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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. 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 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,
Assistant Secretary for
Civil Rights
Judith E. Heumann,
Assistant Secretary
Office of Special Education
and Rehabilitative Services
Enclosure - list of OCR enforcement offices
Press Release
Requests for a copy of the original letter, or
questions regarding the letter, may be directed to the DOE. At
the time this page was created, the original could be found
here.
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