Legal Update: Schools Must Prevent Harassment
by Holly Swanson
As parents of special needs children know, navigating the ever-changing legal and educational world can be a challenge. Several recent court rulings could affect the state benefits that children are eligible for and the education they receive. Many of these changes vary by state.
The U.S. Supreme Court recently ruled in Schaffer vs. Weast that the burden of proof in challenging the effectiveness of a child’s Individualized Education Program (IEP) lies with the party questioning its adequacy. In most cases, this places the burden of proof with the child’s parents, but the ruling applies differently in each state.
Recently changed guidelines to the Individuals with Disabilities Education Act (IDEA) will also affect families in the Delaware Valley. One of the most notable changes in IDEA is the elimination of short-term objectives in a student’s IEP.
Without these objectives, critics argue, parents will be unable to track their child’s progress toward annual goals. But as states have the authority to implement or disregard these guidelines, the changes will not be universal.
In New Jersey, here are some of the most notable recent changes.
Anti-bullying Measure
In a December 2005 ruling, the New Jersey Appellate Court moved to protect students from ongoing harassment in schools. The case argued that the Toms River Regional School District did not do enough to protect a child who was being abused by his peers. Under the new ruling, a school district can be considered negligent in its response to student-initiated harassment.
Previously, a student had to prove that the bullying was severe, that it interfered with his ability to receive an education, and that the district knew about the abuse but chose to ignore it. Since the new ruling, a student who is harassed because she is in a protected class such as gender, race, or disability only has to prove that the school should have known about the abuse and did not take effective steps to prevent it from continuing.
“This decision has struck a major blow against harassment in schools,” says Jerry Tanenbaum, a partner specializing in education rights with the law firm of Schnader Harrison Segal & Lewis, LLP, with offices in Philadelphia and Cherry Hill, NJ.
“Children with disabilities, who studies show are the most likely targets of harassment in the schools, will be able to hold a school accountable for its inaction in the face of student-on-student harassment.”
Schaffer vs. Weast
New Jersey families may not be affected by the Schaffer ruling due to a 1989 state Supreme Court decision that determined school districts bear the burden of proof in all cases. The case concluded that while parents may request a review of an IEP, it is the school’s responsibility to prove that the IEP is appropriate.
However, the state legislature could adopt the Shaffer approach and move the burden on the questioning party.
For more on Schaffer vs. Weast, see www.supremecourtus.gov/opinions/05slipopinion.html
IDEA 2004
New Jersey has pre-existing regulations that require the development of short-term objectives in a student’s IEP. The state could, however, choose to follow IDEA and eliminate those requirements. Discussions are currently underway to decide which approach to take.Among other issues, New Jersey special education advocates are concerned about a new IDEA proposal allowing an IEP to remain in effect for three years, compared to the current length of one year. Although this measure is expected to reduce time and paperwork, some fear this will also make it more difficult to track a child’s educational progress.
“Even though the federal obligations have been lowered to the detriment of children, New Jersey, in many instance, is not obligated to implement similarly lower protection for children,” Tanenbaum says.
“There is room for New Jersey to provide additional protection to children with special needs beyond the federal floor by keeping the original regulations in place or by adding more protective measures. Parents and others who care for these children should contact the Department of Education regarding the proposed changes, like the elimination of short-term objectives.”
The New Jersey Department of Education is hosting public forums to discuss the proposed regulations through mid-March before deciding upon their implementation.
For more on the regulations, see www.picofnj.org/leg_news.html
Holly Swanson is a freelance writer.