10.18.2011
Disability Related Bullying or Not? Knowing the Difference but Responding to Both

October is National Bullying Prevention Month and recent media coverage of “mean girls and boys” and the reported influx of bullying through social networking have brought the reality of bullying to the doorstep of America’s schools, causing many state and local educational agencies to develop policies to address and prevent bullying of students.  It is well established that children with disabilities may be more susceptible to bullying than their typical developing peers.

While some acts of bullying simply trigger action under state or local (i.e. school district or county office of education) anti-bullying policies, school districts and/or county offices of education should be attentive in considering whether the misconduct triggers additional responsibilities under federal or state anti-discrimination laws and/or results in a denial of a free appropriate education (FAPE) in the student’s least restrictive environment (LRE).

Bullying or Not?

A school or county office of education is responsible for taking prompt, reasonably calculated, and effective steps to end discrimination and harassment, prevent retaliation against complainants, eliminate any hostile environments, and prevent harassment from recurring when the school district or county office of education knew or reasonably should have known about the misconduct.

However, not every instance of alleged bullying, either because of a disability or some other protected category, amounts to actionable, disability-based discrimination and/or harassment under federal or state law.  For example, where a student with a speech and language disability is teased by a peer about poor athletic performance during a dodge ball game, the teasing may not be related to the student’s disability and therefore will not rise to the level of disability-based misconduct.  By contrast, consider an instance where several students repeatedly call a student with intellectual disabilities “stupid,” “retard,” “dummy”, etc.  In the later scenario you may be able to clearly determine that there is disability-based misconduct.

Admittedly, scenarios are rarely clear cut, in part because investigation invariably reveals “two sides” to a story.  For instance, consider a student with autism and sensory issues who wears his favorite shirt to school everyday and is repeatedly teased or less ominously, questioned by his peers about why the same shirt is worn to school every day. Perhaps it boils down to teasing, perhaps the questions/comments arise out of concern about the economic well being of the student and the student’s family, or perhaps it is a mixture of concern and ridicule.  Whatever the case, the comments can rise to the level of disability-based discrimination and/or harassment depending on the circumstances.

Responding to Bullying and Harassment

In addition to adhering to local anti-bullying policies, federal and state law, school districts and county offices of education should investigate and, where appropriate, take prompt action to address bullying even where the misconduct is unrelated to the student’s disability – since it could arguably be connected to another protected category or simply subject to a civil action based on a theory of intentional or negligent infliction of emotional distress, not to mention other causes of action. 

Given the multiple, overlapping issues that can arise from bullying of students, we advise prompt action and, where appropriate, involvement of counsel to ensure that all legal issues are addressed.

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