December 11, 2018
UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS THE ASSISTANT SECRETARY
October 21, 2014
II. Schools’ Obligations to Address Disability-Based Harassment
Bullying of a student on the basis of his or her disability may result in a disability-based harassment violation under Section 504 and Title II.16 As explained in OCR’s 2010 Dear Colleague Letter on Harassment and Bullying, when a school knows or should know of bullying conduct based on a student’s disability, it must take immediate and appropriate action to investigate or otherwise determine what occurred.17 If a school’s investigation reveals that bullying based on disability created a hostile environment—i.e., the conduct was sufficiently serious to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school—the school must take prompt and effective steps reasonably calculated to end the bullying, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects. Therefore, OCR would find a disability-based harassment violation under Section 504 and Title II when: (1) a student is bullied based on 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.18
As explained in Section III, below, for the student with a disability who is receiving IDEA FAPE services or Section 504 FAPE services, a school’s investigation should include determining whether that student’s receipt of appropriate services may have been affected by the bullying.19 If the school’s investigation reveals that the bullying created a hostile environment and there is reason to believe that the student’s IDEA FAPE services or Section 504 FAPE services may have been affected by the bullying, the school has an obligation to remedy those effects on the student’s receipt of FAPE.20 Even if the school finds that the bullying did not create a hostile environment, the school would still have an obligation to address any FAPE-related concerns, if, for example, the school’s initial investigation revealed that the bullying may have had some impact on the student’s receipt of FAPE services.
16 These legal protections extend to all students with disabilities, including students who are regarded as having a disability or who have a record of a disability and students with disabilities who are not receiving services under Section 504 or IDEA. In addition to being protected from harassment on the basis of disability, students with disabilities, like all students, are entitled to protection from harassment on the basis of race, color, national origin, sex (including sexual violence), and age under the Federal civil rights laws that OCR enforces. For more information about other types of discriminatory harassment, see OCR’s 2010 Dear Colleague Letter referenced in note 4.
17 Schools know or should know about disability-based harassment when, for example, a teacher or other responsible employee of the school witnesses the conduct. For more information about how to determine when knowledge of such conduct will be imputed to schools, refer to the OCR 2001 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, http://www.ed.gov/ocr/docs/shguide.pdf at page 13; and OCR 2010 Dear Colleague Letter on Harassment and Bullying, at page 3 and note 11.
18 This is the standard for administrative enforcement of Section 504 and in court cases where plaintiffs are seeking injunctive relief. It is different from the standard in private lawsuits for money damages, which, many courts have held, requires proof of a school’s actual knowledge and deliberate indifference. See Long v. Murray Cnty. Sch. Dist., 522 Fed. Appx. 576, 577 & n. 1 (11th Cir. 2013) (applying the test enunciated in Davis v. Monroe Cnty. Bd. of Ed., 526 U.S. 629, 643 (1999)).
19 As stated in OCR 2010 Dear Colleague Letter on Harassment and Bullying at page 2, “The specific steps in a school’s investigation will vary depending upon the nature of the allegations, the source of the complaint, the age of the student or students involved, the size and administrative structure of the school, and other factors.” When a student with a disability who receives Section 504 FAPE services is being bullied, an appropriate “other factor” is whether that student’s receipt of services has been affected by the bullying.
20 When a student with a disability has engaged in misconduct that is caused by his or her disability, the student’s own misconduct would not relieve the school of its legal obligation to determine whether that student’s civil rights were violated by the bullying conduct of the other student. For example, if a student, for reasons related to his disability, hits another student and other students then call him “crazy” on a daily basis, the school should, of course, address the conduct of the student with a disability. Nonetheless, the school must also consider whether the student with a disability is being bullied on the basis of disability under Section 504 and Title II.
21 The IEP team is the group of persons specified in IDEA that determines the appropriate IDEA FAPE services for an IDEA-eligible student. 34 C.F.R. § 300.321(a).