Over the past several years, the airways, newsstands, and blogosphere have been filled with horrific stories of bullying in schools. These stories have even introduced us to a new type of bullying – cyber bullying – with little to no jurisdiction and often dire outcomes. According to the U.S. Department of Education (DOE, 2010) the possible effects of bullying include lowered academic achievement and aspirations, increased anxiety, loss of self-esteem and confidence, depression and post-traumatic stress, deterioration in physical health, self-harm and suicidal thinking, suicide, feelings of alienation, absenteeism and other negative impacts, both educational and health related. For students with Autism Spectrum Disorder (ASD), this impact may be in addition to other school struggles.
Unfortunately, the actual statistics are no more encouraging. Bullying is frequently a direct result of a student’s disability (Whitney, Smith & Thompson, 1994). For students with disabilities who have significant social skills challenges, either as a core trait of their disability or as a result of social isolation due to segregated environments and/or peer rejection the risk for bullying and victimization is even more pronounced. For example, Little’s (2002) study of U.S. mothers found that 94% of children with a diagnosis of Asperger’s Syndrome faced peer victimization, with a broad swatch of different types of victimization including emotional bullying (75%), gang attacks (10%) and nonsexual assaults to the genitals (15%).
What can parents do?
At present, no federal law directly addresses bullying. However, in many cases, bullying overlaps with discriminatory harassment which is covered under federal civil rights laws enforced by the U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ). As a result, schools are obligated by these laws to address conduct that is:
Severe, pervasive or persistent;
Creates a hostile environment at school. That is, it is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school;
Based on a student’s race, color, national origin, sex, disability, or religion.
If a school district fails to respond appropriately to bullying or harassment of a student with a disability, they may be in violation of one or more civil rights laws including: Title IV and Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Titles II and III of the Americans with Disabilities Act, and the Individuals with Disabilities Education Act (IDEA).
For students with an Individualized Education Program (IEP), the state and local education agency (school district) has a duty under the Individuals with Disabilities Education and Improvement Act (IDEA) to provide a free, appropriate, public education (FAPE). If a district fails to protect a child with an IEP from bullying, and his/her ability to receive meaningful benefit is impacted, the district can be held accountable for a denial of FAPE. For example, “when bullying of a student with a disability results in a student being transferred into a self-contained classroom or a special education school serving only students with disabilities as opposed to receiving an education in a general classroom setting, a student’s IDEA LRE rights may have been violated.”
As research shows that students with disabilities are frequently more vulnerable to bullying and harassment, it is important that the potentially broader protections of IDEA are made use of for this population. If a parent believes that bullying has not been adequately addressed and has resulted in a denial of FAPE, the parent has a right to file a request for Due Process Hearing to have a determination made by an impartial hearing officer and seek a remedy for the denial.
For students with a 504 Plan under Section 504 of the Rehabilitation Act, an IEP, or for any other student with a disability, if a district has failed to protect a student from bullying or harassment as defined above, the parent can file a complaint with the US Department of Education Office for Civil Rights.
What Can Schools do?
Schools have certain obligations regarding harassment based on protected classes. Anyone can report harassing conduct to a school. When a school receives a complaint they must take certain steps to investigate and resolve the situation:
Immediate and appropriate action to investigate or otherwise determine what happened.
Inquiry must be prompt, thorough, and impartial.
Interview targeted students, offending students, and witnesses, and maintain written documentation of investigation
Communicate with targeted students regarding steps taken to end harassment
Check in with targeted students to ensure that harassment has ceased
When an investigation reveals that harassment has occurred, a school should take steps reasonably calculated to:
End the harassment,
Eliminate any hostile environment,
Prevent harassment from recurring, and
Prevent retaliation against the targeted student(s) or complainant(s).
As stated above, if a parent of a child with a disability believes the school district has not taken these steps to protect a student from bullying and harassment, a complaint can be filed with the Office for Civil Rights.
What Can States do?
In addition to the federal anti-discrimination protections listed above, most states have anti-bullying laws or policies that are more detailed and directly address bullying. The US Department of Health and human services has provided guidance to states by providing examples of 11 key components that may be useful in creating or improving anti-bullying laws or policies. The Department has also created a website www.stopbullying.gov to provide information to states, parents, and school districts on how to prevent bullying in schools. This site also provides information regarding bullying laws and policies by state.
As a result of many important laws and regulations created over the past 50 years, students with disabilities, including those with ASD, have been rightfully included in schools and classroom settings with their non-disabled peers. Research confirms that students with disabilities benefit from being included and that segregated programs fail to demonstrate greater effectiveness (Lipsky, 1997; Buckley, 2000; and Sailor, 2002). Just as importantly, students without disabilities may also benefit from inclusion and, when properly implemented, “inclusion of students with disabilities does not negatively impact student test scores, grades, the amount of allocated and engaged instructional time or the rate of interruption to planned activities (York, Vandercook, MacDonald, Heise-Neff, and Caughey, 1992).” There is no question that “the increased inclusion of students with disabilities, while the right policy and legal decision, necessitates additional efforts to ensure welcoming school environments for students with disabilities.”
 To be a student with a disability under Section 504, a student must, (1) have a physical or mental impairment that substantially limits one or more major life activities; (2) have a record of such an impairment; or (3) be regarded as having such an impairment (DOE, 2010). In the ADA Amendments Act of 2008, Congress provided a non-exhaustive list of major life activities, including but not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working (ADA, 2008). IDEA's definition of a child with a disability is narrower, in part because of the broader legal rights and educational entitlements available to eligible students under IDEA. Under IDEA, a child with a disability must be evaluated and determined to fall within one of a series of specific, defined disability categories, such as intellectual disability, deafness, blindness, emotional disturbance, autism, specific learning disability and others, and need special education and related services by reason thereof (ADA, 2008).