Bullying & Harassment in Special Education

School districts (and county offices of education and charter schools) can be liable for failing to address the bullying or harassment of a student with a disability.  Are you properly addressing and responding to complaints of bullying and harassment?

Bullying is defined as aggression used within a relationship where the aggressor has more or real perceived power than the target, and the aggression is repeated or has the potential to be repeated.  (Dear Colleague Letter, 61 IDELR 263.)

Disability harassment under Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the Americans with Disabilities Act (“ADA”) is intimidating or abusive behavior towards a student based on disability that creates a hostile environment.  (Dear Colleague Letter, 111 LRP 45106.)

Pursuant to the IDEA, school districts have an obligation to ensure that students who are the targets of bullying continue to receive a free appropriate public education (“FAPE”) in accordance with the student’s IEP.   As part of an appropriate response to bullying under the IDEA, you should consider convening an IEP team meeting to determine whether the effects of bullying have caused the student’s needs to change such that his/her IEP is no longer providing educational benefit.  (Dear Colleague Letter, 61 IDELR 263.)  Care should be taken to ensure compliance with obligations under the IDEA while enforcing anti-bullying policies.

Under Section 504 and Title II, any time you are on notice of possible disability-related harassment, you are required to take prompt and effective steps to determine what occurred and to end any harassment.  (Westfield (MA) Pub. Schs., 53 IDELR 132, 109 LRP 18014.)  It is important to note the differences between bullying under the IDEA and disability-related harassment under Section 504 and Title II.  Under the IDEA, unlike Section 504, “whether or not the bullying is related to the student’s disability, any bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE.” (Dear Colleague Letter, 61 IDELR 263; 111 LRP 45106.)

Additionally, when a student with a disability is bullied much of the attention tends to be focused on punishing the perpetrator.  However, bullying could also be a trigger for a district’s child find obligations.  Bullying behavior could indicate that the perpetrator is eligible for special education and related services as a student with an emotional disturbance or one of the other eligibility categories under the IDEA.

A student may be eligible as a student with an emotional disturbance if he/she demonstrates, among other things:

  • Inappropriate behavior or feelings under normal circumstances;
  • An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.  This behavior must occur over a long period of time and to a marked degree that adversely affects the student’s educational performance. (34 C.F.R. 300.8(c)(4)(i).)

Any conduct falling under your district’s anti-bullying policies can also trigger duties under Section 504, Title II and other federal statutes (Title VI and Title IX) to take prompt steps to prevent a recurrence of harassment.

Where a civil right is involved, you are required to investigate and “if an investigation reveals that the discriminatory harassment occurs . . . take prompt and effective steps reasonably calculated to end the harassment and prevent it from recurring.  (Dear Colleague Letter, 55 IDELR 174.)

Under Section 504 there is a 5-part test for imposing liability for peer-on-peer harassment:

  • The student is an individual with a disability;
  • He/she was harassed based on the student’s disability;
  • The harassment was sufficiently severe or pervasive “that it altered [the student’s] education and created an abusive environment;
  • The school was aware of the harassment; and
  • The school was deliberately indifferent to the harassment. 
  • Make sure that you are working closely with the parent and student to enable them to bring all complaints of abuse;
  • Document all complaints and the district’s responses to each;
  • Consider whether training for staff and/or students or other educational programs are necessary to address and prevent future harassment; and
  • Inform parents of their right to file a grievance under 34 C.F.R. 104.7(b).

In working through the above recommendations you may also consider:

  • Separating the accused harasser and the target;
  • Provide counseling for the target of the harassment and/or the harasser; and
  • Take appropriate disciplinary action against the harasser.

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