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Monday, July 21, 2003

School ignored teasing of child, parents say
A Federal Way lawsuit is testing how far educators should go in protecting a disabled student from bullying

By KATHY GEORGE
SEATTLE POST-INTELLIGENCER REPORTER

Day after day during M.L.'s first week of kindergarten, other children called him stupid and crazy and made fun of him when he tried to talk, court records say.

One week was enough.

The boy's parents pulled him out of the school and sued the Federal Way School District, alleging that the staff failed to protect the severely disabled 6-year-old from relentless teasing.

But did the school have a duty to protect him?

The lawsuit, which identifies the boy and his parents only by their initials, is the first in the country to raise that question, attorneys on both sides of the case agree.

"I'm not aware of any case that has found a school district responsible for teasing of a disabled student by another student," said Christopher Hirst, a lawyer representing the Federal Way School District.

And while a new state law requires Washington public schools to adopt policies against bullying of all students, not just disabled ones, advocates say it's too early to judge the law's effectiveness.

"The bullying law hasn't solved the problem," said Jean Carpenter, director of the Washington State Parent-Teacher Association, which is surveying school districts in an attempt to measure the law's effect.

The boy in the Federal Way case, M.L., is so severely mentally retarded and autistic that when he tries to talk, he sometimes makes "a harpy kind of scream" sound instead, court records say. He ranks in the bottom 1 percent of his age group in cognitive ability.

On his very first day on the kindergarten playground in September 2000, two other little boys mimicked his sounds and said things like "he's stupid, he's crazy, stay away from that kid," his mother testified.

She said she reported the teasing to her son's teacher, who vowed to watch for any more teasing and to enforce the school's policy against it; but the problem continued.

Now the boy's parents are asking the 9th Circuit U.S. Court of Appeals to establish that, when a school ignores harassment of a disabled child, it violates the federal law designed to guarantee disabled children an appropriate public education.

"If continued, uncorrected teasing of a particularly vulnerable child makes conditions so intolerable, and so potentially dangerous, that the child has to be withdrawn from school altogether, then the child is totally denied any public education," Jim Lobsenz, the attorney handling the parents' appeal, wrote in a court brief.

In its own brief, the school district said the teasing of M.L. couldn't have been very persistent because the school staff never saw it.

The district also questioned the mother's credibility, pointing to evidence that she was at home sending faxes during a school meeting that she claimed she could not attend.

And the district said the parents, in pulling the boy out of school after just one week, "failed to give the district any reasonable opportunity to correct the alleged teasing."

Lobsenz responded in court papers: "Should they have waited to see if the teasing led to an assault some day? And if they had waited for such an incident, how would they know when that day arrived if M.L. couldn't report it?"

As it is, disabled children have the right under federal law to receive an "appropriate" education tailored to their individual needs. But parents and schools often disagree as to what that means.

In M.L.'s case, the question is whether an appropriate education includes protection from teasing. The answer could affect public schools throughout the 9th Circuit, encompassing Washington, Oregon, Idaho, Montana, California, Arizona, Alaska and Hawaii.

"What makes it difficult is that schools can't control the behavior of all students," said Sheryl Harmer, program development director of the Committee for Children, which has teamed up with five Seattle-area schools to support and monitor bullying prevention.

Bullying is generally done outside the presence of supervising adults, she said, adding: "Schools need help. It's not just on the schools' shoulders to solve this thing. There has to be a culture shift."

Tim Hornbecker, president of the Arc of Washington State, an advocacy group for people with developmental disabilities, said it's a civil rights issue.

Disabled children "do have a right to be in school and to be part of their community," and teasing by other children is a form of exclusion, he said.

Under Washington's new anti-bullying law, each school district has until Aug. 1 to adopt a policy forbidding the "harassment, intimidation or bullying of any student" and to share the policy with parents, students, volunteers and employees. The details, including how to respond to bullying, are left to districts.

In Federal Way, having a policy against teasing wasn't enough, argued M.L.'s parents, who wanted staff members to watch more closely and intervene.

"It concerns me because ... he can't defend himself," the mother testified. "If he were injured by another student, he couldn't tell anybody."

The 9th Circuit is scheduled to hear arguments in two weeks.

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