Stories and Grievances: Special Education
Disability Harassment is Illegal
A letter written in 2000 by our US government says so. Why do school personnel throughout the US disagree?
REMINDER: HARASSMENT BASED ON DISABILITY IS WRONG, ILLEGAL
The U.S. Education Department today marked the 10th anniversary of the Americans with Disabilities Act (ADA) with a letter reminding schools, colleges and universities that prompt action must be taken if harassment of a student based on disability interferes with the student's ability to participate in or benefit from the school's program.
The "dear colleague" letter to educators provides an overview of the legal and educational principles involved. It emphasizes that disability harassment is defined as "intimidation or abusive behavior toward a student based on disability," and includes "verbal acts and name-calling, as well as nonverbal behavior, such as graphic and written statements, or conduct that is physically threatening, harmful, or humiliating." Parents, disabled persons and advocates for students with disabilities have raised harassment as an important issue in recent discussions with department officials and staff.
Assistant Secretary for Civil Rights Norma V. Cantu, one of the authors of the letter, says that disability harassment can have "a profound and devastating effect on students. It can interfere with or even deny educational benefits or opportunities to students with disabilities - opportunities that are critical to the advancement of all students." Cantu added that the letter describes for schools what actions may constitute disability harassment under existing law and outlines measures that schools can take to prevent disability harassment or to respond effectively if it occurs.
Assistant Secretary for Special Education and Rehabilitative Services Judith E. Heumann, who also signed the joint letter, added, "We have written to schools because we recognize that school officials and employees who are in daily contact with students are in the best position to prevent disability harassment and to respond to it promptly and effectively if it occurs. This type of conduct cannot be tolerated and must be eliminated from our schools. The department is committed to working with schools, parents, disability advocacy organizations, and others to accomplish this important goal."
Title II of the ADA prohibits discrimination based on disability by any public entity, including public schools, colleges and universities. Section 504 of the Rehabilitation Act prohibits discrimination based on disability by recipients of federal financial assistance, while the Individuals with Disabilities Education Act (IDEA) entitles students with disabilities to a free appropriate public education.
The letter outlines measures that schools, colleges and universities should take to prevent and eliminate harassment based on disability, including establishing an official policy and developing grievance procedures.
The letter is being sent to school principals, superintendents, and college and university presidents.
UNITED STATES DEPARTMENT OF EDUCATION
WASHINGTON, D.C. 20202
July 25, 2000
On behalf of the Office for Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) in the U.S. Department of Education, we are writing to you about a vital issue that affects students in school – harassment based on disability. Our purpose in writing is to develop greater awareness of this issue, to remind interested persons of the legal and educational responsibilities that institutions have to prevent and appropriately respond to disability harassment, and to suggest measures that school officials should take to address this very serious problem. This letter is not an exhaustive legal analysis. Rather, it is intended to provide a useful overview of the existing legal and educational principles related to this important issue.
Why Disability Harassment Is Such an Important Issue
Through a variety of sources, both OCR and OSERS have become aware of concerns about disability harassment in elementary and secondary schools and colleges and universities. In a series of conference calls with OSERS staff, for example, parents, disabled persons, and advocates for students with disabilities raised disability harassment as an issue that was very important to them. OCR's complaint workload has reflected a steady pace of allegations regarding this issue, while the number of court cases involving allegations of disability harassment has risen. OCR and OSERS recently conducted a joint focus group where we heard about the often devastating effects on students of disability harassment that ranged from abusive jokes, crude name-calling, threats, and bullying, to sexual and physical assault by teachers and other students.
We take these concerns very seriously. Disability harassment can have a profound impact on students, raise safety concerns, and erode efforts to ensure that students with disabilities have equal access to the myriad benefits that an education offers. Indeed, harassment can seriously interfere with the ability of students with disabilities to receive the education critical to their advancement. We are committed to doing all that we can to help prevent and respond to disability harassment and lessen the harm of any harassing conduct that has occurred. We seek your support in a joint effort to address this critical issue and to promote such efforts among educators who deal with students daily.
What Laws Apply to Disability Harassment
Schools, colleges, universities, and other educational institutions have a responsibility to ensure equal educational opportunities for all students, including students with disabilities. This responsibility is based on Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II), which are enforced by OCR. Section 504 covers all schools, school districts, and colleges and universities receiving federal funds. Title II covers all state and local entities, including school districts and public institutions of higher education, whether or not they receive federal funds. Disability harassment is a form of discrimination prohibited by Section 504 and Title II. Both Section 504 and Title II provide parents and students with grievance procedures and due process remedies at the local level. Individuals and organizations also may file complaints with OCR.
States and school districts also have a responsibility under Section 504, Title II, and the Individuals with Disabilities Education Act (IDEA), which is enforced by OSERS, to ensure that a free appropriate public education (FAPE) is made available to eligible students with disabilities. Disability harassment may result in a denial of FAPE under these statutes. Parents may initiate administrative due process procedures under IDEA, Section 504, or Title II to address a denial of FAPE, including a denial that results from disability harassment. Individuals and organizations also may file complaints with OCR, alleging a denial of FAPE that results from disability harassment. In addition, an individual or organization may file a complaint alleging a violation of IDEA under separate procedures with the state educational agency. State compliance with IDEA, including compliance with FAPE requirements, is monitored by OSERS' Office of Special Education Programs (OSEP).
Harassing conduct also may violate state and local civil rights, child abuse, and criminal laws. Some of these laws may impose obligations on educational institutions to contact or coordinate with state or local agencies or police with respect to disability harassment in some cases; failure to follow appropriate procedures under these laws could result in action against an educational institution. Many states and educational institutions also have addressed disability harassment in their general anti-harassment policies.
Disability Harassment May Deny a Student an Equal Opportunity to Education under Section 504 or Title II
Disability harassment under Section 504 and Title II is intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student's participation in or receipt of benefits, services, or opportunities in the institution's program. Harassing conduct may take many forms, including verbal acts and name-calling, as well as nonverbal behavior, such as graphic and written statements, or conduct that is physically threatening, harmful, or humiliating.
When harassing conduct is sufficiently severe, persistent, or pervasive that it creates a hostile environment, it can violate a student's rights under the Section 504 and Title II regulations. A hostile environment may exist even if there are no tangible effects on the student where the harassment is serious enough to adversely affect the student's ability to participate in or benefit from the educational program. Examples of harassment that could create a hostile environment follow.
• Several students continually remark out loud to other students during class that a student with dyslexia is "retarded" or "deaf and dumb" and does not belong in the class; as a result, the harassed student has difficulty doing work in class and her grades decline.
• A student repeatedly places classroom furniture or other objects in the path of classmates who use wheelchairs, impeding the classmates' ability to enter the classroom.
• A teacher subjects a student to inappropriate physical restraint because of conduct related to his disability, with the result that the student tries to avoid school through increased absences.
• A school administrator repeatedly denies a student with a disability access to lunch, field trips, assemblies, and extracurricular activities as punishment for taking time off from school for required services related to the student's disability.
• A professor repeatedly belittles and criticizes a student with a disability for using accommodations in class, with the result that the student is so discouraged that she has great difficulty performing in class and learning.
• Students continually taunt or belittle a student with mental retardation by mocking and intimidating him so he does not participate in class.
When disability harassment limits or denies a student's ability to participate in or benefit from an educational institution's programs or activities, the institution must respond effectively. Where the institution learns that disability harassment may have occurred, the institution must investigate the incident(s) promptly and respond appropriately.
Disability Harassment Also May Deny a Free Appropriate Public Education
Disability harassment that adversely affects an elementary or secondary student's education may also be a denial of FAPE under the IDEA, as well as Section 504 and Title II. The IDEA was enacted to ensure that recipients of IDEA funds make available to students with disabilities the appropriate special education and related services that enable them to access and benefit from public education. The specific services to be provided a student with a disability are set forth in the student's individualized education program (IEP), which is developed by a team that includes the student's parents, teachers and, where appropriate, the student. Harassment of a student based on disability may decrease the student's ability to benefit from his or her education and amount to a denial of FAPE.
How to Prevent and Respond to Disability Harassment
Schools, school districts, colleges, and universities have a legal responsibility to prevent and respond to disability harassment. As a fundamental step, educational institutions must develop and disseminate an official policy statement prohibiting discrimination based on disability and must establish grievance procedures that can be used to address disability harassment. A clear policy serves a preventive purpose by notifying students and staff that disability harassment is unacceptable, violates federal law, and will result in disciplinary action. The responsibility to respond to disability harassment, when it does occur, includes taking prompt and effective action to end the harassment and prevent it from recurring and, where appropriate, remedying the effects on the student who was harassed.
The following measures are ways to both prevent and eliminate harassment:
• Creating a campus environment that is aware of disability concerns and sensitive to disability harassment; weaving these issues into the curriculum or programs outside the classroom.
• Encouraging parents, students, employees, and community members to discuss disability harassment and to report it when they become aware of it.
• Widely publicizing anti-harassment statements and procedures for handling discrimination complaints, because this information makes students and employees aware of what constitutes harassment, that such conduct is prohibited, that the institution will not tolerate such behavior, and that effective action, including disciplinary action, where appropriate, will be taken.
• Providing appropriate, up-to-date, and timely training for staff and students to recognize and handle potential harassment.
• Counseling both person(s) who have been harmed by harassment and person(s) who have been responsible for the harassment of others.
• Implementing monitoring programs to follow up on resolved issues of disability harassment.
• Regularly assessing and, as appropriate, modifying existing disability harassment policies and procedures for addressing the issue, to ensure effectiveness.
Technical Assistance Is Available
U.S. Secretary of Education Richard Riley has emphasized the importance of ensuring that schools are safe and free of harassment. Students can not learn in an atmosphere of fear, intimidation, or ridicule. For students with disabilities, harassment can inflict severe harm. Teachers and administrators must take emphatic action to ensure that these students are able to learn in an atmosphere free from harassment.
Disability harassment is preventable and can not be tolerated. Schools, colleges, and universities should address the issue of disability harassment not just when but before incidents occur. As noted above, awareness can be an important element in preventing harassment in the first place.
The Department of Education is committed to working with schools, parents, disability advocacy organizations, and other interested parties to ensure that no student is ever subjected to such conduct, and that where such conduct occurs, prompt and effective action is taken. For more information, you may contact OCR or OSEP through 1-800-USA-LEARN or 1-800-437-0833 for TTY services. You also may directly contact one of the OCR enforcement offices listed on the enclosure or OSEP, by calling (202) 205-5507 or (202) 205-5465 for TTY services.
Thank you for your attention to this serious matter.
Norma V. Cantu, Judith E. Heumann,
Assistant Secretary for Assistant Secretary
Civil Rights Office of Special Education
and Rehabilitative Services
TITLE 20 - chapter 33 - Subchapter II :1415
Diability Harassment is Not Only Morally and Ethically Wrong, it is a Civil Rights Violation