Children's Advocacy Resources for EducationC.A.R.E.

The right to be free from bullying and harassment

a.       Special education law as it relates to bullying is in its infancy.  OCR has noted that disability harassment may result in a denial of FAPE  under 504, ADA, and the IDEA.  There have been some legal decisions that indicate that bullying can result in the denial of FAPE in violation of the IDEA. 

b.      The Education Department  defines disability harassment as intimidation or abusive behavior toward a student based on disability.  It may not be denial of FAPE if child is making academic progress.

c.       Extremely fact specific: need to show that the child can derive no benefit from the services that he or she is offered by the school district, then it is a denial of FAPE.

Some Michigan cases: 

When evaluating harassment or bullying complaint, OCR will examine the conduct of the student who was the alleged victim of the harassment to determine whether his peers’ actions were, in fact, based on the student’s disability.  Ann Arbor 56 IDELR 84

The failure of a student or parent to submit a formal written complaint does not excuse a district’s duty to respond.  The fact a student with a cognitive impairment never filed a written complaint against schoolmates who regularly called him “retard” and “moron” did not excuse a MI district’s failure to investigate those incidents.  Williamston Community School 56 IDELR 22 (OCR 2010)

A district is responsible for student-on-student harassment if it has adequate notice that such harassment based on disability is occurring and fails to take prompt and effective action to stop it, to remedy the effects of the harassment it reasonably could have prevented, and to prevent its recurrence. 

                       

CASE FILE: Failure to link child's declining grades to bullying nixes FAPE claim

Case name: Southmoreland Sch. Dist., 111 LRP 50995 (SEA PA 06/18/11).

Ruling: An IHO determined that a Pennsylvania district did not deny FAPE to a second-grader with an SLD and a speech-language impairment whose parent reported that the student was being bullied. The parent failed to connect the four incidents in question to any educational harm.

What it means: There is no clearly accepted standard regarding when bullying results in a denial of FAPE. However, the U.S. District Court, Eastern District of New York has stated that a student is deprived of FAPE when bullying substantially restricts learning opportunities. T.K. v. New York City Dep't of Educ., 56 IDELR 228 (E.D.N.Y. 2011). In this case, the student complained of four incidents of bullying. However, relying on T.K., a Pennsylvania IHO found insufficient evidence that the incidents, which met with an appropriate response from the district, were the cause of a decline in the student's grades.

Summary: An IHO found insufficient evidence that the alleged bullying of a child with a speech-language impairment, or the district's response to the incidents, adversely impacted the child's educational program. Not only did the district respond appropriately to the parent's complaints, but there was insufficient evidence that the four incidents in question adversely affected the student's academic program.

The student complained of four occurrences of bullying during the 2010-11 school year, including an incident on the bus where a student hit other students with a seatbelt buckle, and an incident in which a classmate reportedly took something from him at recess. The parent alleged that the district denied the student FAPE, pointing out that the student's grades declined. Citing a standard articulated in T.K. v. New York City Department of Education, 56 IDELR 228 (E.D.N.Y. 2011), the IHO explained that a student is deprived of FAPE when bullying reaches a level where it substantially restricts the student's learning opportunities.

First, the IHO noted that the district responded properly to the incidents by investigating, disciplining the perpetrator, and separating the students, where appropriate. Second, the parent failed to link the incidents to any educational harm.

"[W]hile there was some evidence that Student's grades during the third and fourth marking period . . . were not as high . . . there was little evidence to demonstrate that the decline in grades was the result of any or all of the four incidents, rather than an increased difficulty of the curriculum," the IHO wrote.

The IHO pointed out that there was some dispute among the parties as to whether the incidents even rose to the level of bullying. Citing T.K., the IHO observed that although bullying usually involves unequal and coercive power, even a student's perception that he is at a disadvantage is sufficient.

Moreover, the fact that the student experienced difficulties with peers, had perceived conflicts with certain peers, and did not have many friends, raised "significant red flags." The IHO advised the IEP team to consider whether, based on the IHO's findings, the student had social-emotional needs warranting additional assessment and intervention.