Bullying and Special Education in San Diego
Federal guidance defines bullying as follows:
Bullying is characterized by aggression used within a relationship where the aggressor(s) has more real or perceived power than the target, and the aggression is repeated, or has the potential to be repeated, over time. Bullying can involve overt physical behavior or verbal, emotional, or social behaviors (e.g., excluding someone from social activities, making threats, withdrawing attention, destroying someone's reputation) and can range from blatant aggression to far more subtle and convert behaviors.
Admittedly, this doesn't help much. But fortunately, California has a more expansive definition than the Federal guidance. The California Education Code defines bullying as:
“any severe or pervasive physical or verbal act or conduct by a pupil or group of pupils…directed toward one or more pupils” that causes or is “reasonably predicted” to cause a reasonable student to experience one or more of the following: (a) fear of harm to his or her person or property; (b) substantially detrimental effect on his or her physical or mental health; (c) substantial interference with his or her academic performance; or (d) a substantial interference with his or her ability to participate in or benefit from the services, activities, or privileges provided by a school.” (Ed. Code § 48900, subd. (r).)
The bullying of a student with special needs may constitute a denial of a free appropriate public education (“FAPE”) under the IDEA. This is true irrespective of whether the bullying is related to the student's disability.
While California's definition of bullying is broader than the Federal guidance, its addition of the “severe or pervasive” requirement makes it more challenging to prove in due process hearings. That being the case, a single instance of bullying will only meet the legal standard if it was severe in nature.
Resolution Through the IEP Process
If your child is being bullied, a good first step, other than speaking with the school's administrative staff, is to request an IEP meeting. Parents can request an IEP meeting at any time, and the school district must hold the meeting within 30 days of the request. Many times, the IEP Team can devise ways to handle the bullying situation. Holding an IEP meeting also allows parents the opportunity to discuss how the bullying has impacted their child (e.g., caused anxiety or depression) and the school district can provide additional supports or services if necessary.
Resolution Through Due Process
If the case proceeds to due process hearing, parents—or their attorney—will have to prove that:
(1) the bullying occurred; and
(2) the bullying resulted in the student not receiving educational benefit.
As with any due process hearing, the party bringing the claim has the burden of proof. If you have questions about whether you have a strong claim for bullying or any other question(s) for that matter, give my office a call.