Date: January 8, 2018Attorney: Arla D. Cahill

January 8, 2018
By Arla D. Cahill

A 2009 study by the U.S. Departments of Justice and Education, “Indicators of School Crime and Safety,” reported that 32% of students aged 12 through 18 were bullied in the previous school year. The study reported that 25% of the responding public schools indicated that bullying was a daily or weekly problem. In the same year, a study by the Centers for Disease Control and Prevention, “Youth Risk Behavior Surveillance,” reported that the percentage of students bullied in New Jersey is 1% higher than the national median.

New Jersey’s Anti-Bullying Bill of Rights Act (the Act) requires each public school district to adopt a policy prohibiting “harassment, intimidation and bullying” (known as HIB) of a student on school property, at school-sponsored functions and on the school bus. The school district’s policy must include a definition of HIB conforming to the Act, a procedure for reporting and investigating an act of HIB, as well as the consequences and appropriate remedial action for a person who commits an act of HIB, among several other basic policy requirements. Notably, the Act not only prohibits acts of HIB committed by students, but also by adults, including teachers and school administrators.

HIB is defined by the Act to mean “any gesture, any written, verbal, or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic…, that substantially disrupts or interferes with the orderly operation of the school or the rights of other students and that a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student’s property or placing a student in reasonable fear of physical or emotional harm to his or her person or damage to his or her property; has the effect of insulting or demeaning any student or group of students; or creates a hostile educational environment for a student by interfering with the student’s education or by severely or pervasively causing physical or emotional harm to the student.”

Bullying not only has a serious impact on the psychological wellbeing of a bullied student, it profoundly interferes with a student’s ability to learn, which, in turn, undermines a student’s civil right to receive from the public school a “free, appropriate public education” (FAPE). According to the National Bullying Prevention Center, students with disabilities are 2 to 3 times more likely to be bullied than their non-disabled peers. Factors that may have an impact on bullying are that a disabled student may be more socially isolated in a school setting due to disability-related behaviors, poor ability to understand social cues and respond accordingly, and pull-outs from the mainstream learning environment to participate in special services required by the student’s individualized education program (IEP). These circumstances can limit non-disabled students from getting to know and forming friendships with disabled students, and developing tolerance for disabled peers’ differences. Further complicating the matter is that bullying of a disabled student may go undetected by adults for a prolonged period of time if the student has limited or no speech ability, cognitive impairment, and/or has difficulty understanding what bullying conduct is and that it should be reported promptly to a parent, teacher or administrator.

In addition to the Act, New Jersey’s Law Against Discrimination and federal laws like Section 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act of 1990, and the Individuals with Disabilities Education Act, protect disabled students from bullying. However, having strong anti-discrimination and HIB laws, policies and procedures in place is not enough to protect children with special needs if parents do not know about or understand their child’s rights. Therefore, it is essential that parents take a proactive approach by following these suggested measures:

  • Obtain a copy of the school district’s HIB Policy and Regulation (sometimes called By-Laws) to become familiar with the definition of HIB, the procedures for reporting HIB to school officials, and the investigation process that the school is required to follow. Districts typically post this information on their websites, but if you cannot locate it, request a copy from the school principal.
  • Even if no acts of HIB have occurred, it may be beneficial to a disabled student who has difficulty socializing with peers and processing his environment effectively for his parents to request that the child study team prepare goals and objectives for the IEP or 504 plan that address socialization and self-advocacy skills development.
  • Discuss with the student different examples of HIB (remember HIB can take the form of abusive and threatening instant messages, texts, and social media posts) and encourage him to come to his parents, teachers or other adult to report bullying. Assure him that no one deserves to be bullied and that adults are available to help him.
  • Ask school administrators what measures, policies and programs it implements to teach non-disabled students tolerance for others with differences and disabilities, including instruction about the district’s anti-HIB policy.
  • Immediately report any acts of HIB to the principal in writing with as much detail as possible to enable the district to promptly and thoroughly investigate the alleged acts of HIB. Parents should let the school know that they are aware that disabled students are also protected from HIB by state and federal civil rights laws. The school must take prompt action reasonably calculated to stop the HIB.
  • The IEP or 504 plan can be modified to specifically address the negative effects of the bullying and include interventions to prevent the bullying from occurring in the future.
  • A disabled student has a legal right to be educated in the least restrictive environment with non-disabled peers to the maximum extent appropriate as specified by the student’s IEP or 504 plan. Therefore, parents should not agree to have the disabled student removed from his learning environment or be precluded from participating in school activities as a solution to the HIB.
  • Consider discussing with an attorney any concerns about the district’s compliance with the anti-discrimination and HIB laws.