On October 21, 2014, OCR issued a Dear Colleague Letter that expanded on the 2013 guidance that the bullying of a student with a disability on any basis can result in a denial of FAPE under IDEA and must be remedied.

 When investigating disability-based harassment, OCR considers several factors:  

•     Was a student with a disability bullied by one or more students based on the student’s disability? 

•     Was the bullying conduct sufficiently serious to create a hostile environment?

•     Did the school know or should it have known of the conduct?

•     Did the school fail 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?  

If the answer to one or more of these questions is “yes,” then OCR would find a disability-based harassment violation under Section 504 and, if the student was receiving IDEA FAPE or Section 504 FAPE services, OCR would have a basis for investigating whether there was also a denial of FAPE under Section 504.  

When investigating whether a student receiving IDEA FAPE or Section 504 FAPE services who was bullied was denied FAPE under Section 504, OCR considers several factors:   

•     Did the school know or should it have known that the effects of the bullying may have affected the student’s receipt of IDEA FAPE services or Section 504 FAPE services? For example, did the school know or should it have known about adverse changes in the student’s academic performance or behavior indicating that the student may not be receiving FAPE?  

If the answer is “no,” there would be no FAPE violation. 

If the answer is “yes,” OCR would then consider:   

•     Did the school meet its ongoing obligation to ensure FAPE by promptly determining whether the student’s educational needs were still being met, and if not, making changes, as necessary, to his or her IEP or Section 504 plan?  

If the answer is “no,” and the student was not receiving FAPE, OCR would find that the school violated its obligation to provide FAPE.  

The Dear Colleague letter provides hypothetical examples that give clear guidance to Districts when analyzing these difficult issues.  For more information, access the link above that will take you to the Dear Colleague Letter. If you have any questions, please contact Judy Shopp at js@mbm-law.net or Michael Brungo at mlb@mbm-law.net.

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Christina L. Lane
Christina L. Lane

Christina Lane is an accomplished school, municipal, labor and employment attorney representing public sector employers. She has extensive knowledge and experience with Title IX and often serves as a third-party investigator.