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Q & A with Dr. Chad A. Rose
Guidance, Interpretation, and Information Regarding the Department of Education’s 2014 Dear Colleague Letter Addressing Bullying Among Students with Disabilities

Can you please explain the background and meaning of the guidance from the Department of Education?

Since 2000, the Office of Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) have issued a series of Dear Colleague Letters (2000, 2010, 2013, 2014) intended to provide clarity on the legal interpretation of bullying and disability-based harassment involving individuals with disabilities.

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While Dear Colleague Letters can serve many purposes, this particular series of letters has stemmed from several inquires made to OCR and OSERS regarding the implications related to preventing bullying and harassment among individuals with disabilities, interpretation of school districts’ legal requirements under federal statutes, and clarification regarding legal terminology.

More specifically, three fundamental issues have been addressed within these Dear Colleague Letters related to bullying among individuals with disabilities.

  1. The legal interpretative difference between harassment and bullying was established, where bullying constitutes behaviors that are grounded in peer-level aggression and can take various forms (e.g., physical, verbal, social, electronic, sexual) and harassment represents aggression for which an individual has legal protection (e.g., race/ethnicity, gender, disability). However, in most cases, federal law has interpreted these differences as immaterial, suggesting that schools should interpret reports of bullying and/or harassment of individuals with disabilities by the nature of the conduct, not the label used to describe the incident. This interpretation is critical because it establishes the precedence for using either term as a basis for violations of federal law. In other words, parents can use the term bullying to represent harassment, which is the legally protected term in federal law.

  2. These Dear Colleague Letters provided guidance related to disability-based harassment or bullying that may constitute federal violations above and beyond state, district, or school anti-bullying policies. More specifically, if a student is victimized due to a disability or characteristics associated with a disability, and a school or district fails to address this type of victimization, they may be in violation of Section 504 of the Rehabilitation Act and/or Title II of the Americans with Disabilities Act.

  3. If the bullying is directed toward and individual with a disability, but does not constitute disability-based harassment (i.e., not directly associated with the disability), and educational environmental changes are made as a protective measure, the legal provisions of FAPE and LRE may be violated under IDEA. Therefore, this series of Dear Colleague Letters was issued to inform districts, schools, parents, and individuals with disabilities of their legal rights, and provide guidance to take the necessary steps to rectify the situation.   

What does this mean for special education teachers?

First, it should be noted that the legal requirements for addressing bullying among students with disabilities did not change as a result of the most recent Dear Colleague Letter. This letter was designed to provide guidance to districts, schools, and teachers in order to prevent bullying among this population of students. However, special education teachers must be aware of these provisions when designing, recommending, and individualizing supports for students with disabilities.

Ultimately, a school is responsible for addressing incidents of bullying involving students with disabilities if the incidence is known or it is reasonable that the school should have known that the bullying was occurring. Therefore, if a special education teacher suspects that a student with a disability is involved in bullying, the school must take immediate and appropriate actions to conduct a prompt, thorough, and impartial investigation.

As previously stated, two considerations must be made when conducting the investigation. First, was the bullying based on disability status or disability characteristics that created a hostile environment that interferes or limits the student’s ability to participate in or benefit from the services, activities, or opportunities offered within the school, where the bullying was encouraged, tolerated, not adequately addressed, or ignored by school employees? Second, did the bullying or the school’s response to the bullying result in a loss of meaningful education benefit?

  
While schools must conduct an investigation for each potential civil rights violation, the key to responding to reported bullying and/or harassment of individuals with disabilities is to collect data, take measures to eradicate the bullying, and provide students with a meaningful education that is free from bullying. Therefore, it may be prudent to convene an IEP meeting to determine if the bullying has led to changes in individual need, assess what additional services or supports may be necessary to prevent bullying, determine what skills (e.g., social, communication) should be incorporated into the IEP to reduce the long term outcomes associated with bullying involvement, and evaluate environmental changes to reduce the potential of a hostile environment.

Most importantly, an IEP team should always make educational placement decisions, and these IEP teams should exercise caution when changing placement as a ‘protective’ measure, as increased restrictiveness may result in a violation of LRE. As always, the IEP should be individualized and designed to provide the maximum educational benefit, while supporting the unique needs of the student.

How can I help my administrator understand these new guidelines?

The most important issue related to addressing bullying involving students with disabilities is a direct understanding that the immediate resolution may be above and beyond the state, school, or district’s anti-bullying policy. While it is recognized that a majority of the nation’s states have enacted anti-bullying legislation, bullying that is grounded in disability-based harassment may violate Section 504 of the Rehabilitation Act and/or Title II of the Americans with Disabilities Act, and responses to bullying involving individuals with disabilities that results in changes in educational placement may violate the FAPE and LRE provisions of IDEA.

Ultimately, schools should know their responsibilities under state and federal law, develop and maintain active anti-bullying policies and programs, take an active role in training all stakeholders in anti-bully prevention, have clear protocols and procedures for reporting and investigating, and maintain active documentation procedures.

The courts have established five guidelines, based on Davis v. Monroe County Board of Education, that help schools determine if a civil rights violation occurred:

  • Did the conduct represent harassment or bullying?
  • Was the harassment due to a legally protected attribute (i.e., disability status)?
  • Was the harassment or bullying severe, persistent, and/or pervasive, where it limited or denied participation in typical educational activities or created a hostile environment?
  • Was the school or district notified of the harassment or should they have reasonably known about the harassment?
  • Did the school or district take the appropriate action to respond to the harassment or bullying once they were notified?

For further information regarding these guidelines, I would refer administrators to a short book from LRP Publications entitled Disability-Based Bullying and Harassment in the Schools: Legal Requirements for Identifying, Investigating, and Responding (2012) by John W. Norlin. In addition to the information that I have outlined above, this publication provides clear guidance for schools when responding to potential civil rights violations that are related to bullying involving individuals with disabilities.

Beyond civil rights violations, administrators must also recognize the importance and functionality of the IEP, where the IEP is designed to ensure FAPE within the LRE. Therefore, administrators and teachers must be willing to collect data regarding reported bullying incidences, and make data-based decisions that address the bullying and prevent hostile educational environments. Consequently, an IEP team should be formed to review the data, so an informed decision on placement and services can be made to ensure the student is receiving a meaningful education in the least restrictive environment that is free from bullying and harassment.

How can educators be proactive to prevent these behaviors and what to do when they happen?

Overall, being proactive and immediately addressing bullying when it occurs is key to reducing bullying among all students, including students with disabilities. While this answer can be incredibility complex and based on individual situations, I believe teachers should consider the following four points when addressing bullying within their classrooms:

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  1. Stay informed by becoming an active consumer of bullying literature by reading scholarly publications, attending professional conferences and in-services, evaluating and interpreting federal and state laws, becoming involved in professional communities, and accessing credible websites designed to reduce bullying (see Lewis & Rose, 2013 for website recommendations).

  2. Teachers should document bullying incidences and collect data. The key to any active prevention program is to understand the typographies of behaviors that are occurring in the school and make data-based decisions that are designed to address these specific subsets of behaviors. Actively collecting data and documenting behaviors can help align anti-bullying programs to the unique needs of a school, while allowing for fluidity and revisions within the program as behaviors change and evolve. Most importantly, by employing frequent data collection periods, a school can efficiently determine a program’s success.

  3. Teachers should teach skills related to reducing bullying involvement. For example, a growing body of literature suggests that the two most notable predictors of the bullying involvement of students with disabilities are lack of social and communication skills. Therefore, teachers could incorporate activities in their daily curriculum that reinforce socially appropriate social and communication skills without directly implementing a prescribed anti-bullying program.

  4. Teachers and schools should maintain an active protocol for reporting and responding. Students need to know how to report bullying incidences, whether they experienced or observed the victimization, and know that there is a protocol in place to investigate the incident and protect them from increased aggression as a result of their report. I believe that students, teachers, parents, and administrators all need to be aware of these procedures in order to create a safe and protective environment for all students.

CEC Member Chad A. Rose, Ph.D., is an assistant professor in the Department of Special Education at the University of Missouri – Columbia. Dr. Rose’s research focuses on the intersection of disability labels and special education services within the bullying dynamic, unique predictive and protective factors associated with bullying involvement among students with disabilities, and bully prevention efforts within a PBIS framework. Recently, he has authored or co-authored several empirical investigations, book chapters, and reviews that explore the interplay between special education identification and bully perpetration and victimization.