On October 21, 2014, the U.S. Department of Education Office for Civil Rights (OCR) released a Dear Colleague Letter concerning the bullying of students with disabilities.  This guidance appears to be a follow-up to the Dear Colleague Letter issued by the Office of Special Education and Rehabilitative Services (OSERS) on August 20, 2013.

OSERS’ August 20, 2013 guidance concerned students who are eligible under the Individuals with Disabilities Education Act (IDEA).  OCR’s October 21, 2014 guidance extends to students who are eligible only under Section 504.  The rationale of both is that a student with a disability is entitled to receive a free appropriate public education (FAPE).  If an alleged bullying activity occurs, it is the school’s obligation to determine whether it has impacted the student’s ability to receive FAPE, regardless of whether the bullying was based on the disability.

OCR follows OSERS’ position in that it would similarly find a disability-based harassment violation under Section 504 and Title II when:

  • A student is bullied based on a disability;
  • The bullying creates a hostile environment;
  • School officials know or should know about the bullying; and
  • The school does not respond appropriately.

OCR also clarifies that it has jurisdiction to investigate whether bullying impacts a student’s receipt of FAPE under IDEA or Section 504 regardless whether the bullying conduct itself is related to a student’s disability.

When a bullying incident involves a student with disabilities, OCR recommends that school districts must determine whether the bullying incident impacted the student’s ability to receive FAPE.  Unless the conclusion is that there was no effect, OCR recommends that the school district promptly convene the IEP team (where the student is eligible under the IDEA) or the Section 504 team (if the student’s eligibility is under only Section 504.)  The IEP or Section 504 team must determine whether, and to what extent:

  • The student’s educational needs have changed;
  • The bullying has impacted the student’s receipt of IDEA or Section 504 services; and
  • Additional or different services are needed.

OCR warns that failing to take the above steps might result in a determination that the school denied FAPE by not taking steps to remedy the hostile environment.

In its letter, OCR also analyzes three important hypothetical scenarios.  The scenarios effectively illustrate the relatively low threshold of conduct that may trigger an investigation and provide insight into how OCR might respond.  The first hypothetical (Disability-Based Harassment Violation and FAPE Violation) shows what might happen when OCR finds a violation.  OCR states that when an investigation results in a finding that bullying resulted in disability-based harassment and FAPE violations, the resulting resolution agreement could require the school district to perform the following:

  • Convene a Section 504 meeting to determine what services (including compensatory services) should be provided;
  • Offer counseling to the student to remedy the harm;
  • Monitor and take corrective action to address any subsequent incidents;
  • Develop and implement a school-wide bullying prevention strategy;
  • Devise a school climate survey for student and parents to assess the presence and effect of bullying and to respond accordingly;
  • Revise the school’s anti-bullying policies;
  • Implement staff and volunteer training; and
  • Provide continuing education to students on the district’s anti-bullying policies.

Based on OCR’s letter and the provided scenarios, it is important that school administrators, who are responsible for conducting investigations into bullying of students, are made aware of this recent guidance from OCR.  In the past, considerations of IDEA or Section 504 impact often ended with a determination that alleged bullying was not based on a student’s disability.  However, any inquiry now also must investigate any impact on the student’s FAPE.  As shown above, failure to adequately address a report of bullying could result in significant and costly intervention by OCR.

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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.