Disability Rights of West Virginia
Bullying and School
Article by Lori Waller, DRWV Staff Attorney
What is bullying?
According to the federal Department of Education, bullying is characterized by aggression used within a relationship where the aggressor has more real or perceived power than the target, and the aggression is repeated, or has the potential to be repeated. Bullying is physical, verbal, or psychological actions inflicting or attempting to inflict discomfort upon another through a real or perceived imbalance of power.
Dear Colleague Letter, 61 IDELR 263 (OSERS/OSEP 2013). According to West Virginia law, harassment, intimidation or bullying means “any intentional gesture, or any intentional electronic, written, verbal or physical act, communication, transmission or threat” that a reasonable person under the circumstances should know will have the effect of any one or more of the following: (1) physically harming a student; (2) damaging a student’s property; (3) placing a student in reasonable fear of harm to his or her person; or (4) placing a student in reasonable fear of damage to his or her property. W.Va. Code §18-2C-2(a)(1).
The act also must be sufficiently severe, persistent or pervasive that it creates an intimidating, threatening or emotionally abusive educational environment for a student; or disrupts or interferes with the orderly operation of the school. W.Va. Code §18-2C-2(a)(2) & (3). Of note, confrontations between students that are not characterized by an imbalance in power generally do not constitute bullying.
Bullying can occur in multiple different ways. It can involve overt physical behavior or verbal, emotional, or social behaviors (e.g., excluding someone from social activities, making threats, withdrawing attention, destroying someone's reputation) and can range from blatant aggression to far more subtle and covert behaviors. Cyberbullying, or bullying through electronic technology (e.g., cell phones, computers, online/social media), can include offensive text messages or emails, rumors or embarrassing photos posted on social networking sites, or fake online profiles. Dear Colleague Letter, 61 IDELR 263 (OSERS/OSEP 2013).
Children have the right to not be bullied.
According to West Virginia law, each county board of education is required to establish a policy prohibiting harassment, intimidation or bullying. W.Va. Code §18-2C-3(a). The policy must prohibit harassment, intimidation or bullying of any student on school property, a school bus, at a school bus stop or at school sponsored events and define what constitutes harassment, intimidation and bullying. W.Va. Code §18-2C-3(b)(1) & (2).
Schools also have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive a free appropriate public education (FAPE) in accordance with his or her individualized education plan (IEP) as required by the Individuals with Disabilities Education Act (IDEA). The school should, as part of its appropriate response to the bullying, convene the IEP Team to determine whether, as a result of the effects of the bullying, the student's needs have changed such that the IEP is no longer designed to provide meaningful educational benefit. The student with the IEP continues to have the right to be educated in the least restrictive environment (LRE), meaning dealing with bullying cannot be solved simply by placing the student with the disability in a more restrictive environment to separate that student and the student who is doing the bullying.
How many children are bullied?
Students with disabilities are more likely to experience bullying than students who do not have disabilities. Students report being bullied for a variety of reason such as their sex, race/ethnicity, and grade level. Any student may be the subject of bullying. The chart below shows the frequency of reports of bullying for year 2019 by various demographic characteristics. Approximately one quarter of students aged 12 to 18 experienced bullying during 2019, showing the extensiveness of this problem.
1Total includes race categories not separately shown.
2Race categories exclude persons of Hispanic ethnicity. Data for Pacific islander and American Indian/Alaska Native students did not meet reporting standards in 2019; therefore, data for these two groups are not shown.
3Excludes students with missing information about the school characteristic.
NOTE: “At school” includes in the school building, on school property, on a school bus, and goind to and from school. Although rounded numbers are displayed, the figures are based on unrounded data.
SOURCE: U.S. Department of Justice, Bureau of Justice Statistics, School Crime Supplement (SCS) to the National Crime Victimization Survey. 2019. See Digest of Education Statistics 2020. table 230.40
What must schools do?
West Virginia’s public schools must respond quickly and consistently, in accordance with state and federal law, to incidents of bullying, harassment or intimidation in a manner that effectively deters future incidents and affirms respect for individuals.
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