Dear Colleague Letter

Fed. Dept. Education "Dear Colleague" letter



Contents of letter:
  • Why Disability Harassment Is Such an Important Issue
  • What Laws Apply to Disability Harassment
  • Disability Harassment May Deny a Student an Equal Opportunity to Education under Section 504 or Title II
  • Examples of harassment
  • Disability Harassment Also May Deny a Free Appropriate Public Education
  • How to Prevent and Respond to Disability Harassment
  • The following measures are ways to both prevent and eliminate harassment:
  • Technical Assistance Is Available
Start:

UNITED STATES DEPARTMENT OF EDUCATION
WASHINGTON, D.C. 20202
July 25, 2000
Dear Colleague:
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.[footnote 1]  Title II
covers all state and local entities, including school districts and
public institutions of higher education, whether or not they receive
federal funds.[fn 2]  Disability harassment is a form of discrimination
prohibited by Section 504 and Title II.[fn3]  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),[fn4] 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.[fn5]  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.[fn6]

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.[fn7]
  • 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.[fn8]  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,
Assistant Secretary for
Civil Rights
Judith E. Heumann,
Assistant Secretary
Office of Special Education
and Rehabilitative Services
Enclosure - list of OCR enforcement offices
Footnotes (press "back" to return to text)
                          ---------------------------------
[1] Section 504 provides: "No otherwise qualified individual with a
disability . . . shall, solely by reason of  her or his disability, be
excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving federal
financial assistance.”  29 U.S.C. § 794(a).  See 34 CFR Part 104
(Section 504 implementing regulations).
 [2] Title II provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132.  See 28 CFR Part 35 (Title II implementing
regulations).
[3] The Department of Education’s Office for Civil Rights (OCR) has
issued policy guidance on discriminatory harassment based on race (see 59
Fed. Reg. 11448 (Mar. 10, 1994),
http://www.ed.gov/offices/OCR/race394.html) and sex (see 62 Fed Reg.
12034 (Mar. 13, 1997), http://www.ed.gov/offices/OCR/sexhar00.html.
These policies make clear that school personnel who understand their legal
obligations to address harassment are in the best position to recognize
and prevent harassment, and to lessen the harm to students if, despite
their best efforts, harassment occurs.  In addition, OCR recently
collaborated with the National Association of Attorneys General (NAAG) to
produce a guide to raise awareness of, and provide examples of effective
practices for dealing with, hate crimes and harassment in schools,
including harassment based on disability.  See “Protecting Students from
Harassment and Hate Crime, A Guide for Schools,” U.S. Department of
Education, Office for Civil Rights, and the
 National Association of Attorneys General (Jan. 1999) (OCR/NAAG
Harassment Guide), Appendix A: Sample School Policies.   The OCR/NAAG
Harassment Guide may be accessed on the internet at
http://www.ed.gov/pubs/Harassment. [old link- see new link in links section.]
These documents are a good resource
for understanding the general principle of discriminatory harassment.
The policy guidance on sexual harassment will be clarified to explain
how OCR's longstanding regulatory requirements continue to apply in this
area in light of recent Supreme Court decisions addressing the sexual
harassment of students.
(press "back" to return to text)
[4] 20 U.S.C. §1400 et seq.
[5] 34 C.F.R. § 300.660 et seq.
[6] For more information regarding the requirements of state and local
laws, consult the OCR/NAAG Harassment Guide, cited in footnote 3 above.
[7] Appropriate classroom discipline is permissible, generally, if it
is of a type that is applied to all students or is consistent with the
Individuals with Disabilities Education Act (IDEA) and Section 504,
including the student’s Individualized Education Program or Section 504
plan.
[8]  Section 504 (at 34 CFR § 104.7) and Title II (at 28 CFR §
35.107(a)) require that institutions have  published internal policies and
grievance procedures to address issues of discrimination on the basis of
disability, which includes disability harassment.  While there need not
be separate grievance procedures designed specifically for disability
harassment, the grievance procedures that are available must be effective
in resolving problems of this nature.

end footnotes
(press "back" to return to text)
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Pat Howey's  IEP Strategy to stop harassment

http://www.pathowey.com/advice.htm

"I have had lots of good luck in harassment issues by calling for an IEP meeting, then going into the meeting with a proposed goal and set of objectives such as the following: "
 
Present Level of Achievement: Suzie is unable to deal with harassment and teasing from other students.
 
Needs:  Suzie needs to learn strategies that she can use throughout her life to address the times when she experiences harassment from others.
 
Goal:    Suzie will learn strategies to independently deal with harassment and teasing from other students
    • Objective 1. Suzie will demonstrate an understanding of the laws, codes, regulations, rules, and the school's (or school corporation's) policies on harassment.
    • Objective 2. Suzie will identify when other students are in violation of the laws, codes, regulations, rules, and policies on harassment.
    • Objective 3. Suzie will learn to draft a written complaint including all elements and facts of the harassment incident as required by the laws, codes, regulations, rules, and policies.
    • Objective 4. Suzie will submit the complaint to the proper individual, agency, etc.
While I have never gotten the IEP team to actually write these into an IEP, it is amazing how attentive school folks get to harassment issues once they understand that the parents and the student know there is a policy prohibiting such things and that the "proposed" goals and objectives that the parents has brought have now become part of the official documentation of the IEP process even if they are not actually written into the IEP.
It is documented because the parents brings enough copies of the proposed G&O for all team members. IDEA requires (in numerous places) that the concerns of the parents are to be addressed by the team. The parents are requesting that these concerns be addressed by the IEP team and that G&O be written to address these concerns.
 
The school would be hard pressed to prove that it had given due consideration to the parents' concerns if the parents submit concerns in writing to all team members and there is NO documentation at all that these were even discussed.
 
Of course, this assumes that everything in the IEP team meeting is hunky dory, all required documentation takes place, and the parent is in due process, represented by a qualified attorney, all witnesses testify truthfully, and the IHO allows all of the parents' exhibits in evidence.
 
The strategy here is not to try to force the school to put the G&O in the IEP. The strategy is to let the school folks know that the parents know there is a policy and that they understand the school's complaint process. I find generally that the harassment goes away once the school knows that the parents know.
 
Pat Howey, Advocate from Indiana, continues:
"I can't remember where I read this, but I read a story about a high school girl who was constantly teased and harassed because of her very thick glasses. She'd finally had enough of it, and so had her parents. All efforts to get the school to stop the harassment were unsuccessful.
 
What the parents did was create a small form, in triplicate, and had it printed up. The form listed things like the date, time, place, harasser's name, etc., and there were some blank lines to write what the harassment was. The girl kept one for herself, gave one to the harasser and one to the principal--all without argument or fanfare. When she first began using these, a letter was sent to the school by their attorney that the school was to take care of the problem, and if any one student 'earned' two slips, legal action would be taken against the student and the school.
 
It only took one student getting two slips, and the parents and attorney were at the school following through, as promised. Both students and administration learned instantly that the family meant what they said, and that was the END of the harassment, period.
 
The end of the story is that the girl actually became more well-liked because of how she stood up for herself and NO ONE ever harassed her again."
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Gebser

  Gebser is a U.S Supreme Court case in which the Court ruled that a school district could be held liable for harassment if an official with the power to make a difference shows deliberate disregard for the harassment and does nothing to change it.  Thus, the key is to make the school administrators aware of the the harassment.  If they do nothing, they can be held liable for money damages.  Of course, notifying the school is worthless unless it is documented in writing.  The "Gebser" letter notifies them of the problem and the need to act.  No one wants to be sued.  The letter itself may be enough for the school district to take action.
 
The Gebser Decision Addresses Private Damages Claims 
The Court’s recent decision in Gebser was limited to private Title IX lawsuits for money damages. The Court
in Gebser ruled that a private plaintiff in a court action can obtain money damages against a school district
under Title IX if a school official who has the authority to take corrective action has actual notice of sexual
harassment and is deliberately indifferent to it. The Gebser decision expressly distinguished the limits on
private recovery of money damages from the Department of Education’s enforcement of Title IX. Thus, the
obligations of schools that receive federal funds to address instances of sexual harassment have not
changed as a result of the Supreme Court decision. School districts must continue to take reasonable steps
to prevent and eliminate sexual harassment discrimination. In addition, pursuant to its published guidance,
OCR will continue to enforce Title IX in this area, including by investigating complaints alleging sexual
harassment discrimination.
http://www.ed.gov/offices/OCR/archives/Harassment/index.html

It is possible in both the state and federal courts of Illinois to state a claim if the school does not meet well-defined standards set up in a line of U.S. Supreme Court cases beginning with Meritor Savings Bank v. Vinson,
1986, 106 S Ct 2399 and continuing through to more recent cases including
ones called Gebser v. Lago Vista Independent School District, 1998, 524 US 274 and Davis v. Monroe, 1999, 526 US 629. One can prove a school is liable when the school does not have a policy against harassment (bullying is a
form of harassment) which is reasonable and in which both the faculty and the student body are trained. The ability to report harassment in a simple fashion without automatically becoming known to other students, particularly not to the aggressor, is another important element. And, finally, the school must be able to show that it actually follows up on complaints in a
reasonable way.

School officials are allowed to use their discretion in deciding what, if any, punishment is proper, based on the U.S. Supreme Court case of DeShaney v. Winnebago County Social Services, 1989, 109 S.Ct. 998. So long as they are not so grossly stupid  as to cause a reasonable person to term the discretionary decision arbitrary or capricious, a school is not liable just because there might have been a better way to discipline. (See recent Fifth Circuit case involving the Dallas Public Schools under Marvin Edwards.)
Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000)pdf



The Gebser Court held that in cases which do not involve official policy of the recipient entity, . . . a damages remedy against the school district will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to

institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond. For a school to be liable in damages, the school's response must amount to deliberate indifference to

discrimination as when the response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.
Sample letter

To:
Re:
To Whom It May Concern,
This letter is to request immediately that my son,_______, be afforded all the protections under state and federal law to protect him from physical harassment, discrimination, and verbal abuse.  It is my understanding that he has a right to learn in a safe and harm-free educational environment.
It is also my understanding that school personnel have a duty to facilitate his protection and fully investigate all allegations of discrimination he reports.  I am now requesting that you protect my child from the various forms of physical and verbal abuse he has suffered at your school.
I am requesting that this protection begin immediately. I will assume you are taking the appropriate action from this date forward. If I am incorrect, I request you immediately notify me, and my advocate at the following address:

          Advocate/Parent name
          address
          city, state, zip
          phone #
 
I trust my child’s protection to you; please do not let me down.
Sincerely,
Parent’s name

 U.S. D.o.E.

Checklist for a Comprehensive Approach to Addressing Harassment

  • Board members, district administrators, and the superintendent recognize the urgency of the problem of unlawful harassment and hate crime, identify people and agencies that can help them develop effective prevention and response strategies, and compile a library of useful materials
  • School officials select personnel to work on creating an effective anti-harassment program in consultation with parents, students, and community groups
  • Compliance coordinators are appointed and trained
  • School personnel assess the school climate to determine the prevalence and types of harassment that may exist and the potential for hate-motivated violence
  • School district adopts a written anti-harassment policy or reviews and revises existing policies for accuracy, clarity and legal compliance; the policy is clearly communicated to all members of the school community; and school personnel and students are held accountable for their actions
  • School district develops a formal grievance procedure and takes steps to make sure it is working properly
  • Instructional personnel use or supplement the district's curriculum and pedagogical trategies to foster respect and appreciation for diversity
  • School sites institute, improve, or expand age appropriate student activities to prevent or reduce prejudice and conflict
  • School district and individual school sites institute specific measures to respond immediately and effectively when harassment occurs to stop the harassment and prevent recurrence
  • School officials flexibly apply response mechanisms to both the victim and the perpetrator, taking into account the parties' ages and the context of the behavior
  • School personnel continually monitor the school climate and promptly address problems that could lead to harassment or violence or that indicate that harassment could be occurring
  • Appropriate school officials become familiar with pertinent civil and criminal laws at the state, local, and federal levels, so that they are able to recognize possible civil rights violations, hate crimes and other criminal acts
  • Schools develop guidelines and procedures for collaboration with law enforcement officials, make appropriate referrals to outside agencies, and designate liaison personnel
  • Crisis intervention plans are in place to minimize the possibility of violence or disruption of the educational process
  • District-level personnel and individual school sites form continuing partnerships with parents and the community to prevent hate crimes and harassing behaviors
  • Staff training and professional development programs support the district's anti-harassment efforts
  • All harassment incidents are carefully documented and incidents are reported to outside authorities as required
  • District regularly assesses the effectiveness of its anti-harassment efforts
Source: Protecting Students from Harassment and Hate Crime, A Guide for Schools, January 1999
http://www.ed.gov/policy/rights/guid/ocr/checklist.html
 

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Protecting Students from Harassment and Hate Crime

A Guide for Schools

U.S. Department of Education
Office for Civil Rights
National Association of Attorneys General
Endorsed by the National School Boards Association
see the Guide's Table of Contents below
Excerpts related to disabilities:
Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 prohibit discrimination on the basis of disability by school districts receiving federal funds and by governmental entities, respectively. Harassment based on disability has not received as much public or legal attention as has racial and sexual harassment; however, disability related harassment is a form of impermissible discrimination.29 School districts are advised to include disability harassment in their policies and to consider such harassment under similar standards as are applicable to racial and sexual harassment. As in the case of racial and sexual harassment, the age of the harasser is an important element in determining whether prohibited harassment occurred and in selecting an appropriate remedy. An example of possible disability harassment,that is not typical of other kinds of harassment, would occur where a person seeks to involve a student with disabilities in antisocial, dangerous or criminal activity where the student, because of disability, is unable to comprehend fully or consent to the activity.30
29. See Guckenberger v. Boston University, 957 F. Supp. 306, 313-316 (D.Mass. 1997),

holding that the Americans with Disabilities Act and Section 504 proscribe harassment

based on disability, when such harassment has the purpose or effect of unreasonably

interfering with a student’s performance or of creating an intimidating, hostile or offensive

learning environment. See also Doe v. Marshall, 882 F. Supp. 1504, 1507 (E.D. Penn.

1995), holding that harassment based on disability by a professor against a college student

could violate Section 504 and the ADA. OCR has investigated numerous complaints of

disability related harassment.

  

30. The State of Vermont’s Model Policy describes disability harassment as including:

“conduct . . . directed at the characteristics of a person’s disabling condition, such as

imitating manner of speech or movement, or interference with necessary equipment.”

  

40. See the Individuals with Disabilities Education Act, as amended in 1997, 20 U.S.C.

§ 1400. OCR’s policy interpreting Section 504 also specifies prerequisites to the use of

certain disciplinary measures with students with disabilities. Anti-harassment policies can

remind school officials of the requirements applicable to the discipline of students with

disabilities. For example, the State of Vermont’s Model Anti-Harassment Policy provides:

“Action taken for violation of this policy shall be consistent with the requirements of any

applicable collective bargaining agreement, Supervisory Union, and/or School District

policy, state and federal law, including but not limited to the due process protections for

students with disabilities.”

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