Disability Harassment/Retaliation

In Wilbourne V. Forsyth County School District (11th Circuit, 2009), a case was dismissed that involved a teacher who argued that a school district retaliated against her by issuing a "letter of directive" to be placed in her personnel file. The district also filed a complaint against the teacher with the Professional Standards Commission (PSC) for "unprofessional conduct" after she filed a complaint with the PSC regarding an incident involving a teacher abusing her disabled son and then confonting an administrator at her son's school about the school's projected discipline of her son. To establish a case of ADA retaliation, a plaintiff must show three things: (1) that the teacher engaged in a statutorily protected activity; (2) that she suffered an adverse employment action; and (3) a causal link between the protected activity and the adverse action. Once a plaintiff has established a case of retaliation, the employer has an opportunity to present a legitimate, non-retaliatory reason for the challenged employment action. If this is accomplished, the plaintiff then bears the burden of showing that the reason provided by the employer is a pretext for prohibited, retaliatory conduct. Here, the teacher presented insufficient evidence to establish that the district's reasons for taking adverse action against her were pretext for discrimination.

Lewellyn v. Sarasota County School Board, 53 IDELR 288 (M.D. Florida 2009)

In this case, parents claimed the school district disciplined their two sons with disabilities unfairly when it revoked a school choice privilege for one boy (attending a school outside their attendance area) and offered the other deferred expulsion and a behavior contract. The Section 504 and ADA claim filed was discontinued as the District Court determined the district did not discriminate based on disability. The manifestation determination review revealed the boys' behavior was not related to their disabilities which allowed school officials to wage the district discipline policy as it would for students without disabilities. The change in schools back to the one boy's home attendance area does not constitute a change in placement as the Office of Special Education Programs (OSEP) has written that transferring a student to another school does not constitute a change in placement unless it substantially or materially alters his educational program (Letter to Fisher, 21, IDELR 992 (OSEP 1994).

Revoking Consent for Special Education Services

According to 34 CFR 300.300(b)(4), parents may revoke consent for special education services in entirety. However, they not are able to unilaterally revoke consent for specific, individual services unless state law permits such (South Carolina does not). If parents request to remove a particular service from the IEP, the case manager needs to convene the IEP team to allow the parents to share their concerns and to review whether the service is still needed. The team may determine there is a way to meet the student's need differently (other than by direct services) if the child continutes to need the service in the area for which the parent desires to revoke consent. For example, rather than removing speech therapy services in entirety, the team may agree that consultative services with the regular education teacher may be appropriate. If the team strongly believes the services the parents want removed are necessary, make sure the parents are given a copy of the procedural safeguards in the event they want to dispute the provision of a service. Finally, if the team agrees the service is no longer needed based on documentation of progress, provide the parents with Prior Written Notice before ending the service then hold a special review meeting to make the the change in the IEP.

NAEP Results Indicate Progress for Students with Disabilities is Little to None

Although more students with disabilities are participating in the National Assessment of Educational Progressn(NAEP), results indicate the gap between students with and without disabilites is not closing much. In 2007, 34% of 4th grade students with disabilities were excluded from testing versus only 28% in 2009. These figures are the same for 8th graders. While more students with disabilites are being allowed to take the NAEP, the average score for students with disabilities continues to be a concern. The average reading score for 4th grade students with disabilites in 2007 was 190 while in 2009 it dropped one point to 189 (on a scale of 500). The 8th grade results were a bit better, but not much. In 2009 the average reading score for 8th graders with disabilities was 229, up from 226 in 2007. Likewise, the gap between students with and without disabilities continues to be large. In 2009, students with disabilites, on average, scored 34 points lower than their non-disabled counterparts. In 2007 the gap was 33 points. The difference between scores for 8th graders was a little better. In 2007, on average, the gap between students with and without disabilites was 38 or 39 points. In 2009 it was 37. These results indicate that we must continue to work hard to learn and implement more effective strategies to help improve educational outcomes for students with disabilities.

Writing Goals and Objectives for Students with Severe Disabilities

Writing IEP goals and/or objectives can be difficult for students with severe disabilities as progress is typically very slow. In this sitation, it is important for the team to consider goals with the purpose of improving a child's functional skills and to help the student learn to become as independent as possible. Task analysis and considering what the student is able to do is essential. However, it may also be appropropriate for some students with significant cognitive impairments to have academic goals. If a teacher writes an academic goal it should be for the purpose of improving academic functioning. For example, a student may have a goal to identify numbers 1-5 with the purpose of knowing what "2" means when asked to give you two of something. The IEP should clarify what the student should be able to do with the skill. Parents and other members of the IEP team also need to work together to set realistic goals. It may be helpful to look at skills that are measured in South Carolina's Alternate Assessments. These are aligned to our state standards and may be a good reference for developing goals for students with significant cognitive impairments. The IEP should reflect how the team has developed goals that allow for steady (although likely slow) progress over time.

FERPA Allows Districts to Release Contact Information Under Certain Conditions

In Disability Law Center of Alaska, Inc. V. Anchorage School District, 53 IDELR 2, 581 F.3d 936 (9th Circuit 2009), the court determined that FERPA and the provisions of the IDEA regarding confidentiality do not bar a Protection and Advocacy (P & A) agency from obtaining from school officials contact information for the parents/guardians of diabled students when the P & A agency has probable cause to believe students are being abused or neglected. According to Court records, "The agencies stated that 'if a school or other facility could refuse to provide the name and contact information, it could interfere substanially with a [protection and advocacy agency's ] investigation of abuse or neglect, thereby thwarting Congress' intent that [protection and advocacy agencies] act to protect vulnerable populations from abuse or neglect.'" Although FERPA prohibits releasing personally identifiable information without parental consent or court order, the U.S. Department of Education and the U.S. Department of Health and Human Services have interpreted the Developmental Disabilities Act as creating a limited exception to FERPA.

Protection and Advocacy Did Not Have Probable Cause To Suspect Abuse and Neglect

In Disability Law Center v. Discovery Academy, 53 IDELR 282 (D. Utah 2010), the court concluded a Protection and Advocacy agency was not entitled to access to student records at a therapeutic boarding school as the agency did not produce any factual evidence that the school used inappropriate seclusion and restraint techniques. The P & A agency claimed there was probable cause to believe neglect had occured and argued that it had sole authority under P & A for Individuals with Mental Illness Act (PAMI) to decide whether there is probable cause to investigate. This argument was rejected as the agency would be able to conduct what was effectively a "warrantless search and seizure" of the school's records--a practice that would raise serious constitutional concerns. Court records state "The [agency] fails to provide any factual support for what the allegations were, who made the allegations, what the substance of the complaint was, or the name of the supposed victims of the abuse."

Teacher's Use of Seclusion and Restraint Does Not Violate Student's Constitutional Rights

In C.N. v. Willmar Public Schools, 53 IDELR 251, 591 F.3d 624 (8th Circuit 2010), the parent of a third grade student identified with a disability under IDEA reenrolled her daughter in another district after learning her daughter was subjected to physical and verbal abuse by a special education teacher. After transferring, the student's mother sought to challenge the adequacy of the former district's educational services. The subsequent challenges to the student's previous education became moot because according to the U.S. Court of Appeals for the Eighth Circuit in Thompson, if a student changes school districts and does not request a due process hearing, his or her right to challenge prior educational services is not preserved. Rather, the new school district is responsible for providing a due process hearing. The Section 504 claim was properly dismissed for the same reason. As for plaintiff's Section 1983 claims, there was no Fourth Amendment violation since the special education teacher's use of restraints and seclusion was authorized by the student's individualized education program. Her behavior intervention plan allowed her teacher to use seclusion and restraint as behavior managment techniques.

Calling Police Does Not Violate Student's Constitutional Rights

In B.L. Boyertown Area School District, 52 IDELR 42 (E.D. Pennsylvania 2009), a court granted a school district's and principal's motion to dismiss action for damages under Section 1983, 504, and the ADA. Where the student's Behavior Intervention Plan provided that the Principal had broad discretion when the student hurt or threatened others or used profanity, the principal's action of calling the Pennsylvania State Police was within the provisions of the BIP when the student used profanity towards his one-to-one aide. Telephoning the police to deal with the child does not constitutute a clear violation of the child's consitutional rights and it was reasonable for the principal to assume that this action was in compliance with the law.