9th Circuit Rules Teacher Complaining to OCR of Student Rights Violations is Protected from Retaliation

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     In Susan Barker v Riverside County Office of Education, (9th Cir., 10/23/09) the 9th Circuit Court of Appeals has ruled that a teacher, despite not having a disability herself, can sue under Section 504 and the ADA  for the retaliation she suffered after she filed a complaint with the Office for Civil Rights alleging her employer was denying students with disabilities a free appropriate public education. 

     Susan Barker worked as an intinerant Resource Program Specialist teacher with the Riverside County Office of Education from 2002 to 2006. As early as 2003 she told her supervisors that the special education services provided by the Riverside County Office of Education did not comply with federal and state law. In May 2005 Ms. Barker and a coworker filed a class discrimination complaint with the Office for Civil Rights (OCR) alleging that the Riverside County Office of Education was denying students with disabilities a free appropriate public education.

     The next month, June 2005, Ms. Barker's supervisors learned that she had filed the OCR complaint and according to Ms. Barker, they began harassing and retaliating against her. The retaliation included  intimidation, failing to respond to her emails and phone calls, excluding her from important staff meetings, moving her work sites further from home, reducing her caseload even though the number of students with disabilities increased, and refusing to allow her to fill in for other teachers during their vacations. This resulted in her being constructively discharged.  She alleged that she was forced to quit on August 1, 2006 due to an intolerable work environment. 

     Ms. Barker then filed a complaint with OCR on her on behalf alleging retaliation. After an investigation (which included OCR interviewing 15 current and former employees of the Riverside County Office of Education as well as reviewing documents and other evidence) the Office for Civil Rights determined that a preponderance of the evidence showed she had been retaliated against for advocating for her students with disabilities. She then filed suit in federal district court for violations of the anti-retaliation provisions of Section 504 and Title II of the ADA. Although she does not have a disability, Ms. Barker's lawsuit was essentially an employment discrimination case claiming disability discrimination because she was constructively discharged for advocating for students with disabilities. The district court determined she could not sue (did not have standing)because she was not a qualified person with a disability and dismissed her case. She appealed to the Ninth Circuit Court of Appeals.  

     The Ninth Circuit determined that the anti-retaliation language in Section 504 and Title II of the ADA is broad and does not only protect persons with disabilities. The Court made the common sense observation that: "Indeed, empathetic people who teach and interact frequently with the disabled are those most likely to recognize their mistreatment and to advocate on their behalf." Thus, Ms. Barker can pursue her lawsuit.

     For more information regarding retaliation under Section 504 and Title II of the ADA, please see my article from March 2008 entitled Protection from Retaliation.