A School Would Rather Retaliate Against Parents & Students Instead of Providing a Free Appropriate Public Education Under Section 504, ADA and the IDEA
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Weixel and Weixel v. Board of Educ. Of City of New York

Second Circuit Court of Appeals, 2002

Weixel was decided a few months ago by the Federal Second Circuit Court of Appeals in New York State. It is a very instructive case on the duty of the school district to evaluate and to offer appropriate education under the IDEA as well as under Section 504 and the ADA. Although it deals with chronic health problems, the procedures apply to every student in public schools.

It includes claims by the parent about discrimination, retaliation, threats, intimidation, coercion, conspiracy and outright lying.

Weixel begins with parents, almost 9 years ago, raising a claim by themselves. We have often written about the difficulty of a parent going into court alone. We have also alerted parents to how long a case can take once a parent starts the judicial process. This case began in the 1993-94 school year and is not yet over. The parents lost on all points in the Federal District Court and now the Circuit Court of Appeals has overturned virtually every point in the District Court opinion and, in effect, ordered a new trial.

The Facts Of The Case

When Rose was 12 and in the middle of the Seventh Grade she became chronically ill with infected tonsils, swollen glands, muscle and joint pains, headaches, nausea, abdominal pains, exhaustion and intermittent fever. She was unable to attend school and her mother kept in touch with the guidance counselor about the absence.

About seven weeks later the principal instructed the mother that if Rose were not returned to school full-time the next day, the principal would file negligence charges against the parent. When Rose indicated she was not well enough to return full time, the counselor also threatened to have her removed from the family home.

When the principal agreed that Rose would not be forced to climb stairs if she felt too sick and would be allowed rest periods if she needed them, the mother allowed her to return. Upon return Rose was immediately required to climb stairs to the fourth floor. A teacher made repeated calls to the principal about Rose but none were returned. The mother went to check on Rose at lunch and found her in the office, sitting in a chair, crouched over in severe abdominal pain and crying.

The mother took Rose home and submitted a note from the family pediatrician documenting the disability and Rose�s inability to attend school at that time.

The principal immediately replied, threatening to turn the case over to the Child Welfare Agency. The next day the mother took in a note from the family�s physician that Rose had Chronic Fatigue Syndrome and fibromyalgia. When she gave the note to the principal the principal threatened to have the state take custody of Rose away from the mother. The principal also made that threat to the father later that same day.

Two days later, Rose and her mother were at the school for an evaluation and a Board of Health worker noticed Rose�s condition, asked for a copy of her records, and stated she would get home instruction. The counselor overheard and insisted that the Health worker leave the room. The mother called to find out the name of the helpful Health worker and was told she could not get her name.

The principal then referred the situation to Child Welfare, claiming educational neglect and seeking to remove custody from the parents. According to the Court, the resulting proceedings were traumatic for both Rose and her mother.

Rose�s diagnosis of Chronic Fatigue Syndrome was confirmed by two doctors who also confirmed fibromyalgia and digestive problems. The mother provided those reports and documentation immediately to the school. The counselor then contacted the doctors and "urged them to change their diagnoses." The counselor contacted another of Rose�s care providers and told him that the mother had been charged with negligence and would have to appear in court, where the counselor insisted that the doctor�s diagnoses of Chronic Fatigue Syndrome and fibromyalgia would be "torn to shreds."

The counselor then called Rose�s treating physician and "claimed falsely" (according to the Court) that Rose had a personality disorder and lied that three other doctors had diagnosed Rose with school phobia. She also told each physician that the mother had been charged with negligence.

The mother realized Rose would have to have home instruction and went to the school in June to gather information about Rose�s curriculum. When she arrived, the counselor ordered Rose�s teachers not to cooperate and the principal ordered security to remove the mother from the building.

The Court stated "despite the school�s unwillingness to help... (the mother) finally obtained 20 days of home instruction... Rose completed her Seventh Grade curriculum with outstanding grades in advanced math and other subjects. As a result of this academic achievement, Rose became entitled to placement in Regents-level Eighth Grade." (Note- Regents Level is the highest academic level for New York).

In the Fall, Rose was well enough to return to school and her mother presented a copy of the report card showing completion of the Seventh Grade curriculum and requested that Rose begin in the Eighth Grade. The principal refused and insisted Rose repeat Seventh Grade.

The parents appealed to the District�s Superintendent. The Court noted that the Superintendent lied to the parents, telling them he was powerless to overturn the principal�s decision, even though there was a Superintendent�s memo that stated that it was the Superintendent himself who had to make such a decision.

The mother then obtained permission from the District�s coordinator to home school Rose. When the counselor learned of that she threatened to file child abuse charges against the mother and insisted she would get the District to stop the home schooling.

With the assistance of attorneys at Advocates for Children and the Washington Square Legal Clinic, the Board of Education was forced to recognize Rose as an Eighth Grade student and make her placement on the basis of an examination. The testing was then suddenly cancelled, the mother was told Rose could go to the Eighth Grade and the Child Welfare Agency sent the mother a letter exonerating her of all the educational neglect charges.

Two days later, the parents were told that Rose would not be placed into the Regents level curriculum and would be placed in a large, lower level class without math or science curriculum. There was no academic evaluation of Rose although placement of other students required that. Four days later the principal confirmed that Rose could only return if she forfeited the right to be in the Regents program and forfeited the right to take the Regents exam. In addition, the counselor again threatened to file child neglect charges if the mother did not "submit" to the principal�s demands.

Rose was home schooled for the remainder of that school year. She took the Regents examinations in math and science at a private school and excelled on both exams.

Mother sent a letter to the director of Student Health Services to request a review of the principal�s decision. The director responded, stating that she did not have jurisdiction over the matter, but did not mention that she was in charge of the office that oversaw those decisions. Mother faxed a similar letter to another administrator who approved the principal�s decision without any review.

Mother then submitted a formal complaint to the Coordinator who assured her that her complaints would be promptly reviewed. No such review ever occurred.

After Rose entered High School, the mother received a letter from a Board official stating that they wished to ensure a full review of her complaint and that she had to respond in writing within 14 business days. The mother promptly replied that she had submitted all necessary information over a year earlier and renewed the complaint. She never received a response.

The mother filed the lawsuit pro se (by herself) against all the Defendants. The Defendants filed a motion to dismiss (a Federal rule 12(b)(6) motion) claiming that the plaintiff had failed to state a claim upon which relief could be granted. The Federal District court did not hear oral arguments and 20 months later dismissed the mother�s lawsuit.

The Second Circuit Court of Appeals Decision

Nineteen months later, the Federal Circuit Court of Appeals ruled in the case, finding virtually every issue for the parents and against the school district.

Since the District Court judge simply "threw the case out" without any trial, the Circuit Court of Appeals� review has to be de novo (from the beginning). This is the first piece of good news for the parents.

The second piece of good news is that since the parents were representing themselves (pro se) the Circuit Court followed the standard of interpreting the parents� complaint in the light of the strongest arguments they suggested.

This writer often warns parents not to expect the judge to help them in their lawsuit. Inexperienced parents are often at a terrible disadvantage. In this case, however, the judge applied the appropriate standard.

"But she�s not disabled"

The school district claimed that since Rose had done well in home schooling she was not disabled in the major life activity of learning. They further tried to argue that a "learning disability" is the only disability relevant to school. But in regard to the parents� ADA and Section 504 claims, the Circuit Court of Appeals adopted the parents� argument.

The Court quickly pointed out how stupid the school�s argument was. Major life activities under Section 504 and the ADA include learning and walking. Chronic Fatigue Syndrome and Fibromyalgia certainly limited her major life activities. The Court found that the parents had clearly stated a complaint that raised disability discrimination.

The lower court had focused solely on whether Rose had a learning disability. However the Circuit Court of Appeals adopted a three-step approach used by the Supreme Court. (1) Rose has to show that she suffers from a physical or mental impairment which is recognized under Section 504 and the ADA. (2) Rose must show that the activity that is impaired is a major life activity, such as learning and walking. (3) Rose must show that her impairment "substantially limits" those major life activities.

Further, the Circuit Court of Appeals reminds us that the U.S. Supreme Court has recently clarified that the major life activity, or activities, that are substantially limited must be "of central importance to daily life." Obviously, disabilities that prevent a student from attending school at all, or participating in school, qualify.

In 1984, the U.S. Supreme Court ruled in Tatro v. Texas, in a 9-0 decision, that schools must provide students whatever they need to reach, enter, exit or remain in school for the day. That certainly covers Rose�s problem. In 1999, in Garret F. v. Cedar Rapids, Iowa, in a 7-2 decision, the U.S. Supreme Court re-stated its support for the Tatro decision.

Was Benefit Denied?

The lower District Court claimed that Rose never alleged that she was denied a benefit that was made available to other non-disabled students. But the Circuit Court of Appeals found that Rose was denied reasonable accommodations, was refused home instruction necessitated by her disability, was refused evaluation, was refused an appropriate placement based on that evaluation � which is "a denial of a benefit that other students received � appropriate class placement on the basis of evaluation."

Did The School Retaliate Against Rose?

The Court of Appeals reviews the elements of a retaliation claim under Section 504 and the ADA. (1) the mother or student was engaged in a "protected activity." (2) the person or persons alleged to have retaliated were aware that the mother or the student was engaged in a protected activity. (3) An adverse decision or course of action was taken against the mother or the student. (4) A causal connection exists between the protected activity taken by the student or parent and the adverse action taken by the school personnel.

Pages one through four, above, are filled with evidence of retaliation, intimidation, coercion, threats, and interference with their advocacy.

The Circuit Court of Appeals notes, First, that seeking a reasonable accommodation for Rose�s disability "constitutes a protected activity under Section 504 / ADA."

Second, the parent alleged facts that demonstrate that the school personnel were aware that the mother was engaging in a "protected activity."

Third, the Court noted that the parents� "complaint is replete with allegations of retaliatory conduct."

Fourth, the Court felt that the parents had clearly claimed that there was a causal connection between the school district�s retaliation and the parents� efforts to obtain reasonable accommodations.

Thus the Circuit Court of Appeals concluded that the parents had alleged a viable claim that the school district had engaged in retaliation, intimidation, coercion, threats, and interference with their advocacy efforts.

What About The IDEA?

The Circuit Court first addresses the requirement that the parents must "exhaust" their claims in an IDEA Due Process Hearing before they can go into court. However, that cannot be held against the parents, because the school district never informed the parents of that duty or any of their procedural rights under the IDEA.

The lower court also dismissed the IDEA claim because the parents did not prove that Rose�s illness requires special education or related services. Again, the lower court insisted that Rose would qualify only if she were "learning disabled."

The Circuit Court of Appeals mentioned the obvious � that "health impairments" are part of the IDEA, and that health impairments include chronic or acute health problems, that limit strength, vitality or alertness, and thus affect a child�s educational performance � like they did to Rose.

The Circuit Court also found that Rose was denied a Free Appropriate Public Education because all the retaliation by the school district denied her any chance of "meaningful educational benefit." The Circuit Court quoted itself in another 2000 case that "for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression." The Court suggested that the discrimination and retaliation against Rose indicated that the school�s proposed placements were not reasonably calculated to ensure a meaningful educational benefit.

What About Damages?

The parents had sought damages for the school district�s misconduct, under 42 U.S.C. 1983. The lower court dismissed that claim but the Circuit Court of Appeals reinstated it. The parents did state causes of action under Section 504, the ADA and the IDEA.

The record showed that the school district --- had never given the parents notice of their rights,

- had never begun the "Identification" phase of Child Find, even when Rose had so many problems,

- had never proposed Evaluation even though the parents gave school personnel records of a number of events, and documents that demanded evaluation,

- had never proposed having an IEP meeting

Those gross violations of the several statutes by the school district and state education agency should keep the school from arguing in the re-trial that the parents did not follow the "letter of the law." The reason was, the school was lying to the parents about the law so the parent cannot be held accountable for not following it perfectly.

Further, we often write on this site and in our publications about the importance of raising the violation of failure of the school to provide "Prior Written Notice," 20 U.S.C. 1415(b)(3) and (c). Obviously the New York school district never produced anything that resembled "Prior Written Notice" which would have included a full explanation of procedural safeguards, so the parents cannot be held responsible for not following the letter of the law when the school district failed in its responsibility to inform the parents about the law.

We have also often written on this site about the provision in 20 U.S.C. 1415(i)(3)(G) that the parents� request for attorneys fees cannot be reduced, in hourly rate or number of hours claimed, if the State or local educational education agency violated 20 U.S.C. 1415(b)(3) and (c). That includes the requirement to provide Prior Written Notice, which was violated.

Since the successful Circuit Court of Appeals phase, and all the subsequent action does involve an attorney, this could become as expensive a case for the New York school district as it should be embarrassing.

The Information on this website is educational and not intended to be legal advice.

Reed Martin is an attorney with over 35 years experience in special education law and
recognized as one of the nation's leading experts. 
He can be reached through email at connie@reedmartin.com or www.reedmartin.com

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STOP! Are You Really Ready To Ask For A Due Process Hearing? Manual

New York Department of Education


New York State BOCES Listings

New York State Education Law

Technology Resources for Education (T.R.E.) Center

Decisions of the Commissioner of Education

Decisions of the State Review Officer

Early Grade Class Size Reduction

Charter Schools

Comprehensive School Reform Demonstration Program (CSRD

Parent Involvement

Reading Excellence Act (REA) |

Reading For Results

Schools Under Registration Review (SURR) 

School Accountability (SASS)

Directory of Higher Education Services for College Students With Disabilities

The information on this website is educational
and not intended to be legal advice.
Our Mission is Lessening Discrimination Against Children with Disabilities
by Providing Parents and School Personnel Tools for Advocacy
Reed Martin is an attorney with over 35 years experience in special education law and
recognized as one of the nation's leading experts.
He can be reached through email at connie@reedmartin.com or www.reedmartin.com
2004 Matthews Media, LLC
P. O. Box 4003, Morgantown, WV  26504
(304) 598-3406 (P)     (304) 598-3512 (F)
www.reedmartin.com            www.specialedadvocate.com         www.educationaltools4kids.com