Thursday, November 16, 2017

Physical Restraint and Seclusion I

With a few changes to conceal their identities and the written permission of a couple who became my clients, I am posting the first parts of our initial email exchange.

Dear Ms. Richard:  My daughter is a first grader who was diagnosed with autism when she was three. She attends [School Name] in [Town Name], Iowa. She is terrified of loud, unexpected noises. This is in her IEP and each month her teachers are supposed to prepare on the day of each month when the emergency sirens are tested and help her put on sound-cancelling headphones. Yesterday I received a call from the school principal. He told me that toward the end of music class, my daughter was given a “time out.” When I asked what happened, the principal told me a new paging system was activated before installation was complete, and made a loud noise that made everyone jump. He said my daughter covered her ears, closed her eyes, curled up in a ball, and screamed for over two minutes. She was still curled up in a ball with her eyes closed and ears covered when her classroom teacher came to take the children back to their classroom. When she would not line up, an associate was called, who put her in some kind of a hold and carried her to the time out room. The principal said this was the first time they “ever had to close the door on her,” and that he was “really surprised because usually when they put her in there, they just have an associate sit in the doorway to keep her from leaving,” but this time she began loud crying and trying to crawl out under the chair. No one has ever said or written anything to us about using time outs with our daughter. Before I could say this, the principal said he had to get going and hung up. My wife told me that when she picked up our daughter from school, she was shivering, and had wet panties and leggings. This morning my daughter refused to eat breakfast or get dressed. She was shaking and hanging on to her mother and saying she didn’t want to go to school. They stayed at home and I went to the school to find out what was going on. When I went to the school office, the principal gave me a “Restraint and Confinement” report which said what he told me the day before, and showed that the time out was 25 minutes long. The principal showed me the “time out” room which turned out to be a bare room, about 6’ x 7,’ with cement block walls. My first thought was that it looked like a prisoner containment cell in a war zone. A cage was installed over a dim light bulb. The door had 8 x 12 reinforced window installed higher than my daughter’s head. The vinyl baseboard had been torn off in places, the room probably hadn’t been painted since the school was constructed, and on the floor tile there was a dried pool of urine. It took every ounce of the self-control I developed in the [Branch of the Military] to get out of the school building without losing my temper. My wife and I want to know if it is legal in Iowa for schools to do this. . . .

Dear [Parent], Under the facts you have provided, it sounds like your child’s school is using seclusion, a method of discipline that is not supported by research, in an unreasonable manner that is prohibited by Iowa’s regulations that govern public education. Restraint and seclusion trigger strong emotions, including fear and loss of control. They increase the child’s anxiety, decreasing the child’s ability to manage behavior, thus increasing future problematic behavior. Restraint and seclusion should only be used as a last resort when less-restrictive measures have failed or aren’t possible, and physical safety or destruction of valuable school property is at severe risk. Iowa’s regulations prohibit school employees from using physical restraint and seclusion to punish minor infractions. The Iowa Department of Education gave a few examples of minor incidents in a decision issued May 30, 2017,
 stating that “minor infractions” include “stepping out of a line of students, having an “attitude, being out of instructional control, foul language, and saying ‘I’ll kill you’ without having the means to do so.”

Because your daughter has an IEP, this matter is addressed by state and federal special education laws. The Individuals with Disabilities Education Act (IDEA), the federal law that provides states with some of the funds for special education, requires that children eligible for special education receive “free appropriate public education (FAPE).” One of the requirements for a FAPE is an education consistent with state standards. These standards include state regulations governing the use of restraint and seclusion. In Iowa, a student is secluded if the child is confined in a room or some other enclosure from which the child’s egress is restricted. See Iowa Admin. Code r. 281—103.6. This rule does not require that a child’s egress be restricted by a closed door; a child is also secluded when the child’s egress is restricted by a staff member sitting in the seclusion room’s doorway. . . .

Saturday, November 11, 2017

Pre-determined IEPs

“A ‘one size fits all’ approach to special education will not be countenanced by the IDEA.”

–  Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 859 (6th Cir. 2004).

            Some school districts invest in a program and make the mistake of using that program exclusively for students with IEPs who appear to have similar learning issues. However, this is exactly what a school district should not do. A school district is not entitled to decide that because it has a program, that the program will always be appropriate to address the unique learning needs of a particular child.

            A school district violates the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C.S. § 1400 et seq., procedures if the IEP Team independently develops IEP without meaningful parental participation, presents it to the parent using a "take it or leave it" position.  If it does so, then even the parents' decision not to cooperate with the IEP may not excuse the district's error. See Ms. S. ex rel. G v. Vashon Island Sch. Dist., 337 F.3d 1115, 1118 (9th Cir. 2003).

            Predetermined IEPs violate at least two key requirements of the IDEA: (1) that special education and related services meet the unique needs of a child with a disability (see §§1401(26), (29)), and (2) the right of parents, as full members of the IEP team to have meaningful opportunity to participate in the development of the IEP.

            A free appropriate public education (FAPE) as defined by the IDEA, includes both “special education” and “related services.” §1401(9). “Special education” is “specially designed instruction . . . to meet the unique needs of a child with a disability”; “related services” are the support services “required to assist a child . . . to benefit from” that instruction. A State covered by the IDEA must provide a disabled child with such special education and related services “in conformity with the [child’s] individualized education program,” or IEP. §1401(9)(D). See  Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017). The IEP is “the centerpiece of the statute’s education delivery system for disabled children.” Honig v. Doe, 484 U. S. 305, 311 (1988). 

            Predetermination can deprive parents of a meaningful “opportunity to participate in the formulation process.” M.M. v. Lancaster Cty. Sch., 702 F.3d 479, 488 (8th Cir. 2012) quoting Lathrop R-II Sch. Dist. v. Gray, 611 F.3d 419, at 24 (8th Cir. 2010).  A comprehensive IEP prepared by a child’s “IEP Team” (which includes teachers, school officials, and the child’s parents), must be drafted in compliance with a detailed set of procedures. See Endrew F. at 994 citing 20 USC §1414(d)(1)(B). These procedures emphasize collaboration among parents and educators and require careful consideration of the child’s individual circumstances. See Id. Citing 20 USC §1414. The IEP is the means by which special education and related services are “tailored to the unique needs” of a particular child. See Id.  citing Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 208, (1982) (“Congress sought to protect individual children by providing for parental involvement . . . in the formulation of the child's individual educational program.”).       

            Federal courts have that predetermined IEPs have violated the IDEA in a number of cases.  For example, in Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840 (6th Cir. 2004), the court found that the school district  “clearly” had an unofficial policy of refusing to consider the Lovaas ABA program for autistic children and that its staff attended IEP meetings already having predetermined that they would use the that program for all children with autism. Likewise, in  W.G. v. Bd. of Tr. of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir. 1992), superseded by statute on other grounds, as recognized in R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932 (9th Cir. 2007), the school district proposed an IEP that would place a student in a preexisting, predetermined program. At the IEP meeting, the special education teacher advocated use of the Scott Foresman Focus Program, and did not consider alternatives to that program despite the objections of the parents, who later testified that the district asserted  a "take it or leave it" position at the meeting.  

Thursday, October 19, 2017

Who is Required to Attend an IEP Meeting?

Question:  At a recent IEP meeting, both the special education teacher and general education teacher left after 15 minutes. As a result we couldn't finish the meeting agenda.  Does Iowa law say anything about this?

Answer:  Yes.

The school district must ensure that the following members of the IEP team attend the meeting:

a.  At least one parent of the child;
b.  At least one regular education teacher of the child;
c.  At least one special education teacher of the child;
d.  A representative of the school district who:
     (1) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
      (2) Is knowledgeable about the general education curriculum; and
      (3) Is knowledgeable about the availability of resources of the school district.
e. An individual who can interpret the instructional implications of evaluation results, who may also be the same person as the person described in b-f.
f. At the discretion of the parent or school district, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate.

Congress felt so strongly about the attendance of these people at IEP meetings that the IDEA and its implementing regulations require that if the IEP Team will discuss or modify any part of a child’s IEP related to the area of expertise of the Team member seeking to be excused, that before the parent makes written consent to excusing that member, the school district must first:

a.  fully inform the parent IN ADVANCE OF THE MEETING of all information relevant to the excusing the specific type of person,
b.  make sure the parent consents in writing to the excusing the required person, and the consent identifies the specific meeting for which the excuse applies.
c.  make sure the parent understands that granting of consent is voluntary and may be revoked at any time.

If a meeting involves a matter in an IEP team member’s area of curriculum or related services, that member may not be excused from any part of an IEP meeting unless:
1.  the parent, in writing, and the public agency both consent to the excusal; and
2.   the member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting.

See Iowa Admin. Code r. 281-41.321.

Wednesday, September 27, 2017

Playground Accessibility

I recently took my niece to play at a newly constructed elementary school playground. I noticed that much of the engineered wood fiber (EWF) had been kicked out of the areas below the swings, climbing equipment and slides. The EWF seemed fluffy” and not at all compacted. As I crossed the drifts and ruts in the playground’s surface, I was glad I was wearing sturdy laced athletic shoes. 

While watching my niece, I sat on a bench and visited with a mother whose 9 year old son who was seated next to her in a wheel chair. While we talked, she kept an eye on her 7 year old son and his friend who were running across the ramps of the colorful playground structure. She told me that she wished her 9 year old  could also enjoy the playground, but that despite his good upper body strength, he cannot wheel his chair across the wood chip surface without becoming stuck after a few feet. She said that she can no longer carry him to the swings, or take his wheelchair to the ramp of the playground structure, then carry him to his wheelchair. I explained to her that the Americans with Disabilities Act requires that school playground surfaces be accessible to children who use wheelchairs and the adults who supervise them.  I further explained that a complaint could be filed with the U.S. Department of Education Office of Civil Rights or the U.S. Department of Justice Disability Rights Section to enforce her son’s right to an accessible playground surface.

Here’s a quick explanation of the ADA law that applies to school playground surfaces, and some information about how find out about the installation and maintenance required in order for a particular EWF playground surface to be “ADA compliant.”

Applicable Law

Title II of the Americans with Disabilities Act (ADA) is a statute that prohibits nondiscrimination on the basis of disability by state and local entities including public schools.  It provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 

The ADA’s implementing regulations require each newly constructed or altered facility to be readily accessible to and usable by individuals with disabilities. State and local government facilities must follow the requirements of the 2010 Accessible Design Standards. 

A school playground that has been altered or newly constructed on or after March 15, 2012, must comply with sections 1008.2.6.1 and 1008.2.6.2 of the 2010 Accessible Design Standards.

1.  Section 1008.2.6.1 of the 2010 Standards addresses access for children with mobility disabilities and for adults who cross the playground to supervise children. It requires the playground ground surface to comply with ASTM F 1951 at the time of installation and throughout the life of the playground. The playground surface under and around play equipment must also comply with ASTM F 1292. 

2.  Section 1008.2.6.2 requires that playground surfaces comply with the shock-absorption standards set out in ASTM F 1292 from the time of installation throughout the life of the playground, and requires a school district to close any noncompliant playground until it is brought into compliance.

How to find out what is required in order for an EWF playground surface to be “ADA compliant?”

1.  Obtain from the school district the name. manufacturer and vendor of the EWF product used on the playground. 

2.  Go to the website of the manufacturer or vendor and download the ASTM lab test reports for the product. Sometimes these are called “wheelchair” and “head impact” reports.

3.  Read the lab test report to find out the conditions under which the EWF was tested and passed its tests for accessibility and "impact attentuation" (shock absorption).  The product must be installed and maintained in accordance with those conditions in order to comply with ASTM F1292 and F1951.  

Note:  All of the EWF product lab reports I have read state that the product complies with ASTM F 1292 and ASTM F 1951 only if it is installed in four inch layers and compacted between each layer until a 12 inch compacted depth is achieved.  

Wednesday, August 20, 2014

Closed Courses -- In High School?

Since mid-July, I’ve been fielding phone calls from parents asking why their children, who are enrolled in small and medium size Iowa public school districts, have been unable, for two or more years, to enroll in courses at their high schools that are state-required for graduation.  They ask, “If these courses are required, how can they be closed?”

Many of these parents are shocked when I explain that although the Iowa Administrative Code sets out the specific course credits that students must complete to earn a diploma, Iowa Law does NOT require public high schools to offer more than one section of those courses per school year.
Students in Iowa’s large school districts generally encounter few, if any, scheduling problems that interfere with completion of required graduation credits.  However, in order to complete their required accredited graduation credits, some students in some small and medium districts must enroll in online (“distance learning”) courses (see e.g., ), or to enroll in courses offered at regional centers (see, e.g., Linn County Regional Center, at ). In regard to the second option, on the condition that students pass such courses, some school districts underwrite the cost of tuition and transportation. 

Iowa Code § 275.1 requires the state’s area education agency boards to develop detailed studies and surveys of the school districts within their respective areas for the purpose of providing for reorganization of school districts in order to effect more economical operation and the attainment of higher standards of education in the schools.   If those agencies are not doing so now, as a part of their duties under Iowa Code § 275.1(2), they should be investigating the extent to which school districts are  restricting the number of seats available annually in core graduation courses. 

The experience of taking courses online or at regional centers is not equivalent to taking the same courses in a high school.  Students taking courses that originate beyond their school districts are burdened with a host of logistical,  adjustment, and sometimes economic issues, that include, but are not limited to:  additional registration requirements, different and additional requirements of online or regional center instructors, a possible lack at home of a computer and Internet connection sufficient to work on courses at home, a lack of available computers at the school to work on online courses during school hours, and a loss of significant amounts of time spent riding buses or otherwise commuting to and from a regional center site (often returning after dark).   

And if this isn't difficult enough, in the context of these courses, what happens to the provision of accommodations and services required by some students’ IEPs and 504 plans?  

Tuesday, August 5, 2014

2014 Iowa State Bar Association Juvenile Law Conference Presentation on Bullying and Students with Disabilities.

This is the text of the handout from my presentation.

Students with Disabilities and Bullying
Mary M. Richard

          When I was around seven years old, while walking home from school in Dallas Center, Iowa, a “big kid” and his buddies followed me on their bikes, calling out, Little girl, ohhh little girrrrlll.  As I approached the Hall & McDonald Law Office, they got off their bikes and the “big kid” began yanking my ponytail. I shouted at him to stop it.  Much to the boys’ surprise, out of the law office bolted my father, John McDonald, who, at that time, was the Dallas County Attorney and a member of the local School Board.  I was never bullied again.  Every child who is bullied should be so lucky. 

1.       Iowa’s Anti-bullying, Anti-harassment Statute

          In 2007, the Iowa General Assembly passed legislation requiring all school districts and accredited nonpublic schools to have anti-harassment/anti-bullying policies, make bully complaint forms available to victims, put investigative procedures into place, and collect and report data from those reports to the Iowa DOE.[1]  The statute defines  harassment and bullying as:

[A]ny electronic, written, verbal, or physical act or conduct toward a student which is based on the student's actual or perceived age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status, and which creates an objectively hostile school environment that meets one or more of the following conditions:
(1)  Places the student in reasonable fear of harm to the student's person or property.
(2)  Has a substantially detrimental effect on the student's physical or mental health.
(3)  Has the effect of substantially interfering with a student's academic performance.
(4)  Has the effect of substantially interfering with the student's ability to participate in or benefit from the services, activities, or privileges provided by a school.

            During the 2011-2012 school year, 10,797 bullying complaints were filed by students, parents, and school personnel.[2] The following table summarizes the complaints by bullying category and consequences to perpetrators.[3]


 No conse-quences
One or more full days of in-school suspen-sion


>10 days out of school suspension or expulsion

Less than or equal to 10 days out-of-school suspension

Conse-quences under another school policy


Physical Attributes
Real or
Sexual Orientation

            Although this summary does not identify how many of the complaints involved students with disabilities, there should be no doubt that the students involved in these complaints included students with disabilities.

2.       Research on Students with Disabilities and Bullying
            Students with disabilities are more frequently bullied than their nondisabled peers.[4]  Researchers investigating bullying in U.S. schools have consistently found that students with a disability, whether visible or nonvisible, are bullied more frequently than their nondisabled peers.[5] Students with disabilities that cause significant social skills deficits are at the greatest risk for bullying.[6]  One study found that four factors are predictive of a student being bullied:  (1) receiving extra help in school; (2) being alone at recess; (3) having fewer than two friends; and 4) being male.[7]  Students with disabilities receive extra help in school, and are often less popular and have fewer friends.[8]  A study of students with learning disabilities found that they were threatened, assaulted, and had their possessions taken away from them more often than nondisabled students.[9]   

          Bullying increases the struggles peer rejection and loneliness of many students with disabilities, and increases the likelihood they will become bullies themselves.[10]  Some disabilities give rise to behaviors (e.g., impulsivity, aggression) that are characteristic of nondisabled students who bully others.[11]  Students with psychiatric and neurobiological disabilities characterized by impulsive and aggressive behaviors indicate that these students are more prone to use aggressive behaviors in response to victimization.[12]  

3.       The Legal Landscape:  Rocky Terrain

·         Iowa’s anti-bullying statute has given many parents false hope that they can use the law to compel their school district to take specific steps to end the bullying of their children, however it contains no right of private action.

·         Iowa’s Municipal Tort Claims Act[13] often immunizes teachers and administrators from parental claims that they were negligent in failing to protect students against bullying, or put an end to the bullying.

·         Neither the Individuals with Disabilities Education Act (IDEA),[14] Section 504 of the Rehabilitation Act of 1973,[15] nor Title II of the Americans with Disabilities Act[16] authorize claims against school officials in their individual capacities.[17]

·         Iowa’s Rules of Special Education don’t require that when a student has a disability that affects social skills development, or is otherwise vulnerable to disability-related bullying, harassment or teasing, the IEP team proactively set out services in the IEP, to teach the skills and proficiencies the student needs to assist him or her in avoiding and responding to bullying, harassment or teasing, nor are schools  required to take proactive steps to protect students with disabilities from harassment by classmates.[18]

·         Generally speaking, before a district court may exercise subject matter jurisdiction over an IDEA case, parents must first exhaust their administrative remedies.[19]

·         Money damages are not available under the IDEA.[20]

·         When bullying has caused a student with a disability serious and long-lasting injury, state and federal laws limit their means of redress, and the courts have set a high bar for recovery.

·         Even if a parent obtains a legal remedy in the courts, it may come long after the harm has been done.

4.       The Legal Landscape:  Tillable Acreage

·         In Tinker v. Des Moines Independent School District, the U.S. Supreme Court stated that students have a right "be secure and to be let alone" in school.[21]

·         With respect to whether bullying is an exercise of free speech, the Tinker Court ruled that the proper test is whether the student's expression created a material or substantial disruption of school work or infringed on a student's right to be let alone.[22]

·         The Third Circuit has announced: "there is no constitutional right to be a bully" and "Intimidation of one student by another, including intimidation by name calling, is the kind of behavior school authorities are expected to control or prevent."[23]

·         The Ninth Circuit has stated:  "Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses. As Tinker clearly states, students have the right to be secure and to be let alone. Being secure involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society."[24]

·         Several U.S. district and circuit courts have held that bullying of students with disabilities may amount to a failure to provide a free and appropriate education (FAPE).[25]

·         In T.K. v. New York City Department of Education, ruling in favor of parents whose daughter with learning disabilities had been bullied, the federal district court announced: “The rule to be applied is 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 the 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,”[26]

·         For well over a decade the U.S. Department of Education has been advising schools of their obligations, and possible liability under federal laws for disability harassment. [27]

·         In cases where harassment is known to school staff, the school is deemed to be on notice of the conduct and is required to investigate all related incidents that, taken together, may constitute a hostile environment.[28] 

·         Bullying conduct need not be outrageous to constitute a deprivation of rights of a disabled student; it is not necessary to show that it prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education.[29]

·         Where a student is abused repeatedly and suffers other indignities, and the school does nothing to discipline the offending students despite its knowledge of their actions, the student has been deprived of substantial educational opportunities.[30]

·         School districts violate federal civil rights statutes enforced by the U.S. Department of Education, when peer harassment creates a hostile environment and the harassment is tolerated, not adequately addressed, or ignored by school employees.[31]

·         “When disability harassment limits or denies a student's ability to participate in or benefit from an educational institution's programs or activities, the institution must respond effectively. Where the institution learns that disability harassment may have occurred, the institution must investigate the incident promptly and respond appropriately."[32]

·         “Conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of rights of a disabled student. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment.[33]  Where a student is verbally abused repeatedly and suffers other indignities such as having his property taken or is struck by his fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities.”[34]

          When parents of a student with an IEP believe that bullying is interfering with their student’s access to a free and appropriate education (FAPE)[35] pursuant to the IDEA, they should file a bully complaint with the school district, and call a meeting of the student’s IEP team.  If are not satisfied the responses, if any, they may receive, the IDEA’s procedural safeguards[36] provide them with the right to seek relief in the form of corrective action by requesting special education mediation[37] and/or a due process hearing.[38] 
          On the other hand, when parents of a student with an IEP are advised by school personnel that their child has engaged in bullying behavior, the parent should probably  request a meeting of the IEP team to discuss the behavior.  The next section of this syllabus applies when parents are notified that their child has been identified as a bully in a bullying complaint and may face suspension or expulsion.

[1] See Iowa Code § 280.28(2).
[2] Iowa Department of Education, Planning, Research, Development and Evaluation. Anti-Bullying by District (Public and Nonpublic) by Consequence, State Summary 2011-2012.
[3] Id.
[4] See Young, J., Neeman, A., & Gelser, S. Bullying and Students With Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011), http://www.stop conference/index.html; Glew, G.M. (2005). Bullying Psychological Adjustment, and Academic Performance in Elementary School. Archives of Pediatric and Adolescent Med., 159, 1026, 1026; Secunda, P.M. (2005). At the Crossroads of Title IX and a New “IDEA”: Why Bullying Need Not Be A Normal Part of Growing Up for Special Education Children, 12 Duke J. Gender L. & Pol'y 1, 4; Carter, B.C. & Spencer, V. G., (2006).The Fear Factor and Students With Disabilities. Int'l J. of Special Educ., 21, 12-21.
[5] See Young, J., Ne'eman, J., & Gelser, S. Bullying and Students With Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011).
[6] See Glew, G.M. (2005). Bullying Psychological Adjustment, and Academic Performance in Elementary School. Archives of Pediatric and Adolescent Med.159, 1026, 1026; Weber, M.C. (2002). Disability Harassment in the Public Schools, 43 Wm. & Mary L. Rev. 1079, 1090; Snyder, J. (2003). Observed Peer Victimization During Early Elementary School: Continuity, Growth, and Relation to Risk for Child Antisocial Depressive Behavior, Child Dev., 74, 1881, 1885.
[7] Id., See Carter, B.C. & Spencer, V. G., (2006).The Fear Factor and Students with Disabilities. Int'l J. of Special Educ., 21, 14.
[8] See Carter, B.C. & Spencer, V. G., (2006).The Fear Factor and Students With Disabilities. Int'l J. of Special Educ., 21, 12-21; Young, J., Ne'eman, J., & Gelser, S. Bullying and Students with Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011) (stating that many students with disabilities have significant social skills challenges, either as a core trait of their disability or as a result of social isolation due to segregated environments and/or peer rejection. Such students may be at particular risk for bullying and victimization.).
[9] Id., See Carter, B.C. & Spencer, V. G., (2006).The Fear Factor and Students with Disabilities. Int'l J. of Special Educ., 21, 18.
[10] See Carter, B.C. & Spencer, V. G., (2006).The Fear Factor and Students with Disabilities. Int'l J. of Special Educ., 21, 12-21; S. M., Espelage, D. L., Vaillancourt, T., & Hymel, S. (2010). What can be done about school bullying? Linking research to educational practice. Educational Researcher, 39(1), 38-47; Ne'eman, J., & Gelser, S. Bullying and Students With Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011);
Swearer, S.M. & Espelage, D.L. & Napolitano, S.A. (2010). Bullying Prevention and Intervention. Francis: New York; Nansel, T. R. (2004). Cross-national Consistency in the Relationship Between Bullying Behaviors and Psychosocial Adjustment, Archive of Pediatric and Adolescent Med. 730, 733-35; Van Cleave, J., & Davis, M. M. (2006). Bullying and peer victimization among children with special health care needs. Pediatrics, 118, 1,212-1,219.
[10] See Ne'eman, J., & Gelser, S. Bullying and Students With Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011); Van Cleave, J., & Davis, M. M. (2006). Bullying and peer victimization among children with special health care needs. Pediatrics, 118, 1,212-1,219.
[11] See Van Cleave, J., & Davis, M. M. (2006). Bullying and peer victimization among children with special health care needs. Pediatrics, 118, 1,212-1,219.
[12] See Kumpulainen, K., Räsänen, E., & Puura, K. (2001). Psychiatric disorders and the use of mental health services among children involved in bullying. Aggressive Behavior, 27, 102-110.; Van Cleave, J., & Davis, M. M. (2006). Bullying and peer victimization among children with special health care needs. Pediatrics, 118, 1,212-1,219; Kaukiainen, A., Salmivalli, C., Lagerspetz, K., Tamminen, M., Vauras, M., Maki, H. (2002). Learning difficulties, social intelligence, and self-concept: Connections to bully-victim problems. Scandinavian Journal of Psychology, 43, 269-278; Unnever, J. D., & Cornell, D. G. (2003). Bullying, self-control, and ADHD. Journal of Interpersonal Violence, 18, 129-147; Whitney, I., Smith, P. K., &Thompson, D. (1994). Bullying and children with special educational needs. In P. K. Smith & S. Sharp (Eds.), School Bullying: Insights and Perspectives, 213-240).
[13] See Iowa Code § 670.4(3). But see, Doe v. Cedar Rapids Cmty. Sch. Dist., 652 N.W.2d 439, 446 (Iowa 2002) (“The School had an affirmative duty to take all reasonable steps to protect its students. In protecting its children, a school must exercise the same care toward them ‘as a parent of ordinary prudence would observe in comparable circumstances.’" (citations omitted)).
[14] 20 U.S.C. 1400 et seq.
[15] 29 U.S.C. § 701 et seq.
[16] 42 U.S.C. §§ 12131–12165.
[17] See Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999), cert. dismissed, 529 U.S. 1001, 120 S. Ct. 1265, 146 L. Ed. 2d 215 (2000).
[18] Iowa has not joined the states that have enacted legislation recognizing that IEPs should take into account that students with disabilities are at high risk for being bullied. See e.g., Mass. Senate No. 2404 (2010), codified at § 71B.3 of the General Laws of the Commonwealth of Massachusetts (stating: “Whenever the evaluation of the Individualized Education Program team indicates that the child has a disability that affects social skills development or that the child is vulnerable to bullying, harassment or teasing because of the child's disability, the Individualized Education Program shall address the skills and proficiencies needed to avoid and respond to bullying, harassment or teasing.”).
[19] See 20 U.S.C. §1415(f). A few courts have held that under the circumstances of specific bullying cases, the parent did not need to exhaust administrative remedies before taking their case to district court. See, e.g., Blanchard v. Morton Sch. Dist. 420 F.3d 918 (9th Cir. 2005).
[20] See Miener v. State of Missouri, 673 F.2d 969 (8th Cir.).
[21] 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969).
[22] 393 U.S. at 508, 512-13.
[23] Sypniewski v. Warren Hills Reg.l Bd. of Educ., 307 F.3d 243, 264 (3d Cir. 2002). 
[24] Internal quotations and citation omitted. Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1178 (9th Cir. 2006).
[25] See e.g., T.K v. New York City Department of Education, 779 F.Supp.2d 289 (E.D.N.Y, 2011); Shore Regional High Sch Bd. of Educ v. P.S. 421, 381 F.3d 194, (3d Cir. 2004).
[26] T.K. v. New York City Dep't of Educ., 779 F. Supp. 2d 289, 316 (E.D.N.Y. 2011). (In which the court noted:  “[t]his standard does not impose a new obligation on schools. For at least ten years the Department of Education has informed schools that they are legally obligated to comply with it.”).
[27] U.S. Dep't of Educ. Bullying Law and Policy Memo, (Dec. 16, 2010); U.S. Dep’t of Educ., Reminder of Responsibility Under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (July 25, 2000). ("Where the institution learns that disability harassment may have occurred, the institution must investigate the incident(s) promptly and respond appropriately.")
[28] See U. S. Dep't of Educ., Office of Civil Rights, Dear Colleague Letter: Bullying and Harassment, (Oct. 26, 2010). (“A school is responsible for addressing harassment incidents about which it knows or reasonably should have known. In some situations, harassment may be in plain sight, widespread or well-known to students and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, on a school bus, or through graffiti in public areas. In these cases, the obvious signs of the harassment are sufficient to put the school on notice. In other situations, the school may become aware of misconduct, triggering an investigation that could lead to the discovery of additional incidents that, taken together, may constitute a hostile environment.”).
[29] See T.K. v. New York City Department of Education, 779 F.Supp.2d 289 (E.D.N.Y, 2011) (in which the parents of a 12-year-old girl with learning disabilities brought suit against the New York City Department of Education (NYCDOE), alleging that its lack of response to their repeated communications about the bullying, deprived their daughter of the right to a FAPE because the bullying caused their daughter to resist attending school, harmed her academic performance, and damaged her emotional well-being. The NYCDOE claimed that she was progressing academically and was therefore not adversely affected by bullying.  However, the federal district court found that the student had a right to be protected against abuse at school, that there was enough evidence to conclude that she was bullied, that the school knew about it and did not take reasonable steps to address the bullying, and that the student's educational benefits were adversely affected as a result of the bullying).
[30] Id.
[31] U. S. Dep't of Educ., Office of Civil Rights, Dear Colleague Letter: Bullying and Harassment, at 2 (Oct. 26, 2010).
(reminding schools that student misconduct that falls under the school’s anti bullying policy also may trigger the school’s responsibilities under one or more of the federal anti-discrimination laws enforced by the Department’s Office for Civil Rights that protect students from harassment by school employees, other students, and third parties]; see also U.S. Dep't of Educ. Bullying Law and Policy Memo, Dec. 16, 2010; Reminder of Responsibility Under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act, July 25, 2000.
[31] U.S. Dep't of Educ., Reminder of Responsibility Under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act. (July, 25 2000).
[32] U.S. Dep't of Educ., Reminder of Responsibility Under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act. (July, 25 2000).
[33] Id.
[34] Id.
[35] See 20 U.S. Code § 1412 and § 1415.
[36] See 20 U.S.C. § 1415.
[37] See 281 IAC § 41.1002.
[38] See 281 IAC § 41.508.