In some instances, students with disabilities who are bullied are being denied FAPE under 504. School disricts deny FAPE to students with disabilties who are bullied when the school district, or charter school, is deliberately indifferent to disability-based bullying.
While mere occasional light teasing of a student with a disability might not warrant a response from the school to disability-based harassment, ongoing teasing, especially when accompanied by acts of physical harassment, is likely severe enough to trigger a school district's / charter school's duty to respond under Section 504. In a recent case, a student with Asperger syndrome was allegedly verbally teased and physically harassed on an ongoing basis by his high school classmates. Testimony that the student reacted to the harassment by engaging in self-destructive behavior helped demonstrate that the harassment was severe enough to trigger an investigation and response by the district.
To establish discrimination for disability-based bullying, a parent must show:
(1) the harassment was sufficiently severe or pervasive that it altered the condition of the student's education and created an abusive educational environment;
(2) the school district, or charter school, knew about the harassment; and
(3) the school district, or charter school, was deliberately indifferent.
Ongoing bullying may be sufficient to demonstrate that the harassment is severe and denies the studentqual access to education.