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Bullying May Violate Disabled Child's Civil Rights
by Allison Hertog, J.D., Florida School Partners advocacyBullying is a hot topic in the news lately as well it should. And as a special education attorney I hear about students with disabilities being bullied frequently. See this article from StopBullingNow.com and this site EyesonBullying for good advice about what to do if your child is being bullied.
The Obama administration is pressuring schools to help curb bullying, particularly when the victim it targeted because he or she has a disability, is gay or is part of another protected group (such as a racial or ethnic minority). Last week, the U.S. Department of Ed. released some formal federal guidance to schools about when bullying can violate the victim's federal civil rights. This is important because if schools fail to appropriately respond to bullying, parents of the victim now have added ammunition to seek legal recourse against schools.
One example of bullying the federal guidance addresses is what's called "disability harassment." Here's the example they gave of disability harassment: "Several classmates repeatedly called a student with a learning disability "stupid," "idiot," and "retard" while in school and on the school bus. On one occasion, these students tackled him, hit him with a school binder, and threw his personal items into the garbage. The student complained to his teachers and guidance counselor that he was continually being taunted and teased. School officials offered him counseling services and a psychiatric evaluation, but did not discipline the offending students. As a result, the harassment continued. This student, who had been performing well academically, became angry, frustrated, and depressed, and often refused to go to school to avoid the harassment." The Obama administration goes on to say that the school in their example violated federal civil rights laws (i.e., Section 504 of the Rehabilitation Act of 1973 and TItle II of the Americans with Disabilities Act) because the school failed to fully investigate and remedy the misconduct. The fact that the victim in this example missed school as a result of the harassment appears to be an especially important trigger to the school's legal responsibilities.
Under this new guidance, schools must do the following: 1. Recognize when harassment or bullying is based on a student's disability, and consult with the district's 504/ADA coordinator; and 2. Adopt a "comprehensive approach to eliminating the hostile environment" for the victim by disciplining the bully, training school staff on recognizing and responding to bullying, and monitoring the situation so that the bullying does not recur.**
If your child is being bullied or harassed and you don't feel the school is doing enough, you should consider filing an Office of Civil Rights (OCR) complaint against the school and they will investigate. Here is the link to the online OCR complaint form. Another option is to lobby your state legislature to enact a broad anti-bullying law – the New Jersey legislature has recently introduced a bipartisan "anti-bullying bill of rights" which, if enacted, would probably be the toughest in the nation. It looks to be a good model for other states because it requires that school staff be trained to spot and curb bullying in ways which are based on scientific research. ** Note that since I wrote this post the National School Boards Association has stated that the federal guidance is too broad – that it provides too large a burden on the schools – and it is illegal under a 1999 U.S. Supreme Court decision. That decision required that in order for schools to be liable under federal law for a student's harassment of a peer, the school must have "actual knowledge" of the harassment, and that the harassment is "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school."
Copyright 2010 Florida School Partners
Ms. Hertog, an attorney and former special education teacher, founded Florida School Partners in 2005. Its mission is to help South Florida families to 1) understand their childrens' legal rights in public school; 2)gain accommodations and special services in school; 3) find the right public or private school placement and; 4) navigate the process of attaining significant McKay Scholarships for their disabled children. See her site at: www.makingschoolwork.com or contact her by phone at:305-663-9233, or email at:AllisonHertog@gmail.com.
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