All Things Considered
Bullying Based on Disability Overview
Bullying as Disability Discrimination Section 504 & Americans with Disabilities Act Bullying as Denial of FAPE IDEA California Legislation 2011 District Action Items
2 OCR Disability Discrimination
3 OCR Guidance Letters
The Bottom Line. Bullying based on a student’s disability requires a response Beyond that used for simple teasing, taunting, or hazing among peers
4 Dear Colleague Letter I (OCR 2010)
Issued October 25, 2010 Purpose. To remind LEAs that bullying incidents may be disability discrimination Message. LEAs must Identify whether incident constitutes bullying based on the student’s disability Respond to prevent recurrence
5 Definition of “Disability Harassment”
OCR defines “disability harassment” as intimidation or abusive behavior based on a disability that creates a hostile environment Disability harassment and bullying on the basis of disability used interchangeably
Dear Colleague Letter I (OCR 2010)
6 Elements of Disability Harassment
Harassment based on disability Sufficiently serious that it creates hostile environment District response inadequate Harassment encouraged, tolerated, not adequately addressed, or ignored by school staff
Dear Colleague Letter I (OCR 2010)
7 Forms of Disability Bullying
Verbal acts and name-calling Graphic and written statements Other conduct that may be physically threatening, harmful, or humiliating
Dear Colleague Letter I (OCR 2010) 8 Hostile Environment
Bullying creates a hostile environment when it is Sufficiently severe, pervasive, or persistent To interfere with or limit a student’s ability to Participate in or benefit from the services, activities, or opportunities offered by an LEA
Dear Colleague Letter I (OCR 2010)
9 Duty to Act: Know the Facts
A school is responsible for addressing harassment incidents about which it knows or reasonably should have known On-campus incidents Off-campus behavior including cyberbullying
Dear Colleague Letter I (OCR 2010)
10 Duty to Act: Response
Discipline the perpetrator and counsel the victim – as a starting point Prevent recurrence perhaps by addressing school climate
Dear Colleague Letter I (OCR 2010)
11 Duty to Act: Response
Do not penalize the victim by Moving to a more restrictive environment Changing class schedule or transportation Limiting access to recess and/or breaks
Dear Colleague Letter I (OCR 2010)
12 Duty to Act: Response
Do not respond solely based on how the victim characterizes the incident Look beyond disciplining the bullies Does school climate tolerate bullying?
Dear Colleague Letter I (OCR 2010) 13 OCR’s Hypothetical Facts: SLD student Repeatedly called an “idiot,” “retard,” and “stupid” Student tackled, hit with binder, and personal items thrown in the garbage Student complained to his teachers that he was being bullied
Dear Colleague Letter I (OCR 2010) 14 cont. OCR’s Hypothetical
District offered student counseling and a psychiatric evaluation Did not discipline the offenders Harassment continued Student became angry, frustrated, depressed, and refused to attend school
Dear Colleague Letter I (OCR 2010)
15 OCR’s Hypothetical Decision: District is out of compliance with Section 504 and ADA District failed to recognize the misconduct as disability harassment The harassment prevented student from fully benefiting from the school’s education program
Dear Colleague Letter I (OCR 2010) 16 Appropriate Steps to End Bullying
Develop user-friendly method for victim to register complaints Separate the accused harasser and the target Discipline the harasser Meet with district’s Section 504/special education coordinator to ensure an effective response
Dear Colleague Letter I (OCR 2010) 17 Appropriate Steps to End Bullying
Staff training on recognizing disability harassment Monitor behavior of students to prevent recurrence Provide counseling for the target and/or harasser Issue/modify school policies as appropriate
Dear Colleague Letter I (OCR 2010) 18 “Dear OCR Letter” from NSBA
Complaints about DCL I prompt OCR to issue DCL II
19 Dear Colleague Letter II (OCR March 25, 2011)
Complaints from school community OCR’s bullying guidance expanded current law Current law requires “actual knowledge” of, and “deliberate indifference” to, bullying OCR’s letter made districts liable for incidents about which they “should have known”
20 OCR’s Response
The legal standard of actual knowledge and deliberate indifference applies to money damages OCR’s standards for administrative enforcement are higher and different
Dear Colleague Letter II (OCR 2011)
21 OCR Determinations Disability Discrimination
22 Recognizing Disability-Based Bullying
Hemet (CA) Unified School District (OCR 2009) Facts: OHI student Bullied and taunted at lunch, recess, and in PE Peers mimicked student’s speech and involuntary facial movements
23 cont. Recognizing Disability-Based Bullying Facts: District action Suspended one student Increased playground supervision Counseled some students on appropriate language Issue: Did district respond adequately to bullying incidents?
24 Recognizing Disability-Based Bullying Decision: No District failed to see incidents as disability related District responsible for providing a learning environment free from discrimination District failed to investigate complaints
Hemet (CA) USD (OCR 2009) 25 cont. Recognizing Disability-Based Bullying Decision: Parent’s failure to identify harassment as disability-based Does not relieve district of duty to recognize it and correct it If the student’s own conduct provoked some of the incidents Conduct should have been addressed through the IEP process
Hemet (CA) USD (OCR 2009) 26 Recognizing Disability-Based Bullying
Lessons Learned: Positive Prompt and effective response Negative Dismissal of incidents as normal peer-to-peer interaction No counseling or discipline of bullies No IEP assistance for student
Hemet (CA) USD (OCR 2009) 27 Failure to Remedy Bullying
Santa Monica-Malibu (CA) Unified School District (OCR 2010) Facts: Eighth grade student bullied daily, resulting in student’s absenteeism and school phobia Parent complained about bullying to school officials via email
28 cont. Failure to Remedy Bullying
IEP team convened to discuss alleged harassment IEP team added a self-advocacy goal, but district failed to implement
Santa Monica-Malibu (CA) USD (OCR 2010)
29 Failure to Remedy Bullying
Decision: OCR found that district was out of compliance Rationale: District made efforts to address harassment but failed to implement them
Santa Monica-Malibu (CA) USD (OCR 2010)
30 cont. Failure to Remedy Bullying Lessons Learned: Positive Policies and procedures adopted Staff designated Anti-bullying training Negative Policies not implemented IEP anti-harassment goals not implemented Failed to investigate No discipline of harasser Santa Monica-Malibu (CA) USD (OCR 2010) 31 Success in Remedying Bullying Case #1 Kearney R-I (Mo) School District (OCR 2010) Facts: Second grader had severe peanut allergy At lunch classmates often waved pieces of bread with peanut butter in front of her face Principal promptly spoke with offending students
32 cont. Success in Remedying Bullying Case #1
Principal met with the entire second grade class to explain the seriousness of a peanut allergy Offered counseling to address the child’s fears
Kearney R-I (Mo) SD (OCR 2010) 33 Success in Remedying Bullying Case #1 Issue: Did district violate Section 504 when it failed to address bullying of student on the basis of her peanut allergy Decision: District responded appropriately and thus satisfied Section 504 requirements
Kearney R-I (Mo) SD (OCR 2010) 34 Success in Remedying Bullying Case #1
Lessons Learned: Positive Quick and appropriate response Systemic approach Negative Lack of parent communication
Kearney R-I (Mo) SD (OCR 2010) 35 Success in Remedying Bullying Case #2
P.R. by Rawl v. Metropolitan School Dist. of Washington Township (S.D. Ill.) 2010 Facts: Middle school student with HIV Teased at school and through text messages, instant messages, and emails
36 cont. Success in Remedying Bullying Case #2 Soccer coach asked student whether she was HIV positive while on a team bus Student withdrew from school District staff warned harassers about seriousness of actions District reprimanded soccer coach Parent sued for damages
P.R. by Rawl v. Metropolitan SD of Washington Township (S.D. Ill., 2010)
37 Success in Remedying Bullying Case #2 Issue: Was district liable for failing to respond to harassment of HIV-positive student?
P.R. by Rawl v. Metropolitan SD of Washington Township (S.D. Ill., 2010)
38 Success in Remedying Bullying Case #2 Decision: No. Lawsuit dismissed Student failed to show that district was “deliberately indifferent” to disability harassment District took prompt action, including meeting with students and parents of harassers
P.R. by Rawl v. Metropolitan SD of Washington Township (S.D. Ill., 2010)
39 Success in Remedying Bullying Case #2 Rationale: The court cited to the prompt and effective response of the district The court rejected student’s argument that a harsher punishment required “School administrators enjoy a great deal of flexibility when making disciplinary decisions and responding to allegations of harassment” (Id. at *8.) P.R. by Rawl v. Metropolitan SD of Washington Township (S.D. Ill., 2010) 40 Success in Remedying Bullying Case #2 Lessons Learned: Implement a comprehensive response Be on the lookout for cyberbullying Respond to bullying by staff
P.R. by Rawl v. Metropolitan SD of Washington Township (S.D. Ill.) 2010
41 IDEA – Bullying as a Denial of FAPE N.Y. Federal District Court
42 Court: Bullying Denies FAPE
T.K. v. New York City Dept. of Educ. (E.D.N.Y., April 25, 2011) Facts: 12-year old female eligible under SLD Ostracized, pushed, and ridiculed daily Parent attempted to discuss the bullying matter with school officials Ignored and rebuffed
43 cont. Court: Bullying Denies FAPE Parent filed due process complaint with administrative hearing office. Hearing officer found district did not deny student a FAPE Parent appealed to federal district court
44 Court: Bullying Denies FAPE Issue: “…under the IDEA, the question to be asked is whether school personnel were deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in their educational opportunities”
T.K. v. New York City Dept. of Educ. (E.D.N.Y, 2011) 45 Court: Bullying Denies FAPE
Decision: Yes – if facts alleged are true Student was isolated and harassed Parents reported incidents but school took no action Student withdrew, did not want to go to school Where bullying reaches a level where student is substantially restricted in learning opportunities, she has been deprived of a FAPE
T.K. v. New York City DOE (E.D.N.Y., 2011) 46 Court: Bullying Denies FAPE
Lessons Learned: Discuss incidents at IEP Investigate incidents Pay attention to complaints Have a complaint process and use it effectively
T.K. v. New York City DOE (E.D.N.Y., 2011) 47 Court: Bullying Denies FAPE Compare: N.Y. Court’s High FAPE Standard Student substantially restricted in learning because of bullying 9th Circuit’s Lower FAPE Standard Student derives no benefit from IEP because of bullying
T.K. v. New York City DOE (E.D.N.Y., 2011) 48 IDEA – Bullying as a Denial of FAPE OAH Decision
49 OAH: Bullying Denies FAPE Student v. La Canada Unified School District (OAH 2006) Facts: 14-year old male student with speech delay-lagged behind in social skills Over a three-year period Student bullied, teased, and physically abused Taunted for going to speech therapy, spit on, backpack pulled off Student anxious, depressed, refused to go to school Parent provided tutoring and therapy 50 OAH: Bullying Denies FAPE
Issue: Did district fail to address the bullying and teasing of student such that it denied him a FAPE for the last three years?
Student v. La Canada USD (OAH 2006) 51 OAH: Bullying Denies FAPE
District Contended: Incidents of bullying against student were due to student’s own behaviors Parent Contended: District repeatedly failed to stop the bullying; student deteriorated socially and emotionally
Student v. La Canada USD (OAH 2006) 52 OAH: Bullying Denies FAPE
Decision: District did not provide student with a FAPE Student suffered emotional harm Student maintained his grades only because of extra services paid by parent The large emotional harm to student was so severe that student made de minimus progress on his IEP
Student v. La Canada USD (OAH 2006) 53 OAH: Bullying Denies FAPE Rationale: The ALJ explained, “the District points to the very needs of Student, his inability to respect others’ space, his lack of impulse control, and his inability to read others’ cues, as the reason for bullying. This belies District’s failure in addressing Student’s primary needs in social interaction, social skills, and pragmatic communication”
Student v. La Canada USD (OAH 2006) 54 OAH: Bullying Denies FAPE
Lessons Learned: Student’s own behavior cannot be blamed No systemic anti-bullying measures Failure to implement remediation program Failure to consider social and emotional needs Failure to offer supervision
Student v. La Canada USD (OAH 2006) 55 Legal Standard Bullying as Denial of FAPE
Bright Line Test Chronic Bullying Failure to Prevent Bullying Student Receives No Benefit from Services as a Result
56 Chronic Bullying
Chronic bullying ranges from: One reported incident per year for three years Daily for at least one year Regularly for three years Teasing Teasing and pushing Teasing and pushing and cyberbullying
57 Prevention
Failure to prevent bullying ranges from: Failure to prevent bullying successfully Failure to take steps to prevent bullying Deliberate indifference of staff to bullying
58 Resulting Educational Loss
Resulting educational loss ranges from: Student derives no benefit from services Student suffers emotional harm and does not benefit Student substantially restricted in educational opportunities
59 Legal Standard Bullying as Denial of FAPE
Bottom Line: The more aggravated the bullying, or the weaker the school response, the more likely a FAPE violation!
60 California Legislation on Bullying, 2011
61 Assembly Bill 9
Effective on July 1, 2012 Requires school districts to develop policies and complaint procedures to address bullying based on . . . a student’s disability
62 Assembly Bill 9
Requires CDE to ensure that school districts have the following in place Policy that addresses bullying on the basis of actual or perceived disability Complaint process for receiving and investigating complaints regarding bullying on the basis of actual or perceived disability
63 Assembly Bill 9
Complaint process must also include A requirement that school personnel that witness bullying take immediate steps to intervene when safe to do so A timeline to investigate and resolve bullying complaints An appeal process for complainant if he or she disagrees with resolution Translation of all forms pursuant to Education Code section 48985
64 Assembly Bill 1156
Effective July 1, 2012 AB 1156 amends the definition of bullying under Education Code section 48900 The “reasonable person” standard for evaluating the impact of bullying includes “an exceptional needs pupil”
65 Assembly Bill 1156
Current Law Placing a “reasonable pupil” in fear of harm Causing a “reasonable pupil” to experience substantial interference with academic performance, physical or mental health, and/or ability to benefit from school
66 Assembly Bill 1156
New definition of “Reasonable Pupil” Includes “an exceptional needs pupil”
67 Assembly Bill 746
Broadens the definition of bullying by electronic acts To include “a post on a social network Internet Website”
Ed. Code, § 32261(g) 68 District Action Items
69 Action Items Policies & Procedures
Adopt and implement policies and procedures with respect to bullying Review and update existing policies and procedures
70 Action Items Policies & Procedures Complaint procedure A process for receiving and investigating complaints of bullying based on actual or perceived disability A timeline for investigating and responding to bullying complaints An appeal process if parent or student disagrees with resolution of complaint
71 Action Items Addressing Complaints Best Practices: Investigate bullying incidents Evaluate impact of bullying on student’s civil rights and FAPE Keep parents in the loop Systemic approach How are you dealing with bullying impact on learning? How are you dealing with parents? How are you responding to school community? 72 Action Items Prevention & Recognition
Train all staff and students on bullying Make reporting bullying easier Example: A school district adopts a “bully box” at each school site where students can place forms into a locked box Talk with parents (See Appendix for Checklist: Addressing Parent Concerns on Bullying)
73 Conclusion The Goal - A school culture where bullying is unacceptable to everyone
74 75 HAGLB Have a good lunch break
We will promptly reconvene at 1:00 p.m.
76