Bullying can have serious physical and psychological consequences

School Bullying and Section 1983

Bullying of Children with Special Needs: IDEA Remedies and Section 1983 Claims 

Bullying of students with special needs is a significant problem in U.S. schools. Studies have shown that bullying affects the ability of a child to concentrate and flourish in an academic environment. Research also shows that students with disabilities are 2 to 3 times more likely to experience bullying than other students. Approximately 60 percent of students with special needs reported being bullied on a regular basis (FN1)

These numbers suggest that a majority of students with special needs and their parents could benefit from knowing some of the more common legal remedies under federal law available to address their problems. This post will focus primarily on student to student bullying in the 3rd Circuit, and the list of remedies is certainly not exhaustive. This article is not intended to be legal advice; it is only meant to inform. Call or visit your local school district’s web site for information on reporting bullying.

Individuals with Disabilities Education Act: Modification of Child’s IEP, or 504 Plan 

The Individuals with Disabilities Education Act (IDEA) ensures that children with special needs receive a free and appropriate education (FAPE). IDEA is enforced in part by the Office of Special Education Programs (OSEP) (FN2). OSEP provides guidance to school districts on bullying and has asserted that when a student with special needs is bullied in a way that affects the student’s ability to receive a meaningful educational benefit, the continuation of the bullying constitutes a denial of the student’s right to FAPE and must be remedied. OSEP has determined that schools have an obligation to convene the child’s IEP team (individualized education plan) to determine if the child’s needs have changed as a result of bullying and make appropriate changes to the IEP. This does not necessarily mean segregating the child from potential bullying as IDEA also requires that FAPE is provided in the least restrictive environment (FN3).

At any point when a parent of a student with special needs suspects bullying, they have the right to request an IEP meeting, and generally schools must grant the request. The parents will be involved in the IEP planning and ultimately need to give consent for the modifications. This process is likely familiar to parents of students with disabilities. As a last resort, if an acceptable plan is not created in collaboration with the IEP team the parents have the right to request a due process hearing to resolve disputes with the district. During this process the parents have a right to hire legal counsel to assist them. The parents are required to bring a claim within two years of the IEP dispute. In the majority of cases the parents will need to exhaust their available administrative remedies under IDEA before seeking claims in federal district court. (Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266 (3rd Cir., 2014))

Section 1983 Claim for Damages: Recent Developments in Morrow v. Balaski

Generally there is no duty for the state actors to guarantee individuals protection from one another. However, under 42 U.S.C. § 1983, state actors can be held liable for injuries resulting from “state-created” danger or injury to a person with whom a state actor has a “special relationship.” (DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989)) Traditionally, this would include a claim against a school or its employees for bullying incidents between students, but recent 3rd Circuit precedent has made section 1983 bullying claims less likely to prevail. (Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013)).

In Morrow, the 3rd Circuit decided that in a school bullying case the school district did not have a special relationship with its students, and there was not state-created danger as a result of the school’s failure to prevent the bullying. Morrow involved non-disabled individuals in high school, so it is not certain that this reasoning would be followed in a special needs bullying case because it could possibly be determined that a special relationship exists depending on the facts of the individual case. Often IEPs provide for more restricted placement or supervision, so it would not be surprising if the Court found an exception to the rule in Morrow.

Other Remedies

There are likely other tort or statutory remedies available to you depending on the specifics of your case. If you have any questions about your child’s specific remedies it may be in your best interest to contact an attorney. We would be happy to speak with you and discuss the specific details of your case.

To learn more about your legal rights when it comes to bullying, give us a call at 215-650-7563.

Note, nothing in this article or on this website is to be considered medical or legal advice. 

1 http://www.pacer.org/bullying/resources/students-with-disabilities/

2 20 U.S.C. 1400 et. seq

3 OSEP Dear Colleague Letter 10/21/2014