T HE B AD K ID F ORT JIM WALSH

8 TH P ERIOD : H ISTORY C LASS □Student had trouble “staying focused.” □This happened a lot, because the kid tended to complete his work early and then disrupted class. □Teacher talked to the “autism teacher” about the possible use of a study carrel. □Talked about this in class, and someone suggested using the Smartboard box.

D ECEMBER 6, 2012 □Student failed to comply with multiple reminders from the teacher to do his work. □So she created a “fort” with the Smartboard box and put the student in it. □She labeled it THE BAD KID FORT.

T HE F ORT □Teacher put a “roof” on it with cardboard planks. □Student could still see out of two-inch opening. He could see the teacher and the whiteboard, but not the other students. □“Bad Kid” was in the Fort for 15 minutes.

W HAT THE T EACHER S AID □Everyone made light of it. The kids were laughing, including the “bad kid.” □Didn’t place “bad kid” in fort because of his disability. □She threatened to put another kid in there and everyone laughed at that. □Should not have labeled it The Bad Kid Fort.

W HAT THE O THER K IDS S AID □“Bad Kid” was laughing about it at the time. □When the teacher threatened to add another student, “Bad Kid” said “No. It’s mine!”

W HAT THE P ARENT S AID □The boy was embarrassed. Teased. Called ugly names. Could no longer trust teachers. □This is child abuse. □This is harassment based on disability—it creates a hostile environment.

W HAT THE P RINCIPAL D ID □Investigated. Interviewed people. Took statements. Met with parent and others. □Concluded this was not child abuse and she would not report it as such. □At parent request, moved “Bad Kid” to another history class.

W HAT THE S UPERINTENDENT D ID □Apologized to the parent and student for the incident. □Suspended the teacher for five days without pay, even though the district’s “rubric” called for only a reprimand in such a case. □Ordered teacher to school-wide autism training.

A BOUT T HAT T EASING …. □The special ed teacher helped “Bad Kid” with strategies he could employ when teased. □The assistant principal met with the student who did the name calling. □There were no further incidents.

W HAT THE C HILD A BUSE A UTHORITIES D ID □Investigated. Took statements. Interviewed people. □Concluded that this was poor judgment— not child abuse.

A ND T HEN I T G OES TO OCR □“Inappropriate seclusion of a student by a recipient [of federal funds] staff person for conduct related to the student’s disability can constitute disability harassment that creates a hostile environment in violation of Section 504.” □Note the elements: 1)seclusion; 2)for conduct related to disability; 3)might amount to harassment/hostile environment.

D ISABILITY R ELATED ? □The teacher said this had nothing to do with the student’s disability, but the principal and the autism specialist both said that the disruptive conduct in the classroom was, in part, related to his disability. □OCR: “Thus, for purposes of this analysis, OCR assumes that the teacher directed her actions against the Student due to his disability.”

H OSTILE E NVIRONMENT ? □Student was laughing. No effect on grades. No mention of any exclusion from school activities. □OCR: but: 1)the teacher used her power; 2)regarding behavior related to disability; 3)added negative words; and 4)made “a spectacle of the Student in front of his peers”; and 5)then he got teased over it.

SO?SO? □OCR says the evidence shows that student was harassed based on his disability, and the district was aware of it. □Attention now turns to the district’s response. □Did the district investigate and take immediate, effective actions to eliminate harassment, prevent recurrence and remedy its effects?

W HAT THE D ISTRICT D ID R IGHT □“Thus, OCR’s investigation shows that the District promptly investigated the Complainant’s complaint and addressed the substance of her complaint.”

H OWEVER …… □“However, the District’s response was incomplete because it did not provide the Complainant with any notice of the outcome of her complaint.” □“Therefore, the District did not provide an adequate, prompt and equitable disability discrimination grievance procedure for the Complainant in violation of Section 504 and Title II” [of the ADA].

W HAT THE D ISTRICT H AS TO D O □Give written notice to parent of the outcome of the complaint. □Offer counseling/academic/therapy to student or reimbursement for such therapies already provided to deal with “the lingering effects” of the harassment. □Revise grievance procedures. □Provide written memo to all schools re: 504; annual restraint/seclusion training for all staff.

L ESSONS L EARNED □The district is not in violation of 504 because of the incident, but because of its response to it. □The response was very good, except for one thing. □The response must include notice to the parent of the outcome, taking into account privacy of student information and personnel actions.

R EVIEW Y OUR P OLICY □FB and FB Local is your basic 504 policy. □They may refer you to FFH for policies and procedures about complaints. □Make sure your policy includes a requirement that the school will give notice to the complaining party about the outcome of the investigation.

T HE C ASE □Wood County, West Virginia. □OCR Report dated August 27, □62 IDELR 187 (Special Ed Connection).

C ONTACT JIM WALSH Walsh, Anderson, Gallegos, Green & Treviño, P.C. P.O. Box 2156 Austin, Texas Phone: Fax: Web: Twitter: twitter.com/JWalshtxlawdawgtwitter.com/JWalshtxlawdawg

The information in this handout was created by Walsh, Anderson, Gallegos, Green and Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.