January 22, 2018 Practice Points

Tips for Addressing the Bullying of Disabled Students

By Sophie Prown

Students with disabilities experience significantly more bullying than their non-disabled peers, according to sources from the National Center for Education Statistics and the Archives of Pediatric and Adolescent Medicine. A few of the negative outcomes of bullying include academic decline, frequent absences, and anxiety. Lawyers can use the tools and examples discussed below to inform their work to protect the rights of bullied students with disabilities.

Though there is no federal law in place that speaks directly to bullying, civil rights laws address discrimination based on disability (amongst other protected classes) and require schools to take action to end this behavior. Additional protections exist for students with disabilities, including Section 504 of the Rehabilitation Act, the Individuals with Disabilities Education Act (IDEA), and Title II of the Americans with Disabilities Act (ADA). Under Section 504, all students who have a qualifying impairment are guaranteed a “free appropriate public education” (FAPE). Legal action against instances of bullied students with disabilities can be framed as a situation where the student is being denied a FAPE. This was the ruling of a case brought to the Third Circuit federal court where the school (Shore Regional High School, Oceanport School District, NJ) failed to provide a student with a qualifying impairment with a FAPE as a result of continued bullying.

In the event that a disabled student’s access to a FAPE is called into question due to a bullying concern, OCR states that the integrity of his or her FAPE can be assessed through assembling a Section 504 service team or an IEP team to examine the student’s situation and behavior to make a decision. If a school suspects that the student’s needs have changed, the Section 504 service or IEP team must expediently determine which services need to be rendered for this student to see progress in school. Furthermore, if a school notices symptoms of bullying, even without evidence of bullying, it is incumbent upon the school to address these changes in behavior.

Lawyers can also file a complaint on behalf of a bullied student with the U.S. Department of Education’s Office of Civil Rights (OCR). That is the course that the Education Law Center chose last July when they filed a complaint with OCR that alleged that a Pennsylvania school district has continually failed to address entrenched patterns of disabled students being bullied within their schools. The complaint alleges that the district has failed to address reports from several families that their children with disabilities experienced prolonged bullying. Pennsylvania requires school districts to institute anti-bullying policies, but the policies have routinely been ignored in practice. In many of the case reported to the ELC, the schools were aware of the bullying and did not act on this information. Moreover, instances were reported where the parents requested a school transfer for their child and the district denied their request. In the end, many of the families were referred to Truancy Court due to their child’s school aversion behaviors. The result of this is increased humiliation for the student and a passing off of the blame from the district to the family. The continual ignoring of these bullying situations is the basis of the ELC’s complaint, and they hope that the results of this investigation will yield a return of FAPE for the impacted students so that they may continue to progress in school for greater lifelong success.

Sophie Prown has her MSc in Social Policy and Development from the London Schools of Economics and volunteers with the ABA's Children's Rights Litigation Committee.

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