Bullying: Why districts and parents fail: PART 5 – IEPs and bullying

The aggressor may have an IEP, the target may have an IEP, both may have IEPs, or neither may. I have encountered districts that have no idea what to do, especially if the aggressor has an IEP.

When the target of the bullying has an IEP, it is vital to look at the civil rights implications. This was discussed in part 4 of this series.

I will discuss the often ignored topic of the protected, disabled student who is the aggressor, the bully, but first a discussion of the target, the victim.

A very important Dear Colleague letter from October 2014 addresses bullying of students with disabilities (italics are mine for emphasis).

II. Schools’ Obligations to Address Disability-Based Harassment

Bullying of a student on the basis of his or her disability may result in a disability-based harassment violation under Section 504 and Title II.16 As explained in OCR’s 2010 Dear Colleague Letter on Harassment and Bullying, when a school knows or should know of bullying conduct based on a student’s disability, it must take immediate and appropriate action to investigate or otherwise determine what occurred. 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. Therefore, OCR would find a disability-based harassment violation under Section 504 and Title II when: (1) a student is bullied based on 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. [1. Dear Colleague letter, October 21, 2014; page 4.]

This is the standard for disability-based harassment:

• a student is bullied based on disability;
• bullying is sufficiently serious to create a hostile environment;
• school officials know or should know about the bullying;
• the school does not respond appropriately.

Just what is a hostile environment? According to the letter, the conduct must be 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. As a real-world example … if a student experiences such anxiety because of the bullying that s/he is not able to properly access the curriculum or access the life of the school, then there is a hostile environment.

The proper thing for the school to do is to quickly and effectively stop the bullying, and protect the target. This may be with an immediate “safety plan” for the target, more staff during the time the bullying is occurring (often unstructured time such as lunch or recess), etc.

5. If Office of Civil Rights goes on to investigate whether the student was denied a free appropriate public education as a result of the bullying based on disability, the Office of Civil Rights will also consider whether the school knew or should have known that the effects of the bullying may have affected the student receipt of free appropriate public education services under IDEA or § 504.

6. If the answer to paragraph 5 is no, then there is no free appropriate public education violation. If the answer on the other hand is yes, then the Office of Civil Rights goes on the consider whether the school met its ongoing obligation to ensure a free appropriate public education 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 § 504 plan. [2. ibid.]

Also note that there are at least TWO Offices of Civil Rights that may be contacted. One is part of the U.S. Department of Education and the other is within the U.S. Department of Justice. If the harassment is based on religion, that would fall under Title IV and under the Department of Justice (for more information, see their page here).

The school district must follow their bullying policy in all cases.

What happens when the bully is on an IEP? As a generalization, the discipline for a student on an IEP is the same as that for a general education student. It should be spelled out in the student handbook or in the school district’s policies. There is a difference if and when the student on an IEP has been suspended for 10 days or more from school (either consecutively or accumulated). At that point it must be determined if the conduct is a manifestation of the student’s disability. This is done at a meeting called, appropriately enough, a Manifestation Determination. If the behavior is determined to NOT be caused by the disability, then discipline continues as with a general education student, up to and including expulsion. BUT, if is is determined that the behavior IS due to the disability, then FAPE must continue with access to the curriculum. Often this would mean a change in placement since the current placement is not appropriately protecting the student, or the other students. See more here from the IDEA. School districts will often use this as the opportunity to move a student with behavioral difficulties when the parents may not be as flexible. The Manifestation Determination will trigger a Placement Team Meeting where, as a Team, the parents, district, etc. will determine the best placement for the student to receive FAPE. The argument can be made that if the student is in a placement that allows him or her to be an aggressor, and creating a hostile environment, then the student is not receiving FAPE nor accessing the curriculum. A Team can decide that a different placement is necessary, whether it be a 45-day or longer term Interim Alternative Educational Setting (IAES), home schooling, an in-district or an out-of-district behavioral or therapeutic setting, etc. Of course, the Team must find the Least Restrictive Environment, but that is the LRE for this particular child.

Bullying involving students on IEPs must be as quickly handled and stopped as with general education students. Granted there may be some special circumstances since the level of understanding may be different with some special education students. But quick, effective action is always the way to go.

Next time we will talk about what the district must do once a bullying report is filed.