Briefing Paper, "Bullying and Students with Disabilities"

Authors1:
Dr. Jonathan Young
Chairman, National Council on Disability
Ari Ne'eman
Vice Chair for Engagement, National Council on Disability
Sara Gelser,
Member, National Council on Disability


Like bullying in general, bullying of students with disabilities represents both a civil rights and
public health challenge. Amongst the possible effects of bullying the U.S. Department of
Education (DOE, 2010) includes lowered academic achievement and aspirations, increased
anxiety, loss of self-esteem and confidence, depression and post-traumatic stress, deterioration in
physical health, self-harm and suicidal thinking, suicide, feelings of alienation, absenteeism and
other negative impacts, both educational and health related. While both students with and
without disabilities face significant negative emotional, educational and physical results from
bullying, students with disabilities are both uniquely vulnerable and disproportionately impacted
by the bullying phenomena. Despite this, there exists a dearth of both research and policy
focusing on eliminating the bullying of students with disabilities. Furthermore, evidence suggests
that existing legal and policy tools available to address bullying against students with disabilities
remain significantly under-utilized. Additional focus is needed on the bullying of students with
disabilities, both as part of a general strategy of bullying prevention efforts and as a specific area
of focus in policy and practice.

Background

In 1970, only one in every five children with disabilities received a public education and many
states had laws specifically excluding particular disability categories (i.e., children who were
deaf, blind, with intellectual disabilities, or emotional disturbance) from public education (DOE).
As a result of landmark court cases such as PARC v. Pennsylvania (1971), it was established that
the 14th Amendment's equal protection clause required that students with disabilities have the
same opportunity to receive a free and appropriate public education as students without
disabilities and that, wherever possible, placement in a regular public school class should be the
preference. Public Law 94-142 (1975), known then as the Education for All Handicapped
Children Act and today Public Law 108-446, the Individuals with Disabilities Education
Improvement Act (IDEA) of 2004, created both a legal and funding infrastructure to help ensure
that students with disabilities would enjoy the right to a "free and appropriate public education"
in the "least restrictive environment." As a result, many more students with disabilities began to
attend and be educated in general education schools and classrooms and thus interacted more
with students without disabilities.

Research confirms that students with disabilities benefit from being included in the same school
settings as their non-disabled peers and that segregated programs fail to demonstrate greater
effectiveness (Lipsky, 1997; Buckley, 2000; and Sailor, 2002). Furthermore, research suggests
that students without disabilities may also benefit from inclusion and that, when properly
implemented, inclusion of students with disabilities does not negatively impact student test
scores, grades, the amount of allocated and engaged instructional time or the rate of interruption
to planned activities (York, Vandercook, MacDonald, Heise-Neff, and Caughey, 1992). Despite
this, the increased inclusion of students with disabilities, while the right policy and legal
decision, necessitates additional efforts to ensure welcoming school environments for students
with disabilities. As demonstrated by both the all too frequent bullying experiences students with
disabilities continue to face and the slow progress in fully integrating students with disabilities in
public schools (NCD, 2008) across the country, such welcoming environments have not always
been forthcoming.

Literature Review

Studies show that students with visible and non-visible disabilities are subject to more bullying
than non-disabled peers (Carter and Spencer, 2006). Bullying is frequently a direct result of a
student's disability (Whitney, Smith & Thompson, 1994). Students with disabilities are
disproportionately likely to face peer rejection, a significant risk factor for victimization
(Martlew & Hodson, 1991; Whitney, et al, 1994; and Hodges and Perry, 1996). Many students
with disabilities have significant social skills challenges, either as a core trait of their disability or
as a result of social isolation due to segregated environments and/or peer rejection. Such students
may be at particular risk for bullying and victimization. For example, Little's (2002) study of
U.S. mothers found that 94% of children with a diagnosis of Asperger's Syndrome faced peer
victimization, with a broad swatch of different types of victimization including emotional
bullying (75%), gang attacks (10%) and nonsexual assaults to the genitals (15%).
Other research (Siebeker, Swearer, and Lieske, 2005; and Regional Education Laboratory, 2010)
has indicated that students with a wide range of disabilities face increased bullying victimization,
including students with visible and invisible disabilities, students with physical, developmental,
intellectual, emotional and sensory disabilities and others. A 2003 study found that 34% of
students who report taking medication for ADHD face bullying victimization at least 2-3 times a
month, a substantial increase over the rate of bullying victimization from other students surveyed
(Unnever and Cornell, 2003). Wiener and Mak (2009) also found high rates of victims among
girls with Attention Deficit and Hypertension Disabilities. Langevin, Bortnick, Hammer and
Wiebe's (1998), a Canadian study examining the relationship between stuttering and selection as
a target for bullying, found that at least 59% of students studied were bullied about their
stuttering, 69% of students who stutter were also bullied about other things and that said bullying
very frequently takes place on at least a weekly basis.

Evidence suggests that the response of policymakers, educators and researchers to the bullying of
students with disabilities has not been nearly sufficient to address the breadth or gravity of the
problem. For example, Massachusetts Advocates for Children's (2009) survey of families of
children on the autism spectrum found that almost 40% of said children experienced bullying for
in excess of a year and that while 92% of parents discussed the bullying with school officials,
68% of families found the response of the school district to be inadequate. Only 21.5% of parents
surveyed heard about the bullying from the school, with 80.6% hearing from the student him or
herself. Given that many students with disabilities face significant communication barriers and
are thus unable to report bullying and victimization themselves, protecting the rights of parents
to be informed when their children face incidents of bullying or victimization may be a critical
area for future law and practice around bullying. Increased research in this area is also necessary.
While the existing literature has clearly established that students with disabilities face higher
rates of bullying and victimization than the general student population, very little research on
bullying prevention has focused on students with disabilities either in isolation or as an identified
sub-category in broader bullying prevention initiatives.

Who Qualifies as a Student with a Disability?

One of the first and most important legal questions with respect to bullying and students with
disabilities is: who qualifies as a student with a disability? The answer to this question varies
depending on the law under question. There are two major definitions of disability that are
relevant in the educational context: students with disabilities under Section 504 of the
Rehabilitation Act and students with disabilities under IDEA. To be a student with a disability
under Section 504, a student must, (1) have a physical or mental impairment that substantially
limits one or more major life activities; (2) have a record of such an impairment; or (3) be
regarded as having such an impairment (DOE, 2010)." While there does not exist a
comprehensive list of what constitutes a physical or mental impairment, the term is intended to
be construed broadly. Recently, in the ADA Amendments Act of 2008, Congress provided a
non-exhaustive list of major life activities, including but not limited to, "caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and working
(ADA, 2008). The ADA Amendments Act makes clear that the ADA's, and as a result Section
504's, definition of disability is intended to be construed very broadly. IDEA's definition of a
child with a disability is narrower, in part because of the broader legal rights and educational
entitlements available to eligible students under IDEA. Under IDEA, a child with a disability
must be evaluated and determined to fall within one of a series of specific, defined disability
categories, such as intellectual disability, deafness, blindness, emotional disturbance, autism,
specific learning disability and others, and need special education and related services by reason
thereof (ADA, 2008).

Bullying and Existing Disability and Special Education Laws

Bullying prevention efforts interact in various ways with disability non-discrimination laws,
some of which are similar to dynamics around laws protecting other minority groups while
others remain unique. In 2000, the Department of Education's Office of Special Education and
Rehabilitative Services and Office on Civil Rights issued a joint, "Dear Colleague" letter
highlighting the issue of disability harassment, a category within which bullying of students with
disabilities is included (DOE, 2000). The letter noted that several laws were relevant to the issue
of disability harassment. It notes that educational institutions, including both K-12 schools and
institutions of higher education, have a responsibility to ensure equal educational opportunity for
all students and that disability harassment denies that right and as a result is a form of
discrimination prohibited by Section 504 of the Rehabilitation Act and Title II of the Americans
with Disabilities Act. The DOE (2000) letter defines disability harassment as "intimidation or
abusive behavior toward a student based on disability that creates a hostile environment by
interfering with or denying a student's participation in or receipt of benefits, services, or
opportunities in the institution's program...When harassing conduct is sufficiently severe,
persistent, or pervasive that it creates a hostile environment, it can violate a student's rights under
the Section 504 and Title II regulations...even if there are no tangible effects on the student
(DOE, 2000, p. 3)." The letter also notes that failure to address disability harassment may
constitute a violation of the Individuals with Disabilities Education Act's (IDEA) guarantee of a
Free and Appropriate Public Education (FAPE) for students with disabilities when harassment
prevents or diminishes the ability of a student to benefit from his or her education (DOE, 2000.
p.4). Although the letter does not say so specifically, bullying of students with disabilities may
also constitute a violation of IDEA when it forces a student with a disability into a more
restrictive educational setting such as a self-contained classroom or out of district placement in
order to benefit from their educational experience, given IDEA's legal right for students with
disabilities to receive a Free and Appropriate Public Education (FAPE) in the Least Restrictive
Environment (LRE).

More recently, the DOE's (2010) "Dear Colleague" letter included disability in a list of protected
classes (e.g., race, gender, disability) from which schools must respond to bullying and
harassment on the basis of. The DOE (2010) letter spelled out the legal obligations schools
possess under existing civil rights laws, including Section 504 of the Rehabilitation Act and Title
II of the Americans with Disabilities Act and provided examples of various types of harassment
and bullying against protected classes as well as potential school responses. Among the
responses mentioned in the context of disability include "disciplinary action against the
harassers, consultation with the district's Section 504/Title II coordinator to ensure a
comprehensive and effective response, special training for staff on recognizing and effectively
responding to harassment of students with disabilities, and monitoring to ensure that the
harassment did not resume (DOE, 2010)."

It should be noted that while DOE 2010 speaks primarily of harassment on the basis of protected
class status, IDEA's FAPE and LRE provisions may impose upon school districts a legal
responsibility to act to protect students with disabilities eligible under IDEA from more general
bullying and harassment as well. IDEA does not simply require districts to protect students with
disabilities from bullying, harassment and overt discrimination on the basis of disability, but also
creates an entitlement to a "free and appropriate public education in the least restrictive
environment" which frequently requires funding related services, making educational
accommodations and modifications as well as working to address issues such as school climate,
access needs and other factors that might hinder a student's ability to fully benefit from their
education in the least restrictive environment possible. For example, when bullying of a student
with a disability results in a student being transferred into a self-contained classroom or a special
education school serving only students with disabilities as opposed to receiving an education in a
general classroom setting, a student's IDEA LRE rights may have been violated regardless of the
type of bullying that precipitated the change in placement. As research shows that students with
disabilities are not only subject to bullying and harassment on the basis of disability, but also are
frequently more vulnerable to bullying and harassment of a more general nature as well, it is
important that the potentially broader protections of IDEA are made use of for this population.

IDEA is relevant to the issue of bullying of students with disabilities in at least two additional
respects. First, the Individualized Education Plan process represents a potentially useful avenue
to address bullying through both pro-active and reactive measures. Under IDEA, students with
disabilities receive an Individualized Education Plan (IEP) as a result of a deliberative process
involving educators, administrators, child study team members, parents and, where appropriate,
the student. The IEP outlines the student's educational plan, accommodations, related services
and goals for the year. The IEP can be useful both for helping students develop useful selfadvocacy
skills to avoid or effectively respond to bullying and harassment from peers or adults.
It can also be a useful way of planning for how educators can intervene in the classroom, during
extracurricular activities or in other school settings to help protect students from bullying
behaviors. The utility of the IEP as a tool to address bullying has been recognized at the state
level. Massachusetts (2010) recently passed into law a requirement that IEPs "address the skills
and proficiencies needed to avoid and respond to bullying, harassment or teasing" for students
with social skills related disabilities and whenever a student with a disability is vulnerable to
disability-based bullying, harassment or teasing.

Secondly, IDEA's provisions around discipline state that a student with a disability may not have
their educational placement changed in response to behavior that was a manifestation of a
student's disability or the result of a school's failure to implement the student's IEP (34 C.F.R. §
300.530). In an instance in which a child with a disability under IDEA is engaged in bullying
behavior, it is important that anti-bullying measures not come into conflict with or serve to
restrict existing rights under IDEA. State anti-bullying laws have in many instances attempted to
address this with language indicating that anti-bullying laws are not intended to infringe upon
IDEA rights. Such language must be carefully constructed to ensure that it does not serve to
exclude students with disabilities from anti-bullying efforts and protections. For example, an
early proposed draft of a New Jersey (2010) anti-bullying law had attempted to address the
potential conflict with IDEA by excluding bullying and harassment which occurred "exclusively
among or between special education students or students with developmental disabilities". Such
an approach would have deprived students with disabilities of the same civil rights protections
other groups would benefit from in the anti-bullying legislation, and would have been extremely
inadvisable. Instead, the legislation was modified before it passed the legislature to simply
clarify that, "nothing contained in the "Anti-Bullying Bill of Rights Act," shall alter or reduce
the rights of a student with a disability with regard to disciplinary actions or to general or special
educational services and supports

Policy Recommendations

Effectively addressing bullying of students with disabilities will require undertaking action as
part of both general and special education policy. Students with disabilities must be included on
an equal basis with other protected classes in bullying prevention efforts undertaken as part of
general education laws and policy initiatives such as the upcoming re-authorization of the
Elementary and Secondary Education Act and bullying prevention efforts from the Health
Resources and Services Administration (HRSA) and the Department of Education Office for
Civil Rights. In addition, it is also necessary to strengthen and increase the use of anti-bullying
tools unique to students with disabilities, such as IEP process and IDEA's guarantee of a Free
and Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). We
recommend the following policy actions:

  1. Collaborating in Federal Research Program on Bullying Prevention: Given that bullying prevention has implications for educational practice, civil rights and public health, research will play a crucial role in shaping anti-bullying efforts in the coming years. The executive branch should ensure that disability is included in federal research efforts on bullying through encouraging the involvement of disability-oriented agencies with mandated broad research and policy missions, like the National Institute for Disability and Rehabilitation Research (NIDRR) and the National Council on Disability (NCD), in broader federal bullying prevention efforts such as the Federal Partners in Bullying Prevention Task Force.
  2. Requiring Parental Notification: Families frequently learn of incidents of bullying and harassment only well after they occur, if at all. As Congress considers means by which to incorporate bullying prevention into the re-authorization of the Elementary and Secondary Education Act (ESEA) and other relevant education policy laws, a requirement that parents be notified when their child is involved as either victim or perpetrator in an incident of bullying or harassment may be a useful tool to consider. This may be particularly important for students with communication related disabilities whose families may not otherwise become aware of incidents.
  3. Expanding the Role of the IEP: For students with disabilities, the IEP is a natural tool for bullying prevention and elimination. The DOE Office on Special Education and Rehabilitation Services should expand technical assistance on how to utilize the IEP to protect students with disabilities from bullying and harassment and effective ways to address bullying behaviors that may be linked to a disability. Consideration should be given to incorporating bullying prevention as a priority within the IEP in the next reauthorization of the Individuals with Disabilities Education Act (IDEA).
  4. Broadening Data Collection: Disability must be included in all federal data collection around bullying, victimization, violence, harassment and hate crimes.
  5. Eliminating Workplace Bullying: Bullying is not limited to educational settings. Many youth and adults continue to face bullying, harassment and other forms of victimization during transition and within the workplace. The Employment Equal Opportunity Commission (EEOC) should be recognized and invited as a critical stakeholder in federal bullying prevention efforts and issues surrounding workplace bullying should be incorporated into our evolving national conversation on bullying.
  6. Fighting Hate Crimes: The Department of Justice and the Federal Bureau of Investigation should work collaboratively with civil rights and community groups, including those in the disability community, to ensure effective and comprehensive implementation and enforcement of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act for both adults and youth.
  7. Private Right of Action: Congress should consider supplementing existing nondiscrimination laws such as the Americans with Disabilities Act, Title IX, the Civil Rights Act of 1964 and others, with an explicit private right of action aimed at holding schools accountable for severe, persistent and pervasive bullying and harassment.


With thanks to Dr. Gerrie Hawkins of the National Council on Disability Staff for support and assistance in
research and drafting

References:

Authority of school personnel, 34 C.F.R. § 300.530 (2010)

Buckley, S. J., Bird, G., Sacks, B. I., & Archer, T. (2000). The development of teenagers with
Down syndrome in 1987 and 1999: Implications for families and schools. Down Syndrome
News and Update, 2(2), 3.

Carter, B. B. and Spencer, V. G. (2006) The Fear Factor: Bullying and Students with
Disabilities. George Mason University. International Journal of Special Education Vol 21 No.1
Retrieved December 18, 2010 http://www.forockids.org/PDF Docs/Bullying.pdf

Hodges, E.V.E. & Perry, D.G. (1996). Victims of peer abuse: An overview. Journal of
Emotional and Behavioral Problems, 5, 23-28.

Langevin, M., Bortnick, K., Hammer, T., & Wiebe, E. (1998). Teasing/bullying experienced by
children who stutter: Toward development of a questionnaire. Contemporary Issues in
Communication Science and Disorders, 25, 12-24.

Lipsky, D.K. & Gartner, A. (1997). Inclusion and school reform: Transforming America's
classrooms. Baltimore, MD: Paul H. Brooke

Little, L. (2002). Middle class Mothers' perceptions of peer and sibling victimization among
children with Asperger's Syndrome and nonverbal learning disorders. Issues in Comprehensive
Pediatric Nursing, 25(1), 43-54.
http://www.ncbi.nlm.nih.gov/pubmed/11934121

Martlew, M., & Hodson, J. (1991). Children with mild learning difficulties in an integrated and
in a special school: Comparisons of behaviour, teasing and teachers' attitudes. British Journal of
Educational Psychology, 61, 355-372.

Massachusetts Advocates for Children. Targeted, Taunted, Tormented: the Bullying
of Children with Autism Spectrum Disorder." (2009). Boston, MA. Retrieved
December 29, 2010 http://www.massadovates.org/documents/Bullying-Report_000.pdf

Massachusetts Legislature 2010, CHAPTER 92. An Act Relative to Bulling in Schools (see
Senate, No. 2404) Approved by the Governor, May 3, 2010. Retrieved December 28, 2010
http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter92

Nabuzoka, D. (2003). Teacher ratings and peer nominations of bullying and other behavior of
children with and without learning difficulties. Educational Psychology, 23(3), 307-321.

National Council on Disability (2008) No Child Left Behind and the Individuals with Disabilities
education act: A Progress Report. Retrieved December 29, 2010
publications/2008/01282008/

New Jersey, Assembly, No. 3466. 214th Legislature, Reported on November 15, 2010
With Amendments. Anti-Bullying Bill of Rights Act. Retrieved December 28, 2010
http://www.njleg.state.nj.us/2010/Bills/A3500/3466_R1.HTM.

Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania, 334 F. Supp.1257
(E.D. PA 1971)

Public Law 94-142. Education for All Handicapped Children Act

Public Law 108-446. Individuals with Disabilities Education Improvement Act of 2004. 20
U.S.C. 1400 December 3, 2004 Retrieved December 29, 2010
http://www.copyright.gov/legislation/pl108-446.html

Public Law 110-325. Americans with Disabilities Amendments Act of 2008, 42 U.S.C. 12102
September 25, 2008 Retrieved December 29, 2010
http://www.access-board.gov/about/laws/ada-amendments.htm

Regional Education Laboratory, Northeast and Islands: National Crime Victimization Survey
Crime Supplement "What characteristics of bullying, bullying victims, and schools are
associated with increased reporting of bullying to school officials?" Retrieved December 19,
2010 http://ies.ed.gov/ncee/edlabs/regions/northeast/pdf/REL_2010092.pdf

Sailor, W. (ED.), (2002) Whole school success and inclusive education, New York. Teachers
College Press. http://www.beachcenter.org/Books/FullPublications/PDF/PresidentReport.pdf

Siebecker, A., Swearer, S., and Lieske, J. National Association of School Psychologists, Atlanta,
GA, March 2005. Poster Session Risky Business: Bullying and Students with Disabilities.
Retrieved December 21, 2010 www.targetbully.com/uploads/NASP2005.Siebecker.ppt

Unnever, J.D. & Cornell, D.G. (2003). Bullying, Self-Control, and ADHD. Journal of
Interpersonal Violence, 81(2), 129-147.

U.S. Department of Education, Office for Civil Rights. Dear Colleague Letter: Prohibited
Disability Harassment (July 25, 2000),
http://www2.ed.gov/about/offices/list/ocr/docs/disabharassltr.html.

U.S. Department of Education, Office for Civil Rights (Last Modified March 27, 2009)
Protecting students with Disabilities: Frequently Asked Questions About Section 504 and the
Education of Children with Disabilities Retrieved December 28, 2010
http://www2.ed.gov/about/offices/list/ocr/504faq.html

U.S. Department of Education, Office for Civil Rights. Dear Colleague Letter: Harassment and
Bullying, Background, Summary, and Fast Facts (October 26, 2010.
http://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201010.pdf

U.S. Department of Education, Office of Special Education and Rehabilitative Services.
Archived: Twenty-Five Years of Progress in Educating Children with Disabilities Through
IDEA
http://www2.ed.gov/policy/speced/leg/idea/history.html).

Wiener, J., & Mak, M. (2009). Peer victimization in children with Attention-
Deficit/Hyperactivity Disorder. Psychology in the Schools, 46(2), 116-131.

Whitney, I., Smith, P.K., & Thompson, D. (1994). Bullying and children with special
educational needs. In P.K. Smith & S. Sharp (Eds.), School bullying: Insights and perspectives.
London: Routledge.

York, J., Vandercook, T., Macdonald, C., Heise-Neff, C., & Caughey, E. (1992). Feedback about
integrating middle-school students with severe disabilities in general education
classes. Exceptional Children, 58(3), 260-269.

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