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William and Mary Law Review
VOL. 43, NO. 3

 Disability Harassment in the Public Schools


 Mark C. Weber

Professor of Law, DePaul University.  B.A., Columbia, 1975; J.D., Yale, 1978.  I thank Susan Bandes, Mary Becker, Steven Greenberger, Thomas Guernsey, Andrea Kaufman, Adam Milani, Bruce Ottley, Stephen Siegel, and Bonnie Poitras Tucker for their comments on the Article.  Thanks also to my research assistants, Janet Brewer, Victoria Napohtano, and Catherine Tetzlaff.


 A. The Cases 1085
 B. Ordinary Experience 1090

A. The Rehabilitation Act and the Americans
 with Disabilities Act 1093
 1. Claims 1093
 a. Statutory Liability 1094
 b. Analogies to Sexual Harassment 1100
 2. Remedies 1102
 a. Demonstrating Intent 1103
b. Additional Policy Considerations Regarding
Damages Relief                        1107
B. The Individuals with Disabilities
 Education Act (IDEA) 1110
 1. Claims 1110
 2. Remedies 1112
 C. Common Law 1119
 1. Claims 1120
 2. Remedies 1122
 D. Constitutional Claims 1124
 1. Equal Protection Claims and Remedies 1124
 2. Due Process Claims and Remedies 1131

 A. Exhaustion of administrative Remedies 1134
 1. The Exhaustion Requirement 1134
 2. Application of Exhaustion to Harassment Cases 1136
 B. Official Immunity 1141
 C. Other Immunity Doctrines 1145

1. General Governmental Immunity from
 Common Law Claims 1145
 2. Eleventh Amendment Immunity 1147
 A. Claims and Remedies 1156
 B. Defenses 1156


It is a common mistake to view disability discrimination as mere thoughtlessness or failure to take extra steps to accommodate the unique needs of people with disabilities.' In reality, much disability discrimination is the overt expression of hostility and the conscious effort to subordinate members of a group with less power and social standing than the majority.  A key example of intentional discrimination against individuals with disabilities is harassment on the basis of differences in physical or mental characteristics.  Courts, however, wedded to the idea that disability discrimination is the mere failure to accommodate, frequently fail to take seriously the damage that harassment inflicts and refuse to provide an adequate legal response.
Nowhere is the injury more common or more severe than in elementary and high schools.  A few cases illustrate this point.  Robert Kubistal was a seventh grader with an undiagnosed visual impairment.' His teacher routinely called him "butthead' and said she would like to take out his eyes and give them to a child who would work harder.  His mother complained to Robert's principal and ultimately to the Board of Education.  After the principal assured Robert's mother that the teacher would apologize if necessary, the teacher called Robert up to the front of the class, got down on her knees and in an exaggerated voice said, "I'm so sorry, Bobby!" She then turned to the class and stuck a finger in her throat to mimic inducing vomiting.  At some point the next year, after the visual impairment was diagnosed, Robert was moved to another teacher's room.  During that time, the principal came to the classroom and erected an "isolation chamber" for Robert with movable bookcases.  Robert sat in the isolation chamber every day for several weeks, including during his lunch period.  Robert's mother complained to the teacher, who said the principal was responsible, so she then complained to the principal, who said the teacher was responsible.  Robert graduated despite never having been assigned eighth grade work.  At the ceremony, the graduation marshal skipped over Robert's name, looked at Robert's mother, giggled, and finally said, "Oh, Robert Kubistal." As a result of these humiliations,.  Robert suffered from depression, bed-wetting, and lost interest in school.

Charlie F. was a fourth grader with attention deficit disorder and was prone to panic attacks.' Every week, his teacher held sessions in which she asked her students to discuss their feelings.  She repeatedly asked them to discuss Charlie and his behavior, "and they all too willingly obliged, leading to humiliation, fistfights, mistrust, loss of confidence and self-esteem, and disruption of Charlie's educational progress."' Although the teacher instructed the students to keep the sessions a secret, the truth came out.  Charlie's parents moved him to another school, but children from the seventh-grade class still taunted and ridiculed him when they ran into him outside school.'

Shawn Witte was a ten-year old with Tourette's syndrome, asthma, attention deficit disorder, an emotional disability, and deformities of the feet and legs. At school, his teacher forced him to eat oatmeal, though his mother had told the teacher that Shawn was allergic to it.  The teacher and an aide force-fed Shawn, one of them holding his hands behind his back while the other spooned him oatmeal mixed with his own vomit.  The principal was aware of the practice and explained it to Shawn's mother as a form of punishment.  To punish Shawn for not running fast enough during an exercise period, the aide choked him, causing an emergency room visit in which the physician diagnosed strangulation.  When Shawn made involuntary body movements due to tics, the teacher and aides tackled and sat on him.  The staff placed Shawn on a treadmill with weights attached to his ankles in an effort to tire him out and keep him from leaving the classroom.  At times, Shawn was punished for failing to perform tasks by being deprived of meals or having water sprayed on his face.  The teacher screamed degrading remarks at Shawn.  Shawn was also forced to write the sentences "I will not tell my mom' and "I will not tic."" He was threatened with physical harm if he ever told his mother about what was happening at school."

In two of the three cases just described, the courts dismissed claims for damages, and in the third the trial court did so.  " As will be discussed below, courts in numerous cases have dismissed claims based on abuse by teachers or on toleration of peer harassment by principals and other school officials.  They have cited a variety of grounds: failure to state a constitutional or statutory claim, " failure to exhaust administrative remedies," and failure to surmount immunity defenses.' Not all courts have joined this chorus.  Many have recognized that harassment is a violation of legal rights for which a damages remedy is appropriate.  But the pattern of failing to take disability harassment seriously is apparent, and it contrasts sharply with the current heightened awareness of sexual and racial harassment claims.
Just as courts have frequently failed to take disability harassment seriously, scholars have rarely addressed the topic, and when they have done so they have focused primarily on harassment in the workplace, rather than in schools.  " On a more general level, however, the embryonic study of disability harassment is part of the rapidly growing scholarly project of applying a minority-group model to discrimination against people with disabilities." This approach takes the conceptualization of disability away from a medical model in which people with disabilities have impairments that need to be fixed or adjusted for the person with the disability to fit into society." The movement is towards recognition that conditions and attitudes everyone takes for granted operate in discriminatory ways against people with disabilities, just as other conditions and attitudes that oppress other minority groups in society.' To end discrimination, society needs to change those conditions." This Article contends that one condition in need of change is disability harassment in the schools."

Part I of this Article looks at the facts of harassment in public schools.  Part II examines how conduct that most observers would agree to be harassing behavior should give rise to claims for damages under a reasonable interpretation of the laws against disability discrimination, special education laws, common law, and the Constitution.  Part III then considers defenses such as failure to exhaust administrative remedies and various immunity doctrines.  The Article concludes in Part IV with a discussion of proposals for modification of case law doctrines so that more courts will take disability harassment seriously and provide adequate remedies for it. Part I of this Article covers the facts; Part II the claims; Part III the defenses; and Part IV the proposed legal reforms.


The reality of disability harassment can be discerned from the
reported cases on the subject and from everyday observations of
what happens in the public schools.

A. The Cases

The cases dealing with allegations of disability harassment in the schools fall into several categories: first, outright physical mistreatment and verbal abuse of highly vulnerable children by school personnel; second, conduct by teachers that treats children with disabilities unfairly and actively encourages fellow students to join in the ridicule; and third, failure to provide protection against known risks of physical or psychological harm by other students, often including the risk of physical assault.  Each category contains cases that fail and cases that succeed in establishing a claim for relief.  This pattern itself supports an inference that courts do not fully appreciate the gravity of the conduct and its character as a form of disability discrimination.

Cases in the first category include, in addition to the Witte case described above," Franklin v. Frid," in which a child with severe cerebral palsy was assigned an aide at public school.  The aide "intentionally humiliated and tormented"' Craig Franklin, poking, hitting, and slapping him.  She routinely yelled at him and called him degrading names.  The aide's supervisors did nothing to stop the abuse, even after a psychological evaluation of the child concluded that it was probable he had been repeatedly assaulted." Some other cases are, if anything, more troubling.  In Covington v. Knox County School System," a child with multiple mental and emotional disabilities attended a public school's adaptive education center.  There he was routinely locked in a "vault-like" time-out room for hours at a time without supervision.  The room was four by-six feet, dark, and unheated, with a concrete floor but no furniture and no ventilation.  There was one small reinforced window five feet above the floor.  At least once he was made to disrobe before being locked in the room.  At least once he was in the room so long he had to relieve himself on the floor."

In addition to Kubistal and Charlie F, cases in the second category include Baird v. Rose, in which a high school girl, Kristen Baird, was diagnosed with severe depression and placed on a program of counseling and medication after a suicide attempt.  Her mother informed a counselor at the school about the diagnosis, and the counselor informed Kristen's teachers.  'The next day, the teacher in Kristen's musical performance class announced to the class that Kristen would not be permitted to participate in the next performance and assigned her role to another student.  After Kristen's mother complained, the teacher told her that it was her belief that individuals with depression could not be counted on to meet their responsibilities."
When the mother submitted letters from a doctor and psychologist stating that Kristen was able to participate and would suffer harm from exclusion, the teacher decided to exclude her on the ground of several absences from class." The principal informed the teacher that if she were to take that action, she had to exclude all students who exceeded the number of absences set in the teacher's previously unenforced absences policy.  Later, in Kristen's presence, the teacher announced to the class that, against her will, she was being forced to exclude three other students from part of the performance.  The teacher 'then asked the class members if they understood why she was being forced to adhere to the strict attendance policy, and other students commented that someone was taking advantage of the lax enforcement of the attendance policy."" Kristen left class crying uncontrollably and shaking, and required tranquilization by a doctor.  She ultimately was kept from participating in many practice sessions and in all but a small part of the performance.  The effects of the humiliation continued, including sleeplessness, fear of humiliation, symptoms of physical illness, and academic decline."

The third category of cases, those concerning failure to supervise students who present a known danger to students with disabilities, includes numerous cases arising from incidents of sexual assault by other students.  In cases decided before 1999, claims based on these occurrences were regularly dismissed." It is possible that some of  these assaults would now be considered actionable as sexual harassment in light of the Supreme Court's declaration in Davis v. Monroe County Board of education" that under sex discrimination laws, a damages claim may be made for deliberate indifference to known acts of peer sexual harassment at school." Sutton v. Utah School for the Deaf and Blind " is a failure-to-supervise case sadly typical on its facts but unusual in that the constitutional claim' it raised was sustained.  James Sutton had severe cerebral palsy and was mentally retarded, totally blind, and unable to speak." Though fourteen, he had the mental development of a three- to five-year old." He was a day student at a state school.  One day, he communicated to his mother through sign language that a very large boy who was not in his class had touched him in his genital area while he was in the bathroom at school.  James's mother immediately notified the school superintendent, the principal, and the teacher.  She met with them the next morning and was assured that the incident could not have occurred because students never went to the bathroom without adult supervision.' A week later, a teacher's aide escorted James to the door of the bathroom but left to answer the telephone.  After the call, she returned and discovered that the same student James had previously described was sexually attacking him.  Following the occurrence, James suffered from uncontrollable outbursts of rage, nightmares, compulsive behavior,
and other signs of acute mental distress.'

In Franklin v. Frid," the case of the violently abusive aide, the court dismissed the claim for failure to exhaust administrative remedies, even though damages are unavailable in the administrative process and the parent had withdrawn the child from that school system and enrolled him elsewhere.' In Covington, the case regarding the time-out vault," the court of appeals reversed a dismissal on exhaustion grounds." In Baird v. Rose, the musical performance case, the court of appeals reversed the district court's judgment of dismissal for failure to state a claim under the Americans with Disabilities Act (ADA)." In Sutton," the appellate court also reversed the trial court's dismissal for failure to state a
claim, in this instance a claim for violation of substantive due process rights.'

The checkered pattern of results in the cases may show a fine sensitivity to legal doctrine and the factual nuances of the cases.  This Article will seek to demonstrate, however, that the dismissals are by no means compelled by existing doctrine and in reality are contrary to a sensible application of the law." The fact that all of the cases described lost on at least one level and that many more cases also fail indicates, instead, that many courts simply do not view disability harassment as a form of disability discrimination for which damages are the logical remedy.' Instead, the incidents typically are viewed as aspects of disputes over levels of special education services to be resolved by an administrative process, or as unfortunate life experiences that simply must be borne in silence.' To use the phrase made popular with respect to sexual harassment accusations in the Clarence Thomas confirmation hearings, the judges 'just don't get it.'

B. Ordinary Experience

Completely apart from the court cases, observations from daily
life show that disability harassment occurs constantly at school as well as outside the schoolhouse gates, that it is a form of discrimination, and that its effects are harmful and severe.  Flannery O'Connor once said, "Anybody who has survived childhood has enough information about life to last him the rest of his days.' Anyone who spent childhood in a public school in which special education students attend with other students knows that the children who are different are subjected to verbal abuse and physical intimidation every day." Even some efforts by schools to increase disability awareness simply reinforce the message that people with disabling conditions are to be gaped at or, at best, pitied." The word "retard' has become a common insult on and off the playground.' Lines such as "I didn't ride the short bus' are heard in everyday conversation.  Students with disabilities, particularly those with mental retardation and mental illness, and those with disfigurements, are frequently objects of ridicule and mistreatment.

The selection of incidents for litigation is itself revealing.  The cases are largely those in which school personnel have personally engaged in the abuse or actively encouraged students to do so.  No one even bothers to sue over the far more common phenomenon of continual verbal abuse and physical intimidation of students with disabilities, particularly those with mental retardation, inflicted by other students with the knowledge and tacit consent of teachers and administrators.

Harassment is a form of discrimination.  It reinforces hierarchies of prestige and peer acceptance within the school setting.  School children with disabilities are significantly lower in social prestige than other students." If a harasser can verbally tease or physically intimidate a child with impunity, it reinforces a sense of power and diminishes both the perceived arid real power of the child who is
harassed.  In any context, school or work, harassment frequently serves to reinforce lessons about who is in the accepted group and who is in the out group.  Vicki Schultz has observed how even sexual harassment is often not at all sexual." It consists instead of constant reinforcement of the message that the woman does not belong in the position she occupies." Similarly, disability harassment constantly reinforces the message that the child with disabilities does not belong and that nothing he or she does can change that reality.  Unfortunately, the negative attitudes that the children encounter at school are likely to follow them the rest of their lives, harming them in the workplace and other settings." In these settings as well, they will suffer harassment from peers and supervisors because of mental and physical differences."

Children cannot avoid reacting to harassment.  Some children who are teased and bullied by peers resist going to school and even develop physical symptoms such as headaches and abdominal pain to support their pleas to stay home." Hostility from teachers leads to the same fear and refusal to attend class    Not surprisingly, children with disabilities have dropout rates three time s those of other children. That fact alone has severe consequences: The unemployment rate for students with disabilities who drop out of high school is forty percent higher than the rate for students with disabilities who graduate.