Special Education and Retaliation

“A school can do about whatever it wants to do until a parent gets a lawyer.”

- Several school and AEA administrators

Question:
I want to hire a lawyer to represent me in a special education mediation, but I’m afraid the school district will retaliate against me or my daughter. What can I do?

Answer:
The best way to protect against or deal with retaliation is to engage the services of a lawyer who specializes in representing parents and children in special education law matters. You can obtain a list of special education attorneys practicing in Iowa by contacting the Iowa Department of Education, or the ASK Resource Center at (800) 450-8667 or TDD: 1(800) 735-2942.

After I have filed a request for mediation, due process, or a state complaint with the Iowa Department of Education, and served it on the school district, I have never had a parent report retaliation. The reason for this is that school districts know retaliating after a parent has engaged a lawyer would be an incredibly stupid thing to do.

Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) protect entitled individuals with disabilities against discrimination, and protect their parents when acting appropriately on their behalf to ensure their rights. Specifically, Section 504, which references Title VI of the Civil Rights Act of 1964, states that recipients of Federal funds, which would include school districts, “shall not intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by the Act, or because the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.”

Instead of retaliating, after school districts are served with a legal action, some “clean up their act” to avoid creating additional evidence that would support or substantiate the parent's case.

Risk Gambling with the Cost to Children with IEPs

When a school district or AEA fails to comply with its legal obligations under special education law because they think there’s a low risk that they will be sued, they aren’t practicing risk management -  they’re engaging in “risk gambling.” Risk gambling doesn’t manage risk - it creates it - and the students bear the cost.

School districts and AEA personnel engage in risk gambling when, for instance, they:

• narrow the scope of their FAPE obligations by improperly limiting a child’s specially designed instruction and services in an IEP,

• prioritize budgetary savings over the provision of services required for a child to receive a FAPE,

• fail to implement IEPs with fidelity,  

• are indifferent to bullying and harassment that results in a denial of FAPE,  

• fail to comply with safety standards,

• fail to comply with mandatory reporting and other reporting laws

School districts and AEAs should keep in mind that judges don’t care whether they were ignorant of their legal obligations or didn’t think they'd be sued. When an AEA or school district substitutes risk gambling for risk management, the consequences can include:

• Compensatory damages  

• Attorney fees (under the Iowa Civil Rights Act, IDEA, ADA, §504, and Title IX)  

• Corrective action plans  

• State or federal monitoring  

• Licensing complaints

• Loss of public trust  

• Media scrutiny  

• Staff turnover  

• Long-term reputational harm  

Risk management involves ongoing proactive procedures for identifying legal obligations and taking steps to ensure compliance. Examples of practices used by AEAs and school districts acting responsibly  include:

• Training staff on their specific legal duties  

• Auditing performance on legal duties

• Engaging in document compliance review

• Fixing problems early, and

• Treating parent concerns as early-warning signals.