School Law Bulletin #2002/06

Consider this: a fifth grader is teased during class by other students, who call him “stupid,” “retarded” and “a reject.” Sound pretty typical? Let’s also assume that the student is ADHD, and the teasing takes place with the knowledge of his teacher, who does nothing to intervene on his behalf. If the student’s parents file a disability harassment claim, how likely is it to survive a motion to dismiss?

On first blush such a claim may seem to be nothing more than busy work for the school board attorney. However, this may be too hasty a judgment. In the past few years, the disability harassment claim in the educational setting has become an area of interest for the Department of Education’s Office of Civil Rights (OCR) and has been raised in a handful of cases in the federal courts. Complainants typically look to two federal statutes to support their claims:

1. Section 504 of the Rehabilitation Act of 1973, which states that “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.”

2. Title II of the Americans with Disabilities Act of 1990 (ADA), which states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

In looking at the language in these two statutes, two points should be kept in mind. First, they are distinct from one another, inasmuch as Section 504 is a funding statute and as such applies to all educational institutions receiving federal funds, including colleges and universities. On the other hand, Title II applies to all state and local entities, including public school districts and public institutions of higher education, regardless of whether they receive federal funds. Second, neither statute includes the word harassment. To find a claim for harassment under either statute, courts have to do a good deal of interpretation.

Thus far, very few federal courts have had the opportunity to hear a disability harassment claim against a school or college under Section 504 or Title II. Nonetheless, those that have considered such claims have recognized a potential cause of action. In addition, a growing number of OCR decisions have addressed allegations of disability harassment. In July 2000, OCR wrote to public school administrators nationwide, forecasting the development of this claim, outlining a legal framework for it, and providing guidance on how to minimize the risk of future liability.

Of course, the million-dollar question for the local school administrator is, “What is the risk of liability?” Assessing liability risk is a tall order when the elements of the legal claim are undetermined and, indeed, when the very existence of such a claim remains uncertain. Be that as it may, OCR is treating charges of disability harassment as viable claims with a discernible prima facie case. Under these circumstances, school board attorneys need to understand the likely shape of any potential disability harassment claim and become familiar with OCR’s position in order to suggest practical steps their school boards and administrators can take to minimize the risk of future conflict with OCR or the federal courts.