Tuesday, July 24, 2007

Bullying- New Hot Button Issue


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.


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  2. Do you see this as a potential law review note topic? Just curious as a former special ed. teacher starting the process and looking for something personally relevant.

  3. I'm not sure if there is enough caselaw yet for a law review note. There may be plenty in a year or two, but I assume that it will be too late for you.

    Wow a special ed teacher with a law degree, will you want to specialize in SpEd Law? By the way, please vote for my blog on the bloggers choice awards.

    Good luck, and let me know if you decide to write a NOTE.

  4. I'm thinking there may be enough background and law for a note here if I either

    a. Look at it as a potential "next step" for denial of FAPE lawsuits


    b. tie it in with Title IX sexual discrimination law somehow.

    I'm not sure what angle I'll take yet, but I'd like to find a way to write on this topic even though the case law is a little light.

    BTW, you can count on my vote

  5. Let me know when you publish it so I can quote you on this blog!

    Thanks for the support.


  6. I'm tired of hearing about the rights of the few. Everything is skewed in the direction of favoring the rights of the Special Ed student. My daughter is a General Ed student and has been bullied by 3 different Special Ed students. One bullies so severely and frequently that we filed a police report. No matter what the Special Ed students do they get away with it.

  7. I support your right to disagree, Anonymous.

    Concerning your daughter, I cannot comment on any actual situations as explained in the disclaimer on the blog. I recommend that you contact an attorney licensed to practice in your state regarding her situation.