More than a year ago, I posted information on bullying of students with disabilities in public schools. Recently, there have been new court decisions and memorandum from the U.S. Department of Education, Office for Civil Rights that further explain disability related harassment and how students with disabilities can seek protection under the law from such harassment at school. I am speaking at the 46th Annual Autism Society Conference in July in Denver, Colorado along with self-advocates on the topic of bullying. I will be presenting on the legal protections for students with disabilities concerning disability related harassment. You can find important legal information on the subject on disability related harassment on several memorandum issued by the U.S. Department of Education, Office for Special Education Programs and Office for Civil Rights on the Internet. This
There are several points that are important to your understanding of the right to file a complaint with the U.S. Department of Education or the Georgia Department of Education when you believe that the school system has failed to address and remedy any acts of disability related harassment of your child. First, you can file a complaint with the Georgia Department of Education only for an IDEA violation. The legal analysis for an IDEA violation is different from a Section 504 violation when your child is being bullied. An IDEA violation requires that the parent show that a hostile environment has been created by the bullying that denies the child a free appropriate public education. A Section 504 violation, however, requires that a parent show the child is a student with a disability, that bullying has occurred because of the student’s disability, and the school system has not addressed and remedied the acts of bullying of the child. It is perhaps easier to show a procedural violation of Section 504 when bullying occurs because the school system must investigate all complaints of bullying and issue findings including informing the parent of the outcome of the school’s investigation. There are published Office for Civil Rights decisions that illustrate how school systems were found in violation of Section 504 when no investigation occurred, or the investigation fell short of determining whether bullying of a student with disabilities occurred. You can also raise under Section 504 the school district’s lack of a compliant policy on disability related harassment. You should check your own school system’s policy on disability related harassment and determine if it meets the standards and criteria set out in the Office for Civil Rights and Office of Special Education Programs memorandum that are mentioned and incorporated into this post. I would suggest, however, using caution in doing this. My advice is that you should consult with an attorney specializing in the area of special education law to seek advice on this subject because there are many legal complexities to determine whether the school system has violated either Section 504 or the IDEA when disability related harassment is alleged by the parent. Between the remedies provided by Section 504 and IDEA remedies, you should be well prepared and armed to address the failure of the school system to appropriately address and remedy any acts disability related harassment for your child.
I will be glad to sent you a copy of the Office for Civil Rights and Office for Special Education Program memorandum on disability related harassment at your request.