1. “GIVE ME YOUR LUNCH MONEY” OCR’s CURRENT GUIDANCE ON BULLYING, HARASSMENT AND STUDENTS WITH DISABILITIES by William M. Buechler

2. Bullies in the past...

3. Bullies in the present...

4. BACKGROUND INFORMATION Students with disabilities are much more likely to be bullied than their nondisabled peers More than 50% of bullying situations stop when a peer intervenes Self-advocacy is critical for students with disabilities Bullying is not a harmless rite of childhood passage that everyone experiences OCR does not differentiate between teasing, bullying, hazing, etc. The focus is on the nature of the conduct

5. NEGATIVE IMPACTS FROM BULLYING School avoidance and higher rates of absenteeism Decrease in grades Inability to concentrate Loss of interest in academic achievement Increase in dropout

6. HOW IS BULLYING DEFINED? Overt physical behavior Unwelcome conduct such as verbal abuse, name-calling, or slurs Graphic or written statements Threats Cyberbullying

7. OVERVIEW OF FEDERAL PROTECTIONS OCR enforces Section 504 OCR enforces Title II OSERS enforces IDEA, but OCR enforces the 504 and Title II rights of IDEA eligible students

8. SCHOOLS’ OBLIGATIONS TO ADDRESS DISABILITY-BASED HARASSMENT Legal protections extend to all students with disabilities, including students who have a record of a disability or are regarded as having a disability, and students with disabilities who are not receiving services under 504 or IDEA. When a school knows or should know of bullying conduct based on a student’s disability, it must take immediate and appropriate action to investigate or determine what occurred.

9. SCHOOLS’ OBLIGATIONS (CON’T) If a school’s investigation reveals that bullying based on disability created a hostile environment- i.e., the conduct was sufficiently serious to interfere with or limit a student’s ability to participate in or benefit from the services, activities or opportunities offered by a school-the school must take prompt and effective steps reasonably calculated to end the bullying.

10. STANDARD OF REVIEW OCR will find a disability-based harassment violation when: 1. a student is bullied based on disability; 2. the bullying is sufficiently serious to create a hostile environment; 3. school officials know, or should know about the bullying; and 4. the school does not respond appropriately.

11. THOUGHTS ABOUT THE STANDARD If a teacher or other responsible employee witnesses the bullying, the school will be deemed to have knowledge. OCR’s administrative standard is less than the standard for plaintiffs seeking monetary damages. There is no requirement of a school’s actual knowledge and deliberate indifference. The school’s investigation should include determining whether the student’s receipt of services may have been affected by the bullying.

12. BULLYING AND A DENIAL OF FAPE A change in academic performance or behavior may trigger the school obligation to convene an ARD/504 meeting. Factors to consider include, but are not limited to: 1. a sudden decline in grades; 2. the onset of emotional outbursts; 3. an increase in the frequency or intensity of behavioral interruptions; or 4. a rise in missed classes or related service sessions.

13. BULLYING AND A DENIAL OF FAPE When bullying results in a disability based harassment violation, it will not always result in a denial of FAPE. If the conduct affected the student’s receipt of FAPE, the school should determine whether, and to what extent: 1. the student’s educational needs have changed; 2. the bullying impacted the student’s receipt of FAPE; 3. additional, or different services, if any, are needed.

14. DISABILITY-BASED HARASSMENT OCR CONSIDERATIONS 1. Was a student with a disability bullied by one or more students based on the student’s disability? 2. Was the bullying conduct sufficiently serious to create a hostile environment? 3. Did the school know or should it have known of the conduct? 4. Did the school fail to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects

15. DENIAL OF FAPE OCR CONSIDERATIONS 1.Did the school know or should it have known that the effects of the bullying may have affected the student’s receipt of FAPE? If the answer is “no”, there would be no FAPE violation. IF the answer is “yes”, then OCR would consider: 2. Did the school meet its obligation to ensure FAPE by promptly determining whether the student’s educational needs were still being met, and if not, making changes, as necessary, to his or her IEP or Section 504 plan?

16. OCR HYPOTHETICAL EXAMPLES Will OCR find these situations to be bullying?

17. OCR HYPOTHETICAL 1 A student with ADHD and a speech disability fully participates in the classroom, interacts with peers at lunch and recess, and has two speech sessions per week. His IEP calls for teachers and trained staff to supervise him during transition times, provide constructive feedback, and help him use preventative strategies to anticipate and address problems with peers. Because of his disabilities, he makes impulsive remarks, speaks in a high voice, and has difficulty reading social cues. Three months into the school year, other students mocked his voice and called him “weirdo” and “gay” during PE. They also directed him to ask other students inappropriate personal questions. The PE teacher witnesses the taunting, but neither reports the conduct nor applies the behavior supports. She simply tells him to focus less on the kids and more on getting his head into the game. As the taunting intensifies, the student begins to withdraw from interacting with kids and avoids them at lunch and recess. He misses a few speech sessions, but the therapist fails to report the absences to the ARD or school officials. How will OCR analyze this scenario?

18. OCR DETERMINATION In this example, OCR would find a disability-based harassment violation. Also, OCR would find a violation of FAPE. Possible corrective measures would include convening an ARD to determine if additional services are needed (including compensatory services), offer counseling, monitor whether bullying persists for the student and take action to stop it, develop a school-wide prevention plan, devise a voluntary school climate survey, train staff and parent volunteers, and revise district bullying policies.

19. OCR HYPOTHETICAL 2 A thirteen year old student with depression and PTSD who receives counseling is often mocked by peers for being poor and living in a homeless shelter. Her grades have dropped from A’s to B’s and C’s, she is neglecting to turn in assignments, and she regularly misses counseling sessions. When asked why she did not attend the sessions, the student told the counselor that they did not help. The counselor informed the principal about the missed sessions. Around the same time, the student’s teachers informed the principal that she had begun to struggle academically. The principal asked the counselor and teachers to keep her apprised if the student’s academic performance worsens, but did not schedule an ARD meeting. How will OCR analyze this scenario?

20. OCR DETERMINATION In this scenario, OCR would not find a disability-based harassment violation because the bullying incidents were based on the student’s socio-economic status, not her disability. Regardless of whether the school knew or should have known about the bullying, OCR would find a violation of FAPE. According to OCR, the adverse changes in the student were sufficient to put the school on notice of its obligation to convene a team meeting to determine the extent of FAPE-related problems and to make any necessary changes to services or to determine if reevaluation is necessary.

21. OCR HYPOTHETICAL 3 A seven year old girl with a food allergy to peanuts has a Section 504 plan that provides for meal accommodations, the administration of medicine, access to a peanut free table at lunch, and the prohibition of peanut products in the classroom. While on the bus one day, a fellow student grabbed the girl’s water bottle, took a drink from it, and stated that she had just eaten a peanut butter sandwich. The next day, anther student waved a candy bar with peanuts in front of the girl’s face and said that it was “time to eat peanuts”. Though the candy did not touch her face, the other students started chanting the same thing. The girl told her teacher, who promptly determined that the girl was not exposed to peanuts. The teacher then promptly informed the principal, who conducted a full investigation into the matter and took corrective and disciplinary action. That same week, the district conducted a 504 meeting to address any accommodations that were needed with the child’s plan. The principal met with the counselor to formulate and implement strategies to illustrate the school’s anti-bullying policies. Finally, the counselor continued to monitor the situation, and the girl did not experience any adverse changes in academic performance or behavior. How will OCR analyze this scenario?

22. OCR DETERMINATION Based on the school’s appropriate response to the incidents of bullying, OCR would not find a disability-based harassment violation. By taking prompt and reasonable steps to address the hostile environment, eliminate its effects, and prevent it from recurring, the school met its obligations under Section 504. By promptly holding a 504 meeting to assess whether the school should consider any changes to the student’s services in light of the bullying, the school met its independent obligation to provide FAPE under Section 504.

23. PRACTICAL TIPS FOR ADDRESSING BULLYING Adopt bullying practices and procedures Implement a bullying prevention program Train staff, particularly those working with students with disabilities Monitor places where bullying has historically occurred Investigate all complaints Maintain confidentiality as much as possible Develop and implement responses for victims and bullies Hold and ARD/504 meeting, if necessary Involve parents and the community