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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.
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.
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?
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:
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:
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.