Over generations, parents the world over have learned that special needs children are more likely to be bullied than any other student population. Sometimes parents may not know what to do if their child is coming home and telling them of the abusive or bullying behavior. There are steps in education law that may help you.
Notify the school.
This may seem a no-brainer but you do not want to simply verbally notify the school. If your child is a special needs student and has an IEP, convene the team to discuss the situation(s) that is on-going. Together, you and the team can come up with strategies to correct the behavior and/or give the child a safe place to go if such an attack occurs again. Firstly, a school cannot fix a problem it does not know exists. Secondly, if the school does not act accordingly, this will give you proper evidence that the school was on notice about the bullying (a necessary part of a possible future law suit, if necessary).
Document the evidence.
Take careful notes. Write down the day and approximate times of the act as soon as you’re notified of the event (either by your child or a school staff member). Write down the facts of what happened and how your child acted or felt afterward. If part of the harassment takes place online, print copies of emails, Facebook messages and the like. Record phone calls in a message pad noting the times and dates of the phone calls. Bring a copy of this evidence to the IEP meeting with you.
Decide on course of action.
Together with the staff of your child’s school, come up with reasonable options of what to do to make the harassment stop. One such suggestion could be to notify the child’s other parent and allow her a chance to correct the behavior while working with school staff. Another option may be to switch classes or lunch times to minimize the contact your child has with a bullying schoolmate.
Is there a legal recourse if the school fails to stop the bullying?
There is legal action that may be taken in the event that bullying has been ongoing and the school has failed to correct it. However, there are several important considerations that must be covered, according to Frazier and Associates.
The primary consideration is “Does the bullying that occur meet the legal definition?” It may seem like a easy question to answer but the law is very clear on what legally constitutes bullying. The legal definition is:
(1) verbal or written communications transmitted;
(2) physical acts committed; or
(3) any other behaviors committed; by a student or group of students against another student with the intent to harass, ridicule, humiliate, intimidate, or harm the other student. (Frazier Law)
The next three considerations come from Title IX of the Education Amendments of 1972 (20 U.S.C. §1681(a)). These are the legal requirements that must be met for a successful lawsuit against a school or its district for bullying by a student or staff member.
1. The sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school;
2. The funding recipient had actual knowledge of the sexual harassment; and
3. The funding recipient was deliberately indifferent to the harassment.
Also, it does not necessarily have to be sexual harassment in nature: “K.M. ex rel. D.G. v. Hyde Park Central Sch. Dist., 44 IDELR 37 (S.D.N.Y. 2005). The court ruled that the district could be liable under Title II and Section 504 for its alleged failure to address peer-to-peer disability-based harassment among its students.” (Frazier Law). The above three considerations still need to be met.
The harassment must be severe, pervasive and objectively offensive. The adjective “objectively” is, in some cases, the hardest part to prove. A parent would have to prove that the intent of the bully was to cause harm and that the actions taken in such bullying behavior would be found offensive by any reasonable person. Perhaps that aspect should change since special needs children may not be “reasonable” about what they find offensive and if the other student knew ahead of time that a child, for example, found gummy bears offensive and that student placed gummy bears in the special needs student’s belongings, that could be considered harassment from the eyes of the special needs student but may be looked at as “no big deal” to a “reasonable” person.
The second consideration above refers to the “funding recipient” which is the educational agency (or school) that receives or received federal funding from the government, which is what makes them potentially liable under the federal law. As noted earlier, it is important that the school and its staff be made aware of the actions as soon as possible. Even if it was the staff who reported incidents to you, you must still notify the school in writing that you consider this bullying and/or harassment and want them to take corrective action.
The third consideration above is perhaps where most cases fail to meet the legal obligations for holding a school liable. Just because a school failed to stop a bully from bullying your child at all times, does not mean the school or its staff were “indifferent.” If the school took reasonable steps to correct the action upon notification, has met all other legal obligations, it cannot be held liable for the bullying, even if the parent wishes the school had taken more action or action of another kind (Frazier Law).
Finally, if all legal requirements are met, and the bullying is still occurring and/or your child has suffered, consult with an education law attorney. He or she will be able to handle the nuances related to the law in your specific state. He or she may be willing to take the case on a contingency basis which means you do not have to pay upfront for them to take the case on. Rather, if your case wins, they receive part of the settlement or winnings. If your case loses, on a contingency basis, you will not be required to pay for attorney’s fees.
Frazier and Associates is a law firm in Indianapolis, Indiana. The law firm has been operating since 1988 and has experience in myriad areas of law, including education law. Special thanks to Ron Frazier (attorney and owner) for permission to use his resources. Any errors are mine alone and parents are urged to speak with an attorney regarding any of these issues especially as the law may vary from state to state.