Bullying, Harassment, and Children with Disabilities

While both Section 504 of the Rehabilitation Act (section 504) and the Americans with Disability Act (ADA) prohibit discrimination on the basis of disability, children with disabilities are bullied at public schools more frequently than their nondisabled peers. In view of this, schools should take note that three United States circuit courts of appeals have directly held that bullying of students with disabilities may amount to a failure to provide a free and appropriate education [see T.K v. New York City Department of Education, 779 F.Supp.2d 289 (E.D.N.Y, 2011)].

The Office of Civil Rights enforces Section 504 and the ADA. In a “Dear Colleague Letter” dated October 26, 2010, Assistant Secretary for Civil Rights Russlynn Ali reminded schools that student misconduct that falls under a school’s anti bullying policy also may trigger the school’s responsibilities under these federal anti-discrimination laws and that these laws may be violated when peer harassment creates a hostile environment and the harassment is tolerated, not adequately addressed, or ignored by school employees. This was followed by missive dated December 16, 2010, from Secretary of Education, Arne Duncan,titled the “Secretary of Education Bullying Law and Policy Memo.”

The U.S. Department of Education defines disability harassment as “intimidation or abusive behavior based on disability that creates a hostile environment.” Children who have deficits in the areas of social and communication skills are at the greatest risk for bullying and victimization. When harassed or bullied, they experience peer rejection, are marginalized from their schoolmates, have fewer opportunities to learn from peers who model appropriate social skills, and are more likely to struggle with loneliness. After the Columbine massacre, it was not surprising to learn that a study of thirty-seven school shootings found that in two-thirds of of those incidents, the shooters described themselves as feeling bullied, persecuted, or threatened at school.

Bullying and harassment take many forms, including verbal and nonverbal behavior, and conduct that is physically threatening, harmful, and humiliating. Reports of incidents in which children with disabilities have been bullied and harassed at school are legion. They include situations in which elementary school bullies bait children with significant social skills deficits until they strike out or have a full-blown meltdowns, and play cooties-type "games" in children who have been touched by the child with a disability are declared to have that child's “germs.” They also include situations in which bullies use the school's Bully Reporting Procedures to falsely report inappropriate conduct on the part of a child with a disability.