How to protect against retaliation claims during distance learning
Extended school closures dramatically shift the way students receive education and how parents can communicate with district teachers and staff. These changes similarly affect what retaliation may look like during these school closures. Under Section 504 and ADA Title II, districts are prohibited from retaliating against anyone who advocates on behalf of a student with a disability. This protection includes not only students, but also parents, teachers and staff who advocate on their behalf.
Generally speaking, retaliation claims can be broken into three basic parts: 1) someone engaging in a protected activity (such as advocacy on behalf of a student with disability); 2) an adverse action taken against that person; and 3) evidence that links these two things together.
What does advocacy look like during an extended school closure?
During an extended school closure, a “protected activity” may look like:
· Requesting an evaluation under the IDEA;
· Refusing to agree to an extension to the timeline for an evaluation;
· Voicing concerns about a district’s lack of implementation of accommodations or special education services;
· Voicing concerns about a student’s ability to use distance learning platforms;
· Filing a complaint with the Office for Civil Rights;
· Filing a due process complaint under the IDEA; and
· Filing a lawsuit in federal court.
Note that this is by no means a complete list. But districts should be aware that since parents and district staff may be communicating more frequently during an extended school closure, there are more ways for parents to advocate on behalf of their child. This, in turn, means there are more opportunities for parents to engage in a protected activity.
What does an adverse action look like during an extended school closure?
Generally speaking, an “adverse action” is some action by the district that would make a reasonable person think twice before continuing to engage in the protected activity. In a distance learning context, this might look like one of the following:
- Limiting a student’s access to distance learning material;
- Giving failing grades;
- Not providing a student with assistive technology to access distance learning material;
- Refusing to implement a student’s 504 services and accommodations or refusing to adapt those services to the distance learning environment; and
- Reducing a student’s instruction time.
Once again, this is not an exhaustive list. But if a parent can connect this adverse action to his or her protected activity, districts may find themselves liable for retaliation under Section 504 or ADA Title II.
Steps for districts to take to limit potential litigation
- Document, document, document. It is even more important for districts to keep track of when a student with a disability receives the special education and related services called for in his IEP or Section 504 plan and who provided those services. But what is similarly important is keeping records of communications between parents and district staff. These records are often the difference between districts that present successful defenses should an OCR complaint arise and those that do not.
- Don’t respond to angry or provocative comments in kind. If a parent disrupts a meeting or sends disrespectful or provocative emails, it is crucial for district staff to remain professional.
- Consider how an email comes across. Remember that it is difficult for the reader of an email to gauge the sender’s tone. Sometimes, what you meant to say gets lost in the way that you say it. When communicating by email, or even a chat feature, consider first sending the email to a colleague to ensure that it doesn’t come across as rude, cold, or some other way that you don’t intend.
Dylan J. Wade, Esq., covers special education legal issues for Special Ed Connection, a DA sister publication.