It seems that several areas of special education and special education law are increasing in attention by the media, courts, parents and others. For example, bullying has been a hot topic for discussion within the past few years. Whether your child is in special education or not, bullying is a serious problem. I would say that more than one half of all parents that contact me will relate that their child has been subject to bullying by other students. In most cases, the bullying is more annoying to their children but in some cases bullying causes real harm and injury to students with disabilities. Unfortunately, courts have not responded favorably to parents suing school systems for bullying of the children. In the case of Muiskrat v. Deer Creek Public Schools, 715 F.3d 775 (10th Cir. 2013), the court addressed whether parents could seek monetary damages against the school system for placing their son in a time-out room on several occasions and for instances of physical abuse. The Court held that whether the school system violated the student’s rights under the Fourteenth Amendment to the United States Constitution, the force used must cause injury so severe and be so disproportionate to the need presented and was inspired by malice or sadism that it shocked the conscience. This standard is so high it can rarely if ever be met in a court of law. In Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013), parents sued the school system and assistant principal of a high school for failure to prevent bullying, physical threats, cyber bullying, and racial intimidation. The Court did not reach the merits of the case but instead held that public schools do not have constitutional duty to protect students from private actors arising from a “special relationship.” Compulsory school attendance does not create this special relationship. So even if the school system had an anti-bullying policy and failed to enforce it unless the parents can prove some level of deliberate indifference or perhaps bad faith and malice, the parents cannot sue for damages against the school system. Again this burden of proof is so high that most parents will be unable to meet it in most cases.
The School to Prison Pipeline is another hot topic for the media and press. The School to Prison Pipeline asks the question why so many students – especially minority students – are being suspended and expelled from school and then arrested and brought before juvenile courts for committing violation of school rules, policies and codes of student conduct. There is substantial evidence that minority students are being pushed out disproportionately from schools and into jails and prisons because of violation of school rules and policies. There are a number of ways to address the School to Prison Pipeline but this discussion is for another day. A closely related issue is the enforcement of Zero Tolerance school policies that disproportionately results in the suspension and expulsion of minority students. The enforcement of these policies means that schools will not tolerate violation of any school rule or violation no matter what the circumstances. Zero Tolerance has created absurd outcomes such as a female African American student in the Cobb County School System being suspended from school because she brought a Tweety Bird chain to school. The school system had a policy that prohibited bringing “chains” to school. Another example is a student being suspended because he brought a plastic knife to school to cut a birthday cake in his class. The school system had a policy that you cannot bring any kind of “knife” to school.
There are many other hot topics for discussion in the special education world. What topics would you like to see discussed?
