Bullying of kids With Disabilities - Part VI

Bullying (Photo credits: www.mysecuritysign.com)

 

 

 

Bullying remains the hottest of hot button issues in special education law.  In the first installment of this series, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA.  In later installments, I have discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011).  This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.

Here is more from the court...these are not my words:

 

2. Distinguishing Bullying From Horseplay

Every disagreement among children does not amount to bullying. "What distinguishes bullying from other forms of childhood aggression, whether a hard-fought basketball game or rough-and-tumble play, is unequal and coercive power." Philip C. Rodkin, Bullying and Children's Peer Relationships, in White House Conference on Bullying Prevention, at 33 (March 10, 2011), available at http://www. stopbullying.gov/references/white_house_conference/index.html. See also, Olweus, supra, at 10 ("It must be stressed that the term bullying is not . . . used when two students of approximately the same strength . . . are fighting or quarreling."). Increased power need not be actually present, but there must be at least a perceived advantage for the bully either physical or psychological. Id.; Bonnie Bell Carter and Vicky G. Spencer, "The Fear Factor

[ 779 F.Supp.2d 301 ]

and Students With Disabilities," 21 Int'l J. of Special Educ. 11, 12 (2006).

The bully-victim connection can be viewed as the opposite of a healthy peer relationship. Peers are equals on the same social standing, while a bullying nexus lacks equality of standing. Rodkin, supra, at 33. It is the inequality, abuse, and unfairness associated with bullying that makes it incompatible with what we conceive of as the appropriate "American character." Id.

Related articles

• Bullying of Kids With Disabilities - Part V
• Bullying of Kids With Disabilities - Part IV
• Bullying of Kids With Disabilities - Part III
• Bullying: A Disease That Needs a Cure
• Kan. Gov. to sign anti-bullying bill named for KC student

Bullying of Kids With Disabilities - Part V

Bullying remains the hottest of hot button issues in special education law.  In the first installment, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA.  In later installments, I have discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011).  This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.

Here is more from the court...these are not my words:

a. Cyberbullying

With changes in technology, the Internet has become the venue where widespread hurtful bullying is inflicted by and on young people. See Jan Hoffman, As Bullies Go Digital, Parents Play Catch-up, N.Y. Times, Dec. 5, 2010, at A1 (examining the widespread nature of bullying on the Internet and difficulties schools have in stopping it); Schwartz, supra (discussing the suicides of three teens as a result of online bullying).

The Internet has become a fertile area for bullying behavior. Cyber-bullying is defined as "willful and repeated harm inflicted through the use of computer, cell phones and other electronic devices." Sameer Hinduja and Justin W. Patchin, Overview of Cyberbullying, in White House Conference on Bullying Prevention, at 21 (March 10, 2011), available at http:// www.stopbullying.gov/ references/white_house_conference/index.html. About 20 percent of eleven to eighteen year-olds

[ 779 F.Supp.2d 300 ]

have been cyberbullied at some point in their lives. Id.

Cyberbullying differs from traditional bullying in several ways. First, a cyberbully can attack anonymously. Id. at 22. Second, the bullying can go viral, with many people harassing the same target at once. Id. Third, the bully does not see the emotional toll his bullying creates, allowing the culprit to push further than he or she might in a face-to-face relationship where the adverse effects are clearly perceived. Id. at 23. Fourth, many parents and teachers do not have the technological know-how to monitor these actions. Id.

b. Increased State Efforts to Address Bullying

Legislatures across the country have been taking note of the problem in schools. In recent years, forty-five states have passed laws dealing with bullying and harassment in schools. Arne Duncan, Secretary of Education, Secretary of Education Bullying Law and Policy Memo, Dec. 16, 2010, available athttp://www2.ed. gov/policy/gen/guid/secletter/101215.html. In September 2010, New York's Dignity for Students Act was enacted; it goes into effect in July 2012. See New York Education Law, §§ 10-17 (2010) (protects students against discrimination on the basis of race, color, nation of origin, ethnic group, religion, disability, sexual orientation, or gender). See also, New York Civil Liberties Union,The Dignity For All Students Act (2010), available at http://www. nyclu.org/files/publications/OnePager_DASA.pdf. The Act requires incidents of bullying to be reported to the state Department of Education on at least an annual basis and the development of appropriate codes of conduct. Id. at § 12. ("No student shall be subjected to harassment by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function."); Id. at § 13 ("The board of education and the trustees or sole trustee of every school district shall create policies and guidelines that shall include, but not be limited to . . . [p]olicies intended to create a school environment that is free from discrimination or harassment. . . ."); Id. at § 15 ("The commissioner shall create a procedure under which material incidents of discrimination and harassment on school grounds or at a school function are reported to the department at least on an annual basis. . . ."). See also, Erin Cargile, Lawmakers Move Education Bill Forward, Austin News, April 14, 2011, available at http://www. kxan.com/dpp /news/texas_lege/Lawmakers-move-bullying-bill-forward.

Related articles

• Bullying of Kids With Disabilities - Part IV
• Bullying of Kids With Disabilities - Part II
• Bullying of Kids With Disabilities - Part I

Bullying of Kids With Disabilities - Part IV

Some guys doing intimidation in Instituto Regional Federico Errázuriz, Santa Cruz, Chile (Photo credit: Wikipedia)

Bullying remains the hottest of hot button issues in special education law.  In the first installment, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA.  In a later installment, I discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011).  This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.


Today I provide more of the court's opinion.   You really should read the whole thing.  These are not my words:

1. What Constitutes Bullying

Bullying is not a new phenomenon; literature is blotted with bullies, and many people have had personal experience with a schoolyard antagonist. Dan Olweus, Bully at School: What We Know and What We Can Do 1 (1993). The bully-victim relationship is characterized by a real or perceived imbalance of power and encompasses a variety of negative acts that are carried out repeatedly over time. Id. at 9; Nels Ericson, U.S. Dep't of Justice Office of Juvenile Justice and Delinquency Prevention Fact Sheet,Addressing the Problem of Juvenile Bullying 1 (2001), available at http://www.ncjrs.gov/pdffiles1/ ojjdp/fs200127.pdf. Negative actions can broadly be described as inflicting or attempting to inflict discomfort upon another. Olweus, supra, at 9. Bullying takes three forms: physical (e.g. hitting); verbal (e.g. taunting); and psychological (e.g. engaging in social exclusion). Ericson, supra, at 1. Indirect, psychological bullying, in the form of exclusion and isolation is often less visible, but not less corrosive. Olweus, supra, at 10.  "The consensus among physicians and social scientists, educators and youth development organizations, civil rights advocates and law enforcement is that bullying is neither inevitable nor normal. . . ." Julie Sacks and Robert S. Salem, Victims Without Legal Remedies: Why Kids Need Schools to Develop Comprehensive Anti-Bullying Policies, 72 Alb. L. Rev. 147, 147-48 (2009). Despite this consensus, bullying continues to occur at an alarming rate. A study by a group of psychologists provides an illustration. While observing groups of kindergarten and first grade students, researches noted an incident of bullying on the playground every three to six minutes. James Snyder et. al., Observed Peer Victimization During Early Elementary School: Continuity, Growth, and Relation to Risk for Child Antisocial Depressive Behavior, 74 Child Dev. 1881, 1885 (2003).

"(T)he highest prevalence of bullying is among elementary-school aged children." Gwen M. Glew et. al.,Bullying Psychological Adjustment, and Academic Performance in Elementary School, 159 Archives of Pediatric and Adolescent Med. 1026, 1026 (2005). Younger students of both sexes are the most likely to be singled out as victims. J.F. Devoe and S. Kaffenberger, U.S. Dep't of Educ., Student Reports on Bullying: Results from 2001 School Crime Supplement to the National Crime Victimization Survey 14 (2005), available at http://nces.ed.gov/pubs2005/2005310.pdf. Children who struggle academically are more likely to be victims or be both victim and aggressor. Glew, supra, at 1030. Bullying can be carried out by an individual or a group. Olweus, supra, at 9. The victim of school bullying is most often a single person. Id.

Initially, victimization is situational; "only over time does the field of children who are consistently victimized become narrowed on the basis of ongoing experience." Snyder, supra, at 1881; Macklem,supra, at 66 (finding that once a child is labeled a victim, his status within the peer group drops). This leads to a subset of children being caught up in a "vicious cycle in which victimization and maladjustment feed off one another." Snyder, supra, at 1881. In particular, girls who are unable to develop supportive peer relationships are at an increased risk for persistent ostracism and rejection. Id.at 1895.

"Youth who are victimized are likely marginalized from the mainstream peer group, lacking access to prosocial peers who provide role models of appropriate social skills, and also protection against bullying." Nansel, supra, at 735. The most common place for victimization in elementary school is the playground, followed by the classroom and gym class. Glew, supra, at 1029.

 

Related articles

• Bullying of Kids With Disabilities - Part III
• Bullied Kids Become Anxious Adults

Dueling Children Left Behind? Major Parties Offer Different ESEA Reauthorization Bills

English: President Lyndon B. Johnson signing the Elementary and Secondary Education Act (Photo credit: Wikipedia)

The Elementary and Secondary Education Act, better known as The Artist formerly known as No Child Left Behind, is way due for reauthorization.  Although the Act was blended with IDEA in the NCLB incarnation, that may or may not change when ESEA is finally reauthorized.

In what can hardly be called breaking news, the two major political parties introduced one or two versions each of a reauthorization bill for ESEA last week. They did not agree!

Here is a statement by the Democrats on their ESEA bill.   Here is an article about the bills introduced by House and Senate Republicans.  Assuming that both houses pass the same bill or that a conference committee passes a final version, and assuming that the President signs the bill, ESEA will be reauthorized for the first time in ten years.  But don't hold your breath. Any Questions?

Related articles

• Civil and Human Rights Coalition Applauds Sen. Harkin's Introduction of ESEA Reauthorization Bill
• Rival Proposals Show No Clear Path to ESEA Rewrite
• NEA Positions on Selected Amendments to ESEA Reauthorization
• Here we go again! U.S. Senate Releases New NCLB/ESEA Bill: Committee to Consider June 11

Bullying of Kids With Disabilities - Part III

Some states in the United States have implemented laws to address school bullying. Law prohibits bullying of students based on sexual orientation and gender identity Law prohibits bullying of students based on sexual orientation only School regulation or ethical code for teachers that address bullying of students based on sexual orientation Law prohibits bullying in school but lists no specific categories of protection No statewide law that specifically prohibits bullying in schools (Photo credit: Wikipedia)

Bullying remains the hottest of hot button issues in special education law.  In an earlier installment, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA.  In the last installment, I discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011).  This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.

In this installment, I begin to review the literature on bullying.  Please note the court provided these words in its opinion. I cannot take credit for the analysis:

E. Bullying in America

Were bullying characterized as a disease affecting America's youth, a team from the Center for Disease Control charged with investigating epidemics would have been called in to study it. Joseph L. Wright, Address at American Medical Association Educational Forum on Adolescent Health: Youth Bullying 23 (2002), available at http://www. ama-assn.org/amal/pub/upload/mm/39/youthbullying.pdf. ("If [bullying] were a medical issue, for example an infectious disease in my pediatrics practice, we would have the Epidemic Intelligence Service people from the Centers for Control and Prevention investigate it. The prevalence and epidemiology is striking."). The problem is pervasive; it is perceived by educators as serious, particularly in the middle school years. Michaela Gulemetova, Darrel Drury, and Catherine P. Bradshaw, Findings Form the National Education Association's Nationwide Study of Bullying: Teachers' and Education Support Professionals' Perspectives, in White House Conference on Bullying Prevention, at 11-12 (March 10, 2011), available at http://www. stopbullying.gov/references/white_house_conference/index.html. ("Over 40 percent of [teachers and support staff surveyed] indicated that bullying was a moderate or major problem in their school, with 62 percent indicating that they witnessed two or more incidents of bullying in the last month, while 41 percent witnessed bullying once a week or more."). It is the most common type of violence in our schools. Macklem, supra, at 7.

The issue first seized the attention of the American public after the 1999 shooting at Columbine High School that killed fifteen students and wounded two dozen more. Susan P. Limber, Addressing Youth Bullying Behaviors, in American Medical Association Educational Forum on

Adolescent Health: Youth Bullying 5 (2002), available at http://www.amaassn. org/amal/pub/upload/mm/39/youthbullying. pdf. As part of the investigation that followed the Columbine massacre, the Secret Service examined thirty-seven shooting incidents. They determined that in two-thirds of those cases, the shooter described feeling bullied, persecuted, or threatened at school. Bill Dedman, Secret Service Findings Overturn Stereotypes, Chicago Sun-Times Report, Oct. 15-16, 2000, at 9; Limber, supra, at 5. "I just remember life not being much fun, a shooter recalls. Reject, retard, loser.' I remember stick boy a lot cause I was so thin." Dedman, supra, at 9.

More recently, stories of bullied victims taking their own lives have become common. See, e.g., John Schwartz, Bullying, Suicide and Punishment, N.Y. Times, Oct. 3, 2010, at Al (discussing the suicides of three teens as a result of online bullying); Limber, supra, at 5 (noting that internationally the study of bullying was triggered by the suicides of three young boys in Norway in the 1980s). Some one third of students are engaging in aggressive behavior directed at their peers, oftentimes with the goal of increasing their popularity. Tara Parker-Pope, Web of Popularity, Achieved by Bullying, N.Y. Times blog, (Feb. 14, 2011, 5:03 p.m.), available at http://well.blogs.nytimes.com/2011/02/14/ web-of-popularity-weaved-bybullying/' scp=1&sq=Tara% 20ParkerPope% 20bully&st=cse.

National leaders and educators continue to work toward a solution. President Obama held a summit and announced new federal programs that aimed at "dispel[ing] the myth that bullying is just a harmless rite of passage or inevitable part of growing up." Jackie Calmes, Obama Focuses on Antibullying Efforts,N.Y. Times, March 10, 2011, at A18.

Presidential summits and school shootings achieve headlines, but the day-to-day adverse affects of bullying in damaging educational opportunities to students are as real as they are unnoticed. It is a problem that affects the school performance, emotional well-being, mental health, and social development of school children throughout the United States. Tonja R. Nansel et. al., Cross-national Consistency in the Relationship Between Bullying Behaviors and Psychosocial Adjustment, 158 Archive of Pediatric and Adolescent Med. 730, 733-35 (2004). Whether a child is the victim, aggressor, or merely a bystander, research shows that those in a close vicinity to bullying are adversely marked. Id. See also, Macklem, supra, at 44, 90-92.