Students with disabilities are bullied at a higher rate than their peers. This is a problem the federal government has been tracking for years. Since 2009, the federal government has received about 2,000 complaints of bullying. But because a student has a disability, he/she might not receive the same protections as many of his/her peers.
The Education Department’s Office of Civil Rights is looking to change this. This week, Assistant Secretary of Civil Rights, Catherine Lhamon, sent a letter to the nation’s public schools regarding new legal guidance to bullying in an effort to clarify that federal anti-bullying protections extend to about 750,000 more students than schools thought.
Before this letter, the Education Department’s most recent guidance on this issue came in 2013 from the special education office, which oversees the enforcement of the Individuals with Disabilities Education Act (IDEA). However, not all students with disabilities are covered by IDEA. In reality, about three quarters of a million students are entitled to special education services under Section 504, but not under IDEA. In many cases, these students have been left out of schools’ attempts to police bullying.
This new letter has been sent to clear up the confusion as some schools believed that students with disabilities who didn’t receive IDEA were not entitled to the same protection as the students who did receive IDEA. An example of this is when students talk a student with a disability into behaving inappropriately. The student with the disability is often blamed and the students who encouraged the behavior (sometimes force the behavior) do not have any consequences. While this can happen to any student, students with disabilities are more susceptible. However, if a student does not receive IDEA, teachers are less likely to attribute the students actions to bullying and more to a behavioral problem. Under federal law, most students with disabilities have a right to a “free and appropriate public education,” but in some cases, bullying can prevent them from receiving it which pushes schools into noncompliance.
An investigation into the school would result in special resolution with the district that would require a re-evaluation of the student’s services, as well as counseling for the student and the development of school-wide anti-bullying policies and other federally mandated remedies.
When bullying occurs, the schools must assess whether the bullying is related to a student’s disability and whether the bullying affects a student’s ability to receive a free and appropriate education. Investigations can be triggered if the school knew or should have known about the disability related bullying, but did not report or respond to it.
After the bullying occurs, administrators should assess whether it has affected the student’s education opportunities. If it has, the student’s services should be adjusted accordingly. However, there are no hard and fast rules in determining if a student’s education has been interrupted. However, the onset of emotional outburst, increase in frequency or intensity of behavioral interruptions, or a rise in missed classes or sessions of section 504 services would be generally sufficient.
The anti-bullying laws are unevenly or ineffectually enforced for students with disabilities. The current legal standard is difficult to prove in court. While the new guidance is seen as a positive step, it is yet to be seen how much of a difference this makes.