Special Education

Are you the parent of a child with a learning disability or autism that feels like special education personnel are retaliating against, you for your advocacy? Has your child been suspended by the school, because you have complained about your child’s treatment? This article will be discussing Section 504 of the Rehabilitation Act, retaliation, and how you can use the information in this article to prove retaliation.

Section 504 of the Rehabilitation Act is a federal anti discrimination law and applies to any entity, that receives federal funding; which all public schools do. The child cannot be discriminated against based on their disability. This law also prohibits retaliation based on a person being involved in a protected activity (advocacy is considered a protected activity). The Office of Civil Rights is the federal agency that enforces Section 504. Any retaliation complaints could be filed with them, or could be taken straight to court.

The Office of Civil Rights has developed a 5 part test to determine whether a school district has engaged in prohibited retaliation. You can use these questions to help you prove your retaliation case. These 5 questions are:

1. Has the parent/student engaged in a protected activity? Protected activities could be filing a state complaint, filing a due process complaint, filing a lawsuit in court. Any type of advocacy could be considered a protected activity.

2. Was the district aware of the protected activity? This would not be hard to prove, especially if the retaliation is based on filing a complaint, or a due process hearing.

3. Was the parent/student subjected to an adverse action? This could be any type of action that would harm the child or parent. Examples of adverse reaction may include: suspension or expulsion of the child, suspension from participating in extracurricular activities, or preventing parents from entering school grounds-in other words banning them from school property. This seems to me to be a brand new tactic that is occurring across the USA; parents being banned from entering the school, due to their advocacy. This is a violation of Section 504 of the Rehabilitation Act, in my opinion.

Another adverse action I hear about quite often is school districts calling child protective services against parents! A friend of mine had this happen to her because she refused to pick her child up at school, when the school thought she should! Child protective services cleared my friend and even stood up to the school district, for my friend. Unless the school has real evidence of abuse; this action can be seen as retaliation!

4. Will a neutral third party decide that there is a causal relationship or connection between the protected activity and the adverse action? Is there sufficient evidence to raise an inference that the protected activity was likely the reason for the adverse action? How close in time was the adverse action to the advocacy?

5. Can the school district offer a legitimate, nondiscriminatory reason for the adverse action, which a neutral third party will not consider to be pre textual? In other words if the school district can prove that the action was done for other than retaliation then they will win the retaliation claim. For example: If your child’s IEP states that he or she can be suspended for behavior, and they are suspended after your advocacy, it would be a tough job to prove that the advocacy is what caused the suspension. But if your child has a behavior plan, which does not include suspensions it would be easy to prove that a school suspension is linked to your advocacy.

Use the information in this article to help you decide if you can prove retaliation, to OCR or in court. Remember the retaliation must have occurred after a protected activity-advocacy-must be close in time to the protected activity-and must be connected to the protected activity. Good luck!

Are you the parent of a child with a disability receiving special education services? Are you considering filing for a due process hearing on procedural violations of the Individuals with Disabilities Education Act (IDEA)? This article will explain the changes to IDEA that occurred in 2004 when it was reauthorized, in the area of procedural violations, and explain what you as a parent need to know, about this change.

A procedural violation means that the school district did not follow the specific procedures that are required in IDEA. For example: IDEA requires that parents are equal participants in the Individual Educational Plan (IEP) meetings for their child. If special education personnel refuse to allow the parent to give input, this would be a procedural violation. Or if timelines are not followed for testing this would also be a procedural violation.

Before IDEA was reauthorized in 2004 when a parent filed for a due process hearing, the hearing officer could find that a child was denied a Free Appropriate Public Education if procedural violations occurred. Things you must know about the change:

1. IDEA now states that any procedural violations must be substantive or in other words substantial. The procedural violation must rise to the level of preventing the child from receiving a free appropriate public education (FAPE).

2. There are 2 ways that a school districts procedural violation rises to the level of denying the child FAPE. They are:

A. The violation significantly impeded the parents opportunity to participate in the decision making process regarding the provision of FAPE to the student or

B. The violation caused a deprivation of educational benefit.

I would like to discuss each of these:

1. Many school districts have tried to convince courts that parents have participated in the IEP process if they just simply attended the IEP meeting. But a few courts have stated that it is not enough for the parent to just attend the IEP meeting, they must have “meaningful participation!” One court was extremely clear that if a district rejects a specific recommendation for placement or services need by the parent, regardless of evidence that the placement and services are appropriate for the child, and will meet the child’s educational needs, this may result in a procedural violation that denies the child FAPE.

In a well known special education case the school district refused to provide a child with Applied Behavioral Analysis (ABA), even though there was a lot of evidence that the child required it. Special education personnel were ecstatic with the child’s progress with the private ABA program, but they refused to pay for it. The court in that particular case stated that the school district was not going to agree with the parents request for ABA, no matter what. Therefore the parents were prevented from having meaningful participation in the development of their child’s IEP, and this denied their child FAPE; which made the school district liable for paying for the program.

2. Denial of educational benefit is a little harder to prove, but I think it is doable. If the school district refused to listen to parents about a related service that their child needed, and it prevented FAPE, then this would be a deprivation of educational benefit.

Another example would be if a parent had an Independent Educational Evaluation (IEE) that stated that their child needed a Multi sensory reading program for 1 hour 5 days a week with a trained teacher, and the school district refused to listen to them. This would deny the child educational benefit and could be a denial of FAPE.

While this change has made it a little more difficult to prove denial of a free appropriate public education at due process, it makes it a little more clear for parents as they are preparing their case. Good luck and remember your child is depending on you!