SPECIAL EDUCATION LAW NEWSLETTER

 

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The purpose of the Special Education Law Newsletter is to keep you informed of legal issues of importance to your child’s well-being.  Following is a past edition which addresses three issues:

1) Bullying of special education children,

2) The Least Restrictive Environment concept in regards to placement, and

3) The IEP “Round-Up”, a quick review of the IEP meeting and the contents of the IEP document.

1. BULLYING OF SPECIAL EDUCATION STUDENTS AT SCHOOL.

Bullying within a school environment is defined as 1) a desire by one student to hurt another student, 2) where a hurtful act(s) occurs, 3) there is an imbalance of power between the aggressor and the targeted student 4), the harmful conduct is repetitive, 4) the use of power by the aggressor is unjust, 5) the aggressor enjoys or takes pleasure in the unjust use of power, and 6) there is  a sense of being oppressed on the part of the target [Bully at School, California Department of Education, 2003, ISBN 0-8011-1584-1].

Special education children are particularly vulnerable to bullying. As such, bullying toward a protected class (e.g., a disabled person) can rise to the level of a hate crime. [Cal. Penal Code sections 422 et. seq.]

In 2001, the California Legislature amended the Education Code, section 35294.2, to require the California Department of Education to develop a sample bullying model policy for school districts. That sample policy provides the following: 1) Any student who engages in bullying may be subject to disciplinary action up to and including expulsion and 2) Students can rely on school staff to promptly investigate each complaint of bullying in a thorough and confidential manner.

Bullying can cause significant emotional and physical harm to a special education child.  In some circumstances, a special education student may monetarily recover for injuries proximately caused by a breach of a school district’s duty to supervise. California law requires each and every public school to supervise students on school property so as to prevent disorderly and dangerous practices which are likely to result in physical injury to students. [Cal. Educ. Code § 44807] If a special education student is significantly harmed, the student can sue a school district for its negligent failure to supervise and careless failure to guard, inspect and maintain school premises.  Accordingly, school districts owe special education students a duty of care to protect them from abuse by bullies [Panama Buena Vista Union School District 110 Cal.App4th 508, 2003].

If your child is being bullied by another student, take action immediately, including calling for an emergency Individual Educational Program (“IEP”) meeting. Your child has a right to an education without an abusive environment.

 

2.  THE LEAST RESTRICTIVE ENVIRONMENT

The Least Restrictive Environment (“LRE”) regarding placement is a mandate under the Individuals with Disability Education Act which requires that disabled children are educated with their typical peers, children who are not disabled, to the maximum extent possible.  Placement of a disabled child outside of a general education classroom may only occur lawfully when the nature or severity of the child’s deficits are such that education in general education (also referred to as “mainstream” classes), even with the use of aides, modification and related services, may not be achieved satisfactorily.

A four part test exists to help determine whether a disabled child may be placed into a classroom that is more restrictive than a general education classroom. The following are the key elements of that test [Sacramento City School District v. Rachel H., 14F.3d 1398 (9^th Cir. 1994)]:

Part 1:        Can the disabled child benefit academically in the mainstream classroom, albeit with modifications, supports and related services? If not, the child may be lawfully placed in a classroom which is more restrictive than a general education classroom. [If the answer to this question is yes, move on to Part 2]

Part 2:        Can the child benefit non-academically in the mainstream classroom? The analysis here is whether the disabled child benefits socially and emotionally in a general education setting. This applies in particular to children who may have average or greater cognitive abilities, but who have significant social or emotional deficits. If no, the child may be lawfully placed in a classroom which is more restrictive than a general education classroom [If the response to this question is yes, move on to Part 3, below]

Part 3:        Is the disabled child overly disruptive to his typical peers and/or general education teacher? If yes, the child may be lawfully placed in a classroom which is more restrictive than a general education classroom, [If the response to this question is no, move on to Part 4, below]

Part 4:        Is mainstreaming the disabled child unduly expensive? If yes, the child may be lawfully placed in a classroom which is more restrictive than a general education classroom.

1)   Make sure that all necessary IEP team members are present. These include the disabled child’s parent, a general education teacher, a school district designee (someone who can bind the public school to the IEP offer), a special education teacher if the student receives special day class instruction, anyone who has conducted an assessment that will be reviewed at the IEP meeting, and persons who are providing instructional services to the disabled child.  The parent is permitted to bring an attorney, advocate, and private therapists. The school may also have counsel at the IEP team meeting.