The U.S. Department of Education Continues Its War on Bullying - “Dear Colleague” Letter Focuses on Protecting Students with Disabilities

by Best Best & Krieger LLP
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A school district’s failure to properly address bullying of students with disabilities could result in a denial of a free appropriate public education (FAPE) for those students. This is the message clearly conveyed to school districts in an August “Dear Colleague” letter issued by the United States Department of Education’s Office of Special Education and Rehabilitative Services (OSERS).

In the letter, OSERS reminds school districts that students with disabilities are disproportionately affected by bullying. If bullying or harassment results in the student not receiving meaningful educational benefit, it may constitute a denial of a FAPE under the Individuals with Disabilities Act (IDEA). Furthermore, in situations involving a student who has not previously been identified as a child with a disability, “bullying may also trigger a school’s child find obligations under the IDEA.” It is also important to note that, even if the bullying is unrelated to the student’s disability, if it results in the student not receiving meaningful educational benefit, it constitutes a denial of FAPE that must be remedied.

The OSERS letter included a document entitled “Effective Evidence-based Practices for Preventing and Addressing Bullying” which provides school districts with strategies and resources to effectively prevent and respond to bullying.

The “Dear Colleague” letter is one of a series of efforts by the U.S. Department of Education to combat bullying in the schools. In addition to holding annual anti-bullying summits and launching its StopBullying.gov website, in June of this year, U.S. Secretary of Education Arne Duncan produced a video: “It Gets Better” which addresses bullying based on sexual orientation.

At the state level, California education officials may be ramping up their efforts in this area as well. The California State Auditor, in an extensive report entitled School Safety and Nondiscrimination Laws, concluded that improvement is needed at both the State and local levels to address bullying, harassment and discrimination in the schools. The August 2013 audit report was requested by the Joint Legislative Audit Committee and focused on the implementation of nondiscrimination laws and programs by both local educational agencies (LEAs) and the California Department of Education (CDE).

In the report, the State Auditor concluded that, while most LEAs had the required policies in place, they did not evaluate the effectiveness of their anti-bullying and nondiscrimination program. Some LEAs also did not meet the required timeline for completing an investigation, failed to maintain adequate documentation of complaints, or otherwise failed to effectively implement their bullying prevention and response programs. The report also recommended that CDE exercise stronger leadership, provide more current resources for school districts, and improve its response time to complaints. A fact sheet related to the report can be viewed here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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