A Word of Caution

No two cases are exactly alike. This material is designed to provide educators with a broad understanding of the law pertaining to a school district's liability risk as related to the provision of special education services. This material does not include every aspect of the law. You are strongly encouraged to seek a legal opinion from your school district's legal counsel regarding any specific case.

TABLE OF CONTENTS

I. Overview

II. Reducing the Risk of Personal Injury Claims

III. Reducing the Risk of Claims of Retaliation

A. The Duty to Avoid Retaliatory Conduct

B. Reducing Risk Through Implementation of the Five-Part Test

C. Avoiding Allegations of Retaliation: Six Examples

1. Barring Parent Participation

2. Using Confidential Information

3. Engaging in Student Discipline; Failing to Qualify the Student for Honor Roll

4. Towing Student Vehicles

5. Engaging in Bus Suspensions

6. Reporting Abuse and Neglect

IV. Reducing the Risk of Disability-Based Harassment

A. The Duty to Prevent Disability-Based Harassment

B. Reducing Risk Through Application of the Two-Part Test

V. Reducing Risks Associated With Mediation and Due Process

A. The Relationship Between Mediation, Due Process and Subsequent Damage Claims

B. Reducing the Risk of a Damage Action After Mediation or Due Process

C. Reducing the Risks Associated with Due Process

I. Overview

The purpose of this material is to provide the special education administrator with a general understanding of the areas in which they will encounter work related risks. The goal of this material is to enable the administrator to readily identify risk and to equip her to respond appropriately. This material is not intended to substitute for legal counsel nor is it intended to provide an exhaustive statement of the law.

II. Reducing the Risk of Personal Injury Claims

By definition, special education involves provision of customized services to children with special needs. The Individuals with Disabilities Education Act [IDEA] provides detailed requirements for the provision of these services which, in their essence involve assumption of a duty of care on the part of a school district and its educators. The breadth of this duty is so expansive that there are a myriad of circumstances under which children may suffer from personal injury while in the care of a school district. One need only examine the reported cases to discern the breadth of a school official's duty to prevent personal injury.

Parents have been permitted to seek damages under the IDEA, the ADA, Section 1983, Section 504 and the Fourteenth Amendment on behalf of their child who died by strangulation on a school bus from an allegedly improper harness type constraint. The parents' theory was that the child should have been supervised during her twenty minute ride to her early intervention program and that she should have been properly restrained. See Susavage v. Bucks County Schools Intermediate Unit 22, 36 IDELR 32 (E.D. Pa. 2002). Districts have been sued by parents under Civil Rights statutes alleging that the district and its administrators engaged in a pattern of deliberate indifference to recurrent physical and verbal harassment of their son. See Ronald and Diane D. ex rel. Timothy D. v. Titusville Area School District, 35 IDELR 250 (W.D. Pa. 2001).

Recently, in the State of Michigan a Michigan court of appeals upheld a $3,000,000.00 jury award to an individual who alleged that the district negligently failed to install locking devices to secure her wheelchair during the school bus ride resulting in serious head injuries and a seizure condition when the wheelchair came loose. See Tuck v. Warren Consolidated Schools, 35 IDELR 184 (Mich. Court App. 2001).

A. The General Law Pertaining To Personal Injury

In order to understand how to reduce the risk to a school district one must first understand the general law with regard to the educator's duty of care as it pertains to preventing personal injury. Personal injury liability arises, in the first instance, from breach of a duty of care. In most cases, an individual's duty of care is defined as "that degree of care which a (reasonable careful) (ordinary prudent) person would use under the same or similar circumstances." See NH Standard Civil Jury Instruction 6.1 "Negligence Defined."

The breach of this duty to use reasonable care is usually identified as negligence. According to the standard civil jury instructions "negligence is the failure to use reasonable care . . . negligence may consist of either doing something that a (reasonably careful) (ordinarily prudent) person would not do under the same or similar circumstances or failing to do something that a (reasonably careful) (ordinary prudent) person would do under the same or similar circumstances."

Negligence can arise from the violation of a statute. Juries are frequently instructed that if they find that the defendant, by some act or failure to act violated the provisions of a statute setting a standard of care and if they find that the violation caused, or contributed to cause, the injury or damage suffered by the plaintiff this may amount to legal fault.

Common sense dictates that every person has a corresponding ability to use reasonable care to prevent injury to their own person. When dealing with children, there is a tendency to incorrectly impose adult duties of care on the child. According to the law, the standard of conduct required of children for their own protection and the protection of others is "that which it is reasonable to expect of children of like age, intelligence and experience under similar circumstances." See Standard Civil Jury Instruction 6.3 "Negligence of Children: General Rule." In many cases, children with special needs will not be considered responsible for their own safety.

There is a societal trend to conclude that all accidents and injuries must give rise to a claim for personal injury. However, juries are still cautioned by the judge that "the fact that there was an accident and injuries or damages does not necessarily mean that anyone is legally responsible."

In addition to a breach of duty, there must be "causation." Legal cause is defined as "a cause of damage, injury or loss which is a substantial factor in bringing about the injury."

Practice Pointer: The general formula for liability is as follows: Duty + Breach of Duty + Legal Cause + Injury = Liability.

An individual is generally not permitted to eternally sit on their legal rights without consequence. New Hampshire has a general statute of limitations which establishes a three-year limitation period for personal injury claims. See NH RSA 508:4. However, a limitation period does not even begin to run in cases of personal injury involving minors until such time that the child reaches the age of majority. NH RSA 508:8 provides that "An infant or mentally incompetent person may bring a personal action within two years after such disability is removed."

B. Your Personal Risk

An administrator is not automatically protected from civil liability for their actions. There are two key statutes that define when a school district will step forward and indemnify the administrator from liability.

1. Indemnification for Damages: NH RSA 31:105

A school district may by a vote of the governing body indemnify, and save harmless for loss or damage occurring after said vote, any person employed by it from personal financial loss and expense, including reasonable legal fees and costs, if any, arising out of any claim, damage, suit or judgment by reason of negligence or other act resulting in accidental injury to a person, or accidental damage to or destruction of property, if the indemnified person, at the time of the accident resulting in the injury, damage, or destruction, was acting in the scope of employment.

This statute is permissive in nature. It means that a school district does not have to indemnify an administrator. Most importantly, this statute does not extend to the following:

2. Indemnification for Civil Rights Suits: NH RSA 31:106

"All school districts shall indemnify and save harmless any person employed by it from personal financial loss and expense, including reasonable legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of any act or omission constituting a violation of the civil rights of an employee, teacher or student or any other person under federal law, if such act or omission was not committed with malice, and if the indemnified person at the time of such act or omission was acting within the scope of employment. In contrast to the general indemnification statute, this obligation is mandatory. However, it too is limited in scope. An educator will not be indemnified for an intentional malicious act, or an act that is outside the scope of the administrator's employment.

Special education administrators do run the risk of civil rights claims being asserted against them in their individual capacity. The case of Goleta Union Elementary School District v. Ordway, et al, 35 IDELR 245 (D.C. Ca. October 11, 2001) is instructive on this issue. A special education director was sued in her individual capacity for her role in a student's improper placement. The court found that a reasonable official could not have believed it was lawful under the IDEA to transfer a student to a different school without first conducting an investigation into whether the transfer was a proper placement. While the court concluded that the special education director was protected by the Eleventh Amendment from a claim against her in her official capacity, the plaintiffs were permitted to proceed against the special education services director in her individual capacity.

The special education services director asserted that she was entitled to the defense of qualified immunity on the basis that public officials who carry out executive or administrative functions are protected from personal monetary liability so long as their actions do not "violate clearly established Federal statutory or constitutional rights of which a reasonable person would have known." The court concluded that the student's right to an evaluation prior to change in placement was a clearly established right and that the special education director's decision to transfer the student to another placement without conducting the requisite IDEA evaluations is the type of conduct for which there should be no qualified immunity.

Practice Pointer: Administrators should consider purchasing personal liability insurance. If sued, administrators should formally request indemnification and a defense from their school board.

C. Liability for Medical Procedures

We know from the case of Cedar Rapids Community School v. Garret F., 526 US 66 (1999) that a school district is required to provide those non-physician medical services that may be required to assist a child with a disability to benefit from special education. Districts also have a duty under the IDEA to hire specially trained personnel to meet disabled student needs. Educators and classroom aides are sometimes placed in the position of administering a medical procedure to a student. Both the improper administration and the failure to administer medication have resulted in claims of liability.

1. The Duty in Administering Medications

A school is required to act as a reasonable school would in responding to the medical needs of the student. This duty of care does not make the school responsible for guaranteeing the health of its students or for assuming the role of a physician and diagnosing and treating its students. Individual educators may perhaps be held liable for knowingly disregarding their duty to administer a medical procedure. Schools may be held liable for failing to hire trained staff or failing to properly train staff.

Two recent cases are instructive on the scope of this duty and illustrate that liability theories can arise from both administering and failing to administer medical treatment.

a. Nance v. Matthews, 20 IDELR 3 (Ala. 1993)

A student with spina bifida allegedly sustained physical injuries and mental trauma when an aide failed to catheterize her -- a procedure which was necessary due to the student's recent bladder surgery. The aide had been hired by the school system to care for the student, and she allegedly failed to perform that duty after she was advised of the need to do so. The student's parents brought suit against the school principal, school nurse, special education director, and special education aide. The Court allowed the claim against the aide to proceed, but dismissed claims against the other employees alleging that they negligently or wantonly failed to supervise and train the aide. The Court ruled that those individuals were protected bydiscretionary function immunity from liability for negligent supervision and training of the aide, due to the fact that their supervisory and training responsibilities required constant decision-making. Moreover, they were protected by qualified immunity from liability for wanton misconduct, absent a showing of bad faith.

b. Frederico v. Order of Saint Benedict in Rhode Island, 23 IDELR 215 (1st Cir. 1995)

The medical attention required by a student with asthma, after he had an attack onset by a food allergy, was not as discernible as that required by the student in Nance -- making the determination of liability an even more complicated one. The student died as a result of the attack. At trial, the experts disagreed over whether administration of an epinephrine injection, which the school did not apply, would have saved the student's life. A jury returned a verdict in favor of the school. On appeal, the Court of Appeals for the First Circuit held that the jury had properly been instructed that the school was required to act as a reasonable school would in responding to the medical needs of students, but that the standard did not make the school responsible for guaranteeing the health of its students or for assuming the role of a physician in diagnosing and treating its students.

2. Steps Toward Risk Reduction

A district should have written policies in place which discuss the process whereby medical procedures will be administered to a student. The policies should comply with the provisions of Ed. 311.02.

Often, the better part of valor is to discern when the student requires specially trained care. In those "grey area" cases where a student may or may not require a one-on-one nurse the potential liability concerns, coupled with the student's quality of care, may warrant the additional cost of the nursing services.

3. Emergencies and the Good Samaritan Doctrine

The general procedures for administering medication should not be confused with the provision of emergency medical assistance. As a general rule, a district's liability risk is substantially lower in a situation where emergency medical procedures are indicated and there are no set procedures in place which may have been disregarded. For example, the provision of the types of medical procedures usually performed by a physician in an emergency context are less likely to give rise to liability. In fact, the failure to act in the emergency context is much more likely to give rise to liability then action, even if the action is not the perfect medical response.

NH RSA 508:12 provides that if any person in good faith renders emergency care at the place of the happening of an emergency or to a victim of a crime or delinquent act or while in an ambulance or rescue vehicle, to a person is in urgent need of care as a result of the emergency or crime or delinquent act, and if the acts of care are made in good faith and without willful or wanton negligence, the person who renders the care is not liable in civil damages for his acts or omissions in rendering the care, as long as he receives no direct compensation for the care from or on behalf of the person cared for. Any person rendering emergency care shall have the duty to place the injured person under the care of a physician, nurse or other person qualified to care for such a person as soon as possible and to obey the instructions of such qualified person. See NH RSA 508:12.

4. Volunteers in Your School

Volunteers working for a school district are also protected from civil liability. NH RSA 508:17 provides that "Any person who is a volunteer of a . . . government entity shall be immune from civil liability in any action brought on the basis of any act or omission resulting in damage or injury to any person if: (a) . . . the government entity has a record indicating that the person claiming to be a volunteer is a volunteer for such . . . entity;(b) the volunteer was acting in good faith and within the scope of his official functions and duties with the organization; and (c) the damage or injury was not caused by willful, wanton, or grossly negligent misconduct by the volunteer." ⁽¹⁾

Practice Pointer: Under the most recent iteration of NH RSA 189:13-a it is a prudent practice to conduct a background investigation and criminal records check on all volunteers.

D. Restraints and Student Discipline

1. The Duty

The improper use of restraint and the use of inappropriate disciplinary techniques may result in claims of liability on the part of the district's special education staff. The District has a duty to discipline with care and to ensure that the restraint practices used with a student are not disputed or controversial practices but rather generally accepted practices.

For example, in Ronnie Lee S. v. Mingo County Board of Education, 27 IDELR 202 (W.VA. 1997) a West Virginia Appeals Court ruled that a state law claim for damages arising from the alleged improper use of a restraining device on an autistic student could proceed forward despite the fact that the parties had entered into a written settlement agreement as to their administrative IDEA claims.

2. Steps Toward Reducing Risks

There are three fundamental steps to be taken by any district to reduce its risks in the area of passive restraint. They are as follows:

Similar steps should be taken with regard to disciplinary techniques. They are as follows:

E. Peer-on-Peer Harassment

There have been a number of cases alleging that districts had a duty to protect a student from injury and harassment by other students. Unfortunately, special needs children are sometimes identified by other students for harassment. The theory alleged by the aggrieved parents is that the educators assumed a duty to protect the student from injury by another student and that the educator knew or should have known that the offending student had a propensity for violent behavior and that knowing such, should have taken steps to protect the victim. Civil Rights statutes have been used to support allegations that the district and its administrators were indifferent to recurrent harassment.

1. The Duty in New Hampshire

The State of New Hampshire appears to have acknowledged a duty on the part of employees who have supervisory responsibility over students and who thus have stepped into the role of parental proxy. In the 1995 case of Marquay v. Eno, 139 NH 708 (1995) the court observed that "Those employees who share such a relationship with a student and who acquire actual knowledge of abuse, or who learn of facts which would lead a reasonable person to conclude that a student is being abused are subject to liability if their level of supervision is unreasonable and is a proximate cause of a student's injury."

Under this holding the court also stated that a school employee may be subject to liability for injuries that occurred off school premises, if the student can show that the employee's negligent acts or omissions proximately caused the injury to the student.

2. Reducing the Risk of Liability from Peer-on-Peer Harassment

The Pupil Safety and Violence Prevention Act of 2000 provides the key to reducing the risk of liability for pupil harassment. NH RSA 193-F:3 sets forth certain requirements. They are as follows:

A school employee who follows these guidelines who: reports violations of the district policy; or who intervenes by reporting harassment "shall be immune from any cause of action which may arise from the failure to remedy the reported incident."

Practice Pointer: Peer mediation is often a valuable tool to avoid the escalation of peer-on-peer harassment.

F. Teacher on Student Sexual Harassment

1. The Duty

It is apparent in New Hampshire that a school district has a duty to protect students from harm by teachers who sexually harass or sexually abuse students. In Marquay v. Eno, 139 NH 708 (1995) the New Hampshire Supreme Court indicated that schools share a special relationship with students entrusted to their care which imposes upon them certain reasonable duties of supervision. On the basis of that duty the court held certain supervisory employees liable for failing to prevent sexual abuse and harassment by an educator. The court held that the district employees would be held liable for negligent supervision if they could have reasonably foreseen that their conduct would result in an injury or if their conduct was unreasonable in light of what they could anticipate to be the conduct by the other employee.

2. Reducing the Risk of Sexual Abuse and Harassment

Title IX protects students from teacher-on-student sexual harassment. The United States Supreme Court has recently ruled that districts are not liable under Title IX for teacher-on-student sexual harassment unless an employee with supervisory or the offender actually knew of the abuse, had the power to end it, and failed to act. This recent decision in no way relieves an educator from liability from sexual harassment or sexual abuse. Districts can reduce their risk by maintaining the following:

G. Liability for Out-of-District Special Education Placements

1. The Duty

The IDEA makes it clear that a school district remains responsible for the compliance of a third party provider with a student's IEP. There is no effective way a district can fully shift that compliance duty to the third party provider. However, districts should exercise care when they enter into written contracts for service provision by out-of-district placements.

2. Reducing the Risk of Liability for Out-of-District Placement

When a district contemplates an out-of-district placement it should consider the following factors for either shifting or reducing risk:

In those cases involving questionable placements, particularly unilateral placements by the parent, it is important to consider adding language to any settlement agreement which involves an assumption of liability on the part of the parent for the placement.

III. Reducing the Risk of Claims of Retaliation

One of the increasing trends in the area of special education law is the parental complaint of retaliatory conduct on the part of a district. Parents are complaining that school personnel have taken adverse action against a student in response to the parent's decision to assert his or her rights under the IDEA or other laws affording rights to parents of disabled students. This concept has become known in the case law as "retaliation". The purpose of this section is to discuss how a school district can reduce its risk of claims of retaliatory conduct.

A. The Duty to Avoid Retaliatory Conduct

The Section 504 Regulations (found at 34 CFR 104.61) and the Americans with Disabilities Act incorporate by reference the procedural provisions contained in 34 CFR 100.7(e) of the Regulations implementing Title VI of the Civil Rights Act of 1964. These provisions prohibit recipients or other persons (including districts) from intimidating, threatening, coercing or discriminating against any individual for the purpose of interfering with any right or privilege secured by Section 504 and/or the ADA or because the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under Section 504 and/or the ADA or the Regulation.

B. Reducing Risk Through Implementation of the Five-Part Test

In resolving complaints of retaliation, OCR applies a five-part test. The five-part test consists of five questions designed to determine whether or not a district has engaged in retaliatory conduct. The five questions should constitute the framework for determining whether or not a proposed action by the district will be construed as retaliatory. The five questions you should consider are:

1. Has the parent/student engaged in a protected activity?

(initiated due process proceedings, filed suit in court, filed a complaint with OCR)

2. Is the district or its agents aware of the protected activity?

(how and when did district receive notice, is there a rumor or verified action)

3. Will the adverse action against the student occur at the same time as, or after, the parent/student engaged in the protected activity?

4. Will a neutral third-party decide there is a causal relationship or connection between the protected activity and the adverse action?

5. Can the district offer legitimate, nondiscriminatory reasons for the adverse action, which a neutral third-party will not consider to be pretextual?

C. Avoiding Allegations of Retaliation: Six Examples

1. Barring Parent Participation

In the case of Spencer County (KY) School District, December 31, 1998, 31 IDELR 38, the parent of home-schooled child, who was receiving some special reading and writing instruction at a district school, alleged that district retaliated against her for filing a complaint, by banning her from the school and refusing to let her volunteer in her son's class. The school principal had denied the parent's request to volunteer in her son's classroom, because he had received complaints from school staff regarding the parent's failure to adhere to student confidentiality rules. Under the five part test for retaliation, the hearing officer found no causal relationship existed between the principal's action and the filing of the complaint. The school had documented the complaints regarding the parent's conduct, so there was sufficient evidence to establish that the school's action was consistent with school's rules, and that the school acted for legitimate, non-discriminatory, non-pretextual reasons.

2. Using Confidential Information

In another recent case, Forest Grove (OR) School District 15, October 9, 1998, 31 IDELR 15, the parent of a child suffering from post-traumatic stress disorder claimed a district retaliated against her for insisting that teachers follow her daughter's Section 504 Plan. The parent claimed that a principal canceled a parent-requested meeting with teachers and that the superintendent used sensitive information about the student's hospitalization and emotional condition to intimidate the parent. The hearing officer determined that the district did not retaliate against the parent, because the principal had provided an acceptable reason for canceling the meeting, relating to the inability of all necessary parties to attend. Also, the superintendent testified that his reasons for questioning the parent about the student's hospitalization and recovery were not for the purpose of discouraging parent from pursuing the student's rights, or in retaliation against the parent. His actions were justified by his desire to see that school staff was informed sufficiently to provide the student the services she would need upon return to school.

3. Engaging in Student Discipline; Failing to Qualify the Student for Honor Roll

In Barker (New York) Central School District, April 24, 2001, 35 IDELR 253 the parent alleged that the student's discipline and her subsequent arrest were related to the parent's protected activity of filing a complaint with OCR. Additionally, the parent alleged that the district's determination that the student was not qualified for honor roll status was in retaliation to her complaint. OCR considered both of the allegations and rejected both allegations as unsubstantiated. First, OCR reviewed the District's policies and procedures and criteria for participation in its honor roll program. OCR found that while the student's academic record was good her failure to receive passing grades in physical education class disqualified her from the district's honor roll criteria. Based on that evidence OCR found that the district's determination that the student was not qualified for honor roll status was consistent with the district's stated policies and procedures. On that basis OCR concluded that the evidence was insufficient to support a finding of retaliation.

The student had also made complaints that she wanted three district personnel dead and warned that when she was gone the place was going to be "blown up." As a result, the student was arrested. The student also received an out-of-school suspension for five (5) days. OCR concluded that there was insufficient evidence to support the allegation that the student's discipline and her arrest were related to the complainant's engaging in the protected activity of filing a complaint with OCR. Instead, the district found the disciplinary episode to have been credibly accounted by the district and OCR concluded that the district's reason for disciplining the student was not a pre-text for discrimination.

4. Towing Student Vehicles

In a local case, Salem (NH) School District, April 16, 2001 35 IDELR 260 a parent alleged that the District failed to properly prepare and implement her son's IEP resulting in his failing grades and ultimate loss of the opportunity to play hockey. OCR rejected this allegation finding that the district followed its policies and procedures for evaluating the student and providing him with FAPE and further finding that the student did meet the age and attendance requirements for athletic eligibility. The parent also alleged that the student was harassed because his car was towed while illegally parked without a permit. The Office for Civil Rights found no evidence that the student's car was towed as a way to harass him based on his disability. The parent also alleged that the presence of a school resource officer at team meetings was intended to intimidate the student. OCR found that the school resource officer's occasional participation did not create a hostile environment based on the student's disability.

5. Engaging in Bus Suspensions

In Conecuh County (Al) School District, 35 IDELR 193 (OCR 2001) the parent alleged that the district discriminated against a student by suspending that student from the school bus for the first semester. OCR found that the student violated school bus rules by standing up, yelling out the bus window and using profanity toward the bus driver. OCR found that while the student had a learning disability in reading the IEP did not list bus transportation as a service to be provided in accord with the student's IEP. The conduct of the student was perceived by OCR to have been warranting punishment and that since riding the bus was considered a privilege by the district, OCR found there was insufficient evidence to support a finding that the district failed to adhere to the provisions of Section 504.

6. Reporting Abuse and Neglect

In Citrus County (Fl.) School District, 35 IDELR 192 (OCR 2001) a parent met with the superintendent of schools and requested an investigation as to why her child's IEP was not being followed. The district looked into the matter and assured the parent that her child's IEP was indeed being followed. Shortly thereafter certain personnel of the district became aware of facts which they considered to constitute abuse and neglect. On that basis, the personnel called a child services hotline and reported the conditions in the parent's home. The parent filed a complaint with OCR alleging that the abuse and neglect report was retaliatory in nature.

While OCR noted the close proximity between the parental complaint and the reporting of the abuse and neglect, OCR then concluded that the evidence was insufficient to show that the complainant was treated any differently after she engaged in the protected activity. OCR considered the reason why the parent was reported to the Division of Children Services and found that the teachers made their reports on the basis of what they observed in the parents' home. Of particular note was that none of the teachers were directed by district administrators to make their report. On that basis OCR determined the district provided legitimate non-discriminatory reasons for its actions and rejected the parents' complaint.

IV. Reducing the Risk of Disability-Based Harassment

A. The Duty to Prevent Disability-Based Harassment

Section 504 prohibits discrimination against individuals on the basis of disability. Federal Regulations, provide that "no qualified handicapped person shall, on the basis of handicap, be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives or benefits from federal financial assistance." See34 CFR Section 104.4.

B. Reducing Risk Through Application of the Two-Part Test

In determining whether a school district has subjected a student to discrimination-based harassment resulting in a hostile environment, the Office for Civil Rights determines the following:

According to the Office for Civil Rights a hostile environment exists when there is a disability based harassing conduct that:

In the case of San Juan (Ca.) Unified School District, 36 IDELR 135 (OCR 2001) provides some guidance as to measures a district can take to avoid claims to reduce its risk of disability-based harassment. In this particular case, the parent alleged that a teacher allowed other children in her son's special education classroom to ridicule and humiliate him. The district entered into a voluntary resolution agreement where it agreed to develop and distribute a policy prohibiting disability harassment and affirming the district's commitment to providing an educational environment free from disability discrimination including harassment. The district also agreed to provide training to administrators, teachers and staff which was designed to instruct employees to recognize, respond to and prevent disability harassment in the educational environment. The district further agreed to provide the Office for Civil Rights a plan to furnish age appropriate training to students in the school system concerning disability harassment as well as specific training for administrators, teachers and staff who are involved in the provision of services to students with disabilities which would include information to increase awareness of social and behavioral issues associated with specific disabilities.

This voluntary consent agreement in the San Juan case provides guidance as to how a district can reduce the risk of disability-based harassment. Special education administrators should consider the following:

V. Reducing Risks Associated With Mediation and Due Process

The purpose of this section is to briefly discuss the relationship between mediation, due process and the subsequent damage exposure which the district may or may not have from the underlying facts which triggered the mediation or due process.

A. The Relationship Between Mediation, Due Process and Subsequent Damage Claims

There is a doctrine known as the "Doctrine of Exhaustion" which requires that an individual exhaust their administrative remedy before they proceed forward to the courts. Until recently, it was unclear in the First Circuit whether or not a parent could bring a civil rights action under Section 1983 seeking damages without having satisfied their statutory obligation to first seek administrative due process.

In the recent case of Frazier v. Fairhaven School Committee, 35 IDELR 271 (1^st Cir. 2002) the First Circuit Court of Appeals addressed this issue concluding that a parent may not sue for money damages under Section 1983 without first exhausting the administrative process of the IDEA.

The court opined in Frazier that allowing parents to bypass the administrative procedures would subverge "the overall scheme that Congress envisioned for dealing with educational disabilities." The court concluded that the IDEA fits comfortably into the general rationale that underlies the exhaustion requirement. The court observed that exhaustion of the administrative remedy makes sense because exhaustion "enables the [educational] agency to develop a factual record, to apply its expertise to the problem, to exercise its discretion, and to correct its own mistakes, and is credited with promoting accuracy, efficiency, agency autonomy, and judicial economy." Frazier, 35 IDELR 271 at p. 1114.

The upshot of the Frazier decision is that parents who wish to assert damage claims against a district which pertain to a student's IDEA rights or Section 504 rights, must first exhaust their administrative remedy.

B. Reducing the Risk of A Damage Action After Mediation or Due Process

With Frazier in mind the district must be mindful that settling a due process claim, whether through mediation or through the more informal process of settlement negotiations, represents the best tool to reduce the risk of a subsequent damage claim. In that regard, districts and practitioners should be mindful of the need to include broad release language in the context of either a mediated settlement agreement or a written compromise agreement when there is a risk or exposure to damages.

C. Reducing the Risks Associated with Due Process

One of the most significant decisions a special education administrator will make is whether or not to take a matter to a due process hearing. In considering whether or not to do such, the decision maker should ask the following:

A number of subcomponents play into a cost benefit analysis. A significant component which is often overlooked is the simple question of whether or not the due process hearing represents a stepping stone to a subsequent damage claim, or in the alternative, is limited in scope to educational issues. It is vital that the special education administrator identify those cases which may be the precursor to a damage claim. In such cases, the special administrator should promptly notify their liability insurer and risk manager.

Notes