Retaliation Against Parents for Advocating: An Emerging Trend

Retaliation against parents for advocating on behalf of their special needs children with their school district is an unpleasant topic.  No one really knows how often retaliation occurs, but clearly it has happened frequently enough for parental advocacy to be protected by Federal statute.  Not only do Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) protect the disabled against discrimination, they also protect those acting on their behalf to ensure the rights of the disabled.  Specifically, Section 504, which references Title VI of the Civil Rights Act of 1964, states that recipients of Federal funds, which would include school districts, “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 the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part.”

Retaliation can be defined as “using official resources to ‘punish’ parents,” and it can take a wide range of forms from refusing to respond to emails or return phone calls, not allowing parents to view records, or continually canceling school meetings and conferences.  But sometimes the retaliation can be more sinister.  Anecdotally the internet is filled with stories of parents who claim their school districts have reported them to child protective services, filed truancy charges against them, or had restraining orders imposed on them, all as the result of their advocacy on behalf of their children.

 

The statutory verbiage appears sufficiently broad enough to provide parents (and incidentally school district staff who have been retaliated against by school districts for advocating on behalf of their students) with a pretty large hook on which to hang their hats should they feel they have been the recipient of unlawful retaliation by their school districts. Parents who believe they have been retaliated against have the option of filing a complaint against their district through the Office of Civil Rights (OCR), which is tasked with investigating Section 504 complaints.

Filing a civil rights complaint is a separate process from a due process hearing.  Should parents prevail in a due process hearing, they may receive compensatory education, reimbursement for educational costs they’ve incurred, and possibly reimbursement for attorney’s fees.  But they generally cannot receive damages.  In a civil rights complaint, they may be eligible for damages.  Despite the seemingly broad statutory law defining retaliation, however, it can be difficult to prove that the school has used harassment and retaliation to deter a parent from advocating for a child.

The Office of Civil Rights has provided a five-part test to help assess whether retaliation has occurred.  Parents will need to show the following to prove their case:

  1. Has the student/parent engaged in a protected activity?
  2. Is the district aware of the protected activity?
  3. Was the parent/student subjected to an adverse action?
  4. Will a neutral third party decide there is a causal relationship or connection between the protected activity and the adverse reaction?
  5. Can the district offer legitimate, nondiscriminatory reasons for the adverse action, which a neutral third party will not consider to be pretextual (i.e., a false pretense)?

On the surface, it doesn’t seem that difficult for parents to prove a violation based on these criteria.  Parents can pretty handily demonstrate Points 1 and 2.  Educational advocacy is clearly a protected activity, and a district’s knowledge of such activity can be easily shown through the various emails, letters of complaints, requests for IEP meetings and evaluations, or requests for hearings that parents have been engaged in.  Point 4 can also be straightforward to demonstrate.  Temporal and causal relationships can be established, and individuals can demonstrate that they have been somehow treated differently.  School districts can defend themselves from Point 5 by demonstrating valid and real reasons for their conduct which had absolutely nothing to do with retaliation.

The issue is thornier in proving that there has been an adverse action, Point 3, taken against the parent.  What might seem to constitute an adverse reaction seems obvious:  suspensions/expulsions of the students, canceling of meetings, refusing to communicate with parents, barring parents from school property, curtailing student services, etc.  However, the purported action undertaken by a school district has to be one to “dissuade a reasonable person” from engaging in or making it more difficult to engage in a protected activity, and therein lies the rub.

At first blush, it would seem that banning a parent from school grounds or reporting the parent to child protective services would certainly deter even the most robust parents from advocating on behalf of their child.  Unfortunately, the courts appear to think otherwise.  In a New Mexico (5) case where a parent had been banned from the school, the OCR found that since the parent was still allowed to communicate with the school through email and phone calls as well as to attend IEP meetings and other school conferences, there had been no adverse action since the parent could still advocate for his child.  In a New York case, parents sued their school district which had reported them to child protective services (the report was determined to be unfounded).  Given that there had been a month’s lag time between when the school district attorney suggested that the school contact CPS and from when the actual hot line call was made, the parents argued the report had clearly been malicious.  However, the courts found for the school district.

There are instances, however, where parents have prevailed in retaliation suits against school districts but not necessarily resoundingly so.  A California school district that had contacted child protective services in 2008 was found to have retaliated against a parent not because of the initial phone call regarding suspected abuse but due to subsequent behavior on the part of the district.  Although the parent received no monetary damages, the district agreed to re-emphasize its commitment against both anti-discrimination and retaliatory policies and to provide further training of staff in recognizing what constitutes both.    In 1998, not only did the Whiteheads, parents of a child with Down’s syndrome prevail in a due process case against their school district, they proved that the district engaged in retaliatory actions against them.  A Federal court awarded each parent an astounding $300,000 in damages from the district.  On appeal, however, that amount was reduced to $100,000 and was used to pay off attorney fees.

Admittedly, some parents can be abrasive or abusive to school district staff.  But most are not.  What school districts may perceive as difficult or angry parents are in reality parents who are anxious, exhausted, and very frightened for their child’s future.  By the time parents pick up the phone to call a special education attorney, chances are they have already been through the wringer.  And quite possibly there may well have been incidents of gross retaliation on the part of the school.  Consequently, parents may want to go after the school district to “make them pay” for their bad behavior.  Due process may be a necessary and inevitable sequence of events to ensure that their child receives adequate supports and services.  Parents may be left with no other option.  But filing a civil complaint against a school district is different, even if there has been gross retaliation.  Given the difficulty of proving retaliation, and it can be done, parents should think long and hard before walking down that path.

About.com: http://blog.foxspecialedlaw.com/2012/07/retaliation-against-parents-for-advocating-an-emerging-trend.html.

Jimmy Kilpatrick, a national recognized professional special education advocate since 1994.

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