Bullying at School: Resources and the Rights of Students with Special Needs

Students with disabilities are bullied at a higher rate than their typical peers. October is National Bullying Prevention Month, providing a good opportunity to review information about available resources and actions families can take.

According to Disability Scoop magazine, about half of individuals with autism, intellectual disabilities, speech impairments and learning disabilities are bullied at school. The rate of bullying for typical students is about 10 percent.

A student who is identified as having a disability has added layers of protection against bullying. Those protections are upheld by the United States Office for Civil Rights (OCR), which in 2014 issued a Dear Colleague Letter to remind school staff of their obligations to protect students with disabilities against bullying:

“While there is broad consensus that bullying is wrong and cannot be tolerated in our schools, the sad reality is that bullying persists in our schools today, and especially so for students with disabilities,” the letter states. “This troubling trend highlights the importance of OCR’s continuing efforts to protect the rights of students with disabilities through the vigorous enforcement of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act of 1990 (Title II). It also underscores the need for schools to fully understand their legal obligations to address and prevent disability discrimination in our schools.”

Students on Section 504 Plans and Individualized Education Programs (IEPs) qualify for the protections of a Free Appropriate Public Education (FAPE). Special services, accommodations and programming designed to meet specific, unique needs are what make education “appropriate” for a student with an identified disability. According to OCR, a school’s failure to address bullying can be determined as a denial of FAPE, “when a school knows or should know of bullying conduct based on a student’s disability.”

The OCR goes on to say that a school “must take immediate and appropriate action to investigate or otherwise determine what occurred. If a school’s investigation reveals that bullying based on disability created a hostile environment…the school must take prompt and effective steps reasonably calculated to end the bullying, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects.”

The U.S. Department of Education maintains an online blog called Homeroom. An article, Keeping Students with Disabilities Safe from Bullying, states that students will disabilities are particularly vulnerable because of physical issues, challenges with social skills and intolerant environments. “Students who are targets of bullying are more likely to experience lower academic achievement, higher truancy rates, feelings of alienation, poor peer relationships, loneliness, and depression,” the article states. “We must do everything we can to ensure that our schools are safe and positive learning environments—where all students can learn.”

Washington State defines harassment, intimidation, or bullying (RCW 28A.300.285) as “any intentional electronic, written, verbal, or physical act…” that:

  1. Physically harms a student or damages the student’s property
  2. Has the effect of substantially disrupting a student’s education
  3. Is so severe, persistent, or pervasive that it creates an intimidating or threatening educational environment
  4. Has the effect of substantially disrupting the orderly operation of the school

Every school district in the state has a staff member responsible for managing complaints related to Harassment, Intimidation and Bullying (HIB), and the Office of Superintendent of Public Instruction (OSPI) provides a resource list to help you locate the compliance coordinator with jurisdiction over your school. OSPI also provides a HIB Toolkit as part of its Safety Center. Among resources provided through the toolkit is a link to a national agency,  StopBullying.gov, which includes lists of suggestions for parents and what-to-do for teenagers.

Washington State’s Office of the Educational Ombudsman (OEO) provides guidance and model Incident Reporting Forms for parents and schools through its website, which includes some articles in both English and Spanish. “Bullying is not something schools and families should take lightly,” OEO states. “Bullying is a repeated negative behavior that takes advantage of a less-powerful person, and sometimes even makes the child who is bullied feel at fault. Hitting, name calling, shunning and shaming are all forms of bullying. So are spreading rumors, gossiping and making threats online.”

The PACER Center’s National Bullying Prevention Center, founded in 2006, has a vast array of resources for families and professionals. Here is a sampling of information from PACER’s Top 10 facts for parents, educators and students with disabilities:

  1. Students with disabilities are more likely to be bullied than nondisabled peers.
  2. Bullying affects a student’s ability to learn. For more information read PACER’s Common Views About Bullying. Bullying can lead to:
    1. school avoidance and higher rates of absenteeism
    2. decrease in grades
    3. inability to concentrate
    4. loss of interest in academic achievement
    5. increase in dropout rates
  3. Bullying based on a student’s disability may be considered harassment if it includes:
    1. unwelcome conduct such as verbal abuse, name calling, epithets, or slurs
    2. graphic or written statements
    3. threats
    4. physical assault
    5. other conduct that may be physically threatening, harmful, or humiliating
  4. Bullying could be determined to be disability-based harassment and/or a denial of Free Appropriate Public Education (FAPE), protected by the U.S. Department of Education’s Office for Civil Rights (OCR).
  5. All states have bullying prevention laws, and many school districts also have individual policies that address how to respond to bullying situations. Families can contact a local district to request a written copy of the district policy on bullying.
  6. Adult response is important. Parents, educators, and other adults are important advocates and need to know the best way to talk with children who might be reluctant to talk about what happened, perhaps because the bully threatened to retaliate if called out. PACER has letter templates parents can use to communicate with the school and also articles about how to talk with children about bullying and cyberbullying.
  7. The Individualized Education Program (IEP) can be adapted to help when bullying becomes a barrier to learning. The PACER center provides these IEP-specific tips:
    1. Identify an adult in the school that the child can trust for help.
    2. Determine how school staff will document and report incidents.
    3. Allow the child to leave class early to avoid hallway incidents.
    4. Hold separate in-services for school staff and classroom peers to help them understand a child’s disability.
    5. Educate peers about school district policies on bullying behavior.
    6. Ensure that school staff regularly remind the student that he or she has a “right to be safe” and that the bullying is not his or her fault.
    7. Request that school staff shadow the student who has been bullied in hallways, classrooms, and playgrounds.
  8. More than 50 percent of bullying situations stop when a peer intervenes. Most students don’t like bullying, but they may not know what to do when it happens. Peer advocacy is a unique approach that empowers students to protect those targeted by bullying.
  9. Self-advocacy can be fostered as a skill that helps the student with a disability talk about needs in a straightforward way. By being involved in what happens in response to the bullying, a student gains a sense of control over their situation. PACER Center’s Student Action Plan helps students define the situation, think about what could be different and write steps for action.
  10. Everyone has a role to play to help students see that no one deserves to be bullied and that all people should be treated with dignity and respect, no matter what. PACER center provides curricula under a program called, The We Will Generation.

Additional information and resources about bullying are available through the Center for Parent Information and Resources, CPIR, which maintains a website called the Parent Center Hub.

A child’s mental well-being may be impacted when bullying, teasing and intimidation become a pattern. If a student or family member needs someone to talk to in an emergent moment of crisis, these phone numbers may be helpful:

National Suicide Prevention Lifeline: 800-273-8255

General Teen Talkline: 800-TLC-TEEN

Trevor Project (issues related to sexuality): 866-488-7386

These and other hotlines and text lines are available through Suicide Hotlines.com.

 

Section 504: A Plan for Equity, Access and Accommodations

A Brief Overview

  • Section 504 is part of the Rehabilitation Act of 1973, which is upheld by the United States Office of Civil Rights.
  • This law protects access rights to public places and programs for individuals with disabilities. Accommodations that support access are guaranteed, and not providing access is a form of discrimination.
  • All students with qualifying disabilities are part of a protected class under Section 504, including those on 504 Plans and those on Individualized Education Programs (IEPs).
  • Section 504 protects a person with disabilities throughout life and covers individuals at work and in any public facility or program.
  • Key terms are equity and access to opportunity. A government-funded place or program provides whatever is needed so the person with a disability can benefit from the place or program. The opportunity is equitable when supports provide a way for the person to overcome the barrier of disability (to the maximum extent possible) to access the place or program that everyone else has the right to access.
  • Section 504 defines disability as an impairment that impacts a major life activity. If a student in school meets criteria, then the school provides what a student needs to access a Free Appropriate Public Education (FAPE) in the general education setting. ​
  • A Section 504 Plan determines what a student needs to receive equitable benefit from school.

Full Article

Section 504 is part of a law called the Rehabilitation Act of 1973, which is upheld by the United States Office of Civil Rights. This law is about access–to a public place or program. Section 504 protects a person for life and allows every student, employee or guest in a public institution to ask for and expect supports and productivity enhancers–what they need to succeed.

All children with disabilities who qualify for special services in school are protected by the provisions of the Rehabilitation Act. Students who qualify for Special Education are protected by Section 504 and the Individuals with Disabilities Education Act (IDEA). Children protected by IDEA have Individualized Education Programs (IEPs), and children who qualify for some support but do not meet the IDEA’s specific criteria may have Section 504 Plans. This article is primarily about Section 504 Plans. For more detailed information about the IEP, PAVE provides an article, Get Ready for School with IEP Essentials.

Education rights are like a pyramid: At the top of the pyramid is the IDEA (Individuals with Disabilities Education Act), which provides a full menu of special education programming and services for qualifying students.  Children at the top of the pyramid have all the protections of each of these laws.

At the center of the pyramid is Section 504, part of the Rehabilitation Act of 1973, which guarantees non-discriminatory rights to equitable access for individuals with disabilities.

ESSA (Every Student Succeeds Act) is at the bottom, providing all children in the United States the right to a free public education “to ensure that every child achieves.”

Schools are bound by Section 504 as “covered entities,” places or programs that receive money from the U.S. government. Schools provide access to Free Appropriate Public Education (FAPE) by helping students with 504 Plans to succeed in regular classrooms and school settings. The goal is to meet the student’s needs as adequately as the needs of nondisabled students to offer equity and access to opportunities. Keep reading to learn more about what equity truly means.

Section 504 defines disability as an impairment that impacts a major life activity. A school team considers a variety of information to consider whether a student qualifies for a Section 504 Plan. A formal evaluation is not required, and parent involvement is voluntary. The team asks:

  1. Does the student have an impairment?
  2. Does the impairment limit one or more major life activities?

The law is intentionally broad, so it doesn’t limit the possible ways that a student who needs help can qualify for that help. ​A list of possible impairments is, therefore, unlimited. Here are a few examples:

  • Physical disability that might affect mobility, speech, toileting or a human function: Spina Bifida, deafness, dwarfism, loss of a limb
  • Cognitive, psychiatric, or emotional disorder: intellectual disability (Down Syndrome), a specific learning disability (Dyslexia), a brain illness or injury (bipolar disorder, Traumatic Brain Injury), an emotional disturbance (anxiety, depression) ​
  • Major bodily functions: disease of the immune system, digestive or urinary issues, an impairment of the nervous system or heart

​A list of major life activities is also endless. Whether an impairment “substantially” limits a major life activity is determined individually. Some impairments affect the ability to practice self-care, and challenges in basic life tasks like walking, seeing, hearing, speaking, breathing, learning, and working are captured. Someone with sensory challenges might struggle to concentrate, think and communicate—all of those can qualify as major life activities. ​Really, any system in the body might have a challenge that creates a barrier for an individual and therefore can qualify as a disability.

A photo of a slide that states that a Major Life Activity Includes: walking, seeing, hearing, speaking, breathing, learning, working, digesting, toileting, eating, sleeping, standing, reading, concentrating, thinking, communicating and lifting

What the Law Says

The law states: “No otherwise qualified individual with a disability in the United States…shall solely, by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…”

The goal of a Section 504 Plan in school is to figure out what a student needs to be fully included and to receive equitable benefit from the government-funded program or service.

Equity doesn’t mean Equal

Supports and services for a student with a disability seek to provide equity. Equal opportunity would mean that all students get the same help. Getting the same help doesn’t give all students the same opportunity. In this picture, on the left, the little guy in the light blue shirt can’s see the game, even though he’s got the same platform as the taller guy. ​He needs a different platform to have the same opportunity to see the game.

The depiction of equality through the illustration of three children on a box and then justice is shown by making the boxes different sizes to serve the needs of each individual

The help that makes access to learning equitable puts the word Appropriate in FAPE– Free Appropriate Public Education.

Students with known disabilities get help and productivity enhancers to access the opportunities for success that all students have. If they need a taller crate—or an extra teacher, or a special swing on the playground, or training in Social Emotional Learning (SEL) or something else specific that gives them the same opportunity to learn, grow and benefit from school, then their civil right is to get the boost they need to have an equitable opportunity. ​

Accommodations and services create equity in order to give people a fair opportunity to succeed. This level of fairness can be called justice. 

Under Section 504, individuals with impairments have a right to get into public places—with ramps, elevators, braille labels on doors…whatever is needed for physical access. Other aspects of access are less obvious. Individuals with unseen disabilities have the right to accommodations that will make a program or service as effective for them as it is for the general population.

Positive behavior supports through a are an example of an accommodation that can help a student with a disability access the major life activity of learning. A BIP can be a stand-alone plan or can accompany a Section 504 Plan or an IEP. A BIP is developed after the school conducts a Functional Behavior Assessment (FBA). Parents sign consent for the school to conduct an FBA.

Section 504 Supports Inclusion and Bars Discrimination

Section 504 includes elements of inclusion. A person with a disability has the right to access the regular program unless special help and different options cannot work to provide that person with benefit from the program or service.

This is important in education: Students have the right to get help so they receive an equitable benefit from learning in the general education classroom. They move to a more specialized setting only if those supports fail to provide appropriate and equitable access. ​This is true for students on 504 Plans and IEPs.

Under Section 504, any alternative space or program must be “comparable.” Clearly, that’s subjective, but it’s important language to include in any discussion with the school if parents have concern that a child is not receiving an education that is equitable or comparable to that being offered to typically developing students. ​

According to the Office of Civil Rights, as an institution that receives government funding, a school is bound to avoid policies that might on purpose or accidentally exclude persons with disabilities. ​In other words, if a school’s policy or action creates a barrier to access for a student with a disability, the school might be cited for discrimination if the Office of Civil Rights did an investigation.

Here are examples of how Section 504 might impact a student:

  • The school helps a student succeed with other students in the regular classroom, which is the most integrated setting.​
  • If the student needs extra help or technology or a special place to sit, he/she gets that because the school is ensuring accessibility. ​
  • If the student needs to take a different test or get a homework deadline changed, then the school makes those reasonable modifications, which don’t fundamentally alter the program. ​
  • An auxiliary aid might be a 1:1 para, and the school district provides that. ​

Section 504 Protects Students Everywhere at School
Access rights are not limited to the classroom but include all aspects of school and learning. This is just a short list of school settings that are governed by Section 504:​

  • Classrooms​
  • School bus/transportation​
  • Lunch​
  • Recess​
  • PE (Physical Education)​
  • After-school Clubs​
  • Sports​
  • Field Trips

Are Parents Part of the Section 504 Team?

The Rehabilitation Act doesn’t require schools to involve family members in the administration of a 504 plan. However, the plan is managed by a responsible school staff member who notifies parents before a student is evaluated or placed on a 504 Plan and provides parents/guardians with a copy of the plan.

The school also provides written notification to parents about their rights to disagree through grievance procedures. The document that describes these procedures is called “procedural safeguards.” ​If a parent requests a formal evaluation for special education services, and the school district refuses, the school district must provide the parent with a written copy of the procedural safeguards.

How is a 504 Plan Different from an IEP?
The decision to include parents in 504 team meetings is determined by each school district. ​However, parents may contribute information such as doctor reports, outside testing reports and personal reflections and concerns. Schools are expected to make sound educational decisions about what the child needs to be successful.​

The fact that parent participation is not a guarantee of the law makes Section 504 different from the IDEA, which requires parental involvement in the IEP process. Here are a few other differences between these two laws:

  • A 504 Plan is nearly always implemented within the general education setting, whereas an IEP may include placement in a variety of inclusive and specialized settings.​
  • A 504 will NOT include academic goals, benchmarks, or measurements, which are key features of an IEP. ​
  • Under Section 504, a qualified student with a disability is protected regardless of whether the student needs special education. ​
  • An IEP is an educational program that follows a student through high school; a 504 Plan is a Civil Rights protection that follows a person throughout the lifespan.​
  • Remember, Section 504 is about equity and access, and the protections of the Rehabilitation Act cover students on Section 504 Plans and IEPs. ​

How are Discipline and Behavior addressed by Section 504?

​Students with disabilities are a protected class when schools administer disciplinary actions. If a student with a disability is suspended for multiple days within a school term, the school is required to have a meeting called a Manifestation Determination meeting. This requirement specifically states that schools hold this meeting by the 10th day of suspension.​

The school and family will go through a specific set of questions to determine whether the behavior that led to the suspension was caused by some aspect of the student’s disability. In other words, did the behavior manifest from the disability? ​

At that meeting, the team will decide whether the school followed the 504 Plan, the IEP, the specific behavior plan and/or its own disciplinary policies in making the decisions about what to do. If the team determines that the student’s disability was the cause of the behavior and/or that the school didn’t follow procedure, then the student may qualify for Compensatory Services—additional learning time—to make up for missed education during the suspension. ​

For a student with a Section 504 Plan, this meeting can also direct the school to conduct a comprehensive educational evaluation to see if the student’s disability qualifies that student for the full menu of special education options available under the IDEA—including an IEP.​  A website called School Psychologist Files has an article and a chart comparing Section 504 and IEP.

Here are a few points related to Section 504, discipline and behavior:

  • Students with disabilities can be disciplined. ​
  • Students with disabilities have special protectionsregarding discipline. ​
  • Schools cannot change a student’s “placement” without following the rules. Placement is where the student receives learning.  If the school disciplines a student with a 504 Plan in a way that changes the location where the student receives education, this may constitute a change in placement. The Office of Civil Rights has specific laws that govern what constitutes a change in placement and how schools respond. ​
  • ​Students with disabilities are a protected class. Schools have the right to discipline students to keep everybody safe, but the schools are bound by specific rules and regulations to make sure that their disciplinary actions aren’t discriminatory. ​
  • ​If a student with a disability keeps getting taken out of class because of behaviors, then the disciplinary actions might add up to a significant change in placement. The law states that this change is placement triggers a re-evaluation and opens the possibility that a higher level of special education service might be needed to support and protect this student with a disability. ​

Rules for Schools

Some parents are anxious about questioning actions taken by the school. It’s important to remember that parents also have protections under the law. The Office of Civil Rights maintains specific guidelines that do not allow schools to retaliate against parents for asserting their rights to participate in a student’s education. ​

Parents can reach out directly to the Office of Civil Rights:

  • OCR Seattle Regional Office at: 206-607-1600​
  • National: 800-877-8339 (TTY) or Federal Relay Service (FRS) at 1-800-877-8339 ​

Here are some additional resources for information about Section 504:

The United States Department of Health and Human Services: HHS.Gov

The U.S. Office of Civil Rights:  www2.ed.gov
Center for Parent Information and Resources (CPIR): parentcenterhub.org
Parent Guide to Section 504: GreatSchools.org
Office of Superintendent of Public Instruction (OSPI): k12.wa.us
For legal interpretations of Special Education and Section 504 Law: Wrightslaw.com