Bullying is a common occurrence among district schools in New York City with the major targets often students regarded as different such as the disabled. In this regard, this article highlights a fictitious scenario regarding bullying of disabled students in attempt to answer legal questions regarding education law about bullying students with learning disabilities. Using New York state statutes and related cases, this paper outlines legal actions individuals are likely to take under the Individuals with Disabilities Education Act (IDEA).
Facts of the Case
Tyler is an 8-year-old male student at a Middle School in New York City. He has ADHD and is very wild. His woes started when one day while hanging out at school, some kids realized he was taking medication for his ADHD, and they thought it was the funniest thing. They told him they did not want to hang out with him because he was a retard. This was the onset of his persistent bullying by schoolmates; he was repeatedly bullied during his schooling years between 2007 through 2009.
According to a friend, Tyler was constantly mocked by other school children with some intentionally avoiding him. Besides, they were always physically restraining him from having fun while at school. In addition, students in both lower and upper grades were always trying to trip Tyler and whenever he fell; his teachers would get upset with him for making a scene. Moreover, his classmates would decline touching pencils after he had touched them and they kept laughing at her whenever she tried to answer questions and speak during her lessons. Following this chain of events, Tyler began refraining from attending school, affected his academic progress and as well negatively affected his emotional well-being and self-esteem.
Due to the persistent bullying during his school years, Tyler's parents tried enlisting the school personnel at P.S 6, in solving his problem with little success. To ensure his son's problems were addressed, his father notified the principal, Joseph Staley, of his son's woes; that he was constantly being bullied by his peers but his plights were ignored by the administrator; the principal admitted receipt of two letters where bullying was specifically reported. The administrator however never initiated any investigation into the matter and could not remember any investigative action taken regarding Tyler's issue. Besides, during a special education meeting, when asked about the issue faced by Tyler, the principal declined to comment on the matter since he believed it was irrelevant to the student's special education programming.
Furthermore, several school aides contacted Mr. Staley to testify that Tyler was frequently bullied by his classmates but like before, the principal disregarded the complaints and the matter remained unsolved. Eventually, Tyler's parents were forced to remove him from the P.S. 6 thus enrolling him in the Long Beach Unified District School, a private school offering educational and therapeutic services to students with learning disabilities. Following the chain of events it is clear that Tyler was constantly bullied by schoolmates in contrary to New York's education laws and besides, he has an actionable claim in accordance to the IDEA.
Legal Question Presented
Recent publications have established that approximately 34% of students who report taking medication for ADHD face bullying victimization at least twice or thrice a month; there is also a substantial increase in bullying of girls with ADHD. In this regard, New York's Dignity for Students Act was enacted as outlined in the New York Education Law; Section10-17 (2010) to safeguard students against discrimination based on race, disability and gender among others.
In addition, the Department of Education's Office of Special Education and Rehabilitative Services and Office on Civil Rights issued the 2000 "Dear Colleague" letter highlighting the issue of disability harassment, a category within which bullying of students with disabilities is included. The letter notes that educational institutions, including both K-12 schools and institutions of higher education, have a responsibility to ensure equal educational opportunity for all students and that disability harassment denies that right and as a result is a form of discrimination prohibited by Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act.
Besides, after the PARC v. Pennsylvania (1971) case, the 14th Amendment's equal protection clause was initiated to ensure students with disabilities received FAPE similar to students without disabilities and enrolled in regular public school classes. Public Law 94-142 (1975) and the Public Law 108-446 as well as IDEA created funding entities to ensure disabled students accessed FAPE in the least restrictive environment.
The situation faced by Tyler during his school times raises three major questions. The first being, who qualifies as a student with disability, secondly, what actions, are a school supposed to initiate to end bullying of disabled students. The final question is does the failure of a school to arbitrate after becoming aware of the bullying exclude a student from receiving FAPE as warranted under IDEA.
Analysis of the Questions
The principal and other school authorities are not to blame and neither is Tyler for his constant bullying. There are two definitions of disability relevant in the educational context depending on the law under question; disabled students under Section 504 of the Rehabilitation Act and students with disabilities under IDEA. However, the differentiation of Tyler's disability category by the principal may have been difficult leading to slow reactions following notifications of Tyler's bullying instances.
According to Section 504 of the Public Law 94-142, a student with disability has a physical or mental impairment greatly limiting major life activities, has a record of such impairment and is ascertained to be having the impairment. In line with this, under the ADA Amendments Act of 2008, major life activities encompass, performing manual tasks, seeing, hearing, eating, sleeping, walking, speaking, breathing, and learning among others. Based on this, it cannot be concluded that Tyler was disabled since he could carry out most activities; as a result his bullying according to the principal was not disability-based. As outlined in the ADA Amendments Act, disability is likely to be interpreted very broadly which is likely to result in different and confusing opinions.
As outlined under IDEA, a disabled student should be examined and ascertained to fall within one of IDEA's specific disability categories; intellectual disability, deafness, blindness, emotional disturbance, autism, specific learning disability among others, and need special education and related services by reason thereof. In this regard, it can be concluded Tyler is disabled in need of care and protection against bullying as stated in Title II of the Americans
with Disabilities Act. In addition, there is sufficient evidence to show Tyler was bullied based on his medical condition and the school failed to take action. The school was thus liable for violation of the Title II of the Americans with Disabilities Act which states that,
"When harassing conduct is sufficiently severe, persistent, or pervasive that it creates a hostile environment, it can violate a student's rights under the Section 504 and Title II regulations...even if there are no tangible effects on the student."
Therefore, the school was supposed to take prompt and appropriate action and investigate if the harassment actually occurred.
By failing to act upon the plights raised by Tyler and his parent's, the school administrator was relying on the ruling outlined in the administrative guidance letter by the United States Department of Education Office of Civil Rights titled, Dear Colleague Letter: Bullying and Harassment, at 2 (Oct. 26, 2010), stating that;
"The conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of rights of a disabled student. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment."
The school may have assumed the bullying never interfered with Tyler's schooling activities since it was…