Court Says Special Needs Students Not Entitled to Bully-Free Education

Bullying – name-calling, exclusion or physical abuse – is a daily challenge for many students.  It’s a top concern for parents.  It also tops the charts as a public policy issue in state legislatures. Since 2005, 45 states have passed laws against bullying.  Many of those laws were kicked up a notch in 2010 with new training requirements for school staff. Bullying has even reared its ugly head in the White House, where the President announced the launch of an anti-bullying website and a new commitment to continually shine a spotlight on bullying issues. “With big ears and the name that I have, I wasn’t immune,” he said.

These policies are laudable and important.  But they don’t offer guidance on how to mitigate the bullying of special needs students, who are especially susceptible to disruptions in their relationships and learning environments.   The courts, for their part, don’t offer much help.

Case in point: In a recent case in Pennsylvania, a federal district judge ruled that parents’ fears about bullying didn’t authorize them to transfer their special needs child to a private school without the school’s consent.

The student – a 10th-grader — had been diagnosed with Asperger’s syndrome, reading, math, and writing disorders, as well as a learning disorder related to auditory and visual processing.  He attended a private school under the terms of an IEP negotiated by the school and his parents.

When the student was bullied at the private school, the parents took matters into their own hands (and thus technically violated the IEP) by transferring him to a different private school without the school district’s permission. When the parents sought reimbursement for tuition at the second private school, the school refused to pay the bill and said he must return to the public school, because since his transfer, they had developed a new class tailored to the needs of students with autism.

The parents rejected the offer for several reasons, including his risk of being bullied at the public school.

The judge said that the parents’ fear of bullying was not enough to warrant the student’s transfer to the second private school.  While federal law (IDEIA) requires schools to provide special education students with a free, appropriate, public education (FAPE)¸ the court said this standard didn’t mean that schools must agree to the placement of special needs students based on the risk of bullying by other students.   In the Judge’s words:  ”[The student] may face bullying, but a fair appropriate public education does not require that the District be able to prove that a student will not face future bullying at a placement, as this is impossible.”

When it comes to predicting the risk of bullying for general education students, the Judge may have a point.  For students with special needs, however, the odds of being bullied are virtually guaranteed. Las Vegas odds makers would take the bet in a heartbeat.

We can’t put special needs children in a risk-free bubble.  No school can guarantee that special needs students will never be subject to bullying.  Still, state legislatures and courts could at least set an example by demonstrating a more nuanced understanding of how bullying impacts our most vulnerable children.  Schools could do likewise, by fostering learning environments where students are encouraged to appreciate the different abilities of other students.

 

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