Retaliation claims and protected activities

[ninjaroll]

A good read chock full of case law and OCR resolutions.  Protected activity and retaliation is going to be an ongoing contentious issue.

http://www.nwresd.k12.or.us/pdfs/RetaliationClaims.pdf

[ajasfolks2]

This reminds me . . .

No quote

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just got a reem of pages from one regional OCR . . . when I have time in next few weeks I will read and be PMing some here . . . let me know via PM if you want to talk behind the scenes on this . . .

[ninjaroll]

Something I'd like the public to be aware of in the ongoing case in Tennessee where parents have filed a private suit against the school board and principal for retaliation.  In the answer the school has an affirmative defense, meaning it agrees with what the plaintiff alleges but believes it has an excuse why.

In one of its affirmative defenses the school and principal claim peanut allergy does not meet the definition of disability under the ADA or Section 504, therefore parental advocacy for protection under 504/ADA does not qualify as a protected activity, therefore the SB or principal could not have engaged in retaliation.

Repeat, the affirmative defense in the answer claims that peanut allergy does not meet the definition of disability qualifying for 504 or ADA.  If you want to read the complaint and answer, send me a private message.  Because the documents are publicly accessible I could post them for download but out of respect to the family involved I won't.

Defendants aver and allege the minor Plaintiff does not have a disability within the meaning of the Rehabilitation Act or the American with Disabilities Act.

This matter is now in federal court.  While it would have to be kicked up to appellate with agreeing with that defense in order for it to become persuasive to another court, it would.  I was hoping Allergy Law Project would have picked this up and run with it but I can no longer let this sit without informing the rest of us.  That defense is bad news for every parent invoking ADA and 504 for LTFA.  I'd like to see Justice and Education file a joint amicus brief on this.

To refresh group memory of the case: Parents sue school board for retaliation.  Principal accuses parents of Munchausen by Proxy, use Tennessee Department of Children's Services to file charges against parents for FARE flyers on peanut free classrooms.  Principal Roney faced charges earlier in the year on a separate matter after aggression during an encounter with Officer Jereme Odom of Tennessee Wildlife Resources Agency.

[daisy madness]

That is so disheartening. 

[ajasfolks2]

Quickly -- to be sure I'm clear:

Is it the school's assertion that the child DOES NOT actually HAVE LTFA?

Or, is the assertion that LTFA does not meet the necessary test so to qualify as a disability?

[ajasfolks2]

Other thread here with more on this Tennessee case:

School accuses parents of Munchausen by Proxy

[ninjaroll]

Quickly -- to be sure I'm clear:

Is it the school's assertion that the child DOES NOT actually HAVE LTFA?

Or, is the assertion that LTFA does not meet the necessary test so to qualify as a disability?

It is admitted that peanut allergy can be life threatening and that they can and do cause great illness when not anaphylaxis is not properly treated.

yet

Defendants aver and allege the minor Plaintiff does not have a disability within the meaning of the Rehabilitation Act or the American with Disabilities Act.

but he was found eligible for a 504 plan.  It's a little bit all over the place on both sides. 

Funny I was on a call last night with an ADA attorney who himself has a mobility impairment - veteran and in a former occupation, criminal prosecutor.  He said that ADA is only as good as the court you go to.

It's a toss up which is more disheartening; actually having to defend allergists appointments, RAST, SPTs and so forth as part of the allergy gig and not MBP and (I quote) "severe child abuse", or having to prove again that what's necessary for LTFA advocacy deserves protection under disability advocacy. 

I think I'm going to hug my principal the next time I see him.

[ajasfolks2]

This was post and comments at Allergic Living about lawsuit:

http://allergicliving.com/2014/12/09/parents-sue-school-board-and-principal-in-shocking-allergy-rights-case/

[ajasfolks2]

OK, I think I see where the school district / principal's attorneys are trying to go with their defense:

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1.  We initially gave 504 in good faith that child really did have LTFA.
2.  We began to suspect child did not actually have LTFA.
3.  We, as mandatory reporters, turned in the family for child abuse, suspecting Munchausen.
4.  We believed the child did not / does not have LTFA, therefore no disability, therefore no harrassment.

I would assume the child's physicians would be called to testify in this case.  Proof of reactions is gonna be key, IMHO.
That will mean medical care sought and received, with good documentation. 

I would not be surprised if the defense attempts to push for a peanut challenge and wants to witness it and/or have it videoed.

I think this case is going to be really, really ugly.

[ThreeforMe]

Can they do that?  Can they really say "Hey, put this kids like at risk to prove it to us?" 

[ninjaroll]

The only for sure is that it doesn't eliminate due process and procedural safeguards.  My concern on both sides (one more than the other) is due process got mangled, now it's down to facts about allergy.  Disability is less on trial than allergy itself, which is more or less what your point was. 

The lesson here, I think, is come preloaded with indisputable and more than sufficient evidence of qualification then stay on track even if things take a turn to wherever this went.  I'm going to make the unpopular suggestion that the flyers directly to other parents in class wasn't protected because it was outside of process or procedure.  The lack of justification or reason in the principle's choice of actions not withstanding.

But yeah, I'm kinda thinking allergy as a hidden, episodic disability is on trial and the associated perception helicopter parenting, MBP.  Perfect storm, perhaps.

[ninjaroll]

Though this is CA state law (and if you're in CA this does apply to you) footnote 7 points to other case law.  Note how it calls out inference and circumstance.  In the era of multiple email accounts assume FOIA and FERPA will not help you find the "smoking gun" customarily thought to prove retaliation.  Many a conversation is happening in unofficial email or verbal conversations conducted only face to face in coded reference.  Is the School Retaliating? A Guide to Your Rights

You should also keep a working knowledge of what FCPO, the office that will assist with FERPA, can assist with and what would be more under the auspices of FOIA with particular differentiation to video of students from security cameras.  Often this is not under FERPA.

retaliation is inferred from surrounding circumstances, requiring a four-step analysis

Four-step analysis coming up.

[ajasfolks2]

This is again making me wish I could find the talk show with the parents of special needs child who had endured serious harrassment at hands of school admin . . . the mother was an attorney . . . the parents ended up banned from coming onto school property.

I think they were being interviewed by Dr. Drew . . .

would have been a couple years ago now?

The mother may have written a book.

If I can find link or details, I will try to get that in here.

~ ~ ~

[ninjaroll]

At some point I'll have to post some school side documentation that will make some flip.  For now the gist is a circling of wagons policy to repel federal investigations by centralizing responses within districts. 

Who here or out there has had success in state complaints?  Guest posters plz post your experience.

[ninjaroll]

For an overview from the school's side.  Please remember we have FAS parents who are teachers.  They too must advocate so bear in mind scorched earth is not always a great way to go.

Appropriately Addressing Difficult Parents and Avoiding Retaliation Claims