In the last quarter, my most popular blog entry was the one dealing with ADA Compliance Auditing: Higher Education Version, and so I thought I would turn to education again. In this particular blog entry, the United States Department of Education Office for Civil Rights issued a Dear Colleague letter on October 21, 2014, talking about how the Office of Civil Rights would not tolerate bullying on the basis of disability. Here are the salient points:

1. The Dear Colleague letter cites to virtually no case law. With respect to disability-based harassment, the Office of Civil Rights says that the standard is the one for administrative enforcement of § 504 and in court cases where plaintiffs are seeking injunctive relief. They note that it is a different standard than the one contained in private lawsuit for money damages, which, according to the Office of Civil Rights, often requires proof of the school’s actual knowledge and deliberate indifference.

2. Just what is the standard for disability-based harassment? Standard adopted in this letter is a showing of: 1) a student is bullied based on disability; 2) bullying is sufficiently serious to create a hostile environment; 3) school officials know or should know about the bullying; and 4) the school does not respond appropriately.

3. Just what is a hostile environment? According to the letter, the conduct must be sufficiently serious to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school. This is a different standard than what I have seen, for example, from at least one place of higher education, which talks about harassment based on a protected characteristic in terms of whether it is so severe, persistent, or pervasive….

4. When investigating disability-based harassment, the Office of Civil Rights considers the factors laid out in paragraph 2 above, but does not limit itself to those factors. Also, if it does find that all of paragraph 2 above is met, then the Office of Civil Rights find a disability-based harassment violation under § 504. Further, if the student is also receiving services under IDEA or § 504, then the Office of Civil Rights also has a basis for investigating whether there was also a denial of a free appropriate public education under § 504. Obviously, the free appropriate public education piece does not apply to places of higher education. Finally, even if the answer to one or more of the elements in paragraph 2 above is no, if the student is receiving services under IDEA or § 504, the Office of Civil Rights may still consider whether the bullying resulted in a denial of a free appropriate public education that must be remedied.

5. If Office of Civil Rights goes on to investigate whether the student was denied a free appropriate public education as a result of the bullying based on disability, the Office of Civil Rights will also consider whether the school knew or should have known that the effects of the bullying may have affected the student receipt of free appropriate public education services under IDEA or § 504.

6. If the answer to paragraph 5 is no, then there is no free appropriate public education violation. If the answer on the other hand is yes, then the Office of Civil Rights goes on the consider whether the school met its ongoing obligation to ensure a free appropriate public education 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 § 504 plan.

7. If the answer to paragraph 6 is no, then there is a bit of a conundrum. The Dear Colleague letter quite literally says that only if the student is not receiving free appropriate public education services, would the school then be in violation of its obligation to provide a free appropriate public education services. That of course makes absolutely no sense. There must be a typographical error here. That is, the only fair conclusion is that if a student is receiving services under IDEA or § 504, and the school does not meet its ongoing obligation to ensure a free appropriate public education as described in paragraph 6 above, then in that case, there would be a violation of its obligation to provide a free appropriate public education.

Takeaways:

1. The Office of Civil Rights is letting k-12 schools know that bullying on the basis of disability is very much on their radar.

2. You do not see a lot of case law talking about hostile environment with respect to disability discrimination. You do see it with respect to harassment based on other protected characteristics. Hostile environment under this Dear Colleague letter may not match up with case law in your jurisdiction or with your school’s or University’s policies on hostile environment. It is possible that this particular letter has a lower standard for hostile environment (“sufficiently serious,” v. for example: so severe, persistent, or pervasive), than what case law in your jurisdiction might specify. Legal research by legal counsel may be in order to clarify this situation.

3. The Office of Civil Rights Dear Colleague letter is clearly focused on public elementary and secondary schools. However, they also get involved with places of higher education that receive federal funds. The question is whether the Office of Civil Rights will also adopt the hostile environment standard contained in this letter for higher education as well and whether courts will follow along.

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