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Teen can’t use U.S. Education Department bullying guidance to recover for attack at football game

September 15, 2021


By: Lily Crespo Esq.

Quick takeaway: The U.S. Education Department’s Dear Colleague letters addressing bullying of students with disabilities do not create any obligations that are enforceable in claims for money damages. Districts in the 9th Circuit should have little trouble convincing courts to dismiss “failure to accommodate” claims based on their alleged noncompliance with this type of guidance. This student claimed the district failed to provide “active adult supervision” as recommended in a 2013 Dear Colleague letter. Not only did the district demonstrate that the recommendation was merely aspirational, but it cited the express statement that the guidance wasn’t meant to apply to claims for money damages.

The Ruling: A former high school student with ADD could not rely on a pair of Dear Colleague letters about peer bullying to prove that a California district denied him a reasonable accommodation when it assigned only four adults to supervise a school football game. The 9th U.S. Circuit Court of Appeals upheld a District Court decision at 75 IDELR 191 that dismissed the student’s Section 504 and ADA claims. Csutoras v. Paradise High Sch., 121 LRP 30999 (9th Cir. 09/07/21).

Summary of the case: A California district’s alleged failure to provide “active adult supervision” at a high school football game as recommended in a 2013 Dear Colleague letter did not make it financially responsible for the physical injuries a teenager with ADD suffered in an attack by a classmate. The 9th Circuit upheld a District Court ruling at 75 IDELR 191 that neither the 2013 letter nor a 2014 Dear Colleague about peer bullying created enforceable obligations under Section 504 or the ADA.

The student based his lawsuit on the district’s purported failure to comply with the guidance set forth in Dear Colleague Letter, 61 IDELR 263 (OSERS/OSEP 2013), which offered evidence-based practices for preventing bullying, and Dear Colleague Letter: Responding to Bullying of Students With Disabilities, 64 IDELR 115 (OCR 2014), which suggested a district does not need to have actual knowledge of disability harassment to be liable for its failure to respond. Although the student argued that the letters were binding on the district, the 9th Circuit disagreed.

The three-judge panel pointed out that the 2014 letter contradicted the 9th Circuit’s rule that a student seeking damages for disability harassment must prove the district had actual knowledge but failed to respond appropriately. Moreover, the panel observed, the student did not identify any evidence suggesting that the letters were authoritative or were intended to represent ED’s official position.

“[T]he Letters themselves disclaim any binding authority and explicitly state that they don’t apply to private suits for money damages,” U.S. Circuit Judge Lawrence VanDyke wrote.

The panel acknowledged that the student could still prevail on his Section 504 and ADA claims by showing that his need for a harassment-related accommodation was obvious. However, given that neither the student nor his mother had ever requested such accommodations or reported previous incidents of bullying, the court held the student failed to meet that standard.


As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

Kaleva Law

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