Sticks and Stones can Break Your Bones But Words can Break Your Heart: Preventing Disability Harassment in Schools

Jeremy was in tears and Brenda’s temperature had reached the boiling point. Jeremy was in 7th Grade and used a wheelchair. Everything at school had been fine until the new the new kid transferred in. The new kid had started calling Jeremy the “crip”. Jeremy could handle some kidding about his using a wheelchair, but there was a mean and ridiculing tone to the way the new kid called Jeremy “crip”.

At first, Brenda, as the patient and wise mother, had counseled Jeremy to just ignore the new kid; with time, the teasing would stop. After all, sticks and stones could break your bones, but words could never hurt you. But, a few of the other kids thought the new kid was cool and began calling Jeremy “crip” as well. It had gotten so bad that Jeremy no longer looked forward to going to school. Brenda had complained to the school principal, but his response had been boys will be boys and Jeremy probably needed to get used to the “real world.” In the real world people get teased. Brenda knew that people got teased in the real world, but she expected some adult control of this behavior.  Today, the new kid had placed some chairs in front of the accessible rest room door and Jeremy hadn’t been able to maneuver his wheel chair to get into the rest room.

Fortunately, one of Jeremy’s friends saw the predicament and moved the chairs just before Jeremy had nearly wet himself. Jeremy was hurt and very embarrassed. 

Because of the Individuals with Disabilities Education Act, children with disabilities successfully go to school with children without disabilities. But sometimes, incidents like this one, in which students with disabilities are picked on because they have a disability, do occur. There are two federal laws, Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA) that prohibit discrimination against students with disabilities. These laws require school districts to make sure that the school environment is free from abusive and intimidating behavior towards students with disabilities  by students or school staff. This kind of behavior is considered disaibility harassment. The following are answers to some frequently asked questions regarding disability harassment in school. 

1.     What is disability harassment?

Disability harassment is intimidating or abusive behavior toward a student based on a disability. This behavior can create a hostile environment in the school and deny a student equal access to the school program. Harassing a student based on the student’s disability violates Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. Under these laws schools have an affirmative obligation to make sure that students are not harassed because they have a disability.

 2.     What are examples of disability harassment?Calling students with disabilities names, drawing pictures or writing statements, or other conduct that is physically threatening, harmful, or humiliating to the student with a disaibility is considered disability harassment. For example: 

● students continually referring to a student with dyslexia as dumb;

 ● students repeatedly placing classroom furniture in the way of a student who uses a wheelchair;

● a school administrator denying a student with a disability access to lunch, field trips, assemblies and extracurricular activities as punishment for the student taking time off from school because the student needed to attend therapy sessions or a medical appointment;

 ●Students continually taunting or belittling a student with mental retardation by mocking or intimidating the student;

●A teacher belittling or criticizing a student with a disability because the student uses accommodations in class.  

3.     What should a parent do if they feel their child is being harassed?

The parent should first contact the school principal to discuss the harassment. If the harassment continues, the parent should contact the Section 504/ADA Coordinator for the school district. Section 504 and the ADA require that school districts designate an individual to coordinate the school district’s compliance with these two federal laws prohibiting discrimination based on disability. The 504/ADA coordinator should be able to help the parents resolve the harassment. Parents may also contact the Office for Civil Rights (OCR) within the United States Department of Education. The Office for Civil Rights is the federal agency that is responsible for enforcing Section 504 and the ADA in the public school system. Parents can obtain more information regarding the Office for Civil Rights and disability harassment, including how to file a complaint, through its website at www.ed.gov/ocr .  

 4.     How can schools and school staff prevent disability harassment?

School districts should have a clear policy prohibiting disability discrimination. The policy should specifically describe disability harassment and clearly state that it is unacceptable. School staff should be trained in how to recognize and handle potential disability harassment. Moreover, parents, students, teachers, and other school staff  should be encouraged to discuss disability harassment and report it if it occurs. The school district should have a clear grievance process to be used by students, parents, educators and others if they think an individual is being harassed due to their disability. The school district should widely publicize the procedures for handling disability harassment so that students, parents, school employees, and the community are aware of what disability harassment is, that disability harassment will not be tolerated, and where and how complaints involving disability harassment are handled.  Finally, if the school district receives a complaint about disability harassment, the school district should make sure that the harassment ends immediately. In order to resolve the issues, the school might support the student who has been harmed by providing counseling and also counsel the individual or individuals  responsible for the harassment. The district should put in place a monitoring or follow up program to make sure the harassment is resolved. 

  In the last thirty years children with disabilities have become more   integrated into our public school system. Students and teachers have learned to appreciate that we all have differences. Sometimes, however, individuals are picked on because they are different or have special needs. Federal law requires that schools make sure that students are not picked on, or harassed, because they have a disability. Sticks and stones can break your bones, but words can break your heart. When those words harass a student based on the student’s disability, they also break the law.

New York Gets IDEA Burden of Proof Right

In Schaeffer v. Weast the U.S. Supreme Court placed the burden of proof in special education cases on the side challenging the IEP. This meant that in most cases the burden of proof would be on parents. The Court, however, did not say that states could not choose to place the burden of proof on school districts.  Thus, the state of New York has passed and signed into law legislation placing the burden of proof on the school district. This is only fair and appropriate. The school district should be responsible for showing that the program it is offering is appropriate. The school district has control of the IEP process that designs the program. If the program is challenged by a parent, the school district has the staff and  resources to show the program is appropriate, if in fact it is. This is good news for families in New York and I hope other states follow New York’s lead.

“Natural Environment” Under Part C Includes Preschool and Daycare Settings

Part C of the IDEA provides early intervention services for infants and toddlers with disabilities. Under Part C infants and toddlers are children from birth through age two. Similar to the IDEA Part B requirement that students with disabilities be placed in the least restrictive environment, Part C requires that infants and toddlers receive services in the natural environment. Natural environment means providing services in the home and community settings in which children without disabilities participate. But, does that mean early intervention services cannot be provided in a preschool or day care setting? 

In a case decided last June, Andrew M. v. Delaware County Office of Mental Health, 490 F. 3d 337 (3rd Cir. 2007), the court said that natural environment is not limited to homes, child care centers and community settings, but can include a preschool setting. In this case, the Delaware County Office of Mental Health, the agency responsible for providing early intervention services, tried to limit the term natural environment to only the child’s home and did not allow the child to be served in a preschool setting. Serving the child in the home required that a parent or other caregiver be present and meant the child would be served isolated from other children. The court rejected that narrow view.

This makes perfect sense. Today, there are many families in which both parents work and are not available for their child to receive services in the home. Including preschool and day care settings as natural environments allows greater flexibility for families and will likely facilitate serving children in settings with other children.

Opening the School Door to Section 504

Brenda should have been excited. Her daughter Jessica would be starting kindergarten this fall. Jessica was smart as a whip and couldn’t wait to go to school. But Jessica had diabetes. The diabetes needed managing: she needed insulin administered and her blood glucose and diet monitored. When she got older Jessica would be able to manage the diabetes herself, but right now she was just too young.  Maybe Brenda could go to school with Jessica. But Brenda worked. Maybe if the school had a nurse, the nurse could help Jessica. But what if there wasn’t a nurse or the nurse was too busy? Brenda knew that kids with disabilities could get special services, but Jess had an illness not a disability. She certainly didn’t need special education. Was there anything Brenda could get the school to do?          

 Brenda called the school principal, Ms. Otero. Ms. Otero understood Brenda’s concern, but said not to worry. While Jessica may not need special education, her diabetes might be a disability under a law called Section 504. The school could develop something called a Section 504 Plan. The Section 504 Plan could include a nurse, or someone a nurse trained, monitoring blood glucose and administering insulin. Finally, Ms. Otero said that the “Section 504 Coordinator” would call Brenda to start the ball rolling to get Jessica these services. 

Schools and Section 504 of the Rehabilitation Act  

There are three federal laws that support students with disabilities in the public schools: the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. The first, the IDEA, requires schools to provide a free appropriate publication education to students with disabilities who need special education and related services. Under the IDEA a child must have an impairment and need special education services to be considered a child with a disability. But under the other two laws, Section 504 and the ADA, a child can have a disability without needing special education.  Section 504 and the ADA protect people with disabilities from discrimination based on their disability. Regarding the public schools, these laws prohibit discrimination against students with disabilities. This means that schools must provide services to meet the individual needs of students with disabilities as adequately as the schools meet the needs of students without disabilities. These services are outlined in a Section 504 Plan.  The following are questions and answers regarding Section 504 and the public schools. The ADA has the same definition of disability and the same requirements regarding public school services to students with disabilities. 

1.     What is a disability under Section 504?

A person has a disability if they have a physical or mental impairment that substantially limits a major life activity. Life activities are functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. All children who need special education under the IDEA also have disabilities under Section 504. But a child may have a disability under Section 504 and not need special education services.  For example, students, like Jessica, who have illnesses such as allergies, cancer, heart disease, high blood pressure, ulcers, kidney and liver disease, epilepsy, HIV/AIDS, or diabetes would be covered under Section 504. Other examples include children who have a limp, paralysis, arthritis, hearing loss, learning disabilities, attention deficit disorder, traumatic brain injuries, speech impairments, mental illness and visual impairments.

 2.     How do parents get Section 504 services for their child?

Complying with Section 504 is a general education responsibility just like complying with other laws prohibiting discrimination based on race, religion, or ethnic origin. Section 504 requires that school districts identify a “Section 504 Coordinator”. Parents should contact the school administration to identify their district’s 504 Coordinator. 

3.     How is Section 504 eligibility determined?

Parents can contact the school staff to begin the Section 504 evaluation process. First, the school will evaluate the child based upon the child’s needs. Then, the evaluation information will be reviewed to determine if the student has a disability. Eligibility is decided by a group: not just one individual. The group will be people who know the child, what the evaluation information means, and how to serve students with disabilities.  

4. What services are required under Section 504?

The school must provide the student a free appropriate public education. This means providing services to meet the individual needs of the student with a disability as adequately as the school meets the needs of students without disabilities. Schools are not required to lower standards for students with disabilities by changing the instructional level, content, or performance criteria. But Section 504 does require that schools provide students with disabilities an equal opportunity to demonstrate their knowledge and skills. Thus, a student who is blind or has difficulty taking tests might be entitled to a Braille copy of a test, shorter testing sessions, or extra time to take the test. But the content of the test is the same as the test provided to students without disabilities. Other examples of  Section 504 services include: 

● Providing a student who has cancer with a modified schedule that allows for rest and recuperation following chemotherapy;

●Providing a student who has a learning disability or visual impairment with a note-taker or tape recorder;

● Providing a student who has arthritis with a modified or adaptive physical education program;

● Providing a student with an emotional illness with an adjusted class schedule to allow time for counseling;

● Providing a student who has a physical impairment and has difficulty walking distances or climbing stairs with extra time between classes, relocated classes, and special parking.         

5.     What is a Section 504 Plan?

A Section 504 Plan is a plan developed by a team, including the parents, who know the student’s needs and how to serve students with disabilities. The plan documents the student’s disability and the services required to ensure the student has equal access to the school program.Jessica’s Section 504 Plan would document that her diabetes is a disability. Her plan would include who would monitor her glucose and administer her insulin. It might also include a plan to train school staff in a basic understanding of diabetes, Jessica’s diabetes related needs, how to identify medical emergencies, and who to contact in case of an emergency. Here, Jessica is just starting kindergarten, but as she gets older she may be participating in field trips, sports, or other extracurricular activities. As those needs arise, her Section 504 Plan should include managing her diabetes in those circumstances.  

6.     Do parents have the right to appeal or complain under Section 504?

Parents have the right to have a hearing if they disagree with how the school is providing Section 504 services. They should contact their school district or state department of education for information about that process. Parents may also file a complaint with the federal Office for Civil Rights. Information about how to file a complaint or more information about Section 504 and the ADA can be found at the Office for Civil Rights website at www.ed.gov/ocr         

  Section 504 is not a special education law. It is a civil rights law that protects students with disabilities. A student can have a disability under Section 504 and not need special education. Jessica doesn’t need special education. She just needs a  plan to manage her diabetes. With that plan in place, she’ll do just fine.

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