Section 504 Rehabilitation Act

Simply put, harassment-- including bullying-- which is based on a disability is categorically a type of discrimination prohibited by section 504 of the Rehabilitation Act.  

The U.S. Department of Education has defined disability harassment for purposes of section 504 analysis as “intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student’s participation in or receipt of benefits, services, or opportunities in the institution’s program.”

To prove a case under section 504, you must prove the following:

1. He or she is an individual with a disability; 
2. He or she was harassed based on that disability; 
3. The harassment was sufficiently severe or pervasive that it altered the condition of his or her education and created an abusive educational environment; 
4. The defendant knew about the harassment; and 
5. The defendant was deliberately indifferent to the harassment.”

Public schools failing to adequately respond to bullying of students with disabilities stand a very real risk of Section 504 liability.  Damages, declaratory relief, and injunctions are all applicable remedies (although emotional injury is not.). Further, the law generally requires that schools act in good faith to make reasonable accommodations to resolve disability-based bullying.