Criminal Consequences for Bullying a Student with ASD

There are many reasons why a child with autism could be bullied in nearly any setting but particularly, school is typically the most prevalent setting of concern. Children with autism often have social deficits including lack of understanding facial expressions, body language, tone of voice, or eye contact. This makes them vulnerable to other children who see them as “different” and therefore, “inferior”.

Bullying a child with ASD is often more complex than typical bullying because many children do not recognize themselves as being bullied and therefore may not have either the communication skills or the cognitive ability to report what they’re experiencing.

The Office for Civil Rights (OCR) and Department of Justice (DOJ) consider bullying to be harassment if it is based on a student’s disability, such as autism. Bullying based on a disability is considered a civil rights matter and taken seriously. Specifically, section 504 of the rehabilitation act of 1973 and Title II of the Americans with Disabilities Act of 1990 are enforced with specific focus on the child’s right to an effective and fair education.

Further, IDEA protects students’ rights to FAPE, Free Appropriate Public Education, giving parents even more support to act if they suspect or know their child with autism is being bullied. Bullying can and likely does interrupt a student’s ability to focus on their education and learn and thus, violate a student’s 504 or IEP plan.

Bullying or harassment can, unfortunately, become violent. At this point, physical violence against an individual with a disability due to their condition is considered a hate crime. The DOJ defines a hate crime as

“any crime motivated by bias against race, color, religion, national origin, sexual orientation, gender, gender identity, or disability”.

When crimes become violent, they are breaking federal law Violent Interference with Federally Protected Rights, 18 U.S.C. § 245 that holds all individuals to the right to be involved with “federal protected activities”, including public education, without willing and planned interference.

Recap of federal laws on bullying-

• Section 504 of the Rehabilitation Act of 1973 prohibits discrimination based on disability and any school receiving federal money must adhere to this law
• Title II of the Americans with Disabilities Act of 1990 also prohibits discrimination based on disability, but this law extends further to include all state and local organizations, whether or not they receive money from the government
• 504 and Title II can both be violated via bullying or disability harassment as a form of discrimination

There are repercussions and consequences for those who bully, harass, or commit hate crimes against students with disabilities, however, they are designated under state-specific laws, rather than federal law. All 50 states currently have laws regarding bullying prevention- the first in 1999 and the last in 2015. All states have independent laws and regulations regarding reporting bullying and follow-up procedures to how the situation is handled.

Unfortunately, at the state level, the laws regarding anti-bullying are considered weak, as they leave a lot of the wording open to interpretation and there is no legitimate form of incentive or enforcement of the anti-bullying laws.

Repercussions for bullying, harassment, and/or hate crimes

• Title 18 U.S.C. Section 249 Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act discusses the ramifications to someone who commits a hate crime as The law provides for a maximum 10–year prison term, unless death (or attempts to kill) results from the offense, or unless the offense includes kidnapping or attempted kidnapping, or aggravated sexual abuse or attempted aggravated sexual abuse. For offenses not resulting in death, there is a seven–year statute of limitations. For offenses resulting in death, there is no statute of limitations.
• Per each state’s special education and anti-bullying policies, action must be documented immediately after a person has reported bullying, harassment, or discrimination, including a description of what the offender received in terms of disciplinary action, community service, or other rehabilitation program. Without this information and action taken, schools can and are held accountable for the student’s civil and safety rights and may be subject to litigation if proper protocols aren’t followed

 It may be 2022, but research into the penalties and consequences for bullying a student with a disability such as autism resulted in severe disappointment. While federal laws do blanket those students with disabilities, states are left to their own discretion and interpretation and this is where students experiencing bullying, particularly those with autism, may fall through the cracks of the system. Clear, concise, and air-tight protocols are what students need regarding the penalties and repercussions one will face following a conviction of harassment, bullying, or a hate crime.

It is with hope that we continue to move forward for our special needs students and secure them the rights to fair and discrimination-free education with clear consequences in store for those who violate that right.