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

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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.

 

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