DOE: Bullying of disabled students can constitute a violation of FAPE
On Board Online • September 2, 2013
By Pilar Sokol
Deputy General Counsel
Any form of bullying of a student with a disability can constitute a violation of federal law, according to the U.S. Department of Education (DOE).
On Aug. 20, 2013, DOE’s Office of Special Education and Rehabilitative Services (OSERS) issued a “Dear Colleague” letter in which it set out what it deems to be a school district’s responsibilities under the Individuals with Disabilities Education Act (IDEA) to address bullying of students with disabilities.
The Dear Colleague letter represents DOE’s interpretation of school districts’ responsibilities to prevent and remedy bullying that targets disabled students. It can influence judicial thinking when lawsuits arise claiming that a school district denied a student’s IDEA rights based on bullying.
Students with a disability who are eligible to receive services under the IDEA are entitled to a free appropriate public education (FAPE) in accordance with the terms of their individualized education programs (IEPs) in the least restrictive environment. The OSERS letter states that bullying directed at a student with a disability will constitute a denial of FAPE under the IDEA if it “results in the student not receiving meaningful educational benefit.”
It is irrelevant whether the bullying is related to the disabled student’s disability, except that disability-based bullying also could constitute discriminatory harassment under Section 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Education Act (ADA) and other laws as outlined in a prior Dear Colleague letter. That letter was issued in 2000 jointly with DOE’s Office of Civil Rights and is available at http://goo.gl/k9rUjy.
In its Aug. 20 letter, OSERS said that even when bullying does not rise to the level of a denial of FAPE, it still can undermine a student’s ability to achieve. Therefore, school districts must ensure that students with a disability who become the target of bullying are not deprived of their ability to receive FAPE in accordance with their IEP. Toward this end, and as part of an “appropriate response” to bullying, a school district should:
- Convene the IEP Team, known as the committee on special education (CSE) in New York, to determine whether the student’s needs have changed as a result of the effects of the bullying.
- Determine the extent to which additional or different services are needed to address the student’s individual needs if the IEP is no longer designed to provide meaningful educational benefit as a result of the effects of the bullying; and revise the IEP accordingly.
OSERS cautioned, however, that while it may be appropriate to consider changing the placement of a disabled student who has become the target of bullying, any such change to a more restrictive setting may constitute a violation of the IDEA’s least restrictive environment requirements. Moreover, it would not be appropriate for a school district to try and resolve the bullying by changing, without parental consent, “the frequency, duration, intensity, placement or location” of a disabled student’s education and services.
What happens if a student who engages in bullying behavior is a disabled student? In such an instance, OSERS indicates that the school district’s IEP Team should review his or her IEP to determine if additional supports and services are needed to address that student’s inappropriate behavior. Furthermore, the IEP Team and other school personnel should examine the environment in which bullying has occurred and determine if changes to it are needed.
The Aug. 20 OSERS letter is available at http://goo.gl/CVvE87.
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