The Gebser Letter

[guess]

I am not an attorney and this is not legal advice.

When nice is no longer working and things are already heading towards the complaint process, you've LOU'd all you can LOU and you need one last resort before litigation there is Gebser notice or Gebser letter. It should help with case building.

Gebser's roots are in Title IX. http://www2.ed.gov/offices/OCR/archives/pdf/AppC.pdf

The Court’s recent decision in Gebser was limited to private Title IX lawsuits for money damages. The Court
in Gebser ruled that a private plaintiff in a court action can obtain money damages against a school district
under Title IX *if a school official who has the authority to take corrective action has actual notice* of sexual
harassment *and is deliberately indifferent to it*. The Gebser decision expressly distinguished the limits on
private recovery of money damages from the Department of Education’s enforcement of Title IX. Thus, the
obligations of schools that receive federal funds to address instances of sexual harassment have not
changed as a result of the Supreme Court decision. School districts must continue to take reasonable steps
to prevent and eliminate sexual harassment discrimination. In addition, pursuant to its published guidance,
OCR will continue to enforce Title IX in this area, including by investigating complaints alleging sexual
harassment discrimination.

"...if a school official who has the authority to take corrective action has actual notice...and is deliberately indifferent to it."

A Gebser letter effectively puts a school on notice of a discriminatory act. There is no recognition of the use of a Gebser letter itself as it is a template for process. You are also calling the school out on capricious and arbitrary behavior resulting in discrimination because it defines a lack of standard application of rules, etc. towards the student.

Here's how we're going to apply what started in Title IX to Title II/504.

http://www.justice.gov/crt/about/edu/documents/lemahieubr.pdf

The discriminatory animus standard is not, however, the exclusive method for establishing discriminatory intent under Section 504 (and indeed no court has so suggested). As other federal courts have recognized, the deliberate indifference standard is also a valid method for proving discriminatory intent under Section 504 and analogous statutes.

The Supreme Court’s decision in Gebser v. Lago VistaIndependent School District, 524 U.S. 274 (1998), is instructive. In
Gebser, a case brought under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”), 2 the Supreme Court was presented with a high school student’s claim that she had been subjected to sexual harassment by a teacher. See Gebser, 524 U.S. at 277-78. Although the Court in Gebser held that the defendant school district could not be held liable for damages under Title IX for actions about which it lacked knowledge (such as the teacher-student sexual harassment alleged by the plaintiff in that case), the Court recognized that a plaintiff may establish intentional discrimination through proof of “deliberate indifference.” 524 U.S. at 290-91. Specifically, the Court explained that a damages remedy may be available to a plaintiff where “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [federal funding] recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails to adequately respond.”

Consistent with the reasoning in Gebser, several courts have held that a plaintiff may establish discriminatory intent for purposes of compensatory relief under Section 504 by showing that officials failed to adequately respond to complaints of disability discrimination. For example, in Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999), the Tenth Circuit held that, for purposes of compensatory damages under Section 504, “intentional discrimination can be inferred from a defendant’s deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.”

[guess]

Template I. Edit to fit FA, disability harassment, bullying, FAPE violation.

Sample Gebser Letter

Date

Dear x: {superintendent and each school board member, special ed director, etc. Make sure you send individual letters to everyone you have evidence is personally involved whom you may consider bring legal action against AS WELL as the Superintendent and School Board Members}

I am writing on behalf of my child, [insert name, dob] who is a {insert protected class here-race, disability, etc.} student attending (name of school) in the School District. S/he is being discriminated against and bullied repeatedly during her school days. {insert how the discrimination excluded your child from continued participation in school or denied your child the benefits to which other students in school have access, and be specific} This is prohibiting her from being able to access her education by/because {insert how it is interfering with her education}

(Your) school district receives federal funds for which it contracts to not discriminate. You have the authority to investigate and correct this discrimination. You have control over the site and personnel where the discrimination occurs. If you do not investigate and correct the problem, we may claim that you and the district are deliberately indifferent to the discrimination. If you do not correct unlawful discrimination, you may be liable personally for damages, and the school district may also be liable for damages.

I would like you to do (insert what you think will solve the problem for your child and for similarly situated ones, if you don't know give what suggestions you can). (name) School District has a bullying policy that states: (insert specifics that have been violated). As you can see from the examples I have given you, this anti-bullying policy is not being upheld in the classroom or on the playground (or name wherever).

I would appreciate your written notification of when I can expect the investigation to be complete and what steps you will be taking, within 10 days. Please put a copy of this letter in my child's cumulative file.

Sincerely,

Mom & Dad (put your names of course)

[guess]

Here's the key to expectations with regard to Gebser and deliberate indifference. The school would have to not only be informed but take unreasonable action (taking no action may be unreasonable) upon becoming informed. This is not the same reasonable standard for disability accommodations in 504.

Therefore, say you deliver Gebser notice and you disagree with the following course of action school administration takes. As long as they take reasonable action that is adequate there's no deliberate indifference. But their actions must not be retaliatory, capricious or arbitrary toward the student.

Repeating not a lawyer nothing here is legal advice.

[guess]

When possible I will edit a Gebser template to be tailored to food allergy 504 use specifically. Although the goal is really to call attention the discrimination in education rather than single out the food allergy as a subset more akin to special favors than legal protection and civil rights for the student to receive FAPE.

But if anyone wants to beat me to the punch have at.

[Macabre]

This is brilliant. Thank you!