November 2015 Legal Matters

When students with disabilities are bullied, there are legal concerns related to federal disability law. The Individuals with Disabilities Education Act (IDEA) outlines schools’ responsibilities to provide special education and related services to a specific group of students who are in need of special education due to diagnoses such as autism and orthopedic impairments.

On the other hand, Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) represent civil rights laws that prohibit the discrimination of individuals with disabilities. To be eligible under Section 504 or the ADA, individuals must have a physical or mental impairment that substantially limits one or more major life activities.

Students who have asthma, peanut allergies, HIV, and bipolar disorder would be covered by Section 504 and the ADA. In 2008, Congress clarified the definition of disability when it passed the ADA Amendments Act. The purpose of the new legislation was to make it easier to prove that an impairment qualified as a disability.

As a result of these recent changes in the law, administrators must be ready to respond appropriately when students with disabilities are bullied. There is a growing body of litigation involving this type of bullying, and many times school districts and leaders have been sued for failing to do enough to address the bullying.

Recent Federal Guidance

In addition to the increasing number of lawsuits, the U.S. Department of Education (ED) has stated that it “has received an ever-increasing number of complaints concerning the bullying of students with disabilities.”

In response, ED has published two recent letters providing schools with guidance about their responsibility to address disability-based harassment. In 2013, ED’s Office of Special Education and Rehabilitative Services (OSERS) issued a “Dear Colleague” letter to address bullying and harassment of students with disabilities receiving services under IDEA. The guidance cites research highlighting that students with disabilities are disproportionately affected by bullying. The purpose of this letter was to supplement a previous letter addressing disability harassment that was issued jointly by OSERS and ED’s Office for Civil Rights (OCR) in 2000.

The letter warns that bullying students with disabilities can lead to a student not receiving a meaningful educational benefit under IDEA, which would deny a student a Free Appropriate Public Education (FAPE). It notes that in responding to bullying, the Individualized Education Program (IEP) team should be convened to determine if the IEP is still providing a meaningful educational benefit. Also, when examining whether a change of placement is necessary, the IEP team should ensure that the student who is bullied be kept in the original placement unless the student can no longer receive a FAPE in that placement.

A second letter was issued by the OCR in 2014. The OCR enforces both Section 504 and ADA, whereas OSERS enforces IDEA. The ADA is generally construed to provide no less protection than Section 504. Therefore, violations of Section 504, including the failure to provide necessary regular or special education and related aids and services to students with disabilities, also violate the ADA. OCR notes that under Section 504, schools have an ongoing obligation to ensure that a qualified student with a disability receives Section 504 FAPE services. When evaluating a complaint, OCR may find that there has been a disability-based harassment violation, a FAPE violation, both, or neither.

Legal Standards

Most federal courts that address disability-based harassment apply the standard from Davis v. Monroe (1999), which is a U.S. Supreme Court decision addressing peer sexual harassment under Title IX of the Education Amendments of 1972. In Davis, the Court held that school districts could be liable for peer harassment if school officials have actual knowledge about the harassment; were deliberately indifferent toward the harassment; and the harassment was so severe, pervasive, and objectively offensive that it deprived the student of an educational benefit. Sometimes a court might instead apply a different standard and ask whether school officials acted in “bad faith” or engaged in “gross misjudgment” when analyzing disability-based harassment claims.

Litigation

Despite the differing standards that courts are using, a few themes have emerged from recent cases.

First, schools must respond to parents’ requests to address bullying. A girl with a learning disability was repeatedly bullied by classmates who intentionally tripped her, physically backed away from her, and drew disparaging pictures of her. Her parents met with the principal on multiple occasions, but after becoming dissatisfied with the school’s response, they enrolled their daughter in a private school and sought tuition reimbursement. A New York federal district court denied the school district’s motion for summary judgment because the plaintiffs provided evidence that the harassment resulted in a violation of IDEA, which deprived the girl of an educational benefit.

Second, simply addressing the bullying may not be enough if the harassment continues or worsens. After parents informed a school that their son with Asperger’s syndrome was called a “f***ing retard,” and “b****” by his classmates, the teacher apologized and the school assured the parents that their son’s aide would accompany him to future classes. However, these efforts did not curb the bullying; instead, it worsened. After the parents complained to the school, they were told that “teens will be teens.” The parents filed a lawsuit claiming that no meaningful action was taken to address the problem. A New York federal district court denied the school district’s motion to dismiss the ADA and Section 504 claims, finding that there was a valid claim that school officials were deliberately indifferent in responding to disability-based harassment and that the student was denied access to educational opportunities.

Third, parents are not always successful in their claims. In an Alabama case, the district’s motion for summary judgment was granted because the parents failed to demonstrate that the school had actual knowledge of the bullying. Additionally, in a Georgia case where a student with Asperger’s committed suicide, the court determined that the parents failed to meet the high bar of deliberate indifference and the school’s response to the bullying was not completely unreasonable.

Sidebar: Making it Work

Recommendations for Secondary School Principals

  • Have policies and procedures in place that, at a minimum, define what constitutes bullying and harassment, and include a complaint procedure for students, parents, or employees to utilize.
  • Designate an administrator as the person to receive all complaints. Publicize the policies and procedures.
  • Educate all employees about conduct that can reasonably be considered bullying or harassment on the basis of a disability. Inform staff of the policies and procedures that have been adopted and their specific responsibilities to address and report incidents.
  • Investigate any and all complaints of bullying or harassment. Even though a student or parent may not want to file a complaint, concerns expressed by any individual may be enough to put the school on notice of a potential problem. Any complaint must be taken seriously and thoroughly investigated.
  • Take action to address the bullying or harassing behavior. School officials must make reasonable efforts to stop the harassment. The frequency and severity of the inappropriate behavior can impact what is deemed to be reasonable by a court.
  • Document everything. Be able to show that the complaint was investigated and appropriate action was taken.

Janet R. Decker, JD, PhD, is an assistant professor at Indiana University. Suzanne E. Eckes, JD, PhD, is a professor at Indiana University. Lisa Tanselle, JD, is general counsel with the Indiana School Boards Association.