Are you a parent who has a child with autism or other disabilities that receive special education services? Have you experienced parental retaliation by special education professionals in your school district, because you have advocated for your child? This article will educate you on the U.S. Department of Education’s Office of Civil rights (OCR) definition of retaliation, and also what standard they use to determine if parental retaliation has occurred. In addition this article will discuss whether retaliation can be decreased, so that you can truly be a meaningful participant in your child’s education!
Section 504 of the Rehabilitation Act which is enforced by the Office of Civil Rights states that: “504 prohibits recipients or other persons from intimidating, threatening, coercing or discriminating against any individual for the purpose of interfering with any right or privilege secured by Section 504, or because the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under Section 504.34 C.F.R. 100.7(e).” One of the protected activities under Section 504 is advocacy, and retaliation is prohibited if you advocate for your child.
The Office of Civil Rights has released information that OCR complaints have increased at a very large rate (which I believe is due to the amount of parental retaliation that special education professionals engage in). The types of retaliation I have seen are calls to Child Protective Services (CPS), banning parents from school grounds, and possibly punishment to a child. Parents need to stand up to this retaliation and gather evidence of the retaliation, so that they can file an OCR complaint.
OCR uses a five point test to determine if a parent has experienced retaliation:
1. “Has the parent engaged in a protected activity?”
2. “Is the district aware of the protected activity?”
3. “Was the parent or student subjected to an adverse action?”
4. “Will a neutral third party decide there is a causal relationship or connection between the protected activity and the adverse action?”
5. “Can the school district offer a legitimate non-discriminatory (non-retaliatory) reason for the adverse action, which a neutral third party will not consider to be pre-textual?”
A few comments about the five point test:
1. Under #1 advocacy is considered a protective activity as well as filing a state complaint or a due process complaint.
2. Under #2 most special education professionals know of parent’s advocacy especially if the parent has filed a complaint or due process.
3. Under #3 the adverse action means a negative action such as suspending a child or calling CPS and making a child abuse complaint.
4. Under #4 the retaliation must be closely-timed to the protected activity of advocacy, or OCR could rule against you on your complaint.
5. Under #5 this in some cases is what causes a parent to lose the complaint–If the school can come up with a plausible non-discriminatory reason for the action, and then the finding may be against the parent.
OCR recently released a Dear Colleague letter (April 2013) about retaliation that can be downloaded at, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html. This is a great resource that can ensure successful advocacy.
The only thing that will decrease retaliation is enforcement, which is usually left to the parent. I do believe that you should file an OCR complaint for ever retaliation action done by special education professionals (that you can prove of course). Work hard to secure written evidence to prove your case, as well as include the five point test in your retaliation claim, (with all of your evidence listed, and attached of course). Parental retaliation often occurs in the dark, and if light is brought to it, the situation very well could improve! Never stop fighting for your child-he or she is worth it!