Jacqueline, a kindergarten student, was sexually harassed by a third-grade boy while riding the school bus. The child’s parents brought this to the attention of school administrators immediately.
The principal offered to transfer the child to another bus. Her parents asked the school to put a monitor on the bus or transfer the boy to another bus. When the school did not accept these alternatives, the parents drove their daughter to school for the rest of the year …
Jacqueline continued to describe disturbing interactions with the boy for the remainder of the school year. Ultimately, she began missing school.
Claims Under Title IX and Section 1983
Claiming that school officials did not make adequate efforts to protect their daughter, Jacqueline’s parents filed suit in federal district court against the school’s governing body, Barnstable School Committee, and the superintendent. Their complaint included a claim for violating Title IX of the Education Act Amendments and claims under 42 U.S.C. Section 1983.
If a statute, such as the Individuals with Disabilities Education Act (20 U.S.C. 1400) provides a clear remedy for statutory violations, then the ability to sue under IDEA precludes the ability to sue using Section 1983. On a Motion for Summary Judgment, the federal district court resolved the case in favor of the school committee and superintendent. Hunter v. Barnstable School Committee, 456 F. Supp. 2d 255, 266 (Mass. 2006) explaining, in part, that Title IX provides the remedy for such a violation and not Section 1983.
The parents appealed to the Court of Appeals for the First Circuit. That Court ruled against the child noting that: “In this instance, the plaintiffs seek to use section 1983 to redress deprivations of both a federal statutory right (implicating Title IX) and a federal constitutional right (implicating the Equal Protection Clause). At an early stage of the litigation the district court, ruling from the bench, found these claims precluded under applicable Supreme Court doctrine.”
In 2008, with two federal court decisions against them, the parents appealed to the U.S. Supreme Court.
What happened next?
To learn about the surprising decision that took many legal experts by surprise, read Supreme Court Issues Unanimous Decision in Fitzgerald v. Barnstable, 555 U.S. __ (2009) at https://www.wrightslaw.com/law/art/fitzgerald.barnstable.supct.htm
I have a question. I am a student in special education. in my district certain special ed children are sent to a seperate school without any general education student. now is it illegal if the supplies provided to my school are less than adequate and in no way equal to the technology and supplies provided to the normal general education school. I am a student in the state of South Carolina. can anyone clarify the legality of the situation and if i should take legal action not just for me but the students who come to my school even after i leave
To me this could be a discrimination issue. Your state Disability Rights project should be able to give you answers and information on this. http://www.parentcenterhub.org/find-your-center
Not a comment, researching information…
Can a parent sue the school for causing damage to a childs developmental growth?
Our son was kept in a severe non-academic program from Preschool through 4th Grade because the school said he was Autistic and “he couldn’t process or retain memory like a normal child” …Therefore, he was not able to learn. We asked for tests to be done and were told there were no tests to give a child who didn’t understand how to take such.
We sent out child to Sylvan for testing and tutoring and they taught our son to read and much more. Fifth grade year the school reassessed our son and placed him in an academic program for higher functioning special needs autistic children.
Our son had no real school education until then. Our son went through 5th grade with straight A’s and 7th grade Merit and better.
reply to 2 sun Q1 – how old is your child?
I’m not saying that either you or the school are in the right/wrong, but it’s not uncommon for schools to give the label dd for children under 8 when there is any type of developmental delay (whether asd or a different disorder). As for the other diagnoses (asd,dd,lang.delay and possible adhd – under the DSM-IV criteria for Autism Spectrum Disorder – all of the diagnoses you mentioned fall under the ASD label. It is even specifically mentioned in the DSM IV manual that when there is a diagnosis of ASD, there should be no separate diagnosis of ADHD. That being said, it would be appropriate for the school to give the ASD label and not have four separate labels, since all of the conditions you mentioned are part of ASD. As for medical vs educational diagnosis – I wish IDEA were more clear.
My 4th grade sld is in the only 4th grade inclusion class in my district. She has had the same disabled children in this class for 4 years and the percentage is 50% reg ed and 50% classified.
She has a 2 year spoken language deficit and a 2nd grade reading level as well. She gets AIS ELA and speech 3x/week in school, 2x/week outside school. She is being bullied in this class by another classified child. Do I have the right to demand they set up a second inclusion class? I take her for speech outside based on the speech teacher in school telling me she needed outside speech. If she says that, shouldn’t the school provide her with those services?
Do I have a right to review someone else test protocols, interpretations, and etc, to show they discriminating against my child?
Q 1.I have a child with asd, dd, lang, delay and possible adh&d. District put her under label of DD only. I have been fighting with the district to change criteria for a year. District is saying medical diagnosis is different from educational. I found a couple of parents saying that district simply took their children’s diagnosis from doctors and put them under asd. However, they refused to take my child’s 3 different medical doctors diagnosis. After a year of fighting, the district proposed the very extensive re-eval process and currently going through it very extreme manner. I mentioned that why we have to go through this extreme compare to some others. Then, they said I did not have a right.
Schools and school districts that comply with IDEA, 504 and ADA regulations should be entitled to legal protection.
Administrators who choose to ignore these safeguards need to be held accountable for their actions. This is the only way that our kids will stop being penalized for their disabilities