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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. (NOTE: What follows is a discussion of TK I. Please note that we have subsequently done a post on the District Court's decision on the appeal of the SRO decision after the court's remand, or TK II. You can read that post here. TK I remains good law.)
Here is more from the court...these are not my words:
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
have been cyberbullied at some point in their lives. Id.
[ 779 F.Supp.2d 300 ]
| [ 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.
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