On August 20, 2013, the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (“OSERS”) issued a “Dear Colleague” letter that explains, in clear and unequivocal language, school districts’ responsibilities to prevent and address bullying of students with disabilities.As OSERS states, “Bullying of any student by another student, for any reason, cannot be tolerated in our schools.”  The letter focuses on students with disabilities because they are more likely than their non-disabled peers to experience bullying.  The OSERS advisory makes many useful points, including that:

• Bullying may deprive a special education student of his/her right to a free appropriate public education (“FAPE”).  Bullying violates FAPE if it causes a targeted student to fail to receive meaningful educational benefit from his/her program.  “A student must feel safe in school in order to fulfill his or her academic potential,” OSERS observes.  Nowhere does OSERS state that the district would need to receive advance notice of the perpetrator’s propensities in order for the bullying to constitute a denial of FAPE.

• Students who are not direct targets of bullying, but who see or hear about it, may suffer negative effects as well.  Presumably, students on IEPs who witness or learn about bullying may be denied FAPE if the climate of bullying is so toxic that it prevents them from receiving meaningful educational benefit.

• Bullying need not relate directly to a child’s disability in order to deprive the student of FAPE.

• Although bullying may involve overt physical aggression, it also encompasses “far more subtle and covert behaviors.”  One of these is cyberbullying, or “bullying through electronic technology (e.g., cell phones, computers, online/social media).”  This may include “offensive text messages or e-mails, rumors or embarrassing photos posted on social networking sites, or fake online profiles.”

• For students not already on IEPs, bullying may trigger the district’s “child find” obligations.

• The district must ensure that a bullied special education student continues to receive FAPE in accordance with his/her IEP.  As part of its response to bullying, the district should reconvene the child’s Team.  The Team must determine whether the student’s needs have changed because of the bullying, such that the child requires additional or different services.  Any change in services will require revision of the IEP.

• The Team may also need to consider whether the bullied student requires a change in placement.  A student with a disability who has experienced bullying should remain in his or her original placement, OSERS states, unless the student can no longer receive FAPE there.  OSERS cautions against placing students in “a more restrictive ‘protected’ setting to avoid bullying behavior” if doing so would violate the obligation to provide FAPE in the least restrictive environment (“LRE”).

• If the perpetrator of the bullying also has a disability, that student’s IEP Team should reconvene.  The Team must determine whether that student requires additional supports and services (and/or a change in placement) to address his/her inappropriate behavior.  The Team may also consider changes to the environment in which the bullying occurred.

• Even when a student is bullied, changes in his program or placement cannot be made unilaterally by the district, but must be made in consultation with the student’s parents (and can only be made with the consent of the parents).  We note that, except in cases of significant disciplinary infractions such as possession of a weapon on school property, the same is true for the student with disabilities who commits bullying.

• If the district fails to convene a bullied child’s Team of its own accord, the parents may request a meeting.  OSERS states that a district “generally must grant a parental request for an IEP Team meeting where a student’s needs may have changed as a result of bullying.”

Although OSERS’ letter emphasizes the rights of eligible students under IDEA, it alludes to the fact that bullying of students with disabilities (which would include students on Section 504 plans) can trigger districts’ responsibilities under other federal statutes as well.  These may include Section 504 of the Rehabilitation Act; Title II of the Americans with Disabilities Act; Title VI of the Civil Rights Act of 1964; and Title IX of the Education Amendments Act of 1972.  Some of these laws give parents and students the right to money damages. State laws, such as the Massachusetts Anti-Bullying Law (Chapter 92 of the Acts of 2010), may provide additional protection for students and impose additional obligations on districts.

OSERS’ guidance focuses on student-to-student bullying.  Importantly, however, OSERS acknowledges that teachers and school staff can also commit bullying and harassment.  Characterizing such behavior as “intolerable,” OSERS states that teacher/staff-to-student bullying and harassment may deny a disabled student FAPE, just as student-to-student bullying does.

OSERS’ letter underscores that schools must prevent and address the bullying of students with disabilities, and that bullying may deny a child’s right to FAPE.  You have rights if your child with special needs is the target of bullying or is accused of bullying.  If you need advice or clarification about your particular situation, you should consult an experienced special education attorney.

Eileen Hagerty is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.