Midwest Education Law

Debate surrounding reauthorization of the ESEA continues, with a current focus on bullying prevention and protections for lesbian, gay, bisexual and transgender students.  The U.S. Senate Health, Education, Labor and Pension Committee supported a bill in October reauthorizing the ESEA.  The bill included provisions intended to address and minimize bullying in schools, but did not include the Student Non-Discrimination Act ("SNDA") or the Saft Schools Improvement Act ("SSIA"), both designed to give express protections for LGBT students.  On November 1, 2001, a group of LGBT organizations wrote a letter to the Senate committee espressing their concerns about the reauthorization bill.  Senators sponsoring the SNDA and SSIA (Sen. Al Franken and Sen. Bob Casey, respectively) say they intend to introduce their bills during debate on the Senate floor.  Several organizations are supporting separate legislation designed to protect LGBT students, while others maintain that specific decisions about bullying protection should be made at the local level.  We'll continue monitoring this debate and the potential impact on area schools and policies. 

A federal court in New York recently concluded that the IDEA creates an affirmative duty to remedy disability-related bullying or harassment.  Failure to do so may constitute a denial of FAPE in violation of the IDEA.  The case involved a female student who was allegedly bullied and harassed because of her disability.  The parents removed her from the public school, placed her in private school and sought reimbursement.  The request was denied and the family sought judicial review after exhausting administrative remedies.  The federal court allowed the parents' claim to move forward, findings as follows:

When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination.

This case is another reminder that allegations of bullying or peer harassment must be taken very seriously.  Courts and administrative agencies look unfavorably on school officials who appear to dismiss reported misconduct, especially when tied to a student's disability. 

Recent research confirms what school administrators and teachers already know: student-on-student bullying is now more likely to happen online than in person.  A University of Minnesota child psychologist’s research indicates that while about 14 percent of adolescents report they have received face-to-face bullying, 48 percent say they have been subjected to bullying via virtual messaging.  Cyberbullying – which can occur on social networking websites, cell phones, e-mail, and other electronic media – presents new challenges for school administrators who wish to impose discipline for conduct that occurs on electronic media, often away from school property.  The legal landscape is not yet clearly defined in this area, where disciplined students often claim a First Amendment defense.

The U.S. Department of Education recently organized and hosted the Federal Partners in Bullying Prevention Summit.  The meeting brought together educators, leaders from federal agencies and other associations determined to reduce bullying in our nation's schools.  One result of the summit was creation of a website designed to centralize governmental resources on bullying.  It contains information about bullying research and strategies for addressing the problem from various perspectives.  It also contains articles, suggestions, videos and other information to help schools assure that students are and feel safe.  This is especially important as many students report feeling intimidated at school and as technology continues providing additional methods of delivering intimidating messages.