Alert! Civil Rights Case: Discrimination
and Retaliation

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April 21, 2008

ISSN: 1538-3202

Issue: 433
Subscribers: 60,690

In This Issue:


Violation of Civil Rights: Discrimination Under Section 504

Violation of Civil Rights: Retaliation Against Jarron & His Family

Advice about Filing Due Process Under IDEA if Civil Rights Claims

Jarron Draper v. Atlanta Independent Schools: Background & Decisions

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On March 10, we sent an Alert about a new decision in Jarron Draper's cases against the Atlanta Independent School District. (see background of case)

Jarron DraperWithin the last two weeks, there have been more important new developments in the case.

Violation of Civil Rights

In a companion case, Jarron Draper and his family are seeking damages for harassment and retaliation under Section 504 of the Rehabilitation Act.

Two weeks ago, the U. S. District Court of Georgia issued a decision in the civil rights companion case (Draper II).


This Alert
describes the Court's findings about harassment and retaliation under Section 504 and how they apply to Jarron's case.

Wyner and Tiffany, lead counsel for Jarron and his family, explain that the District Court’s analysis includes important guidance for plaintiffs who file for due process for a denial of a free appropriate public education (FAPE) under IDEA, but who believe they may also have civil rights claims under Section 504 of the Rehabilitation Act.

Please don't hesitate to forward this Alert to your friends and colleagues. forward to a friend

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Violation of Civil Rights: Discrimination Under Section 504

In Jarron Draper's civil rights case, he "asserts that he suffers from injuries as a result of his educational deprivations that cannot be addressed by any amount of compensatory education" and is requesting damages under Section 504 of the Rehabilitation Act.

On March 31, 2008, the U. S. District Court of Georgia issued a decision that denied the motion by the Atlanta Independent School District (“APS”) to dismiss Jarron’s civil rights claims that APS discriminated against him and retaliated against him and his family. In Jarron’s civil rights Complaint, he asserted that:

  • APS incorrectly assessed Jarron as mentally retarded in fourth grade
  • APS placed him in a functional program for the mildly intellectually delayed (“M.I.D.")
  • APS failed to reassess him for over five years as required by law, and
  • after learning that Jarron has dyslexia, APS moved him from the M.I.D. program into a 10th grade regular ed program with no support or remediation, which caused him to fail

In this decision, the District Court held:

"In addition to being denied appropriate educational services, J.D. also alleges that he suffers from stigmatization as a result of being improperly labeled 'mentally retarded' throughout most of his educational career. There is little doubt that the harm suffered by J.D. exceeded a mere denial of FAPE (emphasis added) ... the cumulative impact ... supports a reasonable inference that defendants may have exercised bad faith or gross misjudgment (emphasis added) in denying J.D. access to a free and appropriate education" in violation of Section 504 of the Rehabilitation Act.


Read decision
.

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Violation of Civil Rights: Retaliation Against Jarron and his Family

The court also refused to dismiss the retaliation claims, explaining that:

"The Rehabilitation Act's anti-retaliation regulation provides that "[n]o recipient ... shall intimidate, threaten, coerce, or discriminate against any individual for the purposes of interfering with any right or privilege secured by [the Act], or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing ..." 34 C.F.R. § 100.7(e)

Specifically discussing the retaliation claim, the court held that "a causal link is supported by plaintiff’s allegation that ‘[w]hen J.D. and his aunt challenged his placement in the M.I.D. program, ‘Faustina Haynes made [it] clear that he would always be M.I.D. and would never graduate from high school.’”

The Court concluded that "plaintiff's and his family's requests for reassessment and their resort to administrative remedies triggered retaliatory conduct appears plausible."

Exhaustion of Administrative Remedies

According to Wyner and Tiffany, "APS had moved to dismiss the 504 claims on various grounds, including failure to exhaust and statute of limitations. 

"With respect to exhaustion, the court held that the due process request mentioned the 504 claims, including the retaliation claim. Although the the administrative decision did not expressly rule on those claims, the decision does include relevant factual findings that go beyond what was necessary to find a denial of FAPE. The court further held that because of the comprehensive remedies received in the due process case, further exhaustion was excused as futile."

Statute of Limitations

"The court also denied the motion to dismiss on the grounds of the statute of limitations. APS argued that because the 504 claims had not been brought within two years of when they accrued, they were barred by the statute of limitations."

"The court agreed with plaintiffs that the statute of limitations on the civil rights claims did not begin to run until the student was 18 years old. In any case, the statute was equitably stayed under federal law while the Jarron's family exhausted their claims under IDEA."

Court Rejected Claims Based on Section 1983

"Although the court rejected various claims based on section 1983 (joining the growing number of courts that have rejected a 1983 claim premised on a violation of the IDEA), this case provides substantial support to plaintiffs who attempt to pursue civil rights claims under Section 504 related to underlying violations of the IDEA."

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Filing Due Process under IDEA if Civil Rights Claims by Wyner and Tiffany

According to Wyner and Tiffany, lead counsel in Jarron's cases, "The court’s analysis contains some very important guidance for plaintiffs who file for due process for a denial of FAPE under the Individuals with Disabilities Act (IDEA), but believe they may also have civil rights claims under Section 504 after exhausting.

The Court found that "Plaintiffs due process hearing was not limited to whether J.D. was denied a FAPE ... [the] due process complaint cited Section 504, ADA, and state law grounds for relief ... specifically mentioning retaliation and defendants' 'willful disregard' of J.D.'s educational rights."

"Even though hearing officers will refuse to rule on the civil rights claims on the ground that they do not have jurisdiction to decide such claims, it is important to include these claims in the due process request. It is also important to introduce evidence relevant to these claims during the due process hearing, to the extent that the hearing officer will allow it."

We asked Marcy Tiffany of Wyner and Tiffany what will happen next?

"The next step will be to engage in discovery, including depositions, and ultimately a jury trial. Along the way there will probably be some summary judgment motions and, of course, there is always the possibility of settlement."

We will keep you posted on new developments in this unique case.

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Jarron Draper v. Atlanta Public Schools: Background &  Decisions

On March 20, 2007, the U. S. District Court of Georgia ordered the Atlanta Independent School System to pay Jarron Draper's tuition at a private special education school for four years, or until he graduated with a diploma from high school, as prospective compensatory education for their persistent failure to educate him.

The Judge ruled that
"Compensatory awards should compensate, and this means that they must do more than provide ‘some benefit’ as required by ordinary IEPs ..." Read decision

The District Court held that:


"Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student ...

"Compensatory awards should compensate, and this means that they must do more than provide ‘some benefit’ as required by ordinary IEPs ... compensatory education is necessary to preserve a handicapped child's right to a free education."

Appeal

The Atlanta Independent School System and Jarron appealed to the U.S. Court of Appeals for the Eleventh Circuit to resolve different legal issues.  On March 6, 2008, the Court of Appeals unanimously upheld the decision of the District Court in Jarron Draper v. Atlanta Independent School System (11th Cir. 2008).

The Court of Appeals unanimously upheld the District Court's award of compensatory education that required the school system to pay prospective educational services provided by a private school. (11th Cir. 2008). The Court specifically rejected the notion that the student had to prove that the public school system was incapable of providing the compensatory education. Read decision.

Relying on decisions from the U.S. Supreme Court in Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 105 S. Ct. 1996 (1985) and Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 114 S. Ct. (1993), the Court of Appeals affirmed that the District Court had the authority to require a public school to pay the cost of prospective compensatory education that would be provided by a private school.

"Poor Man's Burlington Remedy"

Read about the significane of Jarron's IDEA case in Poor Man's Burlington Remedy by Stephen Wyner & Marcy Tiffany.

"A Lesser Spirit Would Have Been Crushed Years Ago"

To learn more about Jarron, his family, and their struggles, read
A Lesser Spirit Would Have Been Crushed Years Ago by Pamela Wright and Peter Wright.

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