Bullying and the Gebser Letter

You probably know what bullying is. You may not know what a Gebser Letter is or what it does. Sit down, grab your cup of coffee and read on.

The Effects of Bullying

First things first. It is now widely accepted as fact that children with disabilities are more likely to be bullied than their neurotypical and able-bodied peers.  About 20% more likely, to be precise.  A study was performed by Chad Rose of the University of Missouri College of Education and Nicholas Gage of the University of Florida examining 6,500 students from K-12 during the years 2011-13.  Although the study did not include online bullying (which has now become more pervasive through social media), it found that students with disabilities were bullied more than other kids particularly in grades 3 through high school graduation.

More about the study can be found in this excellent article “Disabled children more likely to be bullied during school years, study says” by HealthDay News.  There is even more helpful information on the statistics on bullying and harassment of students with disabilities at the National Bullying Prevention Center’s website.

It is also now widely accepted that bullying negatively affects a student’s ability to learn.  It directly impacts that student’s education.  The U.S. Department of Education’s official blog published an article called “Keeping Students With Disabilities Safe from Bullying” that highlighted a 2013 Guidance Letter on bullying.  A year later, the USDOE’s Office of Civil Rights issued an even stronger Guidance on how schools should handle bullying.

What is a Gebser Letter?

In 1998, the U.S. Supreme Court issued its opinion in a case titled Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), in which Justice Sandra Day O’Connor wrote the opinion for a divided court.  The Court decided that under Title IX, you cannot sue a school district for damages for bullying or harassment unless you have notified a school official who has the ability to take corrective measures on the district’s behalf of the misconduct and the school district is “deliberately indifferent” to the notice.

Out of that case came the very simple concept of preparing a letter – a so-called Gebser Letter – to provide the proper notice to the school.  The only question was whether the school then acts with deliberate indifference to the conduct.

This case emphasizes our constant mantra in special education law – If it ain’t in writing, it never happened. Document everything!

We strongly urge you to consult with a lawyer on the proper format and language of a Gebser Letter and/or if your child has a disability and is the victim of bullying.  We have provided a form Gebser Letter in our packet of special education legal forms, which are FREE to download, but remember that these forms do not constitute legal advice and are not a replacement for consultation with a lawyer in your state.  But the letter could get the ball rolling for your child and you.

Free Special Ed Legal Forms on SchoolKidsLawyer.com.

You can also have a 30 minute consultation with us for $100 to discuss your child’s case.

 

Stop the Bullying Madness – That Means YOU, Parents!

On January 6, 2011, New Jersey Governor Chris Christie signed into law one of the toughest anti-bullying civil rights laws in the United States.  As with most laws, the creation of the law was the easy part.  The difficult part is the enforcement.  Most states have anti-bullying laws (some, like New Jersey apply to cyberbullying) but the training and implementation of those laws has been sporadic at best; ineffective at worst.

There continue to be events in which kids are committing suicide or having emotional problems because they are being bullied.  The old schoolyard bully who openly picks on a fellow student has gone by the wayside, primarily because such bullies have gotten smarter.  Now they have resorted to anonymous (or what they believe is anonymous) cyberbullying – texting or posting on social media – to intimidate other kids.

– There is the 12 year old Rebecca Sedwick who jumped off a building to her death because of incessant text bullying by her ex-boyfriend’s new girlfriend and a group of girls that Rebecca thought were her friends.  Thankfully the Sheriff arrested two of the girls responsible after they boldly and stupidly remarked about their involvement in the bullying and death of Rebecca. http://www.hlntv.com/article/2013/10/16/rebecca-sedwick-cyber-bullying-arrests

– Joel Morales, a 12 year old boy from Harlem committed suicide after relentless bullying. http://nymag.com/daily/intelligencer/2012/05/harlem-boy-commits-suicide-after-harsh-bullying.html

– In Buffalo, NY, 14-year-old Jamey Rodemeyer committed suicide after being consistently bullied at school.  http://cartersville.patch.com/groups/schools/p/bullying-in-america-reaches-home

There are so many of these incidents that this blog post could go on for pages.  It is disgraceful.

But there are plenty of laws on the books supposedly to prevent this.  Here is a great page (PDF file) that summarizes the various state laws on bullying: http://cyberbullying.org/Bullying-and-Cyberbullying-Laws.pdf

In my opinion, however, it is not laws that will stop bullying.  It is parenting.  Parents of both bullies and victims need to pay attention to their children and their activities and spot the signs of bullying.  In many of these cases, the parents saw some of the signs, but chose to ignore them with the age-old response of “kids will be kids.”  No!  Bullying is not kids being kids.  Bullying is a crime and it is hurtful.

So, parents and school personnel need to learn the signs of bullying, spot them, and do something about it.  Proactive.  I keep seeing commercials that tell kids to speak up about bullying.  Why are we putting the onus on kids who are in the most precarious of positions in the bullying scheme?  Why are we taking the pressure off of parents from being parents?  Parents of victims need to protect their children and, if need be, report it to the authorities and consider removing their child from the school environment if the school will not take action.

But my strongest admonition is for the parents of bullies.  YOU need to take responsibility and parent your kids.  This means discipline; this means controlling your child’s actions; this means teaching your children that bad actions, such as bullying, have bad consequences.  It is not an excuse to say you can’t control your children.  You are the adult; you are the parent.  You accepted that role the second you knew that you were going to have a child.  So you must examine your own actions, because bullies often beget bullies.  And, trust me, if I learn that one of my clients was bullied, I’m not just coming after the child who bullied my client – I’m coming after you, the parents too.

Let’s wake up and stop this bullying madness.  Please.  TODAY!

If anyone has a bullying problem, please contact my office for assistance.  Phone: 856-335-5291; Web: http://schoolkidslawyer.com; Email: info@schoolkidslawyer.com.

Robert C. Thurston, Esq.


Playing (and Winning) the School District’s Game of Chicken

[Appeared previously on Special Education Advisor blog]

Probably the most frustrating part of being the parent of a child with a different ability[1] is the response from the very organization you hoped you could trust the most to do right by your child – your school district.  After all, teachers and administrators are trained to adapt the teaching environment to help my child, right? (No.)  I pay my property taxes, so I should be able to control how the schools work, right? (You should, yes, but in reality you don’t.)

So what should I do when the school district won’t do what they are supposed to do for my child?

The answer to this is simple: learn how and why the school district plays a game of chicken with you, the parent, and how to win that game.

The Game of Chicken

You’ve probably witnessed or been in the game of chicken with your school district, but maybe didn’t even know it.  All you know is that your child is suffering and the school doesn’t seem to be doing anything to help.  Your child’s grades may even be failing.  Perhaps, worse, they may be doing harmful things to your child, like physically restraining him/her or locking your child into an isolation room or putting him/her in a classroom with bad behavior kids.  Your child is not a bad behavior child[2] because you have a diagnosis that says otherwise.

The game of chicken may also be occurring at any stage of the game – prior to your child’s diagnosis; before a 504 plan; before an IEP plan; and even after the IEP plan is in place.  Essentially, it appears to you as the parent as they just are doing nothing.  For example, you may be requesting an Independent Educational Evaluation (IEE) for your child, which is your right as a parent[3], but the school says that you have to use their panel of approved evaluators.  The school district is playing chicken to see (a) if you know your rights; and (b) whether you know your rights or not, you’ll fight hard enough to use your own evaluators rather than those the school says you must use.

Defining the Game of Chicken is easy enough: seeing if you, the parent, blink first and give up your fight.

It really has nothing to do with whether you’re right or wrong.  It has to do with whether you are prepared to fight for your child and your child’s rights or if you’ll give in either because you think the school district really has your best interests at heart or you don’t have the stomach or resources to fight to the end.  Usually, the school district wins this Game of Chicken.  Unfortunately, your child loses.

But you don’t have to lose the Game of Chicken.  All you need is some information and will power (sometimes, depending on how stubborn the school district is, you’ll also need a lawyer and some money).

Why a Game of Chicken?

First, let’s discuss why the school district plays this game.  You may have heard some of their excuses – “we don’t have this in the budget right now” or “we don’t have the resources to do this” or “do you know how many children with special needs we have to deal with?”  All of these are extremely lame (and invalid) excuses.  None of them are the REAL reason the school district plays the Game of Chicken.

The real reason the school district does this is . . . wait for it . . . they usually get away with it.  The longer they put off complying with the law, the more money they save the school district or the money can be directed at one of their existing programs, like school sports, etc.  The school district knows that most parents of special needs kids don’t know their legal rights or the requirements placed on the schools.  Thus, the parents don’t know that if they fight hard or long enough, the school district MUST comply or have to pay to send your child to another school district that can accommodate his/her needs.

Let’s go back to our example about the IEE.  You’ve done your research and found some qualified people to do the evaluation, but they aren’t on the school board’s approved list of evaluators.  The school district tells you, no, you have to use our list.  Not only are they wrong, but the school district has to pay for the evaluation by your IEE team, not you.[4]  Most parents will think to themselves, “Well, I want this done right, so I’ll just pay for the IEE out of my own pocket.”  You’ve just spent money you didn’t have to.

The truth is that the school districts must comply with federal and state laws and regulations on these issues and will only do so if really pushed by those who know their rights.  This is one reason that if you aren’t adequately informed and trained on handling special education matters, you need an advocate or lawyer who is on your side.  It will save you time and money while you’re in the game.

How to Win the Game

There are three key tips to winning the Game of Chicken for your child with special needs.  (1) Don’t back down.  (2) Know the rules.  (3) Focus on the goal.  You may think these sound pretty generic and apply to any game or sport and you’d be right.  That’s because they apply to the Game of Chicken just like they would apply to a soccer match.

1.   Don’t Back Down.

Tom Petty sings, “Hey, baby, there ain’t no easy way out . . . Hey, I, will stand my ground . . . and I won’t back down.”[5]  Make this your theme song.

As a 25 year veteran of the courtroom and numerous legal squabbles, I understand that confrontation is not everyone’s cup of tea and that it can be very intimidating.  You can feel that the cards are stacked against you.  And, in some ways, you’re right.  But laws have been enacted to level the deck and put more power on your side.

If you think of classic games of chicken, rule #1 in all of them is not to be the first to back down.  For example, there is the highly dangerous game of chicken people play with cars.[6]  Each person faces their car towards the other person’s car and begins driving towards a head-on collision.  The reality is that both sides know they don’t want to hit head-on and risk serious injury or death.  The key to the game is just to force the other driver to turn away first – in other words, be the chicken who backs down.

The example above shows you just how stupid this Game of Chicken is.  And it is no less stupid when a school district plays it with your child.  Again, a life is at risk – your child’s life and education.

You may be the type of person who doesn’t have the stomach to fight so hard.  But, always remember, this is for your child.  Would you jump in front of a car and push your child to the side of the road to save his/her life?  Of course you would.  So, if you’re willing to risk death to save your child, you need to have the same level of spunk when dealing with the school district.  On the plus side, you are not likely to risk injury or death sitting in a school meeting room.

Also, don’t feel a sense of guilt if you know you aren’t the kind of person who can fight like that.  Not everyone is.  I didn’t realize I was until several years into my legal career when I had to fight like crazy for my client.  After that, I knew I was the kind of person who could put up one hell of a fight, but I also realized that not everyone was cut out for that.

If you are not cut out for the big fight, you should consider hiring a professional – an advocate, an attorney, or an expert in special education.  This will involve some money, but in some cases you can get that money back.[7]  But a professional will know all the tricks in the Game of Chicken and is well-trained in the law and methods of advocacy to help you.  A professional will not back down.

2.  Know The Rules.

Read, read, read.  I realize that at a very stressful time, it is difficult to concentrate enough to read complex laws and information (one article I read had about 30 tips on what to do in IEP meetings).  But the better informed you are, the better you will do in the school district’s Game of Chicken.  You will be a better advocate for your child.

Imagine playing the game of Monopoly, but not knowing the rules.  You can probably guess that you’re supposed to roll the dice and move your piece around the board.  But what then?  Why are all these street names on the board?  Why do they have a dollar figure on them?  Why are there sets of the street names with the same color?  Why is there a jail?  How do I win this game?

You see how difficult it is to play and win the game of Monopoly not knowing the rules.  The same applies to special education and each step in the process without knowing your rights or the rules.  If you don’t know the rules in this Game of Chicken, the school district will win every time and your child will lose.

Knowledge is power and that is no less true here.  If you don’t have the time or ability to learn your rights on your own, hire a professional.  That is their job.

Even if you don’t hire a professional, don’t walk into that meeting without knowing the rules of the game.

3.  Focus on the Goal.

Like all sports and games, there are intermediate goals and ultimate goals.  For example in football, the intermediate goal is to get the football across the goal line or kick it through the uprights to get some points.  The ultimate goal in football is to have the most points when time runs out so you win the game.

The same holds true for the special education process for your child.  There are intermediate goals – get an evaluation; get a diagnosis; get an IEP plan; and have the school execute the IEP plan properly.[8]  The ultimate goal is to get your child a free and appropriate public education (FAPE).[9]

You need to focus on the intermediate goal that your child needs right now (or for the upcoming meeting).  That focus needs to clearly define where you are in the process for your child, what outcome do you need from this step, and how will this step help you in the next step.  Again, reading and knowledge will help you focus.

You also need to avoid distractions.  One distraction may be what I call “shooting the messenger”.  Since our daily contact in our student’s education is his/her teacher(s), you may blame one or more of those teachers.  It is a natural reaction, but it is a distraction.  Often, the teachers are not involved in the Game of Chicken.  Most teachers are well-meaning and truly want the best for your child.  There are always some bad apples in the bunch, but my experience has been mostly positive with the teachers.  It is the administrators and members of the school board that are the problem, because they are the bean counters – the ones who watch the budget and where money is spent in the district, especially for special needs.

So your focus needs to be not only on the goal, but also in who your opponent truly is in the Game of Chicken.   Part of that focus may be to learn who those people are – it could be the school principal, it could be school board members, it could be the school psychologist or therapist, or it could be the superintendent of schools.  It will depend on your individual school district and how it works.

Once you have your focus, you can stare straight into the eyes of your opponent and win the Game of Chicken.  You will be empowered by knowing that the school district will HAVE to blink first, as long as you follow the above 3 tips.

Best of luck to you and to your children!  My wish is that all parents of special needs kids who need some help in education win the Game of Chicken and those kids ultimately win the game of life!

 


[1] I try not to use the prefix “dis” for that word, because it doesn’t accurately reflect the truth about our kids or what is “normal”.

[2] Studies, like the one conducted in England (http://www.dailymail.co.uk/news/article-1079510/Children-broken-homes-times-likely-suffer-mental-troubles-says-Government-study.html), show that children from broken homes are more likely to have mental troubles, including behavioral problems.

[3] Individuals with Disabilities Education Act of 2004, 20 U.S.C. §1415(b)(1).

[4] See “Letter to Alice D. Parker,” Wrightslaw.com reprinted from U.S. Department of Education, Office of Special Education Programs, http://www.wrightslaw.com/info/test.eval.choice.osep.htm.

[5] Tom Petty, “I Won’t Back Down,” © Warner/Chappell Music, Inc., EMI Music Publishing.

[6] DO NOT EVER PLAY THE GAME OF CHICKEN WITH YOUR CAR!  This is only a stunt that is done in movies by professionals.

[7] 20 U.S.C. §1415(i)(3)(B)(i) and Fed.R.Civ.P. Rule 11.

[8] These are just a few goals.  There are more not listed here.

[9] FAPE or “free appropriate public education” refers to several laws that interact with each other, but the most important is Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794.  See http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html for more information.