Bullying is inevitable. Whether it occurs in toddlerhood when children are learning to use “safe hands,” or when older adolescents engage in cyber-bullying, most children will hit an adversarial situation at some point in their young lives. Parents struggle to ensure that children are equipped with the proper tools to navigate a hostile world. But what if you are the mother or father of a special needs child? The atmosphere quickly changes and is even more frightening.
1. Are children with disabilities bullied more?
In 2010, the United States Census Bureau reported that 5.2% of school aged children meet the legal definition of having a disability. Some studies have concluded that 60% of disabled children have reported being bullied as opposed to only 25% of neuro-typical children. The National Bullying Prevention Center reports that, “Children with disabilities are two to three times more likely to be bullied than their non-disabled peers.” (Pacer) Worse, these statistics only account for incidences that are reported. Many times a child does not, or at times cannot, tell a safe adult.
2. What are the legal implications of bullying?
For any child, there might be tort claims if the situation is extreme enough. For children with disabilities, bullying can lead to a violation of civil rights and/or a denial of their free and appropriate education (FAPE). An Individual Educational Plan (IEP) is supposed to ensure a disabled student access to an appropriate education under FAPE. The bullying may be so hard on the child that the child cannot take advantage of the education because of trauma, thus leading to the child being absent from school. This is not an appropriate education, and not FAPE.
In addition, bullying a child with disabilities may be “disability harassment,” which leads to a Section 504 violation, as well as a violation of the Americans with Disabilities Act (ADA), because the child is not receiving appropriate access to educational services. The U.S. Department of Education defines these situations as, “intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student’s participation in or receipt of benefits, services, or opportunities in the institution’s program”. (DOE/OCR)
3. Whom can you hold legally responsible for bullying?
While it can be hard to hold a school accountable, sometimes the school is liable for a child’s injuries. In one case, a special needs student was bullied for years until he committed suicide. The school did not appropriately handle the situation despite many attempts by the mother to raise these concerns. When the family sued the School Board, the Superintendent, the Vice Principal, and the guidance counselor, the court allowed a number of the claims to go forward.1 But a lawsuit against the school is unlikely to succeed without extreme circumstances and of course, parents should not wait that long.
4. What should you do if your child is in this situation?
Depending on the factual circumstances, you can do several things. You can request an IEP meeting, or invoke the school’s own anti-bullying policy (which Colorado law requires it to have). More drastic measures are to file a state-level complaint, a due process complaint, or a complaint with the Office for Civil Rights. You may need help from an advocate or attorney in evaluating the situation to determine the best approach. It is also important for parents to know and remember that under the ADA, retaliation is specifically a violation of the law. “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter . . . "2
As the National Bullying Prevention Center points out: 60% of bullying is stopped when a peer intervenes. Parents, warn your children of the dangers for themselves and remind them to be good role models and prevent bullying of other children.
1 Scruggs v. Meriden Bd. of Educ., No. 3:03CV2224 (D. Conn. August 22, 2005).
2 42 U.S.C. § 12203(a)
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