The Law: Parents’ Rights in Combating Bullying

lawcourts

A review of what current legal resources and laws exist to help parents of children with special needs

lawcourtsSince 2005, the issue of bullying has become so important that 45 of the 50 states have passed laws against
it. In 2010, several states have intensified their bullying laws with the passage of legislation that calls for
training in the schools. Unfortunately, very few of these laws address the specific issues and needs of children
with special needs.

Attorney Judith C. Saltzman practices special education law on behalf of the Ohio-based firm Hickman and Lowder, Co., LPA. Judith has written many articles on the law and children with special needs and frequently addresses parents and professionals on the issue. She offered parents the following advice on bullying:

Know Your Allies. Parents have a powerful ally in the U.S. Department of Education’s Office of Civil Rights (OCR). In a Letter to Colleagues issued on October 26, 2010, OCR informed all public schools in the U.S. that bullying and harassment, including harassment of one student by another, can be a form of prohibited discrimination. Schools that know about, but fail to stop such harassment, may be in violation of federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, sex, gender or disability. The OCR letter can be found at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html. Some school districts have anti-bullying policies, but merely having such a policy does not necessarily fulfill the school district’s responsibility under federal law. Be sure to read the school’s policies.

Organize. Get together with other parents whose children have been bullied, read the OCR letter and ask each other whether the school is meeting OCR’s requirements. If appropriate, share the experiences and concerns with the school board and request changes. OCR’s letter recognizes that effective prevention may require training, not only for the perpetrators of the harassment, “but, also, for the larger school community to ensure that all students, their families and school staff can recognize harassment if it recurs and know how to respond.” Consider whether measures such as this could be effective in changing the school climate and ask the board of education for the programs, services and protections that will help your children.

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Ask for help from the OCR. One can file a complaint with OCR, including an online form. OCR investigates such complaints, whether or not a lawyer files them for an individual. One can file a complaint about what has happened with an individual child, and, if one so chooses, also explain how other children have been similarly affected (i.e., how the child is representative of a group of children). Parents with similar concerns can file similar complaints. Complaints should be filed promptly – within six months of the incident(s). For instructions on how to file OCR complaints, see http://www2.ed.gov/about/offices/list/ocr/docs/howto.html.

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Know the law

The laws prohibiting harassment in schools are as follows:

A great resource for parents is www.wrightslaw.com – accurate, reliable information about special education law, education law, and advocacy for children with disabilities.

Get the facts. If a child has been targeted, get the facts as quickly and accurately as possible. Save all communications from the school, the child or others which relate to the incident(s). Make a written request for the child’s educational records. One can obtain copies of these records (possibly for a fee) if needed to enable one to effectively review them outside of the school with a spouse or partner, a child’s counselors and others from whom one may seek input. If the child can’t tell you what happened, then one may need to enlist professional support. School officials, teachers, other school employees, other parents and even students can also be an important source of information, particularly if a child is non-verbal.

Use the IEP process. Bullying or harassment may decrease a student with a disability’s ability to benefit from his/her education and deny a Free Appropriate Public Education (FAPE). See the OCR letter issued on July 25, 2000 at http://www2.ed.gov/about/offices/list/ocr/docs/disabharassltr.html. Hence, if a child has (or should have) an IEP (or even a Section 504 plan), then one can request a meeting to address the child’s harassment. A meeting will not only give one the opportunity to gain more information, but, also, to brainstorm with teachers about adding goals, objectives and services to the child’s IEP that will fortify the child against being bullied. Some areas to consider include social skills work, self-advocacy skills, speech language development, coping strategies, and enhanced supervision and aide services. An IEP meeting will also give one the opportunity to request a change of placement. This may be the best practical solution for protecting a child in cases where other students have created a hostile environment. It is a good idea to have a recording of this meeting or, failing this, to send a confirmation letter afterward.

The IEP: Addressing bullying with the child’s IEP

Put school officials on notice about the problem. Request corrective action, in writing, from school officials. Send a letter to all school officials in a position to protect the child, informing them of what has or is occurring and asking them to advise the steps that are needed to protect your child. Be factual and complete — don’t assume that they already know about the harassment. Such letters can go (preferably by certified mail, return receipt requested) to the members of the board of education, superintendent, principal, assistant principal, guidance counselor, teacher and any other school employee in a position to stop the harassment of the child. School employees who fail to take action in response to such a letter may be demonstrating “deliberate indifference,” a factor that may expose them to damage claims later under federal civil rights laws if the child is harmed. Hence, the goal of the letter is to motivate quick, corrective action that prevents harm, or further harm, to the child.

It is always a good idea to meet with the school principal and/or superintendent to discuss the facts of the child’s harassment, and ask for the solution desired, either before or after sending the written notice described above.

The Experts: Learning best practices from parents of children with special needs

Please help abilitypath.org continue to bring national awareness, quality information, and a voice to the issues of families with children of special needs by donating today.

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