Bullying happens every single day. Schools have the responsibility to investigate incidents of bullying and discipline students who bully. Students with disabilities are at an increased risk of being bullied. In a recent due process decision, the Office of Administrative Hearings held that bullying of a student with a disability that deprives the student of meaningful educational benefit, it can constitute a denial of a FAPE under the IDEA.
A district may deny a student FAPE by failing to address reported bullying. Parents v. Colton Unified School District (OAH #2017060750) An IEP team should at least discuss the issue, document the conversation, and determine the impact, if any, on a student’s receipt of FAPE. Formal procedures for investigating bullying are separate from the IEP team’s obligations.
Making a determination of whether bullying has denied a student FAPE requires the following analysis:
- Whether bullying occurred; and
- Whether the bullying resulted in the student not receiving educational benefit.
A determination must be made of whether bullying occurred. The IDEA does not contain a definition for bullying. The California Education Code defines it for the purposes of possible suspension or expulsion. California Education Code Section 48900(r)(1) states:
(1) “Bullying” means any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, and including one or more acts committed by a pupil or group of pupils as defined in Section 48900.2, 48900.3, or 48900.4, directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following:
(A) Placing a reasonable pupil or pupils in fear of harm to that pupil’s or those pupils’ person or property.
(B) Causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health.
(C) Causing a reasonable pupil to experience substantial interference with his or her academic performance.
(D) Causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities, or privileges provided by a school.
Once a determination is made as to whether bullying has occurred, a determination must be made as to whether the student has lost any educational benefit. There is no clear rule governing how much of a change in academic performance or behavior is required. A school must be given a reasonable opportunity to prevent or address the bullying. M.L. v. Federal Way School District (9th Cir. 2005) 394 F.3d 634. A disabled student is deprived of a FAPE when school personnel are deliberately indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child with learning disabilities in his or her educational opportunities.
School districts have an obligation to protect all students from bullying. Taking disciplinary action against a student who engages in bullying may not be enough. If the student has disabilities, the IEP team may need to convene to discuss the bullied student’s needs.
If you believe your child is being bullied, do not ignore your concerns. You need to alert school staff so they can conduct an investigation. If your child has an IEP for disabilities, determine if it is necessary to call and IEP team meeting.
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