This paper was presented to the New Hampshire School Administrators Association on September 18, 2007.

A Word of Caution

No two cases are exactly alike. This material is designed to provide Administrators with a broad understanding of the law pertaining to disability-based harassment in the schools. This material does not include every aspect of the law. You are strongly encouraged to seek a legal opinion from your legal counsel regarding any specific case.

Table of Contents

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I. Overview

This material is designed to provide Administrators with a better understanding of disability-based harassment in the school setting. The goal of this material is to provide an overview of recent case law pertaining to disability-based harassment, and to leave the Administrator better equipped to prevent disability-based harassment in the school setting.

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II. Brief Overview of Section 504

Section 504 of the Rehabilitation Act (Section 504) applies to the recipients of grants from the federal government. Essentially, all public school districts are covered by Section 504 because they receive some form of federal financial assistance. See e.g. Marshall v. Sisters of the Holy Family of Nazareth, 399 F.Supp. 2d 597, 44 IDELR 190 (E.D. Pa. 2005) (Section 504 does not apply to a private religious school that receives no federal funding).

The Office for Civil Rights (OCR), a component of the US Department of Education, enforces Section 504, as well as Title II of the Americans with Disabilities Act 1990 (ADA) which extends the prohibition against discrimination to the full range of state or local government services (including public schools), programs, or activities regardless of whether they receive any federal funding. The standards adopted by the ADA were designed not to restrict the rights or remedies available under 504.

OCR defines "disability-based harassment" under Section 504 and the ADA as "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." See e.g. OCR Letter, available at http://www.ed.gov/about/offices/list/ocr/docs/disabharassltr.html  (accessed July 31, 2007).

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III. The Duty to Prevent Disability-Based Harassment

Section 504 prohibits discrimination against qualified individuals on the basis of disability. The Federal Regulations, provide that "no qualified handicapped person shall, on the basis of handicap, be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives or benefits from federal financial assistance." See 34 CFR § 104.4. Disability harassment that adversely affects an elementary or secondary student's education may also be a denial of FAPE if it decreases the student's ability to benefit from his or her education.

When a district knows, or should know, that disability-based harassment is occurring, it has a duty to take prompt and effective action to end the harassment, eliminate hostile environments, and prevent harassment from recurring. See e.g. Lee County (FL) School District, 47 IDELR 18 (OCR June 1, 2006).

School boards are required to "adopt a rule to ensure that there shall be no unlawful discrimination on the basis of sex, race, age, creed, color, marital status, national origin, or disability in educational programs or activities consistent with local standards," and to adopt and implement written policies and procedures pertaining to "student harassment, including bullying." N.H. Ed. R. 303.01(i); NH Ed. R. 306.04(8). In addition, federal regulations require the adoption of certain policies and procedures, such as procedures for responding to complaints and/or grievances.

1. What Constitutes Harassment?

Harassment can take many forms, and may be verbal (name-calling), physical, or nonverbal (written statements). OCR has provided the following non-exhaustive list of incidents that may constitute harassment:

2. Reducing Risk Through Application of the Two-Part Test

Disability-based harassment that is so severe, persistent, or pervasive that it creates a hostile environment may violate a student's rights under Section 504 and the ADA. In determining whether a school district has subjected a student to discrimination-based harassment resulting in a hostile environment, the Office for Civil Rights determines the following:

According to the Office for Civil Rights a hostile environment exists when there is a disability-based harassing conduct that is:

The following are examples of conduct that, if sufficiently severe, persistent, or pervasive, may constitute a hostile environment:

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IV. Harassment by School Officials

1. Case Studies: Violations of Section 504 and the ADA

In addition to the duty to prevent and respond to disability-based harassment, districts are responsible for the conduct of their faculty that creates a hostile environment. The following cases illustrate this responsibility:

In Lee County (FL) School District, OCR found that a district had created a hostile environment for a first-grade student with a disability. 47 IDELR 18 (June 1, 2006). Parents alleged that the district had violated Section 504 by failing to respond to complaints and/or demonstrating a lack of sensitivity in comments to the parents and student, and that by the end of the school year, the student was so uncomfortable that she refused to enter the diabetes clinic where she received insulin shots, resulting in one week of home-schooling.

In the complaint, the Parents listed the following examples of inappropriate statements made to them or student:

The nurse and principal responded to each allegation as follows:

Parents also alleged that the district failed to respond to at least six complaints regarding the diabetes-related care that the student received from the nurse and Clinic assistant. The district investigated a few of the complaints, but was unable to provide documentation that anyone was coordinating and supervising diabetes medical and clinical care and responding to the parents' complaints. In addition, the principal informed OCR that he "had no present plan to coordinate and supervise such an effort on a school level."

OCR found that the evidence indicated "a lack of not only education and training, but also sensitivity to the Student's condition." The alleged statements, taken individually as isolated incidents, would not rise to the level of harassment; however, when viewed in conjunction with the lack of training and coordination of medical treatment, and the repeated failures to respond to complaints, the evidence established that the district had created a hostile environment.

Similarly, in Morgan Hill (CA) Unified School District, 46 IDELR 256 (OCR Mar. 15, 2006), a parent filed a complaint with OCR, alleging that the district discriminated against their daughter on the basis of her disability (migraine headaches) by:

1. failing to respond to parents' complaints that the student's physical education teacher was harassing the student on the basis of her disability and
2. failing to excuse absences which were caused by Student's disability.

OCR investigated the first allegation and determined that the District had violated Section 54 and the ADA. OCR determined that the second allegation was moot because the District had conducted its own investigation and resolved the issue.

With respect to the first allegation, OCR found that, on September 28, 2004, the PE teacher told the student: "I get migraines, I take Excedrin, and I run five miles a day." This statement was made in front of the class, while the student waited for her mother to bring migraine medication to school. The PE teacher also accused the student of lying about the migraines as a pretext to get out of class. The parents met with the Vice Principal, and believed that he addressed their concerns by speaking to the PE teacher.

On June 2, 2005, the parents' attorney sent a letter to the principal alleging "continued and serious verbal harassment, discrimination due to a disability, intimidation and invasion of privacy," by the PE teacher; the letter requested a Section 504 meeting. This was the first complaint since September 2004. The principal scheduled a meeting with the parents and student, and met with the PE teacher, who denied harassing the student, and informed him that the student had been excused from PE when she had migraines.

On June 15, 2005, parents sent a letter to the Principal, informing him that the PE teacher continued to harass the student on the basis of her disability. The Principal did not respond to the letter because he was scheduled to meet with the parents on the following day. During the meeting, the parents informed the district that the PE teacher had harassed the student by telling her that she did not believe her migraines were disabling, and requested a Section 504 meeting. The district agreed to investigate the allegations and to schedule a 504 meeting. By letter dated June 19, 2005, the parents informed the district that, based on the June 16 meeting, they believed the district would be investigating the complaint during the summer.

On August 29, 2005, the parents wrote to the district, requesting a response to their complaint and asking that the district comply with its policies regarding complaints about employees. On August 31, 2005, the parents informed the district that they were withdrawing the student from school because the district had not responded to the complaint against the PE teacher. On September 1, 2005, the district informed the parents that it would begin investigating the complaint. Parents responded on September 19, 2005, informing the district that they had filed the complaint on June 2, and that the district had agreed to investigate during the June 16 meeting, but that the investigation did not occur. Parents filed a complaint with OCR; in the meantime, the District completed its investigation of the PE teacher and determined that there was no evidence that the teacher had harassed the student on the basis of her disability. Because the district had resolved that issue, OCR did not investigate that allegation; instead, OCR investigated whether the district promptly responded to the June 2 complaint.

OCR found that the district violated Section 504 and the ADA by failing to promptly respond to the June 2 complaint. The district had a duty to investigate the allegations against the PE Teacher, even though the investigation would occur during the summer. The parents believed that a persistent discriminatory action would continue, and that it needed to be addressed before the start of the 2005-06 school year. "Under this circumstance, the term prompt encompasses a duty not to postpone the matter unless it is simply not feasible despite the District best efforts [sic]. Although it is possible that witnesses may not be available during the summer break, in this case, there is no evidence to show that the District attempted to contact the P.E. teacher or any of the witnesses during the summer or determine whether an arrangement could have been made to secure their time."

2. Case Studies: District did not violate Section 504 or the ADA

In a local case, Salem (NH) School District, 35 IDELR 260 (OCR April 16, 2001) a parent alleged that his son, a student with a disability, was harassed because his car was towed from the school parking lot. The Office for Civil Rights found no evidence that the student's car was towed as a way to harass him based on his disability. The student handbook stated that first priorities for parking were given to students with at least a 2.0 GPA, and the student had not obtained a parking permit. The parent also alleged that the presence of a school resource officer at team meetings was intended to intimidate the student. OCR found that the school resource officer's occasional participation did not create a hostile environment based on the student's disability.

Similarly, in Aztec (NM) Municipal Schools, OCR found that the district had not violated Section 504 or the ADA. 47 IDELR 108 (OCR May 22, 2006). In that case, the parents alleged that the district discriminated against their son on the basis of his disabilities (hearing impaired, ADHD, PTSD) by disciplining him for physical activity related to his disability, and that the student's art teacher subjected him to harassment by ridiculing his art work in front of his class and by refusing to display his artwork.

With respect to the alleged harassment by the Art teacher, OCR found that the student was treated in the same manner as other students in the class: not all students' artwork was displayed, and the art teacher routinely critiqued students' art projects. OCR also found that the student was disciplined in accord with his behavior intervention plan, was disciplined because he acted out (slammed books, yelled in class, etc), and was not subjected to a change of placement or disciplined because of his disability. Thus, OCR found that the district did not violate Section 504 or the ADA.

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V. Peer-to-Peer Disability-Based Harassment

In order to be liable for peer-on-peer disability-based harassment, the conduct must be severe or pervasive and be related to the victim's disability. Werth v. Board of Directors of the Public Schools of the City of Milwaukee, 472 F.Supp. 2d 1113 (E.D. Wis. Jan. 22, 2007). From first through seventh grade, Joseph Werth was subjected to verbal attacks and mocked by other students because of his severe physical disabilities. In eighth grade, he attended a private school. Werth's parents decided to return him to public school, and prior to the start of his ninth grade year (2001-02), his mother met with the Assistant Principal and informed him of the difficulties her son had experienced in previous years. The Assistant principal explained that the school was safe and that nothing would happen to Joseph.

During the 2001-02 school year, Joseph was enrolled in a woodshop class. At some point prior to October 16, 2001, Mrs. Werth met with the woodshop teacher, Mr. Kruzel, and informed him about Joseph's disabilities and told him that Joseph was very sensitive to pain. On October 16, 2001, Larry W., a student in the woodshop class, was working on a project at a machine located about two feet from Werth. Larry W. posed a safety risk to other students "because he would run and push and did not observe safety rules." During class, Larry picked up two pieces of wood and threw them, one at a time, at Werth; both pieces of wood hit Werth in the back. Mr. Kruzel saw this occur; however, when Werth complained, he informed him that he did not see the incident and told Werth to return to his seat.

Shortly thereafter, another student, Joe F., threw another piece of wood at Werth, who again complained to the teacher, who again instructed him to return to his seat. Larry threw two more boards at Werth, who complained yet again. This time, the teacher wrote a discipline slip and both students were suspended.

Following those incidents, Werth suffered numbness in his legs and swelling in his spine, and was out of school until January 2002. Prior to his return, his IEP Team agreed to a number of modifications and accommodations to ensure Werth's safety at school. On January 14, 2002, a student, Roberto S., began teasing Werth about his woodshop project and threw a pair of safety goggles at Werth, striking him in the head, giving him a concussion and cracking three teeth. Werth complained to Mr. Kruzel, who sent Roberto to the office; Roberto was suspended for three days. Werth's parents filed suit against the District alleging, among other things, violations of Section 504 and the ADA.

The court first noted that a "[s]chool district's liability for peer-to-peer disability-based harassment under § 504 and the ADA has not been addressed directly by the United States Supreme Court." Id. However, at least three other courts "have found that an inadequate response to peer-to-peer disability discrimination is actionable under § 504 and/or the ADA." Id. (citing M.P. v. Indep. Sch. Dist. No. 721, 326 F.3d 975 (8th Cir. 2003) (administrator disclosed a student's paranoid schizophrenia to the school community, which resulted in his verbal and physical abuse by other students over a period of several months; denying district's motion for summary judgment because of a dispute with regard to the effect of the administrator's disclosure, the resulting harassment, and the school's failure to address and remedy the discrimination); K.M. v. Hyde Park Central Sch. Dist., 381 F.Supp. 2d. 343, 358-60 (SD NY 2005) (over a two year period, a student with a disability was subjected to verbal and physical abuse in school and on the school bus; each incident was reported to school officials but no action was taken to protect him from further harassment; denying district's motion for summary judgment); Biggs v. Bd. of Educ., 229 F.Supp.2d 437 (D. Md. 2002) (granting the district's motion to dismiss on the basis that the district was not deliberately indifferent to peer-on-peer harassment because, after each complaint, the school took appropriate action, such as providing counseling for the victim, sending letters to parents, threatening suspension, and alerting teachers of the incidents)).

The court dismissed the case, holding that the parents had presented insufficient evidence that Werth was harassed because of his disability, or that the harassment that Werth suffered was severe or pervasive. The court did note that the school appropriately addressed the incidents by suspending the offenders and ensuring that they were not in Werth's classes.

Similarly, in the case of Jenison (MI) Public School District, the parents filed a complaint, alleging that the district discriminated against a student with a disability by failing to take appropriate action to address student-on-student disability harassment during the first semester of the 2005-2006 school year. 47 IDELR 81 (OCR May 31, 2006). Parents alleged that the student, a fourteen-year old ninth grader with Asperger's Syndrome, was called "retard," "psycho," and "stupid bitch," and that she was called these names because her disorder caused her to behave strangely. Parent reported the harassment to the student's guidance counselor and her special education teacher, and in October 2005, the student informed the guidance counselor. The guidance counselor informed the vice-principal; he spoke with the student, who told him that the harasser did not want to be her friend any longer. The student did not mention disability-based harassment. Following these reports, the Student was allegedly falsely accused by one of her harassers of writing a death threat on the bathroom wall, and was suspended for school for 10 days. However, the student was seen leaving the bathroom immediately before the threat was discovered, was absent from her class at the time the threat was written, and, when the matter was referred to the Sheriff's department, she failed a polygraph test about the incident and was found to be the culprit.

Based on the weight of the evidence, and the student's own admissions that the harassment reflected an on-going feud between former friends, rather than disability based harassment, OCR found that the District had not violated Section 504 or the ADA.

Key Point: these cases illustrate the importance of promptly responding to allegations of harassment. Appropriate responses may include counseling, communication with parents and teachers, suspensions and changing schedules.

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VI. Preventing Disability-Based Harassment in the Schools

The year 2000 legislative session resulted in the legislature adopting the "Pupil Safety and Violence Prevention Act of 2000." Set forth in NH RSA 193-F:1 et seq., the legislation was adopted to "protect our children from violence by dealing with harassment, including 'bullying,' in our public schools." Under NH RSA 193-F:2 each local school board is required to adopt a pupil safety and violence prevention policy which addresses pupil harassment and bullying.

The law imposes a duty upon any school employee or employee of a company under contract with a school or school district who has witnessed or has reliable information that a pupil has been subjected to insults, taunts or challenges, whether verbal or physical in nature, which are likely to intimidate or provoke a violent or disorderly response to report the incident to the principal or the principal's designee who is in turn obligated to report the incident to the superintendent.

The local school board is obligated to define the reporting requirement and is permitted to "provide opportunities for educators to have the knowledge and skills to prevent and respond to acts of bullying." The statute also provides a school employee or employee of a company under contract with a school or school district who has reported violations to the principal or has intervened to prevent an incident of bullying with immunity from any cause of action alleging failure to remedy the incident of bullying. A school employee or employee of a company under contract with a school or school district making a good faith report will not be subject to liability for making the report.

This provision of law explicitly states that no specific curriculum is required to implement a policy against bullying, but the act implies that one component of intervention will be education for educators as well as students.

The case of Georgetown (MA) Public Schools, 34 IDELR 65 (OCR Sept. 8, 2000) illustrates the importance of anti-bullying policies. In that case, the parents of a child with a disability filed a compliant with the OCR, alleging that the District discriminated against their son on the basis of his disability by denying him a free and appropriate public education, and that their son was subjected to teasing and hostility because of his disability. The District had provided training on disability harassment to its staff, and noted that it was difficult to prevent or correct peer-on-peer harassment while students were passing through crowded hallways. OCR found that the student was subjected to harassing remarks by at least one student, but that the district had disciplined that student.

Practice Pointer: The anti-bullying policies adopted under RSA 193-F should be used as a tool to protect students with disabilities from disability-based harassment.

The case of San Juan (Ca.) Unified School District, 36 IDELR 135 (OCR 2001) provides some guidance as to measures a district can take to reduce its risk of disability-based harassment. In this particular case, the parent alleged that a teacher allowed other children in her son's special education classroom to ridicule and humiliate him. The district entered into a voluntary resolution agreement where it agreed to develop and distribute a policy prohibiting disability harassment and affirmed its commitment to providing an educational environment free from disability discrimination, including harassment. The district also agreed to provide training to administrators, teachers and staff which was designed to instruct employees to recognize, respond to, and prevent disability harassment in the educational environment. The district further agreed to provide the Office for Civil Rights a plan to furnish age appropriate training to students in the school system concerning disability harassment as well as specific training for administrators, teachers and staff who are involved in the provision of services to students with disabilities which would include information to increase awareness of social and behavioral issues associated with specific disabilities.

This voluntary consent agreement in the San Juan case provides guidance as to how a district can reduce the risk of disability-based harassment. Educators and districts should consider the following:

In addition, the following measures may also reduce the risk of disability-based harassment: