A Cautionary Tale. An Aggressive Advocate. It Comes to a Head. Jim Walsh Walsh, Anderson, Brown, Schulze & Aldridge, P.C.

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1 A Cautionary Tale Jim Walsh Walsh, Anderson, Brown, Schulze & Aldridge, P.C. An Aggressive Advocate Carol Herring, attorney, represented many families against the Chichester School District. She attended IEP Meetings, filed complaints and due process hearings. She frequently accused the district of discrimination, denial of FAPE, falsification of records and other wrongdoing. It Comes to a Head The district sent Herring a letter notifying her that any future visit to the school, without prior approval, would be considered trespass. Subsequently, the district called the cops, who gave Herring two citations for criminal trespass. Herring was acquitted of trespass. 1

2 Basis of the Suit No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose 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 under this part. 34 CFR 100.7(e) Defendants The school district The superintendent The director of pupil services What Herring Has to Prove To make her case, Herring has the burden of proving three things: 1. She engaged in protected activity; 2. Defendants retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights; 3. There was a causal connection between the protected activity and the retaliation. 2

3 Protected Activity.Herring participated in IEP hearings to advocate for students with disabilities and complained that the District discriminated against these students because of their disabilities. [Cite omitted]. These activities are protected by the anti- retaliation provision. Herring clears the first hurdle. Retaliation The second element of the Section 504 action, a chilling effect, can be sufficiently inferred from Herring s s allegation that she received two trespass citations on January 7, 2005 one for her presence at an IEP meeting on that date, and the other for her presence at an IEP meeting on December 20, Herring hops over the second hurdle. Causation The day after the District learned Herring would be filing more due process complaints, [the director of pupil services] sent Herring a trespass notice. Finally, when Herring appeared at an IEP meeting on January 7, 2005, the District called the police to issue trespass citations to Herring. Therefore, causation can be inferred from the alleged facts. Over the third hurdle. 3

4 District Liability The district is only liable if policy or custom of the district caused the injury. The superintendent approved the trespass letter. Herring also alleged it was policy or custom to shred documents, hide files and prevent access to students and parents. District could be held liable. Individual Liability Neither of the individuals were entitled to qualified immunity because Herring alleged a violation of her constitutional rights which was so clearly established at the time that any reasonable school official should have known it was a violation. Either of both of the individuals could be held liable. What Right Are We Talking About? The right to attend an IEP meeting? The right to attend an IEP meeting without notice to the school? The right not to be retaliated against for my advocacy? 4

5 How the Court Framed It Looking at the specific contours of Herring s s case, the right of an advocate to be free from retaliation in the form of citations for defiant trespass because of her complaints that a school district had improperly handled education of disabled students was clearly established as of January An Insight Into an Important Issue Notably, however, no one actually prevented Herring from coming on to school property.. Specifically, it appears that Golde and Senatore did not prevent Herring s s access to the District s s property, and they did not prevent her from attending the due process hearing. Rather, they required her to give advance notice if she was going to come on to school property. Put This in Perspective Herring has not won this suit. She has survived a Motion to Dismiss. In ruling on a Motion to Dismiss the court is required to accept as true everything the plaintiff alleges. Inferences drawn from the facts must be viewed in the light most favorable to the plaintiff. 5

6 How Far Can You Go? Can you say please tell us if you are coming? Can you say if you show up without notice we will postpone the meeting until our attorney can be present? Can you say if you show up without notice we will call the gendarmes? Can you say just don t t show up? The Case Herring v. Chichester School District,, 49 IDELR 186 (E.D. Pa. 2008) 6