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.