On September 21, 2023, the U.S. Department of Education’s Office for Civil Rights announced it had resolved a complaint of disability discrimination filed against the Allegheny Valley School District.
Specifically, the investigation concerned (1) whether the District failed to respond appropriately to notice of ongoing disability-based harassment that a student experienced, and (2) whether the district failed to ensure that the student received a free appropriate public education (FAPE) when they experienced bullying and harassment of which the District had notice.
OCR’s letter to the District recounts (with many redactions) the history of the student’s experience, how concerns were raised, and how OCR investigated the steps the District took to respond. Although redacted, the conduct seems to have included name calling as well as physical violence between peers.
Regarding the first allegation, the OCR determined that the district violated Section 504 and Title II of the Americans with Disabilities Act (ADA) because the District did not investigate all incidents reported, nor conducted limited investigations. OCR found that the District had notice that the student experienced physical and verbal actions by peers that were likely related to his disability, including physically threatening conduct. Such conduct constituted a hostile environment that impacted the student’s ability to participate in and benefit from the education program or activity. OCR also found that the district failed to consider the accumulation of evidence, instead treating each incident as isolated. OCR determined that the District’s response did not promptly or effectively address the hostile environment nor did they stop the harassment.
Next OCR concluded that, in violation of Section 504 and Title II, the District failed to assess for any FAPE-related impacts from the bullying and harassment experienced by the student. Although updates to the student’s IEP were made as requested, these changes were considered and implemented outside of the multidisciplinary team process that should have been used to determine whether the harassment was impacting the student’s receipt of FAPE services.
There are a number of reminders and suggestions that institutions might take away from reading OCR’s letter to the District, including the following:
- Consider how multiple incidents accumulate to constitute harassment.
- Avoid putting the burden on a student to avoid future harassment.
- Engage the appropriate team when considering IEP adjustments for a student impacted by harassment, to address FAPE-related concerns.
The resolution agreement between OCR and the district requires individual remedies to the impacted student in this matter, training for all employees with required educational content, a review of bullying incidents for a time period, and a climate assessment.
As always, this resolution agreement is not binding on other schools, and is specific to these particular facts. Still, school and college or university professionals addressing discrimination and harassment on campus (on any protected status) may find the requirements useful while considering best practices on training and ongoing case review.
The training includes required twelve (12) required elements, including information about the laws that prohibit disability discrimination and the school’s obligations to respond. The training requirement is followed up with a mandatory survey; all staff who took the training must be surveyed about their awareness and understanding of their obligation to report disability harassment, as well as the process for responding to and investigation complaints.
In reviewing bullying incidents over a particular timeframe, the District must assess, among other things, whether the student targeted by the bullying was a student with a disability, and if so, whether the District considered if the bullying or harassment impacted the affected student’s receipt of a FAPE.
The climate assessment will be for students in certain grades, and will address at minimum the prevalence of disability-related harassment in the school, their willingness to report those incidents, their perception of the District’s handling of reports/complaints, and suggestions for reducing such harassment in the school and improving the District’s response.