Catherine Fregosi

In August of 2014, a viral trend hit social networks: the “ice bucket challenge” raised awareness of amyotrophic lateral sclerosis (ALS) by challenging people to either douse themselves in ice or donate money to ALS research, or both.[1] In Bay Village, Ohio, five high-school boys challenged a fifteen-year-old classmate with autism to participate in the ice bucket challenge.[2] On the evening of August 18, the autistic youth met his challengers to complete the challenge, but instead of a bucket of ice, the challengers poured a bucket of urine and tobacco spit on him.[3] The challengers recorded the incident on the boy’s phone and posted the video to Instagram.[4] The boy’s parents found the video on his phone and reported it to the police and the media.[5]

The Bay Village community responded to the incident with an outpouring of support for the autistic youth and his family.[6] Nationally, the incident ignited a wave of horror and outrage within the autism community. Commenters on social networking sites and in the media wanted to prosecute the challengers with a hate crime.[7] The families of autistic children expressed their own fear that bullying could just as easily happen to their own children.[8]

Bullying is a pervasive problem that affects many children; in 2013, 19.6% of the students surveyed as part of the Centers for Disease Control and Prevention’s national Youth Risk Behavior Surveillance reported having been bullied on school property.[9] The Department of Health and Human Services has recognized that students with special needs are particularly vulnerable to bullying. [10]

When a student with autism spectrum disorder is bullied, the bullying affects the student’s opportunity to access the federally guaranteed free, appropriate public education (FAPE).[11] Autism is primarily a social functioning disability; autistic individuals demonstrate social communication deficits and difficulty understanding and engaging in social relationships.[12] In many people with autism, these social functioning deficits also affect the individual’s functional verbal communication skills and may affect the individual’s ability to adapt to changing environments and schedules, and varied sensory stimulation.[13] Because autism is at root a social disorder with sometimes dramatic attendant academic consequences, an autistic student’s opportunity to access education is predicated on his opportunity to manage the social functioning deficits that characterize his disability.

This note explores public schools’ obligation under federal law to prevent bullying by providing support for autistic student inclusion to the entire school community. The analysis includes U.S. Supreme Court jurisprudence defining a free appropriate public education, the Individuals With Disabilities Education Act’s (IDEA) statutory requirements, federal court decisions on bullying and denial of educational opportunity to disabled students, and recent U.S. Department of Education guidance on bullying of disabled students. The analysis concludes that schools have an obligation to proactively seek to prevent autistic student bullying in order to comply with statutory requirements and meet the educational needs of students with autism.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] Have You Heard About the “Ice Bucket Challenge?”, ALS Association,  http://www.alsa.org/news/archive/ice-bucket-challenge.html (last visited October 23, 2014).

[2] Kevin Conlon, Teens Behind Ice Bucket Prank on Autistic Teen Charged, http://www.cnn.com/2014/10/15/us/horrific-ice-bucket-challenge/ (last visited October 23, 2014).

[3] Id.

[4] Id.

[5] Id.

[6] Barb Galbincea, Rally Shows Bay Village’s Support for Teen Victim of Fake ALS Ice Bucket Challenge, http://www.cleveland.com/bay-village/index.ssf/2014/09/rally_shows_bay_villages_suppo.html (last visited October 23, 2014).

[7] Barb Galbincea, Strong Reaction Follows Report of Bay Village Teen Victimized in Fake ALS Ice Bucket Challenge, http://www.cleveland.com/bay-village/index.ssf/2014/09/strong_reaction_follows_report.html (last visited October 23, 2014).

[8] Id.

[9] Centers for Disease Control and Prevention, Youth Risk Behavior Surveillance – United States, 2013, 63 Morbidity and Mortality Weekly Report at 10 (June 14, 2014).

[10] Id.

[11] See Individuals with Disabilities Education Act 20 U.S.C. § 1400 (2006) (stating that one of the purposes of the act is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); U.S. Dept. of Educ., Office for Civil Rights, Dear Colleague Letter (Oct. 21, 2014) available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-bullying-201410.pdf (instructing schools that any bullying of a disabled student may deprive the student of access to a free appropriate public education and directing schools to take remedial action when such bullying occurs).

[12] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) available at http://www.cdc.gov/ncbddd/autism/hcp-dsm.html (last visited Feb. 11, 2015).

[13] Id.