The mother of a former Leander Independent School District student has sued the school district claiming that the district failed to protect her son from bullying, according to a report by The Austin American-Statesman. According to the lawsuit, the boy was targeted at least in part due to Asperger’s Syndrome, a developmental disorder that impacted how he socialized and interacted with others.
There is no dispute that students with disabilities can be especially vulnerable to bullying. Further, courts may not look favorably on a school district that has failed to protect a student with special needs from abuse by other students. The Leander ISD suit is at an early stage and the facts have not been fully developed, so it is yet to be seen whether the district will face any liability in that case.
What is the potential for liability in a bullying suit? A number of federal anti-discrimination statutes address bullying and harassment and impose responsibilities on school administrators to protect the civil rights of students. Title IX of the Education Amendments of 1972 prohibits gender discrimination. In addition, Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 prohibit discrimination based on a disability. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin. Each of these statutes offer protections to those who have been harassed or severely bullied based on their protected category. Further, all states receiving federal education funding under the Individuals with Disabilities Education Act (IDEA) must comply with federal requirements designed to provide a “free appropriate public education” (“FAPE”) for all disabled children.
Several courts have held that a school’s deliberate indifference in failing to prevent bullying of a special education student resulted in the denial of FAPE. The Fifth Circuit Court of Appeals, which has jurisdiction over Texas, has not directly addressed this issue, however. One 2011 case, T.K. v. New York City Department of Education, __ F.Supp.2d __, 2011 WL 1549243 (E.D.N.Y. 2011), examined the question of whether bullying can be grounds for finding a denial of FAPE. T.K. received special education services under the classification of learning disabled. The parents claimed the T.K. was subjected to repeated bullying at school as a result of her disability, that the school was aware of the conduct, and that the school failed to properly address the issue. The parents requested a due process hearing complaining that the school denied T.K. FAPE and a hearing officer ruled in favor of the school. The case proceeded to federal court. The court developed the following standard in IDEA bullying disputes:
When responding to bullying incidents, which may affect the opportunities of a special education student, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination.
It is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education. Further, the bullying need not be a reaction to or related to a particular disability.
The record in the T.K. case included evidence of bullying by other students. The parents showed that they tried to communicate the problems to the school principal. The school, however, did not produce documentation that it either investigated the claims of bullying or took steps to remedy the conduct. Finally, evidence supported the finding that the bullying caused the girl to resist attending school, hurt her academically, and damaged her emotional well-being. According to the court, the parents produced sufficient evidence to create a fact issue as to whether the school’s failure to properly respond to the bullying denied the student FAPE.
Because school districts in violation of these federal anti-discrimination laws may face the withdrawal of federal funding, injunctive relief, damages, and attorneys’ fees, these cases can be very costly and time-consuming for school districts. That is why it is paramount for school districts to learn to address allegations of peer harassment swiftly and thoroughly, with supporting documentation along the way. Districts faced with these allegations will need to show that they took action to address the complaints and a genuine effort to stop the harassment. Separating students, investigating complaints, interviewing students, taking written statements, meeting with parents, and reporting the incident through appropriate channels, are just some examples of steps that district personnel should take when faced with a student complaint of peer harassment. Further, documenting each of these steps will go a long way in fighting allegations of deliberate indifference to known acts of harassment. For more practical strategies on how to handle peer harassment and bullying complaints on your campus, see the Texas Legal Handbook on Student Bullying.