Sussan, Greenwald & Wesler works with all families whose children are involved in bullying matters as either victims or alleged violators of school anti-bullying policies. Bullying can be a devastating experience for any child and could result in long term consequences. Fortunately, due to the vulnerability of special needs children, they receive extra protection under the law. Parents of all children involved in bullying matters can invoke a variety of laws and parents of special needs children are afforded protection under laws that have been written specifically to protect children with disabilities who are bullied.
Here’s Your First Step to Start Advocating for Your Child 
First, what qualifies as bullying?
Bullying has a specific legal definition. It includes any action, gesture, verbal or physical act or electronic communication that is reasonably perceived as being motivated by an actual or perceived characteristic (“distinguishing characteristic”). It may take place on school property, at any school-sponsored function, on a school bus or off of school grounds. Not all incidents constitute bullying, however. To be deemed bullying, there must be a substantial disruption or interference with the operations of the school or the rights of students and a finding that a reasonable person should know that the alleged act will have the effect of harming others or property or that the act actually did insult a student or group of students or create a hostile work environment. A perceived imbalance of power may be involved.
What are the negative impacts of bullying?
Some negative impacts of bullying include: difficulty concentrating in school, lower grades, lower scores on standardized tests, school-refusal, low self-esteem, feelings of isolation or loneliness, 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.
Are there protections against bullying in New Jersey?
School districts have several legal obligations with respect to bullying matters and must follow stringent time lines set forth in their policies. Parents also have due process rights including the right to appeal to the board of education and Commissioner of Education.
For special needs children, school is often a struggle without the added weight of bullying. Fortunately, New Jersey is in the forefront of protecting school aged children from being bullied. The 2011 New Jersey Anti-Bullying Bill of Rights Act protects children who are bullied for any reason and includes specific time lines for school staff to report and investigate bullying complaints. Schools must establish bullying policies, maintain certain staff members to address bullying and school climate, educate staff and students on reporting procedures, and take steps to ensure a positive atmosphere for all students.
What about laws on the federal level?
The negative effects of being bullied may have a significant and long-term impact on a student’s performance in school and the impact can be even greater for students with special needs. Three federal laws speak to this issue by providing additional layers of protection for children with special needs:
- 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 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.
- 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.
- 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.
How can a parent help the child who is bullied?
What all these laws mean for parents is that they have legal recourse 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 and file a written complaint. Following are some steps that parents may take to help:
- Speak to your 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.
- Report the incident to the school in writing. The law requires schools to respond to reports of bullying. Schools are required to follow certain timelines and procedures when bullying investigations are conducted. Parents can start this process by communicating to the school principal, as soon as possible, in writing, all details about the incident, reading the school district’s anti bullying policy and understanding their rights and district obligations.
- Follow-up to ensure that 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 504 team or IEP team should meet 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 bulling 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.
- Educating 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.
Our state has one of the most stringent anti-bullying laws. Bullying is prohibited and safeguarding our most vulnerable children is a priority.