Bullying of Children With Disabilities: More From OCR Report

Seal of the United States Department of Education
Seal of the United States Department of Education (Photo credit: Wikipedia)

In a post last week, we informed you of the report issued by the United States Department of Education Office of Civil Rights on its enforcement activities for the last four years.  You can read that post here.

There is a lot of information in the report that should be helpful to parents and school staff as well as others interested in special education law.  In the next posts about the OCR report report, I want to focus on the issue highlighted in the report as a "cross-cutting issue" school bullying. I believe that it is significant that OCR devoted several pages to this hot button issue.

In future posts, we will discuss the examples of school bullying listed in the report and the OCR enforcement activity, but today we will be looking at a quote in the report about the 2010 Dear Colleague letter issued by OCR.  It should be noted that TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011), the leading case on bullying under IDEA, relied heavily on the Dear Colleague Letter, so this is not just a §504 issue. Those interested in bullying of children with disabilities should take note. You can view a press release here. You can read the entire 76 page report here.

The following is language from the OCR report:
"Cross-Cutting Issue: Combating School Harassment and Bullying
Bullying and harassment are harmful to students and the learning environment, and
are far too pervasive in our nation’s schools and colleges. As Secretary Duncan
explained: “Before we can educate our children, we have to make sure that we
are keeping them safe. We owe it to our students to provide a safe and healthy
environment in which to learn.”
Student misconduct that is sufficiently severe or pervasive to interfere with a
student’s ability to learn may trigger responsibilities under federal civil rights laws.
First-of-its-kind Policy
In 2010, OCR issued a “Dear Colleague” letter to discuss racial and national origin
harassment, sexual harassment, gender-based harassment, and disability
harassment because the civil rights legal implications of these issues previously had
not been made adequately clear to recipients. The guidance explains that the civil
rights laws enforced by OCR require that if an institution knows or has reason to
know about student-on-student harassment based on race, color, national origin,
sex, or disability, it must take immediate and effective action to eliminate the
harassment, prevent its recurrence, and, where appropriate, address its effects on
the harassed student and the school community. OCR’s policy guidance provides
examples of harassment and illustrates how a school should respond in each case.
The guidance also takes the important step of recognizing that harassment against
students of a particular religion may violate Title VI. Although Title VI does not
prohibit religious discrimination, members of religious groups who are subjected to
harassment on the basis of their national origin, including their actual or perceived
ancestry or ethnic characteristics, are protected by Title VI. For example, bullying
of Muslim or Jewish students may be based not merely on religious bias, but also
on bias relating to the students’ perceived ethnic or national origin. Schools thus
must determine whether harassment against members of religious groups is also
discrimination based on race, color, or national origin, and, if so, meet their Title VI
obligations in addressing such harassment.
The 2010 guidance document also makes clear that schools may violate Title IX by
failing to effectively respond to bullying or harassment of LGBT students. Title IX
does not cover discrimination based solely on sexual orientation, but harassment of
LGBT students constitutes sex-based discrimination if it is based on the student’s
failure to conform to sex stereotypes. For example, a student may be bullied
because he or she does not act or dress according to his or her classmates’ genderbased
expectations for boys or girls. In addition, the guidance states that Title IX
prohibits sexual harassment of all students, regardless of their actual or perceived
sexual orientation or gender identity. The guidance reminds schools and universities that
when harassment targets LGBT students, includes antigay comments, or is partly
based on a target’s actual or perceived sexual orientation, Title IX obligates the institution
to investigate and remedy any overlapping sexual or genderbased harassment of those
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