Toolbox Tuesday: let’s talk about bullying….

Lawyers draw a distinction between the “holding” of the court and all the other things that the court puts in its opinion.  Much of the rest of the stuff is referred to as “dicta.”  So if you don’t like a particular sentence in the court’s opinion, you would point out that “it’s just dicta. It’s not the holding.”

Nevertheless, dicta is worth paying attention to sometimes, particularly if it alerts us to things that are important.  I think we would all agree that preventing bullying is important.   With that in mind, here is a bit of “dicta” from a 5th Circuit decision from 2019:

C.J.’s parents also allege that Houston ISD denied C.J. a FAPE by failing to convene a timely ARD meeting to address his bullying concerns and by allowing him to be bullied so extensively that he refused to attend school altogether.   This ‘school refusal’ claim has been recognized as a proper vehicle for a cause of action under the IDEA by a few courts in other circuits.  See, e.g., T.K. v. NYC DOE, 810 F.3d 869 (2nd Cir. 2016).

In that case (Renee v. Houston ISD, 913 F.3d 523 (5th Cir. 2019) the court ultimately concluded that Houston ISD did not deprive the student of FAPE, but as you can see, the court pointed out that a bad case of bullying can be a denial of FAPE.  More accurately, a bad case of bullying that is ignored by the school can be a denial of FAPE. 

In the Toolbox, we offer ten “tools” that schools can use to address inappropriate behavior from students with disabilities.   The Toolbox is relevant for students who engage in bullying as well as those who are its targets. Both sets of students need help. Both should at least be considered for a behavior plan that would provide positive interventions, supports and strategies.  Of course the student who engages in bullying is also subject to punitive measures for violating the Code of Conduct. But punishment alone is rarely effective.  Moreover, bullying is a behavior that impedes the learning of other students. That means that the student is a good candidate for a BIP.

Toolbox 4.1 is up to date with the latest from the Texas legislature about FBAs, BIPs and all the rest. So let me know if you are interested in learning more. 


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Tomorrow: the statute of limitations comes into play