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