Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools
Retaliation
Section 504 prohibits retaliation.143 For example, once a student, parent, teacher, coach, or other individual complains formally or informally to a school about a potential civil rights violation or participates in an OCR investigation or proceeding, school staff are prohibited from retaliating (including intimidating, threatening, coercing, or in any way discriminating against the individual) because of the individual’s complaint or participation.144
The ability of individuals to oppose discriminatory practices, and to participate in OCR investigations and other proceedings—whether by filing a complaint or by providing OCR with his or her testimony or documentary evidence—are Federally protected activities and necessary to ensure equal educational opportunity in accordance with Federal civil rights laws.145
Discriminatory practices are often only raised and remedied when students, parents, teachers, coaches, and others can report such practices to school administrators without the fear of retaliation. Individuals should be commended when they raise concerns about compliance with the Federal civil rights laws, not punished for doing so.
143 34 C.F.R. § 104.61. This Section 504 regulatory provision incorporates the procedural provisions in the regulation implementing Title VI of the Civil Rights Act of 1964, including a regulation that prohibits school and district staff from intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured under the Title VI statute or regulations, or because the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Title VI regulations. 34 C.F.R. § 100.7(e).
144 See 34 C.F.R. § 100.7(e) (Title VI); 34 C.F.R. § 106.71 (Title IX) (incorporating 34 C.F.R. § 100.7(e) by reference); 34 C.F.R. § 104.61 (Section 504) (incorporating 34 C.F.R. § 100.7(e) by reference); 34 C.F.R. § 108.9 (Boy Scouts Act) (incorporating 34 C.F.R. § 100.7(e) by reference). See also OCR, Dear Colleague Letter: Retaliation (Apr. 24, 2013), www.ed.gov/ocr/letters/colleague-201304.html.
145 Id.
Scenario 11 – Retaliation
Ms. Chen, the mother of a student with a disability, complained privately to the principal that her daughter and other students with disabilities are not receiving an appropriate education at the school. The situation did not improve so Ms. Chen raised the issue with the principal again at a recent Parent Teacher Association meeting in front of other parents and teachers. The following week, Ms. Chen, who had been a helpful and effective classroom volunteer for many months, received a letter from the principal indicating that Ms. Chen can no longer volunteer in her daughter’s classroom. Moreover, the principal offers no explanation for this change in policy in the letter. Ms. Chen asks around and learns that none of the other parent volunteers received a similar letter. May the principal do that?
Denying Ms. Chen the ability to volunteer in her daughter’s classroom would be unlawful retaliation if the school did so because the parent complained to the principal that her daughter was not receiving FAPE (either initially or in front of the Parent Teacher Association). However, if the school did so for a legitimate reason (for example, because the parent was disrupting instruction or endangering students), then the school may not have violated Section 504. The ultimate determination will depend on whether evidence indicates that the school’s actions were based on a legitimate reason for keeping the parent out of the classroom or if the school’s explanation was a pretext (excuse) for retaliation or if retaliation was a motivating factor in addition to the legitimate reason. In this case, the school had no evidence to suggest that Ms. Chen had been, or would likely be, disruptive or dangerous. Therefore, if the school allowed other parents, who did not file a complaint, to continue to volunteer in class, these facts would suggest that forbidding Ms. Chen from volunteering based on concern about disrupting class or endangering students is pretext and that the sole reason for banning her from class was to retaliate because she raised her concerns about services for students with disabilities.
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