Rare are the parents who have not had their hearts crushed after their child comes home from school and reports being bullied by other children. We all want our children to feel accepted and included, whether it’s being asked to sit at a lunch table with friends or invited to a birthday party or sleep over.
Bullying surpasses simple exclusion, although that is painful as well and can be a component of bullying. Bullying occurs when there is persistent teasing, name calling, threats of physical harm and aggressive acts to isolate a peer from friends or social circles. Bullying can be done face to face or through cyber bullying over the internet. As I tell parents when they call me, think of bullying as unkindness on steroids. It’s more than a comment that is critical or mean: it’s when words demean and are intended to shred the self-esteem of another student. Bullying is unconscionable.
Students with Special Needs are More Likely to be Bullied
Sadly, students with special needs are often at increased risk of being bullied due to their various vulnerabilities. Often, these students are taunted by others since they don’t have the tools to fight back (either physically or verbally). When dealing with non-verbal students, it can be difficult to know if a child is being bullied. Many times, parents will observe a change of behavior for a protracted period of time before bullying is even suspected. For instance, parents might observe a change in appetite, or difficulties getting their child dressed and ready for school, before questioning if the school refusal has something to do with peer interactions that interfere with the desire to go to school.
Legal Protections for Students with Special Needs
There are many legal protections in place for students with special needs who experience bullying. Bullying is a form of harassment, which is proscribed by Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. Federal laws prohibit:
“Intimidation or abusive behavior toward a student based on a 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.”
Or, as defined in the Individuals with Disabilities Act (IDEA), bullying prevents a student from receiving a free and appropriate public education, which is better known as FAPE.
Behaviors that rise to the level of bullying and harassment warrants attorney involvement. First, attorneys ensure that parents comply with notice requirements as defined in the United States Supreme Court case, Gebser v. Lago Vista Independent School District, 524 U.S 274 (1998). In that case, the Court held that school districts are not responsible for bullying unless the districts are made aware of the problem, which makes sense given that an entity must have knowledge of a problem before corrective action can occur. School districts are only responsible for failing to take action after notice is provided to the district.
In other words, attorneys can draft what is now known as a Gebser letter. A Gebser letter documents the bullying problem and provides as much detail as possible. In extreme cases, attorneys can help parents navigate reports to law enforcement, draft letters to the parents of bullies and consider other legal remedies, especially if the school district does not alleviate the problem.
Anti-Bullying Policies and Other Preventative Measures
Most school districts have anti-bullying policies. However, attorneys for families can ensure that the district follows the policy and addresses the problem. An attorney can ensure that the school properly investigates the allegations of bullying, separates the children involved in the allegations and once proven, consider appropriate discipline for the students responsible for the bullying behavior. Also, schools are responsible for instituting supportive measures to help victims access their education, which could mean checking in with a guidance counselor, extra time to complete homework and consider restorative justice as a way to repair relationships and have the bully acknowledge the harm inflicted on the student and the school community.
Bullying can be prevented. Many schools have effective peer to peer programs to stop bullying. Others have peer programs fostering inclusivity. Parents can also insist on inclusivity – is the entire class invited to an event or just a small clique of children? Do we stop and talk when there are conversations where kindness does not predominate the conversation? Do we encourage students to intervene or report students who bully others without feeling like a “snitch” or “tattle tale?” Small but bold steps can go a long way to preventing deeper acts of harm.
In other words, parents shouldn’t underestimate their role in preventing and stopping bullying in its tracks, and if those efforts fail, there are attorneys trained in assisting parents with the next steps in navigating this painful problem.
For additional questions or to speak with an attorney about issues related to bullying, please reach out to Student & Athlete Defense Partners Susan Stone (SCS@kjk.com; 216.736.7220) and Kristina Supler (KWS@kjk.ocm; 216.736.7217).