May 1999 ~ Volume 12, Issue 9
Ounce of Prevention News
Information and Ideas for Practical Problem Solving in Special Education
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Issues Index
U.S. Supreme Court Rules that Districts May be Liable for Student-on-Student Harassment
In a 5-4 decision, the U.S. Supreme Court ruled that school districts are not liable for money
damages under Title IX of the Education Amendments of 1972 for student-on-student sexual
harassment unless the school district is "deliberately indifferent" to known acts of sexual
harassment, and that harassment is "so severe, pervasive, and objectively offensive" that it can
be said to deprive the victims of access to the educational opportunities or benefits provided by
the school. Davis v. Monroe County Bd. of Educ., ___ S Ct ___ (1999).
The Davis decision comes on the heels of last term's Supreme Court decision in Gebser vLago
Vista Ind. Sch. Dist., 524 S Ct 274 (1998) regarding teacher-student harassment, in which the
court held that a school district was not liable for damages under Title IX "unless an official of
the school district who at a minimum has authority to institute corrective measures on the
district's behalf has actual notice of, and is deliberately indifferent to, the teacher's misconduct."
The underlying dispute in Davis involved the allegation by Petitioner Aurelia Davis that her
daughter LaShonda was the victim of a prolonged pattern of sexual harassment by a classmate.
According to Ms. Davis, the harassment began in December 1992, when a fifth grade classmate,
G.F., attempted to touch LaShonda's breasts and genital area and made a number of statements,
such as "I want to get in bed with you" and "I want to feel your boobs." Similar conduct
allegedly occurred in January 1993.
These incidents were reported to the classroom teacher, who assured Ms. Davis that the school
principal had been informed. G.F.'s conduct allegedly continued for many months, with such
incidents again being reported to classroom teachers by LaShonda, with follow-up contacts by
Ms. Davis. In April 1993, G.F. allegedly rubbed his body against LaShonda in the hallway in a
sexually suggestive manner. Once again, the matter was reported to the school teacher. The
ongoing incidents ended in May 1993, then G.F. was charged with, and plead guilty to, sexual
battery for his misconduct.
The Petitioner alleged that LaShonda had suffered during the months of harassment, that her
grades had dropped, and that her father had discovered a suicide note. In addition, Petitioner
alleges that no disciplinary action was ever taken in response to G.F.'s behavior. In fact, only
after three months of harassing behavior did the classroom teacher allow LaShonda to move her
classroom seat away from G.F.
In May 1994, Ms. Davis filed a lawsuit in federal district court against the school board,
superintendent, and principal. The complaint alleged that the persistent sexual advances and
harassment by G.F. had interfered with LaShonda's ability to attend school and perform her
studies and activities, and that the "deliberate indifference by Defendants to the unwelcome
sexual advances of a student upon LaShonda created an intimidating, hostile, offensive and
abusive school environment in violation of Title IX."
The federal district court dismissed the Title IX claims, concluding that Title IX provided no
basis for liability absent an allegation that the school board or an employee of the board had any
role in the harassment.
The Petitioner appealed the district court's decision to the Eleventh Circuit, which reversed the
lower court, which held that "Title IX encompasses a claim for damages due to a sexually hostile
educational environment created by a fellow student or students when the supervising authorities
knowingly fail to act to eliminate the harassment."
The district requested a rehearing before the full appeals court panel. The Eleventh Circuit,
ruling en banc, reversed and ruled that the Title IX claims could not stand, as school districts did
not have "unambiguous notice" of potential liability for peer sexual harassment. Petitioner then
appealed to the Supreme Court, who granted certiorari in order to resolve a conflict among the
lower courts regarding student-on-student harassment.
The Supreme Court held that recipients of federal funds "are properly held liable in damages
only where they are deliberately indifferent to sexual harassment, of which they have actual
knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive
the victims of access to the educational opportunities or benefits provided by the school."
The Court agreed with district that a recipient of federal funds may be liable in damages under
Title IX only for its own misconduct, but stated that a school board's own decision to remain idle
in the face of known student-on-student harassment in its schools was sufficient for purposes of
liability.
The Court stated that a district cannot be directly liable for its indifference where it lacks the
authority to take remedial action, and that "deliberate indifference" must, at a minimum "cause
[students] to undergo" harassment or "make them liable or vulnerable" to it. These factors
combine to limit liability to circumstances in which the district exercises substantial control over
both the harasser and the context in which the known harassment occurs. Only then can the
recipient be said to "expose" its students to harassment or "cause" them to undergo it "under" the
recipient's programs." (i.e. during school hours and on school grounds).
Contrary to the fears expressed by the dissent, the majority stressed that the Davisdecision did
not require districts to purge their schools of actionable peer harassment or force administrators
to engage in particular disciplinary action, such as suspension or expulsion, to avoid liability
under Title IX. The Court stated that school districts still have flexibility and must "merely
respond to known peer harassment in a manner that is not clearly unreasonable."
Finally, the court emphasized that damages are not available for simple acts of teasing and
name-calling among children, even where these comments target differences in gender. Rather,
damages are only available when the behavior to "so severe, pervasive, and objectively
offensive" that it denies its victims the equal access to education that Title IX is designed to protect."
The ruling triggered a impassioned dissent, who warned that the Davis decision would result in
a flood of costly lawsuits and create such a fear of liability that districts would feel the need to
"label even the most innocuous of childish conduct sexual harassment." The dissent also cited
the IDEA and its disciplinary provisions as significantly limiting a district's discretion in
disciplining a student harasser who might assert an IDEA claim, even if not previously identified
as a special education student.
Implications:
Given the Gebser decision last term in which the Supreme Court ruled that under certain
circumstances a school district could be liable for teacher-student harassment, the Court's ruling
regarding student-on-student harassment is not altogether surprising. Whether the dissent's fears
will come to pass remains to be seen, but this decision should prompt district's to review their
sexual harassment policies and protocol, and to conduct thorough training of staff.
Implementation of district policy requires ongoing education, modeling, monitoring and
intervention. The first key is to recognize an incident as sexual harassment. If school personnel
have reason to believe, by observation or by notice from students or staff that sexual harassment
has occurred, school personnel should promptly report these concerns to the appropriate persons
outlined in the district's policy. Administrators and other personnel in charge of addressing
allegations of sexual harassment must have a clear understanding the policies and ensure
consistent follow-through with regard to potential disciplinary actions.
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OCR and a Federal District Court Address Assistive Technology
In Hancock (NY) Cent. Sch. Dist., 29 IDELR 916 (OCR, 1998) and East Penn Sch. Dist., 29
IDELR 1058 (ED PA, 1999), the Office for Civil Rights and a federal district court, respectively,
addressed the scope of a school district's responsibility with regard to assistive technology.
The Office for Civil Rights addressed a parent's allegation that the district failed to connect a student's communication device to a printer. Hancock (NY) Cent. Sch. Dist., 29 IDELR 916 (OCR, 1998). The complaint involved a nonverbal student who used a "Dyna Vox," which is a synthetic speech device that generates a voice when the screen is touched or accessed in some other fashion. The Dyna Vox has the capability to be hooked up to a printer.
The district confirmed that the device had not been hooked up to a printer, but explained that such a connection would only be necessary to print an assignment completed on the Dyna Vox. According to the district, the student had not completed any assignments on the Dyna Vox. The complainant did not provide any information to OCR to contradict the district's explanation as to why the device had not been hooked up to a printer, and therefore OCR determined that it could not rule that the district had discriminated against the student.
In East Penn Sch. Dist., 29 IDELR 1058 (ED PA, 1999), a federal district court awarded the parents 608 hours of compensatory education, in part for failure to provide adequate assistive technology for several years to a student diagnosed with mental retardation and physical disabilities.
The parents brought a due process hearing challenging the appropriateness of the 1996-97 IEP. The local hearing officer ruled in favor of the district. The Appeals Panel reversed, in part, finding the IEP inappropriate, specifically with regard to transition planning and assistive technology. Furthermore, the review panel determined that the 1994-95 and the 1995-96 IEPs were similarly inappropriate. As relief, the review panel awarded 675 hours of compensatory education. The district appealed to federal court.
The court found that the student's need for assistive technology was recognized by the multidisciplinary team in June 1994, but an assistive technology device (in this case, a laptop computer with a word prediction program called "Telepathic") was not acquired by the district until September 1995, nor was it functional until February 1996. The student's teacher received only partial training on Telepathic in February 1996 and was not retrained until other members of the multidisciplinary team were trained in May 1996. The classroom aide was never trained on Telepathic, nor were the student's parents ever trained on Telepathic or on his laptop computer.
During the 1996 fall semester, the court found that the student was utilizing his computer only once or twice per school day. The parents' assistive technology expert testified that the student's assistive technology needs were greater than word prediction and included assistance with word recognition and reading skills as he wrote, as well as a grammar model. The Telepathic program is only a word prediction program and contains no grammar model. Furthermore, the Court found that the parents' expert's testimony regarding the educational benefits of the program "Co:Writer" very persuasive and uncontradicted by the district. The court found that Telepathic may actually be detrimental to the rate at which the student performs.
The court upheld the review panel's decision with only one exception, namely a reduction in the number of hours of compensatory education. The reduction was granted because the review panel did not take into consideration a reasonable amount of time a school may need to procure a suitable laptop computer and word prediction software and to design a functional plan for the implementation of the technology. In this situation, the court determined that one school semester was a reasonable amount of time and therefore reduced the award of compensatory education accordingly.
In all other respects, the review panel's decision was upheld. "The Court finds that the District dragged its feet in acquiring [the student's] assistive device after the need for such a device was recognized, and certainly in the training of its personnel so that [the student] could realize some benefit from the technology." The device the district did obtain was not appropriate to the student's needs, as it was not designed to permeate his entire school day. The court determined that the district's plan did not integrate the assistive technology into all aspects of the student's written language needs and therefore did not provide a strategy for the student to learn to use the technology effectively. The parents and aide were never trained in the use of the device. Furthermore, the keyboarding instruction the student received was inadequately adapted to his physical needs.
Implications:
The Office for Civil Rights determination illustrates the need for the IEPT and the persons responsible for the implementation of the IEP to be clear as to the specific use and purpose of a particular assistive technology device in addressing the student's functional needs. In this situation, the district was able to specify how the device was intended to be used and for what purpose, and as the complainant failed to provide contradictory information, the district was not found in violation.
The second case highlighted above serves as an expensive lesson as to what may happen when a district fails to implement an IEP. As the court stated, the need for assistive technology was documented in 1994 but not acquired until one year later. To make matters worse, the laptop computer with the Telepathic program was not functional for another six months. When assistive technology is deemed necessary by the IEPT, the district should have a functional plan in place to ensure the implementation of the technology within a "reasonable" amount of time.
This case also highlighted the need for training. First, the student's teacher was not adequately trained for several months and the aide working with the student was never trained. The court also roundly criticized the district for failure to train the parents on both the laptop computer and the word prediction program.
The IDEA-97 final regulations address "parent counseling and training" as a related service, stating that parent training may be necessary in "helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP." 34 CFR 300.24(b)(7).
There are circumstances, determined on a case-by-case basis, when use of school purchased assistive technology devices in the child's home or in other settings is required if the IEPT determines that the child needs such access to receive FAPE. 34 CFR 300.308. The district should address any need for parent training on assistive technology devices in such circumstances to ensure proper implementation of the student's IEP.
In addition, the court attacked the program chosen by the district as not adequately addressing the student's needs. As also illustrated in the OCR determination, the district must have a clear understanding of the purpose of a specified assistive technology device/program with regard to the student's particular functional needs.
EIGHTH CIRCUIT RULES THAT PROVIDING AN AIDE TO A PRIVATE SCHOOL
STUDENT IS NOT REQUIRED BY IDEA-97, BUT CAN BE REQUIRED BY STATE
LAW
Based on Iowa state law, the Eighth Circuit ruled that a school district was required to provide a
full-time, one-to-one aide for a student parentally placed in a parochial school, in John T.v
Marion Independent Sch. Dist., 30 IDELR ____ (9th Cir, 1999).
Catch your attention? This case is a classic example of how important it is to read beyond the headline.
The student has cerebral palsy, which severely affects his physical mobility and communications skills. He has normal cognitive abilities and does not have emotional or behavioral difficulties. His IEP concluded that he needed a full-time, student-specific aide to address his communications needs. The district offered to provide the aide in a public school setting but refused to provide the aide at a private school. The parents then provided the aide at their own expense.
The parents requested a due process hearing, seeking reimbursement for the cost of the aide and an order for the district to provide the aide. The hearing officer ruled for the district.
The federal district court reversed and awarded the parents reimbursement for the cost of having provided the aide and ordered the district to provide the aide. The court based its decision on an Iowa statute which, in pertinent part, requires school districts to:
make public school services, which shall include special education programs and services..., available to children attending nonpublic schools in the same manner and to the same extent that they are provided to public school students.
The court also awarded the parents attorney fees as prevailing parties under IDEA.
On appeal, the Eighth Circuit rejected the school district's contention that it had discretion to decide whether to provide services on the premises of the nonpublic school. The Court interpreted the Iowa statute as imposing a mandate on the school district to provide an aide for the student at the nonpublic school. It thus affirmed the district court.
On the attorney fee issue, however, the Eighth Circuit reversed. Because the student prevailed only on the state law claim, he was not a prevailing party under IDEA and Iowa law did not provide for an award of attorney fees. The Court went on, however, to rule that the school district did violate the student's rights under the pre-1997 IDEA in refusing to provide the aide at the private school but did not violate his rights post-IDEA-97 because under the 1997 amendments, he no longer had an individual right to special education and related services at the private school. The Court remanded for reconsideration of attorney fees in light of its ruling.
Implications:
The Iowa statute interpreted in this case is very broadly crafted. Its wording specifically requires school districts to make special education programs and services available to children attending nonpublic schools in the same manner and to the same extent that they are provided to public school students. This is much broader than Michigan's Auxiliary Services Act (ASA).
The Eighth Circuit expressly found that the student did not have an individual right to services under IDEA-97. Thus, the Court's broad holding has no application outside of Iowa. What school districts in Michigan are required to provide to private school students is governed by IDEA-97 and the ASA.
With respect to attorney fees, as in Iowa, there is no provision in Michigan law authorizing an award of attorney fees in a special education case. Thus, when a dispute involves only a state law issue, e.g., a dispute over ASA services, a parent is not entitled to attorney fees even when the parent prevails in the case.
Q: If a student does not meet all of his or her IEP goals and objectives, does he or she
automatically qualify for extended school year services?
A: No. School districts are required to propose goals and objectives for students, with an eye
toward achieving those goals by the end of the year. However, there is no requirement that
achievement be guaranteed. If it is apparent that the goals and objectives will not be achieved,
the district should convene an IEP team to discuss whether the programs and services or goals
and objectives should be modified. There are times, however, that a student may not achieve all
of his or her goals and objectives notwithstanding the best efforts of the school district.
Extended school year services are services provided during break periods to students with disabilities. These services must be provided in conformity with the IEP, determined on an individual basis and at no cost to the parents. In Michigan, which is part of the 6th Circuit, the standard for determining whether a student requires extended school year services is whether the student will significantly regress during the break without services and need an unreasonable recoupment time following the break. If a student with disabilities regresses, but is able to recoup the skills in about the same amount of time as other students, he or she would not be entitled to extended school year services.
ESY should not be confused with summer school. Summer school is a service open to all
students, regardless of disability or regression. OSEP recently clarified the distinction in Letter
to Kleczka (OSEP 1998) in reiterating that, merely because students do not achieve all of their
goals and objectives, they are not automatically eligible for ESY. ESY is to be determined by
the IEP team, taking into consideration the individual needs of each student.
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