Don’t Ignore Disability Harassment

Although there has been a recent emphasis on addressing sex-based harassment, school officials must also act promptly and appropriately to ensure they are not “deliberately indifferent” to harassment and dis­crimination based on other protected characteristics, including disability. A federal court in Pennsylvania re­cently denied a school’s motion to dismiss claims of dis­ability harassment and discrimination under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act, holding that the school may have been deliberately indifferent to the student’s seizure disorder and to the disability-based bullying the student experienced at school. B.D. v. Cornwall Lebanon Sch Dist, Case No. 1:20-cv-01944 (MD Pa, 2020).

B.D. is a middle school student who had a number of acute and chronic medical conditions, including sei­zure disorder. B.D. began experiencing daily “absence seizures” in school that manifested as “staring spells that included speech arrest (i.e., stopping speaking in mid-conversation) and then a startle after a few sec­onds.” Although the school was aware of the seizures and the school nurse knew how to identify them, B.D.’s individual health plan (IHP) did not address seizure symptoms or factors. Additionally, the plan was not consistently implemented, and many staff members who worked with B.D. were unaware of it.

The court held that these facts demonstrated that B.D. was discriminated against and denied a free appro­priate public education due to his disability. The court highlighted that the school knew about B.D.’s seizure disorder and created IHPs to address that disorder but completely failed to implement or comply with those plans. The parents alleged that this conduct led to B.D.’s unaddressed seizures, which caused him to miss signif­icant amounts of class time. The school’s failure to act, by failing to create and implement appropriate IHPs, despite knowledge of B.D.’s frequently occurring sei­zures, supported a plausible inference that the district was deliberately indifferent to known disability discrimination.

The parents’ complaint also alleged that B.D. experienced bullying at school that rose to the level of unlawful disability-based harassment. Specifically, one student called B.D. “dumb;” “retarded;” and, after peer grading B.D.’s work as part of a class assignment, openly mocked and ridiculed B.D. for failing. B.D.’s par­ents reported these incidents to the school and were told that B.D. had to stay home for two days while the school determined how to address the bullying. Even­tually, the school addressed the bullying by requiring B.D.’s parents to attend field trips and “unstructured” school activities if B.D. planned to participate. In addi­tion, the school included a provision in B.D.’s 504 Plan that B.D. had to avoid the specific student who bullied him.

B.D.’s parents argued that these measures placed the burden on B.D. to avoid his bully and resulted in ad­ditional bullying and harassment. The parents also claimed that B.D.’s bully, after becoming aware of the requirement that B.D. avoid him, moved his lunch seat to get closer to B.D. and forced B.D. to leave his seat. This behavior occurred on more than one occasion, and several teachers who witnessed this behavior did not intervene or address the issue.

The court declined to dismiss the parents’ disability harassment claim, finding that the facts al­leged a pattern of the school’s failure to document or appropriately respond to the other student bullying B.D. The court found that the bullying may have been so severe and pervasive as to create a “hostile and abusive educational environment” for B.D.

Ultimately, the court concluded that because the school had “actual knowledge” of the disability-based bullying and harassment and failed to act to stop it, a reasonable factfinder could find that the school was deliberately indifferent to disability discrimination.

Although not binding in Michigan, this decision reminds school officials to promptly and appropriately address disability-based discrimination, bullying, and harassment. School officials must respond promptly to any complaints and carefully word any safety plans or no-contact orders. Supportive measures should be indi­vidualized and designed to prevent further harassment or retaliation and should not require the alleged victim to take steps to prevent its recurrence. A prompt re­sponse, a thorough investigation, and appropriate sup­portive measures that are well-documented and properly implemented can help a school avoid finding itself in a similar situation.