A school’s failure to prevent and address peer-on-peer harassment has long been held to violate federal laws such as Title IX and Section 1983.  Over the past few years, however, there has been an increase in parents claiming that a school denied their child a FAPE (and, therefore, violated the IDEA) as a result of bullying. 

According to a recent decision issued by the United States District Court for the Eastern District of New York, a school may be found to have violated the IDEA if “school personnel was deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in [his/her] educational opportunities.”  In order to be actionable, the bullying must be sufficiently severe, persistent or pervasive so as to likely affect a student’s opportunity to receive an appropriate education.  When bullying is reported, a school must take prompt and appropriate action, including investigating the conduct and taking steps to prevent it in the future.

This decision sets forth requirements which are similar to those contained in the Dignity for All Students Act (DASA), which prohibits discrimination against and/or harassment of students on the basis of, among other things, race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex.  DASA defines harassment as “the creation of a hostile environment by conduct or verbal threats, intimidation or abuse that has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being….”  DASA requires school districts to create policies and guidelines related to the creation and maintenance of a harassment-free school environment.  It becomes effective on July 1, 2012.

As you monitor the classroom-based aspects of your students’ individualized education plans as well as your overall school environment, we recommend that you also take steps to prevent the bullying of students with disabilities and immediately address any bullying that is brought to your attention.

If you have any questions regarding this area of the law, would like advice regarding a specific bullying incident or need assistance reviewing your anti-bullying-related policies and/or procedures, please contact us.

THIS MEMORANDUM IS MEANT TO ASSIST IN THE GENERAL UNDERSTANDING OF THE CURRENT LAW.  IT IS NOT TO BE REGARDED AS LEGAL ADVICE.  THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL. 

© Lamb & Barnosky, LLP, 2011