ISSUE BRIEF FOR DISABILITY ADVOCATES

Federal Civil Rights Laws and Peer Harassment in School

Center for Law and Education ⁽¹⁾

September 2000

Introduction
On July 25, 2000, the U.S. Department of Education's Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) issued a "Dear Colleague" letter on the topic of disability harassment in schools, colleges universities and other educational institutions. ⁽²⁾ The letter explained that disability harassment may violate rights under Section 504 of the Rehabilitation Act and/or Title II of the Americans with Disabilities Act when harassing conduct (whether by students or staff) is sufficiently severe, persistent or pervasive that it creates a hostile environment, adversely affecting the student's ability to participate in or benefit from the educational program (and so denying equal educational opportunity). ⁽³⁾ It went on to explain that, as a 504/Title II matter, "[w]hen disability harassment limits or denies a student's ability to participate or benefit from an educational institution's programs or activities, the institution must respond effectively," and that "[w]here the institution learns that disability harassment may have occurred, the institution must investigate the incident(s) promptly and respond appropriately." ⁽⁴⁾ The letter further noted that "harassment...based on disability may decrease the student's ability to benefit from his or her education and amount to a denial of FAPE [free appropriate public education]" under the Individuals with Disabilities Education Act, §504 and Title II. ⁽⁵⁾

The Department's July 25, 2000 letter includes little in the way of legal analysis, in terms of either the particulars of schools' obligations to address disability harassment, or the circumstances under which students may hold schools liable for harassment based upon disability. Nor has there been much litigation in this area. ⁽⁶⁾ However, the Department's Office for Civil Rights (OCR) has developed and published in the Federal Register detailed policy and investigative guidances on harassment based upon race, and upon sex. These two guidances implement, respectively, Title VI of the Civil Rights Act of 1964, ⁽⁷⁾ which prohibits race and national origin discrimination in federally-funded programs, and Title IX of the Education Amendments of 1972, ⁽⁸⁾ which prohibits sex discrimination in federally-funded education programs. ⁽⁹⁾ In addition, the Supreme Court recently issued a decision addressing school board liability for damages under Title IX for sexual harassment by other students.

As Section 504 expressly incorporates Title VI rights and remedies, ⁽¹⁰⁾ and Title IX similarly was modeled upon Title VI, ⁽¹¹⁾ legal principles regarding racial and sexual harassment developed under Titles VI and IX are instructive in regard to disability harassment. ⁽¹²⁾ Indeed, the Department's July 25, 2000 letter explicitly references the Title VI and Title IX guidances. ⁽¹³⁾ In order to assist advocates representing students with disabilities experiencing peer harassment to develop legal theories and strategies for obtaining redress, this fact sheet introduces key concepts from OCR's Title VI and Title XI guidances most relevant to the issue of disability harassment by peers. ⁽¹⁴⁾ It then briefly discusses the Supreme Court case on damages noted above.

OCR Guidance on Racial and Sexual Harassment
The Title VI guidance was issued in 1994, and the Title IX guidance in 1997. They are explanations by OCR, as the entity responsible for enforcing these laws, of schools' legal obligations and the circumstances under which OCR will deem those obligations -- and the pertinent law -- to have been breeched, potentially triggering enforcement action by OCR. Both apply to elementary schools, secondary schools, colleges, universities and any other educational institution that receives federal funds. ⁽¹⁵⁾

1. Standard for liability: The OCR guidances provide that a school violates Title VI or Title IX if it accepts, tolerates or fails to correct, respectively, a racially or sexually hostile environment of which it knows or should have known. ⁽¹⁶⁾ Put another way, a school will be found liable for racial or sexual harassment by its students if (i) a hostile environment exists in the school's programs or activities, (ii) the school knows or should have known of the harassment, and (iii) the school fails to take immediate and appropriate corrective action. ⁽¹⁷⁾

2. Hostile environment harassment defined: A hostile environment is created when harassing conduct is sufficiently severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the education program, or to create an abusive educational environment. ⁽¹⁸⁾ Conduct that is sufficiently severe can result in a hostile environment even if it is not pervasive or persistent. ⁽¹⁹⁾

3. Severe, Persistent or Pervasive: Whether harassing conduct creates a hostile environment depends upon such factors as the context, nature, scope, frequency, duration and location of the incidents; the identity, number and relationships of the persons involved; and the age, impressionability and other particular characteristics and circumstances of the targeted student and student witnesses of the conduct. ⁽²⁰⁾ The conduct must be considered from both a subjective and an objective perspective. ⁽²¹⁾ In order for a hostile environment to exist, the conduct must have limited the ability of a student to participate in or benefit from his or her education, or altered the condition of the student's educational environment. This standard does not necessarily require that the student suffer tangible injury. ⁽²²⁾

4. Notice: As noted above, a school violates Title VI and Title IX if it has notice of a hostile environment and fails to take immediate, appropriate corrective action. A school has notice if it actually knew or, in the exercise of reasonable care (including reasonably diligent inquiry) should have known about the harassment. ⁽²³⁾ In some cases, the pervasiveness, persistence or severity of the harassment may be enough to conclude that the school should have known of the hostile environment. ⁽²⁴⁾ Both the Title VI Guidance and the Title IX Guidance include examples of actual and constructive notice.

Private Action for Damages: Davis v. Monroe County Board of Education
In Davis v. Monroe County Board of Education, ⁽²⁸⁾ the Supreme Court held that, under Title IX, recipients may be held liable for damages for peer sexual harassment "where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." The opinion makes clear that this standard applies only to whether an aggrieved student may bring a private action for damages - not to the question of whether the school has violated Title IX. Thus enforcement actions by OCR as well as private lawsuits seeking injunctive, declaratory or other equitable relief are not affected by Davis. Rather, they are governed by the principles set forth in the Title IX Guidance and the legal precedents upon which it rests. ⁽²⁹⁾

1. This fact sheet was prepared by Eileen Ordover, an attorney with the Center for Law and Education, with research assistance from Wendy Paget, a law clerk at the Center.

2. The July 25, 2000 letter, issued over the signatures of Assistant Secretary for Civil Rights Norma V. Cantú and Assistant Secretary, Office of Special Education and Rehabilitative Services Judith E. Heumann, is available on the Department's website at <www.ed.gov/offices/OSERS/ADA/Disability_Harassment.pdf>.

3. Letter of July 25, 2000 at 3.

4. Id. at 4.

5. Id. at 5.

6. For one of the apparently few federal cases raising a hostile environment disability harassment claim under Section 504 (as well as under Title III of the ADA), see Guckenberger v. Boston University, 957 F. Supp. 306 (D. Mass. 1997).

7. 42 U.S.C. §2000d.

8. 20 U.S.C. §1681.

9. See Racial Incidents and Harassment Against Students at Educational Institutions; Investigative Guidance, 59 Fed. Reg. 11448 (March 10, 1994) (hereinafter "Title VI Guidance"), and Office for Civil Rights; Sexual Harassment Guidance; Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12034 (March 13, 1997) (hereinafter "Title IX Guidance"). Both documents are posted on OCR's website, and can be found at <www.ed.gov/offices/OCR/ocrprod.html>.

10. See 29 U.S.C. §794a.

11. See Cannon v. University of Chicago, 441 U.S. 677, 694-96, 99 S. Ct. 1946, 1956-57 (1979).

12. Also relevant is the identical language used in the three statutes, and the similar language found in Title II of the ADA. Compare 29 U.S.C. §794(a), 42 U.S.C. §2000d, 20 U.S.C. §1681, and 42 U.S.C. §12132.

13. See Letter of July 25, 2000 at 2, n.3.

14. The Title VI and Title IX guidances address harassment by employees and third parties as well as by other students. Advocates representing students facing disability harassment by school staff thus will find them instructive as well.

15. As of September, 2000, OCR was in the process of updating the Title IX Guidance, in light of the Supreme Court's subsequent decisions in Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S. Ct. 1661 (1999), regarding damages actions against schools for peer harassment (discussed below) and Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S. Ct. 1989 (1998) (regarding damages actions for harassment by school staff) . It is anticipated that the revised Guidance will be published for comment in the Federal Register in the near future.

16. Title VI Guidance at 11449 ("actual or constructive notice"); Title IX Guidance at 12039-40.

17. Title VI Guidance at 11449, 11450; Title IX Guidance at 12039.

18. Title VI Guidance at 11449; Title IX Guidance at 12041.

19. Title VI Guidance at 11449; Title IX Guidance at 12041.

20. Title VI Guidance at 11449; Title IX Guidance at 12041-12042.

21. Title IX Guidance at 12041.

22. Title IX Guidance at 12041 ("[f]or example, a student may have been able to keep up his or her grades and continue to attend school even though it was more difficult...to do so because of the harassing behavior...Harassing conduct in...[this example] alters the student's educational environment on the basis of sex.").

23. Title VI Guidance at 11450; Title IX Guidance at 12042.

24. Title VI Guidance at 11450; Title IX Guidance at 12042.

25. Title VI Guidance at 11450; Title IX Guidance at 12042-43.

26. Title IX Guidance at 12042.

27. See Title VI Guidance at 11450; Title IX Guidance at 12043.

28. 526 U.S. 629, 650, 119 S. Ct. 1661, 1675 (1999).

29. The same holds true in regard to harassment by teachers and the scope of the Supreme Court's decision in Gebser, supra. Gebser held that a school system may be held liable for damages for sexual harassment of a student by a teacher where an official of the school district with the authority to take corrective action on the district's behalf has actual notice of, and is deliberately indifferent to, the teacher's misconduct. Again, this is a standard for the recovery of monetary damages, and not the standard for determining whether a Title IX violation has occurred - and so whether an aggrieved student is entitled to some other form of relief, or whether OCR may take enforcement action.