Welcome to Letter R day. Letter R is for Retaliation, an ugly, ugly topic. Sometimes I hear the stories and think “How, how did we get here?” And, many times I’ve seen a parent seek assistance and many parents chime in, “That’s illegal, they can’t do that!” Sigh. I wish it was that simple. Yes, it is illegal. But it happens. More often than I even care to think about. And it’s very difficult to prove. Still, we cannot become silent about important issues like this and just take it. While the remedies we have are few and weak, we should try. Here is what you can do if you feel that your school has retaliated against you for advocating for your child in the IEP process.
Even talking about retaliation really upsets me. In my ‘perfect world’ of unicorns and rainbows, parents and schools would work together at school and in the political process–to demand that our schools get the resources they need to appropriately educate our kids, as is the law. But, we don’t live in that perfect world, and there are not enough resources. And I get that–really I do. It’s why I spend as much time as I do lobbying. But, retaliation is just so, so ugly…it really takes this to whole ‘nother level. Not giving a child what they need, and trying to convince a parent that what the child is receiving is appropriate…sure, happens all the time. But to actually retaliate against a parent because he/she is speaking up and advocating for their child? School employees who participate in this need to do some deep soul searching.
What does retaliation look like?
I’ve seen several examples. Two of the most common ones are calling CPS on the family and bringing the parents up on truancy charges. CPS (Child Protective Services-what it is called in your state may vary) is required to investigate every claim of suspected child abuse that comes to them. And, in most states you can anonymously report. So, it’s a harassment to the family and wastes CPS’s resources. But, happens all the time.
I asked some parents what they’ve experienced.
A mom named K said:
My son loved his speech teacher. She was his favorite teacher and I swear would do anything she asked of him. She was the main person for his IEP. She would schedule the meetings and run them. When I got an advocate for him and we fought for OT services, the following week she said her case load was too big so she assigned him to a different speech teacher. He was heart broken and didn’t understand why.
Another mom named M said:
My son has a traumatic brain injury and I am often the easiest person to calm him down and de-escalate his temper. It is in his IEP that I am to be called every time he is removed from class for outburst or refusal to cooperate. His school resents this and has chosen to only call me when he is violent against another student and the school needs to document notifying me. I often find out I am only being called about 30% of the time.
I also heard many stories of having CPS called on families and being investigated for “possibly” abusing their own children, retaliation in different forms against siblings, parents having to take time off of work to attend truancy court and pay truancy fines, children suddenly receiving failing grades and many other examples. To me, it’s really one of the darkest, saddest parts of humanity.
What is retaliation?
The Office of Civil Rights has clearly defined retaliation and has a 5-part test to help determine if a family has experienced it.
Parents need to show the following to prove their case:
- Has the student/parent engaged in a protected activity? (such as advocacy)
- Is the district aware of the protected activity?
- Was the parent/student subjected to an adverse action?
- Will a neutral third party decide there is a causal relationship or connection between the protected activity and the adverse reaction?
- Can the district offer legitimate, nondiscriminatory reasons for the adverse action, which a neutral third party will not consider to be pretextual (i.e., a false pretense)?
So, what can you do about retaliation?
Here are the steps that I would recommend that all parents follow if they feel that they have been retaliated against, or to possibly prevent retaliation.
- Document, document, document. Read #2 above. You will need to prove that the district is aware.
- Educate yourself on Right to Know requests because you may need to ask for data. For example, how many kids in the school would qualify as truant, vs. how many of them were actually referred to truancy court.
- Consider getting a good special education attorney.
- Save ALL of your child’s records and IEP paperwork, for their entire school career. You never know when you might need it.
- Know all of your options on what to do, from filing an Office of Civil Rights complaint to state complaints and so on. Your options will be very similar to the options available to you if your school is not following the IEP.
- Get support. This is the most important one, seriously. Retaliation is difficult to prove. A school that will retaliate against a family is scum–so you already know what you are dealing with. If they will retaliate against you and against a child, what else will they do? Well, they’ll lie, cheat and steal. They’ll “lose” records and documents. All of a sudden there’s an “oops!” and your child’s home-school communication log is destroyed by a mysterious paint spill. There will be times that you know that they are lying and cheating and there’s nothing you can do about it. It’s very stressful.
One time I was involved with a family and we knew that some emails existed. We had confirmation from a teacher that they existed, but we didn’t want to throw her under the bus. She was helping us in secret. We did multiple Right to Know and FERPA requests, were very specific in some of them, yet these emails never surfaced. A scummy attorney for the district looked me right in the eye and said, “Just because you wish for them to exist does not mean that they exist.” They will stoop to the lowest of the low. I’ve said it before–the system is stacked against parents and it’s not fair. But, life isn’t fair…that doesn’t mean that we stop. You can find support here on this site, in our Facebook group and we will turn the tide. We will. I’m confident of that.
Wrightslaw also has a very thorough section of informational articles about retaliation.