THE LATEST DEPARTMENT OF EDUCATION GUIDANCE ON BULLYING OF STUDENTS WITH DISABILITIES

October was Bullying Prevention Awareness Month and the US Department of Education’s Office for Civil Rights (OCR) issued new guidance to schools about bullying of students with disabilities. The Dear Colleague Letter, dated October 21, 2014, details a district’s responsibilities under Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (ADA) regarding harassment of students with These laws bar discrimination on the basis of a disability in all programs and activities. According to the Department of Education, since 2009, the OCR received more than 2,000 complaints about disability-related bullying.1 The latest guidance emphasizes that protection from bullying extends, not only to those covered under the Individuals with Disabilities Education Act (IDEA), but also those entitled to services under Section 504. Citing a “troubling trend” of increasing complaints, the OCR confirms its commitment to rigorous enforcement of Section 504 and the ADA to protect against this kind of bullying.2 This article will provide an overview of this latest guidance, real examples of bullying lawsuits, and insight on best practices for handling bullying at the campus level.

Section 504 and the ADA

Section 504 requires school districts to provide students with disabilities equal educational opportunities, to evaluate students who need or are believed to need special education and related services, and to educate them with nondisabled peers to the maximum extent appropriate. The ADA prohibits disability discrimination by all public entities, including public schools, public school districts, charter schools, and magnet schools, regardless of whether they receive federal financial assistance.3

Bullying of a student because of the student’s disability may constitute discriminatory harassment under Section 504 and the ADA. For OCR enforcement purposes, disability-based harassment will be found when (1) the student is bullied based upon 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.4

Districts need to be aware that OCR recognizes two different legal standards – one that applies to OCR enforcement and one that applies in federal litigation that seeks monetary damages.5 The standard for administrative enforcement by OCR is when a school “knows or should know” of the bullying. According to the OCR, a school district “should know” of the harassment when a teacher or other responsible school employee witnesses the conduct.6 The standard that applies in federal litigation in which a party seeks monetary damages, however, requires proof of a school’s “actual knowledge” and deliberate indifference to the known acts of bullying. Case examples illustrating the actual knowledge and deliberate indifference standard are provided below.

What Are The Legal Obligations When Bullying Is Observed or Reported?

School officials must take “immediate and appropriate” action to investigate the alleged bullying. If an investigation shows that the bullying created a hostile environment, the school must take “prompt and effective steps reasonably calculated” to (1) end the bullying, (2) eliminate the hostile environment, (3) prevent it from recurring, and (4) remedy its effects, if necessary.7 Thus, the district must respond quickly and appropriately to meet each of those four objectives. Contemporaneous documentation of these efforts is critical to defending against an OCR investigation or a federal lawsuit.

When and how should a school “remedy the effects” of bullying?

The OCR explains that if a student is served under the IDEA or Section 504, the investigation must include a determination of whether the student’s receipt of appropriate services may have been affected by the bullying. Regardless of whether the bullying created a hostile environment, if it affected the provision of a free appropriate public education (FAPE), the school must remedy the effects of the harassment.

Some signs to look out for when making this determination are changes in the student’s academic performance or behavior, 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 services.8 For students served under the IDEA and Section 504, these or similar signs will require an ARD or Section 504 team meeting to determine whether the student’s needs have changed and, if so, what additional or different services are needed. This meeting is in addition to action required under the district’s anti-bullying policy.

During this process, IEP and Section 504 teams must ensure parental participation and keep the student in the original placement or setting, unless the student can no longer receive a FAPE in that placement or setting.9 If a change in the student’s placement is necessary, the change must be in the least restrictive environment (i.e., “with persons who do not have disabilities to the maximum extent appropriate to the needs of the student with a disability.”).10 If changes to the student’s program are necessary, the IEP or Section 504 team must then determine what different or additional services are needed and make those changes “promptly.”11

OCR cautions that, when a student who receives special education or Section 504 services is subjected to disability-based harassment, “there is a strong likelihood that the student was denied FAPE. . . .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.”12

In summary, in an effort to remedy the effects of disability-based harassment, OCR recommends that schools promptly convene an IEP team or 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 a FAPE; and
3. Additional or different services, if any, are

The OCR requires “prompt” resolution of these matters so that the school continues to provide the student FAPE.

Does the bullying have to be based on the disability for FAPE obligations to kick in?

The OCR guidance makes it clear that the bullying does not have to be based on the student’s disability for a school’s obligations to kick in.  The Dear Colleague Letter states:

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. . . . 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.13

For example, bullying can be based on other facts, like sex, sexual orientation, perceived sexual orientation, sexual stereotypes, or race, among other things. The triggering factor, therefore, is not the basis of the bullying, but whether the student receives special education or Section 504 services. If so, it is recommended that the IEP or Section 504 team meet to consider how the bullying has impacted the student’s ability to receive a FAPE.

What does OCR consider when investigating a bullying complaint?

When OCR receives a disability-based bullying or harassment complaint, it will first investigate whether the harassment violated Section 504. If the OCR determines that a violation occurred, and the student was receiving special education or Section 504 services, it will also have grounds to investigate whether the student was denied a FAPE.

In deciding whether the district violated Section 504, OCR will consider whether: (1) a student with a disability was bullied by one or more students based on the disability; (2) the bullying was sufficiently serious to create a hostile environment; (3) the school knew or should have known of the conduct; and (4) the school failed to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring, and remedy its effects, if necessary.

If an inquiry is also made into whether the student was denied a FAPE, OCR will investigate whether the school knew or should have known that the effects of the bullying may have affected the student’s ability to receive a FAPE. If so, OCR then considers whether the school promptly determined whether the student’s educational needs were being met and, if necessary, made appropriate changes to the student’s IEP or Section 504 plan. For students who are only suspected of having a disability, but are not yet receiving services, the OCR will consider whether the student’s evaluation was unduly delayed when deciding if a FAPE violation occurred.

What does a violation look like?

The 2014 Dear Colleague Letter provides several instructive examples of how they analyze disability-based harassment and FAPE violations. In one example, the student had a Section 504 plan due to Attention Deficit Hyperactivity Disorder and a speech disability. The student’s disability caused him to make impulsive remarks, speak in a high-pitched voice, and have problems reading social cues. By all accounts, the student did fine academically and socially under the Section 504 plan. As the year progressed, students in P.E. class began calling him names such as “weird” and “gay,” which was observed by the P.E. teacher. The P.E. teacher did not report the conduct or apply any of the behavioral supports called for in the student’s Section 504 plan, and instead advised the student to focus less on the name-calling and more on getting his head in the game. As a result of increased taunting, the student began to withdraw in P.E., lunch and recess. The student also missed speech therapy sessions, but the missed sessions were not reported or addressed by the speech therapist or the student’s Section 504 team.

Under these circumstances, OCR would find both a violation of Section 504 for disability-based harassment and a violation of FAPE.  The bullying was based upon the student’s disability.  The P.E. teacher knew or should have known of the harassment and failed to report it, or otherwise address it. Furthermore, the bullying resulted in a hostile environment that affected his ability to access his educational program, namely P.E., lunch, and recess. The school’s failure to respond to the bullying would violate Section 504. In addition, the OCR would find a denial of FAPE because (1) the P.E. teacher did not implement behavioral supports included in the student’s Section 504 plan; (2) the school did not address the student’s needs; and (3) the speech therapist did not address the student’s failure to attend speech therapy. Because the district did not ensure that the student was provided FAPE under Section 504, the OCR would have found a FAPE violation.

What happens if OCR finds a violation of Section 504?

According to OCR, if a violation is found, it could enter into a resolution agreement with the district that could require the district to convene an IEP or Section 504 team to ascertain whether different or additional services are needed and, if so, to promptly provide the needed services. OCR could also require the district to provide the student with counseling services to remedy the effects of the bullying. The district may also have to continue to monitor for bullying and make sure that it has ceased. OCR can mandate the implementation of school-wide bullying prevention strategies based on positive behavior supports. It can also require action such as school climate surveys, training for staff and volunteers, and continuing education to students on anti-bullying and reporting policies.14

How do courts analyze disability-based harassment claims under the ADA and Section 504?

In litigation over disability-based harassment, courts use a different standard of liability, requiring actual knowledge of the bullying. So, unless someone with authority over the students has actual knowledge of disability-based bullying or harassment, a court will not hold a district liable for monetary damages for a claim of bullying under the ADA or Section 504. Litigants also must show that the district acted with deliberate indifference to the harassment.

The deliberate indifference standard derives from the United States Supreme Court case Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S. Ct. 1661 (1999). In that case, a fifth grader was allegedly sexually harassed by a classmate and the parents sued the school board and officials under Title IX. The trial court dismissed the suit and the Eleventh Circuit affirmed. The U.S. Supreme Court held, however, that peer sexual harassment, if sufficiently severe, could rise to the level of actionable discrimination under Title IX. The parent alleged that the district’s deliberate indifference to persistent sexual advances created an intimidating, hostile, offensive, and abusive environment. The suit also alleged that district officials had actual knowledge of the harassment and made no effort to either investigate or to put an end to the harassment. According to the Supreme Court, those allegations stated in the lawsuit, when taken as true, stated a claim upon which relief could be granted. The trial court’s decision to dismiss the suit was reversed and a new standard for evaluating peer harassment claims was established.

The Fifth Circuit Court of Appeals this year issued an extremely important decision in Estate of Lance v. Lewisville ISD,15 a high-profile case that received national media attention. The case involved a student who committed suicide at school. The parents sued the school district, claiming that bullying and the school district’s failure to address the student’s disabilities led him to do so. The Fifth Circuit affirmed the trial court judgment in favor of the school district and, in doing so, provided a thorough analysis of Section 504 claims, stemming from (1) the alleged failure to provide an appropriate program and (2) disability discrimination. The appeals court also discussed school district liability in peer harassment cases and ultimately found that the school district was not deliberately indifferent to the student.

There are many things we can learn from this case. First, school districts can be liable for failing to provide educational services necessary to satisfy Section 504’s requirements to provide a FAPE. Under this “failure-to-provide” theory, a plaintiff would have to show that the district “refused to provide reasonable accommodations for the handicapped plaintiff to receive the full benefits of the school program.” The parents, in this case, did not meet that burden because the district had given the student an individualized education program (IEP), to which the parents consented. The parents never challenged the design or implementation of the student’s IEP. Thus, the “failure-to-provide” claim was without merit.

We also learn that districts can be held liable under Section 504 for discriminating against a disabled student by denying an educational benefit provided to nondisabled peers. The parents claimed that the district was deliberately indifferent to disability-based peer harassment that led the student to commit suicide. To prevail, the parents had to show (1) the child was a student with a disability, (2) he was harassed based on his disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment, (4) the district knew about the harassment, and (5) the district was deliberately indifferent to the harassment.

The appeals court focused on the final element and determined that the district had not been deliberately indifferent to Montana. According to the appeals court, the school district acted reasonably in response to reported bullying. The district showed that it conducted thorough investigations, issued student discipline when necessary, worked individually with students to address conflicts, contacted parents, and followed up with students. In addition, school personnel worked with each other to address concerns about Montana. The school district documented the steps it took, as well as training it provided to school district personnel. The district also implemented appropriate policies on bullying, harassment, and discrimination. This evidence demonstrated that the district was not deliberately indifferent to Montana.

M.J. v. Marion ISD, 2013 WL 1882330 (W.D. Tex. May 2013), a Texas case, involved a student in the Marion Independent School District who was diagnosed with bipolar disorder and Attention Deficit Hyperactivity Disorder (ADHD). His disabilities allegedly caused him to have panic attacks, paranoia, and hallucinations. In a lawsuit filed against the school district, M.J. and his parents alleged that M.J. was the target of verbal and physical harassment and bullying between 2005 and 2009. The suit alleged that the district failed to remedy the harassment and the abuse caused M.J. to become anxious, depressed, angry, and suicidal.

The suit claimed that on one occasion another student punched M.J. in the face, causing a fracture to his sinus. As a result, M.J. underwent surgery to remove bone fragments and blood clot. Following this incident, the parents enrolled M.J. in a private school for the 2009-10 school year. The main issue before the court was whether the plaintiffs asserted a valid claim under Section 504 based on the peer harassment and bullying alleged.

The trial court held that M.J. raised genuine issues of material fact and could pursue a claim for disability discrimination under Section 504 based on peer harassment at school. The suit alleged that the district violated M.J.’s rights under Section 504 by failing to prevent or remedy the alleged harassment by M.J.’s peers. The trial court held that the plaintiffs had established a genuine issue for trial as to each element of their Section 504 disability-based, peer-on-peer harassment claim. M.J. claimed to have repeatedly reported harassment by A.B. to his math lab teacher, and she failed to take any action on some occasions. M.J. also claimed to have complained of the same harassment at a February 2009 ARD meeting. There existed a fact question regarding whether A.B.’s harassment was motivated by M.J.’s disability, and whether the harassment was sufficiently severe and pervasive enough to impose liability on the school. The trial court, therefore, denied the district’s request for judgment prior to trial on the student’s Section 504 claim alleging peer-on-peer harassment.

In a recent peer harassment case out of Massachusetts, the parent of a middle school student with a learning disability sued the school district claiming that the student was sexually harassed and assaulted by another student. In Thomas v. Springfield School Committee,16 the parent claimed that the district discriminated against the student when it (1) failed to take appropriate action in response to peer harassment, and (2) failed to accommodate her disability by adopting safety measures for her before and after the incidents.

Applying the Davis standard, the court found insufficient evidence to impose liability against the district. The record failed to establish that the student was targeted because of the disability.  The court stated:  “The ADA does not impose liability for a failure to protect a student from harassment that was not based on a student’s disability.” The court therefore entered judgment in favor of the district with respect to the peer harassment claims.

The parent also claimed that the district discriminated against the student by failing to properly supervise her. This claim differed from the peer harassment claim because it involved an affirmative obligation on the part of the district unrelated to specific threats from other students, to provide additional supervision due to her cognitive impairments. The trial court held that claims for the denial of FAPE may be brought pursuant to the ADA, provided there is a showing that the denial resulted from a disability-based animus.

In this case, the parent argued that the district refused to make changes to the child’s IEP that were necessary to ensure her safety at school. The parent claimed that the district did not do enough to assist the child after they learned about the harassment. The record showed that, after the harassment became known, the student’s IEP team discussed adding safety measures to the student’s IEP. After the meeting, the parent remained concerned about the student’s safety at school. As a result, the parent kept the girl at home. According to the trial court, those facts sufficiently alleged a denial of FAPE distinct from any denial of FAPE caused by the peer harassment. However, in order for a violation of FAPE to also violate the ADA, Plaintiff must show the denial resulted from a disability-based animus. The record, in that case, contained no evidence suggesting that the district denied the request for changes to the student’s IEP because of a disability-based animus. Accordingly, the court granted judgment in favor of the district as to the claim based on the district’s failure to accommodate after the January 2010 peer harassment incidents.

This case demonstrates the two-fold obligations of a school district, as outlined in the OCR’s 2014 Dear Colleague letter. First, the district must take prompt and appropriate action to address the peer harassment. Second, with respect to students who receive special education or Section 504 services, as well as those suspected of having a qualifying disability, districts must also take action to evaluate and remedy any effects of the harassment and see that the student is being provided a FAPE.

CONCLUSION

Students with disabilities are at a higher risk of being singled out by bullies and can be particularly vulnerable because of the physical or mental condition that may diminish their ability to defend themselves. For that reason, courts will show little tolerance for school districts that fail to take appropriate action to stop the harassment. Districts can avoid a finding of deliberate indifference by demonstrating a genuine effort to stop the bullying, not just by disciplining the alleged bullies, but by taking a broader approach, such as talking to students and parents, arranging training for students and staff, arranging anti-bullying programs, and teaching parents and students how to recognize bullying and what to do about it. This new guidance from the OCR on bullying of students with disabilities is must-reading for every school administrator. OCR encourages school districts to reevaluate their policies and practices in light of the letter, and other prior guidance. For more information and resources, we encourage readers to visit stopbullying.gov, a comprehensive website by the U.S. Department of Health and Human Services, providing the latest on state policies and laws, bullying prevention strategies, and best practices for parents, educators, students, and the community.

ENDNOTES

1. https://www.ed.gov/news/press-releases/bullying-students-disabilities-addressed-guidance-america%E2%80%99s-schools
2. OCR Dear Colleague Letter on Bullying of Students with Disabilities, October 21, 2014, https://www2.ed.gov/about/offices/list/ ocr/letters/colleague-bullying-201410.pdf
3. OCR 2014 Dear Colleague Letter, 2-3.
4. OCR 2014 Dear Colleague Letter, 4.
5. The “know or should have known” standard that applies to OCR enforcement cases, can also apply in federal litigation when only injunctive relief, and not monetary damages, is
6. OCR 2014 Dear Colleague Letter, 4.
7. OCR 2014 Dear Colleague Letter, 4.
8. OCR 2014 Dear Colleague Letter, 6.
9. OCR 2014 Dear Colleague Letter, 6-7.
10. OCR 2014 Dear Colleague Letter, 6.
11. Id.
12. OCR 2014 Dear Colleague Letter, 7.
13. OCR 2014 Dear Colleague Letter, 5.
14. OCR 2014 Dear Colleague Letter, 9-10.
15. 743 F.3d 982 (2014).
16. __ F.Supp.3d __ , 2014 WL 6473020 (D. Mass. 2014).