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Legal Implications When Bullying Is Alleged

Blog Type:  Social and Emotional Issues Date Posted:  Wednesday, May 8, 2019 Byline:  By Dan Ahearn

parent with upset child bullying

This is the third post in a three-part series about bullying. The first article defines bullying and the second article outlines the warning signs of bullying.

As discussed in an earlier post by Elizabeth Englander, the essential nature of bullying has not changed … [b]ut the signs that a target may show have changed."  Similarly, though bullying has been present in school environments for many years, the responsibilities of schools and their required responses to bullying have changed. This post focuses on the legal requirements that schools must generally follow when school personnel suspect that bullying may have occurred.

When Does a School Have "Knowledge" That Bullying May Have Occurred?

State law establishes parameters and reporting requirements that schools must follow. Generally, school officials and employees are required to report suspected bullying. Employees can include educators, administrators, nurses, cafeteria workers, custodians, bus drivers, coaches, advisors, and paraprofessionals. In addition, parents and students may report incidents of suspected bullying. School personnel need to be aware that bullying can occur in plain sight, in hallways, in academic classes, in extracurricular activities, at recess, during transportation, and on field trips. 

When any school official or employees note bullying in these environments and they report it, then a school is presumed legally to have "knowledge" of the bullying.  Note that some states adopt the standard of "knows or should have known" about the bullying as indicative of "knowledge."

School personnel need to be aware that bullying can occur in plain sight, in hallways, in academic classes, in extracurricular activities, at recess, during transportation, and on field trips. 

What Are Appropriate School Responses to Bullying?

When a school has "knowledge" of potential bullying, the initial requirement under state law is to investigate promptly.  A prompt investigation should be thorough and impartial. It will generally include interviews with students and staff who may be aware of the bullying. The actual investigation will depend on a variety of factors, such as the nature of the allegations (physical, verbal, cyber), the sources of the complaints, the age of students, and the size of the school.  During the investigation, it is vital to remember that confidentiality, to the extent possible, must be maintained and that any form of retaliation to any party involved in the bullying investigation is prohibited.

What Are Possible Outcomes if Bullying Is Verified?

Upon a finding of bullying, there is generally a legal requirement to notify the perpetrator and the victim/target of the findings. The school then must develop an effective response to the bullying.  This response may include the following:

  • Discipline of the perpetrator via student handbook procedures.
  • Counseling for the students involved in the bullying incident.
  • Training for the students involved, the student body, and faculty if necessary.
  • Schedule changes to separate the perpetrator and victim, though not at the expense of the victim/target.
  • Monitoring to ensure that the plan is working and also to ensure that no retaliation occurs.
  • Review and revision of school policies if necessary.
  • Referral to law enforcement. Most states provide for this referral and vest discretion within school authorities

How Does a Learning Disability Impact Bullying?

In the context of bullying, another important element to consider is whether the alleged victim/target is a student with a disability.  In that situation, a school must also determine if the student is denied access to a free and appropriate public education (FAPE) due to the bullying. Denial of FAPE means that the school must review the student’s IEP and determine what modifications or additional services may be necessary to remedy the denial of FAPE.  Parents may also seek redress under the Individuals with Disabilities Act (IDEA) dispute resolution process. Finally, and in addition to a bullying situation, a school should also consider whether a student has been harassed based on their disability.  If harassment based on disability, as defined under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act, has occurred, then different protocols and guidelines that are distinct from bullying become important to consider.

Additional Resources

Analysis of State Bullying Laws and Policies, U.S. Dept. of Education, 2011.  (a bit dated but a comprehensive review of state laws on the topic).

T.K. v. New York City Dept. of Ed., 779 F.Supp.2d 289 (E.D. N.Y. 2011).  (an extremely comprehensive lower court decision on the topic of bullying in general and bullying in context of students with disabilities).

 

About the Author

Dan Ahearn

Dan Ahearn is an educator and attorney. He has a B.A. from the University of Rochester, an M.A. in Education from Tufts University, and a J.D. from Suffolk University Law School. He is the Assistant Head of Landmark School, directs the Landmark Outreach Program, and serves as in-house legal counsel. In addition, he also teaches language arts and social studies, and co-teaches the Student Advocates class at Landmark.

 

 

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Tags:  bullying social emotional issues behavioral issues

Bullying Defined

Blog Type:  Social and Emotional Issues Date Posted:  Wednesday, April 10, 2019

girls laughing at others

This is the first post in a three-part series about bullying. The second article outlines the warning signs of bullying and the third discusses the legal implications when a student is accused of bullying.

By Erin Herzeelle

Over the past several years, bullying has received increasing attention in the media and on school campuses as more and more children have fallen victim to the aggressive behavior. Parents and administrators are on alert for signs that children are the victims of bullying—or the perpetrators. Given the consequences, it’s important to understand the difference between bullying, rude, and mean behavior.

Many students experiment with aggressive behavior as a means to gain social status or acceptance. With guidance and intervention, many students recognize that this strategy is ineffective, short lived, inauthentic, and typically results in negative disciplinary consequences from parents and schools. In other words, many students come to realize that the connections formed with peers based on a common target or targets are not substantive, deep, or long lasting.

Furthermore, many students develop guilt over teasing, ostracizing, and degrading another individual and begin to feel compassion for the peers whom they have intimidated. In fact, some experts have argued that weathering these adolescent social struggles helps build empathy for those in an aggressor role, advocacy for those in an upstander role, and resilience for those in a targeted role. However, without intervention, these behaviors can grow into more repeated and ongoing harassment—bullying.

Rude, Mean, or Bullying Behavior?

Bullying is aggressive, purposeful, repeated behavior that involves a real or perceived power imbalance. In order for actions to be considered bullying, the behavior must be intentional, unkind, and recurring as well as include some imbalance of power between the parties involved. Many parents, students, and teachers have erroneously labeled a behavior as bullying when not all parameters are met. Inaccurately labeling an interaction as bullying can cause a smaller social conflict to become a much larger problem involving school administrators and possibly the local authorities. In addition, mistaking mean behavior for bullying can strip students of the opportunity to navigate social struggles independently as well as develop skills such as empathy, advocacy, and resilience. At the same time, failing to intervene in bullying situations can have negative consequences. Many victims of bullying behavior have an increased risk for doing poorly in school, dropping out of school, and developing mental health conditions, to name a few. Therefore, understanding the difference between mean and bullying behavior is critical to supporting all students developing social and emotional needs.

Here is a chart that provides a quick reference for delineating rude versus mean versus bullying behavior.

RUDE MEAN BULLYING
Unkind,
unwanted
Unkind,
unwanted
Unkind,
unwanted
Unintentional Intentional,
purposeful
Intentional,
purposeful
Not repeated,
intermittent,
occasional
Not repeated,
intermittent,
occasional
Repeated,
persistent
    Power imbalance
between
aggressor
and target. 
Ex. Age/grade,
physical size,
perceived
social status,
athletic/artistic/
academic ability, etc.
Example: Sylvia
walks by a
lunch table
asking her
friend, “Yuck,
what is that
fishy smell?”
Sylvia does
not notice
that Bob
has a tuna
fish sandwich
and that
he feels
embarrassed
eating his
sandwich
having heard
her comment.
Example: Sylvia
says to Bob,
who is eating
a tuna fish
sandwich,
“Tuna fish
is disgusting.
Your lunch
is gross.”
Bob gets up
and moves to
another table.
Example:
Everyday
Silvia walks
by Bob’s
lunch table
and finds
something
about his
lunch to
pick on: "Only
babies eat
peanut butter
and jelly
sandwiches."
"Your soup
looks like
vomit." "Nice
lunch box; it
looks like my
3-year-old
brother’s."
Bob tries
sitting on the
other side
of the cafeteria
and eventually
starts eating
lunch
in the
bathroom.

Note that interrupting all of these types of behavior is encouraged as rude and mean behavior, when perpetuated, can lead to bullying behavior and are simply unkind behaviors that do not build community. All parties involved—the aggressors, observers, and targets—are all urged to disturb these behaviors by drawing a crowd or gathering allies for the target(s), scattering the crowd with specific focus on drawing the target away from the aggressor(s), changing the subject, and/or replying with quick retorts (stop it, over the line, too far).

 

About the Author

 

Erin Herzelle is a counselor and tutorial teacher at Landmark Elementary•Middle School (EMS). Prior to joining Landmark, she worked in education in a variety of roles including kindergarten teacher, career counselor, and alumni director. She has a master's degree in school counseling and mental health counseling.

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Tags:  social emotional issues behavioral issues bullying

The Best Way to Explain Learning Disabilities to Your Child

Blog Type:  Learning Disabilities Date Posted:  Tuesday, February 12, 2019

son and father talking

By Rick Lavoie, M.A., M.Ed.

A parent once called my special education school to request an admissions visit for her and her son, who was struggling mightily in school. She asked a strange question in her initial phone call: “Does the school have any signs or posters displayed that identify the program as a school for kids with learning disabilities?”

I asked her why she wished to know this. She replied, “My son doesn’t know that he has a learning disability and we don’t want him to know.” He knows, Mom. Believe me, he knows.

I have long been puzzled by a parent’s reluctance to discuss a child’s learning disability diagnosis with him. The knowledge that he has an identifiable, common, measurable, and treatable condition often comes as great comfort to the youngster. Without this information, the child is likely to believe the taunts of his classmates and feel that he indeed is a dummy. The truth will set him free!

If a child does not have a basic understanding of the nature of his learning challenges, it is unlikely that he will be able to sustain his motivation in the classroom. Because he is puzzled about the difficulty that he is experiencing at school, he is unlikely to be able to commit to his studies.

What Learning Disabilities Are and Are Not

When discussing the child’s learning problems with her, it is critical to explain what the disorder is — and what it is not. You may find that the child holds many misconceptions about her disorder (“It goes away at middle school”; “It means I’m stupid”; “I’ll never be able to read”), and it is important that you clarify and correct this misinformation.

During these discussions, emphasize her strengths and affinities and do not simply focus on her weaknesses and difficulties. Express optimism about her development and her future.

Remind your child that she can indeed learn, but that she learns in a unique way that requires her to work hard and participate in classes and activities that are different from those of her peers and siblings. Emphasize the fact that this situation exists through no fault of the child’s. Explain that learning is a particular challenge for her and that it may take longer for her to master skills than it will take her classmates. Remind her that she will “finish the race,” though she may have to take a different route. Let her know that the adults in her life are solidly on her side.

Draw on learning struggles and challenges that you faced and outline the strategies you used. This information can be comforting for a child. I do not find it useful to cite famous people with learning problems as a means of inspiring and motivating a child.

A more realistic approach might be to cite people whom the child knows as inspirational examples: “Did you know that Uncle John also had trouble in school and he had to repeat third grade? It took him forever to do his homework and he still has difficulty writing. But he has a terrific job at the hospital. He enjoys cooking, just like you, and nobody makes a better chili!”

Demystify your child’s daily struggles. One of the most valuable and important roles that a parent can play in the life of a child with special needs is that of a demystifier. The parents should explain the disability to the child, thereby making sense of the child’s daily struggles. The youngster often feels greatly relieved once he realizes that his difficulties actually have a name and that others have similar problems and challenges.

It is important that these explanations be made in a sensitive and age-appropriate way. This important information should not be communicated in an intense “let’s discuss your learning disability” session. Rather, you should discuss the child’s challenges with him in a gradual, informal, and sequential way.

Look for and take advantage of teachable moments. When a child asks a question related to his disability, remember to answer his question honestly and sensitively, and be wary of providing more information than the child can handle or understand. As an analogy, imagine that the child is an empty cup devoid of any information about the nature of his disabilities. You are represented by the pitcher, filled with data, reports, information, and knowledge about the disability. Slowly “pour” your knowledge into the cup until the vessel is full. Always end the conversation by assuring your child that you are eager to have discussions with him.

The demystification process is a crucial step in the child’s journey toward self-advocacy. As an adolescent and adult, she must know how to explain her difficulties and needs to teachers, coaches, and employers without parental intervention.

How to Connect with Your Child About His Learning Disability

If your child runs into problems — say, setting the dinner table — caused by his disability, you might use that opportunity to explain his sequencing and directionality problems in the following way:

“Carl, I know that this is difficult and frustrating for you and I really appreciate your willingness to stick with it. It’s tough for you to remember the order you should follow when setting the table, but it will be easier if you refer to the checklist that we made last week. Remember? We keep it on the shelf near the dishes. After you have used the checklist for a while, we will begin phasing it out and I’ll bet that you will be able to set the table by yourself within a few weeks. We followed that process when you learned to make your bed, and you do that chore really well now.

“Remember that the knife and spoon go on the side of the hand you write with, and the fork goes on the other side. These problems that you have relate to something called sequencing and directionality. The skills will always be a little difficult for you, but you are doing much, much better. All of your hard work with Mrs. Carter in your OT class is really paying off. The extra lessons that Coach Simons is giving you in soccer should help your directionality, too.”

About the Author

Rick Lavoie

Excerpted from The Motivation Breakthrough: 6 Secrets to Turning On the Tuned-Out Child, by Rick Lavoie. 

Rick Lavoie is a lecturer and consultant who has more than 30 years experience working as a teacher and headmaster at residential schools for students with learning disabilities. He consults on learning disabilities to several agencies and organizations, including PBS, the New York Times, the National Center for Learning Disabilities, Child magazine and WETA.

He holds three degrees in special education and has served as an adjunct professor or visiting lecturer at numerous universities, including Syracuse, Harvard, Gallaudet, Manhattanville College, University of Alabama, and Georgetown.

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Tags:  learning challenges parenting dyslexia learning differences social emotional issues
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