Tuesday, July 24, 2007
Bullying- New Hot Button Issue
Bullying is the hottest of hot button issues in special education law.
Generally the claim of the parent is that the student cannot receive the benefit of his IEP if he is being bullied. Bullying is a growing problem that is starting in earlier grades and lasting longer. (San Diego Tribune, 7/9/07). Courts and hearing officers are beginning to hold that disability-based harassment may result in a denial of FAPE. In Shore Regional High Sch Bd. of Educ v. P.S. 41 IDELR 234, 381 F.3d 194, (3d Cir. 8/30/04), the Third Circuit held that the school district’s failure to stop bullying may constitute a denial of FAPE. Bullies constantly called the student names, threw rocks and hit him with a padlock. Despite repeated complaints, the bullying continued and the student eventually attempted suicide. See also, Preschooler II v. Clark County Sch Bd of Trustees 47 IDELR 151, 479 F.3d 1175 (9th Cir. 3/21/7); Stringer v. St. James R-1 Sch. Dist. 45 IDELR 179, 466 F.3d 799 (8th Cir. 5/3/6); Scruggs v. Meriden Bd. of Educ. 44 IDELR 59 (D.Conn. 8/22/05); RP & MP ex rel KP v. Springdale Sch Dist 107 LRP 9778(W.D. Ark 2/21/7); Walden v. Moffett 46 IDELR 159(E.D.Calif 8/28/6).
Other courts have ruled that in certain cases involving bullying, the parent need not exhaust administrative remedies before proceeding to court to pursue possible money damages. See, Blanchard v. Morton Sch. Dist. 420 F.3d 918, 44 IDELR 29 (9th Cir. 8/19/05); Walden v. Moffett 46 IDELR 159 (E.D. Calif 8/28/6); Scruggs v. Meriden 44 IDELR 59 (D.Conn 8/22/05). These issues may well transcend special education. The Columbine tragedy raised our national consciousness concerning bullying and harassment of all kinds in the schools. The issue, however, has a big impact upon special education. Many children with disabilities report that they have been bullied. In one study, the number of disabled children enduring bullies approached 80% (Education Guardian 6/18/07).
Hearing officers and courts should anticipate more cases alleging bullying.