SmartStart: Bullying of Students with Disabilities (IDEA)
Overview | Key Points | Links | Additional
Resources
This
SmartStart is updated with references to the IDEA 2004 statute, the 2006 IDEA
Part B regulations, the 2008, 2016, and 2017 amendments to the Part B
regulations, Section 504 of the Rehabilitation Act of 1973, the regulations
implementing Section 504, and the 2010 and 2016 amendments to the Title II and
Title III regulations implementing the ADA.
Overview
The
bullying of a student with a disability, regardless of whether it is
disability-related, may trigger specific obligations for school districts under
the IDEA, such as the obligation to revise the student's IEP or reevaluate the
student to determine whether he requires additional services.
Key Points
These
key-point summaries cannot reflect every fact or point of law contained within
a source document. For the full text, follow the link to the cited source.
BULLYING
DEFINED
- According
to the U.S. Education Department, 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. Bullying is physical, verbal, or psychological
actions inflicting or attempting to inflict discomfort upon another
through a real or perceived imbalance of power. Dear Colleague Letter,
61 IDELR 263 (OSERS/OSEP 2013).
- Bullying
can involve overt physical behavior or verbal, emotional, or social
behaviors (e.g., excluding someone from social activities, making threats,
withdrawing attention, destroying someone's reputation) and can range from
blatant aggression to far more subtle and covert behaviors. Cyberbullying,
or bullying through electronic technology (e.g., cell phones, computers,
online/social media), can include offensive text messages or emails,
rumors or embarrassing photos posted on social networking sites, or fake
online profiles. Dear Colleague Letter, 61 IDELR 263 (OSERS/OSEP
2013).
- Confrontations
between students that are not characterized by an imbalance in power
generally do not constitute bullying. See Jackson County Sch. Bd.,
113 LRP 22741 (SEA FL 12/27/12), aff'd on other grounds, A.L. v.
Jackson County Sch. Bd., 64 IDELR 173 (N.D. Fla. 2014), aff'd in
part, 66 IDELR 271 (11th Cir. 2015, unpublished) (ruling
that an isolated instance of rough play between peers did not amount to
bullying); and District of Columbia Pub. Schs., 111 LRP 24663 (SEA
DC 01/15/11) (finding that a single incident of two high school students
fighting over a girl did not amount to bullying or require the district to
fund a private placement for the student).
BULLYING AS
A DENIAL OF FAPE UNDER THE IDEA
- The
U.S. Supreme Court has held that to provide FAPE, a student's IEP must be
reasonably calculated to enable a child to make progress appropriate in
light of the child's circumstances. Endrew F. v. Douglas County Sch.
Dist. RE-1, 69 IDELR 174 (2017). Under the Endrew F. standard,
"the adequacy of a given IEP turns on the unique circumstances of the
child for whom it was created."
- ED
stated in a 2013 Dear Colleague Letter that the bullying of a
student with a disability that results in the student not receiving
"meaningful educational benefit" constitutes a denial of FAPE. Dear
Colleague Letter, 61 IDELR 263 (OSERS/OSEP 2013). See also Dear
Colleague Letter, 111 LRP 45106 (OCR/OSERS 07/25/00); and Torrance
Unified Sch. Dist., 119 LRP 43024 (SEA CA 2019) (because the district
failed to adequately address the ongoing peer harassment a teen
experienced that interfered with his ability to benefit from his
education, the district denied him FAPE).
- The
bully's motivation is irrelevant in terms of the victim's right to FAPE
under the IDEA. "Whether or not the bullying is related to the
student's disability, any bullying of a student with a disability that
results in the student not receiving meaningful educational benefit
constitutes a denial of FAPE under the IDEA that must be remedied." See
also Dear Colleague Letter: Responding to Bullying of Students with
Disabilities, 64 IDELR 115 (OCR 2014) (stating that the obligation to
respond to bullying and ensure the student continues to receive FAPE
exists regardless of whether the bullying was based on a disability).
OBLIGATION
TO ENSURE BULLIED STUDENT CONTINUES TO RECEIVE FAPE
- Schools
have an obligation to ensure that a student with a disability who is the
target of bullying behavior continues to receive FAPE. The school should,
as part of its appropriate response to the bullying, convene the IEP team
to determine whether, 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 FAPE. Dear Colleague Letter, 61 IDELR 263 (OSERS/OSEP 2013).
See also In re: Student with a Disability, 119 LRP 9972 (SEA WI
02/01/19).
- Three
U.S. Circuit Courts of Appeal have noted that bullying can be a basis for
denial of FAPE.
- In Shore Regional High School Board of Education v. P.S.,
41 IDELR 234 (3d Cir. 2004), the 3d Circuit found a denial of FAPE based on the
likelihood that a proposed placement would subject a student with ED to
continued bullying because of his perceived effeminacy. The 3d Circuit stated
that the placement of the student at the local high school was inappropriate
because the school would not be able to prevent or stop the continued bullying.
The student had previously been subjected to relentless physical and verbal harassment
and social isolation because he was "girlish." The placement would
expose him to further bullying and harassment, which would in effect deny the
student FAPE, the court reasoned.
- In M.L. v. Federal Way School District, 105 LRP 13966, 394
F.3d 634 (9th Cir. 2005), the 9th Circuit stated that if a teacher is
deliberately indifferent to the teasing of a child with a disability and the
abuse is so severe that the child can derive no benefit from the services that
he is offered by the school district, the child has been denied FAPE. See
also El Paso County Sch. Dist. 3, 60 IDELR 117 (SEA CO 2012) (Bullying can
amount to a denial of FAPE under the IDEA when it effectively prevents a
student receiving special education services from learning).
- While not directly addressing the issue of whether unremedied
teasing may constitute a denial of FAPE, the 7th Circuit, in Charlie F. v.
Board of Education of Skokie School District 68, 24 IDELR 1039 (7th Cir.
1996), held that, at least in principle, relief might be available where a
teacher invited students to list their complaints about a classmate, which led
to his loss of confidence, self-esteem, fistfights, and a disruption of his
educational progress.
- In
T.K. and S.K. v. New York City Department of Education, 67 IDELR 1
(2d Cir. 2016), the 2d U.S. Circuit Court of Appeals held that a New York
district made a costly mistake when it allegedly informed the parents of a
third-grader with a learning disability that peer bullying was not an
appropriate topic for discussion at the student's IEP meetings. Holding
that the parents had good reason to believe that peer harassment would
interfere with their daughter's ability to make educational progress, the
2d Circuit ruled that the district impeded the parents' participation in
the IEP process. "Denying [the] parents the opportunity to discuss
bullying during the creation of [the student's] IEP not only potentially
impaired the substance of the IEP but also prevented them from assessing
the adequacy of their child's IEP," U.S. Circuit Judge Raymond J.
Lohier Jr. wrote. The 2d Circuit did not decide whether the failure to
address bullying in the student's IEP amounted to a substantive denial of
FAPE.
- ED's
2013 Dear Colleague Letter suggests, logically, that if a student
is receiving meaningful educational benefit despite bullying, then the
student is receiving FAPE ("Any bullying of a student with a
disability that results in the student not receiving meaningful
educational benefit constitutes a denial of FAPE under the IDEA that must
be remedied"). See also, e.g., T.B. v. Waynesboro Area Sch. Dist.,
56 IDELR 67 (M.D. Pa. 2011) (finding the parents of a student with ADHD, a
speech-language impairment, and Asperger syndrome were not entitled to
tuition reimbursement where the student progressed in school even though
he was the victim and perpetrator of bullying).
- Mere
speculation that a student will be subjected to bullying in a particular
school is unlikely to establish that the district has failed to offer the
student FAPE. For example, in J.E. v. Boyertown Area School District,
57 IDELR 273 (3d Cir. 2011, unpublished), a mother's fear that her
son with Asperger syndrome and social skills deficits would face bullying
if he were placed in public school was not enough to garner her funding
for a private placement.
OBLIGATION
TO RESPOND TO BULLYING
- ED
has stated that a school should, as part of its appropriate response to
the bullying of a student with a disability, convene the IEP team to determine
whether, 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. Dear Colleague Letter, 61 IDELR 263
(OSERS/OSEP 2013). See also Dear Colleague Letter: Responding to
Bullying of Students with Disabilities, 64 IDELR 115 (OCR 2014). But
see Csutoras v. Paradise High Sch., 79 IDELR 152 (9th Cir. 2021) (An
appeals panel observed that the student did
not identify any evidence suggesting that the letters were authoritative
or intendent to represent ED's official position. "[T]he [2013 and
2014 Dear Colleague] Letters themselves disclaim any binding authority and
explicitly state that they don't apply to private suits for money
damages," the panel wrote).
OBLIGATION
TO RESPOND TO BULLYING -- CASE EXAMPLES
- Because
the parents of a student with SLD and PTSD didn't identify any instance in
which a district failed to respond to their bullying reports or refute
evidence that their son continued to make progress, they could not
establish a denial of FAPE. N.M. v. Central Bucks Sch. Dist., 62
IDELR 237 (E.D. Pa. 2014).
- The
detailed crisis plan that the Hawaii Department of Education developed for
an 11-year-old boy with autism who left the public school system due to
severe bullying by schoolmates convinced the District Court that the
district took adequate steps to address actual and perceived peer
harassment. J.M. v. Department of Educ., State of Hawaii, 69 IDELR
31 (D. Hawaii 2016), aff'd, 72 IDELR 145 (9th Cir. 2018, unpublished),
cert. denied, 119 LRP 982, 139 S. Ct. 923 (2019).
- Allegations
that a Pennsylvania district responded to a classmate's bullying of a
student with a seizure disorder and other disabilities by requiring the
student to avoid the other boy were sufficient to support the parents'
claim that the district was deliberately indifferent to disability-based
harassment. B.D. v. Cornwall Lebanon Sch. Dist., 78 IDELR 184 (M.D. Pa. 2021).
- A New York district did not deny FAPE to an eighth-grader
with autism and ADHD when it developed a safety plan that required certain
action on his part to reduce peer bullying. Rejecting the
notion that the district made the student entirely responsible for his own
safety, the District Court upheld an SRO's decision for the district on
the parents' IDEA claim. B.D. and K.D. v. Eldred Cent.
Sch. Dist., 81 IDELR 31 (S.D.N.Y. 2023).
STEPS TO
AVOID WHEN RESPONDING TO BULLYING
- IEP
teams should exercise caution when considering a change in the placement
or the location of services provided to a student with a disability who
was the target of the bullying behavior and should keep the student in the
original placement unless the student can no longer receive FAPE in the
current LRE placement. While it may be appropriate to consider whether to
change the placement of the child who was the target of the bullying
behavior, placement teams should be aware that certain changes to the
education program of a student with a disability (e.g., placement in a more
restrictive "protected" setting to avoid bullying behavior) may
constitute a denial of the IDEA's requirement that the school provide FAPE
in the LRE. Dear Colleague Letter, 61 IDELR 263 (OSERS/OSEP 2013).
- Schools
may not attempt to resolve a bullying situation by unilaterally changing
the frequency, duration, intensity, placement, or location of the
student's special education and related services. These decisions must be
made by the IEP team and must be consistent with the IDEA provisions that
address parental participation. Dear Colleague Letter, 61 IDELR 263
(OSERS/OSEP 2013).
ADDRESSING
SCHOOL REFUSAL
- Districts
should document the steps they take to encourage students with a fear of
bullying to return to school. Such evidence can prove valuable if a
student's parents allege that the student is unable to attend school due
to peer harassment. In Renee J. v. Houston Independent School District,
73 IDELR 168 (5th Cir. 2019), not only did this district arrange for the
student's teacher to escort him into the school building each day and
allow him to spend the first hour in the office, it repeatedly sought
additional information in support of the parents' request for home
instruction. Those actions showed that the district tried to address the student's
bullying-related concerns.
BULLYING AS
A TRIGGER FOR CHILD FIND
- Bullying
can be a red flag that either the student being bullied or the student
engaging in bullying may be a student with a disability in need of special
education and related services. See Dear Colleague Letter, 61 IDELR
263 (OSERS/OSEP 2013) (stating that, in circumstances involving a student
who has not previously been identified as a child with a disability,
bullying may trigger a school's child find obligations under the IDEA).
- In
Rose Tree Media School District, 111 LRP 6194 (SEA PA 12/05/10), an
IHO concluded that a district violated child find where it failed to
evaluate a student whose erratic behaviors may have made him a target for
bullies and whose emotional and social difficulties may have led him to
misinterpret normal childhood interactions. See also Anaheim City Sch.
Dist., 113 LRP 28570 (SEA CA 06/13/13) (finding that incidents of
bullying alone indicated that the student might be a child with a
disability in need of special education and related services); and Great
Valley Sch. Dist., 114 LRP 17102 (SEA PA 03/17/14) (concluding that a
third-grader who required a full-time personal care assistant to stop the
child's mistreatment of peers needed to be evaluated for special
education).
BULLYING
AND ELIGIBILITY
- Where
the student engaging in bullying has not been identified as a student with
a disability, the bullying behavior could potentially indicate that the
child is eligible as a student with ED or other disability, particularly
where the student engages in other types of inappropriate behavior in
addition to bullying. In Birdville Independent School District, 57
IDELR 60 (SEA TX 2011), a Texas district that determined a young boy with
long-standing behavioral problems, including bullying classmates,
misinterpreting others, and threatening to harm himself and others, was
ineligible for special education and related services denied the child
FAPE. See also SmartStart:
Students with Disabilities who Bully.
- A California district made an expensive mistake when it
found a fifth-grader with anxiety and ADHD ineligible for IDEA services
based on his academic performance. Holding that the district should have
found the student eligible based on his negative social interactions and
aggressive response to peer bullying, the District Court upheld an
administrative decision requiring the district to reimburse the parent for
the student's unilateral private placement. Rocklin Unified Sch. Dist.
v. J.H., 80 IDELR 165 (E.D. Cal. 2022).
THE DUTY TO
REEVALUATE
- The
bullying of a student with a disability may trigger a district's duty to
reevaluate the victim. See, e.g., Southmoreland Sch. Dist., 111 LRP
50995 (SEA PA 06/18/11) (advising the IEP team to consider whether the student,
who had perceived conflicts with certain peers and did not have many
friends, had social and emotional needs warranting additional assessment
and intervention); and San Diego Unified Sch. Dist., 9 ECLPR 16
(SEA CA 2011) (finding that, although there was no evidence establishing
that the student's peers bullied him, the student's social and emotional
issues contributed to adverse attention by his peers).
- Bullying
by a student with a disability may also require a reevaluation of the
bully or a manifestation determination review prior to a significant
change of placement. School Bd. of the City of Norfolk v. Brown, 56
IDELR 18 (E.D. Va. 2010); and Barnstable Pub. Schs., 111 LRP 48728
(SEA MA 07/12/11). See also SmartStart:
Students with Disabilities who Bully.
REMEDIES
- Parents
seeking relief based on bullying that leads to a denial of FAPE are often
seeking reimbursement for private school tuition. In T.K. and S.K. v.
New York City Department of Education, 63 IDELR 256 (E.D.N.Y. 2014), aff'd,
67 IDELR 1 (2d Cir. 2016), the 2d Circuit awarded tuition reimbursement
where the refusal to discuss the parents' reasonable concerns about the
effect of bulling on their daughter's ability to learn during the
student's IEP meetings amounted to a procedural denial of FAPE.
- At
least one hearing officer has required compensatory education to make up
for a district's failure to evaluate a student who was bullied or who
perceived himself as being bullied. See Rose Tree Media Sch. Dist.,
111 LRP 6194 (SEA PA 12/05/10) (determining that the district failed to
evaluate the student although the student's behaviors appeared to be
making him a target for bullies).
Links
Additional Resources
Additional
resources on this topic are available for purchase from LRP Publications:
Please
share your experience and expertise. Forward any suggested additions or changes
to this or other SmartStarts to SmartStarteditor@lrp.com.
Last updated:
September 13, 2023