Tomorrow marks the 10th anniversary for October’s National Bullying Prevention Month. PACER’s National Bullying Prevention Center started the campaign to bring awareness to bullying prevention.
Bullying is a serious problem in our schools. In 2015, the National Center for Educational Statistics acknowledged that one out of every four students (22%) reported being bullied during the school year. While bullying is a problem among all children, there is a higher rate among children with disabilities. Other studies have found that children with disabilities are two to three times more likely to be bullied than their nondisabled peers. (Disabilities: Insights from Across Fields and Around the World; Marshall, Kendall, Banks & Gover (Eds.), 2009 )
On October 21, 2014, the US Department of Education Office for Civil Rights Office issued a “Dear Colleague” letter to address bullying of students with disabilities. This letter was written to address the persistent problem with bullying that occurs in schools today. This blog will incorporate and expand on information from that letter.
GENERAL LEGAL GUIDELINES
There are no federal laws that directly address bullying. However, some bullying falls under federal civil rights laws. The US Department of Education and Department of Justice have stated that schools are obligated to address conduct that is:
- Based on a student’s race, color, national origin, sex, disability, or religion;
- Severe, pervasive, or persistent; and
- Creates a hostile environment at school.
California Education Code Section 48900(r)(1) defines bullying as: any severe or pervasive physical or verbal act or conduct… directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following:
- Placing a reasonable pupil or pupils in fear of harm to that pupil’s or those pupils’ person or property.
- Causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health.
- Causing a reasonable pupil to experience substantial interference with his or her academic performance.
- Causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities, or privileges provided by a school.
Students with Disabilities: IDEA/504 of the Rehabilitation Act
Students with disabilities are entitled to a free and appropriate public education under IDEA and Section 504. When bullying affects a child’s ability to gain meaningful educational benefit from his or her 504 Plan or IEP the result may constitute a school’s denial of FAPE. In order to deny FAPE, the criteria above must be met as well as the following:
- The school officials must have known or should have known about the bullying; and
- The school did not respond appropriately.
DISCIPLINE/REMEDIES
Suspension/Expulsion: According to California Education Code Section 48900.4, students can be suspended or expelled if they engage in bullying. Before recommending suspension or expulsion, the school must determine that the student has “intentionally engaged in harassment, threats, or intimidation, directed against school district personnel or pupils, that is sufficiently severe or pervasive to have the actual and reasonably expected effect of materially disrupting classwork, creating substantial disorder, and invading the rights of either school personnel or pupils by creating an intimidating or hostile educational environment.”
IEP/504 Plan Review: The team can call a meeting to ensure the student continues to receive FAPE. The team shall decide whether the student’s needs have changed and whether additional or different services or accommodations are needed to ensure FAPE.
Compensatory: An action may be brought tuition reimbursement for an alternative school, counseling, monetary damages, and other services necessary to provide FAPE.
Should you have any further questions, please contact Kristin Springer at specialedlegaljourney@comcast.net.
(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)
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