Dear Colleague Letter released by OCR re: Bullying

[daisy madness]

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-bullying-201410.pdf

Feel free to delete this post if this is already posted elsewhere on the site.  Or move it to the resources section.  This is a hot off the press Dear Colleague Letter.  It "highlights the importance of OCR's continuing efforts to protect the rights of students with disabilities through vigorous enforcement" of Section 504 and Title II of the ADA.  In my experience, ymmv on how vigorously OCR will enforce a disabled student's rights. 

[ajasfolks2]

Was just going to post link, but saw you'd beaten me to it.

I've also seen some folks (food allergy group)  trying to claim credit for getting this letter written.  Not sure how one would attribute . . . the letter addresses bullying and ALL disabilities, not just LTFA.

[devnull]

Eh, let them take credit. What I want to know is who is going to enforce the policy and how?  Pretty letter, nice line in the sand.  Now what?

NSBA was on this years ago and I can't imagine reissuing the same letter changed much unless the Civil Rights Division Justice is more involved starting 2015 and beyond.  The release of this DCL was coordinated with Justice if I believe the presentation I watched on Youtube with OCR's Robert Kim making statements at a panel of personnel. 

http://www.c-span.org/video/?298475-7/federal-policy-bullying

Watch that if you want to get the straight message from the school side reaction to OCR's DCL on bullying.  It follows most party line with the NSBA: reduction of federalism.  These are the biggest challenge if a FA related DCL is issued, the resistance of federalism in favor of board level process, district grievance procedures, but we know is plagued by interest conflict and nearly absent of either consistency or compliance.

I highly recommend watching the previous vid and also this one. http://www.c-span.org/video/?299507-4/federal-local-role-antibullying-measures.  The series of arguments of the need for students' rights and safety at the federal level is due to the lack of enforcement by local or state, Negron has it backwards IMO.  Regardless you can hear the arguments about federal intervention and oversight that is structurally the same. 

CSPAN puts is in all caps it's not my doing.  There are also a lot of transcription errors.

Francisco Negron:
WELL, I THINK LET ME FIRST TELL YOU IN ADDITION TO SCHOOL BOARD MEMBERS, WE ALSO REPRESENT 3,000 SCHOOL LAWYERS ACROSS THE COUNTRY THROUGH THE COUNCIL OF SCHOOL ATTORNEYS WHO JOINED IN OUR RESPONSE TO THE DEAR COLLEAGUE LETTER. I THINK THE CONCERNS THAT THE SCHOOL LAWYERS HAVE AND THAT SCHOOL BOARD MEMBERS HAVE REALLY ARISE FROM THE IMPLEMENTATION SIDE OF WHAT OCR'S LETTER HAS DONE. ONE THING I SPOKE ABOUT BRIEFLY WAS THE WHOLE QUESTION OF CHILLING EFFECT ON EDUCATORS TO INSTITUTE THE LEAST INTRUSIVE APPROACH TO SOLVING A QUESTION. -- ONE OF THE THINGS THE OCR HAS DONE THAT'S SLIGHTLY DIFFERENT IS SET OUT A VARIETY OF EXAMPLES MEANT TO BE INSTRUCTIVE TO SCHOOL DISTRICTS ABOUT WHAT THEY CAN AND CAN'T DO. A PART OF JUST TO ILLUSTRATE ONE EXAMPLE, THE WHOLE APPROACH THAT THEY USE GENDER DISCRIMINATION. WHAT THE DEPARTMENT SEEMS TO BE SUGGESTING, EVEN THOUGH THEY CLEARLY STATE SEXUAL ORIENTATION DISCRIMINATION IS NOT COVERED UNDER TITLE 9. WE KNOW THAT SOME COURTS HAVE SAID THAT IT IS, DEPENDING ON THE CIRCUMSTANCES. BUT THEIR ENFORCEMENT STANDARD IS VERY CLEAR. WHAT WE THINK IS A PROBLEM IS THAT A SCHOOL DISTRICT MAY ADOPT, FOR INSTANCE, A MORE STRICT STRICTER ENVIRONMENT STANDARD, A MORE STRICT ENVIRONMENT STANDARD FOLLOWING THE GUIDELINES AND SOMEHOW ADOPT FOR ITSELF SOME LEGAL LIABILITY. FOR INSTANCE IF A SCHOOL DISTRICT DECIDES IT'S GOALKEEPER TO USE ENVIRONMENT STANDARD AND INCLUDE SEXUAL ORIENTATION AS A PROTECTED CLASSIFICATION -- BY THE WAY, MOST SCHOOL DISTRICTS ALREADY HAVE THAT AS A PROTECTED CLASSIFICATION. BUT IF THEY GO THEN ONE STEP FURTHER AND THEN EQUATE THAT WITH GENDER DISCRIMINATION ARE THEY WAVING A DEFENSE UNDER TITLE 9 LAWSUIT, FOR INSTANCE? THESE ARE THE DIFFICULTIES FROM A LEGAL STANDPOINT SCHOOL DISTRICTS HAVE.

Negron later goes in to expenditure of budgets for legal representation falling just short of saying all this pesky federal intervention is forcing schools to increase expenditure on their private legal firms rather than education for students. 

Below is a question to Mr. Negron in response to his position resisting federalism.  Remember Mr. Negron's position is of all public schools. 

I WANT TO SUMP UP A COUPLE OF THINGS. I HEARD A LOT OF REFERENCES TO, WE DON'T NEED THE FEDERAL GOVERNMENT. WE NEED TO LEAVE IT AT THE LOCAL LEVEL. YET THAT IGNORES THE TESTIMONY WE HEARD THIS MORNING FROM THE JUSTICE DEPARTMENT WHERE SHE SAID AND SHOWED EVIDENCE OF HOW TO SOLVE THIS PROBLEM, THEY WORK WITH LOCAL SCHOOL DISTRICTS. IT'S NOT SOMETHING IMPOSED BUT SOMETHING THAT COMES ABOUT CLAB RA ARE TIFF LYLY (collaboratively). I'VE HEARD, WE DON'T NEED THE FEDERAL GOVERNMENT, WE SHOULD LEAVE IT TO LOCAL GOVERNMENTS TO SET THEIR OWN POLICY. YET THERE'S BEEN NO MENTION OF ANY MECHANISM OF ENFORCEMENT. YOU CAN SET A POLICY, BUT IF YOU DON'T CARRY IT OUT, WHAT GOOD IS IT? IF WE DON'T HAVE A HAMMER COMING DOWN, PERHAPS FROM THE FEDERAL GOVERNMENT, NO ONE SAYS THERE'S AN ALTERNATIVE. THIRD, I'VE HEARD A LOT ABOUT THE CHILLING EFFECT OF HAVING A POLICY FROM THE FEDERAL LEVEL AND I THINK YOU, MR. MAGROWN (Mr. Negron of NSBA) SAYS TEACHERS ARE OR PRINCIPALS ARE ARE RELUCTANT TO ENFORCE IT BECAUSE I THINK YOUR QUOTE WAS THEY DON'T WANT TO SEE THEMSELVES ON THE FRONT PAGE OF THE PAPERMENT WELL, BETTER ON THE FRONT PAGE THAN THE OBITUARY PAGE.

[devnull]

There are a couple of key issues with the examples in this letter.

Primarily it ignores by purpose or happenstance that anaphylaxis is a disability of medical fragility setting it apart from non-life threatening disability.  A hostile environment for a child with food-induced anaphylaxis is created when food is used.  The unrealistic example focused on peers not only openly threatening the child with the allergen, but these kids who likely know they would get in trouble willingly confess on the spot?

It's also missing in context negligence and intimidation.  OCR's measurement of FAPE is troubled from the start by not even examining the use of food in class itself constituting a hostile environment creating barriers to access.  I really am concerned this continues to be in the minds of many an eating-related disability instead of a medical fragility that must account for cross-contamination, the ability to self-advocate and the unwillingness to reflect on the food use in curricula and classrooms that gained popularity just prior to the first wave of epidemic rise in food anaphylaxis.

In my opinion after reading a variety of OCR settlement agreements and letters of findings on LTFA based complaints, that this letter by Catherine Lhamon is actually a step back in progress.  It does not address inclusion or barriers in measuring FAPE or what a hostile environment consists of for the student with medical fragility.  In fact, I think there's more than a few principals, superintendents and districts that are considerably more progressive than what even this DCL outlines using LTFA as an example.

[CMdeux]

   Spot-on.