Overcoming Deliberate Indifference: Reconsidering Effective Legal Protections for Bullied Special Education Students

Abstract

Ten years ago, in response to an epidemic of bullying and harassment of special education students in our nation’s schools, I put forward two new legal proposals based on legal protections that these students uniquely have under the Individual with Disabilities in Education (IDEA). Although these proposals have gained some traction in the ensuing time period, most courts continue to analyze these cases under the same series of largely ineffectual constitutional and statutory laws. What many of these laws have in common with my previous proposals is reliance on a deliberate indifference standard, which requires schools and responsible school officials to essentially ignore the bullying behavior before being held legally accountable for their actions. Not surprisingly, there has been a remarkable lack of case success in even the most severe instances of special education student bullying.To provide meaningful legal protections for bullied special education children, this article seeks to overcome the deliberate indifference standard by relying on a combination of reasonable accommodation principles under federal disability law and legal protections that children with disabilities already have under IDEA. More specifically, this article argues for adoption of the gross mismanagement standard under Section 504 of the Rehabilitation Act and an expansion of existing state anti-bullying laws to provide special education children with various forms of private rights of action to combat the most severe forms of bullying. These new legal proposals will add to the arsenal that bullied special education children have at their disposal to fight back against both their tormentors and their institutional and individual enablers.