9th Circuit Rules Teacher Complaining to OCR of Student Rights Violations is Protected from Retaliation

     In Susan Barker v Riverside County Office of Education, (9th Cir., 10/23/09) the 9th Circuit Court of Appeals has ruled that a teacher, despite not having a disability herself, can sue under Section 504 and the ADA  for the retaliation she suffered after she filed a complaint with the Office for Civil Rights alleging her employer was denying students with disabilities a free appropriate public education. 

     Susan Barker worked as an intinerant Resource Program Specialist teacher with the Riverside County Office of Education from 2002 to 2006. As early as 2003 she told her supervisors that the special education services provided by the Riverside County Office of Education did not comply with federal and state law. In May 2005 Ms. Barker and a coworker filed a class discrimination complaint with the Office for Civil Rights (OCR) alleging that the Riverside County Office of Education was denying students with disabilities a free appropriate public education.

     The next month, June 2005, Ms. Barker’s supervisors learned that she had filed the OCR complaint and according to Ms. Barker, they began harassing and retaliating against her. The retaliation included  intimidation, failing to respond to her emails and phone calls, excluding her from important staff meetings, moving her work sites further from home, reducing her caseload even though the number of students with disabilities increased, and refusing to allow her to fill in for other teachers during their vacations. This resulted in her being constructively discharged.  She alleged that she was forced to quit on August 1, 2006 due to an intolerable work environment. 

     Ms. Barker then filed a complaint with OCR on her on behalf alleging retaliation. After an investigation (which included OCR interviewing 15 current and former employees of the Riverside County Office of Education as well as reviewing documents and other evidence) the Office for Civil Rights determined that a preponderance of the evidence showed she had been retaliated against for advocating for her students with disabilities. She then filed suit in federal district court for violations of the anti-retaliation provisions of Section 504 and Title II of the ADA. Although she does not have a disability, Ms. Barker’s lawsuit was essentially an employment discrimination case claiming disability discrimination because she was constructively discharged for advocating for students with disabilities. The district court determined she could not sue (did not have standing)because she was not a qualified person with a disability and dismissed her case. She appealed to the Ninth Circuit Court of Appeals.  

     The Ninth Circuit determined that the anti-retaliation language in Section 504 and Title II of the ADA is broad and does not only protect persons with disabilities. The Court made the common sense observation that: “Indeed, empathetic people who teach and interact frequently with the disabled are those most likely to recognize their mistreatment and to advocate on their behalf.” Thus, Ms. Barker can pursue her lawsuit.

     For more information regarding retaliation under Section 504 and Title II of the ADA, please see my article from March 2008 entitled Protection from Retaliation.

GAO Report: Education Needs Coordinated Approach in Supporting Students with Disabilities in Higher Education

     The Government Accounting Office (GAO) issued a report on October 28th of its examination of services for students with disabilities in postsecondary education. The GAO noted that more students with disabilities were pursuing higher education than in the past and that recent legislative changes had the potential to increase the number and diversity of students with disabilities in postsecondary education. That legislation includes the Higher Education Opportunity Act that added new provisions to support postsecondary students with disabilities; the ADA Amendments Act of 2008 that provided broader coverage of persons with disabilities; and the Post 9-11 Veterans Educational Assistance Act of 2008 that expanded educational benefits for veterans, many of whom may have newly acquired disabilities. Additionally, the ADA and Section 504 require postsecondary schools to provide equal access to services for students with disabilities by providing accommodations, auxiliary aids and services, academic adjustments, and physical access to the campus. Moreover, the Department of Education is responsible for ensuring  that postsecondary schools comply with federal disability laws.

     The GAO looked at: (1) what is known about the population of postsecondary students with disabilities; (2) how postsecondary schools are supporting students with disabilities; (3) what challenges, if any, schools face in supporting these students; and (4) how the Department of Education is assisting schools in supporting these students.

     (1) The GAO found that in 2008 students with disabilities represented nearly 11 percent of all postsecondary students. Moreover, the report noted, that the number of students with disabilities in higher education has grown. The population of students with disabilities is similar to their peers of students without disabilities regarding age, race, and the schools they attended (whether public or private). Students reported having a wide range of disabilities. In 2008 the largest proportion of students, 24%  reported having a mental, emotional, or psychiatric condition, or depression. Attention deficit disorder (ADD) was the next largest percentage (19%), and fifteen percent of the students had an orthopedic or mobility impairment. In a previous study done in 2000, more than twenty five percent of the students reported  having orthopedic or mobility impairments and only seven percent reported having ADD.

     (2)The GAO found that postsecondarys schools use a wide range of accommodations for students with disabilities. The accommodations include: academic adjustments (such as  extended time on tests, reduced course load) and auxiliary aids or services (such as notetakers and sign language interpreters). Schools determine accommodations on a case by case basis and based on documented needs. The documentation includes a “disability diagnosis” and the implications of the disability on accessing the educational program. The report does a very good job of providing  (a) examples of the processes schools use to determine how to accommodate students with disabilities and (b) examples of accommodations. In particular the report notes how assistive technology has expanded the educational opportunities for students with disabilities. For example, voice recogniton software can help students prepare papers by talking to the computer.

     (3) Schools face broad challenges supporting students with disabilities. Students may not know their rights and responsibilities regarding accommodations. Moreover, faculty may be unaware of the obligation to support students with disabilities. Finally, challenges are expected in supporting two growing populations of postsecondary students: (1) veterans with newly acquire disabilities and (2) students with intellectual disabilities.

     (4) The Department of Education has assisted postsecondary schools to support students with disabilities through (1) the Office for Civil Rights (OCR) (2) the Office of Special Education and Rehabilitation Services (OSERS) and (3) the Office of Postsecondary Education (OPE). But these offices have different missions and priorities, focus on different clients, and provide different types of assistance to schools. The Department of Education does not have a mechanism to systemically share information across these offices and coordinate its technical assistance. Thus, the GAO concludes that the Department of Education needs a coordinated approach to improve its assistance to postsecondary schools in supporting students with disabilities.

     This report is thorough and I found the summary of the legal protections for students with disabilities in higher education and the detailed discussion of how schools are supporting those students helpful. If you didn’t click on the word “report” in the first sentence, the report can be found at http://www.gao.gov/new.items/d1033.pdf.



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