In a recent special education due process hearing decision, the Office of Administrative Hearings held that a school district denied a student a free appropriate public education (“FAPE”) by failing to address allegations of bullying in an IEP meeting. Colton Unified School District (OAH No. 2017060750).
In this case, the parents complained multiple times to the school that their kindergartner with autism and a speech and language impairment was being bullied. The parents had reportedly observed other children taunting their son and excluding him from activities and had witnessed him coming home with unexplained injuries. Parents raised these concerns at an IEP meeting and suggested that the bullying may be the result of the student’s lack of social skills for which a behavioral aide might be warranted. In response, the school district informed the parents that there was a district bullying complaint form they could fill out. No further discussion occurred at the IEP meeting regarding the alleged bullying.
The hearing officer determined that the district denied the student FAPE by failing to address the reported bullying. The hearing officer explained that formal procedures for investigating bullying are separate from the IEP team’s obligations to address the impact of bullying on FAPE. Moreover, it did not matter that the reports of bullying were disbelieved or that the team felt the claims were better handled by the school’s discipline process. Instead, the IEP team should have at least discussed the parents’ concerns, documented the conversation, and determined the impact, if any, on a student’s receipt of FAPE.
IEP teams need to know that bullying of a student with a disability on any basis can result in a denial of FAPE. When investigating whether a student with disabilities who was bullied was denied FAPE, the Office of Civil Rights considers several factors, including, but not limited to:
1. Did the school know or should it have known that the effects of the bullying may have affected the student’s receipt of IDEA or Section 504 services? For example, did the school know, or should it have known, about adverse changes in the student’s academic performance or behavior indicating that the student may not be receiving FAPE?
2. Did the school meet its ongoing obligation to ensure FAPE by promptly determining whether the student’s educational needs were still being met, and if not, make changes, as necessary, to his or her IEP or Section 504 plan?
Ensuring that IEP and Section 504 teams adequately address bullying or harassment of a student with a disability will minimize potential liability under a variety of federal statutes, including the IDEA, Section 504, the ADA, and Section 1983, as well as under state law.
As always, with the turn of the calendar year comes the arrival of new laws taking effect in California. Legal guidance should be sought, and the specific statute consulted, before action is taken regarding any of these new bills. Several of these new laws will affect schools, including:
Employee Rights / Application Processes
AB 1008 – “Ban the Box” / No inquiry into criminal records on application forms
AB 1008 prohibits employers from inquiring about or considering a job applicant’s criminal record prior to a conditional offer of employment.
Under AB 1008, it is an unlawful employment practice under FEHA for an employer with 5 or more employees to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history.
An employer also cannot inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer.
AB 168 – Use of prior salary information
AB 168 prohibits employers from asking ask about an individual’s salary history during the job application process.
AB 168 also requires an employer, upon reasonable request, to provide the pay scale for a position to an applicant.
However, if an applicant “voluntarily and without prompting disclos[es] salary history information,” an employer may still “consider or rely on that voluntarily disclosed salary history information in determining the salary for that applicant.”
SB 250 – Provision of school lunches to students with unpaid school meal fees
SB 250 ensures that school officials do not “shame,” delay or deny food to hungry students as punishment for unpaid school meal fees.
SB 250 also requires schools to direct all efforts to collect unpaid school meal fees towards parents—not students—and forbids the use of a debt collector to recover unpaid school meal fees.
AB 10 – Free Feminine Hygiene Products
AB 10 requires public schools that serve students in grades 6 through 12 to provide free pads and tampons in half of its bathrooms if at least 40 percent of the school’s students fall below the poverty line.
Firearms on School Grounds
AB 424 – No Concealed Carry on School Grounds
AB 424 removed language in an earlier statute that let school superintendents provide written authorization for employees with concealed weapons permits to bring guns onto school campuses.
AB 1360 – Changes to Charter Petition Requirements
AB 1360 permits charter schools to include siblings of current charter school students and children of the charter school’s teachers, staff, and founders as categories given “enrollment preferences” in a charter school’s lottery process.
AB 1360 also requires charter petitions to specify what specific acts can result in a suspension or expulsion, and set forth due process procedures for suspensions/expulsions.
AB 1360 also allows charter schools to encourage parental involvement—whether through volunteer hours or donations—but prohibits charter schools from requiring parental involvement as a condition to acceptance or continuing enrollment in the school.