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October is National Bullying Prevention Month – bullying laws protect children with special needs

Written by  Sussan, Greenwald & Wesler

Bullying can be a devastating experience for any child. When the child being bullied has special needs, serious and long-term consequences for the child may result. Fortunately, special needs children receive extra protection under the law. Parents can invoke the laws that have been written specifically to protect children with disabilities when instances of bullying occur.

Bullying includes physical threats, but it may also encompass verbal abuse (teasing and threats), graphic or written statements, and behavior that creates a hostile environment or infringes on a student’s rights at school. In general, bullying involves an imbalance–or a perceived imbalance–of power. It also refers to behavior that is either repeated or capable of repetition. Bullying in hallways, at recess, in the gym, on the bus, at school-sponsored events, and even in cyberspace may constitute school bullying behavior.

Fortunately, New Jersey is at the forefront of protecting school children from being bullied. In 2011, Governor Christie signed amendments to the New Jersey anti-bullying statute. The New Jersey Anti-Bullying Bill of Rights Act protects children who are bullied for any reason and includes specific time requirements for school staff to report bullying. Schools must establish bullying coordinators, educate school staff on procedures to respond to incidents, and take steps to ensure a positive atmosphere for all students.

New Jersey’s revised law responds, in part, to public outcry over the suicide of bullied Rutgers University student Tyler Clementi in 2010. His tragic death highlighted the documented negative effects of bullying. They include: difficulty concentrating in school, lower grades, lower scores on standardized tests, school-refusal, increased drop-out rates, anxiety, and depression.

These consequences of bullying affect special needs children disproportionately. Research shows that children with disabilities are two to three times more likely to be targets of bullying than their non-disabled peers. Children whose disabilities manifest in behaviors that are noticeable to their peers are especially vulnerable to bullying. Special needs children may also be more likely to become bullies.

The negative effects of being bullied may have a significant and long-term impact on school performance for children with disabilities. Three Federal laws speak to this problem, by providing additional layers of protection for children with special needs:

  1. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination based on disability by entities that receive Federal funding. Public elementary schools, middle schools, and high schools fall under Section 504. When bullying affects a child’s ability to gain meaningful educational benefit from his or her 504 Plan or IEP, that result may constitute a failure on the part of the school to provide a free, appropriate public education (FAPE). That failure may also constitute a civil rights violation under Section 504. The Office of Civil Rights (OCR) enforces Section 504.
  2. Title II of the Americans with Disabilities Act of 1990 (Title II) also applies to school bullying of special needs children. Title II protects against discrimination of individuals with disabilities in all public places, whether or not federal funds are involved. OCR has stated that where a child is discriminated against in school on the basis of his or her disability such bullying can rise to the level of harassment under Title II. OCR and the Department of Justice enforce Title II.
  3. In addition, the Individuals with Disabilities Education Act (IDEA) protects children with special needs in cases of bullying. Under IDEA, the Federal government provides funds to states for school districts to use to provide a FAPE to students with disabilities. Where bullying interferes with a student’s ability to receive meaningful benefit from his educational program, a school’s failure to remedy that bullying may constitute a denial of FAPE in violation of IDEA. The Office of Special Education and Rehabilitative Services (OSERS) enforces IDEA.

What all these laws mean for parents is that the government has a “no tolerance” policy when it comes to bullying. Further, schools are on notice of their obligations. Parents, therefore, should not hesitate to bring instances of bullying to the attention of their child’s school.

When bullying occurs, parents may help by taking the following actions:

  1. Speak to the child. Psychologists recommend that parents listen to children without judgment, and take children’s reports of bullying at face value. Clinicians also advise parents to assure their children that no one deserves to be bullied and that adults are ready to help. Programs have been developed to help children to become self-advocates. They focus on empowering students to seek help, articulate their needs, and speak up on behalf of peers who may be being bullied.
  2. Report the incident to the school. The law requires schools to respond to incidents of bullying by reporting them to the principal, and the superintendent of schools. Schools are also required to notify parents and conduct a bullying investigation. Parents can start this process by communicating to the school principal, as soon as possible, in writing, about the incident. Parents should describe the incident in as much detail as possible. Parents of children with special needs should let the school know that they are aware that 504 Plans and IEPs are tools to help protect children with disabilities from bullying.
  3. The follow-up to ensure that the school takes action to remedy the problem. When students have 504 Plans and IEPs, and the bullying incident affects a child’s school performance, the law requires the school to have a 504 or IEP meeting to discuss how the child’s program or plan may need to change to meet the student’s needs as a result of the bullying. Parents may request such a meeting, at which parents are to be important participants.
    Parents should know that 504 Plans and IEPs can be amended to include specific actions to address the bullying, to remedy any negative effects of the bullying, and to help prevent future incidents. And, since the law requires children with disabilities to be educated in the least restrictive environment (meaning, to the extent possible, with their non-disabled peers) the law disfavors placing children in more restrictive environments as a solution to bullying.

Constructive modifications that may be added to 504 Plans and IEPs to address bullying include:

  • Providing regular assurance to the child that he/she is safe and that bullying will not be tolerated.
  • Educating school staff about the child’s disability and bullying policies.
  • Education peers about school bullying policies.
  • Providing for a staff member to shadow the student to prevent bullying in hallways, classrooms, and/or playgrounds.
  • Permitting the child to exit classes before other students, to avoid bullying incidents.

For special needs children, school is often a struggle without the added weight of bullying. A recent focus on bullying by lawmakers, the press, and schools is welcome news. Bullying exploits an abuse of power. The federal and state laws aimed at reversing this imbalance make clear that this behavior is unacceptable in our schools, and that safeguarding our most vulnerable children is a priority.