Harrassment as form of Disability Discrimination

Harassment on the basis of a disability is a violation of Section 504 of the Rehabilitation Act of (1973). This claim may exist if there was different treatment of an individual, such disparaging remarks that pertained to the individuals' disability. Nordonia Hills School District (Ohio) 25 Idelr233 (OCR, 1996.

Further, a school district may be responsible for peer to peer harassment, if they received notice of the harassment and failed to take prompt and effective action to stop it. Rochester Community Schools (Michigan) 41 IDELR 246 (OCR, 2004).

The U.S. Supreme Court has held that peer to peer harassment cases require a showing of deliberate indifference on the part of the school in order to impose liability.
Davis v. Monroe County Board of Education 526 U.S. 629 (1999). Following this case lower courts have applied different standards for imposing liability on school districts for harassment imposed by peers. Wisconsin has devised a five part test for imposing liability for peer to peer harassment: 1) student is an individual with a disability; 2) that the student was harassed based on his disability; 3) that the harassment was "sufficiently severe or pervasive" that it altered his education and created an abusive environment; 4) that the school knew of the harassment; 5) the school was "deliberately indifferent" to the harassment. Werth v. Board of Directors of the Public School of Milwaukee, 47 IDELR 67 (2007). In M.P. v. Independent School District No. 721, 38 IDELR 262 ( 8th Cir. 2003) the court applied a "bad faith" or "gross misjudgment" standard. The third district has followed a much less strenuous standard as set forth in K.R. v. School District of Philadelphia 48 IDELR 216 (2007). In this case the parents only needed to demonstrate that the child had a disability and qualified to participate in public education and that she was "denied the benefits of " or "subject to discrimination" in his school.

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The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.