1. National Educators Law Institute Buechler & Associates, P.C.
“THE SCHOOL’S RESPONSIBILITIES WHEN A STUDENT WITH SPECIAL NEEDS IS A SAFETY RISK” By
William M. Buechler
National Educators Law Institute
Buechler & Associates, P.C.

2. WHY DO WE HEAR SO MUCH ABOUT “BULLYING” AND “HARASSMENT TODAY?
School violence/suicide incidents
Technology expands a bully’s “arsenal”
“Anonymous” nature of communications
Increased legislative and media attention

3. Dak is the high school quarterback
Dak is the high school quarterback. He qualifies for sped as OHI with his ADD. As an act of hazing, he pulled down the freshman running back’s shorts during practice in full view of the varsity cheerleading squad. Zeke, the freshman running back, was humiliated. Unfortunately, this has happened six times. Tony R., the backup quarterback, finally had enough and reported the incident to the principal. Coach Garrett, who is also the PE teacher, gave Tony a “C” for the grading period since he broke the code of silence. How do we handle this mess?

4. “Bullying” defined
“Bullying” means engaging in written or verbal expression, expression through electronic means, or physical conduct that occurs on school property, at a school-sponsored or school-related activity, or in a vehicle operated by the district that:
Has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; or
Is sufficiently severe, persistent, or pervasive that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.

5. WHEN IS CONDUCT CONSIDERED TO BE BULLYING
Conduct will be considered bullying if:
It exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and
It interferes with a student’s education or substantially disrupts the operation of a school.

6. BULLYING POLICIES
The board of trustees of every district shall adopt a policy, including necessary procedures, concerning bullying that (check policy FFI):
Prohibits the bullying of a student;
Prohibits the retaliation against any person, including a victim, a witness, or another person, who in good faith provides information concerning an incident of bullying;

7. BULLYING POLICIES
Establishes a procedure for providing notice of an incident of bullying to a parent or guardian of the victim and a parent or guardian of the bully within a reasonable amount of time after the incident;
Establishes the actions a student should take to obtain assistance and intervention in response to bullying;
Sets out the available counseling options for a student who is a victim of or a witness to bullying or who engages in bullying;
Establishes procedures for reporting an incident of bullying, investigating a reported incident of bullying, and determining whether the reported incident of bullying occurred;

8. Zeke had finally reached his limit
Zeke had finally reached his limit. When Dak tried to pull his shorts down for the seventh time, this time during PE, Zeke turned around and knocked Dak upside the head. The two fought vigorously for a few minutes before the teacher broke them up. The student code of conduct calls for a mandatory placement in the DAEP for fighting. What do we do here?

9. BULLYING POLICIES
Prohibits the imposition of a disciplinary measure on a student who, after an investigation, is found to be a victim of bullying, on the basis of that student’s use of reasonable self-defense in response to the bullying; and
Requires that discipline for bullying of a student with disabilities comply with applicable requirements under federal law, including the Individuals with Disabilities Education Act (20 U.S.C. §1400 et. seq.).

10. NOTICE ISSUES
The district’s policies and any necessary procedures must be included:
Annually, in the student/employee handbooks
In the district improvement plan
The district’s website, to the extent practicable

11. George Bailey, an eighth grader with emotional disturbance, touched Mary Hatch and yelled out “Yuck, I’ve got girl germs”. He put an “X” on his hand so he wouldn’t get poisoned. Mary’s mom is quite upset and is threatening a lawsuit for sexual harassment. Will she succeed?

12. DEFINITION OF “HARASSMENT”
“Harassment” is defined as physical, verbal, or nonverbal conduct based on the student’s race, color, religion, sex, gender, national origin, disability, age, or any other basis prohibited by law that is so severe, persistent, or pervasive that the conduct:
1. Affects a student’s ability to participate in or benefit from an educational program or activity, or creates an intimidating, threatening, hostile, or offensive educational environment;
2. Has the purpose or effect of substantially or unreasonably interfering with the student’s academic performance; or
3. Otherwise adversely affects the student’s educational opportunities.

13. DEFINITION OF “SEXUAL HARASSMENT”
“Sexual harassment” of students is conduct that is so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school. Sexual harassment does not include simple acts of teasing and name-calling among school children, however, even when the comments target difference in gender. The District must reasonably respond to known student-on-student harassment where the harasser is under the District’s disciplinary authority.

14. Principal Jones received an anonymous text from a blocked number stating that JoJo, a sophomore LD student, is abusive toward Jordan, another student, and that she constantly harasses him in a sexual manner. How should the administration handle this?

15. INVESTIGATIONS Reports should be made ASAP
Investigations should maintain confidentiality to the extent possible
Reports should be reduced to writing
Interim action may be taken to prevent actions during investigation
Investigation may include interviews and written documentation
Should be completed within 10 business days, unless extenuating circumstances or need for a thorough investigation
MUST PREPARE A WRITTEN REPORT
Take appropriate action, if necessary
If complainant dissatisfied, grievance process is proper remedy.

16. TRAINING
All school staff should be trained to recognize bullying and harassment, how to address it, prevent it, and report it.
Likewise, students should be trained on the difference between conflict and bullying/harassment. They should also be trained on the campus procedures for reporting as a victim or witness.

17. PERPETRATOR OF BULLYING PLACEMENT
The board of trustees of a school district may transfer the student who engaged in bullying to:
Another classroom at the campus to which the victim was assigned at the time the bullying occurred; or
A campus in the district other than the campus to which the victim was assigned at the time the bullying occurred, in consultation with a parent or other person with authority to act on behalf of the student who engaged in bullying.

18. ADDITIONAL DISCIPLINE ISSUES
Bullying »»» Student Code of Conduct
Parents of victim/perpetrator must be notified within reasonable time
Victims allowed reasonable self-defense
Students should receive social skills training in addition to consequences
Counseling options must be provided to victims, witnesses, and perpetrators

19. SPECIAL EDUCATION/504 STUDENTS AND BULLYING
Follow the rules for manifestation determinations
Perpetrators should have FBAs and BIPs to address the behaviors
Victims should have counseling available and maybe social skills goals to deal with situations, particularly when bullying did not occur
FERPA applies when a parent demands names

20. VIDEO CAMERAS IN CLASSROOMS
In the 84th Legislative Session, Senate Bill 507 was signed into law on June 19, This bill, which added to Texas Education Code (“TEC”) § , relates to the placement and use of video cameras in self-contained classrooms or other special education settings.

21. INTENT OF THE LAW

22. IMPLEMENTATION ISSUES
Commissioner’s rules drafted in the spring of 2016 Agency asked for an AG opinion Rules finalized in August of 2016 AG opinion issued after the rules finalized Conflict between the two Authors of original bill set to clarify in coming legislative session

23. REVIEW OF COMMON VIDEO SURVEILLANCE ISSUES
Who can request? Which classrooms? Which areas of the classroom must be recorded? Must the recording include audio? Which parents get notified about the recordings? How long do we hold the recordings? What about ESY?