Teachers and Kids and Families, and Everyday Heroes

By Heather Zakson

Recently, the federal courts recognized the critical role of special education teachers as advocates for disabled children, and reassured us all that the laws that protect these children also protect teachers who stand up for them.

In Barker v. Riverside County Office of Education, a special education teacher brought a lawsuit against the school district that she worked for. She took the brave position that if anti-discrimination laws protect kids with disabilities, and prohibit retaliation against kids for taking action to protect their own rights, then those laws must also protect the people who stand up for those kids. In a reaffirmation of what is right, the Ninth Circuit Court of Appeals agreed.

This teacher’s case began when she saw, through her work, that her school district was not providing a free and appropriate public education to its disabled students as required by law. Frustrated in her attempts to remedy the chronic shortcomings, she filed a complaint with the Department of Education’s Office of Civil Rights (“OCR”), on behalf of her students.

According to her lawsuit, when her employer, the school district, learned that she had filed the complaint on behalf of her students, it retaliated against her by cutting her off from information she needed to do her job, harassing her and isolating her.

The Americans with Disabilities Act (“ADA”) and Section 504 of the federal Rehabilitation Act both provide that nobody should intimidate, threaten, coerce, interfere with or discriminate against any person who makes a complaint or testifies or participates in an investigation or proceeding or hearing under those laws. Section 504 applies to all entities that receive public federal funding, and the ADA applies to all private and public entities.

The teacher believed that these protections should apply to her, so she filed a second complaint with the OCR, this time on her own behalf. OCR determined that the school district’s actions against her violated federal civil rights protections for disabled individuals. OCR’s findings stated that “advocacy on behalf of disabled students on issues related to their civil rights, and the filing of complaints, are protected activities…” and thus, a school district’s retaliation against a teacher who does this advocacy is prohibited.

The school district argued that the teacher is not covered by the anti-discrimination protections, even the protections against retaliation, because she herself is not disabled. The district also argued that she could not be a “person aggrieved” by discrimination, because she did not have any “close relationship to a disabled person.” This position postulates that special needs kids and their teachers are not together in the quest for appropriate education, and that special ed teachers and their students and the students’ families are not invested together in making special education work.

The Ninth Circuit did not agree, holding 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.” The court points out that “… in formulating the language in … anti-retaliation provisions, Congress recognized that disabled individuals may require assistance from others to defend their rights.” Of course, all children – disabled or not – depend on caring adults like teachers to advocate for them. We know this is especially true in the case of children with disabilities, who spend several hours each day in school, where their parents and caretakers have only occasional and usually restricted opportunities to see what goes on.

This case gives us an opportunity to look at one thing that’s wrong with special education. Teachers who are overtaxed and under-equipped (not to mention poorly compensated) are held accountable for the failures of a system that doesn’t serve them any better than it serves their students. Those who call attention to the problems are targeted for retaliation. Parents, too, who raise their voices are often singled out for ill treatment. Too frequently, school districts use heavy handed tactics that keep parents and teachers quiet, keep chronic problems hidden, and pit teachers and parents are pitted against each other. Ultimately, children are shut out of the promise of an education, their only chance to gain the skills they need to be productive adults who can participate in their world.

We can imagine how hard it is for teachers to speak out. We know that special ed teachers work hard to bring their best to children who really need them. We need to find real and effective ways to support teachers – to bring more training and more resources into classrooms, to open communication between teachers and families and to stand together with teachers to advocate for better special education.

The teacher who brought this lawsuit is a hero, but she’s not the only one. Every day, there are special education teachers everywhere who commit small and large acts of heroism, by doing their job.

The fight for appropriate education for disabled students is a hurricane – budget shortages blow one way, complex legal mandates blow another, and the children’s needs can overwhelm the levees. This case reminds us that teachers and kids and families are huddled here together under the same small umbrella that provides some protection from this storm. There is strength in that, and we should hold on together.

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