Bullying is the scourge of many students. As parents and guardians we want to prevent our children from having to be subjected to bullying. In some states that is easier to do than others, but in Virginia – if your child has an IEP, you have an option.
Certain states have very broad harassment statutes, which are often used as a way to stop bullying. Here in Virginia, our harassment statute is narrower than most states. Basic bullying behaviors do not typically fall under harassment, and there can seemingly be no easy legal way to stop it. For any parent this can feel like a major disservice to your child. Thankfully there is one saving grace to stop bullying in Virginia, and that is if your child has an IEP.
The Individuals with Disabilities Education Act, or IDEA for short, is able to provide some protection for students whom are on the receiving end of bullying. The IDEA works to ensure that children with disabilities ranging from ADHA to Autism have access to a Free and Appropriate Public Education, or FAPE for short. When a child is being bullied they are being deprived of an appropriate education.
The Office of Civil Rights has stated that bullying and harassment of any kind regardless of the reason can deprive a student with a disability of FAPE if it is not addressed by the school. Their statement means that the bullying does not need to be related to your child’s disability for it to be considered a violation of their FAPE, and therefore can be something which can be acted upon.
By law the school must notify you, the parent or guardian, of any alleged incident of bullying and the status of the investigation within five school days of the allegation. If there is documentation that the school had been informed of bullying but is not investigating, or the school does not actively attempt anything to stop the bullying, then that school is likely open to a due process claim for failing to provide your child a FAPE.
Schools have responsibilities that they must uphold, and preventing bullying is one of them. Services and resources should be provided to your child in their IEP if they are being bullied, and that IEP should be followed by the school and its faculty.
If your child is being bullied we may be able to help. Please contact the Education Law attorney at WMMLegal. You can set up an initial consultation by calling (804) 423-1382 or emailing info@wmmlegal.com.
