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Meeting the needs of people with disabilities, their families, educators & service providers

Posts Tagged ‘harassment’

School’s failure to address bullying permits suit for damages

Monday, August 12th, 2013

M.J.  v. Marion Independent School District, 61 IDELR 76 (W.D. Tex. 2013): A federal district court allowed the parents of a student with bipolar disorder and ADHD to seek damages from a school district which failed to adequately address disability-based bullying.  The court concluded that, under Section 504, a school may be liable for failing to remedy disability-based peer-on-peer harassment.  Accordingly, the suit was permitted to proceed to resolve a genuine dispute as to whether the school acted with deliberate indifference or gross misjudgment when the student notified it of instances of harassment.

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District’s awareness of ongoing bullying triggers duty to investigate under Section 504 and the ADA

Monday, August 5th, 2013

Sutherlin v. Indep. Sch. Dist. No. 40 of Nowata Cty., Okla., 61 IDELR 69 (N.D. Okla. 2013)—in this case, the parents of a thirteen year old student with Asperger’s brought suit against the school district. Among other things, the parents alleged that the district acted with deliberate indifference when it failed to follow its own policy to investigate allegations of bullying, by failing to respond to reports of at least 32 incidents. The parents alleged incidents of student-on-student bullying, through the use of name-calling and labeling the student based on his difficulties with socialization. Although finding the allegations insufficient to support a claim of district discrimination, the court found that the complaint sufficiently alleged deliberate indifference with regards to disability-based, student-on-student harassment under the ADA and Section 504. Also, the court found a basis for a claim based on the Equal Protection Clause and municipal liability. On those grounds, the parents were allowed to proceed with their claims against the district for disability-based harassment.

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Failure to implement and revise IEP to address ongoing harassment may render school district liable under Section 504

Thursday, July 11th, 2013

Stewart v. Waco Independent School District, 60 IDELR 241 (5th Cir. 2013):  A federal court of appeals allowed a student’s claims relating to alleged harassment to proceed under Section 504, noting that, if taken as true, they could demonstrate that the school district exercised gross misjudgment.  The student, diagnosed with mental retardation, speech impairment, and hearing impairment, alleged she was subject to several instances of sexual harassment and abuse by peers, and that such instances directly resulted from the school district’s failure to implement the safety measures built in to the student’s IEP.  She also claimed that the school failed to revise her IEP to prevent harassment from recurring.

The court denied relief asserted under a theory of deliberate indifference, since the student failed to allege enough facts to meet that threshold.  However, the court permitted the case to proceed under a theory of gross misjudgment, noting that, when viewed favorably to the student, her allegations could show that the district’s course of action went “strongly against the grain of accepted standards of educational practice” if the district failed to satisfy an ongoing responsibility to provide the student with reasonable accommodations necessary to mitigate or eliminate the sexual harassment and abuse.

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School District must defend Section 504 claim of discrimination based on unaddressed reports of peer harassment

Thursday, November 15th, 2012

M.S. v. Marple Newtown Sch. Dist., 59 IDELR 186 (E.D. Pa. 2012)—the court denied the school district’s motion to dismiss because it found that the parent sufficiently plead viable claims for disability discrimination. When M.S. was in eighth grade, her sister was molested by B.C. who lived near her family. M.S. was placed in the same class as B.C.’s brother, J.C., despite M.S.’s mother’s request to separate the students. M.S. was placed in the same class as J.C. again during her tenth grade year and again during her eleventh grade year. M.S. was diagnosed with anxiety disorder and post-traumatic stress disorder and the school counselor recommended that M.S. and J.C. be put in separate classes, but the school district did not place the students in different classrooms. M.S. enrolled in a vocational program to get away from J.C.’s staring, leering and other disruptive behavior. M.S.’s mother filed discrimination complaints against the school and the court found the complaint sufficiently stated a claim for discrimination based on disability. The parent also alleged sufficient facts to state a claim for retaliation by the school against M.S.

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The continued presence of nut products in school vending machines constitutes disability-based harassment of student with severe peanut allergy

Thursday, February 2nd, 2012

Catoossa Count (GA) School District, 57 IDELR 141 (OCR 2011): The United States Department of Education, Office of Civil Rights (OCR) concluded that a school district engaged in disability-based harassment in violation of Section 504 of the Rehabilitation Act, against a student with a severe peanut allergy, by allowing its school’s vending machines to contain peanut products.  The school principal contacted the company that filled the school’s vending machines on multiple occasions informing the company that it should not fill the machines with peanut products or products manufactured with such products, and even placed signs on the machines indicating the same.  However, such actions proved ineffective, since the company continued to place peanut products in the machines.  After nine months, the principal finally had the machines removed from the school.  However, having failed to take prompt and effective action, OCR stated that the school district’s actions constituted harassment.

OCR also concluded that the school district failed to provide the parents with their due process rights.  Simply placing these rights on the school district’s website was insufficient.  Moreover, OCR stated that the school district’s practice of not evaluating students with Individual Health Plans (IHPs) for eligibility under Section 504 violated the school district’s Section 504 FAPE obligations.

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State of New York passes anti-bullying law

Friday, September 9th, 2011

Dignity for All Students Act:  The New York State legislature passed the “Dignity for All Students Act,” which aims to establish an environment free of discrimination and harassment in New York State schools.  The Act (effective as of July 1, 2012) applies to harassment and discrimination based on a student’s disability, race, color, weight, national origin, ethnic group, religion, religious practice, gender, and sexual orientation.   It instructs school districts to develop policies that create an environment free of discrimination and harassment, to create in-school training programs designed to raise awareness and sensitivity of school employees to potential instances of discrimination and harassment, and to enable school employees to prevent such acts of discrimination and harassment.  Moreover, the Act requires school districts to create guidelines to the development of nondiscriminatory instructional and counseling methods, as well as ensuring that at least one staff member is trained to handle human relations in all of those areas designated for protection against discrimination and harassment.  In addition, the curriculum in all grades (K – 12) must include a course on civility, citizenship and character education.

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School district must respond to disability based harassment once the District is aware of its occurrence.

Saturday, July 2nd, 2011

Williamston (MI) Community Schools, 56 IDELR 22 (OCR 2010):  The U.S. Department of Education, Office for Civil Rights (OCR), determined that a school district did not properly respond to disability-based harassment of a student when the school district failed to take appropriate steps upon learning of the harassment.  The student had cognitive impairments that affected his communication skills and interfered with his ability to navigate social situations.  As a result, he participated in an alternative curriculum for most subjects and became the target of verbal and physical teasing.

OCR stated that once a school district knows, or reasonably should know, of possible harassment based on disability, it must respond promptly and effectively.  This is true even if the school district does not learn of the harassment from the harassed individual directly.  The student’s parent raised concerns about the bullying to the school district, and the student’s guidance counselor discussed bullying in general terms with the student.  However, the student was reluctant to fill out written incident reports of the bullying, and for that reason, the school district took little action to investigate and remedy all of the instances of disability-based harassment of which it was aware.  As a result, the school district failed to comply with Section 504.

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School district’s dismal response to bullying of a disabled student may have deprived the student of an appropriate education

Monday, May 16th, 2011

T.K. v. New York City Department of Education, 111 LRP 30408 (E.D.N.Y. 2011): Where the parents of a 12-year-old girl with a specific learning disability (SLD) were seeking tuition reimbursement after unilaterally placing her in a private school, the United States District Court for the Eastern District of New York refused the request from the school district to dismiss a claim that bullying of the student by her classmates (and the school district’s dismal response to the allegations of bullying) deprived the student of a free appropriate public education (FAPE).  At a due process hearing before an impartial hearing officer (IHO), the parents presented evidence of daily harassment and bullying of the student by her peers, as well as the school district’s failure to adequately respond to the bullying allegations.  The court stated that the IHO and state review officer (SRO) applied the wrong legal standard when they dismissed the parents’ claim.

The court stated that bullying may affect a disabled student’s opportunity to obtain an appropriate education.  Therefore, when responding to bullying allegations a school district must take prompt and appropriate action, which includes conducting an investigation to determine if the bullying occurred, and if so, the school district must take appropriate steps to prevent it from reoccurring in the future.  The court further stated that in order for the parents to be successful “[i]t is not necessary [for them] to show that [the] bullying prevented all opportunity for an appropriate education, but only that [the bullying] is likely to affect the opportunity of the student for an appropriate education” (emphasis added).  A student is denied a FAPE “[w]here bullying reaches a level where a student is substantially restricted in learning opportunities.”  Notably, the court stated that it is not necessary for the bullying to be related to the student’s disability.

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School district must ensure that measures to address harassment based on a student’s disability are actually implemented in order to comply with Section 504.

Friday, May 6th, 2011

Santa Monica-Malibu (CA) Unified School District, 55 IDELR 208 (OCR 2010):  A school district needs to take steps to ensure that any measures it takes in response to harassment of a student, based on his disability, are actually implemented.  Failing to implement to do so could result in a finding of a failure to comply with Section 504.

A school district is not responsible for the actions of a harassing student, per se, but may be responsible for failing to respond adequately. In this case, the student had a disability that resulted in lack of traditional social skills.  The student preferred to be alone, and was uncomfortable being touched and having anyone expressing statements of affection.

The student’s parent alerted the school district to various and ongoing incidents of harassment, which resulted in the student missing school.  Although, the school district drafted an IEP with specific harassment related measures, it violated Section 504 when it delayed until after it received additional reports of harassment and failed to ensure that those measures were implemented.  As result, the school district did not comply with Section 504.

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School districts may violate civil rights statutes if they do not adequately respond to bullying incidents that relate to a student’s disability.

Thursday, April 21st, 2011

Dear Colleague Letter, 55 IDELR 174 (OCR 2010):  The Office of Civil Rights reminded various agencies that bullying incidents within schools may amount to harassment that violates several anti-discrimination statues (including Section 504).  Specifically, peer harassment may violate Section 504 if such harassment is based on the victim’s disability, or perceived disability, and “is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.”

To avoid liability, schools should have well-publicized policies against harassment, and also have procedures for reporting complaints and resolving them in such a way that the school will be aware of the situation so the school can take steps to ensure that harassment does not recur.

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