Q.         If a parent feels that her child with a disability is being unfairly denied the opportunity to enroll in a course and an after-school program because, among other things, the parent has filed a request for due process challenging the appropriateness of the child’s program, requests permission each week to observe her child’s classroom, and has twice requested the IEP team to reconvene to review the effectiveness of her child’s IEP in preparing her child to meet the standards set for all other students, what does the parent need to demonstrate in order to obtain a finding of retaliation against the school district by the Office for Civil Rights?

A.         The Office for Civil Rights (OCR) has jurisdiction over complaints alleging discrimination on the basis of disability in programs or activities that receive federal financial assistance pursuant to Section 504 of the Rehabilitation Act of 1973 ( Section 504), as amended, 29 U.S.C. 794, and its implementing regulations 34 C.F.R. part 104 that prohibit discrimination. In addition, OCR is responsible for enforcing Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12131, et seq. and its implementing regulations at 28 C.F.R. part 35, which also prohibits discrimination on the basis of disability by public elementary and secondary education systems. In this case the school district is a public elementary/secondary school system that receives federal financial assistance from the U.S. Department of Education and is subject to the requirements of Section 504 and Title II.

             The Title VI implementing regulation at 34 C.F.R. 100.7(e) which is incorporated by reference in the regulation implementing Section 504, specifically 34 C.F.R. 104.61, states that no recipient of federal financial assistance may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or proivilege secured by Section 504 or because the individual has made a complaint, testified, assistaed or participated in any manner in an investigation, proceeding, or hearing.

             In analyzing claims of retaliation, OCR must determine whether a preponderance of the evidence establishes a prima facie case that the complainant was subject to retaliation. A prima facie case exists if OCR determines: (1) the complainant party engaged in a protective activity [here the request for a due process hearing and two IEP reviews]; (2) the complainant party suffered an adverse action contemporaneous with or subsequent to the protected activity [here, the child was denied admission to the exclusive algebra class and a rather exclusive after school program]; (3) the recipient was aware or had knowledge of the complainant’s/injured party’s protected activity [OCR would review evidence, might conduct interviews]; and (4) there is evidence of a causal relationship between the complainant’s protected activity and the alleged adverse action. If a prima facie case is made, the burden shifts to the school district to demonstrate a legitimate, nondiscriminatory reasons for the adverse action. After the school district has offered its reason(s), OCR examines whether the reason is a pretext for retaliation or intimidation. If there is a finding of pretext, OCR will conclude that the complainant was subject to retaliation.

             Generally OCR will review any documents and interview those persons involved in the alleged retaliatory acts in order to determine whether the evidence supports a finding that the school staff have engaged in retaliatory action against the student. Regardless of the outcome, retaliation or other harassment against any person who has filed a complaint, participated in, or cooperated with an OCR investigation is prohibited.