Bullying of Students with Special Needs, Discrimination and Denial of FAPE

Bullying of students with special needs, discrimination and denial of FAPE

This entry is developed from a collection of “Dear Colleague” letters as issued by the United States Department of Education, Office for Civil Rights. The purpose of this entry is to provide educators with a summary of requirements and guidance as provided by the United States Department of Education, Office for Civil Rights in regard to the bullying of students with special needs and the denial of a free and appropriate education. 

Jamie Edward Ciofalo, Editor-in-Chief

A student must feel safe in school in order to fulfill his or her full academic potential. 

Any bullying of a student with a disability that results in the student not receiving meaningful educational benefit from the special education and related services provided by the school is a denial of a free and appropriate public education (FAPE). 

Students with disabilities are disproportionately affected by bullying[1].  Students with learning disabilities, attention deficit or hyperactivity disorder, and autism are more likely to be bullied than their peers.[2]  Any number of factors — physical characteristics, processing and social skills, or intolerant environments — may increase the risk that students with disabilities will be bullied. 

Due to the characteristics of their disabilities, students with intellectual, communication, processing, or emotional disabilities may not understand the extent to which bullying behaviors are harmful, or may be unable to make the situation known to an adult who can help.  In circumstances involving a student who has not previously been identified as a child with a disability under the IDEA, bullying may also trigger a school’s child find obligations under the IDEA.  34 C.F.R. §§300.111, 300.201.

Addressing and reporting bullying is critical.  Students who are targets of bullying behavior are more likely to experience lower academic achievement and aspirations, higher truancy rates, feelings of alienation from school, poor relationships with peers, loneliness, or depression.[3]  Bystanders, or those who only see or hear about bullying, also may be negatively affected as bullying tends to have harmful effects on overall school climate.  Bullying can foster fear and disrespect and negatively affect the school experience, norms, and relationships of all students, families, and school personnel.[4]  The consequences may result in students changing their patterns of school participation or schools eliminating school activities (e.g., dances, sporting events) where bullying has occurred.  Teachers, school personnel, parents, and students should report bullying when they become aware of it.

Whether or not the bullying is related to the student’s disability, any bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE under the IDEA that must be remedied.[5]  States and school districts have a responsibility under the IDEA, 20 U.S.C. § 1400, et seq., to ensure that FAPE in the least restrictive environment (LRE) is made available to eligible students with disabilities.  In order for a student to receive FAPE, the student’s individualized education program (IEP) must be reasonably calculated to provide meaningful educational benefit.

Schools have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive FAPE in accordance with his or her IEP. 

The Laws of the Land

Section 504 of the Rehabilitation Act of 1973 | Individuals with Disabilities Education Act (IDEA) | Americans with Disabilities Act (ADA)

Civil Rights Issues for Students with Disabilities

The first free taxpayer-supported public school in North America was opened in Massachusetts, in 1639. From 1639 to the early 1970s, millions of children with disabilities were denied adequate. It is quite obvious that the history of students with disabilities in the United States has largely been one of discrimination, segregation and exclusion. It was not until the early 1970s that federal laws, and federal court decisions established the rights for students with disabilities.

Unfortunately, federal laws, and federal court decisions alone do not change culture. Despite the tremendous advances in the areas of laws and regulations to protect students with disabilities over the past 45 years, poor enforcement of the laws, limited funding of programs, disregard for binding legal precedent, and societal prejudices keep many students with disabilities from being fully included in our schools.

Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination based on disability in any program or activity operated by recipients of federal funds. It states: “No otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…” https://www2.ed.gov/policy/rights/reg/ocr/index.html

Individuals with Disabilities Education Act (IDEA)

On November 29, 1975, President Gerald Ford signed into law the Education for All Handicapped Children Act (Public Law 94-142), now known as the Individuals with Disabilities Education Act (IDEA). In adopting this landmark civil rights measure, Congress opened public school doors for millions of children with disabilities and laid the foundation of the country’s commitment to ensuring that children with disabilities have opportunities to develop their talents, share their gifts, and contribute to their communities.

The law guaranteed access to a free appropriate public education (FAPE) in the least restrictive environment (LRE) to every child with a disability. Since 1975, we have progressed from excluding nearly 1.8 million children with disabilities from public schools to providing more than 6.9 million children with disabilities special education and related services designed to meet their individual needs.

Congress reauthorized the IDEA in 2004 and most recently amended the IDEA through Public Law 114-95, Every Student Succeeds Act, in December 2015.

In the law, Congress states:

Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.

The stated purpose of the IDEA[6] is:

  • to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living;
  • to ensure that the rights of children with disabilities and parents of such children are protected;
  • to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities;
  • to assist States in the implementation of a statewide, comprehensive, coordinated, multidisciplinary, interagency system of early intervention services for infants and toddlers with disabilities and their families;
  • to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting system improvement activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination, and support; and technology development and media services;
  • to assess, and ensure the effectiveness of, efforts to educate children with disabilities.

Americans with Disabilities Act (ADA)[7]

Title II of the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination based on disability by public entities, regardless of whether they receive federal financial assistance. Title II states: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

“the Americans with Disabilities Act (ADA) is the most important piece of federal legislation since the Civil Rights Act of 1964.” [8]

OCR and Civil Rights Data Collection (CRDC)[9]

Who is OCR?

The United Stated Department of Education Office for Civil Rights (OCR) enforces several federal civil rights laws that prohibit discrimination in programs or activities that receive federal financial assistance. Discrimination on the basis of race, color, and national origin is prohibited by Title VI of the Civil Rights Act of 1964; sex discrimination is prohibited by Title IX of the Education Amendments of 1972; discrimination on the basis of disability is prohibited by Section 504 of the Rehabilitation Act of 1973; and age discrimination is prohibited by the Age Discrimination Act of 1975. OCR also has responsibilities under Title II of the Americans with Disabilities Act of 1990, which prohibits disability discrimination by public entities, whether or not they receive federal financial assistance.

Civil Rights Data Collection (CRDC)[10]

Since 1968, the U.S. Department of Education (ED) has conducted the Civil Rights Data Collection (CRDC) to collect data on key education and civil rights issues in our nation’s public schools. The collection was formerly administered as the Elementary and Secondary School Survey (E&S Survey). 

The CRDC collects a variety of information including student enrollment and educational programs and services, most of which is disaggregated by race/ethnicity, sex, limited English proficiency, and disability. The CRDC is a longstanding and important aspect of the ED Office for Civil Rights (OCR) overall strategy for administering and enforcing the civil rights statutes for which it is responsible.

U.S. Department of Education

Office for Civil Rights, Civil Rights Data Collection, 2013-14 [11]

Allegation of harassment or bullying on the basis of disability

United States 15,135
Alabama 128
Alaska 8
Arizona 178
Arkansas 169
California 1,251
Colorado 66
Connecticut 80
Delaware 22
District of Columbia 7
Florida 12
Georgia 99
Hawaii 1 to 3
Idaho 61
Illinois 769
Indiana 277
Iowa 463
Kansas 112
Kentucky 143
Louisiana 57
Maine 60
Maryland 65
Massachusetts 247
Michigan 1,178
Minnesota 621
Mississippi 50
Missouri 3,007
Montana 60
Nebraska 142
Nevada 70
New Hampshire 63
New Jersey 888
New Mexico 67
New York 901
North Carolina 12
North Dakota 32
Ohio 299
Oklahoma 131
Oregon 236
Pennsylvania 819
Rhode Island 39
South Carolina 140
South Dakota 51
Tennessee 168
Texas 596
Utah 225
Vermont 83
Virginia 165
Washington 308
West Virginia 129
Wisconsin 369
Wyoming

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Bullying of students with special needs, discrimination and denial of FAPE

As early as 2000, the United Stated Department of Education issued guidance to prohibit disability harassment in schools. The guidance included a reminder that states and school districts have a responsibility under Section 504, Title II, and the Individuals with Disabilities Education Act (IDEA) to ensure that a free appropriate public education (FAPE) is made available to eligible students with disabilities. That disability harassment may result in a denial of FAPE under these statutes. And that parents may initiate administrative due process procedures under IDEA, Section 504, or Title II to address a denial of FAPE, including a denial that results from disability harassment. Individuals and organizations also may file complaints with OCR, alleging a denial of FAPE that results from disability harassment. In addition, an individual or organization may file a complaint alleging a violation of IDEA under separate procedures with the state educational agency.

Denial of FAPE and Equal Opportunity to Education under Section 504 or Title II[12]

Disability harassment that adversely affects an elementary or secondary student’s education may also be a denial of FAPE under the IDEA, as well as Section 504 and Title II. The IDEA was enacted to ensure that recipients of IDEA funds make available to students with disabilities the appropriate special education and related services that enable them to access and benefit from public education. The specific services to be provided a student with a disability are set forth in the student’s individualized education program (IEP), which is developed by a team that includes the student’s parents, teachers and, where appropriate, the student. Harassment of a student based on disability may decrease the student’s ability to benefit from his or her education and amount to a denial of FAPE.

Disability harassment under Section 504 and Title II is intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student’s participation in or receipt of benefits, services, or opportunities in the institution’s program. Harassing conduct may take many forms, including verbal acts and name-calling, as well as nonverbal behavior, such as graphic and written statements, or conduct that is physically threatening, harmful, or humiliating.

When harassing conduct is sufficiently severe, persistent, or pervasive that it creates a hostile environment, it can violate a student’s rights under the Section 504 and Title II regulations. A hostile environment may exist even if there are no tangible effects on the student where the harassment is serious enough to adversely affect the student’s ability to participate in or benefit from the educational program.

Harmful Effects of Bullying

Students with disabilities are disproportionately affected by bullying. For example, students with learning disabilities, attention deficit or hyperactivity disorder, and autism are more likely to be bullied than their peers.[13]  Any number of factors — physical characteristics, processing and social skills, or intolerant environments — may increase the risk that students with disabilities will be bullied.  Due to the characteristics of their disabilities, students with intellectual, communication, processing, or emotional disabilities may not understand the extent to which bullying behaviors are harmful, or may be unable to make the situation known to an adult who can help.  In circumstances involving a student who has not previously been identified as a child with a disability under the IDEA, bullying may also trigger a school’s child find obligations under the IDEA.  34 C.F.R. §§300.111, 300.201.

Whether or not the bullying is related to the student’s disability, any bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE under the IDEA that must be remedied.[14]  States and school districts have a responsibility under the IDEA, 20 U.S.C. § 1400, et seq., to ensure that FAPE in the least restrictive environment (LRE) is made available to eligible students with disabilities.  In order for a student to receive FAPE, the student’s individualized education program (IEP) must be reasonably calculated to provide meaningful educational benefit.

Schools’ Obligation[15]

A school is responsible for addressing harassment incidents about which it knows or reasonably should have known.

Schools have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive FAPE in accordance with his or her IEP.  The school should, as part of its appropriate response to the bullying, convene the IEP Team 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 meaningful educational benefit.  If the IEP is no longer designed to provide a meaningful educational benefit to the student, the IEP Team must then determine to what extent additional or different special education or related services are needed to address the student’s individual needs; and revise the IEP accordingly.  Additionally, parents have the right to request an IEP Team meeting at any time, and public agencies generally must grant a parental request for an IEP Team meeting where a student’s needs may have changed as a result of bullying.  The IDEA placement team (usually the same as the IEP Team) should exercise caution when considering a change in the placement or the location of services provided to the student with a disability who was the target of the bullying behavior and should keep the student in the original placement unless the student can no longer receive FAPE in the current LRE placement.  While it may be appropriate to consider whether to change the placement of the child who was the target of the bullying behavior, placement teams should be aware that certain changes to the education program of a student with a disability (e.g., placement in a more restrictive “protected” setting to avoid bullying behavior) may constitute a denial of the IDEA’s requirement that the school provide FAPE in the LRE.  Moreover, schools may not attempt to resolve the bullying situation by unilaterally changing the frequency, duration, intensity, placement, or location of the student’s special education and related services.  These decisions must be made by the IEP Team and consistent with the IDEA provisions that address parental participation. 

If the student who engaged in the bullying behavior is a student with a disability, the IEP Team should review the student’s IEP to determine if additional supports and services are needed to address the inappropriate behavior.  In addition, the IEP Team and other school personnel should consider examining the environment in which the bullying occurred to determine if changes to the environment are warranted. 

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.[16] 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.[17] 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.[18]

When investigating disability-based harassment, OCR considers several factors, including, but not limited to:

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. 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.[19]

Bullying of any student by another student, for any reason, cannot be tolerated in our schools.[20] Bullying is no longer dismissed as an ordinary part of growing up, and every effort should be made to structure environments and provide supports to students and staff so that bullying does not occur.  Teachers and adults should respond quickly and consistently to bullying behavior and send a message that bullying is not acceptable.  Intervening immediately to stop bullying on the spot can help ensure a safer school environment. 

Schools must remain committed to working with students and families to ensure that all legal obligations under Section 504 and Title II are met and that they appropriately address disability-based harassment and to ensure that students with disabilities who are bullied continue to receive FAPE.

 

[1] Twyman, K. A., Saylor, C. F., Saia, D., Macias, M. M., Taylor, L. A., & Spratt, E. (2010). Bullying and ostracism experiences in children with special health care needs. Journal of Developmental Behavioral Pediatrics, 31, 1-8.

[2] Gini G., & Pozzoli T. (2009).  Association between bullying and psychosomatic problems: A meta-analysis. Pediatrics,123(3):1059-1065.

[3] O’Brennan, L. M., Bradshaw, C. P., & Sawyer, A. L. (2009).  Examining developmental differences in the social-emotional problems among frequent bullies, victim, and bully/victims.  Psychology in the Schools, 46(2), 100-115.

[4] OCR also has authority to investigate complaints alleging denial of FAPE under Section 504 and Title II.  See the July 25, 2000, joint Dear Colleague Letter on Disability Harassment; (available at: http://www.ed.gov/ocr/docs/disabharassltr.html); and OCR’s October 26, 2010, Dear Colleague Letter on Harassment and Bullying (available at: http://www.ed.gov/ocr/letters/colleague-201010.html). 

[5] See Hendrick Hudson Central Sch. Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 201 (1982).  

[6] https://www2.ed.gov/policy/rights/reg/ocr/index.html

[7] https://www2.ed.gov/policy/rights/reg/ocr/index.html

[8] Lawrence Gostin and Henry Beyer IMPLEMENTING THE AMERICANS WITH DISABILITIES ACT: RIGHTS AND RESPONSIBILITIES OF ALL AMERICANS (1993).

[9] https://www2.ed.gov/about/offices/list/ocr/aboutocr.html

[10] https://www2.ed.gov/about/offices/list/ocr/aboutocr.html

[11] U.S. Department of Education, Office for Civil Rights, Civil Rights Data Collection, 2013-14, available at http://ocrdata.ed.gov.

[12] United States Department of Education, Office of Special Education and Rehabilitative Services Aug. 20, 2013, Dear Colleague Letter, Bullying Students with Disabilities

[13] Twyman, K. A., Saylor, C. F., Saia, D., Macias, M. M., Taylor, L. A., & Spratt, E. (2010). Bullying and ostracism experiences in children with special health care needs. Journal of Developmental Behavioral Pediatrics, 31, 1-8.

[14] OCR also has authority to investigate complaints alleging denial of FAPE under Section 504 and Title II.  See the July 25, 2000, joint Dear Colleague Letter on Disability Harassment; (available at: http://www.ed.gov/ocr/docs/disabharassltr.html); and OCR’s October 26, 2010, Dear Colleague Letter on Harassment and Bullying (available at: http://www.ed.gov/ocr/letters/colleague-201010.html). 

[15] OCR also has authority to investigate complaints alleging denial of FAPE under Section 504 and Title II.  See the July 25, 2000, joint Dear Colleague Letter on Disability Harassment; (available at: http://www.ed.gov/ocr/docs/disabharassltr.html); and OCR’s October 26, 2010, Dear Colleague Letter on Harassment and Bullying (available at: http://www.ed.gov/ocr/letters/colleague-201010.html). 

[16] 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.

[17] 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.

[18] United States Department of Education, Office of Special Education and Rehabilitative Services Oct. 21, 2014, Dear Colleague Letter: Responding to Bullying of Students with Disabilities

[19] United States Department of Education, Office of Special Education and Rehabilitative Services Oct. 21, 2014, Dear Colleague Letter: Responding to Bullying of Students with Disabilities

 

 

 

 

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