Lawyers Journal

The Massachusetts Anti-Bullying Law, M.G.L. c. 71, s. 37O, went into effect on May 3, 2010. This article will examine the language of the statute and its practical application through the Individualized Education Program (IEP) Team process. Additionally, the Office for Civil Rights (OCR) has advised that instances of bullying may implicate civil rights laws, which will require school districts to respond in a more global way, investigating whether a hostile environment exists in the school.

This article will also consider steps that school districts can and should take to avoid potential liability within the context of bullying as it relates to students with disabilities.

Finally, some observations from the field will be shared. Specifically, how special education teams should handle situations when both the victim and the aggressor are students with disabilities, and how to address the situation when a bullying investigation does not substantiate allegations of bullying, but the victim's perception of being bullied impacts his ability to access his education and make effective progress.

On this last point, a description of a real scenario that an IEP Team recently encountered: At a team meeting for a ninth-grade student with social disabilities who had alleged bullying by a disabled peer, the following question was posed by the parent: Why not simply remove the alleged bully from the inclusion classes that her daughter attended so that the two students would not be together during the day? Sounds simple enough, but here's the rub: the alleged bully was a student with Asperger's Syndrome also on an IEP.

The school's investigation found that the bully made harassing statements to the victim as a result of provocation by the victim who, by reason of her disability, often made impulsive remarks to students that were perceived as socially inappropriate. To further complicate matters, the school was unable to substantiate the extent of bullying described by the victim, and it was suggested that the victim perceived greater bullying than was actually occurring.

Thus, at least two questions were raised: 1) how to address the situation where both students are on IEPs; and 2) how to address the conclusion that the victim's reaction to the alleged bullying appeared disproportionate to the actual acts of bullying. Add to this that the team needed to be careful to maintain both students' confidentiality, what ensued was a stinted and, from the parents' perspective, a rather unsatisfactory discussion about how her daughter's needs and safety could be met by the school.

The team's eventual response follows, but first a review of the law: Section 7 and 8 of Chapter 92 of the Acts of 2010 (An Act Relative to Bullying in Schools), amending M.G.L. c. 71B, s. 3, reads as follows:

Section 7: Whenever the evaluation of the Individualized Education Program team indicates that the child has a disability that affects social skills development or that the child is vulnerable to bullying, harassment or teasing because of the child's disability, the Individualized Education Program shall address the skills and proficiencies needed to avoid and respond to bullying, harassment or teasing.

Section 8: Whenever an evaluation indicates that a child has a disability on the autism spectrum, which includes autistic disorder, Asperger's disorder, pervasive developmental disorder not otherwise specified, childhood disintegrative disorder, or Rhett's Syndrome, as defined in the most recent edition of the Diagnostic and Statistical Manual of the American Psychiatric Association, the Individualized Education Program (IEP) team, as defined by regulations of the department, shall consider and shall specifically address the following: the verbal and nonverbal communication needs of the child; the need to develop social interaction skills and proficiencies; the skills and proficiencies needed to avoid and respond to bullying, harassment or teasing.

The first step in ensuring compliance with these provisions is meaningful evaluation. Without data, a team cannot address a student's vulnerability to bullying effectively. Massachusetts special education regulations require an initial evaluation to include an "an assessment of the student's attention skills, participation behaviors, communication skills, memory, and social relations with groups, peers, and adults."¹ The Individuals with Disabilities Education Act (IDEA) regulations include a similar provision."²

The anti-bullying law mandates that IEP teams address bullying for all students identified on the autism spectrum. Autism Spectrum Disorder (ASD) runs on a continuum and is generally defined as "a group of developmental disabilities that can cause significant social, communication and behavioral challenges."³ Research shows that students on the Autism Spectrum are three times more likely to be bullied than their nondisabled peers.⁴

Students with ASD tend to be both excluded by peers and to exclude themselves from social interactions, creating further isolation.⁵ Furthermore, their behavior is often viewed as "odd" by their peers, making them easy targets for bullies.⁶ They may be less likely to report incidents of bullying to school staff because their social cognition problems can lead them to assume that others are already aware of what has happened or because they simply do not understand that they are actually being bullied (particularly with more subtle forms of bullying.)⁷

While the anti-bullying law carves out a mandate to address bullying with students with ASD, it also requires IEP teams to consider the issue of bullying for students whose disabilities make them vulnerable to bullying. Research has shown that students diagnosed with learning disabilities (LD) and/or attention-deficit/hyperactivity disorder (ADHD) are more likely to either be the aggressor or the victim of bullying than typically developing peers. "Characteristics of LD that include difficulties with language, attention, information processing, and problems with interpreting social information may be interfering with the development of well-adjusted social relationships with peers."⁸

Therefore, rather than focusing on the diagnosis itself, IEP teams should consider the individual student and identify whether the student displays deficits or weaknesses that make him or her vulnerable to either being a victim or aggressor of bullying. If the team, upon review of evaluation reports, teacher and parent reports and other available information, makes the determination that the student is vulnerable to bullying, the next question is how to address that through the IEP.⁹

The Massachusetts Department of Elementary and Secondary Education (DESE) has provided guidance to IEP teams about accommodations and services which can be added to a student's IEP to address these vulnerabilities. Examples include: providing additional supports during those unstructured times of day, such as lunch and recess, when incidents of bullying are more likely to occur; designating a "safe" contact person within the school that the student can go to immediately when he or she feels that bullying has occurred; providing counseling; participation in a social skills group; and providing a functional behavioral assessment and behavior intervention plan.¹⁰

IEP teams should take a "think-outside-the-box" approach to addressing bullying through the IEP and should tailor the accommodations and services so that they are appropriate to the age and circumstances of the particular student. This can be especially important if the student's disabilities make it difficult for him or her to identify bullying in the first place.

It is important for IEP teams and schools as a whole to remember, however, that adding accommodations and services to a student's IEP may not be enough to adequately address the issue of bullying. In a letter dated Oct. 26, 2010, OCR reminded school districts that adhering to a state's anti-bullying law may not sufficiently address anti-harassment and anti-discrimination civil rights statutes. OCR's Letter to Colleagues cautions that "some student misconduct that falls under a school's or district's anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws."¹¹

For example, Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II) prohibit discrimination based on disability. Therefore, if a student with a disability is the victim of bullying, the school district not only needs to address the safety of that student, but needs to investigate whether the problem is more widespread and creating a hostile environment in the school for students with disabilities. This may be uncovered during the course of the investigation into the allegation of bullying for the particular student in question.

If discovered, "a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring. These duties are a school's responsibility even if the misconduct also is covered by an anti-bullying policy, and regardless of whether a student has complained, asked the school to take action, or identified the harassment as a form of discrimination."¹²

To ensure compliance with civil rights laws in the context of bullying, school districts should adopt a practice of investigating the conduct in question, not just for the purpose of determining whether bullying has occurred, but also to examine whether a hostile environment is created within the school community. OCR has said that interventions should include, depending upon the nature of the incident, staff training and measures to ensure that further acts do not occur.

One practical way of putting staff and administration, as well as students and parents, on notice of the dual requirements to address bullying and possible related discrimination is to cross reference the school's anti-bullying policy with its anti-discrimination policy in its staff and student handbooks.

School districts may be liable for bullying under civil rights laws. The legal analysis is whether the bullying is sufficiently serious and pervasive to cause a hostile environment, whether the school has actual or constructive notice of the bullying, and whether the school failed to respond appropriately. Courts have looked to whether the school district demonstrated "deliberate indifference" or "bad faith or gross misjudgment."¹³ Schools will generally not be held liable for the actions of a bullying student, but rather, will be judged based on its response to the bullying.

The Massachusetts anti-bullying law does not create a separate cause of action. While litigation on this issue is in its infancy, there is at least one Superior Court case that dismissed students' claims of negligence and infliction of emotional distress in the context of bullying on the basis of the Massachusetts Tort Claim Act (MTCA).¹⁴

The court noted that "The MTCA provides a waiver of sovereign immunity in limited circumstances. Section 10(j), however, retains sovereign immunity for 'any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer ...'

The purpose of § 10(j) is to immunize public employees from harm caused by a third person that the public employee failed to prevent."¹⁵ In dismissing the students' complaint, the court held that "[t]his is precisely the type of failure to prevent harm by a third person for which § 10(j) provides governmental immunity. Accordingly, the MTCA bars the Parsons' claims for negligence, negligent infliction of emotional distress and loss of consortium."¹⁶

Where clearly a school district is responsible to react quickly and effectively to allegations of bullying, efforts to prevent bullying in the first place should be the ultimate goal. For students with disabilities who are vulnerable to bullying, the focus is on the IEP team and the ability to gather necessary data to make thoughtful decisions about how to provide students with necessary services to address their vulnerabilities.

By addressing the bullying incident in question, as well as the larger issue of whether the bullying is creating a hostile environment for students who are members of a protected class, school districts will be on their way to protecting themselves from potential liability and, most importantly, helping to create an atmosphere of tolerance where bullying does not occur in the first place.

So, with all of this in mind, how did the team respond to the scenario described above:

In the end, this team set up a plan, having first completed a functional behavioral assessment of the student/victim, that involved: daily check-ins with the student; a designated point person that the student/victim could go to at any time of the school day when he felt unsafe and/or needed to check-in with an adult; a change in lunch schedule so that the two students would not be together during this unstructured time of the day; and consent from the parent for the school district to communicate with the student's private therapist.

While the parents' request to separate the students in their academic classes was denied because the placement of those students had been made by their respective IEP teams, steps were taken to address the allegations of bullying. While far from perfect, the team devised a plan, to be carefully monitored, that both the school district and the family could agree to.

To summarize, the anti-bullying law mandates addressing vulnerability to bullying for students with disabilities. The importance of following school policy and using the team meeting as a forum to think critically about how to address the issue is paramount. Issues of confidentiality and maintaining parent trust through the process are challenges that teams will face. In the end, a district will be judged by its response to allegations of bullying and the efforts that it undertakes to create a safe educational environment for all of its students.

¹603 MASS. CODE. REGS.28.04(2)(a)(2)(b) (2011).

²34 C.F.R. § 300.304(c)(4) (2010).

³Autism Spectrum Disorder, CTRS. FOR DISEASE CONTROL AND PREVENTION, www.cdc.gov/ncbddd/autism/index.html (last visited Feb. 10, 2012).

⁴Neil Humphrey & Wendy Symes, Perceptions of Social Support and Experience of Bullying among Pupils with Autistic Spectrum Disorders in Mainstream Secondary Schools, 25 EUR. J. OF SPECIAL NEEDS EDUC. 77, (2010).

⁵Jennifer Wainscott et al. Relationships With Peers and use of the School Environment and Mainstream Secondary School Pupils with Asperger's Syndrome (High Functioning Autism): A Case Control Study. 8 INT'L J. OF PSYCHL. AND PSYCHL, THERAPY, 25, 26 (2008).

⁶Humphrey, N. Including Pupils with Autistic Spectrum Disorders in Mainstream Schools. Support for Learning. Volume 23, Issue 1, pp. 41-47. (February 2008).

⁷Moore, C. (2007). Speaking as a Parent: Thoughts about educational inclusion for autistic children. In R. Cigman (ed.), Included or excluded? The Challenge of Mainstream for Some SEN Children, pp 34-41. London: Rutledge.

⁸Danielle M. Saia et al., Bullying Experiences, Anxiety About Bullying, and Special Education Placement. J. OF THE AM. ACAD. OF SPECIAL EDUC. PROFS., 38, 39 (2009).

⁹The Massachusetts Department of Elementary and Secondary Education has stated that "[s]chool districts are not required to reconvene IEP Team meetings for currently eligible students solely to discuss the law's new requirements for bullying prevention or intervention. However, each time the IEP Team convenes, the Team should consider whether the student has been involved in any bullying incident, and use that information to inform its discussion of the student's needs." Advisory from Marcia Mittnacht, State Director of Special Education, to Superintendents, Regarding Bullying Prevention and Intervention. (Feb. 11, 2011).

¹⁰Id.

¹¹Letter from Russlynn Ali, Assistant Sec'y for Civil Rights, to Colleague 1 (Oct. 26, 2010).

¹²Id. at 2-3.

¹³Davis v. Monroe Cnty Bd. of Educ., 526 U.S. 629,633 (1999); M.P. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 982 (8th Cir. 2003).

¹⁴Parsons v. Town of Tewksbury, No. 091595, 2010 WL 1544470, (Mass. Super. Ct., Jan. 19, 2010).

¹⁵Id. at *3 (internal citations omitted).

¹⁶Id. at *4.

Alisia St. Florian is a special education attorney at Murphy, Hesse, Toomey & Lehane LLP in Quincy, representing public school districts and charter, collaborative and private special education schools in all matters. She has served as a guardian ad litem/educational advocate for the juvenile courts and an educational surrogate parent for the Department of Education.