III. Bullying and the Denial of a Free Appropriate Public Education

December 11, 2018 | Author: Mike Dreiblatt | Views: 107 | Comments: 0

UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS THE ASSISTANT SECRETARY 

October 21, 2014



III. Bullying and the Denial of a Free Appropriate Public Education 

The bullying on any basis of a student with a disability who is receiving IDEA FAPE services or Section 504 FAPE services can result in the denial of FAPE that must be remedied under Section 504. The OSERS 2013 Dear Colleague Letter clarified that, under IDEA, as part of a school’s appropriate response to bullying on any basis, the school should convene the IEP team 21 to determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the IEP is no longer designed to provide a meaningful educational benefit. If the IEP is no longer designed to provide a meaningful educational benefit to the student, the IEP team must determine the extent to which additional or different IDEA FAPE services are needed to address the student’s individualized needs and then revise the IEP accordingly. Any decisions made by the IEP team must be consistent with the IDEA provisions addressing parental participation and should keep the student with a disability in the original placement or setting (e.g., the same school and classroom) unless the student can no longer receive FAPE in that placement or setting. Under IDEA, schools have an ongoing obligation to ensure that a student with a disability who is the target of bullying continues to receive FAPE in accordance with his or her IEP—an obligation that exists whether the student is being bullied based on his or her disability or is being bullied based on other reasons. 

Similarly, under Section 504, schools have an ongoing obligation to ensure that a qualified student with a disability who receives IDEA FAPE services or Section 504 FAPE services and who is the target of bullying continues to receive FAPE—an obligation that exists regardless of why the student is being bullied. 22 Accordingly, under Section 504, as part of a school’s appropriate response to bullying on any basis, the school should convene the IEP team or the Section 504 team23 to determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the student is no longer receiving FAPE. The effects of bullying could include, for example, adverse changes in the student’s academic performance or behavior. If the school suspects the student’s needs have changed, the IEP team or the Section 504 team must determine the extent to which additional or different services are needed,24 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.25 In addition, when considering a change of placement, schools must continue to ensure that Section 504 FAPE services are provided in an educational setting with persons who do not have disabilities to the maximum extent appropriate to the needs of the student with a disability. 

Although there are no hard and fast rules regarding how much of a change in academic performance or behavior is necessary to trigger the school’s obligation to convene the IEP team or Section 504 team, a sudden decline in grades, the onset of emotional outbursts, an increase in the frequency or intensity of behavioral interruptions, or a rise in missed classes or sessions of Section 504 services would generally be sufficient.26 By contrast, one low grade for an otherwise straight-A student who shows no other changes in academic progress or behavior will generally not, standing alone, trigger the school’s obligation to determine whether the student’s needs are still being met. Nonetheless, in addition to addressing the bullying under the school’s anti-bullying policies, schools should promptly convene the IEP team or Section 504 team to determine whether FAPE is being provided to a student with a disability who has been bullied and who is experiencing any adverse changes in academic performance or behavior. 

When bullying results in a disability-based harassment violation, it will not always result in a denial of FAPE. Although all students with disabilities are protected from disability-based harassment, the requirement to provide FAPE applies only to those students with disabilities who need or may need FAPE services because of their disability.27 This means that if a student is the target of bullying resulting in a disability-based harassment violation, but that student is not eligible to receive IDEA or Section 504 FAPE services, there could be no FAPE violation. 

When a student who receives IDEA FAPE services or Section 504 FAPE services has experienced bullying resulting in a disability-based harassment violation, however, there is a strong likelihood that the student was denied FAPE. This is because when bullying is sufficiently serious to create a hostile environment and the school fails to respond appropriately, there is a strong likelihood both that the effects of the bullying included an impact on the student’s receipt of FAPE and that the school’s failure to remedy the effects of the bullying included its failure to address these FAPE related concerns.

Ultimately, unless it is clear from the school’s investigation into the bullying conduct that there was no effect on the student with a disability’s receipt of FAPE, the school should, as a best practice, promptly convene the IEP team or the Section 504 team to determine whether, and to what extent: (1) the student’s educational needs have changed; (2) the bullying impacted the student’s receipt of IDEA FAPE services or Section 504 FAPE services; and (3) additional or different services, if any, are needed, and to ensure any needed changes are made promptly. By doing so, the school will be in the best position to ensure the student’s ongoing receipt of FAPE.

23 The Section 504 team is the group of knowledgeable persons that determines the appropriate Section 504 FAPE services for a qualified student with a disability under Section 504. 

24 A reevaluation would not be needed unless there is a reason to believe the student’s underlying disability or disabilities have changed or the student has an additional disability. 

25 OCR would expect that schools address bullying behavior to ensure that the burden does not fall on the student with a disability. Along these lines, and consistent with the OSERS 2013 Dear Colleague Letter, schools should exercise caution when considering a change in placement, or the location of services (including classroom) provided to the student with a disability who is the target of bullying and should keep the student in the original placement unless the student can no longer receive Section 504 FAPE in that placement. OCR also urges schools to allow for parental participation when considering any change in placement or location of services (including classroom). See 34 C.F.R. pt. 104, app. A (discussion of Subpart D). 

26 In light of schools’ ongoing obligation to ensure that students with disabilities are receiving FAPE, adverse changes in the academic performance or behavior of a student receiving FAPE services could trigger the school’s obligation to convene the IEP team or Section 504 team regardless of the school’s knowledge of the bullying conduct. See, e.g., Section V, Hypothetical Example B, below. As a best practice, schools should train all staff to report bullying to an administrator or school official who can promptly convene a meeting of knowledgeable people (e.g., the student’s Section 504 team or IEP team) to ensure that the student is receiving FAPE and, as necessary, address whether the student’s FAPE needs have changed.

27 The FAPE requirement to evaluate applies to all students who are known or believed to need special education or related services, regardless of the nature or severity of the disability. 34 C.F.R. §§ 104.33, -.35. For a student who is suspected of having a disability but who is not yet receiving IDEA or Section 504 services, OCR may consider whether the school met its obligation to evaluate the student. 34 C.F.R. § 104.35. For example, if a student suspected of having a disability was missing school to avoid bullying, OCR may consider whether the student’s evaluation was unduly delayed (e.g., if the school knew or should have known of the bullying and failed to act) in determining whether there was a denial of FAPE under the circumstances.

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-bullying-201410.pdf

Next Blog:

IV. How OCR Analyzes Complaints Involving Bullying of Students with Disabilities

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