What constitutes bullying and what should schools do about it?  This issue was addressed by the United States Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) in a Dear Colleague Letter on bullying, particularly bullying of students with disabilities, in 2013.  In the OSERS Dear Colleague Letter, bullying is defined as:

Bullying is characterized by aggression used within a relationship where the aggressor has more real or perceived power than the target, and the aggression is repeated, or has the potential to be repeated, over time.

The United States Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter in October 2014.  OCR took the position that bullying does not have to involved repeated incidents, but must be “sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from services, activities, or opportunities offered by a school.”

Both Dear Colleague Letters offers guidance to schools:

  • Schools have an obligation to ensure that a student with a disability who is the target of bullying continues to receive FAPE in accordance with his/her IEP or Section 504 Plan.
  • Convene an IEP meeting to determine if, as a result of the effects of the bullying, the student’s needs have changed such that the IEP is no longer designed to provide meaningful educational benefit. For example, does the student require counseling?
  • Use caution in changing a special education student’s placement in a bullying situation. The student should be kept in the original placement unless the student can no longer receive FAPE in the current LRE placement.

The enclosure with the OSERS DCL provides a substantive outline of preventative measures to prevent bullying at schools.

Section 504 and Title II require a school with notice of possible disability-based harassment to take prompt and effective steps to determine what occurred and to end any harassment, eliminate a hostile environment, and prevent recurrence.

Most recent legal guidance on bullying and students with disabilities from OCR:

Bullying is also addressed in Arizona statute A.R.S. §15-341 (A), which provides:

The Governing Board SHALL:

  1. Prescribe and enforce policies and procedures to prohibit pupils from harassing, intimidating and bullying other pupils on school grounds, on school property, on school buses, at school bus stops, at school-sponsored events and activities and through the use of electronic technology or electronic communication on school computers, networks, forums and mailing lists that include the following components:

(a) A procedure for pupils, parents and school district employees to confidentially report to school officials incidents of harassment, intimidation or bullying. The school shall make available written forms designed to provide a full and detailed description of the incident and any other relevant information about the incident.

(b) A requirement that school district employees report in writing suspected incidents of harassment, intimidation or bullying to the appropriate school official and a description of appropriate disciplinary procedures for employees who fail to report suspected incidents that are known to the employee.

(c) A requirement that, at the beginning of each school year, school officials provide all pupils with a written copy of the rights, protections and support services available to a pupil who is an alleged victim of an incident reported pursuant to this paragraph.

(d) If an incident is reported pursuant to this paragraph, a requirement that school officials provide a pupil who is an alleged victim of the incident with a written copy of the rights, protections and support services available to that pupil.

(e) A formal process for the documentation of reported incidents of harassment, intimidation or bullying and for the confidentiality, maintenance and disposition of this documentation. School districts shall maintain documentation of all incidents reported pursuant to this paragraph for at least six years. The school shall not use that documentation to impose disciplinary action unless the appropriate school official has investigated and determined that the reported incidents of harassment, intimidation or bullying occurred. If a school provides documentation of reported incidents to persons other than school officials or law enforcement, all individually identifiable information shall be redacted.

(f) A formal process for the investigation by the appropriate school officials of suspected incidents of harassment, intimidation or bullying, including procedures for notifying the alleged victim on completion and disposition of the investigation.

(g) Disciplinary procedures for pupils who have admitted or been found to have committed incidents of harassment, intimidation or bullying.

(h) A procedure that sets forth consequences for submitting false reports of incidents of harassment, intimidation or bullying.

(i) Procedures designed to protect the health and safety of pupils who are physically harmed as the result of incidents of harassment, intimidation and bullying, including, if appropriate, procedures to contact emergency medical services or law enforcement agencies, or both.

(j) Definitions of harassment, intimidation and bullying.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Erin H. Walz at 480.461.5379, log on to udallshumway.com, or contact an attorney in your area.