Nancy Ryan, Esquire
Joanne Sommer, Esquire

1. School District Responsibilities
   A.  Letter written 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 which discusses a school district’s legal and educational responsibilities to prevent and respond appropriately to disability harrassment.

   B.  Denial of equal opportunity to education under Section 504/Title II; denial of FAPE under IDEA.

   Section 504 regulations, at 34 C.F.R. 104.4(b), set forth specific actions/inactions that constitute discrimination based on exclusion, inferior treatment or differential treatment that is not a justified response to a disabled individual’s needs or capabilities.  Harassment on the basis of disability is a violation of Section 504 and may exist if there was different treatment of an individual. 34 C.F. R. 104.4(b)(vii).  Examples include a teacher’s disparaging remarks pertaining to the student’s disability, Nordonia Hills (OH) City School District, 25 IDELR 233 (OCR 1996), and peer harassment, if condoned by the district,  Willamina (OR) School District 30-J, 27 IDELR 221 (OCR 1997).

   Discrimination under Title II is philosphically the same as discrimination for purposes of Section 504.  See 42 U.S.C. § 12132; 28 C.F.R. 35.130.

   Personal Liability – District officials can be held responsible if they fail to take prompt, appropriate, corrective action.

2. Decisions and Rulings
   • Recent Cases
     Kendall v. West Haven Department of Education, 33 IDELR 270 (Sup. Ct. Conn. 11/17/00).Assistant principal found negligent for failing to take action to protect special education student, award of $67,000.

     Nordo v. School District of Philadelphia et al.,172 F.Supp. 2d 600 (E.D. Pa. 2001).Court dismissed a Section 1983 claim against the district and three employees, ruling that the playground harassment of an elementary school student and a classmate who came to her aid with a disability were not foreseeable events. Neither the district nor its officials acted with willful disreard for, or deliberate indifference to, the students’ safety.  Once she learned of the harassment, the principal implemented a plan to address the problem.

   • OCR Rulings
     Evidence supported claim of harassment based on disability/hostile environment, in part: Millis (MA) Pub. Schs., 21 IDELR 1064 (1994)

     Evidence did not support claim of harassment based on disability/hostile environment:
     Clover Park (WA) Sch. Dist. No. 400, 103 LRP 19497 (OCR 2003)
     Avon (MA) Pub. Schs., 38 IDELR 134 (CRI, Boston (MA) 2002)
     Gan Yeladeem: The Looking Glass Sch. (AZ), 38 IDELR (OCR 2002)                               
     Northside (TX) Indep. Sch. Dist., 38 IDELR 192 (OCRVI, Dallas (TX) 2002)

   • Appeal Panel Decisions

     Harassment found:
     Cumberland Valley School District, 38 IDELR 277 (2003)
     Student with Tourette’s Syndrome and OCD was harassed by other students by alleged pushing, threats, grabbing and verbal abuse.  In response, the district evaluated the student and placed him on homebound instruction.  In a decision awarding compensatory education, the panel upheld the hearing officer’s ruling, stating that hearing officers have authority to consider issues of discrimination under both federal and state law (§ 504 of the Vocational Rehab. Act of 1973 and 22 PA Code Chapter 15).

     No harassment: 
     Owen J. Roberts School District, 36 IDELR 173 (2002)
     Student with cerebral palsy was allegedly harassed by two students.  In response to incidents and perceived safety problems, the parents requested home schooling and asserted FAPE denial.  The panel rejected their claim, stating that their characterization of harassment went beyond the legal definition.

3. Preventing and Responding to Disability Harassment in Schools
   When a school district is put on notice that a student is the victim of frequent disability-based harassment, it is obligated, under Section 504 and the ADA, to take steps to address and eliminate the harassment, including:
   1. Working closely with the student and parents to develop a method that enables parents to bring complaints of abuse to district staff in a timely way;
   2. Maintain a record of all complaints and the district’s response to complaints;
   3. Consider whether systemic action to address disability harassment, such as staff training or student educational programs, needs to be taken;
   4. Inform the parent of the right to file a grievance under 34 C.F.R. 104.7(b).

      See York (ME) School Department, 27 IDELR 54 (OCR 1997); Willamina (OR) School District 30-J, 27 IDELR 221 (OCR 1997).

      •  Sample Disability Harassment Policies
      See  Saxe v. State College Area School District, 240 F. 3d 200 (3d Cir. 2001), where   the Third Circuit ruled that the school district’s anti-harassment policy was far broader than federal anti-discrimination laws and found it unconstitutional.

      •  National Association of School Psychologists Steps to Stop Disability Harassment.