The federal Office for Civil Rights (OCR) has recently issued guidance on responding to the bullying of students with disabilities. Most significantly, in a “Dear Colleague Letter” dated October 21, 2014, OCR emphasizes that certain actions are required to be taken by a school district regardless of whether the alleged bullying is thought to be based on the student’s disability.
The recent guidance is similar to guidance issued by the Office of Special Education and Rehabilitative Services (OSERS) in 2013. The former guidance concerns students who are eligible under the Individuals with Disabilities Education Act (IDEA). The current guidance would also extend to students who are eligible only under Section 504. The rationale of both is that a student with a disability is entitled to receive a free appropriate public education (FAPE). If alleged bullying activity occurs, it is the school’s obligation to determine whether it has impacted the student’s ability to receive a free appropriate public education.
The Office for Civil Rights, in the recent guidance, advises that a school district must first decide whether it is clear from the investigation of an alleged bullying incident that there was no effect on the student’s ability to receive a free appropriate education. Unless the conclusion is that there was no effect, the school district should promptly convene the IEP team (where the student is eligible under the IDEA) or the Section 504 Team (if the student’s eligibility is under only Section 504.) The appropriate Team is to determine whether, and to what extent:
(1) the student’s educational needs have changed
(2) the bullying has impacted the student’s receipt of IDEA or Section 504 services
(3) additional or different services are needed
It is important that school administrators who are responsible for conducting investigations into bullying of students are made aware of this guidance from the Office for Civil Rights. Historically, considerations of IDEA or Section 504 impact may well have ended with a determination that alleged bullying was not based on a student’s disability. This is not the end of the inquiry, according to OCR.