Frequently Asked Questions: New Jersey Special Education & Anti-Bullying Law
Below, NJ education attorney Laura C. González provides answers to some of the most common questions families ask when seeking special education and school bullying representation.
General Special Education Questions
What is a Free Appropriate Public Education (FAPE)?
A Free Appropriate Public Education (FAPE) is legally mandated for disabled children ages 3 to 21. FAPE is required under the Individuals with Disabilities Education Act (IDEA). Generally, FAPE mandates special education and related services to children with Individual Education Programs at public expense.
What are the recognized special education classifications in New Jersey?
New Jersey law recognizes14 disability categories that may make a student eligible for special education services.
- Auditory Impairment
- Autism
- Intellectual Disability
- Communication Impairment
- Emotional Regulation
- Multiple Disabilities
- Deaf-Blinddness
- Orthopedic Impairment
- Other Health Impairment
- Preschool Child With a Disability
- Social Maladjustment
- Specific Learning Disability
- Traumatic Brain Injury
- Visual Impairment
Does having one of these 14 disabilities mean a child will automatically receive special education and related services?
No, having a disability alone does not qualify a child for an IEP. Per NJ statute, all of the following must be present:
- The student has one or more of the specific disabilities listed above
- The disability adversely affects the student’s educational performance; and
- The student requires special education and related services
What is an Individualized Education Program (IEP)?
An Individualized Education Program (IEP) is a core element of the IDEA. It is a legally binding document that sets forth the student’s academic plan and supportive services. A school’s compliance with the IEP is legally required to provide a student with a FAPE, which is also a legal requirement. The IEP is developed jointly with parents and schools. It is reviewed annually or more frequently, as necessary.
What is a Section 504 Plan?
An Individualized Education Program (IEP) provides specialized instruction and related services for students who qualify for special education. A Section 504 Plan typically protects children who have disabilities that require accommodations to access their education but do not necessarily require specialized instruction under IDEA.
What is the "Least Restrictive Environment" (LRE)?
The Least Restrictive Environment is a core principle under IDEA stating that children who have disabilities should learn alongside their non-disabled peers to the maximum extent appropriate.
Out-of-District & Unilateral Placements
What is an out-of-district placement?
If your local school district cannot properly provide a FAPE, your child may need to attend a specialized private school or a neighboring public school. This is known as an out-of-district placement, which can be in a state-approved school or a non-approved private school under the Naples Act.
Can I unilaterally place my child in a private school and get tuition reimbursement?
Yes, under certain conditions. You may unilaterally place your child in a private school at your own expense and seek tuition reimbursement from the District. However, this requires holding a due process hearing to determine whether the child was receiving a FAPE.
Will the school district easily agree to an out-of-district placement?
Securing these placements can be complex, requiring expert assessments, medical evaluations, and rigorous negotiations with the school district. Some parents hire legal representation while others represent themselves.
Harassment, Intimidation, and Bullying (HIB)
How does New Jersey define Harassment, Intimidation, and Bullying (HIB)?
New Jersey’s Harassment, Intimidation, and Bullying statute defines bullying very narrowly in that the offensive action must be aimed at a victim’s “characteristic” such as race, gender, appearance, disability, sexual orientation, or religion. Other characteristics may be considered to constitute bullying, but they may require making nuanced arguments that schools may not be willing to recognize. The statute is narrow in that it requires a targeted characteristic.The absence of a targeted characteristic may make abusive behavior fall outside the scope of the statute. Careful analysis may identify a characteristic that is not otherwise obvious.
Are children with special needs at a higher risk of being bullied?
Unfortunately, yes. Primary school children with special educational needs are twice as likely as other children to suffer from persistent bullying. Children with disabilities are also more likely to be accused of bullying, either because their behavior has been misinterpreted or they are reacting to bullying and aggression themselves. Parents may want to seek advice in determining whether an actionable characteristic is or is not present.
What should I do if my child is being bullied at school?
You have a legal right to file an HIB Incident Form. Blank HIB forms should be available on your school’s website. You do not have to speak to the school before filing an HIB or request their permission to do so. Document everything that has taken place. You may want to seek legal assistance before filing the form if it is a complicated or document-heavy case. You have a right to file multiple HIBs for separate incidents.
Can bullying affect my access to a FAPE?
Yes. If bullying becomes so severe that it creates a hostile environment or causes anxiety, depression, or other physical or emotional issues and prevents your child from receiving an educational benefit, it can be considered a denial of FAPE.
Can I appeal the result of an HIB investigation?
Yes. If you disagree with the school’s findings following an HIB investigation, you have the right to appeal to the Board of Education and subsequently to the New Jersey Commissioner of Education.