Bullying and harassment remain a problem in our schools. Students with disabilities are much more likely to experience bullying and harassment than their general education peers. All too often school districts separate bullying concerns from the delivery of Free Appropriate Public Education (“FAPE”). They think if they just follow their bullying policies and discipline the offending student or students that is where their obligations end. This is not the case.
On October 21, 2014, the US Department of Education issued another in a series of “Dear Colleague” letters concerning bullying and harassment of students with disabilities. This most recent Dear Colleague letter was from the Office of Civil Rights (“OCR”). Click here for the letter.
Building on Department of Education Dear Colleague letters from 2000, 2010 and 2013, OCR confirmed the obligations of school districts regarding bullying and harassment of students with disabilities. OCR reiterated that bullying and/or harassment can result in a denial of FAPE under Section 504 of the Rehabilitation Act or the IDEA. OCR also confirmed that school districts are obligated even if the harassment is not disability-related.
In order to avoid a denial of FAPE, the school must not only investigate the conduct and attempt to stop it but also address the effects of the bullying on the student. This last part of the obligation is more likely to be missed by school districts.
The Dear Colleague letter makes it clear that schools can commit a disability-based harassment violation by failing to respond appropriately to address the hostile environment created by the bullying. OCR’s position is that when a school commits a disability-based harassment violation by failing to investigate or attempt to stop the harassment, “there is a strong likelihood that the student was denied FAPE.”
OCR makes it clear that school districts must convene a meeting (IEP or 504 meeting as appropriate) to see if the bullying or harassment may have changed the student’s needs for FAPE. Hopefully, school districts will begin to recognize when changes need to be made to a student’s IEP or 504 plan because of pervasive bullying or harassment.