With the start of the school year, parents always face new issues. A new school year can bring new teachers, new students, new staff, new schedule, etc. But whether your child is 5 or 15, bullying is something that continues to be a significant issue for kids with disabilities (as well as for kids without).
What is bullying? Bullying is any verbal or physical harassment of a student for any reason. From the legal standpoint, bullying can become actionable when it is severe, pervasive or objectively offensive. But a parent or child need not show that bullying is a result of disability. It is not relevant at the school level what the reason for the bullying may be. It is relevant if it is happening to your child. Bullying can be subtle and some impressionable students may not even be aware they are victims.
What should you do if your child is bullied? First and foremost, you must talk to your child, and make sure your child knows how important it is to talk to you. Most kids who are bullied do not speak to their parents about it for fear it will only make the situation worse. Parents need to look for changes in their child’s behavior, including reluctance to go to school, depression, or other anti-social behavior. If the child has communication impairments, parents may need to go to the school to observe the classroom in order to determine what is going on. Teachers often miss bullying behaviors as children who bully develop strategies for engaging in bad behavior when the teacher is out of sight or earshot.
Parents must document to the school each and every instance of the bullying. If the child is afraid or is experiencing severe anxiety, parents need to call an immediate IEP meeting. Bullying implicates a child’s right to receive a free appropriate public education. If a student is afraid or anxious he or she cannot benefit from their FAPE. Accordingly, it is the responsibility of the IEP team to address the issue of what the school district can do to assure the child receives the benefits of his education. That might require schedule changes either for the victim or the bullies. Accommodations or modifications to the child’s program should be documented in the IEP. Some students may require an escort or other aide at certain periods of the day.
If bullying continues, parents have other options. If bullying is physical, a police report should be filed. If necessary the child can seek a protective order from the juvenile court. Such an order would require the bullies to stay away from the student including at school. A letter can be sent to the parents of the bullies notifying them of their potential liabilities, including for damages.
As a last resort, students may need to be removed from the environment and either placed elsewhere or at home. There is no benefit to making a child go to school where bullying is occurring. Unfortunately, while most schools have anti-bullying programs in place, there is little hard evidence that such programs work. In fact, some studies have shown that bullies learn from these programs how to hide their bad behavior which can actually make the situation worse.
Parents of children with disabilities have other options as well. Bullying on the basis of disability is a civil rights violation and parents can file a complaint with the Office of Civil Rights. The complaint form is online and you do not need a lawyer to complete it. The ability to bring a civil rights lawsuit against a school district for bullying is more difficult. At that point, it would be imperative to show, in a discrimination claim, that the bullying was on the basis of disability in order for the case to be viable. Even then, there are other requirements that must be met in order to establish liability of a public entity for acts of a third party (where the bullying is peer on peer). There may be other claims as well, so if you are not sure, seek the help of a lawyer.
For parents who have sent their children to private school or scholarship provider, the ability to challenge the school in those situations may depend on the terms of your tuition agreement.
Bullying continues to be a problem in our schools. Anyone who tells you otherwise is whitewashing. Bullying occurs in schools regardless of whether they are in affluent or poorer school districts, and it impacts children with a variety of disabilities. Don’t let this happen to your child. If you suspect there is a problem, there probably has been one for some time.