Bullying vs. Harassment

Bullying and harassment are similar but not legally the same. Bullying is unwanted, aggressive behavior by one child or a group of children against another child and is usually repeated over time. Bullying can include attacking someone physically or verbally, blackmailing, making threats, name calling, and deliberately excluding someone from a group. It causes an imbalance of power. Harassment is abusive behavior that annoys, threatens, intimidates or causes fear in another person.

State and federal civil rights laws protect students from harassment based on a protected category, such as race, gender, disability, ethnic origin and other categories when the harassment creates a hostile environment by interfering with or denying the student’s participation in school. Specifically, under federal case law, in order to prevail in a harassment lawsuit, parents have to prove:

The child is an individual in a protected category (e.g., gender, sex, ethnicity, race, disability);
The child was harassed based on the his sex, ethnicity, race, disability or other protected category;
The harassment was sufficiently severe or persuasive that it altered the student’s education and created an abusive environment;
The school district knew about the harassment; and
The school district was deliberately indifferent to the harassment.

Certain bullying will also constitute harassment, but a child may be bullied without technically being harassed if he or she is not targeted based a protected category. While federal civil rights laws do not protect against bullying, parents may nevertheless be able bring a state action on a bullying claim based on negligence. Also, both bullying or harassment, if the acts deprive a child with a disability of educational benefit, may provide a legal claim based on a denial of a free appropriate public education under the Individuals with Disabilities Education Act.

Federal Legal Protections

Where disability or race is a component of the abuse, some federal courts have found that civil rights laws do protect the right of students to be free from both harassment and bullying.

Disability

In K.M. v. Hyde Park Central School District, 381 F. Supp.2d 343 (S.D.N.Y 2005), the United States District Court for the Southern District of New York recognized that a school district could face liability for peer harassment based on a student’s disability, when a school district has been deliberately indifferent and the harassment causes loss of educational opportunity.

In the K.M. case, a 13-year-old eighth grade student with a learning disability was the victim of repeated instances of being called “stupid,” “idiot,” “retard,” and other disability-related insults, as well as acts of physical aggression and intimidation while in school and on the school bus. He was physically beaten and his school books were thrown into the cafeteria garbage numerous times. The court held that “a school district’s deliberate indifference to pervasive, severe disability-based harassment that effectively deprived a disabled student of access to the school’s resources and opportunities would be actionable under federal law.”

Race

In Zeno v. Pines Plains Central School District, 702 F.3d 655 (2d Cir. N.Y. 2012), the United States Court of Appeals for the Second Circuit sent a strong message to school districts by affirming a One million dollar jury award to a student who faced bullying and harassment based on race for over three and a half years. The student experienced harassment and bullying almost as soon as he began high school, and it never relented. The parents initiated 30-50 complaints to the school district about the bullying and harassment of their child. At a special education Individualized Education Program meeting in June 2006, the parents said that their child had experienced school as a “battleground.”

The Second Circuit panel condemned the school district’s inaction and found sufficient evidence in the record to support the jury’s finding that the district’s responses to student harassment “amount[ed] to deliberate indifference to discrimination.” The court found that the district’s continued response to student harassment of the bullying was ineffective. For example, the district knew that disciplining the student’s harassers did not deter others from bullying and harassing the student. Finally, the court found that the harassment would have a profound and long-term impact on the child’s life and his ability to earn a living.

State Legal Protections

In addition to federal civil rights protections, many states have also codified specific legislation to protect students from bullying and harassment. For example, in New York, the Dignity for all Students Act prohibits harassment and bullying based on disability, race and other characteristics, including gender identity, weight and religious practices.

What Parents Can Do

Legal technicalities aside, bullying and harassment are serious. Bullying and harassment can cause a decline in educational achievement, anxiety, physical ailments, and missed classes. The legal right to an education includes the right to a safe learning environment free from bullying and harassment.

In every state, parents should expect school districts to adopt proactive, not just reactive, responses to bullying. In addressing bullying, a school district should, for example, consider: peer support groups, corrective instruction, supportive interventions, behavioral assessment or evaluation, behavioral management plans, school counseling and parent conferences.

Legal protections offer hope to parents of children facing bullying and harassment. The Zeno ruling encourages parents not to give up but to relentlessly report and document all bullying and harassment in writing. The parent and student in that case kept detailed and meticulous records for many years. For school districts, the Zeno ruling sends a clear message that staff must respond to student harassment and bullying in an effective way that actually targets and makes a reasonably calculated effort to stop the bullying and harassment. These responses could include, among other things, enforcing a zero-tolerance policy against bullying and harassment; holding mandatory training for all employees and student; engaging the victim of bullying in school-based counseling; and requiring the child who is bullying to engage in school-based counseling.

Parents should be aware that they may have powerful legal sanctions against their child’s school district if bullying becomes a pattern. However, before bullying or harassment reaches a crisis point, school districts and parents should work together to prevent bullying and, if it occurs, stop it early. Parents should expect teachers to closely supervise students and to address any bullying and harassment promptly. Parents also play a crucial role in preventing bullying. If parents notice signs of withdrawal and anxiety in their child, they should ask their child about what is happening in school. Often they can work with their child’s teachers to get to the root of the problem.

Six steps parents can take to address student bullying:

Review your school district’s Code of Conduct to ensure that it incorporates anti-bullying provisions.
Ask about what steps the school is taking, including adequate supervision in the hallways and separate classrooms, to prevent bullying and harassment and to address it when it occurs.
Address concerns at your next Individualized Education Program meeting. Your team may be able to suggest further supports, such as a one-on-one aide, if warranted.
If your child is the victim of bullying or harassment or you believe bullying or harassment has occurred, do not delay in reporting this to your school district. If you fear your child will suffer retaliation, you can ask for additional supervision. Document your concerns and specific incidents in writing. If the school does not address your concerns, follow up. Be relentless.
Keep a log and journal of bullying and harassment and maintain documentation of any physical evidence, such as photos and medical records.
Most importantly, support your child. Make sure he or she receives any needed counseling or other support and address the problems immediately.

Bullying and Youth with Disabilities and Special Health Needs

Children with disabilities—such as physical, developmental, intellectual, emotional, and sensory disabilities—are at an increased risk of being bullied. Any number of factors— physical vulnerability, social skill challenges, or intolerant environments—may increase the risk. Research suggests that some children with disabilities may bully others as well.

Kids with special health needs, such as epilepsy or food allergies, also may be at higher risk of being bullied. Bullying can include making fun of kids because of their allergies or exposing them to the things they are allergic to. In these cases, bullying is not just serious, it can mean life or death.

Creating a Safe Environment for Youth with Disabilities

Special considerations are needed when addressing bullying in youth with disabilities. There are resources to help kids with disabilities who are bullied or who bully others. Youth with disabilities often have Individualized Education Programs (IEPs) or Section 504 plans that can be useful in crafting specialized approaches for preventing and responding to bullying. These plans can provide additional services that may be necessary. Additionally, civil rights laws protect students with disabilities against harassment.

Creating a Safe Environment for Youth with Special Health Needs

Youth with special health needs—such as diabetes requiring insulin regulation, food allergies, or youth with epilepsy— may require accommodations at school. In these cases they do not require an Individualized Education Program or Section 504 plan. However, schools can protect students with special health needs from bullying and related dangers. If a child with special health needs has a medical reaction, teachers should address the medical situation first before responding to the bullying. Educating kids and teachers about students’ special health needs and the dangers associated with certain actions and exposures can help keep kids safe.

Federal Civil Rights Laws and Youth with Disabilities

When bullying is directed at a child because of his or her established disability and it creates a hostile environment at school, bullying behavior may cross the line and become “disability harassment.” Under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, the school must address the harassment. Read more about federal civil rights laws.

Bullying Prevention for Children with Special Health Care Needs

Having special health care needs due to neurological, developmental, physical, and mental health conditions can add to the challenges children and young people face as they learn to navigate social situations in school and in life. While bullying and cyberbullying is an unfortunate reality for many young people, children with special healthcare needs are at greater risk for being targeted by their peers.

One reason children and young adults with special health care needs might be at higher risk for bullying is lack of peer support. Having friends who are respected by peers can prevent and protect against bullying. Ninety-five percent of 6- to 21-year-old students with disabilities were served in public schools in 2017. However, children with special health care needs may have difficulty getting around the school, trouble communicating and navigating social interactions, or may show signs of vulnerability and emotional distress. These challenges can make them be perceived as different, and increase their risk of aggression from peers.

Young people with special needs may benefit from, both individualized and class-wide approaches to address the specific effects of their condition and prevent them from becoming the target or perpetrator of bullying. Teachers, school staff, and other students need to understand the specific impairments of a child’s health condition, so that they can develop strategies and supports to help them participate and succeed in class and with their peers.

Potential Perceived Differences

Children and youth with special needs are impacted by their conditions in a variety of ways. Every child is unique, and so are the ways that their health condition affects them. Some impairments, such as brain injuries or neurological conditions, can impact a child’s understanding of social interactions and they may not even know when they are being bullied. Here are a few ways that disabilities may affect children:

Children and youth with cerebral palsy, spina bifida, or other neurological or physical conditions can struggle with physical coordination and speech.
Brain injuries can impair speech, movement, comprehension, and cognitive abilities or any combination of these. A child or youth with a brain injury may have trouble with body movements, or speaking in a way that others can understand. It could take them longer to understand what is being said or to respond.
Children and young people with Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, and Tourette’s Syndrome may have difficulties with social interactions, sensitivities, impulsivity, and self-regulating their behavior or effectively communicating.
A child or young person who experiences anxiety or depression or who has a mental health condition may be withdrawn, quiet, fearful, anxious, or vulnerable. They may exhibit intense social awkwardness or have difficulty speaking.
Children who have epilepsy or behavioral disorders may exhibit erratic or unusual behavior that makes them stand out among their peers.

Supporting Special Needs and Preventing Bullying at School

Strategies to address student’s special needs at school can also help to prevent bullying and have positive outcomes for all students, especially tactics that use a team approach, foster peer relationships, and help students develop empathy. Some strategies include:

Engaging students in developing high-interest activities in which everyone has a role to play in designing, executing or participating in the activity.
Providing general up-front information to peers about the kinds of support children with special needs require, and have adults facilitate peer support.
Creating a buddy system for children with special needs.
Involving students in adaptive strategies in the classroom so that they participate in assisting and understanding the needs of others.
Conducting team-based learning activities and rotate student groupings.
Implementing social-emotional learning activities.
Rewarding positive, helpful, inclusive behavior.

Peer Support Makes a Difference

Here are a few examples of innovative strategies used by schools to promote peer-to-peer learning, foster relationships, and prevent bullying:

One high school created a weekly lunch program where student’s with and without special healthcare needs sat and ate lunch together. Several senior students led the group, and invited their friends to join. All kinds of students participated. The students got to know each other through question and answer periods and discussions over lunch. They discovered things they had in common and formed friendships. A group of them went to the prom together.
Youth at one school held a wheelchair soccer night. Students with special healthcare needs that used wheelchairs coached their peers in how to use and navigate the wheelchairs to play. The students helped another peer who used a wheelchair who was interested in photography by mounting a digital camera on her chair so she could be the game photographer.
Another school created a club rule that required clubs to rotate leadership responsibilities in club meetings so that every member had a chance to run the group. This allowed students with special health care needs to take on leadership roles.

Peer support is an important protective factor against bullying. By working together, teachers, parents and students can develop peer education, team-building, and leadership activities that foster friendships, build empathy, and prevent bullying to make schools safer and inclusive for all students, including children with special healthcare needs.

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