We often get questions from parents on our website and at our conferences whether the parent can sue their school district for what they perceive is “harassment.”
The parent will typically state, for example, that since they began to advocate strongly for their child, the school has refused to let them see their child’s files, they reschedule and reschedule IEP meetings, they will not meet with the parent except with the school board attorney present and they interpret the school board attorney’s presence as threatening them and trying to intimidate them into backing down, the school district has filed a child neglect petition against the family, the police have been called to school to remove the child, and so forth.
What can the parent do?
The school district does have a right to protect itself in a complaint situation. If they believe that the situation has gotten to the point that litigation is imminent, a school district can certainly ask their school board attorney to get involved.
The tricky question is when, and whether, the school district’s action has turned from defending against the parent’s complaints, and turned into harassment and retaliation to stop the parent from continuing to advocate for their child.
Section 504 of the Rehabilitation Act, 29 U.S.C. 794 and its implementing regulations at 34 C.F.R. 104, prohibit discrimination on the basis of disability in programs receiving Federal financial assistance. Title II of the Americans with Disabilities Act, 42 U.S.C. 12121 and its regulations at 28 C.F.R. 35 also prohibits discrimination on the basis of disability.
The regulation implementing Section 504, at 34 C.F.R. 104.61, incorporates by reference the regulation implementing Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d and 34 C.F.R. 100.7(e) which provides that “a recipient of Federal financial assistance” (such as the State Education Agency and the local school district) “shall not intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by the Act, or because that individual has made a complaint, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this part.
Title II of the Americans with Disabilities Act provides for similar provisions against retaliation at 28 C.F.R. 35.134.
In considering whether the school district has engaged in illegal retaliation against the parent, there is a five step procedure used by the courts.
First, the individual parent has to show that they have been engaged in a “protected activity.” This might include asking for another evaluation, another IEP meeting, questioning whether the IEP is being carried out appropriately, attempting to get documents that the school refuses to make available to the parent, questioning whether the teacher is adequately trained and supported to carry out the IEP, whether the student is being repeatedly disciplined to the point of excluding them from school, whether a student has been denied accommodations that they claim they are entitled to, claiming that related services such as occupational therapy or speech therapy are not being carried out although school district documentation claims they are, asking for an Impartial Due Process Hearing, and so forth.
Second, the parent must allege that the public school, State Education Agency or whatever, was aware of the parent’s participation in a “protected activity” such as filing complaints which were aimed at changing the school’s position.
Third, the parent must be able to show that the school district took adverse actions against the parent after they engaged in that protected activity. Typical adverse actions that we have seen are agreeing to and then canceling a meeting to review the student’s records, again and again; refusing to allow the parent to see certain records; destroying certain records; simply refusing to respond to a parent’s letters or phone calls; restricting the parent’s participation in an IEP meeting; refusing to allow a parent to bring someone to assist them at an IEP meeting; suddenly refusing to allow a parent to tape record an IEP meeting; always having the school board attorney present whenever there is an interaction with that parent (although they do not do that for other parents) and refusing to meet with the parent if the school board attorney cannot be present at a time requested by the parent, and so forth.
Fourth, the parent must be able to allege and “prove” that the school district pursued these actions, that were adverse against the parent and or student, because of the parent’s participation in this protected activity of advocacy for their child. Presumably there was a change in the conduct of the school district after the advocacy campaign by the parent was begun.
What courts look at is the close proximity in time between the “protected activity” that the parent participated in and the “adverse action” that was engaged in by the school district or State Education Agency. If there is such a proximity, then a “prima facie” case of retaliation can reasonably be inferred.
Fifth, the final inquiry is whether the school district or State Education Agency could articulate a legitimate, non-retaliatory, non-pretextual reason for the action that was taken adverse to the parent or student. A typical argument by the school district might be that the related service person promised on the IEP had in fact been contracted for but moved just before the start of the new school year and they have not been able to get a replacement and that is the reason that the student has not been getting physical therapy – not because the school district was knowingly retaliating against the parent by denying a service plainly written on the IEP.
As the reader can tell, the key to proving retaliation would begin with the parent keeping good records. Next they would need to state their belief, in writing, that they were being denied something that adversely affects their child’s success in school, solely because of retaliation against the parents for their advocacy. Next, they should make clear what they feel the law requires for their child.
If the school district does not reply in the way that the courts, the statutes, the regulations, and the complaint investigations have required, then the parent should be able to support their claim of retaliation and pursue a solution through the administrative complaint format or in a Hearing.
This information is educational and not intended to be legal advice.
Reed Martin is an attorney with over 35 years experience in special education law and recognized as one of the nation's leading experts. He can be reached through email at firstname.lastname@example.org or http://web.archive.org/web/20040814204808/http://www.reedmartin.com/