December 11, 2018
UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS THE ASSISTANT SECRETARY
October 21, 2014
V. Hypothetical Examples
The following hypothetical examples illustrate how OCR would analyze a complaint involving allegations of the bullying of a student with a disability who only receives Section 504 FAPE services.
A. Disability-Based Harassment Violation and FAPE Violation
At the start of the school year, a ten-year-old student with Attention Deficit Hyperactivity Disorder (ADHD) and a speech disability is fully participating in the classroom, interacting with his peers at lunch and recess, and regularly attending speech therapy twice a week. In addition to providing for speech services, the student’s Section 504 plan also provides for behavior supports that call for all his teachers and other trained staff to supervise him during transition times, provide constructive feedback, and help him use preventative strategies to anticipate and address problems with peers.
Because of the student’s disabilities, he makes impulsive remarks, speaks in a high-pitched voice, and has difficulty reading social cues. Three months into the school year, students in his P.E. class begin to repeatedly taunt him by speaking in an exaggerated, high-pitched tone, calling him names such as “weirdo” and “gay,” and setting him up for social embarrassment by directing him to ask other students inappropriate personal questions. The P.E. teacher witnesses the taunting, but neither reports the conduct to the appropriate school official, nor applies the student’s behavior supports specified in his 504 plan. Instead, she pulls the student aside and tells him that he needs to start focusing less on what kids have to say and more on getting his head in the game. As the taunting intensifies, the student begins to withdraw from interacting with other kids in P.E. and avoids other students at lunch and recess. As the student continues to withdraw over the course of a few weeks, he misses multiple sessions of speech therapy, but the speech therapist does not report his absences to the Section 504 team or another appropriate school official.
In this example, OCR would find a disability-based harassment violation. The student’s peers were making fun of him because of behaviors related to his disability. For OCR’s enforcement purposes, the taunting the student experienced, including other students impersonating him and calling him “weirdo” and “gay,” was therefore based on his disability.29 The school knew about the bullying because the P.E. teacher witnessed the conduct.30 Yet upon witnessing the taunting, the P.E. teacher not only failed to provide the student behavior supports as required in the student’s 504 plan, but also failed to report the conduct to an appropriate school official. Had she taken this step, the school could have conducted an investigation and found that the conduct created a hostile environment because it interfered with the student’s ability to benefit from the speech therapy services that he should have been receiving and negatively affected his ability to participate fully in P.E., lunch, and recess. The school’s failure to appropriately respond to the bullying violated Section 504.
OCR would also find FAPE violations under Section 504. First, when the P.E. teacher failed to implement the behavior supports in the student’s Section 504 plan, the school denied the student FAPE under Section 504. In addition, and independent of the failure to provide behavior supports, because the bullying impacted the student’s receipt of Section 504 FAPE, the school should have addressed the student’s changed needs; by failing to do so, the student was denied Section 504 FAPE. The school should have known about the missed Section 504 services and related changes in behavior. The P.E. teacher knew about the bullying but did nothing to report the student’s behavioral changes (e.g., the student’s increasing efforts to isolate himself from other students) to the Section 504 team members or other appropriate school official. Similarly, the speech therapist knew that the student was missing speech therapy but did not report this to the 504 team or to an appropriate school official. By failing to address the adverse effects of the bullying on FAPE, the school did not make necessary changes to ensure the student was provided FAPE under Section 504. If, upon concluding its investigation, OCR and the district were to enter into a resolution agreement, OCR could require, for example, that the district
(1) ensure that FAPE is provided to the student by convening the Section 504 team to determine if the student needs different or additional services (including compensatory services) and, if so, providing them;
(2) offer counseling to the student to remedy the harm that the school allowed to persist;
(3) monitor whether bullying persists for the student and take corrective action to ensure the bullying ceases;
(4) develop and implement a schoolwide bullying prevention strategy based on positive behavior supports;
(5) devise a voluntary school climate survey for students and parents to assess the presence and effect of bullying based on disability and to respond to issues that arise in the survey;
(6) revise the district’s anti-bullying policies to develop staff protocols in order to improve the district’s response to bullying;
(7) train staff and parent volunteers, such as those who monitor lunch and recess or chaperone field trips, on the district’s anti-bullying policies, including how to recognize and report instances of bullying on any basis; and
(8) provide continuing education to students on the district’s anti-bullying policies, including where to get help if a student either witnesses or experiences bullying conduct of any kind.
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.
29 OCR would have also investigated whether a school’s inappropriate response to the use of the word “gay” in this context constituted a gender-based harassment violation under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688; 34 C.F.R. pt. 106, which prohibits discrimination on the basis of sex. For a discussion of gender-based harassment, see OCR 2010 Dear Colleague Letter on Harassment and Bullying, at pages 7-8. 30 The P.E. teacher in this example is a responsible employee. See fn. 17, above.