As school administrators, you likely have been involved with many claims of “bullying” within your district. Bullying has regularly been a hot topic within the education world for the past decade. While bullying is an issue that has the potential to impact all students, data suggests special education students face bullying at higher incident rates than general education students. For example, children with disabilities are two to three times more likely to be bullied than their nondisabled peers. Disabilities: Insights from Across Fields and Around the World; Marshall, Kendall, Banks & Gover (Eds.), 2009.
School districts have both legal and educational obligations to these students. In a 2014 Dear Colleague Letter, OCR stated that “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.” Office of Civil Rights, Dear Colleague Letter, U.S. Department of Education (October 21, 2014). OCR goes on to provide an actionable response for the school which includes convening “the IEP team or the Section 504 team to determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the student is no longer receiving FAPE.” Id.
What steps should a district follow if a bullying complaint is submitted by a student on an IEP or Section 504 plan? First, the IEP or 504 team must determine whether the effects of bullying have adversely affected the student’s receipt of FAPE. OCR recommends considering indications such as “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.” Id. If the team determines there are no adverse effects due to the bullying, the team does not need to revise the student’s plan.
Alternatively, if the team determines the bullying has adversely affected the student’s receipt of FAPE, the team must identify additional supports the student needs in order to continue receiving FAPE. The plan should be revised, and the amended IEP or 504 plan should be distributed to the appropriate staff and the parents. In both scenarios, the team should issue a prior written notice explaining the basis for its decision.
School districts can also be proactive in order to avoid circumstances that may lead to bullying. For example, school districts should train staff on the signs of bullying unique to students with disabilities. Additionally, schools should appropriately respond to and document allegations of bullying. Lastly, consider implementing social skills training as a tool for students with disabilities.
If you have any questions about special education or Section 504, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.