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]{.underline}**

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]{.underline}**

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.[^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.[^2] Disability harassment is a form of discrimination
prohibited by Section 504 and Title II.[^3] 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),[^4] 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.[^5] 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.[^6]

> [Disability Harassment May Deny a Student an Equal Opportunity to
> Education under Section 504 or Title II]{.underline}

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.[^7]
>
> • 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]{.underline}

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]{.underline}**

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.[^8] 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]{.underline}**

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]{.underline} 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, Judith E. Heumann,

Assistant Secretary for Assistant Secretary

Civil Rights Office of Special Education

and Rehabilitative Services

Enclosure - list of OCR enforcement offices

[^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),) and sex (see 62 Fed Reg.
    12034 (Mar. 13, 1997), ). 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
    [www.ed.gov/offices/OCR/archives/Harassment/](http://www.ed.gov/offices/OCR/archives/Harassment/).
    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.

[^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.