All Things Considered
Bullying Based on Disability
2
Overview
Bullying as Disability Discrimination
Section 504 & Americans with Disabilities Act
Bullying as Denial of FAPE
IDEA
California Legislation 2011
District Action Items
3
OCR Disability Discrimination
4
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
5
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
6
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)
7
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)
8
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)
9
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)
10
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)
11
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)
12
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)
13
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)
14
OCR’s HypotheticalFacts:
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)
15
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)
cont.
16
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)
17
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)
18
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)
19
“Dear OCR Letter” from NSBA
Complaints about DCL I prompt OCR toissue DCL II
20
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”
21
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)
22
OCR Determinations Disability Discrimination
23
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
24
Recognizing Disability-Based Bullying
Facts:
District actionSuspended one student
Increased playground supervision
Counseled some students on appropriate language
Issue:
Did district respond adequately to bullying incidents?
cont.
25
Recognizing Disability-Based Bullying
Decision:
NoDistrict 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)
26
Recognizing Disability-Based Bullying
Decision:
Parent’s failure to identifyharassment as disability-basedDoes not relieve district of duty to recognize it
and correct it
If the student’s own conduct provoked some of the incidentsConduct should have been addressed through
the IEP process
cont.
Hemet (CA) USD (OCR 2009)
27
Recognizing Disability-Based Bullying
Lessons Learned:
PositivePrompt and effective response
NegativeDismissal of incidents as normal peer-to-peer
interaction
No counseling or discipline of bullies
No IEP assistance for student
Hemet (CA) USD (OCR 2009)
28
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
29
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)
cont.
30
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)
31
Failure to Remedy BullyingLessons Learned:
PositivePolicies and procedures adopted
Staff designated
Anti-bullying training
NegativePolicies not implemented
IEP anti-harassment goals not implemented
Failed to investigate
No discipline of harasser
cont.
Santa Monica-Malibu (CA) USD (OCR 2010)
32
Success in Remedying BullyingCase #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
33
Success in Remedying BullyingCase #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)
cont.
34
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)
Success in Remedying BullyingCase #1
35
Lessons Learned:
Positive
Quick and appropriate response
Systemic approach
Negative
Lack of parent communication
Kearney R-I (Mo) SD (OCR 2010)
Success in Remedying BullyingCase #1
36
Success in Remedying BullyingCase #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
37
Success in Remedying BullyingCase #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
cont.
P.R. by Rawl v. Metropolitan SD of Washington Township (S.D. Ill., 2010)
38
Success in Remedying BullyingCase #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)
39
Success in Remedying BullyingCase #2
Decision:
No. Lawsuit dismissedStudent 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)
40
Success in Remedying BullyingCase #2
Rationale:
The court cited to the prompt andeffective 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)
41
Success in Remedying BullyingCase #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
42
IDEA – Bullying as a Denial of FAPEN.Y. Federal District Court
43
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 thebullying matter with school officialsIgnored and rebuffed
44
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
cont.
45
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”
Court: Bullying Denies FAPE
T.K. v. New York City Dept. of Educ. (E.D.N.Y, 2011)
46
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)
47
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)
48
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)
49
IDEA – Bullying as a Denial of FAPEOAH Decision
50
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 skillsOver a three-year period
Student bullied, teased, and physically abusedTaunted for going to speech therapy, spit on,
backpack pulled offStudent anxious, depressed, refused to go to schoolParent provided tutoring and therapy
51
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)
52
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 sociallyand emotionally
Student v. La Canada USD (OAH 2006)
53
OAH: Bullying Denies FAPE
Decision:
District did not provide student with a FAPEStudent 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)
54
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)
55
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)
56
Legal StandardBullying as Denial of FAPE
Bright Line Test
Chronic Bullying
Failure to Prevent Bullying
Student Receives No Benefit from Services as a Result
57
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
58
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
59
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
60
Legal StandardBullying as Denial of FAPE
Bottom Line:
The more aggravated the bullying, or the weaker the school response, the more likely a FAPE violation!
61
California Legislationon Bullying, 2011
62
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
63
Assembly Bill 9
Requires CDE to ensure that school districts have the following in placePolicy 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
64
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
65
Assembly Bill 1156
Effective July 1, 2012
AB 1156 amends the definition of bullying under Education Code section 48900The “reasonable person” standard for evaluating
the impact of bullying includes “an exceptional needs pupil”
66
Assembly Bill 1156
Current LawPlacing 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
67
Assembly Bill 1156
New definition of “Reasonable Pupil”Includes “an exceptional needs pupil”
68
Assembly Bill 746
Broadens the definition of bullying by electronic actsTo include “a post on a social network Internet
Website”
Ed. Code, § 32261(g)
69
District Action Items
70
Action ItemsPolicies & Procedures
Adopt and implement policies and procedures with respect to bullying
Review and update existing policies and procedures
71
Action ItemsPolicies & Procedures
Complaint procedureA 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
72
Action ItemsAddressing Complaints
Best Practices: Investigate bullying incidents
Evaluate impact of bullying on student’s civil rights and FAPE
Keep parents in the loop
Systemic approachHow are you dealing with bullying impact on
learning?
How are you dealing with parents?
How are you responding to school community?
73
Action ItemsPrevention & 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)
74
Conclusion
The Goal - A school culture where bullying is unacceptable to everyone
75
76
HAGLBHave a good lunch break
We will promptly reconvene at 1:00 p.m.