KALEVA LAW OFFICES
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TO:
MISSOULA COUNTY PUBLIC SCHOOLS
FROM:
KALEVA LAW OFFICES
SUBJECT:
OCR DEAR COLLEAGUE LETTER – HARASSMENT AND
BULLYING OF STUDENTS WITH DISABILITIES
DATE:
2/12/2016
On October 21, 2014, the U.S. Department of Education’s Office for Civil Rights
(OCR) issued a Dear Colleague Letter providing additional guidance on a school district’s
obligations regarding the harassment and bullying of students with disabilities. The letter
synthesizes previous guidance issued by OCR and the Office for Special Education and
Rehabilitation Services (OSERS) regarding this area and is intended to clarify a school
district’s obligations in light of the history of the guidance issued. This memo is
intended to summarize the new Dear Colleague Letter. We recommend that you read the
letter in full and have provided it to you.
In 2000, OCR issued a Dear Colleague Letter stating that the harassment and bullying of a
student with a disability may deny that student the right to equal educational
opportunities guaranteed under Section 504 and Title II of the Americans with
Disabilities Act. OCR stated that a student is denied equal educational opportunities if
harassment/intimidation/bullying creates a hostile environment, which is created if the
harassing conduct is sufficiently severe, persistent, or pervasive. OCR also stated in this
letter that disability harassment that adversely affects a student’s education might also be
a denial of a free appropriate public education (FAPE) under the Individuals with
Disabilities Education Act (IDEA) and/or Section 504 and the ADA. This letter can be
accessed at http://www2.ed.gov/about/offices/list/ocr/docs/disabharassltr.html.
In 2010, OCR issued another Dear Colleague Letter in response to the growing concern
about peer harassment in schools. While OCR praised districts for taking a more
proactive approach to reducing bullying through policy and other efforts, OCR
reminded districts that bullying may require a more comprehensive review and approach
than simply under an anti-bullying policy and disciplining the perpetrator. Because
bullying often relates to an individual’s membership in a protected class – disability,
gender, race, etc. – school districts may need to take additional steps to prevent
recurrence and eliminate any hostile environment. School districts should focus on the
nature of the conduct, rather than how the victim labels the incident, to determine if the
bullying is based upon the student’s membership in a protected class. School districts
should also look beyond disciplining the perpetrators and take a more systematic
approach to changing the school climate. OCR made it clear in this letter that school
districts must take the following steps when it knows or should in the exercise of
reasonable care know about harassment or bullying of a student with a disability1:
1. Take immediate and appropriate action to investigate or otherwise determine
what occurred. The nature of the investigation will vary depending on the nature
of the allegations, source of the complaint, age of the student/students involved,
and size and administrative structure of the school. There may be other factors
considered. All investigations must be prompt, thorough, and impartial. School
districts should have Section 504/ADA grievance procedures discussing
complaints and investigations.
2. Determine whether harassment and bullying occurred and whether there is a
hostile environment – conduct is sufficiently severe, persistent, or pervasive to
limit or interfere with the student’s ability to participate in or benefit from the
services, activities, or opportunities of the school.
3. If harassment and/or bullying occurred, take prompt and effective steps
reasonably calculated to end the harassment, eliminate any hostile environment
and its effects, and prevent the harassment from recurring. These steps can
include separating the harasser and target, providing counseling, taking
disciplinary action, providing training, and adopting/reviewing/revising policies
and procedures.
***Note*** the duties to investigate and stop harassment/bullying arise
regardless of whether the student or parent filed the complaint, asked the school
to take action, or identified the harassment has a form of discrimination.
4. Prevent retaliation.
In 2013, OSERS issued guidance to school districts to remind them of their obligations
to provide FAPE to students with disabilities under the IDEA. This letter is also
provided.
The October 2014 OCR letter is primarily intended to complement the letter issued by
OSERS. OCR’s October 2014 letter is intended to bring additional enforcement power
to OCR to address harassment/bullying of students with disabilities, regardless of
whether they are eligible under IDEA or Section 504. The following summarizes the
key points of OCR’s newest Dear Colleague letter and that adopts the IDEA standards
articulated by OSERS in its 2013 letter and applies them to IDEA and Section 504 and
the ADA:
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In its 2014 letter, OCR recognizes that the “know or should have known” standard is
one it has adopted for its enforcement and the standard used for the issuance of
preliminary injunctions to stop harassment. The standard in court for monetary
damages for harassment in violation of Section 504 is actual knowledge and deliberate
indifference, which is a much higher standard.
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
The steps required by the 2010 OCR letter regarding determining whether a
hostile environment occurred remain unaffected. Thus, when a school district
knows or should have known about harassment or bullying of a student with a
disability, it must determine through an investigation whether there is a hostile
environment.

Because a student’s education may be adversely impacted by a hostile
environment, a school district’s investigation must also include a second inquiry:
was the student’s receipt of appropriate services affected by the bullying?
This means that when investigating harassment/bullying of a student
with a disability (identified either under IDEA or Section 504), the
investigation needs to answer 2 questions:
1. Did the harassment/bullying result in a hostile environment?
2. Did the harassment/bullying adversely impact the student’s receipt of
educational services?

Even if harassment/bullying does not rise to the level of a hostile environment, a
student’s education may still have been impacted. Thus, the questions answered
in the investigation are two separate and independent questions.

A district has an obligation to consider the effects of bullying and harassment on
a student with a disability’s receipt of educational services regardless of whether
the bullying/harassment is based upon the student’s disability. In other words, if
a student with a disability is being taunted/teased because of his or her
socioeconomic status (i.e., poor), the harassment/bullying is not prohibited by
IDEA, Section 504, and the ADA, but the school district must still determine if
the student’s education was affected by the harassment/bullying.
***Note*** Montana school districts are required to adopt policies prohibiting
and effectively addressing harassment/bullying of a student on any basis.

There are no “hard and fast” rules to determine whether a student’s education
has been adversely affected. This means that school districts must look at
academic performance, attendance, and behavior. The following examples may
be an indication but are not exhaustive: a sudden decline in grades, onset of
emotional outbursts, increase in frequency or intensity of behavioral
interruptions, or an increase of absences in classes or sessions. Generally, a low
grade in one class for an otherwise straight-A student is not enough to signify an
adverse impact.

If there is a determination that bullying or harassment occurred, even if it does
not rise to the level of a hostile environment, and there is a concern about the
impact on the student’s education, the school needs to convene an IEP team or
504 team meeting (depending on whether the student is identified under IDEA
or Section 504). At this meeting, the team needs to determine the extent to
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which additional or different services are needed – i.e., compensatory education,
ensure that any needed changes are made promptly, and ensure that the student
targeted does not bear the burden of the bullying/harassment. This means that
unless the students IEP/504 team determines that the target student’s placement
needs to be changed for FAPE to be provided, the target student’s placement
should not change. If the target and the bully need to be separated, the bully
should be moved unless the target student’s placement needs to be changed by
the team for the provision of FAPE.

If the student is not yet identified as a student with a disability under IDEA or
Section 504 but is in the process, OCR will not be concerned about a denial of
FAPE to that student provided that the student’s evaluation is timely. In other
words, if the school follows the procedural requirements of IDEA or Section
504 in conducting a timely evaluation, it is unlikely that there will need to be a
consideration of whether there was a FAPE denial. If the student’s evaluation is
not timely, it will be necessary to determine whether there is a denial of FAPE.

If a complaint is filed with OCR regarding bullying/harassment of a student with
a disability, it will look at whether there is a hostile environment and whether
there has been a denial of FAPE under IDEA or Section 504/ADA. For
purposes of Section 504, the standards required by the ADA are the same so a
denial of FAPE under Section will also be a denial of FAPE under the ADA.

OCR will consider the following to determine whether there is disability-based
harassment prohibited by Section 504/ADA:
 Was a student with a disability bullied by one or more students based on
the student’s disability?
 Was the bullying conduct sufficiently serious to create a hostile
environment?
 Did the school know or should it have known of the conduct?
 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?
***Note*** this list is not exhaustive.
If the answer to all of the questions is “yes,” OCR would find that a school
district is engaging in disability-based harassment in violation of Section 504 and
the ADA. OCR would then determine whether there has been a denial of
FAPE. Even if the answer to one or more questions is “no,” OCR will still
consider whether there is a denial of FAPE.
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
OCR will consider the following to determine whether there has been a denial of
FAPE (either under the IDEA or Section 504/ADA):
 Did the school know or should it have known that the effects of the
bullying may have affected the student’s receipt of IDEA services or
Section 504 services? For example, did the school know or should it
have known about adverse changes in the student’s academic
performance or behavior indicating that the student may not be receiving
FAPE?
If the answer is “no,” there is no FAPE violation under either IDEA or
Section 504/ADA.
If the answer is “yes,” OCR would then consider:
 Did the school meet its ongoing 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?
If the answer is “yes,” there is no FAPE violation. If the answer is “no” and
the student was not receiving FAPE, OCR would determine that the school
district violated its obligation to provide FAPE.
OCR provided some examples of how it would view some hypothetical situations. It is
recommended that you review these examples and the letter.
If you have questions regarding your obligations in light of OCR’s and OSERS’s
guidance, please contact us.
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