Child Being Bullied at School? | Advocacy Tips | Legal Rights | Gebser Letter Example

bullying at school

Bullying at School

Bullying at school. I hate it. It’s gross and happens everywhere-on the bus, at school. My standard disclaimer is that I am not an attorney, nor do I play one on the Internet. However, I do work as a Special Education Advocate so bullying is a problem I often help families with. Here you are because your child has special needs, an IEP or 504 and is being bullied at school. You want to know what to do. First, know that you are not alone.

Bullying and Disabled Children

More than 80% of children with special needs are bullying victims.

bullying at school

Please keep in mind, that although I try to remain positive, I do have a cynical point of view at times. But remember, no one ever calls a Special Education Advocate because they just love their school, their IEP, how their child is being treated and are just so happy they want to share the good news with me.

I only get calls because parents are frustrated, angry, and don’t know what to do. I hear the worst of the worst.

Disability Bullying

If your child has been diagnosed with a disability and has a 504 or IEP, they are considered to be in a protected class. That is defined as:

Protected Class: The groups protected from the employment discrimination by law. These groups include men and women on the basis of sex; any group which shares a common race, religion, color, or national origin; people over 40; and people with physical or mental handicaps.

In education, the laws that specifically help you are listed below. Various federal laws prohibit discrimination in the realm of education on the basis of race, gender, age, national origin, and other protected categories.

Federal laws that ban education discrimination include:

  • Title VI of the Civil Rights Act of 1964
  • Title IX of the Education Amendments of 1972
  • Equal Educational Opportunities Act of 1974
  • Title II of the Americans with Disabilities Act of 1990
  • The Individuals with Disabilities Education Act
  • Section 504 of the Rehabilitation Act of 1973
  • and various other statutes and state regulations

While these federal laws apply only to schools that accept federal funding, this includes the vast majority of K-12 and higher education institutions.

First, know that in recent court cases, that the case law decisions are supporting the notion that schools do bear some responsibility for bullying. In particular, this pertains to cyber-bullying that occurs outside of the school day.

How to Stop Bullying Outside of School

I’m not suggesting that you go hunt down court cases and start quoting case law. But know that so far, the law is on your side. If your child is the victim of bullying and you are being told, ‘didn’t happen at school, not our responsibility’ that is not so. Schools not only have a moral responsibility to help, but a legal one too.

In an unpublished case in 2009 (J.C. v. Beverly Hills Unified School District), a California federal court held that a district may discipline a student for off-campus conduct only if the conduct (1) impacts school activities or is brought to the attention of school authorities, and (2) causes, or is foreseeably likely to cause, a substantial disruption of school activities. In this case, the student recorded a video insulting another student.

How to Stop Bullying at School.

This is what I have advised families to do. Polish up those letter writing skills, parents. Because you have to have your paper trail for this.

  1. WRITE IT DOWN and Keep a Journal. One of my golden rules for ALL school issues. There’s nothing wrong with talking it out on the phone or in person, but always use email to document it. So a “Thanks so much for chatting with me today about Susie being bullied. I appreciate that you’re going to …..” If you don’t write it down, it didn’t happen. If this drags on for months or even years, you want it documented in writing. A simple monthly journal that you write in every morning or every evening, quick documentation of facts or incident.
  2. Letter to Teacher about Bullying. “Dear Mr. Teacher, Susie has been reporting to me that during lunch, the other kids are … Can we please make a time to chat about this on the phone or in person over the next couple of days?”
  3. If that doesn’t resolve it, Letter to the principal regarding the bullying. Still not resolved? Start going up the chain of command, including the previous emails you have sent. That information should be on the district website but often follows a diagram of teacher-principal-special ed supervisor-special ed director-pupil services and so on.
  4. You should read your school district policies (online, usually). All districts have an anti-bullying policy and a grievance procedure. Consider filing a grievance with your school board and ask to be put on the agenda for a school board meeting.
  5. While this is going on, you need to document whatever your child is telling you. Ask him/her where and when the bullying occurred and what staff was around.
  6. Gebser Letter-If after you’ve gone up the chain of command, it still not is being resolved, consider hiring an attorney and submitting a Gebser letter. The term Gebser letter comes from a 1998 Supreme Court decision. The court concluded that in order to receive damages under a Title IX discrimination suit you must prove that the school district actually knew about the offense and refused to take action to correct it. Thus, the term “Gebser Letter” was coined to mean a letter notifying a school district employee with authority about the discrimination or bullying.
  7. At this time, or maybe around number 5, I would also be filing a complaint with the Office of Civil Rights. If the bullying is interfering with your child’s ability to access and benefit from their education, that’s a denial of FAPE.
  8. This is why all the documentation is important. You will have to show that you have notified the school district numerous times to try to resolve this, and that they failed to act.
  9. Now, the secret. I was told this just yesterday at a workshop. When you are doing all of your documentation, use the word harassment. Harassment has much more weight to it than the word bullying.

Sample Gebser Letter

I strongly suggest that you consult an attorney before you do this. However, if you have a great paper trail and good letter writing skills, you may get charged less if you have done most of the work for them.

The reason I say this is because you want to be able to follow through on what you are saying you will do in the Gebser letter. If you do nothing, and the school does nothing, they’ll know your threats of legal action are just a bluff.

Sample-Gebser-Letter

The One Word to Include in a Letter to Teacher or Principal.

I was told yesterday at a workshop to encourage parents to use the word harassment in your documentation and communication. Harassment is something the school has an obligation to investigate. If your child is a victim of harassment, they have more protections and more legal rights than if they are a victim of bullying.

Again, not a lawyer, and I don’t play one on the internet. This is brand new information to me. I haven’t tried it yet with a client. But, I figure it’s worth a shot, right?

definition of harassment from pa code
This is from the PA Code. But remember, I am not an attorney nor do I play one on the internet. Consult one as appropriate.

Bullying in Special Education

Your child’s IEP should not change!

In many instances, I have seen the school try to inconvenience the victim rather than change the bully’s behavior. Your child does NOT have to give things up.

For example, your child is bullied on the school bus, so the team suggests that he take the special needs bus. NO! If your child wants to ride the regular bus, that’s LRE.

I’ve seen well-intended IEP teams try to change a victim’s lunch schedule, specials schedule, or extra-curricular activities, all to avoid a bully.

No, no, no!

Your child has every right to enjoy school and extra-curriculars to the maximum LRE extent possible.

It’s the bully who needs to change, not your child.

Heal the Bully

Some of the best advice I ever heard at a conference was: “If you want the bullying to stop, heal the bully.”

I’m not excusing anyone’s behavior, but it’s just so true. I have moments in my childhood that I was a bully, and looking back it was because I was dealing with the trauma of losing my mom. Now I cringe when I remember how I treated some kids. But, looking back I was just a traumatized kid who just lost her mom.

Remember that the bully has parents too. And probably nice parents. Sure, some parents are jerks who don’t care when their kids do this. I’ve worked with parents whose kids are doing the bullying. They were doing everything they could to try to make it stop. Still, peer pressure is so powerful, some kids continue to do it.

I once worked with a family and their young son was bullied to tears for years. Then, one school year, it all turned around and he was constantly in trouble for bullying others. When his mom would ask him why, he’d say “It’s better than being bullied.” He found camaraderie and acceptance, which he’d never had before, in a group of kids that were bullies. He’d never had friends before, and that was such a powerful draw for him.

School cannot Retaliate.

So, see number 1 above.

Remember that retaliation is not acceptable and in some cases illegal. You and your family cannot be retaliated against for reporting bullying and trying to handle a situation. This is why record-keeping is so important. Doesn’t have to be fancy. Just a simple notebook or journal with your notes on situations as they happen. Or you can email yourself or your spouse, or heck, include the teacher each time!

Bullying is not acceptable. It is not a rite of passage and that is an antiquated line of thinking. Recently there have been video clips showing parents going on school buses or to schools and confronting bullies. While I certainly don’t condone that for problem-solving, I completely empathize with their frustration levels. It shouldn’t have to come to that.

Take care and good luck.

Bullying Toolkit

I got this from our State Task Force.

bullying-toolkit

bullying at school

And this might help....

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