Fight Special Education Retaliation

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!

JoAnn Collins is the mother of two adults with disabilities, and has helped families navigate the special eduation system, as an advocate, for over 15 years. She is a presenter and author of the book "Disability Deception; Lies Disability Educators Tell and How Parents Can Beat Them at Their Own Game." The book has a lot of resources and information to help parents fight for an appropriate education for their child. For a free E newsletter entitled "The Special Education Spotlight" send an E mail to: JoAnn@disabilitydeception.com. For more information on the book, testimonials about the book, and a link to more articles go to: http://www.disabilitydeception.com.

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