CREATING EQUAL OPPORTUNITIES FOR
CHILDREN AND YOUTH WITH DISABILITIES TO
PARTICIPATE IN PHYSICAL EDUCATION AND
EXTRACURRICULAR ATHLETICS

AUGUST, 2011

The U.S. Department of Education does not mandate or prescribe particular curricula or teaching
strategies. The resources, information, and links cited in this document are for the readers‟
convenience and their inclusion herein does not constitute an endorsement by the U.S.
Department of Education of any products or services cited in this document.
U.S, Department of Education
Arne Duncan
Secretary
Office of Special Education and Rehabilitative Services (OSERS)
Alexa Posny
Assistant Secretary
Office of Special Education Programs
Melody Musgrove
Director
August 2011
This report is in the public domain. Authorization to reproduce it in whole or in part is granted. All Web
sites were accessed in August 2011. While permission to reprint this publication is not necessary, the
citation should be: U.S. Department of Education, Office of Special Education and Rehabilitative
Services, Office of Special Education Programs, Creating Equal Opportunities for Children and Youth
with Disabilities to Participate in Physical Education and Extracurricular Athletics, Washington, D.C.,
2011.

ii

CONTENTS
Overview ....................................................................................................................................................... 1
Federal Laws .......................................................................................................................................... 2
Guidelines for Physical Activity ............................................................................................................ 4
Limitations in Our Current Knowledge .................................................................................................. 5
Suggestions to Increase Opportunities .......................................................................................................... 7
Accessibility ........................................................................................................................................... 7
Equipment .............................................................................................................................................. 8
Personnel preparation ............................................................................................................................. 8
Teaching style......................................................................................................................................... 9
Management of behavior ........................................................................................................................ 9
Program options ................................................................................................................................... 10
Curriculum............................................................................................................................................ 11
Assessment, Progress, Achievement, and Grading .............................................................................. 12
Conclusion .................................................................................................................................................. 14
Appendix A: References ............................................................................................................................. 15
Appendix B: An Example from State Legislation and Policy: Maryland ................................................... 17
Appendix C: Resources............................................................................................................................... 18
National Center on Accessibility .......................................................................................................... 18
National Center on Physical Activity and Disability............................................................................ 18
National Consortium for Physical Education and Recreation for Individuals with Disabilities .......... 18
The President‟s Challenge .................................................................................................................... 18
Project UNIFY ..................................................................................................................................... 18
Adapted Physical Education Personnel Preparation Projects funded by the
U.S. Department of Education, Office of Special Education Programs ............................................ 19

iii

OVERVIEW
Physical inactivity is high among many children. In 2009, less than 25% of youth
participated in at least 60 minutes of physical activity on any of the previous seven days
according to the national Youth Risk Behavior Survey (U. S. Department of Health and Human
Services, 2010). The President‟s Council on Physical Fitness and Sports Research Digest
reported that physical activity is 4.5 times lower for children and youth with disabilities than
their peers without disabilities (Rimmer, 2008). The patterns of inactivity in childhood and
adolescence track to higher rates of inactivity, obesity, and other health problems in adulthood.
Among some young people with disabilities, the lower rates of physical activity may be related
to the lack of physical capacity to perform certain activities and the lack of appropriate
opportunities for physical activity and athletics.
Adults with disabilities report the barriers to health and fitness “include cost of
memberships, lack of transportation to fitness centers, lack of information on available and
accessible facilities and programs, lack of accessible exercise equipment that can be purchased
for home use, and the perception that fitness facilities are unfriendly environments for those with
a disability” (Rimmer, 2008, p. 3). The feelings related to lack of access and being unwelcomed
reflect a continuation of behavioral and emotional patterns begun in childhood. Typically,
children and youth with disabilities engage in very little school-based physical activity, less
healthy after-school activity, and more sedentary amusements (Rimmer & Rowland, 2007).
A report by the United States Government Accountability Office (GAO-10-519) revealed
that, despite legislation obligating states and schools to provide equal access, opportunities for
physical activity are limited for children and youth with disabilities (GAO, 2010). This

1

document is the initial response to the GAO recommendation that “the Secretary of Education
facilitate information sharing among states and schools on ways to provide opportunities in
[physical education] PE and extracurricular athletics to students with disabilities” (p. 32). The
purposes of this document are to disseminate information on improving opportunities for
children and youth to access PE and athletics and to refer the reader to sources of additional
information regarding the inclusion of children and youth with disabilities in PE and athletic
extracurricular activities. The Office for Civil Rights (OCR) in the U.S. Department of
Education (Department) is providing separate and additional guidance on the legal aspects of the
provision of extracurricular athletic opportunities to students with disabilities to comply with the
second recommendation by the GAO to the Department in its report.
This document includes an overview of the problem, suggestions to increase
opportunities for children and youth to access PE and athletics, and three appendices. Appendix
A includes references from the field, Appendix B includes an example of a State law that
addresses equal opportunity to access PE and athletics, and Appendix C lists projects and
collaborative efforts that address physical activity among people with disabilities and includes
links to Department-funded projects preparing adapted physical education personnel.
FEDERAL LAWS
States and schools are required to provide equal opportunity to participate in physical
education and extracurricular athletics by children and youth with and without disabilities. The
Individuals with Disabilities Education Act (IDEA) requires schools to provide a “free
appropriate public education” in the “least restrictive environment.” The definition of “special
education” in section 602(29) of the IDEA includes instruction in physical education. Therefore,
for some students with disabilities instruction in physical education may be a part of the special
2

education services prescribed in their individualized education program (IEP). Section 504 of
the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (Title II)
are federal civil rights laws that prohibit disability discrimination, including in public schools.
Under Section 504, schools that receive Federal financial assistance must ensure that children
and youth with disabilities have an equal opportunity to participate in the program or activity of
the school, including extracurricular activities. Under Title II, public entities, including public
schools, may not discriminate on the basis of disability in providing their services, programs, and
activities.
OCR enforces Section 504 and Title II in the context of education. OCR investigates
complaints of discrimination on the basis of race, color, national origin, sex, disability, or age
pursuant to these and other laws. OCR collaborates with the Office of Special Education and
Rehabilitative Services in supporting improved educational opportunities for children and youth
with disabilities through policy guidance, technical assistance, and information dissemination.
IDEA defines a child with a disability as a child having one of the disabilities specified in
section 602(3) of the IDEA who, by reason of the disability, needs special education and related
services. The following categories of disability are included in the section 602(3) of the IDEA:
developmental delay (only for children under the age of 9); intellectual disability (formerly
known as mental retardation); hearing impairments including deafness; speech or language
impairments; visual impairments including blindness; emotional disturbance; orthopedic
impairments; autism; traumatic brain injury; other health impairments; and specific learning
disabilities. Identification criteria are typically developed in state regulations based on the
statutory definitions of the specified disability terms in 34 CFR §300.8(c). Some children meet
the identification criteria for more than one disability, (e.g. deaf-blindness or multiple
3

disabilities). In this document, the term “disabilities” refers to all categories of disability unless
specifically noted. This inclusive meaning must inform the readers‟ understanding and
interpretation of the document‟s suggestions, which are necessarily broad.1
GUIDELINES FOR PHYSICAL ACTIVITY
The 2008 Physical Activity Guidelines for Americans (U. S. Department of Health and
Human Services, 2008) recommend that children and youth have 60 minutes of physical activity
of moderate and vigorous intensity daily in three types of activity—aerobic activities, musclestrengthening activities, and bone-strengthening activities. The Guidelines include a brief
mention of children and youth with disabilities (p. 19):
Children and adolescents with disabilities are more likely to be inactive than those
without disabilities. Youth with disabilities should work with their healthcare provider to
understand the types and amounts of physical activity appropriate for them. When
possible, children and adolescents with disabilities should meet the Guidelines. When
young people are not able to participate in appropriate physical activities to meet the
Guidelines, they should be as active as possible and avoid being inactive.
In order to reduce the risk of injury, children and youth are advised to increase their physical
activity gradually and to engage in a variety of exercise, sport, and recreation activities.2

1

Section 504 and the Americans with Disabilities Act use a different definition of disability. For purposes of this
document, unless otherwise noted, the term, “disability,” means the IDEA definition of disability. Although the
authors of the cited works may apply different definitions of the term, “disability,” the contents of these works are
broadly applicable to children and youth with disabilities receiving services under IDEA.
2
A variety of exercise, sport, and recreation activities promote balanced aerobic conditioning, muscle strengthening,
and bone strengthening. Joints, muscle groups, and other body parts are used differently, thereby reducing the risk
of injury due to repetitive motion or overuse (Foley, 2010).

4

Increased physical activity increases motor skills, which in turn facilitate increased physical
activity (Foley, 2010).
The trend of childhood obesity and inactivity is increasing the focus on physical activity
among children (e.g. The First Lady‟s Let’s Move! campaign--information available at
http://www.letsmove.gov/). Not only are inactivity and obesity even more prevalent among
children with disabilities (Rimmer, 2008), inactivity and obesity can be more problematic for
children and youth with disabilities because they can lead to and exacerbate secondary
conditions associated with certain disabilities (Rimmer, Wang, Yamaki, & Davis, 2010).
LIMITATIONS IN OUR CURRENT KNOWLEDGE
There is limited understanding of how the research on children without disabilities can be
translated into guidance for physical activity programs for children with disabilities (Fleming,
2010). In spite of the public‟s awareness of the risks of inactivity and obesity, there is limited
research providing evidence of effective practices and approaches to increase physical activity,
to reduce obesity, and to maintain health among children and youth with disabilities. The few
findings of the research done in clinical settings have not been adequately translated for
application to PE and athletic activities in school and community settings. As a result of the
limited research in this area, states, schools, and educators are faced with the challenge of
developing and implementing practices to increase the participation of children and youth with
disabilities in PE and athletics without a strong base of research evidence.
Even with the limited research on effective practices, there is growing consensus in the
research literature regarding several common barriers to physical activity for children and youth
with disabilities. The barriers include inaccessible facilities and equipment (Auxter, Pyfer,

5

Zittel, & Roth, 2010; Block, 2007; Rimmer, 2008; Rimmer & Rowland, 2007; Simeonsson,
Carlson, Huntington, McMillen, & Brent, 2001; and Stanish, 2010); personnel without adequate
training (Auxter, et al., 2010; Block, 2007; Rimmer & Rowland, 2007; and Stanish, 2010); and
inadequate, non-compliant, or otherwise inaccessible programs and curricula (Auxter, et al.,
2010; Block, 2007; Porretta, 2010; Rimmer, 2008; Rimmer & Rowland, 2007; Simeonsson, et
al., 2001; and Stanish, 2010). The research base and professional opinion support the following
suggestions for improving opportunities for children and youth with disabilities to participate in
PE and athletic activity.

6

SUGGESTIONS TO INCREASE OPPORTUNITIES
States and school districts can increase opportunities for participation by reducing or
eliminating common barriers to participation. In this section, we address common barriers and
provide suggestions for increasing access.
ACCESSIBILITY
Accessibility includes the considerations of the area or environment in which physical
activity takes place, the safety and security within the space, and specifications suggested for
particular disabilities. Access is facilitated through adapted PE practices3 and universal design
principles4 (U. S. Access Board, n.d.). For example, concrete play areas are being replaced by
soft surfaces to reduce child injury. Because wood chips and sand interfere with mobility of
children and youth in wheelchairs, solid soft surfaces are recommended to allow safe use of play
areas by more children and youth (U. S. Access Board, n.d.).
The Title II regulations, which apply to public schools and their facilities, provide
requirements for accessibility to persons with disabilities.5 For example, Title II applies to
public schools‟ play areas and provides requirements for their accessibility by persons with

3

“Adapted Physical Education is physical education which has been adapted or modified, so that it is as appropriate
for the person with a disability as it is for a person without a disability.” (Adapted Physical Education National
Standards at http://www.apens.org/whatisape.html)
4
“The term, „universal design,‟ means a concept or philosophy for designing and delivering products and services
that are usable by people with the widest possible range of functional capabilities, which include products and
services that are directly accessible (without requiring assistive technologies) and products and services that are
interoperable with assistive technologies.” (See Assistive Technology Act of 1998, as amended, 29 U. S. C. § 3002.
IDEA uses the same definition. See 20 U.S.C. § 1401(35).)
5
Among other things, the Title II regulations provide that new construction of a facility be done so that the facility
is readily accessible to and usable by persons with disabilities. New construction and alterations commencing on or
after March 15, 2012, are subject to new design standards under the Title II regulations, and these standards include
specific requirements for play areas. See 28 C.F.R. §35.151. The Title II regulations also impose a requirement that
each service, program or activity of a public entity, when viewed in its entirety, is readily accessible to and usable by
persons with disabilities, and they establish program accessibility requirements that include requirements applicable
to play areas. See 28 C.F.R. §35.150.

7

disabilities. Accessibility also refers to the opportunity to use facilities and equipment.
Communities that provide accessible transportation to accessible facilities increase the
opportunity for physical activity by children and youth with disabilities and their families.
EQUIPMENT
Appropriate equipment can help children and youth with disabilities participate in
appropriate physical activity. Athletic equipment might need to be modified for safe use by
some children and youth with disabilities. For other students with disabilities, specialized
equipment may be needed. Activities involving the use of modified or specialized equipment
can replace other less safe activities. Treadmills, for example, are effective in providing
predictable walking and running conditions, which can be necessary and appropriate for some
individuals with disabilities (Stanish, 2010). As another example, gaming systems that support
movement detection technologies (e.g., Wii, Xbox 360, and PlayStation 3) can be used by some
children and youth with disabilities to participate in sport simulations (Foley, 2010). Physical
growth and development and changes in ability require continuous reevaluation and, as needed,
modification of the fit and functionality of equipment for children and youth with disabilities.
PERSONNEL PREPARATION
Knowledgeable adults create the possibility of participation among children and youth
both with and without disabilities. Physical activities may be guided by a wide range of support
personnel with various levels of training including other students, general and special education
teachers, paraprofessionals, adaptive physical education specialists, and related service providers
(e.g., occupational therapist or speech language pathologist). Appropriate personnel preparation
and professional development to adapt games and activities to various ability and fitness levels
are needed in order to increase opportunities for children and youth with disabilities.
8

TEACHING STYLE
Inclusive teaching styles create a climate and culture of participation for children and
youth with and without disabilities. The educational philosophy and beliefs of the individual
teacher and the school system influence opportunity. Patterns of teaching must be informed by
the need to safeguard the civil rights of all students, including those with disabilities, both by
providing equal athletic opportunity and protecting students from reasonably foreseeable risks to
their health and safety. In PE and athletic programs, the focus has traditionally been on
competition rather than instruction, but has recently shifted to “new PE,” which focuses on
improvements by the individual student. Children and youth with disabilities and those without
athletic prowess require adaptive opportunities and precise instruction for concerns such as poor
motor coordination (Stanish, 2010).
MANAGEMENT OF BEHAVIOR
Athletics in the school setting involve complex interactions in settings less controlled
than the typical academic classroom. Team play and sportsmanship cannot be taught except
through participation. Effective PE and athletics require a teacher or coach with strong behavior
management skills. Certain disabilities are associated with characteristics that may interfere with
the student‟s ability to act consistently like a good team player or otherwise conform to the social
expectations of particular athletic activities. A few of these characteristics include poor impulse
control, limited social awareness, and emotional lability.6 School personnel should have the
knowledge, skills, and abilities to address the interactional components of disabilities within the
context of competition. Children and youth with and without disabilities can participate in PE

6

“Emotional lability is a condition of excessive emotional reactions and frequent mood changes.” (Mosby's Medical
Dictionary, 8th edition, 2009)

9

and athletics more fully when social, emotional, and behavioral interactions are directly
instructed, monitored, and remediated.
PROGRAM OPTIONS
PE and athletics can be offered in various degrees of inclusion in programs and activities
with children and youth without disabilities. IDEA requires that each child with a disability
participates with nondisabled children in these programs and activities to the maximum extent
appropriate to the needs of that child.7 Physical education services, specially designed if
necessary, must be made available to every child with a disability receiving a free appropriate
public education, unless the public agency enrolls children without disabilities and does not
provide physical education to children without disabilities in the same grades.8 Each public
agency must take steps to provide nonacademic and extracurricular services and activities,
including athletics, in the manner necessary to afford children with disabilities an equal
opportunity for participation in those services and activities.9 For students served under IDEA,
the student‟s IEP must include, among other things, a statement of the special education and
related services, and supplementary aids, services, and other supports that are needed to meet
each child‟s unique needs in order for the child to: (1) advance appropriately towards attaining
the annual goals; (2) be involved in and make progress in the general education curriculum and
to participate in extracurricular and other nonacademic activities; and (3) be educated and

7

The IDEA Part B regulations in 34 CFR §300.117 require that the public agency ensure that each child with a
disability has the supplementary aids and services determined by the child‟s IEP team to be appropriate and
necessary for the child to participate in nonacademic settings.
8
The IDEA Part B regulations in 34 CFR §300.108(b) require that each child with a disability must be afforded the
opportunity to participate in the regular physical education program available to nondisabled children unless the
child is enrolled full time in a separate facility; or the child needs specially designed physical education, as
prescribed in the child‟s IEP. The regulations in 34 CFR §300.108(d) require the public agency responsible for the
education of a child with a disability who is enrolled in a separate facility to ensure that the child receives
appropriate physical education services.
9
The IDEA Part B regulations in 34 CFR §300.107 address nonacademic and extracurricular services and activities.

10

participate in such activities with other children with disabilities and nondisabled children.10 The
IEP team, which includes both general and special education teachers, might benefit from
participation by a general or adaptive physical education teacher in order to develop the IEP for
certain students. Section 504 and Title II also reflect the principle of inclusion in their mandate
of equal access and require that students with disabilities are served in the most integrated setting
appropriate to their needs.
CURRICULUM
Curriculum encompasses more than the age or grade lists of content standards,
benchmarks, objectives, strategies, and assessments. Curriculum includes day-to-day
implementation, which requires flexibility with the content in context. An accessible PE
curriculum provides for that flexibility. Applying the universal design for learning (UDL)11
framework to the PE curriculum increases opportunities for participation by providing multiple
means for student engagement. The variety of options allows children with disabilities to choose
activities of interest which increases their participation (Porretta, 2010). UDL also provides
multiple means of presentation. Information technology shows promise in providing a new
means of presentation. For example, “bug-in-the-ear” communicators allow sideline coaches
and instructors to personalize the “real-time” explanation of game rules and procedures based on
the needs of individual players with disabilities (Rimmer & Rowland, 2008).

10

The IDEA Part B regulations in 34 CFR §300.320 (a) address the content required in a child‟s IEP and
§300.320(a)(4) requires a statement of the special education and related services and supplementary aids and
services and other supports to be provided to the child.
11
“The term “universal design for learning” means a scientifically valid framework for guiding educational practice
that— (A) provides flexibility in the ways information is presented, in the ways students respond or demonstrate
knowledge and skills, and in the ways students are engaged; and (B) reduces barriers in instruction, provides
appropriate accommodations, supports, and challenges, and maintains high achievement expectations for all
students, including students with disabilities and students who are limited English proficient.” (Higher Education
Resources and Student Assistance, 20 U.S. C. § 1003)

11

PE curricula based on physical growth and the development of fitness and socialization
can support the inclusion of children and youth with disabilities. The curricular focus on lifelong
fitness and health can facilitate forming habits that will follow through to adulthood (Foley,
2010). Teachers and coaches increase successful inclusion by focusing on the camaraderie and
fun of activity rather than on competition and winning.
An individual student‟s IEP must include goals and accommodations for PE and athletics,
as needed (IDEA, 20 U. S. C. §1414(d)). The development of IEPs requires collaboration among
professionals as well as parent participation. Parents might be reluctant to have their children
participate in physical activity due to uncertainty about its effects and the possibility of teasing
and ridicule from peers. The IEP team can better support the students‟ successful access to, and
participation in, PE and athletics when these concerns are effectively addressed in the IEP.
ASSESSMENT, PROGRESS, ACHIEVEMENT, AND GRADING
Assessment in PE and athletics should be planned and implemented so that progress and
achievement can be rated accurately and fairly. Assessment instruments that compare the
individual against herself or himself are able to measure both attainment and growth. These
comparisons show the trajectory toward health and fitness, while avoiding the inappropriate
application of some standardized benchmarks of health and fitness to children and youth with
disabilities. For example, Body Mass Index has been shown to be inappropriate for people with
certain disabilities who tend to have a different proportion of lean mass (Rimmer, et al., 2010).
Some equipment and technologies may allow for more accurate assessments of the incremental
improvements made by children and youth with disabilities. For instance, wheelchair scales
increase the accurate measurement of a student‟s weight and a spreadsheet can track the changes.

12

Better assessment can lead to better instruction, feedback, grading practices, and ultimately
better outcomes for children and youth with disabilities.
When competitive performance is the sole or primary criterion for grades in PE classes,
some children and youth with and without disabilities might earn failing grades. The methods
used to grade progress and achievement can be used to encourage participation among children
and youth with disabilities. For an individual child whose IEP includes annual goals for PE and
athletics, the IEP must include a description of how a child‟s progress towards meeting the
annual goals will be measured.

13

CONCLUSION
The purpose of this document is to disseminate information on improving opportunities
for children and youth to access PE and athletics. This document is the Department‟s initial
response to GAO‟s recommendation, referring the reader to sources of additional information
regarding the inclusion of children and youth with disabilities in PE and athletic extracurricular
activities. Research and professional opinion support the suggestions for improving
opportunities for children and youth with disabilities to participate in PE and athletic activity by
addressing common barriers to increase access and participation.
States and school districts can increase opportunities for participation by reducing or
eliminating common barriers to participation. The Appendices that follow provide references,
examples and resources for increasing equal opportunities for children and youth with disabilities
to participate in PE and athletics. The example from Maryland in Appendix B describes the only
current state legislation addressing equal opportunity to access PE and athletics. The resources
in Appendix C include projects and collaborative efforts that address physical activity among
people with disabilities. Links to Department-funded projects preparing adapted physical
education personnel are also provided in Appendix C.

14

APPENDIX A: REFERENCES
Auxter, D., Pyfer, J., Zittel, L., & Roth, K. (2010). Principles and Methods of Adapted Physical
Education and Recreation (11th ed.). Boston: McGraw-Hill.
Block, M. E. (2007). A Teacher’s Guide to Including Students with Disabilities in General
Physical Education (3rd ed.). Baltimore, MD: Brookes Publishing.
Fleming, R. (2010, July 15). Translating general pediatric weight loss interventions for
application with children with intellectual and developmental disabilities. Presentation at
Obesity in Children with Developmental and/or Physical Disabilities meeting sponsored
by the Eunice Kennedy Shriver National Institute of Child Health and Human
Development (NICHD). Bethesda, MD.
Foley, J. (2010, July 15). Physical activity—Physical disabilities. Presentation at Obesity in
Children with Developmental and/or Physical Disabilities meeting sponsored by the
Eunice Kennedy Shriver National Institute of Child Health and Human Development
(NICHD). Bethesda, MD.
Porretta, D. (2010, July 15). Physical activity—Intellectual and developmental disabilities.
Presentation at Obesity in Children with Developmental and/or Physical Disabilities
meeting sponsored by the Eunice Kennedy Shriver National Institute of Child Health and
Human Development (NICHD). Bethesda, MD.
Rimmer, J. (2008, June/July). Promoting inclusive physical activity communities for people with
disabilities. President’s Council on Physical Fitness and Sports Research Digest, 9(2),
1-8.
Rimmer, J., & Rowland, J. L. (2007). Physical activity for youth with disabilities: A critical need
in an underserved population. Developmental Rehabilitation, 11(2), 141-148.
doi: 10.1080/17518420701688649
Rimmer, J., Wang, E., Yamaki, K., & David, B. (2010). Documenting disparities in obesity and
disability. FOCUS Technical Brief #24. Austin, TX: SEDL.

15

Simeonsson, R. J., Carlson, D., Huntington, G. S., McMillen, J. S., & Brent, J. L. (2001).
Students with disabilities: A national survey of participation in school activities.
Disability and rehabilitation, 23(2), 49-63.
Stanish, H. (2010, July 15). Physical activity—Intellectual and developmental disabilities.
Presentation at Obesity in Children with Developmental and/or Physical Disabilities
meeting sponsored by the Eunice Kennedy Shriver National Institute of Child Health and
Human Development (NICHD). Bethesda, MD.
U. S. Access Board. (n.d.). Accessibility guidelines for play areas: An overview. Retrieved from
www.access-board.gov/play.
U. S. Department of Health and Human Services (HHS). (2010). Trends in the Prevalence of
Physical Activity: National YRBS: 1991 – 2009. Available at
http://www.cdc.gov/HealthyYouth/yrbs/pdf/us_physical_trend_yrbs.pdf.
U. S. Department of Health and Human Services (HHS). (2008). 2008 Physical Activity
Guidelines for Americans: Be Active, Healthy, and Happy! ODPHP Publication
No. U0036. Washington, D.C.: Author. Available at
www.health.gov/paguidelines/pdf/paguide.pdf.
U. S. Government Accountability Office (GAO). (2010, June). Students with Disabilities: More
Information and Guidance Could Improve Opportunities in Physical Education and
Athletics. Report to Congressional Requesters Number GAO-10-519. Washington, DC:
Author. Available at www.gao.gov/products/GAO-10-519.

16

APPENDIX B:
AN EXAMPLE FROM STATE LEGISLATION AND POLICY:
MARYLAND
2008 Maryland Fitness and Athletic Equity Act for Students with Disabilities
The Maryland law, unique in the nation and in full effect July 2011, requires local boards of
education to develop policies to include students with disabilities in all curricular and
extracurricular physical education and athletic programs. Specifically, the schools must provide
students with reasonable accommodations to participate, the opportunity to try out for school
teams, and access to alternative sports programs.
A Guide for Serving Students with Disabilities in Physical Education
www.marylandpublicschools.org/NR/rdonlyres/84C4C717-B8FF-486B-865979F297DF5B38/19715/Servingstudents2.pdf
The Maryland State Department of Education published this guide for schools to comply with
the 2008 Maryland Fitness and Athletic Equity Act for Students with Disabilities.12

12

As previously stated on page ii, the resources, information, and links cited in this document are for the readers‟
convenience and their inclusion herein does not constitute an endorsement by the U.S. Department of Education of
any products or services.

17

APPENDIX C: RESOURCES
National Center on Accessibility
www.ncaonline.org
This center is supported through a cooperative agreement with the National Parks Service. It
promotes access and inclusion for people with disabilities to parks, recreation, and tourism.
The center promotes personal wellness and community health.
National Center on Physical Activity and Disability
www.ncpad.org
NCPAD is supported by the Centers for Disease Control and Prevention (CDC). It is an
information center concerned with physical activity and disability. The center provides an
online source for information about people of all ages with disabilities, including Web pages
that list resources by categories.
National Consortium for Physical Education and Recreation for
Individuals with Disabilities
www.ncperid.org
NCPERID promotes research, professional preparation, service delivery, and advocacy of
physical education and recreation for individuals with disabilities.
The President’s Challenge
www.presidentschallenge.org/participate/ed-disabilities.shtml
The President‟s Challenge to increase physical fitness is made to all children, youth, and
adults of all ages and abilities. Detailed information about the challenge and resources to
support individuals and school or community groups in meeting the challenge are made
available through the President‟s Council on Fitness, Sports & Nutrition.
Project UNIFY
www.specialolympics.org/projectunify.aspx
The Special Olympics‟ Project UNIFY is supported by the Office of Special Education
Programs (OSEP). It is a K-12 intervention that strategically activates youth, engages
educators and promotes communities of acceptance and inclusion where all young people are
agents of change—fostering respect and dignity for people with Intellectual Disabilities (ID),
utilizing the sports and education initiatives of Special Olympics.

18

ADAPTED PHYSICAL EDUCATION PERSONNEL PREPARATION PROJECTS FUNDED BY THE
U.S. DEPARTMENT OF EDUCATION, OFFICE OF SPECIAL EDUCATION PROGRAMS
Adapted Physical Education Training of U. S. Pacific Islanders Using a Teacher-Consultant
Model (Project APERT), University of Hawaii
Nathan Murata, Ph.D.
nmurata@hawaii.edu
Center on Health and Adapted Physical Education, University of Wisconsin-La Crosse
Garth Tymeson, Ph.D.
tymeson.gart@uwlax.edu
Personnel Preparation of Highly Qualified Adapted Physical Education Teachers in
Pennsylvania, Slippery Rock University of Pennsylvania
Robert Arnhold, Ph.D.
Robert.arnhold@sru.edu
Preparation of Fully Credentialed, Highly Qualified Adapted Physical Educators at the Masters
Level for Students with Low Incidence Disabilities, Texas Women‟s University
Ronald French, Ph.D.
rfrench@mail.twu.edu
Preparation of Leadership Personnel in Adapted Physical Education, Oregon State University
Jeffrey McCubbin, Ph.D.
jeff.mccubbin@oregonstate.edu
Project ADAPTED PE, University of Utah
Hester Henderson, Ph.D.
hester.henderson@health.utah.edu

Project for Preparing Adapted Physical Education, Western Michigan University
Debra Berkey, Ph.D.
debra.berkey@wmich.edu

19

Project P. P. A. P. E.: Professional Preparation of Adapted Physical Education, North Carolina
Agricultural and Technical State University
Gloria Palma, Ph.D.
palmag@ncat.edu
Using a Hybrid Online Master's Degree Program to Train Qualified Adapted Physical Education
Teachers, Western Michigan University
Jiabei Zhang, Ed.D.
zhangj@wmich.edu

20

The Department of Education‟s mission is to promote student
achievement and preparation for global competiveness
by fostering educational excellence and
ensuring equal access.
www.ed.gov


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS

October 26, 2010
Dear Colleague:
In recent years, many state departments of education and local school districts have taken
steps to reduce bullying in schools. The U.S. Department of Education (Department) fully
supports these efforts. Bullying fosters a climate of fear and disrespect that can seriously
impair the physical and psychological health of its victims and create conditions that negatively
affect learning, thereby undermining the ability of students to achieve their full potential. The
movement to adopt anti‐bullying policies reflects schools’ appreciation of their important
responsibility to maintain a safe learning environment for all students. I am writing to remind
you, however, that some student misconduct that falls under a school’s anti‐bullying policy also
may trigger responsibilities under one or more of the federal antidiscrimination laws enforced
by the Department’s Office for Civil Rights (OCR). As discussed in more detail below, by limiting
its response to a specific application of its anti‐bullying disciplinary policy, a school may fail to
properly consider whether the student misconduct also results in discriminatory harassment.
The statutes that OCR enforces include Title VI of the Civil Rights Act of 1964 1 (Title VI), which
prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education
Amendments of 1972 2 (Title IX), which prohibits discrimination on the basis of sex; Section 504
of the Rehabilitation Act of 1973 3 (Section 504); and Title II of the Americans with Disabilities
Act of 1990 4 (Title II). Section 504 and Title II prohibit discrimination on the basis of disability. 5
School districts may violate these civil rights statutes and the Department’s implementing
regulations when peer harassment based on race, color, national origin, sex, or disability is
sufficiently serious that it creates a hostile environment and such harassment is encouraged,
tolerated, not adequately addressed, or ignored by school employees. 6 School personnel who
understand their legal obligations to address harassment under these laws are in the best
position to prevent it from occurring and to respond appropriately when it does. Although this
letter focuses on the elementary and secondary school context, the legal principles also apply
to postsecondary institutions covered by the laws and regulations enforced by OCR.
Some school anti‐bullying policies already may list classes or traits on which bases bullying or
harassment is specifically prohibited. Indeed, many schools have adopted anti‐bullying policies
that go beyond prohibiting bullying on the basis of traits expressly protected by the federal civil
1

42 U.S.C. § 2000d et seq.
20 U.S.C. § 1681 et seq.
3
29 U.S.C. § 794.
4
42 U.S.C. § 12131 et seq.
5
OCR also enforces the Age Discrimination Act of 1975, 42 U.S.C. § 6101 et seq., and the Boy Scouts of America Equal Access Act, 20 U.S.C.
§ 7905. This letter does not specifically address those statutes.
6
The Department’s regulations implementing these statutes are in 34 C.F.R. parts 100, 104, and 106. Under these federal civil rights laws and
regulations, students are protected from harassment by school employees, other students, and third parties. This guidance focuses on peer
harassment, and articulates the legal standards that apply in administrative enforcement and in court cases where plaintiffs are seeking
injunctive relief.
2

Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation.

Page 2‐ Dear Colleague Letter: Harassment and Bullying

rights laws enforced by OCR—race, color, national origin, sex, and disability—to include such
bases as sexual orientation and religion. While this letter concerns your legal obligations under
the laws enforced by OCR, other federal, state, and local laws impose additional obligations on
schools. 7 And, of course, even when bullying or harassment is not a civil rights violation,
schools should still seek to prevent it in order to protect students from the physical and
emotional harms that it may cause.
Harassing conduct may take many forms, including verbal acts and name‐calling; graphic and
written statements, which may include use of cell phones or the Internet; or other conduct that
may be physically threatening, harmful, or humiliating. Harassment does not have to include
intent to harm, be directed at a specific target, or involve repeated incidents. Harassment
creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent
so as to interfere with or limit a student’s ability to participate in or benefit from the services,
activities, or opportunities offered by a school. When such harassment is based on race, color,
national origin, sex, or disability, it violates the civil rights laws that OCR enforces. 8
A school is responsible for addressing harassment incidents about which it knows or reasonably
should have known. 9 In some situations, harassment may be in plain sight, widespread, or
well‐known to students and staff, such as harassment occurring in hallways, during academic or
physical education classes, during extracurricular activities, at recess, on a school bus, or
through graffiti in public areas. In these cases, the obvious signs of the harassment are
sufficient to put the school on notice. In other situations, the school may become aware of
misconduct, triggering an investigation that could lead to the discovery of additional incidents
that, taken together, may constitute a hostile environment. In all cases, schools should have
well‐publicized policies prohibiting harassment and procedures for reporting and resolving
complaints that will alert the school to incidents of harassment. 10
When responding to harassment, a school must take immediate and appropriate action to
investigate or otherwise determine what occurred. The specific steps in a school’s investigation
will vary depending upon the nature of the allegations, the source of the complaint, the age of
the student or students involved, the size and administrative structure of the school, and other
factors. In all cases, however, the inquiry should be prompt, thorough, and impartial.
If an investigation reveals that discriminatory harassment has occurred, a school must take
prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile
7

For instance, the U.S. Department of Justice (DOJ) has jurisdiction over Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c (Title IV), which
prohibits discrimination on the basis of race, color, sex, religion, or national origin by public elementary and secondary schools and public
institutions of higher learning. State laws also provide additional civil rights protections, so districts should review these statutes to determine
what protections they afford (e.g., some state laws specifically prohibit discrimination on the basis of sexual orientation).
8
Some conduct alleged to be harassment may implicate the First Amendment rights to free speech or expression. For more information on the
First Amendment’s application to harassment, see the discussions in OCR’s Dear Colleague Letter: First Amendment (July 28, 2003), available at
http://www.ed.gov/about/offices/list/ocr/firstamend.html, and OCR’s Revised Sexual Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties (Jan. 19, 2001) (Sexual Harassment Guidance), available at
http://www.ed.gov/about/offices/list/ocr/docs/shguide.html.
9
A school has notice of harassment if a responsible employee knew, or in the exercise of reasonable care should have known, about the
harassment. For a discussion of what a “responsible employee” is, see OCR’s Sexual Harassment Guidance.
10
Districts must adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex and
disability discrimination complaints, and must notify students, parents, employees, applicants, and other interested parties that the district
does not discriminate on the basis of sex or disability. See 28 C.F.R. § 35.106; 28 C.F.R. § 35.107(b); 34 C.F.R. § 104.7(b); 34 C.F.R. § 104.8; 34
C.F.R. § 106.8(b); 34 C.F.R. § 106.9.

Page 3‐ Dear Colleague Letter: Harassment and Bullying

environment and its effects, and prevent the harassment from recurring. These duties are a
school’s responsibility even if the misconduct also is covered by an anti‐bullying policy, and
regardless of whether a student has complained, asked the school to take action, or identified
the harassment as a form of discrimination.
Appropriate steps to end harassment may include separating the accused harasser and the
target, providing counseling for the target and/or harasser, or taking disciplinary action against
the harasser. These steps should not penalize the student who was harassed. For example, any
separation of the target from an alleged harasser should be designed to minimize the burden
on the target’s educational program (e.g., not requiring the target to change his or her class
schedule).
In addition, depending on the extent of the harassment, the school may need to provide
training or other interventions not only for the perpetrators, but also for the larger school
community, to ensure that all students, their families, and school staff can recognize
harassment if it recurs and know how to respond. A school also may be required to provide
additional services to the student who was harassed in order to address the effects of the
harassment, particularly if the school initially delays in responding or responds inappropriately
or inadequately to information about harassment. An effective response also may need to
include the issuance of new policies against harassment and new procedures by which
students, parents, and employees may report allegations of harassment (or wide dissemination
of existing policies and procedures), as well as wide distribution of the contact information for
the district’s Title IX and Section 504/Title II coordinators. 11
Finally, a school should take steps to stop further harassment and prevent any retaliation
against the person who made the complaint (or was the subject of the harassment) or against
those who provided information as witnesses. At a minimum, the school’s responsibilities
include making sure that the harassed students and their families know how to report any
subsequent problems, conducting follow‐up inquiries to see if there have been any new
incidents or any instances of retaliation, and responding promptly and appropriately to address
continuing or new problems.
When responding to incidents of misconduct, schools should keep in mind the following:

11

•

The label used to describe an incident (e.g., bullying, hazing, teasing) does not
determine how a school is obligated to respond. Rather, the nature of the conduct itself
must be assessed for civil rights implications. So, for example, if the abusive behavior is
on the basis of race, color, national origin, sex, or disability, and creates a hostile
environment, a school is obligated to respond in accordance with the applicable federal
civil rights statutes and regulations enforced by OCR.

•

When the behavior implicates the civil rights laws, school administrators should look
beyond simply disciplining the perpetrators. While disciplining the perpetrators is likely
a necessary step, it often is insufficient. A school’s responsibility is to eliminate the

Districts must designate persons responsible for coordinating compliance with Title IX, Section 504, and Title II, including the investigation of
any complaints of sexual, gender‐based, or disability harassment. See 28 C.F.R. § 35.107(a); 34 C.F.R. § 104.7(a); 34 C.F.R. § 106.8(a).

Page 4‐ Dear Colleague Letter: Harassment and Bullying

hostile environment created by the harassment, address its effects, and take steps to
ensure that harassment does not recur. Put differently, the unique effects of
discriminatory harassment may demand a different response than would other types of
bullying.
Below, I provide hypothetical examples of how a school’s failure to recognize student
misconduct as discriminatory harassment violates students’ civil rights. 12 In each of the
examples, the school was on notice of the harassment because either the school or a
responsible employee knew or should have known of misconduct that constituted harassment.
The examples describe how the school should have responded in each circumstance.
Title VI: Race, Color, or National Origin Harassment
•

Some students anonymously inserted offensive notes into African‐American students’
lockers and notebooks, used racial slurs, and threatened African‐American students who
tried to sit near them in the cafeteria. Some African‐American students told school
officials that they did not feel safe at school. The school investigated and responded to
individual instances of misconduct by assigning detention to the few student
perpetrators it could identify. However, racial tensions in the school continued to
escalate to the point that several fights broke out between the school’s racial groups.
In this example, school officials failed to acknowledge the pattern of harassment as
indicative of a racially hostile environment in violation of Title VI. Misconduct need not
be directed at a particular student to constitute discriminatory harassment and foster a
racially hostile environment. Here, the harassing conduct included overtly racist
behavior (e.g., racial slurs) and also targeted students on the basis of their race (e.g.,
notes directed at African‐American students). The nature of the harassment, the
number of incidents, and the students’ safety concerns demonstrate that there was a
racially hostile environment that interfered with the students’ ability to participate in
the school’s education programs and activities.
Had the school recognized that a racially hostile environment had been created, it
would have realized that it needed to do more than just discipline the few individuals
whom it could identify as having been involved. By failing to acknowledge the racially
hostile environment, the school failed to meet its obligation to implement a more
systemic response to address the unique effect that the misconduct had on the school
climate. A more effective response would have included, in addition to punishing the
perpetrators, such steps as reaffirming the school’s policy against discrimination
(including racial harassment), publicizing the means to report allegations of racial
harassment, training faculty on constructive responses to racial conflict, hosting class
discussions about racial harassment and sensitivity to students of other races, and
conducting outreach to involve parents and students in an effort to identify problems
and improve the school climate. Finally, had school officials responded appropriately

12

Each of these hypothetical examples contains elements taken from actual cases.

Page 5‐ Dear Colleague Letter: Harassment and Bullying

and aggressively to the racial harassment when they first became aware of it, the school
might have prevented the escalation of violence that occurred. 13
•

Over the course of a school year, school employees at a junior high school received
reports of several incidents of anti‐Semitic conduct at the school. Anti‐Semitic graffiti,
including swastikas, was scrawled on the stalls of the school bathroom. When
custodians discovered the graffiti and reported it to school administrators, the
administrators ordered the graffiti removed but took no further action. At the same
school, a teacher caught two ninth‐graders trying to force two seventh‐graders to give
them money. The ninth‐graders told the seventh‐graders, “You Jews have all of the
money, give us some.” When school administrators investigated the incident, they
determined that the seventh‐graders were not actually Jewish. The school suspended
the perpetrators for a week because of the serious nature of their misconduct. After that
incident, younger Jewish students started avoiding the school library and computer lab
because they were located in the corridor housing the lockers of the ninth‐graders. At
the same school, a group of eighth‐grade students repeatedly called a Jewish student
“Drew the dirty Jew.” The responsible eighth‐graders were reprimanded for teasing the
Jewish student.
The school administrators failed to recognize that anti‐Semitic harassment can trigger
responsibilities under Title VI. While Title VI does not cover discrimination based solely
on religion, 14 groups that face discrimination on the basis of actual or perceived shared
ancestry or ethnic characteristics may not be denied protection under Title VI on the
ground that they also share a common faith. These principles apply not just to Jewish
students, but also to students from any discrete religious group that shares, or is
perceived to share, ancestry or ethnic characteristics (e.g., Muslims or Sikhs). Thus,
harassment against students who are members of any religious group triggers a school’s
Title VI responsibilities when the harassment is based on the group’s actual or perceived
shared ancestry or ethnic characteristics, rather than solely on its members’ religious
practices. A school also has responsibilities under Title VI when its students are
harassed based on their actual or perceived citizenship or residency in a country whose
residents share a dominant religion or a distinct religious identity. 15
In this example, school administrators should have recognized that the harassment was
based on the students’ actual or perceived shared ancestry or ethnic identity as Jews
(rather than on the students’ religious practices). The school was not relieved of its
responsibilities under Title VI because the targets of one of the incidents were not
actually Jewish. The harassment was still based on the perceived ancestry or ethnic
characteristics of the targeted students. Furthermore, the harassment negatively
affected the ability and willingness of Jewish students to participate fully in the school’s

13

More information about the applicable legal standards and OCR’s approach to investigating allegations of harassment on the basis of race,
color, or national origin is included in Racial Incidents and Harassment Against Students at Educational Institutions: Investigative Guidance, 59
Fed. Reg. 11,448 (Mar. 10, 1994), available at http://www.ed.gov/about/offices/list/ocr/docs/race394.html.
14
As noted in footnote seven, DOJ has the authority to remedy discrimination based solely on religion under Title IV.
15
More information about the applicable legal standards and OCR’s approach to investigating complaints of discrimination against members of
religious groups is included in OCR’s Dear Colleague Letter: Title VI and Title IX Religious Discrimination in Schools and Colleges (Sept. 13, 2004),
available at http://www2.ed.gov/about/offices/list/ocr/religious‐rights2004.html.

Page 6‐ Dear Colleague Letter: Harassment and Bullying

education programs and activities (e.g., by causing some Jewish students to avoid the
library and computer lab). Therefore, although the discipline that the school imposed
on the perpetrators was an important part of the school’s response, discipline alone was
likely insufficient to remedy a hostile environment. Similarly, removing the graffiti,
while a necessary and important step, did not fully satisfy the school’s responsibilities.
As discussed above, misconduct that is not directed at a particular student, like the
graffiti in the bathroom, can still constitute discriminatory harassment and foster a
hostile environment. Finally, the fact that school officials considered one of the
incidents “teasing” is irrelevant for determining whether it contributed to a hostile
environment.
Because the school failed to recognize that the incidents created a hostile environment,
it addressed each only in isolation, and therefore failed to take prompt and effective
steps reasonably calculated to end the harassment and prevent its recurrence. In
addition to disciplining the perpetrators, remedial steps could have included counseling
the perpetrators about the hurtful effect of their conduct, publicly labeling the incidents
as anti‐Semitic, reaffirming the school’s policy against discrimination, and publicizing the
means by which students may report harassment. Providing teachers with training to
recognize and address anti‐Semitic incidents also would have increased the
effectiveness of the school’s response. The school could also have created an age‐
appropriate program to educate its students about the history and dangers of anti‐
Semitism, and could have conducted outreach to involve parents and community groups
in preventing future anti‐Semitic harassment.
Title IX: Sexual Harassment
•

Shortly after enrolling at a new high school, a female student had a brief romance with
another student. After the couple broke up, other male and female students began
routinely calling the new student sexually charged names, spreading rumors about her
sexual behavior, and sending her threatening text messages and e‐mails. One of the
student’s teachers and an athletic coach witnessed the name calling and heard the
rumors, but identified it as “hazing” that new students often experience. They also
noticed the new student’s anxiety and declining class participation. The school
attempted to resolve the situation by requiring the student to work the problem out
directly with her harassers.
Sexual harassment is unwelcome conduct of a sexual nature, which can include
unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or
physical conduct of a sexual nature. Thus, sexual harassment prohibited by Title IX can
include conduct such as touching of a sexual nature; making sexual comments, jokes, or
gestures; writing graffiti or displaying or distributing sexually explicit drawings, pictures,
or written materials; calling students sexually charged names; spreading sexual rumors;
rating students on sexual activity or performance; or circulating, showing, or creating e‐
mails or Web sites of a sexual nature.

Page 7‐ Dear Colleague Letter: Harassment and Bullying

In this example, the school employees failed to recognize that the “hazing” constituted
sexual harassment. The school did not comply with its Title IX obligations when it failed
to investigate or remedy the sexual harassment. The conduct was clearly unwelcome,
sexual (e.g., sexual rumors and name calling), and sufficiently serious that it limited the
student’s ability to participate in and benefit from the school’s education program (e.g.,
anxiety and declining class participation).
The school should have trained its employees on the type of misconduct that
constitutes sexual harassment. The school also should have made clear to its employees
that they could not require the student to confront her harassers. Schools may use
informal mechanisms for addressing harassment, but only if the parties agree to do so
on a voluntary basis. Had the school addressed the harassment consistent with Title IX,
the school would have, for example, conducted a thorough investigation and taken
interim measures to separate the student from the accused harassers. An effective
response also might have included training students and employees on the school’s
policies related to harassment, instituting new procedures by which employees should
report allegations of harassment, and more widely distributing the contact information
for the district’s Title IX coordinator. The school also might have offered the targeted
student tutoring, other academic assistance, or counseling as necessary to remedy the
effects of the harassment. 16
Title IX: Gender‐Based Harassment
•

Over the course of a school year, a gay high school student was called names (including
anti‐gay slurs and sexual comments) both to his face and on social networking sites,
physically assaulted, threatened, and ridiculed because he did not conform to
stereotypical notions of how teenage boys are expected to act and appear (e.g.,
effeminate mannerisms, nontraditional choice of extracurricular activities, apparel, and
personal grooming choices). As a result, the student dropped out of the drama club to
avoid further harassment. Based on the student’s self‐identification as gay and the
homophobic nature of some of the harassment, the school did not recognize that the
misconduct included discrimination covered by Title IX. The school responded to
complaints from the student by reprimanding the perpetrators consistent with its anti‐
bullying policy. The reprimands of the identified perpetrators stopped the harassment
by those individuals. It did not, however, stop others from undertaking similar
harassment of the student.
As noted in the example, the school failed to recognize the pattern of misconduct as a
form of sex discrimination under Title IX. Title IX prohibits harassment of both male and
female students regardless of the sex of the harasser—i.e., even if the harasser and
target are members of the same sex. It also prohibits gender‐based harassment, which
may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility
based on sex or sex‐stereotyping. Thus, it can be sex discrimination if students are
harassed either for exhibiting what is perceived as a stereotypical characteristic for their

16

More information about the applicable legal standards and OCR’s approach to investigating allegations of sexual harassment is included in
OCR’s Sexual Harassment Guidance, available at http://www.ed.gov/about/offices/list/ocr/docs/shguide.html.

Page 8‐ Dear Colleague Letter: Harassment and Bullying

sex, or for failing to conform to stereotypical notions of masculinity and femininity. Title
IX also prohibits sexual harassment and gender‐based harassment of all students,
regardless of the actual or perceived sexual orientation or gender identity of the
harasser or target.
Although Title IX does not prohibit discrimination based solely on sexual orientation,
Title IX does protect all students, including lesbian, gay, bisexual, and transgender
(LGBT) students, from sex discrimination. When students are subjected to harassment
on the basis of their LGBT status, they may also, as this example illustrates, be subjected
to forms of sex discrimination prohibited under Title IX. The fact that the harassment
includes anti‐LGBT comments or is partly based on the target’s actual or perceived
sexual orientation does not relieve a school of its obligation under Title IX to investigate
and remedy overlapping sexual harassment or gender‐based harassment. In this
example, the harassing conduct was based in part on the student’s failure to act as
some of his peers believed a boy should act. The harassment created a hostile
environment that limited the student’s ability to participate in the school’s education
program (e.g., access to the drama club). Finally, even though the student did not
identify the harassment as sex discrimination, the school should have recognized that
the student had been subjected to gender‐based harassment covered by Title IX.
In this example, the school had an obligation to take immediate and effective action to
eliminate the hostile environment. By responding to individual incidents of misconduct
on an ad hoc basis only, the school failed to confront and prevent a hostile environment
from continuing. Had the school recognized the conduct as a form of sex discrimination,
it could have employed the full range of sanctions (including progressive discipline) and
remedies designed to eliminate the hostile environment. For example, this approach
would have included a more comprehensive response to the situation that involved
notice to the student’s teachers so that they could ensure the student was not
subjected to any further harassment, more aggressive monitoring by staff of the places
where harassment occurred, increased training on the scope of the school’s harassment
and discrimination policies, notice to the target and harassers of available counseling
services and resources, and educating the entire school community on civil rights and
expectations of tolerance, specifically as they apply to gender stereotypes. The school
also should have taken steps to clearly communicate the message that the school does
not tolerate harassment and will be responsive to any information about such
conduct. 17
Section 504 and Title II: Disability Harassment
•

17

Several classmates repeatedly called a student with a learning disability “stupid,” “idiot,”
and “retard” while in school and on the school bus. On one occasion, these students
tackled him, hit him with a school binder, and threw his personal items into the garbage.
The student complained to his teachers and guidance counselor that he was continually
being taunted and teased. School officials offered him counseling services and a

Guidance on gender‐based harassment is also included in OCR’s Sexual Harassment Guidance, available at
http://www.ed.gov/about/offices/list/ocr/docs/shguide.html.

Page 9‐ Dear Colleague Letter: Harassment and Bullying

psychiatric evaluation, but did not discipline the offending students. As a result, the
harassment continued. The student, who had been performing well academically,
became angry, frustrated, and depressed, and often refused to go to school to avoid the
harassment.
In this example, the school failed to recognize the misconduct as disability harassment
under Section 504 and Title II. The harassing conduct included behavior based on the
student’s disability, and limited the student’s ability to benefit fully from the school’s
education program (e.g., absenteeism). In failing to investigate and remedy the
misconduct, the school did not comply with its obligations under Section 504 and Title II.
Counseling may be a helpful component of a remedy for harassment. In this example,
however, since the school failed to recognize the behavior as disability harassment, the
school did not adopt a comprehensive approach to eliminating the hostile environment.
Such steps should have at least included disciplinary action against the harassers,
consultation with the district’s Section 504/Title II coordinator to ensure a
comprehensive and effective response, special training for staff on recognizing and
effectively responding to harassment of students with disabilities, and monitoring to
ensure that the harassment did not resume. 18
I encourage you to reevaluate the policies and practices your school uses to address bullying 19
and harassment to ensure that they comply with the mandates of the federal civil rights laws.
For your convenience, the following is a list of online resources that further discuss the
obligations of districts to respond to harassment prohibited under the federal
antidiscrimination laws enforced by OCR:

18

•

Sexual Harassment: It’s Not Academic (Revised 2008):
http://www.ed.gov/about/offices/list/ocr/docs/ocrshpam.html

•

Dear Colleague Letter: Sexual Harassment Issues (2006):
http://www2.ed.gov/about/offices/list/ocr/letters/sexhar‐2006.html

•

Dear Colleague Letter: Religious Discrimination (2004):
http://www2.ed.gov/about/offices/list/ocr/religious‐rights2004.html

•

Dear Colleague Letter: First Amendment (2003):
http://www.ed.gov/about/offices/list/ocr/firstamend.html

More information about the applicable legal standards and OCR’s approach to investigating allegations of disability harassment is included in
OCR’s Dear Colleague Letter: Prohibited Disability Harassment (July 25, 2000), available at
http://www2.ed.gov/about/offices/list/ocr/docs/disabharassltr.html.
19
For resources on preventing and addressing bullying, please visit http://www.bullyinginfo.org, a Web site established by a federal Interagency
Working Group on Youth Programs. For information on the Department’s bullying prevention resources, please visit the Office of Safe and
Drug‐Free Schools’ Web site at http://www.ed.gov/offices/OESE/SDFS. For information on regional Equity Assistance Centers that assist
schools in developing and implementing policies and practices to address issues regarding race, sex, or national origin discrimination, please
visit http://www.ed.gov/programs/equitycenters.

Page 10‐ Dear Colleague Letter: Harassment and Bullying
•

Sexual Harassment Guidance (Revised 2001):
http://www.ed.gov/about/offices/list/ocr/docs/shguide.html

•

Dear Colleague Letter: Prohibited Disability Harassment (2000):
http://www.ed.gov/about/offices/list/ocr/docs/disabharassltr.html

•

Racial Incidents and Harassment Against Students (1994):
http://www.ed.gov/about/offices/list/ocr/docs/race394.html

Please also note that OCR has added new data items to be collected through its Civil Rights Data
Collection (CRDC), which surveys school districts in a variety of areas related to civil rights in
education. The CRDC now requires districts to collect and report information on allegations of
harassment, policies regarding harassment, and discipline imposed for harassment. In 2009‐10,
the CRDC covered nearly 7,000 school districts, including all districts with more than 3,000
students. For more information about the CRDC data items, please visit
http://www2.ed.gov/about/offices/list/ocr/whatsnew.html.
OCR is committed to working with schools, students, students’ families, community and
advocacy organizations, and other interested parties to ensure that students are not subjected
to harassment. Please do not hesitate to contact OCR if we can provide assistance in your
efforts to address harassment or if you have other civil rights concerns.
For the OCR regional office serving your state, please visit:
http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm, or call OCR’s Customer Service Team
at 1‐800‐421‐3481.
I look forward to continuing our work together to ensure equal access to education, and to
promote safe and respectful school climates for America’s students.
Sincerely,
/s/
Russlynn Ali
Assistant Secretary for Civil Rights