Chapter 13 

PROTECTION AGAINST DISABILITY-BASED HARASSMENT, SECLUSION, AND RESTRAINT

What this Chapter is About
This chapter explains the rights of students with disabilities facing harassment because of their disabilities by peers or staff in school.  It outlines the steps to take to address the problem and what to do if the school district fails to act.
Advocacy Hints for Chapter 13
* Keep written records about any incidents, including date, time, and any other students or staff involved (Page 4).
* Send your letters to all the people in charge -- the school principal, the Special Education Director, the Superintendent of schools, and the Director of the Intermediate School District (Page 4).
* If nothing is done or the steps taken are inadequate, draft a second letter outlining the need for immediate action and the school’s failure to act and suggest that other legal strategies will be pursued if action is not taken immediately to end the harassment (Page 5).

* File an administrative complaint with the United States Department of Education Office for Civil Rights (OCR) under Section 504 of the Rehabilitation Act or with the Michigan Department of Education (Page 5).

* Use the Michigan Department of Education Policy on Bullying and your school’s code of conduct to set a high standard of conduct for schools (Page 6).
Who is Responsible?
Schools must respond when a person is harassed because of race, gender, disability, or other discriminatory reasons.  Schools can be sued, can be forced to act and can also be liable for damages if, after finding out that a person is being harassed, they do nothing.  Parents, guardians, or students may also file administrative complaints under Federal laws.  The harassment must be severe and pervasive, or must create a hostile environment, and it must hurt, limit or deny the student’s ability to learn or benefit from school.
How Do I File a Complaint?
To raise a harassment claim, a parent, guardian, or student must tell a person with authority to address the problem about the situation in writing.  The written notice must also provide a time frame for solving the problem.  The written letter would serve as notice of the existence of a problem and the need for immediate action by school staff.  If the district then fails to take sufficient steps to fix the problem, then the parent, guardian and/or student should follow up with another letter to 

officials in charge outlining their failure to act.  These letters document a school’s “deliberate indifference” to a harassment situation.
What are the State of Michigan Policies?
Michigan has a policy on bullying that schools are encouraged to follow.  In addition, many schools have their own codes of conduct prohibiting bullying.  A parent, guardian, or student may also ask schools to follow these policies to help keep students with disabilities safe.
Michigan also has state laws restricting the use of seclusion and restraint to emergency situations posing an imminent danger of harm to self or others. The new laws ban certain types of seclusion and restraint and also bans the use of aversive interventions against students. Schools must notify parents, train staff, and report use.
What the Law Says About Harassment
Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (see Chapter 16) prohibit harassment based on disability.  Similarly, Title VI of the 1964 Civil Rights Act and Title IX of the 1972 Education Amendments bar discrimination based on race or gender in federally funded programs. The principles guiding sexual and race harassment cases shed light on what steps must be taken to remedy harassment on the basis of disability (either by another student or a school official) and what legal strategies or action can be taken when the school district fails to address the violations.
Section 504 states that “no person in the United States shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance". Section 504 prohibits harassment that constitutes discrimination in any program or activity solely based on disability if the school receives federal financial assistance.   
Anti-Discrimination Statutes
When does harassment of a student with a disability rise to the level of discrimination? The United States Supreme Court has found that Title IX prohibits both student on student and teacher on student harassment in public school districts.  In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the mother of a fifth grade student alleged that the school board and school officials were deliberately indifferent to the sexual harassment her daughter was subjected to by a fifth grade classmate.  The student and the mother complained to teachers and the principal about the sexual harassment occurring by the fellow student on school grounds.  The Court concluded that a school district can be held liable for a private action for damages when the school district, after having received actual notice of the harassment, is deliberately indifferent to the harassment that is so severe, pervasive and objectively offensive that it can be said to deny the victims of the harassment “access to the educational opportunities or benefits provided by the school.”
Similarly, in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Court  concluded that a school district could be held liable for a private suit for money damages when the school district has actual notice of a teacher’s sexual harassment and the district’s response to the discrimination amounted to deliberate indifference.   The Court stated that the actual notice has to 

be provided to an official with authority to take corrective action to end the discrimination.
These cases have been applied to situations of harassment of a student with a disability by either another student or a teacher.  See, e.g., M.P. v. Indep. School District No. 1, 326 F.3d 975 (8th Cir. 2003); K.M. v. Hyde Park Central School Dist., 381 F. Supp. 2d 343 (S.D.N.Y. 2005); Biggs v. Board of Education, 229 F.Supp.2d 437 (D.Md. 2002). 
In Michigan, the federal courts have said that to prove discrimination based on harassment, the student must show the following:
1. the student was subjected to significant or serious harassment by a school employee or another student;
2. the school board had notice of the harassment, which can be by constructive notice (through its staff);
3. the school was deliberately indifferent to the harassment and therefore gave tacit approval to the harassment; and, 
4. the indifference of the school board was the cause of the discrimination against the student with a disability.  
William ex rel. Hart v. Paint Valley Local School Dist., 400 F.3d 360, 369 (6th Cir. 2005).  Deliberate indifference can be shown if the school’s response was clearly unreasonable in light of the circumstances.  For example, if the school takes some remedial action such as counseling a staff member, and that action is inadequate and ineffective in stopping the harassment, the school must use different methods to eliminate the harassment.  Vance v. Spencer Co. Public School Dist., 231 F.3d 253, 260-61 (6th Cir. 2000).   In contrast, a school district may not be deliberately indifferent if it investigates any incidents reported to its staff, provides increased supervision, and provides counseling to students on how to behave. Soper v. Hoben, 195 F.3d 845, 855 (6th Cir. 1999).
Parents may be able to take advantage of the federal prohibitions against harassment as well.  The Supreme Court decided in Jackson v. Birmingham Bd. of Educ., that a coach was protected against retaliation after he complained of sex discrimination against students.  125 S.Ct. 1497 (2005).  The court determined that Title IX prohibits retaliation for making such a complaint, even if the complainant is not the victim of the discrimination.  Thus, parents who face retaliation because they complained about harassment of their child may also be protected under Title II of the ADA and Section 504.
Harassment and the 2004 IDEA Amendments
In addition to protections under the ADA and Section 504, a student may be able to 
address harassment under Individuals with Disabilities Act (IDEA).  Harassment may rise to the level of denying the student a free and appropriate public education (FAPE) that provides educational benefit to the student.  Following the reasoning in Davis, indifference of staff to severe harassment could prevent the student from deriving benefit from the services he or she is being offered by the district.  See M.L. v. Federal Way School Dist., 394 F.3d 634, 650-51 (9th Cir. 2005).  (See Chapter 2 for a full description of FAPE.) To show a denial of FAPE, the student must establish that the 

harassment affected his or her ability to learn.  If the harassment did not prevent a student from getting educational benefit, he or she has no claim under IDEA.  See, e.g., In re: Student with a Disability, 44 IDELR 86 (SEA WA 2005).  The student may also need to give the school an opportunity to prevent the harassment from continuing. Id This is a factual question that will need to be proven by the student based on the actual effect of the harassment on him or her. 
How do I Address Disability-Based Harassment?
Schools are responsible only for stopping harassment that is “severe, pervasive, and persistent.”  In addition, parents, guardians, or students with disabilities must give actual notice to someone with authority to stop the harassment.
Advocacy Hint:  You need records.  Keep written records about any incidents, including date, time, and any other students or staff involved.  This information may be critical when you write your letters to the school.  
Severe, Pervasive, and Persistent:  Harassment depends on many factors, such as the ages of the harasser and victim, the number of people involved, the conduct of the harasser(s), how often harassment occurs and for how long, and where it occurs.  Damages are not available for simple acts of teasing and name calling among students even when these comments might target differences in gender, race, or disability.  The behavior has to be severe, pervasive, and objectively offensive.
Actual Notice:  To make a harassment claim, actual notice must be given to someone with authority to take corrective action.  It is not enough to say the school district should have known or that some employee in the building knew what was occurring.  The notice of harassment must be provided to a school official with the authority to address it and to institute corrective measures on the school district’s behalf.   We strongly encourage you to provide written notice to those officials. 
Advocacy Hint:  Send your letters to ALL of the people in charge.  MPAS strongly urges parents and students to provide written notice to the school principal, the Special Education Director, the Superintendent of Schools and the Director of the Intermediate School District.
Suggested content of first letter:
* Name of student and school.

* Description of the incident(s), including:
o Where it took place.
o Who was involved.
o When it happened.
o How long it has been going on.

* Request that action be taken by a specific date.

School’s Response to Notice:  Harassment can rise to the level of a complaint or lawsuit when the school district is deliberately indifferent to the harassment after having received actual notice.  Deliberate indifference can be shown by 1) the school district officially deciding not to correct the problem or 2) only taking corrective measures that are ineffective and failing to take other effective measures to stop the harassment.  The school district’s ability to remedy a violation requires the harassment to occur in an arena where it has substantial control over the harasser, that is, on school grounds and during school hours.
Advocacy Hint:  Follow up.  If nothing is done or the steps taken are inadequate, draft a second letter outlining the school’s failure to act and suggest that legal action will follow if something is not done immediately to end the harassment.  This second letter not only gives the school additional notice to solve the problem, but also documents its failure to do so if that is the case.
Policies on Bullying
On July 25, 2000, the U.S. Department of Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) issued a letter on disability harassment in schools.  Applying Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA), the letter stated that harassing conduct engaged in by school staff or peers could amount to violation of rights when the harassing conduct is sufficiently severe, persistent, or pervasive enough to create a hostile environment thereby affecting the student’s ability to participate in or benefit from educational programs or activities.  The letter also warned that harassment on the basis of a student’s disability could amount to a violation of IDEA if it decreases the student’s ability to benefit from the educational program, resulting in the denial of FAPE.  OCR and OSERS have since updated their letters. The OCR letter, dated 2014, builds on the OSERS guidance letter from 2013.  It explains that bullying of students with a disability on any basis can similarly result in a denial of FAPE under Section 504. See appendix 13-1,13-2,13-3 for a copy of the OCR/OSERS letters.
Advocacy Hint:  Let OCR or the state investigate.  You can file an administrative complaint with the United States Department of Education Office of Civil Rights (OCR) under Section 504 of the Rehabilitation Act and the ADA to allege deliberate indifference to the harassment.  You can also file a complaint with the Michigan Department of Education if you feel that the harassment is denying the student a free and appropriate public education under IDEA. (See Chapter 8.)

The Michigan State Board of Education has instituted a policy on bullying.  Find it at:
http://www.michigan.gov/documents/mde/SBE_Model_AntiBullying_Policy_Revised_9.8_172355_7.pdf.  
Many schools have anti-harassment policies or anti-bullying policies in their codes of conduct. You should ask for these materials when considering any harassment claim, as the school’s failure to follow its own policies may bolster such a claim.

?Advocacy Hint:  Set a high standard.  Use the Michigan Department of Education Policy on Bullying to set a high standard of conduct for schools.  The school’s own policy may also require the school to do more than it is doing. 
Seclusion, Restraint, and Aversive Interventions
In 2016, the Michigan Legislature adopted new laws aimed at reducing and eliminating the use of seclusion, restraint, and aversive interventions in schools. MCL 380.1307-1307h. The Michigan State Board of Education updated its policy in March 2017 to conform to the new law. http://www.michigan.gov/documents/mde/PolicyForSeclusion-Restraint_564940_7.pdf. In September 2017, the Michigan Department of Education (MDE) issued a set of frequently asked questions and answers to provide guidance to districts and parents on the new law.  http://www.michigan.gov/documents/mde/EmergencySeclusionRestraintFAQ_599229_7.pdf. Local districts must have policies that apply to all students and incorporate the elements in the law beginning in the 2017-18 school year. MCL 380.1307a.
Here are some of the highlights of the new state law:
* The law limits the use of physical restraint and seclusion to narrowly-defined emergency circumstances when there is an imminent danger of physical harm to self or others requiring an immediate, time-limited intervention. MCL 380.1307c. All other forms of seclusion or physical restraint are not allowed. Some brief actions (breaking up a fight, stopping an impulsive act, taking away a weapon, participating in a sporting event, preventing an immediate physical assault, etc.) are not within the definition of restraint and therefore not restricted, to the extent that they are an immediate response to an instantaneous circumstance.
* Use of emergency physical restraint or emergency seclusion is time-limited, Emergency seclusion should not be used any longer than necessary, to the point that the emergency situation is ended. Emergency seclusion should be used no longer than 15 minutes for an elementary school pupil or 20 minutes for a middle school or high school pupil. Emergency physical restraint should be used no longer than 10 minutes for any pupil. Use of either beyond the timelines requires additional staff support and documentation justifying the extended time. MCL 380.1307c.

* School staff must call key identified personnel for help immediately when an emergency situation presents itself. MCL 380.1307c.
* Emergency seclusion and emergency physical restraint may not be used in place of appropriate less restrictive interventions. MCL 380.1307c. Emergency seclusion or emergency physical restraint may not be used as a planned response for the convenience of school personnel, as discipline or punishment, or as a substitute for an appropriate educational program. MCL 380.1307e.
* Emergency seclusion and emergency physical restraint shall be performed in a manner that, based on research and evidence, is safe, appropriate, and proportionate to and sensitive to the pupil's severity of behavior, chronological and developmental age, physical size, gender, physical condition, medical condition, psychiatric condition, and personal history, including any history of physical or sexual abuse or other trauma. MCL 380.1307c.
* Use of restraint or seclusion must not interfere with the student’s ability to communicate in his or her primary mode of communication. MCL 380.1307c.
* Several specific practices are outlawed, including corporal punishment, deprivation of basic needs, child abuse, intentional application of any noxious substance or stimulus that results in physical pain or extreme discomfort, chemical restraint, any restraint that negatively impacts breathing, and prone restraint. MCL 380.1307b.
* Mechanical restraint is also prohibited. Mechanical restraint does not include administration of prescribed medication, use of prescribed adaptive or protective devices, or use of safety equipment when used as intended for the general student population. MCL 380.1307h.
* Recurring use of emergency seclusion or emergency physical restraint should prompt debriefing, behavior support planning and emergency intervention/safety planning. MCL 380.1307e.
* School staff must continually observe and document observations during any use of restraint or seclusion. MCL 380.1307c. Any use of restraint or seclusion must be reported to parents and recorded through data collection to the school and state. MCL 380.1307d, 1307f.
* Schools must train staff on general awareness and key identified personnel in several areas related to reducing and preventing the use of restraint and seclusion. MCL 380.1307g.

The Michigan law, policy, and guidance is supplemented by two federal resource documents on the use of seclusion and restraint against students with disabilities:
* U.S. Department of Education, Office for Civil Rights (OCR) Dear Colleague letter, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201612-504-restraint-seclusion-ps.pdf. 
* U.S. Department of Education, Office for Special Education Policy (OSEP) resource document, https://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf.


Appendix 13-1
  
Joint OCR/OSERS Letter
UNITED STATES DEPARTMENT OF EDUCATION
WASHINGTON, D.C. 20202

July 25, 2000
Dear Colleague:


On behalf of the Office for Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) in the U.S. Department of Education, we are writing to you about a vital issue that affects students in school – harassment based on disability.  Our purpose in writing is to develop greater awareness of this issue, to remind interested persons of the legal and educational responsibilities that institutions have to prevent and appropriately respond to disability harassment, and to suggest measures that school officials should take to address this very serious problem.   This letter is not an exhaustive legal analysis.  Rather, it is intended to provide a useful overview of the existing legal and educational principles related to this important issue. 

Why Disability Harassment Is Such an Important Issue

Through a variety of sources, both OCR and OSERS have become aware of concerns about disability harassment in elementary and secondary schools and colleges and universities.   In a series of conference calls with OSERS staff, for example, parents, disabled persons, and advocates for students with disabilities raised disability harassment as an issue that was very important to them.  OCR's complaint workload has reflected a steady pace of allegations regarding this issue, while the number of court cases involving allegations of disability harassment has risen.  OCR and OSERS recently conducted a joint focus group where we heard about the often devastating effects on students of disability harassment that ranged from abusive jokes, crude name-calling, threats, and bullying, to sexual and physical assault by teachers and other students.   

We take these concerns very seriously.  Disability harassment can have a profound impact on students, raise safety concerns, and erode efforts to ensure that students with disabilities have equal access to the myriad benefits that an education offers.  Indeed, harassment can seriously interfere with the ability of students with disabilities to receive the education critical to their advancement.  We are committed to doing all that we can to help prevent and respond to disability harassment and lessen the harm of any harassing conduct that has occurred.  We seek your support in a joint effort to address this critical issue and to promote such efforts among educators who deal with students daily.

What Laws Apply to Disability Harassment  

Schools, colleges, universities, and other educational institutions have a responsibility to ensure equal educational opportunities for all students, including students with disabilities.  This responsibility is based on Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II), which are enforced by OCR.  Section 504 



covers all schools, school districts, and colleges and universities receiving federal funds.1  Title II covers all state and local entities, including school districts and public institutions of higher education, whether or not they receive federal funds.2  Disability harassment is a form of discrimination prohibited by Section 504 and Title II.3  Both Section 504 and Title II provide parents and students with grievance procedures and due process remedies at the local level.  Individuals and organizations also may file complaints with OCR. 

States and school districts also have a responsibility under Section 504, Title II, and the Individuals with Disabilities Education Act (IDEA),4 which is enforced by OSERS, to ensure that a free appropriate public education (FAPE) is made available to eligible  students with disabilities.  Disability harassment may result in a denial of FAPE under these statutes.  Parents may initiate administrative due process procedures under IDEA, Section 504, or Title II to address a denial of FAPE, including a denial that results from disability harassment.  Individuals and organizations also may file complaints with OCR, alleging a denial of FAPE that results from disability harassment.  In addition, an individual or organization may file a complaint alleging a violation of IDEA under separate procedures with the state educational agency.5  State compliance with IDEA, including compliance with FAPE requirements, is monitored by OSERS’ Office of Special Education Programs (OSEP).

Harassing conduct also may violate state and local civil rights, child abuse, and criminal laws.  Some of these laws may impose obligations on educational institutions to contact or coordinate with state or local agencies or police with respect to disability harassment in some cases; failure to follow appropriate procedures under these laws could result in action against an educational institution.  Many states and educational institutions also have addressed disability harassment in their general anti-harassment policies.6 




Disability Harassment May Deny a Student an Equal Opportunity to Education under Section 504 or Title II

Disability harassment under Section 504 and Title II is intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student’s participation in or receipt of benefits, services, or opportunities in the institution’s program.  Harassing conduct may take many forms, including verbal acts and name-calling, as well as nonverbal behavior, such as graphic and written statements, or conduct that is physically threatening, harmful, or humiliating.  

When harassing conduct is sufficiently severe, persistent, or pervasive that it creates a hostile environment, it can violate a student's rights under the Section 504 and Title II regulations.  A hostile environment may exist even if there are no tangible effects on the student where the harassment is serious enough to adversely affect the student's ability to participate in or benefit from the educational program.  Examples of harassment that could create a hostile environment follow.

•	Several students continually remark out loud to other students during class that a student with dyslexia is "retarded" or "deaf and dumb" and does not belong in the class; as a result, the harassed student has difficulty doing work in class and her grades decline.

• 	A student repeatedly places classroom furniture or other objects in the path of classmates who use wheelchairs, impeding the classmates' ability to enter the classroom.  

•	A teacher subjects a student to inappropriate physical restraint because of conduct related to his disability, with the result that the student tries to avoid school through increased absences.7

• 	A school administrator repeatedly denies a student with a disability access to lunch, field trips, assemblies, and extracurricular activities as punishment for taking time off from school for required services related to the student's disability. 

•	A professor repeatedly belittles and criticizes a student with a disability for using accommodations in class, with the result that the student is so discouraged that she has great difficulty performing in class and learning.
•	Students continually taunt or belittle a student with mental retardation by mocking and intimidating him so he does not participate in class.  

When disability harassment limits or denies a student's ability to participate in or benefit from an educational institution's programs or activities, the institution must respond effectively.  Where the institution learns that disability harassment may have occurred, the institution must investigate the incident(s) promptly and respond appropriately.  

	Disability Harassment Also May Deny a Free Appropriate Public Education
Disability harassment that adversely affects an elementary or secondary student’s education may also be a denial of FAPE under the IDEA, as well as Section 504 and Title II.  The IDEA was enacted to ensure that recipients of IDEA funds make available to students with disabilities the appropriate special education and related services that enable them to access and benefit from public education.  The specific services to be provided a student with a disability are set forth in the student’s individualized education program (IEP), which is developed by a team that includes the student’s parents, teachers and, where appropriate, the student.  Harassment of a student based on disability may decrease the student’s ability to benefit from his or her education and amount to a denial of FAPE.  
How to Prevent and Respond to Disability Harassment
Schools, school districts, colleges, and universities have a legal responsibility to prevent and respond to disability harassment.  As a fundamental step, educational institutions must develop and disseminate an official policy statement prohibiting discrimination based on disability and must establish grievance procedures that can be used to address disability harassment.8  A clear policy serves a preventive purpose by notifying students and staff that disability harassment is unacceptable, violates federal law, and will result in disciplinary action.  The responsibility to respond to disability harassment, when it does occur, includes taking prompt and effective action to end the harassment and prevent it from recurring and, where appropriate, remedying the effects on the student who was harassed.
The following measures are ways to both prevent and eliminate harassment:

•	Creating a campus environment that is aware of disability concerns and sensitive to disability harassment; weaving these issues into the curriculum or programs outside the classroom.
•	Encouraging parents, students, employees, and community members to discuss disability harassment and to report it when they become aware of it.
         
•	Widely publicizing anti-harassment statements and procedures for handling discrimination complaints, because this information makes students and employees aware of what constitutes harassment, that such conduct is prohibited, that the institution will not tolerate such behavior, and that effective action, including disciplinary action, where appropriate, will be taken. 

•	Providing appropriate, up-to-date, and timely training for staff and students to recognize and handle potential harassment.
•	Counseling both person(s) who have been harmed by harassment and person(s) who have been responsible for the harassment of others.
•	Implementing monitoring programs to follow up on resolved issues of disability harassment.
•	Regularly assessing and, as appropriate, modifying existing disability harassment policies and procedures for addressing the issue, to ensure effectiveness. 

Technical Assistance Is Available

U.S. Secretary of Education Richard Riley has emphasized the importance of ensuring that schools are safe and free of harassment.  Students cannot learn in an atmosphere of fear, intimidation, or ridicule.  For students with disabilities, harassment can inflict severe harm.  Teachers and administrators must take emphatic action to ensure that these students are able to learn in an atmosphere free from harassment.  

Disability harassment is preventable and cannot be tolerated.  Schools, colleges, and universities should address the issue of disability harassment not just when but before incidents occur.  As noted above, awareness can be an important element in preventing harassment in the first place.  

The Department of Education is committed to working with schools, parents, disability advocacy organizations, and other interested parties to ensure that no student is ever subjected to such conduct, and that where such conduct occurs, prompt and effective action is taken.  For more information, you may contact OCR or OSEP through 1-800-USA-LEARN or 1-800-437-0833 for TTY services.  You also may directly contact one of the OCR enforcement offices listed on the enclosure or OSEP, by calling (202) 205-5507 or (202) 205-5465 for TTY services. 

Thank you for your attention to this serious matter.
      
      Norma V. Cantu   					 Judith E.  Heumann,
      Assistant Secretary for				 Assistant Secretary 
      Civil Rights						 Office of Special Education
      							 and Rehabilitative Services




Appendix 13-2

UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
AUG 2 0 2013
Dear Colleague:
The U.S. Department of Education's Office of Special Education and Rehabilitative Services (OSERS) is committed to working with States to ensure that school districts provide all children with positive, safe, and nurturing school environments in which they can learn, develop, and participate. OSERS is issuing this letter to provide an overview of a school district's responsibilities under the Individuals with Disabilities Education Act (IDEA) to address bullying of students with disabilities. 1

As discussed in this letter, and consistent with prior Dear Colleague Letters the Department has published, bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of a free appropriate public education (FAPE) under the IDEA that must be remedied.2 However, even when situations do not rise to a level that constitutes a denial of FAPE, bullying can undermine a student's ability to achieve his or her full academic potential. Attached to this letter are specific strategies that school districts and schools3 can implement to effectively prevent and respond to bullying, and resources for obtaining additional information.

Bullying of any student by another student, for any reason, cannot be tolerated in our schools.4 Bullying is no longer dismissed as an ordinary part of growing up, and every effort should be made to structure environments and provide supports to students and staff so that bullying does not occur.  Teachers and adults should respond quickly and consistently to bullying behavior and



1 This Jetter is intended to supplement the July 25, 2000, joint Dear Colleague Letter from OSERS and the Department's Office for Civil Rights (OCR), which addressed disability harassment under Section 504 of the Rehabilitation  Act of 1973 (Section 504), Title lI of the Americans with Disabilities Act of 1990 (Title II of the ADA), and the IDEA (available at: http://www.ed.gov/ocr/docs/disabharassltr.  html).
2 Some bullying of students with disabilities may also constitute discriminatory harassment and trigger additional responsibilities under the civil rights laws that OCR enforces, including Section 504, Title II of the ADA, Title VI of the Civil Rights Act of 1964, and Title lX of the Education Amendments of 1972. Sec OCR's October 26, 2010, Dear Colleague Letter on Harassment and Bullying (available at: http://www.ed.gov/ocr/letters/colleague-20 IOIO.html).
3 In the context of this letter "school" includes public preschools; elementary, middle, and high schools; and pub Iic agencies, including the State Educational  Agency (SEA), Educational  Service Agencies (ESA), Local Educational Agencies (LEA), nonprofit public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to children with disabilities . See 34 C.F.R. §300.33.
4 Although the focus of this letter is peer-to-peer bullying, it is important to acknowledge that it is also intolerable for teachers and school staff to be party to school bullying and disability harassment (i.e., being active participants in bullying), or observers to school bullying without taking action to address the behavior. While teacher-student disability harassment also may constitute a denial of FAPE, those issues are beyond the scope of this letter. We recommend that States and school districts consult with legal counsel regarding their responsibilities and duties in cases of bullying that involve school personnel, including taking the matter seriously, and promptly addressing any problematic behaviors.



send a message that bullying is not acceptable. Intervening immediately to stop bullying on the spot can help ensure a safer school environment.
Bullying is characterized by aggression used within a relationship where the aggressor(s) has more real or perceived power than the target, and the aggression is repeated, or has the potential to be repeated, over time.  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 e-mails, rumors or embarrassing photos posted on social networking sites, or fake online profiles.
Addressing and reporting bullying is critical.  Students who are targets of bullying behavior are more likely to experience lower academic achievement and aspirations, higher truancy rates, feelings of alienation from school, poor relationships with peers, loneliness, or depression.5
Bystanders, or those who only see or hear about bullying, also may be negatively affected as bullying tends to have harmful effects on overall school climate. Bullying can foster fear and disrespect and negatively affect the school experience, norms, and relationships of all students, families, and school personnel.6   The consequences may result in students changing their patterns of school participation or schools eliminating school activities (e.g., dances, sporting events) where bullying has occurred. Teachers, school personnel, parents, and students should report bullying when they become aware of it.
Students with disabilities are disproportionately affected by bullying.7   For example, students with learning disabilities, attention deficit or hyperactivity disorder, and autism are more likely to be bullied than their peers.8  Any number of factors -- physical characteristics, processing and social skills, or intolerant environments -- may increase the risk that students with disabilities will be bullied.   Due to the characteristics of their disabilities, students with intellectual, communication, processing, or emotional disabilities may not understand the extent to which bullying behaviors are harmful, or may be unable to make the situation known to an adult who can help. In circumstances involving a student who has not previously been identified as a child with a disability under the IDEA, bullying may also trigger a school's child find obligations under the IDEA.  34 C.F.R. §§300.111, 300.201.
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



5 Gini G., & Pozzoli T.(2009). Association between bullying and psychosomatic problems: A meta-analysis.
Pediatrics, 123(3):1059-1065.
6 O'Brennan, L. M., Bradshaw, C. P., & Sawyer, A. L. (2009). Examining developmental differences in the social­ emotional problems among frequent bullies, victim, and bully/victims. Psychology in the Schools, 46(2), 100-115.
7 Swearer, S. M., Wang, C., Maag, J. M., Siebecker, A., 8., & Frerichs, L. J. (2012). Understanding the bullying dynamic among students in special and general education. Journal of School Psychology, 50, 503-520.
8 Twyman, K. A., Saylor, C. F., Saia, D., Macias, M. M., Taylor, L. A., & Spratt, E.(20 I 0). Bullying and ostracism experiences in children with special health care needs. Journal of Developmental Behavioral Pediatrics, 3I , 1-8.


denial of FAPE under the IDEA that must be remedied.9   States and school districts have a responsibility under the IDEA, 20 U.S.C. § 1400, et seq., to ensure that FAPE in the least restrictive environment (LRE) is made available to eligible students with disabilities.  For a student to receive FAPE, the student's individualized education program (IEP) must be reasonably calculated to provide meaningful educational benefit. 10

Schools have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive FAPE in accordance with his or her IEP. 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 meaningful educational benefit. If the IEP is no longer designed to provide a meaningful educational benefit to the student, the IEP Team must then determine to what extent additional or different special education or related services are needed to address the student's individual needs; and revise the IEP accordingly. Additionally, parents have the right to request an IEP Team meeting at any time, and public agencies generally must grant a parental request for an IEP Team meeting where a student's needs may have changed as a result of bullying. The IDEA placement team (usually the same as the IEP Team) should exercise caution when considering a change in the placement or the location of services provided to the 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.  Moreover, schools may not attempt to resolve the 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 consistent with the IDEA provisions that address parental participation.

If the student who engaged in the bullying behavior is a student with a disability, the IEP Team should review the student's IEP to determine if additional supports and services are needed to address the inappropriate behavior.  In addition, the IEP Team and other school personnel should consider examining the environment in which the bullying occurred to determine if changes to the environment are warranted.

As discussed above, 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. We encourage States and school districts to alert Boards of Education, school administrators, teachers, and staff that bullying can result in a denial of FAPE



9 OCR also has authority to investigate complaints alleging denial of FAPE under Section 504 and Title II.    See the July 25, 2000, joint Dear Colleague Letter on Disability Harassment; (available at:
http://www.cd.gov/ocr/docs/disabharassltr.html); and OCR's October 26, 2010, Dear Colleague Letter on Harassment and Bullying (available at: http://www.ed.gov/ocr/letters/colleaguc-20  l01O.html).
10 See Hendrick Hudson Central Sch. Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 201 (1982).


for students with disabilities.  We also encourage States and school districts to reevaluate their policies and practices addressing problematic behaviors, including bullying, in light of the information provided in this letter, as well as in OSERS' July 25, 2000, joint Dear Colleague Letter and OCR's October 26, 2010, Dear Colleague Letter.  The enclosure to this letter, "Effective Evidence-based Practices for Preventing and Addressing Bullying," includes practices for use as part of any bullying prevention and intervention program to help ensure that school and classroom settings are positive, safe, and nurturing environments for all children and adults.

We look forward to continuing to work with you to ensure that students with disabilities have access to high-quality services in positive, safe, and respectful school environments.









Director

Sincerely,







s
Michael K. Yu in
Acting Assistant Secretary

Office of Special Education Programs



Enclosure:	Effective Evidence-based Practices for Preventing and Addressing Bullying











Appendix 13-3

UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS

THE ASSISTANT SECRETARY
October 21, 2014

Dear Colleague: 

While there is broad consensus that bullying is wrong and cannot be tolerated in our schools, the sad reality is that bullying persists in our schools today, and especially so for students with disabilities.1 In recent years, the Office for Civil Rights (OCR) in the U.S. Department of Education (Department) has received an ever-increasing number of complaints concerning the bullying of students with disabilities and the effects of that bullying on their education, including on the special education and related services to which they are entitled. This troubling trend highlights the importance of OCR’s continuing efforts to protect the rights of students with disabilities through the vigorous enforcement of Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II). It also underscores the need for schools to fully understand their legal obligations to address and prevent disability discrimination in our schools. 

Today’s guidance follows a long history of guidance issued by the Department in this critical area of disability discrimination. In 2000, OCR and the Office of Special Education and Rehabilitative Services (OSERS) issued joint guidance informing schools that disability-based harassment may deny a student equal educational opportunities under Section 504 and Title II.2 The 2000 guidance also noted the responsibilities of schools under Section 504 and the Individuals with Disabilities Education Act (IDEA) to ensure that students receive a free appropriate public education (FAPE), based on disability may adversely impact the school’s provision of FAPE to



				

1 These students are bullied or harassed more than their nondisabled peers. See Office of Special Education and Rehabilitative Services (OSERS) 2013 Dear Colleague Letter on Bullying of Students with Disabilities, http://www.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.doc, at page 2 (“Students with disabilities are disproportionately affected by bullying.”). That letter explains that, “[b]ullying 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 e-mails, rumors or embarrassing photos posted on social networking sites, or fake online profiles.” Id. Throughout this guidance, the terms “bullying” and “harassment” are used interchangeably to refer to these types of conduct. See Office for Civil Rights (OCR) 2010 Dear Colleague Letter on Harassment and Bullying, http://www.ed.gov/ocr/letters/colleague-201010.pdf, at page 3 (“The label used to describe an incident (e.g., bullying, hazing, teasing) does not determine how a school is obligated to respond. Rather, the nature of the conduct itself must be assessed for civil rights implications.”). 
2 OCR-OSERS 2000 Dear Colleague Letter: Prohibited Disability Harassment, http://www.ed.gov/ocr/docs/disabharassltr.html.








the student.3 In 2010, OCR issued a Dear Colleague Letter on Harassment and Bullying that provided further guidance concerning when a school’s inappropriate response to bullying or harassment of a student based on disability constitutes a disability-based harassment violation under Section 504 and Title II.4 In 2013, OSERS issued a Dear Colleague Letter on Bullying of Students with Disabilities that, in turn, provided additional guidance to schools that the bullying of a student with a disability on any basis can result in a denial of FAPE under IDEA that must be remedied.5 

Building on OSERS’s 2013 guidance, today’s guidance explains that the bullying of a student with a disability on any basis can similarly result in a denial of FAPE under Section 504 that must be remedied; it also reiterates schools’ obligations to address conduct that may constitute a disability-based harassment violation and explains that a school must also remedy the denial of FAPE resulting from disability-based harassment. Following an overview of the federal protections for students with disabilities in schools, the guidance elaborates on the elements of a disability-based harassment violation and a FAPE violation, discusses how OCR generally analyzes complaints involving bullying of students with disabilities on each of these bases, and then concludes with a series of hypothetical examples that illustrate varying circumstances when conduct may constitute both a disability-based harassment violation and FAPE violation, a FAPE violation, or neither. Although by no means exhaustive, in the context of this discussion, the guidance also offers some insight into what OCR might require of a school to remedy instances of bullying upon a finding of disability discrimination. OCR urges schools to consider these hypothetical resolution agreement provisions in proactively working to ensure a safe school environment, free from discrimination, for all students.6 

I. Overview of Federal Protections for Students with Disabilities in Schools 

OCR enforces Section 504 and Title II, both of which prohibit disability discrimination. Section 504 prohibits disability discrimination by recipients of Federal financial assistance.7 OCR enforces Section 504 against entities that receive Federal financial assistance from the Department, including all public schools and school districts as well as all public charter schools and magnet schools. Under Section 504, recipients that operate a public elementary or secondary education program must provide students with disabilities equal educational opportunities. Among other things, this means they must ensure that students with disabilities receive FAPE, defined as the provision of regular or special education and related aids and services that are designed to meet the individual educational needs of students with disabilities as adequately as the needs of  students without disabilities are met and that satisfy





				

3 The terms “school” and “school district” are used interchangeably in this letter and refer to public elementary and secondary schools that receive financial assistance from the Department. 
4 OCR 2010 Dear Colleague Letter on Harassment and Bullying, http://www.ed.gov/ocr/letters/colleague-201010.pdf. 
5 OSERS 2013 Dear Colleague Letter on Bullying of Students with Disabilities, http://www.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.doc. 
6 This guidance addresses only student-on-student bullying and harassment. Under Section 504 and Title II, students with disabilities are also protected from bullying by teachers, other school employees, and third parties. Such bullying can trigger a school’s obligation to address disability-based harassment, remedy a denial of FAPE, or both. See 34 C.F.R. §§ 104.4, 104.33; 28 C.F.R. pt. 35. OCR recommends that States and school districts consult with legal counsel regarding their responsibilities and duties in cases of bullying that involve school personnel. 
7 29 U.S.C. § 794; 34 C.F.R. pt. 104.



certain requirements concerning educational setting, evaluation, placement, and procedural safeguards.8 Schools also have an obligation under Section 504 to evaluate students who need or are believed to need special education or related services. Further, schools have an obligation to ensure that Section 504 FAPE services are provided in an educational setting with persons who do not have disabilities to the maximum extent appropriate to the needs of the student with a disability.9 Schools often document these services in written plans, sometimes referred to as Section 504 plans, or, if the child is receiving IDEA FAPE services, through the required individualized education program (IEP).10 

Title II prohibits disability discrimination by public entities, including all public schools and school districts, as well as all public charter schools and magnet schools, regardless of whether they receive Federal financial assistance.11 OCR, along with the U.S. Department of Justice (DOJ), enforces Title II in public elementary and secondary schools. Title II is generally construed to provide no less protection than Section 504. Therefore, violations of Section 504, including the failure to provide needed regular or special education and related aids and services to students with disabilities, also constitute violations of Title II.12 

IDEA is another key Federal law addressing the needs of students with disabilities. OSERS, not OCR or DOJ, administers IDEA.13 OCR, however, enforces the Section 504 and Title II rights of IDEA-eligible students.14 Under Part B of IDEA, the Department provides Federal funds to State educational agencies and through them to local educational agencies (school districts), to assist school districts in providing FAPE to eligible children with disabilities through the provision of special education and related services.15 School districts must ensure that IDEA FAPE services in the least restrictive environment are made available to all eligible children with disabilities through a properly developed IEP that provides a meaningful educational benefit to the student. In addition school districts must locate, identify, and evaluate children suspected of having disabilities who may need special education and related services. 



				

8 For Section 504 and Title II, the term “disability” means a physical or mental impairment that substantially limits one or more major life activities of an individual; a record of such an impairment; or being regarded as having such an impairment. 29 U.S.C. § 705(9)(B), (20)(B); 42 U.S.C. § 12102. The Americans with Disabilities Act Amendments Act (Amendments Act), Pub. Law No. 110-325, amended the disability definition for Section 504 and Title II. Most notably, the Amendments Act required that “disability” under these statutes be interpreted broadly. More information about the Amendments Act is available from OCR’s website at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201109.html and http://www.ed.gov/ocr/docs/dcl-504faq-201109.html. 
9 In this letter, the term “Section 504 FAPE services” is used to refer to the regular or special education and related aids and services provided to students with disabilities as specified in 34 C.F.R. § 104.33(b). The term “IDEA FAPE services” is used in this letter to refer to the special education and related services provided to students with disabilities that meet the requirements of 34 C.F.R. pt. 300, as specified in 34 C.F.R. §§ 300.17 (FAPE), 300.39 (special education), and 300.34 (related services). 
10 Students with disabilities who are IDEA-eligible also have rights under Section 504 and Title II. The Department’s Section 504 regulations provide that implementation of an IEP developed in accordance with IDEA is one means of providing Section 504 FAPE services. 34 C.F.R. § 104.33(b)(2). 
11 42 U.S.C. §§ 12131-12134; 28 C.F.R. pt. 35. 
12 42 U.S.C. § 12201(a). To the extent that Title II provides greater protection than Section 504, covered entities must comply with Title II’s requirements. 
13 For more information about OSERS, please visit http://www.ed.gov/osers. 
14 This letter only addresses Federal law; other State or local laws and policies may apply.  
15 20 U.S.C. §§ 1400-1419; 34 C.F.R. pt. 300. IDEA establishes 13 disability categories: autism, deaf-blindness, deafness, emotional disturbance, hearing impairment, intellectual disability, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment. 34 C.F.R. § 300.8(c). 



II. Schools’ Obligations to Address Disability-Based Harassment
 
Bullying of a student on the basis of his or her disability may result in a disability-based harassment violation under Section 504 and Title II.16 As explained in OCR’s 2010 Dear Colleague Letter on Harassment and Bullying, when a school knows or should know of bullying conduct based on a student’s disability, it must take immediate and appropriate action to investigate or otherwise determine what occurred.17 If a school’s investigation reveals that bullying based on disability created a hostile environment—i.e., the conduct was sufficiently serious to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school—the school must take prompt and effective steps reasonably calculated to end the bullying, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects. Therefore, OCR would find a disability-based harassment violation under Section 504 and Title II when: (1) a student is bullied based on a disability; (2) the bullying is sufficiently serious to create a hostile environment; (3) school officials know or should know about the bullying; and (4) the school does not respond appropriately.18
 
As explained in Section III, below, for the student with a disability who is receiving IDEA FAPE services or Section 504 FAPE services, a school’s investigation should include determining whether that student’s receipt of appropriate services may have been affected by the bullying.19 If the school’s investigation reveals that the bullying created a hostile environment and there is reason to believe that the student’s IDEA FAPE services or Section 504 FAPE services may have been affected by the bullying, the school has an obligation to remedy those effects on the student’s receipt of FAPE.20 Even if the school finds that the bullying did not create a hostile environment, the school would still have an obligation to address any FAPE-related concerns, if, for example, the school’s initial investigation revealed that the bullying may have had some impact on the student’s receipt of FAPE services.




				

16 These legal protections extend to all students with disabilities, including students who are regarded as having a disability or who have a record of a disability and students with disabilities who are not receiving services under Section 504 or IDEA. In addition to being protected from harassment on the basis of disability, students with disabilities, like all students, are entitled to protection from harassment on the basis of race, color, national origin, sex (including sexual violence), and age under the Federal civil rights laws that OCR enforces. For more information about other types of discriminatory harassment, see OCR’s 2010 Dear Colleague Letter referenced in note 4. 
17 Schools know or should know about disability-based harassment when, for example, a teacher or other responsible employee of the school witnesses the conduct. For more information about how to determine when knowledge of such conduct will be imputed to schools, refer to the OCR 2001 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, http://www.ed.gov/ocr/docs/shguide.pdf at page 13; and OCR 2010 Dear Colleague Letter on Harassment and Bullying, at page 3 and note 11. 
18 This is the standard for administrative enforcement of Section 504 and in court cases where plaintiffs are seeking injunctive relief. It is different from the standard in private lawsuits for money damages, which, many courts have held, requires proof of a school’s actual knowledge and deliberate indifference. See Long v. Murray Cnty. Sch. Dist., 522 Fed. Appx. 576, 577 & n. 1 (11th Cir. 2013) (applying the test enunciated in Davis v. Monroe Cnty. Bd. of Ed., 526 U.S. 629, 643 (1999)).  
19 As stated in OCR 2010 Dear Colleague Letter on Harassment and Bullying at page 2, “The specific steps in a school’s investigation will vary depending upon the nature of the allegations, the source of the complaint, the age of the student or students involved, the size and administrative structure of the school, and other factors.” When a student with a disability who receives Section 504 FAPE services is being bullied, an appropriate “other factor” is whether that student’s receipt of services has been affected by the bullying. 
20 When a student with a disability has engaged in misconduct that is caused by his or her disability, the student’s own misconduct would not relieve the school of its legal obligation to determine whether that student’s civil rights were violated by the bullying conduct of the other student. For example, if a student, for reasons related to his disability, hits another student and other students then call him “crazy” on a daily basis, the school should, of course, address the conduct of the student with a disability. Nonetheless, the school must also consider whether the student with a disability is being bullied on the basis of disability under Section 504 and Title II. 


III. Bullying and the Denial of a Free Appropriate Public Education 
The bullying on any basis of a student with a disability who is receiving IDEA FAPE services or Section 504 FAPE services can result in the denial of FAPE that must be remedied under Section 504. The OSERS 2013 Dear Colleague Letter clarified that, under IDEA, as part of a school’s appropriate response to bullying on any basis, the school should convene the IEP team21 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 a meaningful educational benefit. If the IEP is no longer designed to provide a meaningful educational benefit to the student, the IEP team must determine the extent to which additional or different IDEA FAPE services are needed to address the student’s individualized needs and then revise the IEP accordingly. Any decisions made by the IEP team must be consistent with the IDEA provisions addressing parental participation and should keep the student with a disability in the original placement or setting (e.g., the same school and classroom) unless the student can no longer receive FAPE in that placement or setting. Under IDEA, schools have an ongoing obligation to ensure that a student with a disability who is the target of bullying continues to receive FAPE in accordance with his or her IEP—an obligation that exists whether the student is being bullied based on his or her disability or is being bullied based on other reasons. 

Similarly, under Section 504, schools have an ongoing obligation to ensure that a qualified student with a disability who receives IDEA FAPE services or Section 504 FAPE services and who is the target of bullying continues to receive FAPE—an obligation that exists regardless of why the student is being bullied.22 Accordingly, under Section 504, as part of a school’s appropriate response to bullying on any basis, the school should convene the IEP team or the Section 504 team23 to determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the student is no longer receiving FAPE. The effects of bullying could include, for example, adverse changes in the student’s academic performance or behavior. If the school suspects the student’s needs have changed, the IEP team or the Section 504 team must determine the extent to which additional or different services are needed,24 ensure that any needed changes are made promptly, and safeguard against putting the onus on the student with the disability to avoid or handle the bullying.25



				

21 The IEP team is the group of persons specified in IDEA that determines the appropriate IDEA FAPE services for an IDEA-eligible student. 34 C.F.R. § 300.321(a).  
22 At the elementary and secondary educational level, a “qualified student with a disability” is a student with a disability who is: of an age at which students without disabilities are provided elementary and secondary educational services; of an age at which it is mandatory under State law to provide elementary and secondary educational services to students with disabilities; or a student to whom a State is required to provide FAPE under IDEA. 34 C.F.R. § 104.3(l). In addition to the provision of regular or special education and related aids and services pursuant to 34 C.F.R. § 104.33, FAPE protections extend to educational setting, evaluation and placement, and procedural safeguards. 34 C.F.R. §§ 104.34-.36. 
23 The Section 504 team is the group of knowledgeable persons that determines the appropriate Section 504 FAPE services for a qualified student with a disability under Section 504. 
24 A reevaluation would not be needed unless there is a reason to believe the student’s underlying disability or disabilities have changed or the student has an additional disability. 
25 OCR would expect that schools address bullying behavior to ensure that the burden does not fall on the student with a disability. Along these lines, and consistent with the OSERS 2013 Dear Colleague Letter, schools should exercise caution when considering a change in placement, or the location of services (including classroom) provided to the student with a disability who is the target of bullying and should keep the student in the original placement unless the student can no longer receive Section 504 FAPE in that placement. OCR also urges schools to allow for parental participation when considering any change in placement or location of services (including classroom). See 34 C.F.R. pt. 104, app. A (discussion of Subpart D). 


In addition, when considering a change of placement, schools must continue shows no other changes in academic progress or behavior will generally not, standing alone, trigger the school’s obligation to determine whether the student’s needs are still being met. Nonetheless, in addition to addressing the bullying under the school’s anti-bullying policies, schools should promptly convene the IEP team or Section 504 team to determine whether FAPE is being provided to a student with a disability who has been bullied and who is experiencing any adverse changes in academic performance or behavior. 

Although there are no hard and fast rules regarding how much of a change in academic performance or behavior is necessary to trigger the school’s obligation to convene the IEP team or Section 504 team, a sudden decline in grades, the onset of emotional outbursts, an increase in the frequency or intensity of behavioral interruptions, or a rise in missed classes or sessions of Section 504 services would generally be sufficient.26 By contrast, one low grade for an otherwise straight-A student who

When bullying results in a disability-based harassment violation, it will not always result in a denial of FAPE. Although all students with disabilities are protected from disability-based harassment, the requirement to provide FAPE applies only to those students with disabilities who need or may need FAPE services because of their disability.27 This means that if a student is the target of bullying resulting in a disability-based harassment violation, but that student is not eligible to receive IDEA or Section 504 FAPE services, there could be no FAPE violation. 

When a student who receives IDEA FAPE services or Section 504 FAPE services has experienced bullying resulting in a disability-based harassment violation, however, there is a strong likelihood that the student was denied FAPE. This is because when bullying is sufficiently serious to create a hostile environment and the school fails to respond appropriately, there is a strong likelihood both that the effects of the bullying included an impact on the student’s receipt of FAPE and that the school’s failure to remedy the effects of the bullying included its failure to address these FAPE-related concerns. 
	





				

26 In light of schools’ ongoing obligation to ensure that students with disabilities are receiving FAPE, adverse changes in the academic performance or behavior of a student receiving FAPE services could trigger the school’s obligation to convene the IEP team or Section 504 team regardless of the school’s knowledge of the bullying conduct. See, e.g., Section V, Hypothetical Example B, below. As a best practice, schools should train all staff to report bullying to an administrator or school official who can promptly convene a meeting of knowledgeable people (e.g., the student’s Section 504 team or IEP team) to ensure that the student is receiving FAPE and, as necessary, address whether the student’s FAPE needs have changed.
27 The FAPE requirement to evaluate applies to all students who are known or believed to need special education or related services, regardless of the nature or severity of the disability. 34 C.F.R. §§ 104.33, -.35. For a student who is suspected of having a disability but who is not yet receiving IDEA or Section 504 services, OCR may consider whether the school met its obligation to evaluate the student. 34 C.F.R. § 104.35. For example, if a student suspected of having a disability was missing school to avoid bullying, OCR may consider whether the student’s evaluation was unduly delayed (e.g., if the school knew or should have known of the bullying and failed to act) in determining whether there was a denial of FAPE under the circumstances.  







or the Section 504 team to determine whether, and to what extent: (1) the student’s educational needs have changed; (2) the bullying impacted the student’s receipt of IDEA FAPE services or Section 504 FAPE services; and (3) additional or different services, if any, are needed, and to ensure any needed changes are made promptly. By doing so, the school will be in the best position to ensure the student’s ongoing receipt of FAPE. 

IV. How OCR Analyzes Complaints Involving Bullying of Students with Disabilities 
When OCR evaluates complaints involving bullying and students with disabilities, OCR may open an investigation to determine whether there has been a disability-based harassment violation, a FAPE violation, both, or neither, depending on the facts and circumstances of a given complaint.

When investigating disability-based harassment, OCR considers several factors, including, but not limited to: 

* Was a student with a disability bullied by one or more students based on the student’s disability?
 
* Was the bullying conduct sufficiently serious to create a hostile environment? 

* Did the school know, or should it have known of the conduct? 

* Did the school fail to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects? 

If the answer to each of these questions is “yes,” then OCR would find a disability-based harassment violation under Section 504 and, if the student was receiving IDEA FAPE or Section 504 FAPE services, OCR would have a basis for investigating whether there was also a denial of FAPE under Section 504. 

Even if the answers to one or more of these questions is “no,” for a student who was receiving IDEA FAPE or Section 504 FAPE services, OCR may still consider whether the bullying resulted in a denial of FAPE under Section 504 that must be remedied. 

When investigating whether a student receiving IDEA FAPE or Section 504 FAPE services who was bullied was denied FAPE under Section 504, OCR considers several factors, including, but not limited to:
 
* Did the school know, or should it have known that the effects of the bullying may have affected the student’s receipt of IDEA FAPE services or Section 504 FAPE services? For example, did the school know or should it have known about adverse changes in the student’s academic performance or behavior indicating that the student may not be receiving FAPE? 

If the answer is “no,” there would be no FAPE violation.28 If the answer is “yes,” OCR would then consider:
 
* Did the school meet its ongoing obligation to ensure FAPE by promptly determining whether the student’s educational needs were still being met, and if not, making changes, as necessary, to his or her IEP or Section 504 plan? 

If the answer is “no,” and the student was not receiving FAPE, OCR would find that the school violated its obligation to provide FAPE.

V.   Hypothetical Examples 
The following hypothetical examples illustrate how OCR would analyze a complaint involving allegations of the bullying of a student with a disability who only receives Section 504 FAPE services. 
A.   Disability-Based Harassment Violation and FAPE Violation 
At the start of the school year, a ten-year-old student with Attention Deficit Hyperactivity Disorder (ADHD) and a speech disability is fully participating in the classroom, interacting with his peers at lunch and recess, and regularly attending speech therapy twice a week. In addition to providing for speech services, the student’s Section 504 plan also provides for behavior supports that call for all his teachers and other trained staff to supervise him during transition times, provide constructive feedback, and help him use preventative strategies to anticipate and address problems with peers. 

Because of the student’s disabilities, he makes impulsive remarks, speaks in a high-pitched voice, and has difficulty reading social cues. Three months into the school year, students in his P.E. class begin to repeatedly taunt him by speaking in an exaggerated, high-pitched tone, calling him names such as “weirdo” and “gay,” and setting him up for social embarrassment by directing him to ask other students inappropriate personal questions. The P.E. teacher witnesses the taunting, but neither reports the conduct to the appropriate school official, nor applies the student’s behavior supports specified in his 504 plan. Instead, she pulls the student aside and tells him that he needs to start focusing less on what kids have to say and more on getting his head in the game. As the taunting intensifies, the student begins to withdraw from interacting with other kids in P.E. and avoids other students at lunch and recess. As the student continues to withdraw over the course of a few weeks, he misses multiple sessions of speech therapy, but the speech therapist does not report his absences to the Section 504 team or another appropriate school official. 

In this example, OCR would find a disability-based harassment violation. The student’s peers were making fun of him because of behaviors related to his disability. For OCR’s enforcement purposes, the taunting the student experienced, including other students impersonating him and calling him “weirdo” and “gay,” was therefore based on his disability.29 The school knew about the bullying 



















				

28 Where a student is suspected of having a disability but is not yet receiving IDEA FAPE services or Section 504 FAPE services, OCR could consider whether the student’s evaluation was unduly delayed in determining whether there was a denial of FAPE under the circumstances. See fn. 27, above.  
29 OCR would have also investigated whether a school’s inappropriate response to the use of the word “gay” in this context constituted a gender-based harassment violation under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688; 34 C.F.R. pt. 106, which prohibits discrimination on the basis of sex. For a discussion of gender-based harassment, see OCR 2010 Dear Colleague Letter on Harassment and Bullying, at pages 7-8. 


because the P.E. teacher witnessed the conduct.30 Yet upon witnessing the taunting, the P.E. teacher not only failed to provide the student behavior supports as required in the student’s 504 plan, but also failed to report the conduct to an appropriate school official. Had she taken this step, the school could have conducted an investigation and found that the conduct created a hostile environment because it interfered with the student’s ability to benefit from the speech therapy services that he should have been receiving and negatively affected his ability to participate fully in P.E., lunch, and recess. The school’s failure to appropriately respond to the bullying violated Section 504.

OCR would also find FAPE violations under Section 504. First, when the P.E. teacher failed to implement the behavior supports in the student’s Section 504 plan, the school denied the student FAPE under Section 504. In addition, and independent of the failure to provide behavior supports, because the bullying impacted the student’s receipt of Section 504 FAPE, the school should have addressed the student’s changed needs; by failing to do so, the student was denied Section 504 FAPE. The school should have known about the missed Section 504 services and related changes in behavior. The P.E. teacher knew about the bullying but did nothing to report the student’s behavioral changes (e.g., the student’s increasing efforts to isolate himself from other students) to the Section 504 team members or other appropriate school official. Similarly, the speech therapist knew that the student was missing speech therapy but did not report this to the 504 team or to an appropriate school official. By failing to address the adverse effects of the bullying on FAPE, the school did not make necessary changes to ensure the student was provided FAPE under Section 504. If, upon concluding its investigation, OCR and the district were to enter into a resolution agreement, OCR could require, for example, that the district (1) ensure that FAPE is provided to the student by convening the Section 504 team to determine if the student needs different or additional services (including compensatory services) and, if so, providing them; (2) offer counseling to the student to remedy the harm that the school allowed to persist; (3) monitor whether bullying persists for the student and take corrective action to ensure the bullying ceases; (4) develop and implement a school-wide bullying prevention strategy based on positive behavior supports; (5) devise a voluntary school climate survey for students and parents to assess the presence and effect of bullying based on disability and to respond to issues that arise in the survey; (6) revise the district’s anti-bullying policies to develop staff protocols in order to improve the district’s response to bullying; (7) train staff and parent volunteers, such as those who monitor lunch and recess or chaperone field trips, on the district’s anti-bullying policies, including how to recognize and report instances of bullying on any basis; and (8) provide continuing education to students on the district’s anti-bullying policies, including where to get help if a student either witnesses or experiences bullying conduct of any kind.


B. FAPE Violation, No Disability-Based Harassment Violation
 
A thirteen-year-old student with depression and Post-Traumatic Stress Disorder (PTSD) who receives counseling as part of her Section 504 services is often mocked by her peers for being poor and living in a homeless shelter. Having maintained an A average for the first half of the academic year, she is now getting Bs and Cs, neglecting to turn in her assignments, and regularly missing counseling sessions. When asked by her counselor why she is no longer attending scheduled 








30 The P.E. teacher in this example is a responsible employee. See fn. 17, above.  


sessions, she says that she feels that nothing is helping and that no one cares about her. The student tells the counselor that she no longer wants to attend counseling services and misses her next two scheduled sessions. The counselor informs the principal that the student has missed several counseling sessions and that the student feels the sessions are not helping. Around the same time, the student’s teachers inform the principal that she has begun to struggle academically. The principal asks the teachers and counselor to keep her apprised if the student’s academic performance worsens but does not schedule a Section 504 meeting.
 
In this example, whether or not the school knew or should have known about the bullying, OCR would not find a disability-based harassment violation under Section 504 because the bullying incidents were based on the student’s socio-economic status, not her disability. 

Independent of the basis for the bullying and regardless of whether school officials knew or should have known about the bullying, the school district still had an ongoing obligation under Section 504 to ensure that this student with a disability was receiving an education appropriate to her needs. Here, the student’s sudden decline in grades, coupled with changes in her behavior (missing counseling sessions), should have indicated to the school that her needs were not being met. In this example, OCR would find that these adverse changes were sufficient to put the school on notice of its obligation to promptly convene the Section 504 team to determine the extent of the FAPE-related problems and to make any necessary changes to her services, or, if necessary, reevaluate her, in order to ensure that she continues to receive FAPE. By failing to do more than keep track of the student’s academic performance, the school failed to meet this obligation, which violated Section 504.31 

C.   No Disability-Based Harassment Violation, No FAPE Violation 
A seven-year-old student with a food allergy to peanuts has a Section 504 plan that provides for meal accommodations, the administration of epinephrine if the student is exposed to peanuts, access to a peanut-free table in the cafeteria, and the prohibition of peanut products in the student’s classroom. In advance of the upcoming Halloween party, the teacher reminds the class that candy with peanuts is prohibited in the classroom at all times, including Halloween. That afternoon, while on the bus, a classmate grabs the student’s water bottle out of the student’s backpack, drinks from it, and says, “I had a peanut butter sandwich for lunch today, and I just finished it.” The following day, while having lunch at the peanut-free table in the lunchroom with some friends, a classmate who had been sitting at another table sneaks up behind her and waves an open candy bar with peanuts in front of her face, yelling, “Time to eat peanuts!” Though the candy bar does not touch her, a few other classmates nearby begin chanting, “Time to eat peanuts,” and the student leaves the lunchroom crying. When the student goes back to her classroom and tells her teacher what happened at lunch and on the bus, the teacher asks her whether she came into contact with the candy bar and what happened to the water bottle. The student confirms that the candy bar did not touch her and that she never got the water bottle back from the classmate who took it, but says that she is scared to go back into the lunchroom and to ride the bus. The teacher promptly informs the principal of the incidents, and the peers who taunted the student on the bus and in the lunchroom are removed from the lunchroom, interviewed by the assistant principal, and required to meet with the counselor during recess to discuss the seriousness of their conduct. That 




				

31 If OCR and the district were to enter into a resolution agreement in this case, such an agreement could include, for example, any of the provisions specified in Hypothetical Example A, above.  


same week, the school holds a Section 504 meeting to address whether any changes were needed to the student’s services in light of the bullying. The principal also meets with the school counselor, and they decide that a segment on the bullying of students with disabilities, including students with food allergies, would be added to the counselor’s presentation to students on the school’s anti-bullying policy scheduled in the next two weeks. Furthermore, in light of the young age of the students, the counselor offers to incorporate a puppet show into the segment to help illustrate principles that might otherwise be too abstract for such a young audience. In the weeks that follow, the student shows no adverse changes in academic performance or behavior, and when asked by her teacher and the school counselor about how she is doing, she indicates that the bullying has stopped.

In this example, based on the school’s appropriate response to the incidents of bullying, OCR would not find a disability-based harassment violation under Section 504. The bullying of the student on account of her food allergy to peanuts was based on the student’s disability. Moreover, the physically threatening and humiliating conduct directed at her was sufficiently serious to create a hostile environment by limiting her ability to participate in and benefit from the school’s education program when she was near the classmates who bullied her in the lunchroom and on the bus. School personnel, however, did not tolerate the conduct and acted quickly to investigate the incidents, address the behavior of the classmates involved in the conduct, ensure that there were no residual effects on the student, and coordinate to promote greater awareness among students about the school’s anti-bullying policy. By taking prompt and reasonable steps to address the hostile environment, eliminate its effects, and prevent it from recurring, the school met its obligations under Section 504. 

OCR also would not find a FAPE violation under Section 504 on these facts. Once the school became aware that the student feared attending lunch and riding the bus as a result of the bullying she was experiencing, the school was on notice that the effects of the bullying may have affected her receipt of FAPE. This was sufficient to trigger the school’s additional obligation to determine whether, and to what extent, the bullying affected the student’s access to FAPE and take any actions, including addressing the bullying and providing new or different services, required to ensure the student continued receiving FAPE. By promptly holding a Section 504 meeting to assess whether the school should consider any changes to the student’s services in light of the bullying, the school met its independent legal obligation to provide FAPE under Section 504.
 
VI. Conclusion 
OCR is committed to working with schools, students, families, community and advocacy organizations, and others to ensure that schools understand and meet their legal obligations under Section 504 and Title II to appropriately address disability-based harassment and to ensure that students with disabilities who are bullied continue to receive FAPE.

OCR also encourages States and school districts to reevaluate their policies and practices in light of this letter, as well as OCR’s and OSERS’s prior guidance. If you would like to request technical assistance or file a complaint alleging discrimination, please contact the OCR enforcement office that serves your area. Contact information is posted on OCR’s website at: http://www.ed.gov/ocr/complaintintro.html or please contact OCR’s customer service team at 1-800-421-3481 (TDD 1-800-877-8339). 

I look forward to continuing our work together to address and reduce incidents of bullying in our schools so that no student is limited in his or her ability to participate in and benefit from all that our educational programs have to offer. 

Sincerely, 
/s/ 
Catherine E. Lhamon 
Assistant Secretary for Civil Rights


Appendix 13-4

Michigan Model Anti-Bullying Policy

MICHIGAN
STATE BOARD OF EDUCATION



The (fill in district name) board of education recognizes that a school that is physically and emotionally safe and secure for all students promotes good citizenship, increases student attendance and engagement, and supports academic achievement. To protect the rights of all students and groups for a safe and secure learning environment, the board of education prohibits acts of bullying, harassment, and other forms of aggression and violence. Bullying or harassment, like other forms of aggressive and violent behaviors, interferes with both a school’s ability to educate its students and a student’s ability to learn. All administrators, faculty, staff, parents, volunteers, and students are expected to refuse to tolerate bullying and harassment and to demonstrate behavior that is respectful and civil. It is especially important for adults to model these behaviors (even when disciplining) in order to provide positive examples for student behavior. 

“Bullying” or “harassment” is any gesture or written, verbal, graphic, or physical act (including electronically transmitted acts – i.e., cyberbullying, through the use of internet, cell phone, personal digital assistant (pda), computer, or wireless handheld device, currently in use or later developed and used by students) that is reasonably perceived as being dehumanizing, intimidating, hostile, humiliating, threatening, or otherwise likely to evoke fear of physical harm or emotional distress and may be motivated either by bias or prejudice based upon any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression; or a mental, physical, or sensory disability or impairment; or by any other distinguishing characteristic, or is based upon association with another person who has or is perceived to have any distinguishing characteristic. Bullying and harassment also include forms of retaliation against individuals who report or cooperate in an investigation under this policy. Such behaviors are considered to be bullying or harassment whether they take place on or off school property, at any school-sponsored function, or in a school vehicle or at any time or place where a child’s imminent safety or over-all well-being may be at issue. 

“Bullying” is conduct that meets all of the following criteria: 
• is reasonably perceived as being dehumanizing, intimidating, hostile, humiliating, threatening, or otherwise
 likely to evoke fear of physical harm or emotional distress; 

• is directed at one or more pupils; 

• is conveyed through physical, verbal, technological or emotional means; 

• substantially interferes with educational opportunities, benefits, or programs of one or more pupils; 

• adversely affects the ability of a pupil to participate in or benefit from the school district’s or public school’s
  educational programs or activities by placing the pupil in reasonable fear of physical harm or by causing
  emotional distress; and, 

• is based on a pupil’s actual or perceived distinguishing characteristic (see above), or is based on an association with another person who has or is perceived to have any of these characteristics. 

“Harassment” is conduct that meets all of the following criteria: 

• is reasonably perceived as being dehumanizing, intimidating, hostile, humiliating, threatening, or otherwise likely to evoke fear of physical harm or emotional distress; 

• is directed at one or more pupils; 

• is conveyed through physical, verbal, technological or emotional means; 

• substantially interferes with educational opportunities, benefits, or programs of one or more pupils; 

• adversely affects the ability of a pupil to participate in or benefit from the school district’s or public school’s educational programs or activities because the conduct, as reasonably perceived by the pupil, is so severe, pervasive, and objectively offensive as to have this effect; and, 

• is based on a pupil’s actual or perceived distinguishing characteristic (see above), or is based on an association with another person who has or is perceived to have any of these characteristics. 

The scope of this policy includes the prohibition of every form of bullying, harassment, and cyberbullying/harassment, whether in the classroom, on school premises, immediately adjacent to school premises, when a student is traveling to or from school (portal to portal), or at a school-sponsored event, whether or not held on school premises. Bullying or harassment, including cyberbullying/ harassment, that is not initiated at a location defined above is covered by this policy if the incident results in a potentially material or substantial disruption of the school learning environment for one or more students and/or the orderly day-to-day operations of any school or school program. 

The (fill in district name) board of education expects students to conduct themselves in a manner in keeping with their levels of development, maturity, and demonstrated capabilities with a proper regard for the rights and welfare of other students, school staff, volunteers, and contractors. 

The (fill in district name) board of education believes that a comprehensive health education curriculum, within a coordinated school health framework, helps students attain knowledge and skills vital to school success, a productive workforce and good citizenship. Critical skills include anticipating consequences of choices, making informed decisions, communicating effectively, resolving conflicts, and developing cultural competency.
 
The (fill in district name) board of education recognizes that in order to have the maximum impact, it is critical to provide a minimum of annual training for school employees and volunteers who have significant contact with pupils on school policies and procedures regarding bullying and harassment. Training will provide school employees with a clear understanding of their roles and responsibilities and the necessary skills to fulfill them. 

The (fill in district name) board of education believes that standards for student behavior must be set through interaction among the students, parents and guardians, staff, and community members of the school district, producing an atmosphere that encourages students to grow in self-discipline and their ability to respect the rights of others. The development of this atmosphere requires respect for self and others, as well as for district and community property on the part of students, staff, parents, and community members. 

The (fill in district name) board of education believes that the best discipline for aggressive behavior is designed to (1) support students in taking responsibility for their actions, (2) develop empathy, and (3) teach alternative ways to achieve the goals and the solve problems that motivated the aggressive behavior. Staff members who interact with students shall apply best practices designed to prevent discipline problems and encourage students’ abilities to develop self-discipline and make better choices in the future. 
Since bystander support of bullying and harassment can encourage these behaviors, the district prohibits both active and passive support for acts of harassment or bullying. The staff should encourage students not to be part of the problem; not to pass on the rumor or derogatory message; to walk away from these acts when they see them; to constructively attempt to stop them; to report them to the designated authority; and to reach out in friendship to the target. Periodic classroom meetings should be conducted to teach bystanders how and when to respond to bullying and harassment incidents. Informal classroom discussions and activities designed to provide awareness and increase student connectedness promote a positive shift in peer norms that will support empowered bystanders. When bystanders do report or cooperate in an investigation, they must be protected from retaliation with the same type of procedures used to respond to bullying and harassment. 

The (fill in district name) board of education requires its school administrators to develop and implement procedures that ensure both the appropriate consequences and remedial responses to a student or staff member who commits one or more acts of bullying and harassment. The following factors, at a minimum, shall be given full consideration by school administrators in the development of the procedures for determining appropriate consequences and remedial measures for each act of harassment or bullying.
 
Factors for Determining Consequences 
• Age, development, and maturity levels of the parties involved 
• Degree of harm (physical and/or emotional distress) 
• Surrounding circumstances 
• Nature and severity of the behavior(s) 
• Incidences of past or continuing pattern(s) of behavior 
• Relationship between the parties involved 
• Context in which the alleged incident(s) occurred 

Note: In order to ensure students’ perception of fair and impartial treatment, a student’s academic or athletic status is not a legitimate factor for determining consequences. Consequences must be perceived as fair and impartial. 

Factors for Determining Remedial Measures 
   Personal 
• Life skill competencies 
• Experiential deficiencies 
• Social relationships 
• Strengths 
• Talents 
• Traits 
• Interests 
• Hobbies 
• Extra-curricular activities 
• Classroom participation 
• Academic performance 

   Environmental 
• School culture 
• School climate and lack of connectedness 
• Student-staff relationships and staff behavior toward the student 
• Level of consistency in staff responses to bullying or harassing behaviors 
• Level of consistency in application or severity of consequences given to students 
• Staff-staff relationships witnessed by students 
• General staff management of classrooms and other educational environments 
• Staff ability to prevent and de-escalate difficult or inflammatory situations 
• Social-emotional and behavioral supports 
• Social relationships 
• Community activities 
• Neighborhood culture 
• Family situation 
• Range and number of opportunities for student engagement, involvement, and recognition for achievement (beyond academics and athletics) 

Consequences and appropriate remedial actions for a student or staff member who engages in one or more acts of bullying or harassment may range from positive behavioral interventions up to and including suspension or expulsion, in the case of a student, or suspension or termination in the case of an employee, as set forth in the board of education’s approved code of student conduct or employee handbook. School employees will also be held accountable for bullying or harassing behavior directed toward school employees, volunteers, parents, or students. 

Consequences for a student who commits an act of bullying and harassment shall vary in method and severity according to the nature of the behavior, the developmental age of the student, and the student’s history of problem behaviors and performance, and must be consistent with the board of education’s approved code of student conduct. Remedial measures shall be designed to: correct the problem behavior; prevent another occurrence of the behavior; and protect the victim of the act. Effective discipline should employ a school-wide approach to adopt a rubric of bullying offenses and the associated consequences. The consequences and remedial measures may include, but are not limited to, the examples listed below: 

Examples of Consequences 
• Admonishment 
• Participation in a guided reflection process designed to teach alternative behavior 
• Temporary removal from the classroom 
• Loss of privileges 
• Classroom or administrative detention 
• Referral to disciplinarian 
• In-school suspension during the school week or the weekend, for students 
• Out-of-school suspension 
• Legal action 
• Expulsion or termination 

Examples of Remedial Measures 
   Strategies for Individual Behavioral Change: 
• Framing the aggressive behavior as a failed attempt to solve a real problem or reach a goal. The adult assists the misbehaving student to find a better way to solve the problem or meet the goal. 
• Restitution and restoration 
• Transformative conferencing/restorative justice practices 
• Supervised peer support group 
• Corrective instruction or other relevant learning or service experience 
• Supportive discipline to increase accountability for the bullying offense 
• Supportive interventions, including participation of an Intervention and Referral Services team, peer mediation, etc. 
• Behavioral assessment or evaluation, including, but not limited to, a referral to a Child Study Team, as appropriate 
• Behavioral management plan, with benchmarks that are closely monitored 
• Involvement of school disciplinarian 
• Student counseling 
• Parent conferences 
• Student treatment 
• Student therapy 

Strategies for Environmental Change (Classroom, School Building, or School District): 
• Activities or strategies designed to help the student who engaged in bullying or harassment reflect on the offending behavior, maintaining an emotionally neutral and strength-based approach 
• School and community surveys or other strategies for determining the conditions contributing to harassment, intimidation, or bullying 
• Change process to improve school culture 
• School climate improvement/improvement in conditions for learning and instructional pedagogy (incorporation of brain-compatible strategies) 
• Adoption of research-based, systemic bullying prevention programs 
• Modifications of schedules 
• Adjustments in hallway traffic 
• Modifications in student routes or patterns traveling to and from school 
• Increased supervision and targeted use of monitors (e.g., hallway, cafeteria, bus) 
• General professional development programs for certificated and non-certificated staff 
• Professional development plans for staff in key disciplinary roles 
• Disciplinary action for school staff who contributed to the problem 
• Parent conferences 
• Referral to family counseling 
• Increased involvement of parent-teacher organizations 
• Increased involvement of community-based organizations 
• Increased opportunities for parent input and engagement in school initiatives and activities 
• Development of a general bullying/harassment response plan 
• Peer support groups 
• Increase communication with and involvement of law enforcement (e.g., school resource officer, juvenile officer) 
• Engage in community awareness events and planning sessions 

The (fill in district name) board of education requires the principal and/or the principal’s designee at each school to be responsible for receiving complaints alleging violations of this policy. All school employees are required to report alleged violations of this policy to the principal or the principal’s designee. All other members of the school community, including students, parents, volunteers, and visitors, are encouraged to report any act that may be a violation of this policy. Reports may be made anonymously, but formal disciplinary action may not be solely based on an anonymous report. 

The (fill in district name) board of education requires the principal and/or the principal’s designee to be responsible for determining whether an alleged act constitutes a violation of this policy. In so doing, the principal and/or the principal’s designee shall conduct a prompt, thorough, and complete investigation of each alleged incident. The investigation is to be completed within three school days after a report or complaint is made. The parents of the students involved shall receive written notice from the school on the outcome of the investigation (in compliance with current privacy laws and regulations). All reports on instances of bullying and/or harassment must be recorded by the school for annual data review. 

The (fill in district name) board of education prohibits reprisal or retaliation against any person who reports an act of bullying or harassment or cooperates in an investigation. The consequences and appropriate remedial action for a person who engages in reprisal or retaliation shall be determined by the administrator after consideration of the nature, severity, and circumstances of the act. 
The (fill in district name) board of education prohibits any person from falsely accusing another as a means of bullying or harassment. The consequences and appropriate remedial action for a person found to have falsely accused another as a means of bullying or harassment may range from positive behavioral interventions up to and including suspension or expulsion. Consequences and appropriate remedial action for a school employee found to have falsely accused another as a means of bullying or harassment shall be in accordance with district policies, procedures, and agreements. 

The (fill in district name) board of education requires school officials to annually disseminate the policy to all school staff, students, and parents, along with a statement explaining that it applies to all applicable acts of harassment and bullying that occur on school property, at school-sponsored functions, or on a school bus. The chief school administrator shall develop an annual process for discussing the school district policy on harassment and bullying with students and staff. 

The school district shall incorporate information regarding the policy against harassment or bullying into each school employee training program and handbook. 

Updated and Approved November 9, 2010 


1 Section 504 provides: "No otherwise qualified individual with a disability . . . shall, solely by reason of  her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”  29 U.S.C. § 794(a).  See 34 CFR Part 104 (Section 504 implementing regulations).
2 Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”  42 U.S.C. § 12132.  See 28 CFR Part 35 (Title II implementing regulations).
3 The Department of Education’s Office for Civil Rights (OCR) has issued policy guidance on discriminatory harassment based on race (see 59 Fed. Reg. 11448 (Mar. 10, 1994),) and sex (see 62 Fed Reg. 12034 (Mar. 13, 1997),).  These policies make clear that school personnel who understand their legal obligations to address harassment are in the best position to recognize and prevent harassment, and to lessen the harm to students if, despite their best efforts, harassment occurs.  In addition, OCR recently collaborated with the National Association of Attorneys General (NAAG) to produce a guide to raise awareness of, and provide examples of effective practices for dealing with, hate crimes and harassment in schools, including harassment based on disability.  See “Protecting Students from Harassment and Hate Crime, A Guide for Schools,” U.S. Department of Education, Office for Civil Rights, and the National Association of Attorneys General (Jan. 1999) (OCR/NAAG Harassment Guide), Appendix A: Sample School Policies.   The OCR/NAAG Harassment Guide may be accessed on the internet at www.ed.gov/offices/OCR/archives/Harassment/.  These documents are a good resource for understanding the general principle of discriminatory harassment.  The policy guidance on sexual harassment will be clarified to explain how OCR's longstanding regulatory requirements continue to apply in this area in light of recent Supreme Court decisions addressing the sexual harassment of students.
4 20 U.S.C. §1400 et seq.
5 34 C.F.R. § 300.660 et seq.

6 For more information regarding the requirements of state and local laws, consult the OCR/NAAG Harassment Guide, cited in footnote 3 above.
7 Appropriate classroom discipline is permissible, generally, if it is of a type that is applied to all students or is consistent with the Individuals with Disabilities Education Act (IDEA) and Section 504, including the student’s Individualized Education Program or Section 504 plan.

8 Section 504 (at 34 CFR § 104.7) and Title II (at 28 CFR § 35.107(a)) require that institutions have published internal policies and grievance procedures to address issues of discrimination on the basis of disability, which includes disability harassment.  While there need not be separate grievance procedures designed specifically for disability harassment, the grievance procedures that are available must be effective in resolving problems of this nature.


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