Retaliation: Who Did What and When?

by Taylor Garner

By Dean Micknal

Shortly after sharing concerns about the educational placement of a student with a disability, a Michigan parent received a truancy letter. The letter, sent by the district’s attendance agent, explained the legal repercussions of the student’s unexcused absences and that the parent could be prosecuted under state law. The attendance agent, unaware of the prior parent complaints, took action in accordance with district polices and practices, which required the district to initiate the truancy process after 12 unexcused absences.

In response to the letter, the parent filed a complaint with OCR alleging the district’s action was retaliation for her complaints about the student’s placement. After investigating the complaint, OCR found the letter was not reprisal for the parent’s placement complaints.  In making this determination, OCR concluded that the district had “articulated a legitimate reason for its action,” and that the attendance agent responsible for the truancy letter was not aware of placement concerns and based the finding on objective evidence from the student’s attendance record.

While the district overcame the complaint in this case, parental claims of retaliatory conduct similar to this incident are increasing. Section 504 prohibits districts from discriminating against qualified students with disabilities. Public schools are required to provide such students with a free, appropriate education at public expense (FAPE). 34 C.F.R. § 104.33(a). Additionally, Section 504 incorporates the anti-retaliation provision of Title VI of the Civil Rights Act of 1964, which “prohibits recipients from intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege…or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part.” 34 C.F.R. §104.61; 34 C.F.R. §100.7(e).

For an allegation of retaliation to be sustained, OCR must determine that:

  1. An individual experienced an adverse action caused by the recipient;
  2. The recipient knew that the individual engaged in a protected activity or believed the individual might engage in a protected activity in the future; and
  3. There is some evidence of a causal connection between the adverse action and the protected activity.

All three elements must exist for OCR to substantiate a prima facie case of retaliation. If any one of the elements cannot be established, then OCR finds insufficient evidence of a violation. If, however, all the elements are established, an inference of unlawful retaliation is raised, and OCR proceeds to the next stage of the analysis. To ascertain whether this inference might be rebutted, OCR will then determine whether the district can identify a non-retaliatory reason for its actions. If such a reason is identified, OCR’s investigation proceeds to the third stage. At the third stage, OCR examines the evidence to resolve what the reason was (or reasons were) for the intimidation, threat, coercion, or discrimination. U.S. Dep’t of Educ., Office for Civil Rights, Case Processing Manual, (Aug. 2020).

Actions that could be seen as seeking to deter parent advocacy include, but are not limited to, truancy referrals, civil restraining orders, and abuse and neglect claims. While districts should not shy away from taking such actions, and in some cases are legally mandated to do so, it is essential that these measures be taken only for nonretaliatory and legitimate purposes.

It is equally important for districts to understand and recognize that even legitimate actions can provide the basis for parents to exercise their procedural safeguards.  When this happens, it can be difficult to avoid the trap of taking it personally…which can result in a heightened perception of retaliation. Best practice is to take a deep breath, compartmentalize the complaint/investigation, and trust the process. If your district finds itself spinning into the retaliation cycle, the school law attorneys at Leasor Crass, P.C. have the experience to help.

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