Our guest blogger this week is Tara Fishler, CEO of Customized Training Solutions.  Tara Fishler founded Customized Training Solutions in 2003. She and COO Leiat Klarfeld, have provided training to thousands of parents, teachers, support staff, administrators, and students in schools and organizations on topics including anti-bullying, anger management, special needs, diversity and mediation among many other topics. Ms. Fishler currently serves as President of the New York State Dispute Resolution Association (NYSDRA).

One in four kids in the U.S. is bullied on a regular basis. That’s bad enough, but what’s worse is that according to several studies, the rates are usually two to three times higher, for children with special needs. In nearby Connecticut, more than 50 percent of tracked bullying reports involved a student with a disability or an IEP.

While more and more schools are developing anti-bullying programs and policies, there’s still a great deal of work to be done, particularly for kids with special needs. For many of these kids, their parents will always remain their primary advocate.

The good news is, there are proactive steps that parents can take to protect their kids and create a healthier, more accepting environment in their schools and communities.

How Do You Know If It’s Bullying?

In the past, bullying issues were, at best, addressed haphazardly, and at worst, swept under the rug. Now, it’s taken more seriously, which is good. However, it’s also created confusion, because “bullying” has become a catch-all phrase for all kinds of peer conflicts, such as teasing and other relationship issues. In addition, since a child with special needs may not be able explain exactly what’s happening, how do you know if it’s a bullying situation or just “kids being kids?”

Bullying is defined as behavior that is intentional, aggressive and negative, carried out repeatedly against one or more targets. Bullying occurs in relationships where there is an imbalance of power between the parties involved.

Evaluating the balance of power in a conflict is often the best way to identify bullying versus teasing. If one party is afraid of the other, it’s more likely to be a bullying situation. When a child has special needs, it can be especially hard to tell what is really going on. (Look for my personal experience on this issue in a future post.)

Why Kids with Special Needs Are Targeted

Kids with physical, developmental, intellectual, behavioral, sensory disabilities and even allergies are more likely to be bullied than others. Studies indicate that when kids have visible physical disabilities, they are more likely to be victimized.

In addition, children with special needs often have a lower baseline social standing than their fellow students, which makes them more vulnerable from the start. When part of a child’s condition includes social challenges, such as autism, Social Communication Disorder (formerly Asperger’s syndrome), and ADD or ADHD (Attention Deficit Hyperactivity Disorder), the problem is intensified. Kids who have trouble holding conversations or making friends, or who have a low frustration threshold, are prime targets.

Ironically, the recent inclusion movement in schools may have actually made students with special needs more vulnerable. Special classes, aides, and technological equipment highlight the fact that these students are “different.” And being “different” can set kids up not only for social ostracism, but as the go-to target of bullies.

How to Spot if Your Child Is Being Bullied

The first indication of a bullying problem is often a change in a child’s behavior. Often, kids who are being victimized:

• Become reluctant to go to school.
• Start eating or sleeping poorly, or too much.
• Lose interest in classwork and slip academically.
• Lose interest in friends and favorite activities.
• Become moody or get upset easily.
• Regress in toileting and other skills.
• Complain of headaches or stomach aches.

In addition, look for physical signs, including:

• Cuts, bruises, or injuries that weren’t there in the morning.
• Torn or dirty clothing.
• Damaged or missing belongings.

If you suspect your child may be the target of bullying, document the situation and bring it to the attention of their teacher(s) and Principal. For more tips about how to handle bullying situations, visit www.tarafishler.com.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

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Posted in Autism, New York Special Needs | Comments Off on Is My Child with Special Needs Being Bullied?
Tags: bullying, students with special needs

By Marion Walsh, Esq., Littman Krooks LLP

Recent years have seen a welcome shift in public attention toward understanding the serious repercussions of bullying in school. Our society now recognizes that bullying, once dismissed as simply part of growing up,can have a serious negative effect on the mental health and social development of children, even into adulthood.

For children with autism, the problem has even greater scope and effect, in part because children with autism have intrinsic vulnerability to bullying and they are more likely to be victims of bullying. Children often face bullying for being different and the sensitivities and typical peers may not understand the behavioral differences of children with autism.

In addition to being more likely to be bullied, children with autism may have more trouble understanding and responding to teasing. Children with autism tend to interpret statements literally, so they may not understand jokes or sarcasm. Stress and anxiety may lead to an outburst or other problematic behavior, which can lead to further harassment.

The consequences of bullying can be severe. Research has shown that children who are victims of bullying may develop low self-esteem, learning difficulties, anxiety, depression and other symptoms, all of which can persist well into adulthood. In addition, although some types of bullying may decrease as children get older, that may not be the case for children with autism. Indeed, there may be a greater cause for concern with older children.
Here are four action steps you can take to address any bullying of your child:

1. Do Not Ignore Problem of Bullying. Faced with these challenges, it is important for parents and teachers to be aware of the problem and take action to prevent and respond to bullying. Do not ignore early signs that a student is being bullied or is bullying another student.   Some of the focus must be on the bullies rather than the victims. Teachers should not only intervene when they witness bullying themselves, but teach other students how to do so. A school district’s curriculum and code of conduct should promote an environment free of harassment.
2. Help Children Advocate for Themselves and Report to Adults. Children with autism can also be taught how to respond appropriately to different types of bullying behavior. Role-playing exercises can be especially effective in instilling the confidence and self-esteem necessary to respond effectively. Through conversations with parents and teachers, children with autism can learn when they need to strongly stand up for themselves and when they might be able to use a joke to deflect more mild teasing.  Make sure a child has a trusted adult in the school to whom to report any bullying. Parents and teachers must provide an appropriate balance of support to protect children from bullying while allowing independence and peer relationships to develop. Parents should bring this up at their child’s next Committee on Special Education team meeting, so that that team can consider goals to help the child advocate and needed supports for the child.
3. Use State Law and School Policies as Tools to Stop Bullying. Finally, when a child is the victim of bullying, parents and teachers must take steps to intervene. Under New York’s Dignity for All Students Act (“DASA”), schools must protect students by taking prompt action to end harassment, bullying or discrimination that is reported to the administration. Parents should communicate with the school’s Dignity Act Coordinator for students with disabilities, and report any harassment. Check your school district’s policies and procedures
4. Document Bullying. Be sure to document any instances of bullying in writing and report them to the school. Take pictures of any physical injury. Save copies of text or Facebook and other social media messages.

Preventing bullying requires a multifaceted approach, with attention paid to a number of factors within a social context, which is only possible when bullying is recognized as a serious problem. All parents and teachers should take active steps to raise awareness, teach children strategies to respond to harassment, and take action to prevent bullying.

Learn more about special needs planning and special needs advocacy by visiting www.specialneedsnewyork.com.

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Posted in Autism, New York Special Needs, Special Education Advocacy | Comments Off on Parents and Teachers Can Take Action to Address Bullying of Children with Special Needs
Tags: bullying, DASA, dignity for all students act, parents, teachers

By Marion Walsh, Esq., Littman Krooks LLP

In a recent decision, Zeno v. Pines Plains Central School District, Docket No. 10–3604–cv. (2d. Cir. 12/5/12), the United States Court of Appeals for the Second Circuit sent a resounding message to New York school districts and affirmed a $1 million dollar jury award to a student who faced bullying and harassment based on race for over three and a half years, in violation of Title VI of the Civil Rights Act of 1964 (“Title VI”). The award amounts to one of the largest damage awards in recent years in this type of case. Reflecting a culture that has recognized the grave harm of student bullying, the Second Circuit panel of three judges condemned school district inaction and found sufficient evidence in the record to support the jury’s finding that the District’s responses to student harassment “amount[ed] to deliberate indifference to discrimination.”

We applaud this decision, as it sets specific parameters on how school district officials should respond to student bullying and harassment and notifies school districts that ineffective action will not be sufficient to avoid liability for harm caused by student bullying.

The facts clearly support the ruling. Anthony Zeno, an African-American student who also was classified as a student with disability, moved to the Pines Plains School District in January of 2005 and began as a freshman. Harassment and bullying began almost immediately and never relented. A student threatened to rip his face off and used racial epithets when referring to him. In the student’s sophomore year, a student threatened to beat him up. Graffiti with death threats appeared in the school bathroom. Students threatened Zeno lynching by displaying a noose or threatening to put a rope around a nearby tree. Students tampered with Anthony’s locker so that it fell on his head and also filled the locker with garbage. In junior year, a student threatened him and repeatedly threatened his younger sister. When Anthony threw a punch, the district punished Anthony, but not the instigator. A student commented that Anthony would fit a role in the school play “if it was like a black gangster.” By senior year, the incidents grew more serious. For example, at an SMHS football game in September 2007, students instigated a fight and a student “jumped” Anthony’s friend, choking him until he lost consciousness. Students continued to call Anthony racial epithets in the hallways “all the time,” and he reported these comments to the principal. He encountered continued racial harassment on the bus to his off-campus BOCES program.

The student’s parent repeatedly informed school officials of the continuing and escalating harassment, each year. In Anthony’s freshman year, the parent wrote a letter to the Superintendent and school board notifying them of the harassment. The District never offered a meeting. At Anthony’s CSE meeting in June 2006, Mrs. Zeno said Anthony experienced school as a “battleground” and that the constant threats, epithets, and racial slurs created an atmosphere that sent a hate message. The parent initiated 30-50 communications on the bullying and harassment to the school district.

In response to these actions, the school district suspended certain students for approximately five days each, in response to various incidents. The Director of Special Education who was also the District’s Title IX compliance officer, also charged with investigating Title VI violations, never investigated the harassment although she had knowledge of them and received complaints. The District also conducted a mediation but did not notify the parent of the time or the date, and the mediator was not trained in diversity or bias awareness. While the school district conducted one day workshops against bullying, they were not targeted toward race and discrimination. Finally, the District hired a diversity consultant in Anthony’s junior year, but he only did preliminary work and never provided training.

The United States Department of Justice and Department of Education , charged with enforcing Title VI, submitted a brief in favor of the student’s position. The District contended that, as a matter of law, it was not deliberately indifferent to student harassment of Anthony. Specifically, it argued that (1) it reasonably responded to each reported incident, (2) it was under no obligation to implement the reforms requested by Anthony’s lawyer, and (3) it never knew that its responses were inadequate or ineffective.

While the court noted that, in some circumstances, prompt disciplinary action against a student’s identifiable harassers may show that a school district was not deliberately indifferent. The Second Circuit identified five circumstances which should have informed the District’s continued response to student harassment of Anthony was ineffective:

1. The District knew that disciplining Anthony’s harassers—through suspensions or otherwise-did not deter others from engaging Anthony in serious and offensive racial conduct.
2. The harassment directed at Anthony grew increasingly severe.
3. The disciplinary action had little effect, if any, on the taunting and other hallway harassment,
4. The District knew that the harassment predominantly targeted Anthony’s race and color.
5. As early as November 2005, the Dutchess County HRC and N.A.A.C.P. offered the District both a free shadow, to accompany Anthony during the school day, and a free racial sensitivity training series, which the District declined.

The Second Circuit panel upheld the jury finding that the school district was deliberately indifferent to actionable harassment. First, the panel upheld the finding that, based on the record below, the harassment Anthony suffered was “severe, pervasive, and objectively offensive.” The court further upheld the jury findings that the District’s delay in taking additional action here was unreasonable and that the District’s additional remedial actions were little more than half-hearted measures. The Panel noted that “responses that are not reasonably calculated to end harassment are inadequate.” Finally, the panel upheld the award of $1 million dollars. The court rejected the school district’s argument that the damages were “garden variety,” in line with employment discrimination cases. The panel noted that Anthony was a teenager being subjected—at a vulnerable point in his life—to three-and-a-half years of racist, demeaning, threatening, and violent conduct. Furthermore, the conduct occurred at his school, in the presence of friends, classmates, other students, and teachers. The panel upheld the jury finding that the harassment would have a profound and long-term impact on Anthony’s life and his ability to earn a living.

What the Ruling Means for Parents and School Districts

The ruling should offer hope to parents of children facing bullying and harassment. The ruling confirms that parents must not give up and must keep relentlessly reporting and documenting all bullying and harassment in writing. The parent and student in this case kept detailed,and meticulous records for many years.

For school district staff, the ruling sends a clear message that staff must respond to student bullying in an effective way that actually targets and makes at least a reasonably calculated effort to stop the bullying and harassment. The United States Department of Justice noted that, in addition to accepting the offer of the NAACP for a shadow aide and sensitivity training, available and more effective responses reasonably calculated to ending the harassment could have included:

• reaffirming the school district’s zero-tolerance policy against harassment;
• redistributing the district’s code of conduct;
• holding mandatory training for all employees and students;
• issuing a letter to all parents that racial harassment of any form would not be tolerated; publicizing the means to report alleged harassment;
• providing contact information for the school’s anti-discrimination officer; and
• engaging Anthony in school-based counseling.

Posted in New York Special Needs, Special Education Advocacy | Comments Off on Ineffective Action against Student Harassment and Bullying Leads to $1 Million Dollar Award against School District
Tags: ANTHONY ZENO, anti-discrimination officer, bullying, code of conduct, docket no.10-3604-cv. (2d.Cir.12/5/12), harassment, pines plains school district, racial harassment, school-based counseling, zeno v. pines plains central school district

by Marion M. Walsh, Esq.

Bullying can harm any student, but research shows that students with disabilities are particularly vulnerable to harassment and bullying.  Bullying can cause educational decline, anxiety, physical ailments and missed classes, among other problems. This year, a new tool and mandate exists to prevent and address student bullying and harassment.

Effective as of  July 1, 2012, the Dignity for all Students Act prohibits harassment and bullying based on race, weight, national origin, ethnic group, religion, religious practice, mental or physical disability, sexual orientation, gender identity, and sex, as well as bullying based on other characteristics.  The Act seeks to provide every public school student with a safe and supportive environment free from discrimination, intimidation, taunting, harassment, and bullying on school property, a school bus or at a school function. To implement the law, each school must appoint a Dignity Act Coordinator.    The Dignity Act also requires instruction in civility, citizenship, and character education by expanding the concepts of tolerance, respect for others and dignity to include an awareness and sensitivity in the relations of people based on the above differences. The Dignity Act further requires Boards of Education to include language addressing The Dignity Act in their Codes of Conduct and to amend their policies. New York State has developed excellent tools to help schools implement the law and to help parents understand it.
The Dignity Act requires school districts to adopt proactive, not just reactive, responses to bullying. The mandate of a supportive education environment should change the way school personnel address bullying—not as just a disciplinary measure, but as a school environment issue.  Thus, in addressing bullying, according to New York State Guidance, a school district should, for example, consider: peer support groups; corrective instruction; supportive interventions;  behavioral assessment or evaluation; behavioral management plans; school counseling and parent conferences.  In addition, New York state recommends  school­-wide  environmental remediation such as:

• supervisory systems  which  empower school staff  with  prevention and  intervention tools to address incidents of bullying and harassment; school and community  surveys  or other strategies  for determining the conditions contributing to the relevant behavior;
• adoption of research-­based, systemic harassment prevention programs;
• modification of schedules;
• adjustment in hallway traffic and other student routes of travel;
• targeted use of monitors;
• staff professional development;
• parent conferences;
• involvement of parent­-teacher organizations; and
• peer support groups

The Dignity Act represents an important further step in protecting student rights and the prevention of bullying.   Federal courts  have already recognized the right of students with disabilities to be free from peer harassment and bullying, when a school district is deliberately indifferent and the harassment causes loss of educational opportunity.  In K.M. v. Hyde Park Central School District, 381 F.Supp.2d 343 (S.D.N.Y 2005), the United States District Court for the Southern District  recognized that school districts could face liability for peer harassment based on a student’s disability, in the same way as for peer sexual harassment.   In the K.M. case,  a 13-year-old eighth grade student,  was the victim of repeated instances of being called “stupid,” “idiot,” “retard” and other “disability-related insults” and acts of “physical aggression” and intimidation (all by other students) while in school and on the school bus.  He was physically beaten and his school books were thrown into the garbage in the cafeteria between 5-8 times.   The court held that “a school district’s deliberate indifference to pervasive, severe disability-based harassment that effectively deprived a disabled student of access to the school’s resources and opportunities would be actionable under Section 504 and Title II.”  In addition, the parent in this case filed for a hearing for tuition  reimbursement, based on the denial of a free appropriate public education, and the IDEA claim settled out of court.
Parents must know that they have powerful legal tools at their disposal. However, ideally, before bullying or harassment reaches a crisis point, school districts and parents should work together to prevent bullying and, if it occurs, stop it early.  Parents should expect teachers to closely supervise students and to address any bullying promptly.  Parents also play a crucial role in preventing bullying.  Particularly for students with disabilities who may not be able to speak for themselves about bullying or understand it, parents must be proactive and protective.  If you notice signs of withdrawal and anxiety in your child, ask your child about what is happening in school.  Work with your child’s teacher(s) to get to the root of the problem.

Here are six steps to take to be proactive to learn how to address student bullying:

1. Review your school district’s Code of Conduct to ensure that it incorporates Dignity Act provisions. Also make sure the District has policies to incorporate Dignity Act provisions. Students must receive a plain language summary at the beginning of the school year and receive training at an assembly.

2.  Learn who the school’s Dignity Act Coordinator is. Ask about the above environmental remediations to prevent bullying and address it when it occurs.

3.  If your school district’s Code of Conduct does not address the requirements of the Dignity Act, you should alert the Superintendent and the Board of Education and expect action.

4.  If your child is the victim of bullying or you believe bullying has occurred, do not delay in reporting this to your school district, even if your child denies it or asks you not to.  If you fear your child will be retaliated against, you can ask for additional supervision.   First, report to the Dignity Act Coordinator.  Document your concerns and specific incidents in writing   If the school does not address your concerns, follow up.  Be relentless.

5.  Keep a log and journal and any physical evidence of bullying.

6.  Most importantly, support your child and make sure he or she receives any needed counseling or other support and that you address the problems immediately

For more information regarding bullying, or education, please visit www.specialneedsnewyork.com or www.littmankrooks.com.

Posted in Special Education Advocacy | Comments Off on The Dignity for All Students Act: A New Tool to Keep Student Safe
Tags: 381 F.Supp.2d 343 (S.D.N.Y 2005), board of education, bullying, disability, harassment, K.M. v. Hyde Park Central School District, new york state, new york state guidance, special needs, the dignity act, the dignity for all students act