People often come to us to sue a school not only for educational accommodations but also administrators as well, often for money or in the hopes that an administrator can be removed from his job.  Much as a school district can dislike a parent or child (or conversely, take a liking to a parent or child), parents can also take a dislike to an administrator, particularly where they feel they or their child have been unfairly targeted.  It is not a simple matter to sue an administrator.  Indeed, it is often not allowed.  Rarely is it wise.

Cases where a child is being abused, bullied or neglected by school personnel, however, are the exception.  Sometimes there is no other alternative than to sue the individual who is responsible for the problem, as well as those in supervisory positions who have allowed it to go on.

In regards to schools, nothing shows the true quality of a district better than how it treats its disabled students.  If the district allows an administrator or staffer to get away with poor conduct, what message does that send to the other children and the community?

However, parents have to be mindful that administrators, teachers or staff usually have protection in using their judgment in performing the duties of their job unless their conduct is clearly outside the scope of the position.  District staff also have protection from lawsuits unless they violate a clearly established right held by the victim under the United States constitution or federal law.  This concept, which protects school personnel from being sued for making everyday decisions, is called qualified immunity and stems from a United States Supreme Court case called Harlow v. Fitzgerald, 457 U.S. 800 (1982).  This case involved two aides to President Nixon who violated the constitutional rights of Fitzgerald, whom they conspired to have fired from the Air Force.  The Supreme Court held that qualified immunity can be "pierced", and the officials held responsible when there is a clearly established right and a governmental official ignored it.

So what does this concept, which sounds like a rule from an obscure sport, mean in the context of special education or education law?

In the case Preschooler v. Clark County School Board of Trustees, 479 F.3d 1175 (9th Cir. 2007), the highest federal court in the area held that the teacher in that case violated a clearly established known right where the teacher forced a four-year-old child to beat himself and violently threw him, particularly since the child was disabled.  Even for general education students, the right to be free from abuse was clear to the court.

And in regards to the Individuals with Disabilities Education Act (IDEA), a school district official cannot claim qualified immunity where the official did not do their job, i.e. in the case of C.T. v. Vacaville, where the student was given an IEP but officials did not respond to inquiries regarding assessments, services or Committee on Special Education (CSE) meetings that should have been held to address the student's IEP.  The California Department of Education (CDE) likewise did not respond to complaints filed.  The federal district court held that the both the official, Donahue, and the CDE did not have immunity, as IDEA is a federal statute which vests rights in children with disabilities.  Further, CDE was a recipient of federal funds.  (Although these are both California cases they are a good example of how courts hold individuals responsible for bad acts, where they knew they were violating

 


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