The judicial branch of the government stepped in to rule that all students are afforded first amendment rights as long as they don’t materially and substantially disrupt classes or other school activities. The legislative branch of the government was also willing to step into the school’s domain when they were compelled to enact PL-94-142 which means "special needs” students are entitled to a free appropriate program implemented in the least restrictive environment.

The removal of a pupil with an educational disability from the pupil's regular class occurs only when the nature or severity of the educational disability is such that education in the pupil's regular class with the use of appropriate supplementary aids and services cannot be achieved satisfactorily. Section 504 of the Rehabilitation Act of 1973 guarantees that people with disabilities cannot be excluded from any program or activity receiving federal financial assistance.

Though the mainstreamed student's primary placement is in a self-contained class for students with disabilities, they are taken out of this for specific portions of the school day and placed in classrooms with their non-disabled peers, often with no supports or accommodations, and with performance expectations similar to those of the typical students.  Mainstreaming is offered primarily to students with mild disabilities, and often involves only non-academic subjects, such as gym, art, music and lunch. 

I am noticing that the above rulings and legislation assuring our "special education” students their educational rights has had an unfortunate bi-product.  Although it is not supposed to occur, general education teachers often do not have the support they need to teach children with disabilities and be able to teach all children effectively.  The education of the general education children gets sacrificed so that children with disabilities can be included. Classrooms are less manageable for the teachers and the hallways and other non teaching areas are less safe for students. Autistic children can swear and take swings at other children. Bullying has become a major issue in our schools. 

I wondered if there was any Illinois law that would hold a school accountable for bullying that takes place on its premises.  It seems that our state government draws the line when it comes to passing legislation designed to hold the schools responsible for maintaining an atmosphere safe from bullying.  As Gary Avery, J.D. from the National Trainers for Law Advisory Group explained,

 It is not a statute, per se.  It is possible in both the state and federal courts of Illinois to state a claim if the school does not meet well-defined standards set up in a line of U.S. Supreme Court cases beginning with Meritor Savings Bank (Meritor Savings Bank v. Vinson, 1986, 106 S Ct 2399) and continuing through to more recent cases including ones called Lago Vista (Gebser v. Lago Vista Independent School District, 1998, 524 US 274) and Davis v. Monroe, 1999, 526 US 629.  Liability results when the school does not have a policy against harassment (bullying is a form of harassment) which is reasonable and in which both the faculty and the student body are trained.  The ability to report harassment in a simple fashion without automatically becoming known to other students, particularly not to the aggressor, is another important element.   And, finally, the school must be able to show that it actually follows up on complaints in a reasonable way. 

This would explain the proliferation of anti bullying programs that surface in school districts when harassment gets "pronounced”. 

I wondered about the likelihood of winning a lawsuit against a school district for negligence regarding bullying.  Mr. Avery said that school officials are allowed to use their discretion in deciding what, if any, punishment is proper in keeping with a U.S. Supreme Court case of long ago out of Illinois,  DeShaney v. Winnebago County Social Services, 1989, 109 S Ct 998.   So long as they are not so grossly stupid as to cause a reasonable person to term the behavior arbitrary or capricious, school officials' judgment will not lose just because there might have been a better way.

In addition to the above, in my research I read that a school doesn’t hold any "special status” with regards to the students that enter its doors.  Schools are not guardians, therefore cannot be held responsible for the actions, of students’ in their domain. 

 While I understand the reasoning behind the legislation that guarantees "special needs” students an equal opportunity education, there is much difficulty in monitoring the actions of all students at all times. There should be more money available to hire and pay for hall monitors and additional playground supervisors whose sole job is to maintain the safety of the schools.  I’m of the opinion that since there has been legislative action to protect the rights of "special needs” students, there must be some legislative action that can be taken to guarantee that the schools assure an atmosphere conducive to learning for "all students”.  Civil suits between families do not address the school’s responsibility for this inaction. 

 Certainly students being bullied are not getting "equal access to education”.  They are attending school in an atmosphere of fear. Some are the beneficiaries of physical and emotional scars that will last a lifetime.  The irony is that some of the students who are assured "equal access to an education” are the ones contributing to the atmosphere that makes the act of going to school a pretty scary venture for others.  

Give fair and equal treatment to all groups if one group is to receive it.  Students not classified as "special needs” have not been given equal voice.  Our students who perform well remind me of those applicants who are more qualified but don’t get the job because of "affirmative action”.  Enough, already!  The playing field will never be able to make up for the home advantage.  Our home teams don’t have to play with a "handicap”.  Why must the average student?

Nancy Salvato is a middle school teacher in Illinois and an independent contractor for Prism Educational Consulting. She is the Educational Liaison to IL Sen. Ray Soden and she works with national and local organizations furthering the cause of Civic Education. She is a columnist for American Daily, The Common Voice, GOP-USA, OpinionEditorials and The New Media Journal.us. Her writing has been recognized by the US Secretary of Education. She has been published in The Washington Times, The Washington Dispatch, Iconoclast, Free Republic Network & Townhall.com., as well as other nationally and internationally published media outlets.