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. (1) 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 (2) 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. (3) 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!" (4) 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" (5) 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. (6)
Charlie F. was a fourth grader with attention deficit disorder and was prone to panic attacks. (7) 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." (8) 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. (9)
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. (10) 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." (11) He was threatened with physical harm if he ever told his mother about what was happening at school. (12)
In two of the three cases just described, the courts dismissed claims for damages, and in the third the trial court did so. (13) 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, (14) failure to exhaust administrative remedies, (15) and failure to surmount immunity defenses. (16) 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. (17) 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. (18) 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. (19) 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. (20) To end discrimination, society needs to change those conditions. (21) This Article contends that one condition in need of change is disability harassment in the schools. (22)
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 FACTS OF DISABILITY HARASSMENT
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.
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, (23) Franklin v. Frid, (24) in which a child with severe cerebral palsy was assigned an aide at public school. The aide "intentionally humiliated and tormented" (25) 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. (26) Some other cases are, if anything, more troubling. In Covington v. Knox County School System, (27) 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. (28)
In addition to Kubistal (29) and Charlie F., (30) cases in the second category include Baird v. Rose, (31) 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...