Parental retaliation in special education: how can I prove it? Will it ever stop?
Are you a parent of a child with autism or other disabilities who receives special education services? Have you experienced parental retaliation from special education professionals in your school district because you have stood up for your child? This article will tell you about the US Department of Education’s Office for Civil Rights (OCR) definition of retaliation, as well as the standard they use to determine if parental retaliation has occurred. Additionally, this article will discuss whether retaliation can be reduced, 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 for Civil Rights, states that: “504 recipients or other persons are prohibited from intimidating, threatening, coercing, or discriminating against any person for the purpose of interfering with any right or privilege warranted by Section 504, or because the person has filed a complaint, reviewed, assisted, or otherwise participated in an investigation, proceeding, or hearing under Section 504.34 CFR 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 for Civil Rights has released information that OCR complaints have increased at a very high rate (which I believe is due to the amount of parental retaliation involving special education professionals). The types of retaliation I have seen are calls to Child Protective Services (CPS), banning parents from school, and possibly punishing a child. Parents must address this retaliation and gather evidence of the retaliation so they can file an OCR complaint.
OCR uses a five-point test to determine if a parent has experienced retaliation:
1. “Has the father participated in a protected activity?”
2. “Is the district aware of the protected activity?”
3. “Was the parent or student the subject of an adverse action?”
4. “Will a neutral third party decide that there is a relationship or causal connection between the protected activity and the adverse action?”
5. “Can the school district provide a legitimate non-discriminatory (non-retaliatory) reason for the adverse action, which a neutral third party will not consider pretextual?”
Some comments on the five-point test:
1. In #1, advocacy is considered a protective activity, as is filing a state complaint or due process complaint.
2. In #2, most special education professionals know about parent advocacy, especially if the parent has filed a complaint or due process.
3. Under #3, adverse action means a negative action, such as suspending a child or calling CPS and filing a child abuse report.
4. Under #4, the retaliation must coincide with the protected advocacy activity, or OCR may rule against you on your complaint.
5. In #5, in some cases, this is what causes a parent to lose the complaint: if the school can present a plausible non-discriminatory reason for the action, then the judgment can go against the parent.
OCR recently published a Dear Colleague Letter (April 2013) on Retaliation which can be downloaded at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html. This is a great resource that can ensure the success of the promotion.
The only thing that will decrease retaliation is law enforcement, which is usually left up to parents. I believe you should file an OCR complaint for any retaliatory action by special education professionals (which you can prove, of course). Work hard to get written evidence to prove your case, as well as include the five-point proof in your retaliation claim (with all your proofs listed and attached, of course). Parental retaliation often happens in the dark, and if it is brought to light, the situation could be better! Never stop fighting for your child, he or she is worth it!