We had great participation in our IAASE session last week on this topic, with the audience voting electronically to weigh in on their anticipated outcomes of cases. If you missed it, here are our main takeaways.
When it comes to bullying and special education, districts face potential liability on a number of fronts, including lawsuits, OCR complaints, and due process complaints. To mitigate these risks, districts need a two-pronged approach and clear communication. First, districts should follow their bullying policies to fully investigate reports of bullying and take steps that are reasonably calculated to stop the bullying, prevent its reoccurrence, and remedy its effects. Second, districts should convene the IEP or 504 team if it appears that the student’s needs may have changed and consider whether different or additional services are needed to provide FAPE. Finally, staff in charge of the investigation and response should be in communication with special education staff to ensure that both of these processes are moving forward.
Reviewing recent cases, we identified a common source of liability: the IEP team refuses to discuss bullying, instead directing parents to the bullying policy. These processes are complimentary, not mutually exclusive. The second common source of liability was child find. Students may be vulnerable to being bullied or prone to bullying behavior if they have communication deficits, social skills deficits, or difficulty with emotional regulation, which in turn may be signs the student should be evaluated. On the other hand, districts that take (and document!) reasonable steps to stop the bullying, respond to student needs, and communicate with parents are more likely to prevail in these disputes.
Speaking of documentation and parent communication, we fielded a great question about what information can and should be shared with parents. The parents of a student who reports bullying should be informed that the complaint was investigated, whether it was founded, and of any follow-up actions that directly impact their child. Closing the loop with parents goes a long way to ensure that they feel the school heard them and took appropriate action. And that can help you avoid lawsuits, OCR complaints, and due process complaints.