints will be taken seriously and that students who harass will be penalized. Around 40 percent of students wanted there to be a designated person at school to whom they could report instances of sexual harassment.
On the education side, nearly one-third of students wanted in-class discussions on the topic, while a quarter recommended schools hold workshops on sexual harassment. Nearly a quarter of students also wanted information about sexual harassment posted online.
The research report details how different groups can play a role in prevention, including administrators, educators, parents, students, and community groups. To conclude this presentation, I will highlight one key finding for each of these groups. You can read through the report for more recommendations.

15. Your obligations
Recognize – drivers and attendants must be alert to behavior which is not just developmentally appropriate horseplay; bullies can terrorize their victims.
Respond – when you’re aware, doing nothing is never the right thing. Intervene; say something!
Report – to meet the district’s obligation to investigate, your staff must provide full & timely information as required by policy. But, reporting is not an alternative to response!
Reassure – show the victim that you get it, and will do your part to avoid a repeat performance.
Recognize – but remember safe driving is the priority – don’t sacrifice safety for surveillance. Your staff members are not the “bullying police”
Respond – silence is permission
Report – cf. Talabi – attendant only reported after the fact
Reassure – FERPA permits disclosure to harassed student info about the sanction imposed upon student harasser when the sanction directly relates to the harassed student.

16. Training for action Foster compliance with relevant policies
Explain expectations for seating arrangements, other preventive student management techniques.
Review information issues.
Communicate with school administrators about transportation professionals’ need to know student information that will impact the ride
Work as a team to avoid “re-victimizing” the victim.
Never take the position that students should learn to cope with harassment
Typically, any negative impact of change should be on harasser, not the victim (but watch out for harasser with special needs for whom transportation is a related service.)

17. Training for action, contd.
Instruct drivers to report to their supervisors or to a building administrator in accordance w/ policy
What do policy and practice establish as the applicable range of consequences? Who administers them?
What back up plans are necessary (for example, if an attendant is required, what if s/he’s absent?)
What information, direction do you provide to attendants?

18. Responding: Be Fair, Consistent and Clear
Tell the student what s/he’s doing that s/he must stop
Explain possible consequences
Recognize when telling and explaining isn’t enough
Handle similar situations similarly
Work with school administrators where behavior on bus is only a microcosm of the atmosphere in school

19. Reporting expectations
Even if BOE policy doesn’t make reporting by all staff members mandatory, you should
Encourage prompt oral reports from your staff, with written follow-up
While you should respect the discomfort on religious or moral grounds that staff may have with reporting what a student actually said or did, reports must be factual and detailed.

20. Complaint Handling and Investigation Strategy
Who knows about what?
Interaction with police
Is action against individual harassers sufficient if district never addresses overall and continuing harassment?
See, Point of Law, for “Invincible Investigations”
Barnstable - Superintendent and board not aware of sexual assault on bus of 7 year old. Father reported incident to principal. Soon after, she told Transportation.
In June 2011 NY case, an ALJ found that an investigation of racial harassment on the bus – characterized as a “hello hole” typifying the school’s “racial tidal wave” – was “tainted by indifference” where the evidence showed lack of responsiveness to victim and parent despite reports of serious verbal abuse, and dispute the VP admitting that trivial consequences levied on perpetrators were meaningless. Reports went all the way to the Supt who paid no attention to Epi’s specific situation, despite fact that one of her goals was changing behavior and she had information about the racially tense environment. Appellate court found that district “repeatedly chose a course of action which both put the interests of the white male perpetrators ahead of the interests of the black female student,” and was ineffective in stopping the conduct.
6th Cir – Patterson v. Hudson Area Schools (1/09) – only verbal reprimands against harasser who taunts about sexual orientation. They finally work. But didn’t stop other students. “Isolated success with individual perpetrators” doesn’t prevent case from moving forward.
Under FERPA – OK to disclose to harassed student info about the sanction imposed on student who h’d when the sanction directly relates to harassed student (eg, order that h’r is to stay away from h’d student; suspension; transfer)