Parents of children with disabilities all too often face subtle and not so subtle retaliation from their children’s schools in response to their advocacy. Retaliation is a harmful act against a person that is made in response to that person’s grievance or participation in an activity that is protected by law. Anti-retaliation provisions in the law are generally tied to constitutional or statutory rights. The purpose of these provisions is to ensure that those who complain about discrimination or a violation of rights are not deterred for fear of retaliation. They seek to “prevent . . . interference with ‘unfettered access’” to statutory rights. Burlington v. White, 548 U.S. 53, 68 (2006). This article provides an overview of the legal framework and the evidence required in raising viable retaliation claims on behalf of children with disabilities in the educational context, with a particular spotlight on the Ninth Circuit.
Section 504 of the Rehabilitation Act prohibits anyone from interfering with the exercise of rights granted by the law to individuals with disabilities. Section 504 incorporates the anti-retaliation provision of Title VI of the Civil Rights Act of 1964, which “prohibits recipients from intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege . . . or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part.” 34 C.F.R. §104.61 and 34 C.F.R. §100.7(e) [logins required]. The Americans with Disabilities Act (ADA) provides, “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by” the ADA. 42 U.S.C. § 12203(a). Because section 504 uses an anti-retaliation clause that is functionally identical to the ADA, they are generally analyzed together.
Non-disabled individuals who have “opposed any act or practice made unlawful” by Title II of the ADA have standing to sue under the anti-retaliation provisions of the ADA. Barker v. Riverside Cty. Office of Educ., 584 F.3d 821, 827 (9th Cir. 2009). Thus, teachers and parents who advocate for disabled students have standing to raise retaliation claims.
Rebuffing Parent Involvement and School Culture
Retaliatory action is defined broadly. “The law deliberately does not take a ‘laundry list’ approach to retaliation, because unfortunately its forms are as varied as the human imagination will permit.” Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996).
Rebuffing parent involvement is a subtle form of retaliation that is not easy to discern or allege. Parent involvement and advocacy positively affects the educational outcome of disabled students. For this reason, parent participation in the decision-making process regarding a child’s educational program is a significant procedural right under the Individuals with Disabilities Education Act (IDEA). The purpose of legislating the role of parents in a child’s special education program is explicitly to “balance the natural advantage of districts.” Schaffer v. Weast, 546 U.S. 49 (2005). However, according to Dr. Peter Blanck, professor of disability and education policy at Syracuse University,
a body of well-recognized research and practice shows that, despite the protections of the IDEA and other civil rights laws such as the ADA, the Rehabilitation Act, . . . parents of children with disabilities often do not feel, or deliberately are not made to feel, accepted and engaged in special education decision-making processes (e.g., in IEP [individual education plan] meetings, parent-teacher interactions).
Expert Report of Peter Blanck, Silva v. Palmdale Sch. Dist., No. LA CV17-03138 JAK (AGRx) (C.D. Cal. 2017) (internal citations and report available from this author upon request.)
Research shows that there are often significant disputes that arise from parent involvement. Studies cited by Dr. Blanck in his extensive report describe parents’ views of disenfranchisement in advocating for their child with a disability, their belief that they are not viewed as true partners in the education decision-making process, and their feeling that their relationship with the educators and professionals is adversarial and alienated. For example, school staff will frequently react to parent advocacy by avoiding further interaction with the parents in question. Moreover, parents who advocate for their children are often perceived by schools as bad or difficult parents, leading to feelings of helplessness or alienation.
Retaliation claims that involve a subjective interpretation of events are difficult to prove. For example, in a complaint to the Office for Civil Rights (OCR) of the Department of Education, the parent and student alleged that after they sent emails to the teacher about the student’s need for classroom-based accommodations, the teacher retaliated by subjecting the student to a series of questions in math class, causing the student to shut down due to feeling frustrated and embarrassed. Seminole Cty. (FL) Sch. Dist., No. 68 IDELR 257 [login required] (OCR 2016). The OCR found that this constituted an adverse action because, even if the challenged action did not objectively or substantially restrict an individual’s educational opportunities, “the action could be considered ‘adverse’ if it could reasonably be considered to have acted as a deterrent to further protected activity or if the individual was, because of the challenged action, precluded from pursuing his discrimination claims.” Id. However, because the teacher articulated that her actions constituted a legitimate teaching methodology she regularly applied to all students, the OCR found no retaliation, even though a few months after the incident, the school wrote into the IEP an accommodation to specify that the teaching technique at issue would not be used on the student.
According to Dr. Blanck, based on his research and the research of others, organizational culture in schools is paramount in promoting inclusive and nondiscriminatory environments for students with disabilities. A positive and effective school culture involves district and school leadership that inculcate positive, as opposed to negative, attitudes and behavior by teachers and staff. It also includes training programs, implementation of policies and practices, and ensuring teachers’ adherence to disability programs and accommodations. In these positive school cultures, teachers better understand their obligations under the law in serving students. To meet their obligations, teachers understand that they must promote effective partnerships with parents. This, in turn, reduces conflict.
Raising claims that seek change in school culture is an appropriate strategy to combat retaliation. For example, combining retaliation allegations with allegations related to policies and procedures can strengthen the retaliation claim and result in systemic solutions. In the Seminole case referenced above, even though the OCR ultimately determined that retaliation did not occur, it nonetheless found that the school district’s policies and procedures failed to comply with section 504. Specifically, it found that the district’s grievance procedures did not provide for adequate, reliable, and impartial handling of complaints; did not reference federal disability laws; and provided an inadequate and overly restrictive definition of “harassment.” The OCR ordered significant corrective action related to revising the grievance procedures and regular reporting to the OCR.
To state a prima facie case of retaliation under the ADA and section 504, an individual must show that (1) she engaged in a protected activity, (2) she suffered an adverse action, and (3) there was a causal link between the two. T.B. v. San Diego Unified Sch. Dist., 806 F.3d 451, 472 (9th Cir. 2015) (adopting the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to retaliation claims under the ADA).
Protected activity in the school environment comes in many forms, including pursuing one’s rights under the IDEA. Advocating for disabled students regarding issues related to their federal and state educational rights is a protected activity under those statutes. Lee v. Natomas Unified Sch. Dist., 93 F. Supp. 3d 1160, 1168 (E.D. Cal. 2015) (sending emails to school officials regarding noncompliance with the IEP and filing a complaint with the state department of education were protected). Similarly, requests for accommodation by parents are protected acts under section 504 and the ADA. A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 698 (6th Cir. 2013).
An “adverse action” is one that “is reasonably likely to deter the charging party or others from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1242–43 (9th Cir. 2000). The adverse action must be material. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). It need not involve a tangible action, but any action that is likely to deter the individual from accessing remedial actions provided by the statute would be considered material. Id. For example, in a recent case brought by this author, a court denied a school district’s motion to dismiss a retaliation claim, even where the parents’ actions had already been found to have violated the state’s anti-harassment statute. Silva v. Palmdale Sch. Dist., No. LA CV17-03138 JAK (AGRx) (C.D. Cal. 2017) (unpublished). Silva involved a teacher who filed for and obtained a restraining order against the parents of a disabled student. The defendant school district argued that the actions that resulted in a restraining order could not be protected activity because those very same actions had been found to violate state law. The district court disagreed, finding that because the act of seeking a restraining order “is an act that would likely have dissuaded a person from making a complaint,” the plaintiffs had stated a plausible claim. Silva, slip op. at 7–8 (citing Lee, 93 F. Supp. 3d at 1168).
The adverse action must be causally related to the protected activity. The Ninth Circuit’s standard for a causal link is “but-for” causation. T.B., 806 F.3d at 472–73 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 339 (2013)). In Nassar, the U.S. Supreme Court made the causation standard more rigorous than the previous “motivating factor” test. Legal commentators have said that this case constituted a “backlash” and a dramatic departure from a general trend in the federal courts in favoring retaliation claims. Alex B. Long, “Retaliation Backlash,” 93 Wash. L. Rev. 715 (2018). Following Nassar, courts have held that, in the employment discrimination context, the “but-for” causation standard for retaliation requires the plaintiff to establish proof “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions.” T.B., 806 F.3d at 735 (citing Nassar). Courts are currently split on whether the Nassar but-for standard applies to ADA retaliation claims. The Third Circuit has held that a lesser burden would apply at the prima facie stage, where the plaintiff must produce evidence “sufficient to raise the inference that her protected activity was the likely reason for the adverse . . . action.” Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 259 (3d Cir. 2017).
Temporal proximity can help establish causation where the adverse action comes closely after the protected activity. A.C., 711 F.3d at 699. In A.C., the Sixth Circuit found that parents met their prima facie burden at summary judgment (1) when they engaged in protected activity by making several requests for accommodations by email and meeting with the assistant principal; (2) when the principal engaged in an adverse action by making a child abuse report of medical abuse, an act that would dissuade any reasonable parent from requesting accommodations because of the investigation and consequences involve; and (3) when they produced evidence that the report was made immediately after the parents’ meeting with school officials, and that many of the statements made by the principal and teachers in their report were false, resulting in an inference of causation. Id. at 700.
Demonstrating that the rationale provided for the retaliatory action is a pretext is the most difficult aspect of a retaliation claim. If the plaintiff establishes a prima facie case, the burden shifts to the defendant to show a legitimate, nonretaliatory purpose for its acts. Alex G. v. Davis Joint Unified Sch. Dist., 387 F. Supp. 2d 1119, 1128 (E.D. Cal. 2005) (citations omitted). To overcome defendants’ legitimate, nondiscriminatory reason, plaintiffs must “show that the articulated reason is pretextual ‘either directly by persuading the court that a discriminatory reason more likely motivated the [school district] or indirectly by showing that the [school district’s] proffered explanation is unworthy of credence.’” Id. (citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002)).
Thus, in A.C., the Sixth Circuit found that while the school district’s rationale about fluctuating glucose levels at school carried the burden of articulating a nonretaliatory reason for filing a medical neglect claim with the state, the parents provided significant proof of pretext: They showed why the allegations of medical abuse were unfounded, showed evidence that some of the incidents in the report did not occur, and pointed to emails in which school officials expressed concern about parent advocacy and liability issues. A.C., 711 F.3d at 700.
Evidence of pretext is the most critical and difficult aspect of a retaliation claim. A review of a sample of complaints filed by parents in 2018 with the OCR reveals the following allegations of retaliatory action: making disciplinary referrals of the child, restricting parents’ communication with staff, removing provisions in the IEP, filing truancy charges, denying the student the ability to participate in prom, and failing to provide IEP-related services, among other things. In an overwhelming majority of these cases, while the OCR found that adverse action occurred, it ultimately also found a legitimate nonretaliatory reason for the actions with insufficient proof of pretext.
In a case that is currently being reviewed by the Ninth Circuit, the parent was unsuccessful before the lower court in arguing pretext when she claimed her behavior at school was not sufficiently “disruptive” to restrict her access to the school campus. Camfield v. Bd. of Redondo Beach Unified Sch. Dist., 2017 WL 3037780, at *5 (C.D. Cal. July 17, 2017) (currently under appeal). The district court held that there was no “right” of parents to unfettered access to the school, and therefore the argument that the restriction was unwarranted was not sufficient to establish a pretext.
In a recent decision from the Sixth Circuit, the parents raised three theories to establish pretext: (1) the basis for the adverse action was factually false, (2) others were not subject to the adverse action even though they engaged in substantially identical conduct, and (3) the adverse action was not actually motivated by the proffered reason but that the sheer weight of circumstantial evidence showed a pretext or cover-up. M.L. v. Williamson Cty. Bd. of Educ., 2019 WL 2244720 (6th Cir. May 24, 2019) (finding that that arguments of pretext were unsubstantiated by the evidence).
An excellent presentation on the ABA’s website reviews case authority and presents the following methods and evidence that have been used to prove pretext:
- A departure from usual business procedures or a suspect practice or procedure;
- The lack of fixed or reasonably objective standards for evaluation and/or discipline;
- Best or better practices that may have avoided discrimination;
- Implausible or fantastic justifications;
- Whether the version of events as related by one party is internally consistent and plausible, or whether numerous inconsistencies and conflicting documentary evidence render the story unreliable;
- Evidence of a general atmosphere of discrimination may also be considered: proof of historically-limiting opportunity, policies or past practices with respect to minority employment or harassment;
- Responses to the plaintiff’s “legitimate civil rights activities”;
- Statistical proof even if it is not dispositive of the claim in and of itself;
- Instances in which persons outside the protected class were treated better.
John Beasley Jr., Proof of Pretext: A Review of Case Authority and Strategy from a Plaintiff’s Perspective (May 31, 2018), at 8.
Alleging pretext requires an understanding of the various theories that have been entertained by courts, a review of what type of evidence was considered sufficient in those contexts, and careful, evidentiary analysis to support the claims. Most complaints of retaliation brought before the OCR in 2018 failed even though there were findings of adverse action and an inference of a causal connection, because the parent failed to bring forth sufficient evidence to prove that the adverse action was pretextual.
Retaliatory conduct of teachers and school administrators can have lasting consequences on families. When schools inhibit parent advocacy, they risk not meeting the disability-related needs of the child, leading to lack of progress and, in some instances, medical and psychological harm. Actions that criminalize parent advocacy through truancy referrals, seeking civil restraining orders, filing false abuse or neglect claims, or taking other acts to “push out” the family from the school have reverberations in the community and dire consequences for the family. Public schools must accept and work with all children and all of their caregivers, regardless of how difficult it might be. Thus, severe actions against those they serve should be taken as a last possible resort and only after there is a review of all policies and procedures, teacher training, and a proactive attempt at parent engagement, and finally, only if it is for a legal, legitimate, and nonretaliatory reason.
Bringing forth viable and strong claims of retaliation will promote change because it will force schools to assess their behavior, return to parents and students the power to assert their rights, and inform and educate the courts and public that disability-based discrimination in public schools is a continuing problem. However, retaliation claims must be strictly alleged and meet the evidentiary standard to be successful.