Let me introduce you to D.S., the subject of litigation involving bullying, sex discrimination and other issues in the New York City school district. Here’s how the federal court describes the 15-year-old. He spent his early years in Colorado where he was abused and neglected and witnessed domestic violence involving his parents, both of whom were alcoholics and drug addicts. At age 7, D.S. was removed from his home and placed in the foster care system. Over the next four years, he spent time in seven different foster homes. At age 10, he developed a malignant brain tumor which prompted his foster parent to abandon him at a hospital where the boy had surgery. The tumor was successfully removed but follow up care was needed to prevent seizures. He was diagnosed with post-traumatic stress disorder, generalized anxiety disorder, epilepsy and various learning disabilities. Do you think maybe the kid’s going to have some issues?
At age 11, he entered the care of Jason Ciancotto and his husband, who later formally adopted the boy. The family now lives in Queens, New York.
The lawsuit alleged, among other things, that the district was deliberately indifferent to a two-year campaign of bullying and harassment of D.S. by other students. One of the allegations in the lawsuit was that the Dean of the 6th grade blamed D.S. for the bullying he was experiencing. The Dean told the boy’s parents that it was “inappropriate for D.S. to talk about his sexual orientation at school,” and that “if D.S. did not insist on speaking so openly about his sexual orientation, he would not be subjected to such constant bullying.”
Let’s hold off on being judgmental about that comment. Let me tell you a little more about D.S. From the brief description in the court’s opinion it sounds like D.S. was not just gay—he was flamboyantly and proudly gay. “Shortly after he enrolled, D.S. came out to his teachers and classmates as gay, and spoke openly at school about the fact that he was being adopted by two married gay men.” The court tells us that D.S. loved the color pink and had a strong interest in drag queens.
So this is happening in the 6th grade. Is it surprising that D.S., the new kid with the unstable and troubled past, was “openly mocked, taunted, and harassed”? The suit does not allege physical bullying of D.S., but rather, the name-calling and trash talk that is so hard to corral in a middle school. Tracking down the facts behind reports of name-calling is like playing Whack-A-Mole. Can you understand why a frustrated school administrator might suggest that D.S. ought to turn down the volume a bit? I’ve heard similar comments from numerous school administrators. Comments along the lines of “Yeah, he’s being bullied but he brings a lot of this on to himself.” I hear a lot of “yes, there is bullying, but he gives as good as he gets.”
In the cold analytical light of a legal analysis, such comments come across as a shrug of the shoulders, a resignation to the situation. On the other hand, if we were going to develop a BIP for a student to help deal with bullying wouldn’t it be appropriate to ask the student: “Do you think that you are doing anything that contributes to the treatment you are getting from the other kids?” Shouldn’t a good BIP focus on teaching students how to deflect, deter, prevent, or deal with nasty remarks?
This one comment by the 6th Grade Dean, if taken alone, would probably not have been sufficient to convince the court that the district may have been “deliberately indifferent.” It was just one piece of evidence. But there was a lot more, which is why the court refused to dismiss the case.
I guess the main point for today is to be thoughtful and careful in how you address behaviors that are likely to elicit retaliation from other students. Communicate first the intention of the district to protect the student from bullying. Then explore ways in which school staff and the student can work together to create a safer environment.
The case is Ciancotto v. NYC DOE, decided by the federal court for the Southern District of New York on April 22, 2022. It’s published in Special Educator at 80 IDELR 270.
DAWG BONE: DON’T BLAME THE VICTIM, BUT WORK WITH THE VICTIM TO DEVELOP RESILIENCE.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: the student went backwards, but FAPE was provided. Huh?