...Administration 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. (32) In turn, a FAPE includes special education and related services which are reasonably calculated to permit a child with a disability to benefit educationally. (33) Consequently, actions taken by school districts to alleviate an unpleasant bullying situation for a special education child in order to comply with Title IX's dictates concerning peer sexual harassment may inadvertently also violate a child's right to a FAPE by altering that child's placement and/or programs. (34) To prevent placing school officials in this legal Catch-22, a legal model needs to be developed which ties the overlapping statutory frameworks of Title IX and IDEA together in one hybrid legal cause of action. Alternatively, if Title IX's stringent legal standards for peer sexual harassment cannot be met in a given bullying case even after incorporating IDEA concepts, IDEA may also provide legal bases for special education children to obtain monetary damages against school officials who have failed to protect them from bullying, which, in turn, has violated that child's right to a FAPE under IDEA.

With these issues at the forefront, this article advocates two IDEA-based legal models to increase the legal protections available for special education children who are the subject of same-sex harassment/bullying at school. The first proposal attempts to provide this additional protection by strengthening the Davis Title IX framework for peer sexual harassment at school by incorporating IDEA concepts directly into that framework. Under this hybrid model, a school is liable for the same-sex harassment of a special education child where (1) the school had actual notice of the harassment; (2) the character of the harassment was severe, pervasive, and objectively offensive; (3) the school's response to the known harassment was clearly unreasonable in light of its obligations under Title IX and IDEA; and (4) the student was denied a free and appropriate education in the least restrictive environment practicable or otherwise denied access to appropriate educational opportunities and benefits as a result of the harassment. (35) Next, after addressing the lack of effective legal theories of recovery outside the Title IX context because of various procedural and substantive limitations on such claims, (36) this article sets forth a second legal model. The second legal model involves an IDEA-based [section] 1983 action for money damages, (37) while at the same time recognizing that special education plaintiffs should normally have to first exhaust their administrative remedies under IDEA before bringing such a claim. (38)

This article proceeds in the following manner: Part II sets forth the current state of same-sex harassment law under Title IX and argues that the current framework provides little effective relief for either regular or special education children who are the subject of unlawful bullying. Part III outlines pertinent IDEA provisions and their potential implications for bullied special education children. Part IV advances a legal model that seeks to enhance the protections for bullied special education children by strengthening the Title IX peer harassment framework by directing courts to consider special education students' rights under IDEA when applying that framework. Part V examines various procedural and substantive limitations on advancing a [section] 1983 action for money damages in this context. Part VI advocates a second legal model, which seeks the expanded use of an IDEA-based [section] 1983 action against school officials for money damages for permitting bullying that subsequently interferes with a special education child's rights under IDEA.

II. TITLE IX, SAME-SEX HARASSMENT, AND BULLYING

As consideration of same-sex harassment in the K-12 environment is an inherently complex topic, this Part moves through a progression of subsections to consider the issues piecemeal. In the first subsection, a general overview of Title IX of the Education Amendments of 1972 is presented. Next, this article considers how the dictates of Title IX have been applied in the peer (student-on-student) harassment area. In the third subsection, the article examines the parallel employment discrimination federal statute, Title VII of the Civil Rights Act of 1964, in the same-sex harassment context to determine whether similar principles should apply to the educational arena. Next, the lack of recognition of Title IX same-sex claims, absent the presence of an assault, is considered. Finally, this Part concludes by exploring whether additional legal protections may exist for bullied special education students under IDEA.

A. Title IX Primer

Title IX of the Education Amendments of 1972 (39) prohibits sex discrimination in schools which receive federal education funding. (40) Although, as initially drafted, Title IX was limited to administrative enforcement actions brought by the federal government, (41) by 1979 the United States Supreme Court recognized that Title IX was enforceable by aggrieved individuals through an implied right of action. (42) In 1992, the Supreme Court took two further important steps when it recognized that sexual harassment was a type of sex discrimination under Title IX and that consequently, monetary damages were available for private litigants in such cases. (43)

Although prior to 1992 it was clear that students alleging sexual discrimination and harassment at school could bring private damage suits under Title IX, the standard for holding schools vicariously liable for the harassing acts of their teachers and students was still unclear. (44) It was not until 1998, in the seminal Gebser v. Lago Vista Independent School District decision, (45) that the Supreme Court considered the question of teacher-on-student harassment and significantly limited the circumstances under which students could obtain money damages for sexually harassing or abusive conduct by their teachers. (46) Relying on the Spending Clause authority upon which Title IX was enacted, (47) as well as the fact that Title IX was modeled on Title VI of the Civil Rights Act of 1964, (48) the Court held that Title IX was in the nature of a contract between the federal government and school funding recipient. (49) As a result, in order for a school district to be liable for the sexually harassing acts of its teachers, the Court found that damages would have to arise from the misconduct of the school itself in handling problems of sexual harassment or abuse by teachers. (50) To establish such actionable misconduct, the Court required a sexually harassed student to prove three elements: (1) that there was an "appropriate person" (51) with the ability to take corrective action; (2) who had actual knowledge of the harassment; (52) and (3) who responded with deliberate indifference (53) to that knowledge, (54) This standard has since been widely criticized for unfairly establishing difficult hurdles for students to overcome and "unnecessarily thwart[ing] Title IX's purpose." (55)

B. Peer Harassment Under Title IX

One year later in 1999, the Supreme Court considered the appropriate legal test for instances of student-on-student (or peer) sexual harassment at school. In Davis v. Monroe County Board of Education, (56) the Supreme Court found that, "student harassment of another student may constitute discrimination under Title IX when the funding recipient engages in harassment directly or when the funding recipient's deliberate indifference subjects its students to harassment." (57) Based on Gebser-like reasoning, not only did the Supreme Court apply the three required elements discussed in Gebser, but also further required that (1) the school exercise substantial control over both the harasser and the context in which the known harassment occurs; (58) and (2) that the sexual harassment in question be so severe, pervasive, (59) and objectively offensive (60) that it deprives victims of access to the educational opportunities or benefits provided by the school. (61) The Court emphasized, moreover, that "[d]amages are not available for simple acts of teasing and name-calling among school children, even where these comments target differences in gender." (62) Thus, an arguably even higher bar was set for holding a school liable for money damages under Title IX for instances of peer sexual harassment. (63)

C. A Statutory Precursor?: Same-Sex Harassment Under Title VII

Around this same time, the Supreme Court decided a same-sex harassment case in the employment context under Title VII of the Civil Rights Act of 1964. (64) In Oncale v. Sundowner Offshore Services, Inc., (65) the Supreme Court found, "that nothing in Title VII necessarily bars a claim of discrimination 'because of ... sex' merely because the plaintiff and the defendant (or the person acting on behalf of the defendant) are of the same-sex." (66) More specifically, the Supreme Court indicated that one way that a Title VII claimant could establish harassment "because of sex" in the employment arena was to show that he or she was harassed in such sex-specific terms as to raise an inference of hostility toward his or her sex. (67) Moreover, in a previous Title VII sexual harassment case, Price Waterhouse v. Hopkin, (68) the Court had made clear that discrimination or harassment based on a failure to meet stereotypical gender expectations is actionable under Title VII. (69) Significantly, the Court recognized that these types of same-sex harassment claims were not based on any sexual desire or attraction toward the harassed individual, but rather on hostility based upon the failure of the victim to conform to stereotypical notions of masculinity or femininity. (70)

D. The Present Status of Same-Sex Harassment Claims Under Title IX

Although the Supreme Court in the Title IX context has not addressed same-sex harassment claims, (71) there is every reason to believe that the teachings of Oncale will be incorporated into the educational setting. (72) First, with the exception of vicarious liability discussed above, the Supreme Court and other federal courts have generally incorporated Title VII sexual harassment legal standards into Title IX cases. (73) Second, the lower federal courts, state courts, and United States Department of Education have all considered the question of same-sex harassment under Title IX and have unanimously concluded that such claims are equally viable under Title IX as they are under Title VII. (74)

Nonetheless, most current same-sex harassment cases appear to involve sexual abuse or assaults rather than the more everyday, traditional bullying behavior with which most people are familiar, i.e., verbal taunting and/or less severe physical harassment or abuse based on the failure of a student to live up to stereotypical gender expectations. (75) For instance, although there are Title IX cases in which male students were sexually molested by male teachers, (76) in which male and female students were sexually abused by other students of their own gender, (77) or in which male or female students were sexually abused by other students based on their perceived, or actual, sexual orientation, (78) there is but one case which could be located based on a bullying scenario that did not involve sexual abuse or sexual assault. (79) In the special education context, only one case was located that involved same-sex harassment and that case involved a sexual assault. (80)

E. Are Bullied Special Education Children Any Better Off Than Their Regular Education Classmates?

In short, and problematically, few courts have actually found actionable same-sex harassment in cases under Title IX in which either a regular education or special education child is subject to severe, pervasive, or objectively offensive bullying without some form of sexually-oriented assault being alleged. (81) This current situation suggests that potential plaintiffs have analyzed the high threshold requirements for a peer sexual harassment claim, and contrary to Justice Kennedy's prediction in Davis of an "avalanche of liability" from this type of litigation, (82) have hesitated to bring Title IX peer sexual harassment cases that do not involve some form of severe, and usually criminal, sexual abuse. (83) This is certainly an unjust state of affairs, as a student should not have to await a criminal attack on his or her person at school before being entitled to some form of civil relief. (84) In short, the current Title IX peer sexual harassment framework is so narrow that it is entirely ineffective in addressing the very serious and real issue of bullying of children at school based on their failure to conform to stereotypical notions of gender. (85)

Although the situation remains bleak for regular education children who are bullied at school it is unnecessary for bullied special education children to suffer the same "normal part of growing up." The remaining sections of this article consider the added civil rights afforded to special education children under the IDEA special education law, and then subsequently explore two separate IDEA-based approaches for increasing the legal protection afforded to special education children who are bullied.

III. IDEA AND THE BULLYING OF SPECIAL EDUCATION CHILDREN

The Individuals with Disabilities in Education Act (IDEA) (86) guarantees a free and appropriate education (FAPE) (87) to all children with disabilities. (88) To ensure that these children have access to a FAPE, IDEA requires states and local school districts that receive federal funding for special education (89) and related services (90) to meet certain procedural safeguards. (91) These procedural safeguards are aimed at providing parents of special education children with meaningful input into decisions that affect their child's education. (92) For example, IDEA requires that a school district provide prior written notice to parents whenever the school district proposes (or refuses) to change a child's placement or program, (93) and that the school place, "to the maximum extent appropriate," a special education child in the least restrictive environment (LRE). (94) IDEA also requires schools to keep track of a special education student's placement and programs through use of a written individual education plan (IEP). (95)

If a parent of a special education child believes that their child's rights under IDEA have been violated, IDEA permits parents to file formal complaints "with respect to any manner relating to the identification, evaluation, or educational placement of the child, or the provision of a free and appropriate education to such child." (96) A complaint may be presented at a formal due process hearing, presided over by an impartial due process hearing officer appointed by either the state or local educational agency. (97) The due process officer may award various injunctive, declaratory, and monetary relief for violations of IDEA. (98) Such monetary relief may take the form of compensatory education (99) and tuition reimbursement, (100) but generally does not result in money damages. (101) Either the parent of the special education child or the school district may appeal the due process officer's decision to a state or federal court if they are unhappy with the outcome. (102)

Thus,...

NOTE: All illustrations and photos have been removed from this article.




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