GANLEY.38.1.7 (Do Not Delete) 11/4/2016 4:36 PM BULLYING AND THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA): A FRAMEWORK FOR PROVIDING RELIEF TO STUDENTS WITH DISABILITIES Sarah H. Ganley† “Each of us deserves the freedom to pursue our own version of happiness. No one deserves to be bullied.”1 TABLE OF CONTENTS INTRODUCTION .................................................................................................................306 I. AN OVERVIEW: BULLYING AND THE IDEA .............................................................310 A. Defining Bullying ..........................................................................................310 B. A Brief History of the IDEA .........................................................................311 C. T.K. ex rel. L.K. v. New York City Department of Education ................314 II. BULLYING AND IDEA IN THE SEVENTH, THIRD, NINTH, EIGHTH, AND SECOND CIRCUITS .....................................................................................................317 A. The Seventh Circuit ......................................................................................317 B. The Third Circuit ..........................................................................................320 C. The Ninth Circuit ..........................................................................................322 D. The Eighth Circuit .........................................................................................324 E. The Second Circuit ........................................................................................326 F. The USDOE’s and DOJ’s Proposed Framework in T.K. ex rel. L.K. v. New York City Department of Education ............................................327 III. PROPOSAL ...................................................................................................................328 † Executive Editor, Cardozo Law Review. J.D. Candidate (June 2017), Benjamin N. Cardozo School of Law; B.A., Smith College, 2009. I would like to thank Professor Ellen C. Yaroshefsky for her endless support and guidance as my Note advisor; David Goodwin for generously reading many drafts of this Note; the Cardozo Law Review’s talented team of editors, especially Jonathan Crevier, Melanie DeFiore, and Shannon Rozell; and Joe for all of the encouragement and coffee. All mistakes are my own. 1 Barack Obama (@BarackObama), TWITTER (Oct. 22, 2010, 6:47 AM), https:// twitter.com/barackobama/status/28405996120. 305 GANLEY.38.1.7 (Do Not Delete) 11/4/2016 4:36 PM 306 CARDOZO LAW REVIEW [Vol. 38:305 A. Bullying Can Be a Basis for Finding Denial of a FAPE and Courts Should Use the Framework Proposed by the USDOE and DOJ ...............329 B. Additional Guidance and an Assessment and Intervention Tool for School Districts Addressing Bullying and Students with Disabilities ......332 CONCLUSION......................................................................................................................336 INTRODUCTION Bullying among school children is not a new phenomenon.2 Instances of what would now be considered bullying have been chronicled throughout history3 and across cultures.4 In contemporary American society, bullying remains engrained in the national ethos.5 Cultural notions accepting bullying as an unfortunate, but ultimately unavoidable, part of growing up have led to what some consider to be a crisis of epidemic proportions.6 A report released by the National Center for Education Statistics found that as many as thirty percent of students ages twelve through eighteen had experienced some form of bullying during the 2010–2011 school year.7 While bullying can have 2 See, e.g., Bonnie Bell Carter & Vicky G. Spencer, The Fear Factor: Bullying and Students with Disabilities, 21 INT’L J. SPECIAL EDUC. 11, 11 (2006) (“Bullying is not a new phenomenon. Indeed, it is chronicled in both classic literature and modern film.”); Hyojin Koo, A Time Line of the Evolution of School Bullying in Differing Social Contexts, 8 ASIA PAC. EDUC. REV. 107, 107 (2007) (“[T]he phenomenon of bullying is not a new concept. The fact that some people are frequently and systematically harassed or attacked by others is described in literary works and it also has been found most realistically in schools.”). 3 See, e.g., Koo, supra note 2, at 107 (“[C]onsiderable examples of bullying incidents among young people in earlier times have been found . In earlier times, according to descriptions in old documents from the 18th to early 20th centuries, bullying was generally described as physical harassment that usually related to a death, strong isolation, or extortion in school children.”). 4 See Hogan Sherrow, The Origins of Bullying, SCI. AM.: GUEST BLOG (Dec. 15, 2011), http://blogs.scientificamerican.com/guest-blog/the-origins-of-bullying (“Bullying is, in fact, widespread and not restricted to American society, but instead is found across the globe. From hunter/gatherer groups to post-industrial Japan, bullying is ubiquitous across human cultures.” (citations omitted)). 5 See, e.g., Scott Neumyer, 10 of Film History’s Meanest Bullies, ATLANTIC (Apr. 3, 2012), http://www.theatlantic.com/entertainment/archive/2012/04/10-of-film-historys-meanest- bullies/255394; Amy Weber, How Our Society Has Manifested the Bullying Epidemic, HUFFINGTON POST (July 27, 2012), http://www.huffingtonpost.com/amy-weber/how-our- society-has-manif_b_1548368.html. 6 See Paul M. Secunda, At the Crossroads of Title IX and a New “IDEA”: Why Bullying Need Not Be “A Normal Part of Growing Up” for Special Education Children, 12 DUKE J. GENDER L. & POL’Y 1, 1 (2005) (“In 21st century America, bullying of children by other children at school continues at epidemic levels.”); see also Official Trailer, BULLY (Studio Canal 2001), https:// vimeo.com/73792284. 7 NAT’L CTR. FOR EDUC. STATISTICS, STUDENT REPORTS OF BULLYING AND CYBER- BULLYING: RESULTS FROM THE 2011 SCHOOL CRIME SUPPLEMENT TO THE NATIONAL CRIME GANLEY.38.1.7 (Do Not Delete) 11/4/2016 4:36 PM 2016] BULLYING AND THE IDEA 307 devastating, long-term effects on victims,8 it may also harm perpetrators, by-standers, and the entire school community.9 Although bullying is a critical concern for all children, students with disabilities are particularly vulnerable.10 One national study found that 24.5% of elementary students, 34.1% of middle school students, and 26.6% of high school students with disabilities were victims of bullying.11 A survey of 400 families conducted by Massachusetts Advocates for Children in 2009 found that eighty-eight percent of children with autism spectrum disorder12 had been bullied in school.13 Not only are students with disabilities more likely to be targets of bullying, but they may also be more susceptible to the harm bullying causes.14 Fortunately, attitudes accepting bullying as a normal part of growing up have begun to shift,15 prompting communities, school VICTIMIZATION SURVEY, at T-1 (2013) [hereinafter NCES BULLYING REPORT], http:// nces.ed.gov/pubs2013/2013329.pdf. Other studies also suggest that anywhere from twenty percent to thirty percent of students have been involved in bullying. See, e.g., Gianluca Gini & Tiziana Pozzoli, Association Between Bullying and Psychosomatic Problems: A Meta-Analysis, 123 PEDIATRICS 1059, 1059 (2009). 8 See Dear Colleague Letter, U.S. Dep’t of Educ. Office of Special Educ. and Rehab. Servs. (Aug. 20, 2013) [hereinafter OSERS DCL Aug. 20, 2013], http://www.ed.gov/policy/speced/ guid/idea/memosdcltrs/bullyingdcl-8-20-13.doc (“Students who are targets of bullying behavior are more likely to experience lower academic achievement and aspirations, higher truancy rates, feelings of alienation from school, poor relationships with peers, loneliness, or depression.” (footnote omitted)). 9 See id. (“Bystanders . also may be negatively affected as bullying tends to have harmful effects on overall school climate. Bullying can foster fear and disrespect and negatively affect the school experience, norms, and relationships of all students, families, and school personnel.”). 10 See, e.g., id. (“Students with disabilities are disproportionately affected by bullying.”). 11 Dorothy L. Espelage, Chad A. Rose & Joshua R. Polanin, Social-Emotional Learning Program to Reduce Bullying, Fighting, and Victimization Among Middle School Students with Disabilities, 36 REMEDIAL & SPECIAL EDUC. 299, 299 (2015). 12 According to the National Institute of Mental Health, [a]utism spectrum disorder (ASD) is characterized by: [p]ersistent deficits in social communication and social interaction across multiple contexts; [r]estricted, repetitive patterns of behavior, interests, or activities; [s]ymptoms must be present in the early developmental period . ; and, [s]ymptoms cause clinically significant impairment in social, occupational, or other important areas of current functioning. Autism Spectrum Disorder, NAT’L INSTITUTE OF MENTAL HEALTH, http://www.nimh.nih.gov/ health/topics/autism-spectrum-disorders-asd/index.shtml (last visited Sept. 13, 2015). 13 MASS. ADVOCATES FOR CHILDREN, TARGETED, TAUNTED, TORMENTED: THE BULLYING OF CHILDREN WITH AUTISM SPECTRUM DISORDER 1–2 (2009) [hereinafter MASS. ADVOCATES FOR CHILDREN BULLYING REPORT]. Another study conducted by the Interactive Autism Network (IAN) found that sixty-three percent of students with autism ages six to fifteen had experienced bullying at some point. CONNIE ANDERSON, IAN RESEARCH REPORT: BULLYING AND CHILDREN WITH ASD (2014), https://iancommunity.org/cs/ian_research_reports/ian_