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

Article excerpt

I. INTRODUCTION

In 21st century America, bullying (1) of children by other children at school continues at epidemic levels. (2) Organizations as diverse as the Department of Health and Human Services (through the National Institutes of Health and Health Resources and Services Administration (HRSA)), (3) the National Crime Prevention Council, (4) the National Youth Violence Prevention Resource Center, (5) and the National Education Association, (6) have all targeted school bullying and its consequences in various initiatives and campaigns over the last several years. (7) These organizations argue that if schools and parents do not properly intervene to prevent bullying, the long-term ramifications for both the bully and the bullied could be disastrous. (8) In fact, there appears to be a new momentum among parents and educators to take the problem of bullying more seriously. (9) Recent violence at schools across the country, including the now-infamous Columbine school shooting, (10) has made educators, parents, and children more reluctant to accept that bullying is just a "normal part of growing up." (11)

Even so, legal remedies for victims of bullying continue to be woefully inadequate. (12) Although victims of student-on-student sexual harassment have a claim for compensatory damages (13) under the federal gender discrimination in education law, Title IX of the Education Amendments of 1972, (14) the Supreme Court of the United States has yet to endorse the idea of a same-sex harassment cause of action for more common forms of bullying under Title IX (i.e., boys bullying boys or girls bullying girls). (15) That being said, there is some hope that same-sex harassment causes of action for bullying behavior may become more common under Title IX as an increasing number of courts (16) and the United States Department of Education (17) have adopted the reasoning of the Supreme Court's Title VII decision in Oncale v. Sundowner Offshore Services, Inc. (18) In these instances, decisions have embraced Oncale's central teaching that same-sex harassment need not depend upon sexual attraction or desire, but may also derive from nonsexual animus based on the failure of the harassed individual to live up to stereotypical gender norms. (19)

Indeed, research studies and anecdotal evidence suggest that those victimized by bullying are typically students who do not fit stereotypical notions of what it is to be masculine or feminine, athletic, cool, or "in" at school. (20) Classic examples include not only children who are smaller,(21) younger, (22) gay or effeminate, (23) obese, (24) or from different countries, (25) but also children who look and/or act differently from other children as a result of physical and/or mental impairments (i.e., special education children). (26) It is the legal ramifications for verbally and physically abused special education children, mostly by members of their own gender, upon which this article focuses. (27)

Presently, most observers, and even the Supreme Court in its seminal student-on-student sexual harassment decision, Davis v. Monroe County Board of Education, (28) have yet to undertake a sufficient evaluation of the complex legal issues surrounding the bullying of special education children. (29) To date, commentators and lower courts have primarily focused on the Title IX implications for students subject to same-sex harassment by other students and then, mostly in the context of harassment based on the actual, or perceived, sexual orientation of the student. (30) Yet, when another student bullies a special education child based on that child's appearance, behavior, or failure to live up to stereotyped notions of gender, it is necessary to consider the intersection between Title IX and the primary federal special education law, the Individuals with Disabilities in Education Act (IDEA). (31)

Under IDEA, children with disabilities are entitled to a free and appropriate education (FAPE) in the least restrictive environment practicable. …