A federal court in Pennsylvania denied a school district’s motion to dismiss a parent’s Section 504 claim last month, holding that the school’s decision to report the parent to Pennsylvania’s child welfare agency could qualify as a form of unlawful retaliation where the school filed the report because the parent refused to continue giving her child behavioral medication. (Aponte ex rel. D.H. v. Pottstown Sch. Dist., 119 LRP 26546 (E.D. Pa. 07/11/19).)
After transferring to a new elementary school, the student in this case began exhibiting disruptive, sometimes violent behavior. The student was identified as an individual with a qualifying disability under Section 504. Despite receiving special education services, the student continued to exhibit aggressive behavior. After a meeting in which the school’s special education director allegedly told the parent that the student would be expelled if he was not put on medication, the student visited a psychiatrist and was prescribed medication. The medication appeared to improve the student’s behavior, but also led to changes to his personality and appetite that caused his parent concern.
The parent eventually decided to take her son off the medication. When the school learned that the parent was no longer giving her son the medication, school administrators reported her to the Pennsylvania Office of Children and Youth Services (“CYS”), claiming that the parent was neglecting her child’s medical needs. CYS found the claims unsubstantiated, and the parent filed a complaint with the Pennsylvania Department of Education. After the Department found in the parent’s favor, the school agreed to place the student in a private school at the school’s expense. However, the school failed to complete the requisite paperwork in time for the student to enroll, and was instead enrolled at a different private school against the parent’s wishes. Ultimately, further disputes over the student’s behavior resulted in the private school calling the police to restrain the student and calling CYS to report the parent a second time.
The parent then filed a second due process complaint, alleging, among other claims, that the school’s action in reporting her to CYS because of her decision to discontinue her son’s medication constituted unlawful retaliation under Section 504.
A claim for unlawful retaliation under Section 504 must include three elements, a protected activity by the claimant, a retaliatory action by the district, and a causal connection between the protected activity and the retaliatory conduct. Here, the court concluded it was reasonable to infer that the CYS report was made with retaliatory animus, partly because CYS found the report unsubstantiated, but also due to the school’s alleged ultimatum that the student would be expelled if not medicated.
Although the court agreed to dismiss the parent’s other claims, and declined to make a determination as to the underlying merits of the parent’s claim for retaliation, this decision is significant because it demonstrates that a school’s decision to file a report with a child welfare agency can be considered an act of retaliation, in certain circumstances. To avoid such liability, schools should be careful to file fact-based, objective, and timely reports with child welfare agencies. In this case, the fact that administrators filed the report shortly after allegedly setting an ultimatum that the student medicate or face expulsion led the court to question whether the report was connected to the parent’s advocacy.