Published Autism Asperger’s Digest, March/April 2014
No Child Left Behind (NCLB)
NCLB does not reference bullying or harassment.
Office for Civil Rights (OCR)
The function of the Office for Civil Rights, under Section 504, of the Rehabilitation Act of 1973, as amended, is to protect individuals from acts of discrimination against certain groups. This is carried out through a complaint procedure, where a formal complaint of discrimination is filed with the OCR and if “sufficient information” is determined to exist by the OCR, a formal investigation is conducted.
On October 26, 2010, the Office for Civil Rights sent a “Dear Colleague” letter to the states to clarify the agency’s regulatory authority over key issues of harassment.
… Section 504 of the Rehabilitation Act of 1973 (Section 504); and Title II of the Americans with Disabilities Act of 1990 (Title II). Section 504 and Title II prohibit discrimination on the basis of disability. School districts may violate these civil rights statutes and the Department’s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.
Bullying falls within the context of OCR’s charge under “harassment” of children with disabilities.
If there is dissatisfaction with the school authorities carrying out reasonable school polices, or if the policies are discriminatory, parents or students who are at least 18, may file a complaint with OCR.
Individuals with Disabilities Education Act (IDEA, 20 U.S.C. § 1400)
The Office of Special Education Programs (OSEP), issued a “Dear Colleague” letter on August 20, 2013, stating in part:
In order for a student to receive FAPE [Free and Appropriate Public Education], the student’s individualized education program (IEP) must be reasonably calculated to provide meaningful educational benefit… and in the LRE [Least Restrictive Environment §300.114(a)(2)]…
As discussed in this letter, and consistent with prior published Dear Colleague Letters, bullying of a student with a disability resulting in the student not receiving “meaningful educational benefit” established a denial of a free appropriate public education (FAPE) under IDEA requiring remedy.
“Denial of FAPE” has a very broad meaning, however, it generally means that if some action or lack of action, i.e., bullying, leads to impeding or preventing the child with disabilities’ an opportunity to be educated, i.e., “receive benefit,” from education, then the offending school may be held accountable under the regulations of IDEA. The letter further states that
…any bullying of a student with a disability that results in the student not receiving meaningful educational benefit from the special education and related services provided by the school is a denial of FAPE. A student must feel safe in school in order to fulfill his or her full academic potential.
(Note: The terms “feeling safe” and “full academic potential” are not found in IDEA and should not be construed to be codified in the law.)
Remedies under IDEA may be executed through five avenues.
- Inform the school of the issue.
- Request an IEP meeting to determine if the learning environment in which the bullying occurred necessitates a change to ensure the child benefits from the IEP.
However, if satisfaction is not obtained, parents may
- Lodge a complaint to the district for an administrative review (if that process is a district policy) or
- Forward a complaint to the state or
- Request a due process hearing from the state.
Each of options requires a detailed written statement of the issues and action(s) taken on the part of the child, parent, and school preceding the submission of the complaint.
As noted earlier, a complaint may be also be made to the Office for Civil Rights.
WHAT THIS REALLY MEANS
So what does this really mean to a parent with a child who is being bullied?
OCR uses the words “harassment” and “hostile environment” to define the effects of bullying against children with disabilities. Therefore be certain to use the words “harassment,” “hostile environment” and “child with disability” in OCR complaints.
IDEA uses the acronym FAPE, meaning that, if the child’s ability to “benefit” from the educational program is hampered or denied, FAPE is not being provide and needs to be referenced in a complaint under IDEA.
- send a complaint to OCR or an administrative complaint to the district or state or request a due process until after meeting with school staff to explain your understanding of the bullying offenses and to give staff the opportunity to correct the problem
- approach the offending child’s parent. This is to avoid any interactions under conditions that are not conducive to mediation and where you and your child’s rights are not protected.
- Describe to offense to the school using words that will help them to visualize the offense noting:
- the bully’s name(s).
- the location(s) where the offense occurred,
- witnesses of each occurrence and
- any actions your child took in response to the bullying
(Remember: A condition of bullying is that it has occurred more than once, so make certain you explain each offense.)
State explicitly the emotional, social, physical and educational effects bullying has had on your child. Explaining the educational effects of the bullying will ensure that you are addressing IDEA and OCR should you pursue either legally.
You must give the school the opportunity to resolve the situation. Note in your complaint what you have done to address the problem with the school system and the school’s response. Document all correspondences, summarizing all meetings and conversations with school personnel.
THE IEP MEETING
You may request an IEP meeting after you inform the school of the bullying behavior. The team is to review the IEP services and settings to ensure that FAPE is protected. (Alerting the school of the bullying and calling for an IEP meeting simultaneously may cause the school to unknowingly take more than one direction on the investigation.) You will want on record either or both requests to ensure you have acted in accordance with IDEA. You can always withdraw the request for an IEP meeting, should the issue be resolved prior to the IEP meeting. Doing so documents those steps taken in accordance with the requirements of OCR and IDEA.
JUST TO BE SURE
In most cases the school will intervene when they become aware of bullying actions taken against a child. Although no federal legislation addresses bullying, there are approaches to take where the school fails to rectify bullying.
Whether you pursue a complaint with OCR, an administrative complaint under IDEA, or request a due process, you need to document:
- all details of the incident as your child tells you,
- what you tell the school,
- their response, and
- any actions taken or not taken by school staff.
- records of correspondences, meeting summaries or calls with school officials
Do not take offense if staff respond with corrections to what you write. Take note in writing where you agree and disagree and forward that to the school. Remain focused on the facts avoiding emotions of conflict to become the issue.
Having organized records of interactions will make the respective agency’s job easier in determining the issues and steps to be taken for resolution.