December 11, 2018
UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS THE ASSISTANT SECRETARY
October 21, 2014
IV. How OCR Analyzes Complaints Involving Bullying of Students with Disabilities
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 student’s 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 student’s 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 student’s 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 student’s 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.
28 Where a student is suspected of having a disability but is not yet receiving IDEA FAPE services or Section 504 FAPE services, OCR could consider whether the student’s evaluation was unduly delayed in determining whether there was a denial of FAPE under the circumstances. See fn. 27, above.