The U.S. Department of Education’s Office of Special Education and Rehabilitative Services (“OSERS”) published a new “Dear Colleague” letter in August which discusses best practices for handling of bullying cases involving a student with a disability.  The letter describes that the bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE.  The letter stresses that students with disabilities are disproportionately affected by bullying.  Due to the characteristics of a student’s disability, he or she may also not understand the extent to which the bullying is harmful and may not be able to communicate the problem to an adult.  The letter states that even if the bullying is not related to the student’s disability, if the result of the bullying is the student not receiving meaningful educational benefit, then there is a denial of FAPE.  

The letter describes that schools have an obligation to ensure that a student with a disability who is the target of bullying continues to receive FAPE under his or her IEP.  In response to the bullying of a student with a disability, the school should convene a PPT meeting and determine if the student’s IEP is still meeting the student’s needs.  The letter indicates that the PPT should use caution when considering a change in the student’s placement or the location of the student’s services in response to the student being bullied.  The PPT should keep the student in his or her current placement unless the student can no longer receive FAPE at that placement.  The PPT should keep in mind that a student with a disability must be placed in the least restrictive environment.  Therefore, the school should avoid placing the student in a more restrictive or protective setting as a means of avoiding the bullying behavior.  The letter states that schools should also not resolve bullying situations by unilaterally changing the frequency, duration, intensity, or location of the student’s special education and related services.  These decisions must be made by the student’s PPT and must be consistent with the provisions set forth in the IDEA.  If the student who engaged in the bullying is a student with a disability, the student’s PPT should review his or her IEP and determine if the student needs additional supports or services in order to address the inappropriate behavior.

OSERS included an enclosure with the letter describing effective practices for preventing and addressing bullying.  The guidance states that schools should set up a strategy for addressing bullying behavior which is part of a comprehensive multitiered behavioral framework to create a positive school environment.  Students and staff should understand the behavioral expectations under such strategy.  To prevent bullying the guidance suggests the teaching of appropriate behaviors and how to appropriately respond when bullying does occur.  Adults are encouraged to move continuously through common areas in order to teach and model expected behavior as well as to intervene early to correct problems.  There should be ongoing training and support for all staff members and for the students.  The guidance states that this is especially important when dealing with the bullying of students with disabilities as they may not understand manipulative or exploitative behavior.  Schools are encouraged to develop clear antibullying policies and procedures and to widely disseminate those policies.  It is also suggested that data be collected to monitor and track bullying behavior.  This will assist in decision making and policy making in the future.  Student’s parents should also be notified if their child has been bullied or engages in bullying behavior.  Concerns regarding bullying should be addressed in order to determine if policies and procedures are working or if changes need to be made.  Bullying prevention efforts must be sustained over time in order to maximize their effectiveness.  The take away from the letter and accompanying guidance is that the bullying of a student with a disability can result in a denial of FAPE and this behavior cannot be tolerated by the school.