Monthly Archives:' December 2015

Your Reaction to a Request for an Independent Educational Evaluation Could Constitute Retaliation

GirardEdwards_image05Author: Eric Stevens, Attorney at Law 

Summary: The U.S. District Court, Northern District of California ruled that a school district’s proposal to reevaluate a student after the student’s parents requested an independent educational evaluation (“IEE”) could constitute illegal retaliation, and allowed the case to continue.  M.M. v. Lafayette School District, 115 LRP 54386 (Nov. 18, 2015).

Facts:  Student was in third grade receiving special education services from the Lafayette School District when Student’s Parents requested an independent educational evaluation (“IEE”).  In response, the District proposed that the District reevaluate Student instead.  Parents filed a due process complaint alleging various violations of the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act, including retaliation.

Parents’ due process complaint has continued for six years, rising to the Ninth Circuit Court of Appeals before being remanded to the U.S. District Court for further proceedings on the retaliation claim.  The District attempted to convince the Court to dismiss the retaliation claim on the grounds that a request for an IEE is not a “protected activity” that can give rise to a retaliation claim, and that the mere suggestion that the District reevaluate Student instead of facilitating an IEE cannot meet the legal definition of an “adverse action.”

Issue: Can a local educational agency’s (“LEA”) suggestion that the LEA reevaluate a student in response to parents’ request for an independent educational evaluation (“IEE”) be considered retaliation under the IDEA and Section 504?

Holding: Yes, an LEA’s suggestion that it reevaluate a student instead of conducting an IEE could qualify as retaliation under the IDEA and Section 504.  The burden is still on the student and parents to ultimately prove their allegations of retaliation, but a court will not dismiss the retaliation claim outright.

Discussion:  Under Section 504, retaliation occurs when a plaintiff (1) engaged in a protected activity, (2) defendant knew the plaintiff was involved in the activity, (3) defendant took an adverse action against plaintiff, and (4) defendant would not have taken the adverse action “but-for” the plaintiff engaging in the protected activity.  Alex G. ex rel. Dr. Steven G. v. Bd. of Trustees of David Joint Unified Sch. Dist., 387 F.Supp.2d 1119, 1128 (E.D. Cal. 2005).

In this case, Parents alleged that (1) their request for an IEE was a “protected activity” under Section 504, (2) District knew the Parents made the request for an IEE, (3) District suggested that it reevaluate Student instead of engaging in an IEE and this was an “adverse action”, and (4) District would not have made its suggestion if Parents had not requested an IEE.

District argued that, even if Parents’ factual allegations were true, Parents could not prove retaliation because requesting an IEE was not a “protected activity” and a suggestion that the District reevaluate Student instead could not constitute an “adverse action” in the eyes of the law.

The Court disagreed with the District.  First, requesting an IEE is a “protected activity” under the IDEA because it is a right specifically granted to parents.  Therefore an “adverse action” taken because of a request for an IEE could constitute retaliation.  Second, the District’s response to the IEE request could possibly be an “adverse action” that would not have occurred “but-for” the IEE request.  When Parents requested an IEE, the District only had two options under the IDEA: (1) provide the requested IEE or (2) file a due process complaint.  34 Code of Fed. Regs. § 300.502(b)(2); Cal. Educ. Code § 56329(c).  The District had to do at least one of these things “without unnecessary delay.”  34 CFR § 300.502(b)(2).  Instead, the District offered a third option to Parents which caused delay.  The Court was skeptical that Parents could ultimately prove that the District retaliated against them, but the Court could not conclude as a matter of law that the action Parents complained of could never constitute retaliation.

Take Away: M.M. v. Lafayette School District is a reminder that LEAs stray from the letter of the law at their own peril, but also presents a good example of why most cases settle.  (See this recent Legal Alert on OAH filing statistics.)  Litigation can be very time consuming and, therefore, very costly.

When contemplating the alternative of litigation to compromise and settlement, a party has to consider both the strength of its case and how efficiently it can prove its case.  There are procedural mechanisms to try and speed up the judicial process and resolve issues quickly without the usual array of hearings, discovery, or trial, but such procedural short-cuts set a very high bar for success to protect parties who have not had a full opportunity to develop and argue their cases.  For example, juries usually resolve factual disputes while judges resolve disputes over the law.  You have an opportunity to get a case dismissed if you can convince a judge that no legal violation occurred even if the other party’s version of the facts is true.  However, this is difficult to do and a judge will normally allow a case to proceed to trial when there is disagreement over key facts.  This invariably leads to delay and more expense.

The M.M. v. Lafayette School District proceedings have continued for over six years.  After a full OAH hearing, the District sought to get Parents’ due process complaint dismissed years ago and succeed in the U.S. District Court only to see the Parents get a partially favorable ruling from the Circuit Court of Appeals.  The matter was returned to the U.S. District Court to reconsider certain issues like the retaliation claim.  The District tried again to get the retaliation claim dismissed.  The Court was skeptical of Parents ability to prove the truth of their version of the facts, but nonetheless the case could proceed.  All the while the parties continue to incur legal expenses and Student’s placement is subject to a stay-put order.

 

OAH 2014-15 Fourth Quarter Report Shows Risks of Filing

mike photoAuthor: Michael Tucker, Attorney at Law 

Summary: On August 14, 2015, the California Office of Administrative Hearings, Special Education Division, released its fourth quarterly report detailing special education filing activity for 2014-2015.  This report is useful to help school administrators and parents understand special education litigation’s complex nature.

Facts

Due Process Hearing Requests:

3,574

Fully Adjudicated Hearings:

83

Hearings Pending:

3,110

Percentage of Cases Resolved without Hearing:

98%

District Due Process Filing:

445

Student Due Process Filing:

3,214

District Prevailed:

42

Student Prevailed:

9

Split Decisions:

32

 

Discussion

Based on the above statistics a vast majority of Due Process filings are settled before reaching a hearing decision.  Indeed, only 2% of all due process filings are fully adjudicated with 98% resolved before reaching a hearing.  Most filings are initiated by the student.  Although the student only prevailed in 9 of the 83 cases heard, the administrative law judge split the decision 32 times.  Also of note is that only 11 of the 83 cases decided, or 13% were appealed.

Conclusion

As with most types of litigation, special education due process filings are frequently resolved before a hearing.  In all litigation, the parties are essentially forfeiting their ability to craft their own settlement and are requesting that a third party decide the outcome for them.  This data indicates that parties are very effective when settling cases.  It also indicates that both the districts and students find controlling settlement terms is preferable to submission to a third party.  As with any litigation, each party must carefully consider the relative costs and benefits before filing for a due process hearing.

 

Protected Activity or Cyberbullying? Understanding Section 504's Anti-Retaliation Provision

GirardEdwards_image03

Author: Heather Edwards, Attorney at Law 

Have you ever received emails from a parent questioning the adequacy of their child’s education? Or perhaps calling a teacher “incompetent”? Or perhaps threatening to file a due process or a civil rights complaint? If so, how has your school responded to such emails?

One school district was found by the Office for Civil Rights (“OCR”) to have engaged in unlawful retaliation under Section 504 where it informed the parent that it would no longer respond to emails due to his “mischaracterizations, threatening tones, and unsubstantiated allegations.” Granville County (NC) Schs., 111 LRP 59348 (OCR 2011). The school district asserted that the parent’s behavior amounted to cyberbullying, in part, because he threatened legal action. OCR explained that the district had inappropriately responded to the parent’s protected activity in that the purpose of the parent’s emails were to address concerns related to the student; specifically, the student’s safety and receipt of special education services.

In another case, OCR found that there were sufficient facts to support a school district’s, legitimate, non-retaliatory restriction of a parent’s communication with staff as part of a policy to minimize disruption to the school environment. Tucson (AZ) Unified Sch. Dist., 114 LRP 45095 (OCR 05/07/14).

In order to prove a retaliation claim under Section 504, the complainant has the burden of establishing the following:

  1. The complainant engaged in a protected activity.
  2. The complainant suffered an adverse action around the same time (or within a reasonable amount of time after the protected activity).
  3. The LEA was aware of the complainant’s protected activity.
  4. There is evidence of a causal connection between the protected activity and the adverse action.

Once the complainant meets the burden of proof for a retaliation claim, OCR then considers whether the LEA has identified a legitimate, non-discriminatory reason for taking the adverse action.

Practice Pointer: A local educational agency may not take adverse action against a parent simply because he or she pursues legal action, or threatens do so. Such conduct is protected activity, and any adverse action that can be linked to it is likely to be deemed retaliatory. Hearing officers and judges often recognize that the relationship between a school and parents can be complicated by a parent’s confrontational style and inflammatory correspondence.  However, they often sympathize with the parent as a zealous advocate for their child and believe efforts should be made on both sides to reduce tensions and attempt to achieve a more collaborative approach that focuses on the student’s interests and educational programming rather than on adult personalities.

LEAs can help protect themselves against potential Section 504 retaliation claims by parents of students with disabilities by training staff members about the elements of a retaliation claim, documenting the criteria for decisions that could be construed as adverse actions, developing policies regarding public behavior on school grounds, and developing communication protocol.