Department of Education Issues Guidance Targeting Harassment and Bullying

     Yesterday, October 26th 2010, the US Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter to state departments of education and local school districts to clarify the relationship between bullying and discriminatory harassment under the civil rights laws enforced by the Office for Civil Rights (OCR). Those laws prohibit bullying based on traits such as-race, color, national origin, sex, and disability. 

     The letter provided specific examples in which individuals were bullied in school based their race, color, national origin, gender, or disability. For example: 

• Title IX Sexual Harassment: After enrolling in 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 texts and e-mails. Though a teacher and athletic coach witnessed the name-calling and heard the rumors they treated it as the normal hazing of a new student. They also noticed the student’s anxiety and decreased class participation. The school,however, did nothing other than leaving it up to the new student to work things out with her harassers.

 OCR notes that the school should have trained its employees on what conduct constitutes sexual harassment. Moreover, the school should have made it clear that staff could not require the student to confront her harassers. The school should have conducted an investigation and taken interim measures to separate the student from her harassers. OCR also suggest additional training regarding harassment for staff and students and offer tutoring, other academic assistance, or counseling to help remedy the effects of the harassment. 

• Section 504 and Title II ADA Disability Harassment: 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, theses students tackled him, hit him with a school binder, and threw his personal belongings into the garbage. The student complained to his teachers and his guidance counselor. He was offered counseling and a psychiatric evaluation, but the school did not discipline the offending students. The harassment continued and the student began to fail academically, became depressed, and often refused to go to school. 

 In this example OCR notes that the school failed to recognize the misconduct as disability harassment under Section 504 and Title II of the Americans with Disabilities Act. The school violated 504 and the ADA by failing to investigate and remedy the misconduct. The targeted student might have benefitted from counseling. But in this example, since the school failed to identify disability harassment, it did not adopt a comprehensive approach to eliminating the hostile environment. Steps to eliminate the hostile environment should include disciplining the harassers, training staff on recognizing disability and responding effectively to harassment of students with disabilities, and monitoring to ensure the harassment does not resume. 

     The guidance letter provides other examples of bullying and guidance on the responsibility of schools to proactively prevent such unlawful behavior. Once a school knows or reasonably should know of a possible student-on-student harassment, the school must take immediate action to investigate and determine what occurred. If harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment, and prevent its recurrence. These duties are a school’s responsibility regardless of whether the student makes a complaint, asks the school to take action, or identifies the harassment as a form of discrimination. The Office for Civil Rights does offer technical assistance to help schools comply with civil rights. A school should contact the OCR enforcement office serving the school’s jurisdiction for technical assistance 

     Additionally, a complaint of discrimination can be filed by anyone who believes that a school has discriminated against someone on the basis of race, color, national origin, sex,disability, or age. Information about how to file a complaint with OCR can be found at its website

     Finally, the OCR provides an excellent background and fact sheet regarding this serious issue. For an additional discussion of disability harassment please see my previous post Sticks and Stones can Break Your Bones But Words can Break Your Heart: Preventing Disability Harassment in Schools.

Celebrating 35 Years of the IDEA:The U.S. Department of Education Wants to Know how the Law has Made a difference

     The Education for All Handicapped Children Act was originally passed in 1975. Congress stated that it was enacting  this landmark legislation because, at that time,  there were more than eight million students with disabilities in the United States but more than half of those children were not receiving appropriate educational services and one million children with disabilities were “excluded entirely from the public school system and will not go through the educational system with their peers.”  Thus, Congress enacted this law to ensure that students with disabilities had access to a free appropriate public education in the least restrictive environment. The law was later amended and renamed the Individuals with Disabilities Education Act (IDEA). Moreover, subsequent amendments have led to an increased emphasis on access to the general education curriculum, the provision of services to children from birth to age five, transition planning and additional accountability for the achievement of students with disabilities. This year, 2010, marks the 35th anniversary of the IDEA.

     This November, in honor of this milestone, the U.S. Department of Education and the Office of Special Education and Rehabilitation Services (OSERS) will host a celebration in Washington D.C. They are seeking comments from individuals who have a personal experience with the IDEA or have witnessed its impact. Thus, OSERS is welcoming stories, poetry, photography, art work, and video clips from individuals with disabilities, students, teachers, principals, researchers, parents, teacher trainers and others across the USA for possible inclusion in the celebration. submissions for the celebration will be accepted through November 8, 2010 on OSERS’ 35th anniversary of IDEA Web site.

President Obama Signs Rosa’s Law Eliminating the”R” Word in Government

      On October 5th, 2010 President Obama signed S. 2781, known as Rosa’s law, requiring the federal government to replace the term “mental retardation” with “intellectual disability” in federal education, health, and labor laws. The law is named after Rosa Marcellino who is 9 years old and was born with Down syndrome. Rosa’s mother, Nina Marcellino, was moved to advocate to strip the “R” word from legislation when Rosa was referred to as having “mental retardation” in her education plan in elementary school. Maryland Senator Barbara Mikulski introduced the bill last November.

     Rosa’s mother and other parents were successful in getting  Maryland legislation passed in April 2009 that eliminated the “R” word from that state’s legislation. Senator Mikulski modeled the federal bill on the Maryland law.


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