What Do Federal Laws Say about Bullying?
By Vaughn K. Lauer, PhD
Autism Asperger’s Digest March/April 2014
No Child Left Behind
This brief review of laws regarding bullying will help you protect your child’s educational rights.
No Child Left Behind (NCLB) does not reference bullying or harassment.
Office for Civil Rights
The function of the Office for Civil Rights (OCR), under Section 504 of the Rehabilitation Act of 1973 as amended, is to protect individuals from acts of discrimination against certain groups. This is carried out through a complaint procedure in which a formal complaint of discrimination is filed with the OCR. If “sufficient information” is determined to exist, a formal investigation is conducted.
On October 26, 2010, the OCR sent a “Dear Colleague” letter to the states to clarify the agency’s regulatory authority over key issues of harassment. (See at http://tinyurl.com/23gkfyc.)
Section 504 and Title II prohibit discrimination on the basis of disability. School districts may violate these civil rights statutes and the Department’s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees. [italics added]
Bullying falls within the context of OCR’s charge under “harassment” of children with disabilities. If there is dissatisfaction with the school authorities carrying out reasonable school polices, or if the policies are discriminatory, parents (or students who are at least 18) may file a complaint with OCR.
Individuals with Disabilities Education Act (IDEA)
The Office of Special Education Programs (OSEP) issued a “Dear Colleague” letter on August 20, 2013. (See at http://tinyurl.com/ov9hr2m.) It states, in part, the following:
States and school districts have a responsibility under the IDEA, 20 U.S.C. § 1400, et seq., to ensure that FAPE [Free and Appropriate Public Education] in the least restrictive environment (LRE) is made available to eligible students with disabilities. In order for a student to receive FAPE, the student’s individualized education program (IEP) must be reasonably calculated to provide meaningful educational benefit.
“Denial of FAPE” has a broad meaning; however, it generally means that if some action or lack of action (e.g., bullying) leads to impeding or preventing the child with disabilities an opportunity to be educated (i.e., “receive benefit”), then the offending school may be held accountable under the regulations of IDEA. The letter further states that:
any bullying of a student with a disability that results in the student not receiving meaningful educational benefit from the special education and related services provided by the school is a denial of FAPE. A student must feel safe in school in order to fulfill his or her full academic potential.
(Note: The terms “feeling safe” and “full academic potential” are not found in IDEA and should not be construed to be codified in the law.)
Remedies under IDEA may be executed through the following avenues.
- Inform the school of the issue.
- Request an IEP meeting to determine if the learning environment in which the bullying occurred necessitates a change to ensure the child benefits from the IEP.
However, if satisfaction is not obtained, parents may choose to
- Lodge a complaint to the district for an administrative review (if that process is a district policy).
- Forward a complaint to the state.
- Request a due process hearing from the state.
Each option requires a detailed written statement of the issues and action(s) taken on the part of the child, parent, and school preceding the submission of the complaint. As noted earlier, a complaint may also be made to the OCR.
What This Really Means
OCR uses the words harassment and hostile environment to define the effects of bullying against children with disabilities. Therefore, be certain to use the words harassment, hostile environment, and child with disability in OCR complaints. If the child’s ability to “benefit” from the educational program is hampered or denied, FAPE is not being provided and the term FAPE needs to be referenced in a complaint under IDEA.
Parents should not
- send a complaint to OCR or an administrative complaint to the district or state, or request a due process until after meeting with school staff to explain your understanding of the bullying offenses and to give staff the opportunity to correct the problem.
- approach the offending child’s parent. This is to avoid any interactions under conditions that are not conducive to mediation where you and your child’s rights are not protected.
Parents should describe the offense to the school using words that will help them to visualize the offense noting the following:
- the bully’s name(s),
- the location(s) where the offense occurred,
- witnesses of each occurrence, and
- any actions your child took in response to the bullying.
(One condition of bullying is that it has occurred more than once, so make certain you explain each offense.)
State explicitly the emotional, social, physical, and educational effects bullying has had on your child. Explaining the educational effects of the bullying will ensure that you are addressing IDEA and OCR should you legally pursue either.
You must give the school the opportunity to resolve the situation. Note in your complaint what you have done to address the problem with the school system and the school’s response. Document all correspondences, summarizing all meetings and conversations with school personnel.
You may request an IEP meeting after you inform the school of the bullying behavior. The team should review the IEP services and settings to ensure that FAPE is protected. (Alerting the school of the bullying and calling for an IEP meeting simultaneously may cause the school to unknowingly take more than one direction on the investigation.) You will want on record either or both requests to ensure you have acted in accordance with IDEA. You can always withdraw the request for an IEP meeting should the issue be resolved before the meeting. Doing so documents steps taken in accordance with the requirements of OCR and IDEA.
In most cases the school will intervene when they become aware of bullying actions taken against a child. Although no federal legislation addresses bullying, there are approaches to take where the school fails to rectify bullying.
Whether you pursue a complaint with OCR, an administrative complaint under IDEA, or request a due process, you need to document the following:
- all details of the incident as your child explains it,
- what you tell the school,
- their response,
- any actions taken or not taken by school staff, and
- records of correspondences, meeting summaries, or calls with school officials.
Do not take offense if staff respond with corrections to what you write. Take note in writing where you agree and disagree and forward that to the school. Remain focused on the facts—don’t let emotions become the issue.
Your organized records of interactions will make the respective agency’s job easier in determining the issues and steps to be taken for resolution.
Vaughn Lauer, PhD, is an educator with over 30 years’ experience in the field of special education. He is the author of the book, When the School Says No, How to Get the Yes! (Jessica Kingsley Publishers, 2013). Vaughn has developed tests for students with disabilities and created professional development strategies for general and special education personnel. He now assists parents in obtaining an IEP that meets their child’s needs. Visit Educational Learning and Training, LLC. for more information.
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