Two years ago, I wrote a blog post explaining that the Massachusetts Anti-Bullying Law does not apply to teacher-on-student bullying.  But as I said then, just because the bullying law doesn't apply in this situation, doesn't mean there isn't a remedy. Instead, students and parents must consider several different causes of action.

I recently came across an excellent article in the Northeastern University Law Journal explaining various theories of liability a student may assert against a school district in instances where a teacher targeted a student.    The article, by Marc L. Terry and Amanda Marie Baer, is called Teacher-on-Student Bullying: Is Your Massachusetts School District Ready for the Test?  You can read the entire article here. 

Because this law office focuses on special education matters, Attorney Lillian Wong primarily represents students who have been bullied by teachers when the bullying results in disability-based harassment and/or a denial of a Free Appropriate Public Education (FAPE).

A recent story from Portland, Oregon caught my eye.  An occupational therapist  is suing her former school district, claiming she was fired for reporting violations of special education law.  The occupational therapist claims that her schedule did not permit her to service all children who needed it, as required by law.  Instead, the school district allegedly told her to only service the students whose "parents are litigious."  You can read the entire article here.

I hear a lot of similar stories from special educators here in Massachusetts, although many of those individuals are reluctant to speak up because they fear they would end up, like this Oregon woman, without a job. 

It is disheartening to think that only children with litigious parents are receiving the special education services they need, especially since being a "litigious parent" usually requires a fair amount of money.  This paradigm often leaves poor children with disabilities further disadvantaged and underscores the importance of pro bono representation.   This story also highlights a reality many parents suspect but find difficult to confirm - that the school  more likely to give your child the supports and services he or she needs if you, as the parent, understand and are ready to enforce the law.

If you are a parent of a child on an IEP in Massachusetts with additional questions about special education law enforcement, please do not hesitate to contact the North Shore Law Office of Lillian E. Wong.

The Question
Parents and educational advocates often ask me what to do when a teacher is "bullying" a student.

Massachusetts' Bullying Law
Many people are surprised to learn that the Massachusetts Anti-Bullying law does not apply when teachers are "bullying" students.  The Massachusetts Anti-Bullying law defines a "bully" as a "student," making it legally impossible for the teacher to be labeled a bully under this statute.

Reframing the Question
Just because the anti-bullying law does not apply to teacher/student interactions, doesn't mean the teacher is acting appropriately.  When I'm told a teacher is bullying as student I always ask for a more detailed description about the teacher's actions. 

Is the teacher refusing to implement the student's IEP or 504 accommodations?  Then the teacher is denying the child a Free Appropriate Public Education (FAPE).  Is the teacher continually making fun of the child's known or perceived disability?  Then the teacher has committed disability-based harassment and discrimination.  Is the teacher impermissibly sharing confidential information about the student?  Then the teacher is violating the child's privacy rights under FERPA. 

Getting Help
Before any parent makes allegations against a teacher, it's important to have a clear understanding of what events took place and what laws are implicated.  It's also useful to corroborate reports of teacher "bullying" and provide supporting documentation to the school.  If you have questions about the laws governing teacher/student interactions, contact the Boston area law office of Lillian E. Wong today.

This question was originally posted on www.avvo.com.

Question:

I feel like my child is being treated unfairly by his 2nd grade teacher what more can I do?  I have made it clear to the principal and teacher that I'm not happy with the situation. I have asked for a classroom change, sat in class with my son and I am at a point where I just have to tell him to grin and bare it. He is ADHD and has had no efforts by the teacher to facilitate his needs. It is to a point where she has been embarrassing him in front of other students in the classroom and although I complained It has currently had no action taken. Frankly I'm tired of him crying everyday because of her persistent bullying. Any advice would be appreciated. Thank you.

My Response:

If your child doesn't have a 504 or IEP plan, I would request that the school evaluate him, if you suspect his disability is interfering with his ability to learn. Children with ADHD often act impulsively because of their disability, and this can lead to school disciplinary action. It is always better to avoid this issue by proactively addressing the situation, often with a functional behavioral assessment and a positive behavior plan.  Other children with ADHD are disciplined by teachers for their lack of attention in class or constant fidgeting.  It is important that teachers understand that these behaviors are a result of a disability, and not simply bad behavior.

Once your child's special education needs are addressed, you could consider filing a complaint against the teacher with the Department of Education.

This question was originally posted on www.avvo.com.

Question:
My son is disabled and we have been having a problem with our school system. He has a special ed teacher that has said statements to him like "you will never get your driver's license because you can't read" "you will never get a job because you are too lazy and don't know how to do anything" there has been many other comments. I'm just wondering if I have a case?

My Answer:
I'm not sure what kind of case you are contemplating.  Certainly, this teacher should be reported to the Department of Education in your state.  You can file a complaint yourself, or work with an education attorney.

My main concern is that this person is charged with educating your son.  There is an argument that the school has failed to provide your child with a free and appropriate education (FAPE) if the special education teacher is disparaging your son, calling him lazy, and your child is not able to read.  The remedy for failure to provide FAPE is compensatory education. 
 
Cases like these are complicated.  It is hard for me to give more advice without consulting with you further.  I suggest you speak with a special education attorney in your area.  You can find one at www.copaa.org. 

Until then, I would encourage you to document each one of these comments and make the school aware of these issues in writing.  You can learn more about creating a paper trail here.