In the Spring 2012 edition of Education News, we reported the United States District Court dismissal of the Morrow vs. BlackhawkSchool District case involving a student’s claim that the District was required to protect her from harassment and bullying by other students.  The District Court dismissed the lawsuit on the basis that the School District’s knowledge did not create an affirmative duty to protect the bullied students.  On appeal, the U.S. Third Circuit Court of Appeals, on June 5, 2013, affirmed the dismissal.  The Third Circuit held that the students’ “bullying” allegations did not establish that the District had a “special relationship” with the students or had committed an “affirmative act” to support a “state created danger” claim under the Fourteenth Amendment.

Less than three months after this Third Circuit Court decision, on August 20, 2013, the U.S. Department of Education Office of Special Education and Rehabilitative Services (OSERS) issued guidance regarding bullying of students with disabilities.  In a four page Dear Colleague Letter (DCL), OSERS provides an overview of a school district’s responsibilities under the IDEIA to address bullying of students with disabilities.

The guidance states that “any bullying of a student with disabilities which results in the student not receiving meaningful educational benefit is considered a denial of FAPE”.  The DCL also notes that “certain changes to an educational program of a student with a disability (e.g. placement in a more restricted ‘protected’ setting to avoid bullying behavior) may constitute a denial of FAPE in the LRE.”

Even when circumstances do not rise to a level that constitute a denial of FAPE, bullying can undermine a student’s ability to achieve his or her full academic potential. Included in the DCL is a seven page enclosure titled “Effective Evidence-based practices for Preventing and Addressing Bullying. “ The enclosure provides specific strategies that school districts can implement to effectively prevent and respond to bullying and identifies resources for obtaining additional information. The enclosure suggests the following nine effective evidence-based practices as part of any bullying prevention and intervention program undertaken to help ensure that school and classroom settings are positive, safe, and nurturing environments for all children and adults:


  1. Use a comprehensive multi-tiered behavioral framework;
  2. Teach appropriate behaviors and how to respond;
  3. Provide active adult supervision;
  4. Train and provide ongoing support for staff and students;
  5. Develop and implement clear policies to address bullying;
  6. Monitor and track bullying behaviors;
  7. Notify parents when bullying occurs;
  8. Address ongoing concerns; and
  9. Implement sustained bullying prevention efforts over time.

These anti-bullying practices are applicable whether the bullied student is disabled or not.  Although the Third Circuit in Morrow held that there was no “special relationship” between school districts and students to create a Fourteenth Amendment duty to protect students from bullying and harassment, OSERS’ DCL should not be ignored when addressing claims of peer harassment/bullying of disabled students.  These claims are brought under Section 504 of the Rehabilitative Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA).  Districts must still exercise vigilance when responding to allegations of bullying and harassment.

Click here to view the OSERS DCL documents.

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Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.