Editor's note: Both of the attorneys were involved in the filing of the complaint described in this article. 

Bullying and harassment impact hundreds of thousands of students across Pennsylvania every day. According to the National Center for Education Statistics, one out of every five students reported being bullied in 2015. Studies indicate, however, that a high percentage of children who are bullied (64 percent) never report it.

Bullying disproportionately impacts black students, LBGTQ youth and students with disabilities—who are two to three times more likely to be bullied than their nondisabled peers. These students are also more likely to be worried about school safety and fear being injured or harassed by peers. According to research reported by the Archives of Pediatrics and Adolescent Medicine, roughly half of adolescents with autism, an intellectual disability, speech impairments or learning disabilities are bullied in school.

The Education Law Center often receives heart-wrenching calls from parents of students who have been bullied in school and recently filed a complaint with the U.S. Department of Education's Office of Civil Rights (OCR) challenging entrenched patterns of bullying of students with disabilities in the School District of Philadelphia (district).

Pennsylvania state law requires school systems to develop policies prohibiting bullying. 24 P.S. Section 1303. While there is no federal law directly addressing bullying, civil rights laws protect against discriminatory harassment based on race, national origin, color, sex, age, disability or religion. Under these laws, such as Title VI of the Civil Rights Act of 1964, schools are obligated to address conduct that: is severe, pervasive, persistent, and objectively; is related to a child's race, color, national origin/ethnicity, gender, age, disability or religion; and interferes with or limits a student's ability to participate in or benefit from the services, activities or opportunities offered by a school.

Additionally, children with disabilities—who are most at risk of bullying and harassment—have special protections under disability and anti-discrimination laws that trigger additional school district obligations. These protections emanate from Section 504 of the Rehabilitation Act (Section 504), which prohibits discrimination against persons on the basis of qualifying disabilities, and the Individuals with Disabilities Education Act (IDEA), which ensures that children with disabilities receive an education that enables them to make progress in the least restrictive environment. Children who are deemed to a have a qualifying impairment under Section 504 are entitled to a “free appropriate public education” (FAPE). 34 C.F.R. Section 104.33(a). Relatedly, under Section 504, public schools may not discriminate against children with disabilities. Similarly, under Title II of the Americans with Disabilities Act (ADA), public institutions, like schools, cannot discriminate against qualifying students with disabilities.

Both OCR, which enforces Section 504 and the ADA, and the U.S. Department of Education's Office of Special Education and Rehabilitative Services, which enforces the IDEA, have provided clear guidance to schools on bullying. The failure to effectively address bullying of students with disabilities—even when the bullying is not on the basis of a student's disability—may result in the denial of a FAPE to a child, which must be remedied. Federal courts, including the Third Circuit, have affirmed that a failure to address bullying may deprive a student of a FAPE. Shore Regional High Sch. 381 F.3d at199-202 (3d Cir. 2004) (school could not offer a child a FAPE due to a “legitimate and real fear” that the same harassers would continue to bully the child).

According to OCR, part of a school's “appropriate response to bullying” is to convene an IEP team or Section 504 service team to determine whether, as a result of the effects of bullying, the student is no longer receiving FAPE. The effects of bullying may include adverse changes in the student's academic performance or behavior, or school aversion. Once a school suspects that the student's needs have changed, the IEP team or the Section 504 team must promptly address the extent to which additional or different services are needed to ensure the student's progress.

Signs of the impact of bullying may include a sudden decline in grades, the onset of emotional outbursts, increased behavioral interruptions or more missed classes. Importantly, a school must address demonstrated adverse changes even if the school may be unaware of the underlying bullying conduct, as in T.K. v. New York City Department of Educucation, 810 F.3d 869, 876 (2d Cir. 2016) (school violated parents' procedural rights under the IDEA by refusing to discuss concerns about adverse impact of bullying on the child's educational progress).

In light of these principles, this past July, the Education Law Center filed a complaint with OCR alleging a systemic failure by the School District of Philadelphia to promptly and appropriately address pervasive and severe bullying of students with disabilities. In November, OCR opened an investigation into the Complaint, which remains ongoing. The complaint alleges that in some cases, the district failed to respond to parents' complaints about bullying for months and even years.

In one case, a third-grade child with disabilities was kicked and punched by classmates, causing a concussion, and was repeatedly called derogatory names like “retard” and “dumb.” Another 9-year-old child was repeatedly called “idiot” and “stupid” by her classmates, who told her they hoped she never came back to class.

Some of these students exhibited anxious behavior that substantially impeded their ability to learn or resulted in excessive absenteeism and school-related stress. The complaint details how children cried, shook, and begged not to go to school following months of pervasive bullying— children who once loved school. Aware of these significant changes in behavior, schools failed to appropriately intervene, if they intervened at all. Some of the parents of these students asked the district to transfer their children to new schools, away from the bullying, but the district refused. Ultimately, in several instances, the district's only response was to refer families to Truancy Court, where the problem is framed as a failure of the family.

Referring children with disabilities and their families to Truancy Court for school aversion behavior associated with bullying and harassment experienced in school is not only humiliating, but it constitutes a deprivation of FAPE under Section 504 and the IDEA, see, e.g., Springfield School Committee v. Doe, 623 F. Supp. 2d 150, 158-62 (D. Mass. 2009) (holding that school denied a student a FAPE by failing to address truancy through appropriate IDEA procedures).

The ELC hopes for a positive resolution of its OCR complaint that will include both individual relief for the named students and new district policies, procedures, and training to ensure that school staff promptly and properly intervene to resolve bullying of students with disabilities in an appropriate, nondiscriminatory manner. Protecting students with disabilities from discrimination by ensuring a free, appropriate, public education as required by federal law is critical to ensuring the ongoing progress and ultimate lifelong success of these students.

Maura McInerney is the legal director and Alex Dutton is a staff attorney at the Education Law Center-Pennsylvania. The Education Law Center-PA works to ensure that all children in Pennsylvania have access to a quality public education.