OCR Weighs in on Bullying. (WARNING -- LENGTHY POST) In an letter published on Tuesday, the US Department of Education Office of Civil Rights gave guidance on how schools should handle bullying complaints by students with disabilities. Dear Colleague Letter: Responding to Bullying of Students with Disabilities, 114 LRP 45954 (OCR 10/21/2014). (Hopefully youll be able to Google this in a few days and find the full text). Essentially, OCR said that when a student with disabilities alleges bullying and harassment, even if it is NOT disability based harassment and bullying, schools still have an obligation to ensure that the student is still receiving FAPE. Accordingly, under Section 504, as part of a schools appropriate response to bullying on any basis, the school should convene the IEP team or the Section 504 team to determine whether, as a result of the effects of the bullying, the students needs have changed such that the student is no longer receiving FAPE. The effects of bullying could include, for example, adverse changes in the students academic performance or behavior. If the school suspects the students needs have changed, the IEP team or the Section 504 team must determine the extent to which additional or different services are needed, ensure that any needed changes are made promptly, and safeguard against putting the onus on the student with the disability to avoid or handle the bullying. OCR even outlined specifically what they look for when they receive a bullying complaint: When OCR evaluates complaints involving bullying and students with disabilities, OCR may open an investigation to determine whether there has been a disability-based harassment violation, a FAPE violation, both, or neither, depending on the facts and circumstances of a given complaint. When investigating disability-based harassment, OCR considers several factors, including, but not limited to: - Was a student with a disability bullied by one or more students based on the students disability? - Was the bullying conduct sufficiently serious to create a hostile environment? - Did the school know or should it have known of the conduct? - Did the school fail to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects? If the answer to each of these questions is yes, then OCR would find a disability-based harassment violation under Section 504 and, if the student was receiving IDEA FAPE or Section 504 FAPE services, OCR would have a basis for investigating whether there was also a denial of FAPE under Section 504. Even if the answers to one or more of these questions is no, for a student who was receiving IDEA FAPE or Section 504 FAPE services, OCR may still consider whether the bullying resulted in a denial of FAPE under Section 504 that must be remedied. When investigating whether a student receiving IDEA FAPE or Section 504 FAPE services who was bullied was denied FAPE under Section 504, OCR considers several factors, including, but not limited to: - Did the school know or should it have known that the effects of the bullying may have affected the students receipt of IDEA FAPE services or Section 504 FAPE services? For example, did the school know or should it have known about adverse changes in the students academic performance or behavior indicating that the student may not be receiving FAPE? If the answer is no, there would be no FAPE violation.28 If the answer is yes, OCR would then consider: - Did the school meet its ongoing obligation to ensure FAPE by promptly determining whether the students educational needs were still being met, and if not, making changes, as necessary, to his or her IEP or Section 504 plan? If the answer is no, and the student was not receiving FAPE, OCR would find that the school violated its obligation to provide FAPE.
Posted on: Fri, 24 Oct 2014 11:50:17 +0000
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