DOE releases new disability bullying guidance

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Monday, October 27, 2014

The photograph depicts a bullying victim hunching down near a wall as the bully stands nearby with fist clinched,

New Bullying Guidance

The U.S. Department of Education’s Office for Civil Rights, in a Dear Colleague letter sent to educators nationwide October 21, expanded on previously issued guidance on public schools’ obligations to prevent disability-based harassment.

“If a school’s investigation reveals that bullying based on disability created a hostile environment—i.e., the conduct was sufficiently serious to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school—the school must take prompt and effective steps reasonably calculated to end the bullying, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects,” the letter stated.

The guidance seeks to address potential loopholes in the nation’s overlapping and often complex education laws. These guidelines focus on Section 504 of the Rehabilitation Act, originally passed in 1973, which predates the better-known Individuals with Disabilities Education Act by two years.

While the IDEA created the framework and procedural requirements for the present special education system, Section 504 is a broader provision that prohibits disability discrimination by recipients of federal financial assistance, which includes all public schools, including magnet and charter schools.

Accordingly, Section 504 provides protections for students with certain disabilities that don’t necessarily qualify for special educations services, such as post traumatic stress disorder, certain food and environmental allergies, or less severe forms of attention deficit hyperactivity disorder, according to Education Week.

In August 2013, the DOE’s Office of Special Education and Rehabilitative Services, which oversees schools’ IDEA obligations, updated its guidelines for disability-related bullying.

Specifically, it clarified that a school district’s failure to prevent bullying against a student receiving special education services could constitute a failure to provide a free appropriate public education (FAPE), the threshold requirement for all students covered by the IDEA.

In addition, it recommended a variety of steps school districts should take upon learning that a student is being bullied, including reconvening the student’s Individual Education Plan (IEP) team and modifying services if necessary.

Building on this guidance, the DOE’s Office for Civil Rights, which oversees enforcement of Section 504, has now updated its 2010 guidance to clarify that a school district’s failure to prevent bullying can constitute a failure to provide FAPE under Section 504 as well.

Similarly, it clarified that schools are obligated to reconvene a student’s Section 504 team and modify services in response to bullying concerns, although it cautioned against automatically moving the student to a different placement.

“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,” the letter stated.

In addition to expanding the scope of students covered by this guidance, the new Section 504 guidance also impacts students who additionally received special education services under the IDEA. When parents challenge a school district’s special education services, they have the option of filing claims simultaneously under both the IDEA and Section 504, the latter of which allows for a broader recovery of damages and attorneys fees in certain situations.

In addition, these complaints also normally trigger claims under the Americans with Disabilities Act, which similar to Section 504, prohibits discrimination by entities receiving federal financial assistance. Therefore, violations of Section 504 normally are interpreted as ADA violations as well.