Tough Stance Against Bullying in Massachusetts
By Daniel T.S. Heffernan, Esq.

Perhaps nothing evokes greater anxiety for parents of school-aged children with disabilities than the fear of their children becoming the victims of bullying. With the explosion of social networks, taunts, parodies, and even violent acts are not only disseminated widely and instantaneously, but in some instances, encouraged. As a lawyer, I have seen how pervasive bullying has become and the enormous pain and damage it causes children and their families. Children are ostracized and humiliated. Some are physically injured and, in some instances, traumatized so seriously that they require psychiatric hospitalization. Some even suffer lingering effects such as post-traumatic stress disorder. At times, the victim gets blamed and labeled as a behavior problem when he/she strikes back at the bullies or acts out in reaction to the unabated bullying. Sometimes the school environment becomes so “toxic” that students can no longer be safe or properly educated there and require specialized placements.

Often more disheartening and damaging than the bullying itself is the failure of school personnel to prevent, monitor, or extinguish such bullying. In fairness, often bullying flies under the radar and school personnel are unaware of it or ill-equipped to address it. However, some educators have seemed ignorant of the damage such bullying can cause and have abdicated their roles as educators and taken a “kids will be kids” attitude about the bullying.

As a result of the publicity surrounding a particularly egregious instance of bullying that purportedly drove one high school student to suicide and led to criminal charges against the alleged perpetrators, Massachusetts recently enacted an Anti-Bullying Statute, General Laws chapter 71, Section 37O. Because of the public outcry and media attention, the law was passed swiftly. Criticism was voiced that the law went too far as well as not far enough. The education community and families are closely watching the effectiveness and impact of this law. Bullying is defined broadly as the repeated use by one or more students of a written, verbal, or electronic expression, or a physical act or gesture, or any combination thereof, directed at a victim that: (i) causes physical or emotional harm to the victim or damage to victim’s property; (ii) places the victim in reasonable fear of harm to himself or of damage to his property; (iii) creates a hostile environment at school for the victim; (iv) infringes on the rights of the victim at school; or (v) materially and substantially disrupts the education process or the orderly operation of a school. Bullying also includes cyber-bullying.

The statute prohibits bullying not only at school and school-sponsored activities and functions, but also beyond if the bullying creates a hostile environment at school for the victim or infringes on his/her rights at school or is otherwise disruptive of the school. In addition, the statute imposes obligations on schools, including non-public and charter schools, to: 1) provide instruction on bullying prevention in each grade; 2) develop and adhere to a plan to address bullying prevention and intervention; 3) provide professional development in these areas; 4) annually provide written materials regarding bullying policies to students and parents; 5) have personnel report incidents of bullying to the principal or designated person; and, 6) inform the parents of both the victim and the perpetrator of any instances of bullying.

Concerning a child with special needs who has a disability affecting social skills development or making that child vulnerable to bullying, the Team is required to include in the IEP skills and proficiencies needed to avoid and respond to bullying.

There are several practical things that parents and advocates can do to reap the benefits of this new legislation and focus on bullying:

• Ask for your school’s policies and procedures about bullying – if they do not have these yet, insist that they do so and ask to join in the process of promulgating those policies and procedures to bring special attention to children with disabilities. Make sure the school is providing the information and training they are now required to.
• An ounce of prevention – be proactive about any instances or brewing issues around bullying by meeting with the teacher or school staff to develop an effective response. Nipping things in the bud early and preventing them from escalating can avoid major problems or damage.
• Insist on being well informed – schools sometimes fail to communicate with families about bullying because they minimize it or because they want to “handle it themselves.” Make it clear that you want to be told immediately about any issues regarding bullying that arise.
• Consider modifications to an IEP or 504 plan – students may require certain services, such as counseling, or additional monitoring or aide support, to respond to or prevent bullying or harassment. Know that if the bullying has resulted in such significant damages or issues, placement in a private school or other program may be warranted.

Although it is uncertain what impact this legislation and the recent attention will have on bullying of students with special needs, I am hopeful that it will significantly decrease bullying in our community and ameliorate its impact.

Daniel T.S. Heffernan is member of the Federation’s Board of Directors and a partner at Kotin, Crabtree & Strong where he concentrates on special education and civil rights law. Contact him at dheffernan@kcslegal.com.