Disability Harassment -- Reminder of Responsibilities under Section
504 of the Rehabilitation Act of 1973 and Title II of the Americans
with Disabilities Act:
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
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
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
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
Disability Harassment May Deny a
Student an Equal Opportunity to Education under Section 504 or Title
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.
o 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.
o 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.
o 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.
o 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
o 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.
o 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
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
How to Prevent and Respond to
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
The following measures are ways to both
prevent and eliminate harassment:
o 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
o Encouraging parents, students,
employees, and community members to discuss disability harassment and
to report it when they become aware of it.
o 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
o Providing appropriate, up-to-date,
and timely training for staff and students to recognize and handle
o Counseling both person(s) who have
been harmed by harassment and person(s) who have been responsible for
the harassment of others.
o Implementing monitoring programs to
follow up on resolved issues of disability harassment.
o 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
|Norma V. Cantu,
Assistant Secretary for
|Judith E. Heumann,
Office of Special Education
and Rehabilitative Services