The Americans with Disabilities Act (ADA) and the Rehabilitation Act are anti-discrimination laws. They make it illegal to treat persons with disabilities differently than non-disabled persons when it comes to various activities, like jobs. For example, you can't be fired simply because you have a handicap. These laws also cover many educational opportunities, which include "hostile learning environments" in special education. That's when a special needs student is harassed to the point where her ability to learn is hurt.
ADA and Rehabilitation Act
Together, the ADA and the Rehabilitation Act bar discrimination in practically all educational services, programs or activities. They give disabled students the same right to get and enjoy an education as non-disabled students.
The ADA has several parts or "Titles." Title II bars disability-based discrimination when it comes to services, programs or activities offered by a "public entity." Schools operated by your state or local government are public entities under the ADA. It's Title II that comes into play most often in public education.
Title III of the ADA may apply at times, though. It makes it illegal for places of "public accommodation" to deny persons with disabilities the full and equal enjoyment of the goods and services it offers to the public. A hotel refusing to rent a room to a disabled person is a good example. In education, "public accommodations" may include private elementary, secondary, undergraduate and graduate schools, so long as they're not controlled by a religious organization.
Section 504 of the Act makes it illegal for any program or activity that receives federal financial assistance to discriminate against disabled persons. This includes denying them the chance to enjoy what the program offers. Practically every public school, from elementary schools to universities, receives some sort of federal funding, and so they're covered by § 504.
Harassment as Discrimination
Disability harassment is intimidation or abuse based on a student's disability that interferes with his use or enjoyment of the school. Harassment may come in many forms, like name-calling and bullying. Some specific examples include when:
- Several students regularly say out loud during class that a student with dyslexia is "retarded" and shouldn't be in the class. As a result, she can't work in class and her grades go down
- A student repeatedly puts furniture in the path of classmates who use wheelchairs, making it hard for them to get into the classroom
- A student tries to "skip" school because his teacher uses inappropriate physical restraints because of his "misbehavior," which is related to his disability
Enforcing the Law
If you think your child is in a hostile learning environment, you may:
- Request a due process hearing. Here, a hearing officer, such as one from the US Department of Education's Office of Civil Rights (OCR), listens to both sides of the story and makes a legally binding decision on the matter
- File a complaint with the state education agency (SEA) in your area. Each SEA is must have a written plan for settling complaints about a school's failure school to provide appropriate education services
- File a complaint with the OCR. Generally, this must be filed within 180 days of the date of the discrimination or harassment
Questions for Your Attorney
- One student has been teasing my child all year. The school says that it has talked to his parents, but it hasn't taken any disciplinary action against him that I'm aware of. Is this a hostile learning environment?
- I've complained to school officials about some abusive comments made to my child by the school nurse, but the school has never told me if it's done anything to stop it. Doesn't it have to do something?
- I'm afraid that if I complain too loudly about my suspicions of harassment that the teachers and staff will treat my child even more harshly. What can I do to make sure that my suspicions and concerns are addressed without the threat of retaliation against my child?