By: Jessica Weinberg, Co-Founding Partner 

It is well known that children with disabilities are disproportionality more likely to be bullied than their peers without disabilities. The New Jersey Anti-Bullying Bill of Rights Act (“ABBRA”) and the regulations implementing it were designed to help prevent and properly respond to incidents of harassment, intimidation and bullying (“HIBs”) of students in public school.¹ It offers protection to students who are reasonably perceived as being targeted based on any distinguishing characteristic, including but not limited to, a mental, physical or sensory disability.

Bullying of a student with disabilities may also be deemed a form of discrimination under Section 504 of the Rehabilitation Act of 1973 (“Section 504”), Title II of the American with Disabilities Act (Title II”), and the New Jersey Law Against Discrimination (“NJLAD”). ABBRA and the aforementioned anti-discrimination laws are critical to protect individuals who, but for their disability, would not have been bullied or harassed.

What happens when a student with disabilities is bullied?

What happens when a student with disabilities is bullied, and it interferes with his/her/their ability to access the educational services/accommodations set forth in an IEP or 504 Plan? Students with disabilities who receive special education services from the school district are entitled to receive a free and appropriate public education (FAPE) in the least restrictive environment.² What a parent might not know, however, is that when a district fails to respond appropriately to the bullying of a student with disabilities, regardless of whether or not that bullying is based on the student’s disability, it may amount to a denial of that student’s right to a FAPE.

The law is not plentiful in this regard in New Jersey, however, it is clear – bullying may be a denial of FAPE, for which a court can award tuition reimbursement and attorneys’ fees. In 2004, the U.S. Court of Appeals for the Third Circuit upheld a decision of the Administrative Law Judge (“ALJ”) when it concluded that the District Court did not give due weight to the decision of the ALJ.³ The ALJ decided that the school district could not provide P.S. with a “free appropriate public education,” as required by the IDEA (20 U.S.C. § 1412(a)(1)) because of the “legitimate and real fear that the same harassers who had followed P.S. through elementary and middle school would continue [to bully him.]” As such, the judge ordered the school district to reimburse P.S.’s parents for the out-of-district tuition for a private school and related costs, including reasonable attorneys’ fees.⁴

Subsequently, in 2013, the U.S. Office of Special Education and Rehabilitation Services issued a Dear Colleague Letter (OSERS letter) that clarified that when a student with disabilities who needs or may need FAPE services because of their disability is bullied, it can result in the denial of FAPE that must be remedied under Section 504. ⁵

In addition, the U.S. Department of Education has issued guidance on the factors considered when determining whether a student with disabilities who was bullied was denied a FAPE,  the steps that must be taken by a district when a student with disabilities is bullied, and when a parent may file a request for a due process petition with the NJ Department of Education, Office of Special Education Programs, based on a denial of a FAPE due to bullying.

The factors considered by the Office of Civil Rights when investigating whether a student receiving services under an IEP 504 Plan who was bullied was denied a FAPE, include:

(1) whether the school knew or should have known that the effects of the bullying may have affected the student’s receipt of IDEA FAPE services or Section 504 FAPE services; and

(2) if the answer is “yes,” whether the school met 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.⁶

A school district’s obligations under the IDEA when bullying of a student with disabilities

A school district’s obligations under the IDEA when bullying of a student with disabilities occurs are stated in the 2013 OSERS Letter: (1) to convene a meeting of the IEP team to determine if the bullying has caused the student’s needs to have changed to the extent that the IEP is no longer effective to provide a meaningful educational benefit; and (2) if the IEP is no longer designed to provide a meaningful educational benefit to the student, determine to what extent additional or different special education or related services are needed to address the student’s individual needs and revise the IEP accordingly. Any decisions made by the IEP team must be consistent with the IDEA provisions addressing parental participation and should keep the student with a disability in the original placement or setting (e.g., the same school and classroom) unless the student can no longer receive a FAPE in that placement or setting. In addition, the district has an ongoing obligation to make certain the student continues to receive a FAPE. ⁷

Regarding a parent’s right to initiate a due process petition, the OSERS Letter advised that a parent may request a due process proceeding with the NJ Department of Education, Office of Special Education Programs, based on a denial of a FAPE due to bullying if three factors are met: (1) The act(s) against the student with a disability are severe enough to rise to the level of bullying, as defined by the U.S. Department of Education’s Office of Special Education and Rehabilitation Services (the definition of bullying under ABBRA is not the same), as “characterized by aggression where the aggressor(s) has more real or perceived power than the target, and the aggression is repeated, over time;” (2) The bullying must interfere with, or will interfere with, that student’s ability to make meaningful educational progress, such as declining grades, school refusal, and emotional issues; and (3) The district fails to address the bullying by taking appropriate steps in order to ensure the student continues to receive appropriate programs and services so that they can make meaningful progress.⁸

Lastly, the OCR letter provided additional guidance to schools that “bullying on any basis of student with a disability who is receiving IDEA FAPE services or Section 504 FAPE services can result in a denial of FAPE under IDEA that must be remedied under Section 504.” ⁹ Therefore, when a student with disabilities is bullied, it is irrelevant whether the bullying is based on the student’s disability — if it impacts the student’s right to FAPE, a parent can request a due process proceeding.

Whether or not the remedies discussed above or the guidance provided by the U.S. Department of Education are effective is the subject of another blog. However, at least it’s reassuring to know that children with IEPs and/or a 504 Plans are afforded protections of their essential educational rights when bullying is involved.

Should you need any assistance navigating an issue with your school district, please contact our office at (973) 376 –7733 or admin@manesweinberg.com.

Disclaimer: The information contained herein is provided for informational purposes only. Nothing herein is intended as legal advice and should not be construed as such, nor does it create or constitute an attorney-client relationship between Manes & Weinberg, LLC. and the user. Consult your attorney for any specific legal advice.