OSERS Overview of Responsibilities to Address Bullying of Students With Disabilities

[From here]

Aug. 20, 2013

Dear Colleague:

Bullying of any student by another student, for any reason, cannot be tolerated in our schools.[4] 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.

Bullying is characterized by aggression used within a relationship where the aggressor(s) has more real or perceived power than the target, and the aggression is repeated, or has the potential to be repeated, over time.  Bullying can involve overt physical behavior or verbal, emotional, or social behaviors (e.g., excluding someone from social activities, making threats, withdrawing attention, destroying someone’s reputation) and can range from blatant aggression to far more subtle and covert behaviors.  Cyberbullying, or bullying through electronic technology (e.g., cell phones, computers, online/social media), can include offensive text messages or e-mails, rumors or embarrassing photos posted on social networking sites, or fake online profiles.

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.[5]  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.[6]  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.

Students with disabilities are disproportionately affected by bullying.[7]  For example, students with learning disabilities, attention deficit or hyperactivity disorder, and autism are more likely to be bullied than their peers.[8]  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.[9]  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.[10]

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.

As discussed above, 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 FAPE.  A student must feel safe in school in order to fulfill his or her full academic potential.  We encourage States and school districts to alert Boards of Education, school administrators, teachers, and staff that bullying can result in a denial of FAPE for students with disabilities.  We also encourage States and school districts to reevaluate their policies and practices addressing problematic behaviors, including bullying, in light of the information provided in this letter, as well as in OSERS’ July 25, 2000, joint Dear Colleague Letter and OCR’s October 26, 2010, Dear Colleague Letter.  The enclosure to this letter, “Effective Evidence-based Practices for Preventing and Addressing Bullying,” includes practices for use as part of any bullying prevention and intervention program to help ensure that school and classroom settings are positive, safe, and nurturing environments for all children and adults.

We look forward to continuing to work with you to ensure that students with disabilities have access to high-quality services in positive, safe, and respectful school environments.

Melody Musgrove, Ed. D.

Director

Office of Special Education Programs

Michael K. Yudin

Acting Assistant Secretary

Enclosure: Effective Evidence-based Practices for Preventing and Addressing Bullying

[1] This letter is intended to supplement the July 25, 2000, joint Dear Colleague Letter from OSERS and the Department’s Office for Civil Rights (OCR), which addressed disability harassment under Section 504 of the Rehabilitation Act of 1973 (Section 504), Title II of the Americans with Disabilities Act of 1990 (Title II of the ADA), and the IDEA (available at: http://www.ed.gov/ocr/docs/disabharassltr.html).

[2] Some bullying of students with disabilities may also constitute discriminatory harassment and trigger additional responsibilities under the civil rights laws that OCR enforces, including Section 504, Title II of the ADA, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972.  See OCR’s October 26, 2010, Dear Colleague Letter on Harassment and Bullying (available at: http://www.ed.gov/ocr/letters/colleague-201010.html).

[3] In the context of this letter “school” includes public preschools; elementary, middle, and high schools; and public agencies, including the State Educational Agency (SEA), Educational Service Agencies (ESA), Local Educational Agencies (LEA), nonprofit public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to children with disabilities. See 34 C.F.R. §300.33.

[4] Although the focus of this letter is peer-to-peer bullying, it is important to acknowledge that it is also intolerable for teachers and school staff to be party to school bullying and disability harassment (i.e., being active participants in bullying), or observers to school bullying without taking action to address the behavior.  While teacher-student disability harassment also may constitute a denial of FAPE, those issues are beyond the scope of this letter.  We recommend that States and school districts consult with legal counsel regarding their responsibilities and duties in cases of bullying that involve school personnel, including taking the matter seriously, and promptly addressing any problematic behaviors.

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

[6] 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.

[7] Swearer, S. M., Wang, C., Maag, J. M., Siebecker, A., B., & Frerichs, L. J.  (2012). Understanding the bullying dynamic among students in special and general education.  Journal of School Psychology, 50, 503-520.

[8] 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.

[9] 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).

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