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Rochelle’s Special Education Tips

The Bullying Issue and the Deliberate Indifference Standard

The Fourth Circuit Court of Appeals, which issues decisions binding on all Maryland school systems, set the legal standard for liability for bullying in 2016: so long as a school system can show that it did not respond with “deliberate indifference” it will prevail in a Title IX or Section 504 claim. The Fourth Circuit has held that liability cannot be based on the school’s failure to eliminate student-on-student harassment or to impose the disciplinary sanctions sought by a victim. The school system will be liable for student-on-student harassment only where its “response . . . or lack thereof is clearly unreasonable in light of the known circumstances.” This decision makes sense. No school system can totally control the actions of its students, but it can control its responses to those actions.

To avoid liability, investigate every incident of alleged harassment of which you are informed. Discipline offenders, even if only with a parent phone call, student conference, and up to detentions and suspensions. Document the investigation, the outcome, and the discipline, if any, that results from the investigation. In many situations, counseling of the offender will be the appropriate response. In some cases, you should also offer counseling to the victim.

Do not ignore the bullying issue in IEP meetings. Make sure your Prior Written Notice/meeting minutes shows that the IEP team addressed the issue. Perhaps the IEP should be amended by including objectives for self-advocacy.

Rochelle’s Special Education Tips (“Tips”) are designed to be helpful and thought provoking, but should not be considered legal advice as they may not be accurate for use in all situations. Tips are based on my opinions and positions in accordance with federal and Maryland law and my over 35 years of experience in the special education legal field. – Rochelle S. Eisenberg, Esquire
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