The U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) has recently restated its commitment to preventing bullying in schools. In a “Dear Colleague” letter issued on August 20, 2013, OSERS has once again stressed, as it has in that past, that “bullying of a student with a disability that results in the student not receiving meaningful educational benefits constitutes a denial of a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA).” As a practical matter, what this means is that if bullying of a child with a disability is so intensive and pervasive that she can’t make appropriate progress in school, the school district must find a remedy to stop the bullying. This can be done through an IEP meeting or through IDEA’s enforcement procedures, such as due process.
OSERS has issued new directives that make its most recent Dear Colleague letter more useful than past directives. It has made clear that schools cannot remedy bullying by isolating or restricting the placement of a child with a disability, who is entitled to be served in the least restrictive environment. Further, it attached an Enclosure entitled “Effective Evidence based Practices for Preventing and Addressing Bullying”. The enclosure encourages each school district to develop a “multitiered behavioral framework that engages the whole school community, and establishes and maintains positive, safe, and nurturing school environments conducive to learning for all students.” Specific recommendations include:
- Institute Positive Behavioral Interventions and Supports (PBIS) on a school-wide basis.
- Teach appropriate behaviors and how to respond.
- Provide active adult supervision.
- Train and provide ongoing support for staff and students.
- Develop and implement clear policies to address bullying.
- Monitor and track bullying behaviors.
- Notify parents when bullying occurs.
- Address ongoing concerns.
- Sustain bullying prevention efforts over time.
OSERS’ recommendations place behavioral issues front and center for entire school districts, and not just discrete populations within those school districts, addressing the argument of many disability advocates that the remedy for bullying is within the control of the perpetrator, not the child. OSERS’ enclosure may prove to be an effective advocacy tool for parents and disability advocates who are looking for systemic remedies for bullying that will stop problems before they start. Hickman & Lowder can offer support to parent advocacy groups looking for such multitiered solutions.
– Posted by Attorney Judith Saltzman