The U.S. Department of Education’s Office for Civil Rights (OCR) has issued guidance to public schools nationwide in the form of a “Dear Colleague Letter” regarding the bullying of disabled students.
The guidance details school officials’ responsibilities under Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (ADA) related to such bullying. In short, “[i]f a student with a disability is being bullied, federal law requires schools to take immediate and appropriate action to investigate the issue and, as necessary, take steps to stop the bullying and prevent it from recurring.”
The guidance also notes that OCR will “find a disability-based harassment violation under Section 504 and the ADA when: (1) a student is bullied based on a disability; (2) the bullying is sufficiently serious to create a hostile environment; (3) school officials know or should know about the bullying; and (4) the school does not respond appropriately.”
According to the guidance, when OCR opens an investigation into disability-related harassment, it considers a number of factors including whether the student was bullied by one or more students based on the disability; whether the bullying conduct was sufficiently serious to create a hostile environment; whether the school knew or should have known of the conduct; and whether the school failed to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring and, as appropriate, remedy its effects.
Further, even if a school concludes that the bullying at issue did not create a hostile environment, the guidance notes that school officials also have an obligation to consider whether the bullying resulted in a denial of FAPE (free appropriate public education). “The bullying on any basis of a student with a disability who is receiving IDEA FAPE services or Section 504 FAPE services can result in the denial of FAPE that must be remedied under Section 504.”
The guidance indicates that when OCR is investigating whether a student was denied FAPE as a result of alleged bullying, it considers a number of factors, including whether the school knew or should have known that the bullying may have affected the student’s receipt of FAPE. If the answer is no, then there is no violation.
If the answer is yes, then OCR considers whether the school met its ongoing obligation to ensure FAPE by promptly determining whether the student’s educational needs were being met, and, if not, taking the steps necessary to remedy the matter. Accordingly, unless it is clear that bullying has had no effect on the disabled student’s receipt of FAPE, the guidance states that schools “should, as a best practice, promptly convene the IEP team or the Section 504 team to determine whether, and to what extent: (1) the student’s educational needs have changed; (2) the bullying impacted the student’s receipt of [FAPE]; and (3) additional or different services, if any, are needed.” The school should also ensure that any needed changes “are made promptly.”
A copy of the Dear Colleague Letter can be found here.
If you have any questions about the guidance or how it may affect your district or BOCES, please contact the Education Law section at 303-443-8010.