Protection from Retaliation

       Sometimes individuals are intimidated or harassed because they are trying to enforce or help others to enforce the right to be free from disability based discrimination under Section 504 and  the Americans with Disabilities Act (ADA). Both of these laws protect individuals with disabilities from discrimination. Additionally, these laws prohibit retaliation against a person with a disability (or persons who are acting on behalf of a person with a disability) for trying to enforce their rights under these civil rights laws. Individuals with disabilities and their families are often dependant on service providers such as schools and others for their services. Individuals are often reluctant to question how services are delivered because they fear they will face a reduction or termination of services as payback.

     The anti-retaliation provisions of section 504 and the ADA help allay that fear of payback so that individuals are not as afraid to enforce their rights or the rights of their family members and associates with disabilities.  The anti-retaliation provisions of Section 504 (note Section 504 applies the retaliation protections in Section 102 of Title I of the Civil Rights Act of 2004) and the ADA is very broad. It is a violation of Section 504 and the ADA to intimidate, threaten, coerce, or discriminate against an individual who has engaged in a protected activity. Protected activities include filing a complaint, testifying, assisting in, or participating in an investigation or hearing under Section 504 or the ADA. The key elements in a complaint for retaliation are:

1.     The person making the retaliation claim engaged in a protected activity (they asserted a right, filed a complaint, testified, assisted or participated in an investigation or hearing under Section 504 or the ADA);

2.     The entity that it is alleged to have retaliated knew the person engaged in a protected activity;

3.     That entity took some action against the individual making the complaint and that action was at the same time that individual engaged in the protected activity; and

4.     A causal connection can be reasonably inferred between the retaliatory action taken by the entity and the person engaging in the protected activity. 

    

A good example of retaliation is the Ninth Circuit Court of Appeals case of Settlegood v. Portland Public Schools . In that case, Pamela Settlegood was hired by the Portland Public Schools as an adapted P.E. teacher, on a probationary basis, to teach students with disabilities in various schools in the school district. She soon became concerned about how her students were treated. As an itinerant teacher, she had trouble finding a place to teach her students, she often lacked material and equipment, and the equipment she did find was often inadequate and unsafe. After she complained in writing to her supervisors that her students were not getting services they were entitled to under the IDEA and Section 504, her evaluations became more negative and her probationary contract was not renewed. 

      Ms Settlegood then successfully sued the school district for retaliating against her for trying to protect the rights of her students with disabilities. She was able to show that (1) she engaged in a protected activity (aggressively complaining about the lack of appropriate services and equipment for her students with disabilities); (2) the school district knew she had engaged in that activity; (3) the school district took action against her by school personnel giving her poor evaluations and not renewing her contract; and (4) it can be reasonably be inferred that her poor evaluations and the non renewal of her contract was caused by her efforts to enforce the rights of her students with disabilities. 

     As noted, individuals with disabilities and their family members who depend on others for services, are often reluctant to enforce their rights because they fear their services might be terminated or reduced.  Anti- retaliation legislation deters agencies from retaliating against individuals who try to enforce their civil right and helps assure individuals that they may safely pursue their rights without risking losing their services. For more information about the ADA, Section 504, protection from retaliation and how to file complaints see the Office for Civil Rights (OCR) within the Department of Education, OCR within the Department of Health and Human Services, and the Equal Employment Opportunity Commission. Some states also have laws protecting individuals with disabilities from retaliation, so it might be important to check your state statutes.

What if we don’t work it out? Due Process Hearings Under the IDEA 2004

     Sometimes mediation, the resolution session, or other efforts do not resolve the dispute and parents or the school district still wish to have a due process hearing. In order to have a hearing, the side requesting the hearing  must have filed a due process complaint notice with the other side in the hearing.  

Timeline for requesting a hearing 

     The IDEA 2004 established a two year timeline for requesting a hearing. Generally, the parent or the school district must request a hearing within two years of the date the parent or district “knew or should have known” about the violation that is the basis for the hearing request.  This timeline, however, will not apply to a parent if the parent was prevented from requesting a hearing because (1) the school district specifically misrepresented that it had resolved the problem, or (2) the school district withheld information from the parent that the district was required to give the parent.

     Finally, the IDEA’s two year timeline will apply unless the state has its own explicit timeline for requesting a hearing. Thus, parents, advocates, and attorneys should always check to their state’s laws and regulations.  

Qualifications of the hearing officer 

     The hearing will be heard and the dispute decided by an impartial hearing officer.  The hearing officer must be qualified and impartial. In order to be considered impartial, the hearing officer cannot have a personal or professional interest that conflicts with their objectivity at the hearing. Thus, the hearing officer cannot be an employee of the State Education Agency or the local education agency (school district) that is involved in the care or education of the student or have other interests that would affect their objectivity. 

      To be qualified, the hearing officer must know and understand the IDEA, its regulations, and legal interpretations of the law and regulations by the courts. The hearing officer must also know how to conduct hearings and be able to make and write decisions according to standard legal practice. 

Rights in the Hearing Process 

     Both sides to a hearing, parent and school district, have the following rights in the hearing:

• the right to be accompanied and advised by a lawyer and by individuals with special knowledge or training with respect to the problems of children with disabilities;

• the right to present evidence and confront, cross examine, and compel the attendance of witnesses;

• the right to prohibit the introduction of any evidence that has not been disclosed at least five business days before the hearing;

• the right to a written, or at the option of the parents, electronic verbatim record of the hearing;

• the right to written, or at the option of the parents, electronic findings of fact and decisions.     

Additionally, parents have the right to have the child present at the hearing, have the hearing open to the public, and have the record of the hearing, the findings of fact, and the decision at no cost to the parents. So, parents can obtain a transcript of the hearing at no cost. This is important because if the result of the hearing is appealed, it is likely that the entity hearing the appeal will want a copy of the hearing transcript.

 Timeline for the decision 

     Generally, there is a 45 day timeline for the hearing officer to make a decision. But the school district has 30 days from the time it receives the parents request for a hearing to try to resolve the dispute. Thus the 45 day timeline for the hearing to be conducted and a decision issued may not begin until after that 30 day time period expires. But if the parents and the school district agree in writing to waive the resolution session or agree in writing that it isn’t possible to reach an agreement through mediation or the resolution session, the 45 day hearing timeline will begin the day after that written agreement is reached. 

Appeal Process 

     Either side may appeal the hearing officer’s decision. If the hearing was conducted locally by the school district or by an agency other than the State Education Agency, then the decision can be appealed to the State Education Agency. In that event the State Education Agency must conduct an impartial review of the hearing officer’s decision and then make its own independent decision. This is considered a two tiered hearing process. The first tier hearing is conducted by the school district and the State Education Agency review is the second tier. The second tier decision will be the final agency decision but can be appealed to state or federal district court.

     Some states have a one tiered process with the State Education Agency, not the local school district, conducting the hearing. In that case the state is not required to have an additional state level review and the State Education Agency decision will be the final agency decision.

     Once the state has made its final decision (whether the state conducts the hearing or reviews an appeal of a hearing conducted by the school district) that decision can be appealed by either the parents or the school district filing  a civil action (lawsuit) in state or federal district court. 

 Concluding Thoughts Regarding Due Process Hearings 

     Generally, due process hearings are contentious, adversarial, costly, and unpleasant for all involved. The hearing itself is often like a trial. Attorneys for both sides present evidence, examine their witnesses, cross examine the other side’s witnesses, and make oral and written legal arguments. The hearing officer presides over the hearing like a judge presides over a trial. Because the hearing is costly and unpleasant, everyone involved is usually very interested in resolving the disagreement so that a hearing can be avoided. Thus, in most cases in which a due process complaint notice is filed, the issue is settled before the hearing occurs. That is good.

    But, having said that hearings are generally costly, contentious, adversarial, and unpleasant, they are sometimes very necessary. There are times in which the issues are significant and do not get resolved. In those circumstances, a due process hearing may be necessary to ensure that a student receives a free appropriate public education.      

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