Jan 24, 2011
The Office for Civil Rights determined that the fact that a student with cognitive disabilities never actually filed a written complaint against schoolmates who regularly called him "retard", "stupid", and "moron" did not excuse the district's failure to investigate those incidents as violations of 504. (Williamston(MI) Community Schools, 111 LRP 1843 (OCR July 26, 2010). [Readers the use of the "R" word is offensive, but I feel it is important to report it here in order to give an accurate picture of the harassment the student suffered and the school ignored].
The student reported the incidents of name-calling to his guidance counselor each week, but the counselor did not refer them for investigation as harassment or bullying. Instead, the counselor tried to teach the student the social skills needed to respond to bullying.Moreover, general and special education teachers who were aware of the name-calling also failed to refer the incidents for investigation because they mistakenly believed they needed a complaint in order to take action.
During its investigation OCR found that throughout his 7th Grade year, the student told his counselor that a group of students called him names. One of the name-calling students also told the student with a disability that he was "going to beat him up" and teased him about his "rubber room". The name calling continued throughout the student's 8th Grade year until a 504 Complaint was filed with OCR.
Section 504 and Title II of the ADA prohibit disability harassment. Disability harassment includes intimidation or abusive behavior directed towards a student that is based on disability and that creates a hostile environment by interfering with the student's participation in, or receiving the benefits of, the school district's educational program. Here OCR determined that the district was aware that this student was being harassed but took no action to prevent future incidents of harassment or to address the effects of name-calling on the student. The school district had an obligation to investigate the name-calling incidents even though the student did not formally file a complaint. Thus, OCR determined the district violated Section 504.
The district entered a Resolution Agreement with OCR to resolve the complaint. The Resolution Agreement required that the district train its staff in disability harassment and create a centralized system for record-keeping regarding complaints. Moreover, the district was required to compensate the student for the educational services the student missed because of the harassment and the emotional harm to the student. Thus, the district was required to determine what educational services the student missed as a result of the disability harassment, determine a method to quantify those missed services, and a method to determine and deliver compensatory services for the student. Finally, the district was required to determine what current emotional impact resulted from the harassment, a method for quantifying the emotional impact,and a method to determine and deliver compensatory services to remedy the emotional impact of the disability harassment.
