Special Education Advocacy and Retaliatory Accusations of Child Maltreatment

Parents of special education students advocate forcefully for their children. This is to be expected and is their right under federal (and sometimes state) law. Currently, one of more troubling aspects of parent’s advocacy for children who need special education services is the risk of a “retaliatory” report to child protective services (CPS) because of their advocacy. Of course, any parent is capable of being abusive or neglectful. Parents of special education students are not, and should not be immune from laws designed to protect children and laws intended to insure that children at risk of harm are reported to CPS. However, “mandatory reporting laws”, the laws that require certain people, such as teachers, nurses and school administrators to report possible child maltreatment can be misused. A report of child abuse/neglect needs to be based on a “reasonable suspicion” which would call for some credible factual support for the report. However, there are occasions when a “mandatory reporter”, such as a school administrator “hot-lines in”, that is, reports a parent to CPS for alleged abuse or neglect in situations where the report is retaliatory or malicious and made in bad faith. These are reports that are not motivated by a “good faith” “reasonable suspicion” that a child has been or is at risk of being abused or neglected but are instead are based on mere speculation, “facts” not relevant to the child’s care, or even as punishment (retaliation) for zealous parental advocacy. The actual numbers such reports are impossible to obtain and it is hoped that they are rare. Nonetheless, there is a small and unfortunately growing number of court cases from around the country that would allow the conclusion that retaliatory CPS reports are a very real occurrence

Retaliatory reports occur in different circumstances. The most usual situation is one where the parent refuses to accept the services as offered by the school and forcefully advocates for different services. In such cases the school takes the position that the offered program is a “FAPE” [Free Appropriate Public Education] and threatens to report the parent to CPS for educational neglect unless the parent accedes to the school’s proposal. Of course, there is such a thing as educational neglect but it almost always occurs when parents are ignoring their child’s educational needs, not advocating to obtain what they are legally entitled to. There can be valid differences between parents and schools as to what constitutes a FAPE but such disagreements are designed to be addressed by the IEP [Individual Education Program] and fair hearing processes, not a threat of or an actual report to CPS. Other examples of situations are when there can be a threat of or an actual report is when a parent refuses to have a child educationally evaluated or to undergo a mental health evaluation or has stopped the child’s medication.

Another situation that can lead to retaliation but not always a report to CPS occurs when a parent is seeking help for a child who is not attending school or is attending sporadically and the school claims the child is not special education eligible or offers a program that the parent does not agree addresses the child needs. In these instances the child continues to “miss school” and the parent is accused of refusing to encourage the child to attend school or refusing to allow the child to attend. In such situations the school claims that the child is truant and triggers the process that can result in a criminal charges against the parent(s) for truancy.

Reasons for arbitrary and even bad faith behavior by school personal can include a desire to force the parent to scale back their advocacy and accept the program offered by the school or even encourage the parent to withdraw the child from public school in favor of home schooling or private school. In any event, the retaliation that is forbidden by law does not include situations where there are legitimate reasons to suspect that a child is at risk of harm or the parents are actually engaged in behavior that is designed to be punished by truancy law.

Parents who do find themselves the victims of retaliatory behavior for their advocacy under the Individuals with Disabilities Education Act (IDEA) can turn to two federal laws that prohibit retaliation for advocacy or for seeking rights protected by the law (engaging in a “protected activity”). These two laws are the Americans with Disabilities Act and the Rehabilitation Act. School retaliation can also implicate the Civil Rights Act (“Section 1983”).

In my practice I regularly represent parents who are threatened with or have been reported to CPS or who are accused of and prosecuted for truancy.

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