Late last year, the U.S. Department of Education’s Office for Civil Rights (OCR) issued guidance to schools about bullying of students with disabilities. The Dear Colleague Letter details a district’s responsibilities under Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (ADA) regarding harassment of students with disabilities.
Section 504 requires school districts to provide students with disabilities equal educational opportunities, to evaluate students who need or are believed to need special education and related services, and to educate them with nondisabled peers to the maximum extent appropriate. The ADA prohibits disability discrimination by all public entities, including public schools, public school districts, charter schools, and magnet schools, regardless of whether they receive federal financial assistance.
Bullying of a student because of the student’s disability may constitute discriminatory harassment under Section 504 and the ADA. For OCR enforcement purposes, disability-based harassment will be found when (1) the student is bullied based upon 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.
Districts need to be aware that OCR recognizes two different legal standards – one that applies to OCR enforcement and one that applies in federal litigation that seeks monetary damages. The standard for administrative enforcement by OCR is when a school “knows or should know” of the bullying. According to the OCR, a school district “should know” of the harassment when a teacher or other responsible school employee witnesses the conduct. The standard that applies in federal litigation in which a party seeks monetary damages, however, requires proof of a school’s “actual knowledge” and deliberate indifference to the known acts of bullying.
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What Are The Legal Obligations When Bullying Is Observed or Reported?
School officials must take “immediate and appropriate” action to investigate the alleged bullying. If an investigation shows that the bullying created a hostile environment, the school must take “prompt and effective steps reasonably calculated” to (1) end the bullying, (2) eliminate the hostile environment, (3) prevent it from recurring, and (4) remedy its effects, if necessary. Thus, the district must respond quickly and appropriately to meet each of those four objectives. Contemporaneous documentation of these efforts is critical to defending against an OCR investigation or a federal lawsuit.
When and how should a school “remedy the effects” of bullying?
The OCR explains that if a student is served under the IDEA or Section 504, the investigation must include a determination of whether the student’s receipt of appropriate services may have been affected by the bullying. Regardless of whether the bullying created a hostile environment, or if it affected the provision of a free appropriate public education (FAPE), the school must remedy the effects of the harassment.
Some signs to look out for when making this determination are changes in the student’s academic performance or behavior, a sudden decline in grades, the onset of emotional outbursts, an increase in the frequency or intensity of behavioral interruptions, or a rise in missed classes or services. For students served under the IDEA and Section 504, these or similar signs will require an ARD or Section 504 team meeting to determine whether the student’s needs have changed and, if so, what additional or different services are needed. This meeting is in addition to action required under the district’s anti-bullying policy.
During this process, IEP and Section 504 teams must ensure parental participation and keep the student in the original placement or setting, unless the student can no longer receive a FAPE in that placement or setting. If a change in the student’s placement is necessary, the change must be in the least restrictive environment (i.e., “with persons who do not have disabilities to the maximum extent appropriate to the needs of the student with a disability.”). If changes to the student’s program are necessary, the IEP or Section 504 team must then determine what different or additional services are needed and make those changes “promptly.”
In summary, in an effort to remedy the effects of disability-based harassment, OCR recommends that schools promptly convene an IEP team or Section 504 team to determine whether, and to what extent:
- The student’s educational needs have changed;
- The bullying impacted the student’s receipt of a FAPE; and
- Additional or different services, if any, are needed.
The OCR requires “prompt” resolution of these matters so that the school continues to provide the student FAPE.
The OCR guidance makes it clear that the bullying does not have to be based on the student’s disability for a school’s obligations kick in. For example, bullying can be based on other facts, like sex, sexual orientation, perceived sexual orientation, sexual stereotypes, or race, among other things. The triggering factor, therefore, is not the basis of the bullying, but whether the student receives special education or Section 504 services. If so, it is recommended that the IEP or Section 504 team meet to consider how the bullying has impacted the student’s ability to receive a FAPE.
What does OCR consider when investigating a bullying complaint?
When OCR receives a disability-based bullying or harassment complaint, it will first investigate whether the harassment violated Section 504. If the OCR determines that a violation occurred, and the student was receiving special education or Section 504 services, it will also have grounds to investigate whether the student was denied a FAPE.
In deciding whether the district violated Section 504, OCR will consider whether: (1) a student with a disability was bullied by one or more students based on the disability; (2) the bullying was sufficiently serious to create a hostile environment; (3) the school knew or should have known of the conduct; and (4) the school failed to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring, and remedy its effects, if necessary.
If an inquiry is also made into whether the student was denied a FAPE, OCR will investigate whether the school knew or should have known that the effects of the bullying may have affected the student’s ability to receive a FAPE. If so, OCR then considers whether the school promptly determined whether the student’s educational needs were being met and, if necessary, made appropriate changes to the student’s IEP or Section 504 plan. For students who are only suspected of having a disability, but are not yet receiving services, the OCR will consider whether the student’s evaluation was unduly delayed when deciding if a FAPE violation occurred.
What happens if OCR finds a violation of Section 504?
According to OCR, if a violation is found, it could enter into a resolution agreement with the district that could require the district to convene an IEP or Section 504 team to ascertain whether different or additional services are needed and, if so, to promptly provide the needed services. OCR could also require the district to provide the student with counseling services to remedy the effects of the bullying. The district may also have to continue to monitor for bullying and make sure that it has ceased. OCR can mandate the implementation of school-wide bullying prevention strategies based on positive behavior supports. It can also require action such as school climate surveys, training for staff and volunteers, and continuing education to students on anti-bullying and reporting policies.
This new guidance from the OCR on bullying of students with disabilities is must-reading for every school administrator. OCR encourages school districts to reevaluate their policies and practices in light of the letter, and other prior guidance. For more information and resources, we encourage readers to visit stopbullying.gov, a comprehensive website by the U.S. Department of Health and Human Services, providing the latest on state policies and laws, bullying prevention strategies, and best practices for parents, educators, students, and the community.[/s2If]