Bullying and Students with Special Needs
I recently came across the Education Law Center's complaint to the United States Department of Education concerning the School District of Philadelphia’s systemic failure to address bullying of students with disabilities. The complaint can be found here. The complaint seeks compensatory education for the bullied students named in the complaint and a change in the school district’s policies and procedures related to bullying.
Unfortunately, the facts alleged in the ELC's complaint are all too familiar. A student with a disability – in this case learning disabilities and ADHD – was bullied physically and verbally to the point where he no longer wanted to attend school. Students with special needs are bullied at a disproportionate rate, and it is important for parents to understand that laws exist to protect students with special needs from harassment.
Federal civil rights laws and New York’s Dignity for All Students Act (“DASA”) protect students with disabilities from bullying, however the Individuals with Disabilities Education Act (“IDEA”) is the best place to start for students with disabilities (the reason why will be the topic of another blog post). Judge Jack Weinstein’s opinion in T.K. v. New York City Dept. of Educ., 799 F. Supp. 2d 289 (E.D.N.Y. 2011), represents the most thorough analysis of bullying claims under the IDEA to date. The child in the T.K. case, L.K., was a third grader with a disability. L.K. came home crying nearly every day due to bullying from other students in her school. One student stomped on her toes. Students called her “ugly,” “stupid,” and “fat.” A group of students would not touch a pencil that she had touched. L.K.’s teachers did little to address the behavior, and the principal would not discuss the bullying during L.K.’s IEP meeting.
Judge Weinstein held that L.K.'s parents stated a viable claim for relief under the IDEA. A school district violates the IDEA, Judge Weinstein held, if it is “deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities.” That a student continues to progress academically is not dispositive (L.K. progressed from grade to grade), and parents need not prove that the bullying is related to the child’s disability.
L.K.’s case remained in the court system for several years, and the United States Court of Appeals for the Second Circuit later held that the principal’s failure to allow L.K.’s parents to raise the issue of bullying during the IEP meeting deprived them of meaningful participation in the meeting and violated the IDEA.
In short, the law protects students with disabilities from bullying. In addition to an IDEA violation, a school district’s deliberate indifference to harassment based on a student’s disability also constitutes a violation of Section 504 of the Rehabilitation Act of 1973 and Title II Americans with Disability Act of 1990. Although New York’s DASA does not create a private right of action for bullied students, it requires New York school districts to create polices and procedures intended to create a school environment that is free of bullying and harassment.
If your child complains of bullying, address it with the school immediately. If the school fails to act or take reasonable steps to prevent bullying, talk to a special education attorney.