Friday, November 7, 2014
Bullying of Kids with Disabilities - Part VII
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. (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.) #bullying
Here is more from the court...these are not my words:
Children of both genders experience the gamut of bullying behavior. Olweus, supra, at 18. Boys are more likely to bully and to be bullied than girls. Id. When they do bully, boys are inclined to engage in direct bullying such as hitting or taunting, while bullying among girls most often takes the indirect forms of social exclusion or rejection. Id.; Macklem, supra, at 55; Devoe, supra, at 4. Boys physically striking one another and girls harassing with their words has become "an accepted part of peer culture." Rodkin, supra, at 35. Girls often bully by slandering a classmate, spreading rumors about her, and manipulating friendships to harass their target. Olweus, supra, at 19. Because bullying among girls is most often more subtle, it is underreported. Macklem, supra, 55. Girls know that these actions are "mean," but they are unlikely to report them as bullying.Id. Such harassment enables the bully to have "power over others by controlling relationships and friendships." Macklem, supra, at 56. This form of bullying brings with it the ability to damage the victim's reputation or status within the peer group. Id. It is a behavior among girls developed early. Children are able to use this method as early as five years old, and as they get older continue to rely on it. Id. at 57. This may be because it is the most effective and tolerated form of bullying. Id. "Girls use relational bullying earlier than boys, which may be due to the more sophisticated nature of relational aggression." Id. at 60.
Children interact in various settings: school, home, church, neighborhoods. Within each there are risk factors. Swearer, supra, at 3. How children interact in these various backgrounds helps to define bullying and why children engage in it. Id. "There is no one single causal factor for bullying." Id.
When asked why certain children are selected for ridicule, students typically point to external differences such as "obesity, red hair, an unusual dialect, or wearing glasses." Olweus, supra, at 30. Research does not support this conclusion. Id. The one external characteristic that is likely to play a role in whether a male child will be bullied is lack of physical strength. Id. This does not hold true for girls, however, who are more likely to bully those who are actually physically stronger than they are. Macklem, supra, at 55. Differences among students in areas such as religion, disability, or ethnicity have the ability to affect the struggle for power among young people and lead to a student being singled out as an object of harassment. Rodkin, supra, at 35.
Several other factors play a major role in determining what makes students more likely to bully. One is the climate of the school. When a school is not supportive or is negative, bullying thrives. Swearer, supra, at 5. When teachers downplay bullying or view it as kids being kids, bullying rates are higher. Macklem, supra, at 27-29.
One study suggests that the aura of the school with respect to bullying has more to do with whether bullying occurs than the behavior of the victim. Id. at 26. The school's atmosphere includes the disciplinary system, preventive policies, the architecture of the building itself, resources, support services, and morale. Id. School control is at its worst when staff and dominant students model this behavior, bullying is ignored or reinforced, or it is accepted as normal and expected. Id.
Parents play a role in determining whether someone is likely to bully. Bullies tend to come from homes with "low cohesion, little warmth, absent fathers, high power needs [that] permit aggressive behavior, physical abuse, poor family functioning, and authoritarian parenting. [Those who are both bully and victim] come from families with physical abuse, domestic violence, hostile mothers, powerless mothers, uninvolved parents, neglect, low warmth, inconsistent discipline, and negative environment." Swearer, supra, at 6. See also, Macklem, supra, at 15-20 (discussing the potential correlation between family environment and bullying.)
Bullying may also be the result of a life cycle where students believe it is simply their turn to play the abusing role. Kathy Liguori, Time to Get to the Heart of Bullying, Newsday, March 21, 2011, at A36 (quoting a student who explained he was bullying a younger student because he thought it was his turn to do so). Children use bullying to demonstrate to their peer group that they are able to dominate. Olweus, supra, at 35; Macklem,supra, at 38-39; Rodkin, supra, at 33. In this way, bullying becomes a social event where the dominance of the bully is put on display for an audience. Research demonstrates that in 90 percent of observed cases, a bully was playing to an audience. Rodkin, supra, at 36. See also, Deborah A. Pepler et. al., Peer Process in Bullying,in Handbook of Bullying in Schools: An International Perspective 472 (2010) ("Even though a vast majority of students report that they find it unpleasant to report bullying, the vast majority of bullying episodes have an audience."). "Thus the problem of bullying is also a problem of the unresponsive bystander, whether that bystander is a classmate who finds the harassment to be funny, or a peer who sits on the sidelines afraid to get involved, or an educator who sees bullying as just another part of growing up." Rodkin, supra, at 36.
For those students who are connected with their social group, bullying serves as a way to control their peers.Id. at 33. For those bullies who are excluded by their peers, bullying represents a way to lash out at a social system that keeps them on the periphery. Id. A majority of bullies who are marginalized are male; students being controlled by their peer group are evenly split between both genders. Id. at 34.
These bullies who are integrated within their peer social groups are easy to ignore or mischaracterize—leading two researchers to describe them as "hidden in plain sight." Id. at 36. They have a variety of friends and possess strengths such as good social skills, athleticism, and attractiveness. Id. at 34.
Culture is weighty in determining why someone will bully. Television, video games, and the Internet may be linked to increased aggression and an increased likelihood for bullying behavior. Macklem, supra, at 21-23. These influences, if they have any affect at all, are not as strong as other cultural influences such as the neighborhood and the environment in which the child is raised. Id. at 24.