In T.F. v. Fox Chapel Area School District, No. 12-01666 (W.D. Pa Nov. 5, 2013), the United States District Court for the Western District of Pennsylvania has ruled that a school district did not discriminate against a student with a severe tree nut allergy in violation of Section 504 of the Rehabilitation Act.
Although the school district’s explanation for seating the student alone at a desk in a cafeteria was “less than ideal”, the Court concluded that the school district offered reasonable accommodations and was not deliberately indifferent to the parents’ claims of peer harassment. The Court also concluded that the school district had not retaliated against the student’s parents when it filed a truancy petition and sought an indefinite continuance from the magistrate.
The Facts of the Case
T.F. attended Kindergarten in the school district from August 2010 until December 2010. He suffered from a severe tree nut allergy and asthma. In the spring prior to T.F.’s start of school, his parents requested a meeting to establish a 504 Plan. Between June 7, 2010 and September 8, 2010, four Section 504 meetings occurred and the school district offered four Section 504 plans, all of which were rejected by the parents. The school district had made numerous revisions to the Section 504 Plans after consulting with Parents and T.F.’s treating physician. The final proposed Section 504 plan included the following accommodations: only food provided by parents would be given to T.F.; an emergency care plan; a nurse or parent designee would attend T.F.’s field trips; in an emergency, the school nurse would contact T.F.’s physician and parents; T.F. would be seated at a tree nut free table at lunch; parents would provide a treat box to T.F. for classroom parties; the school would provide and T.F. permitted to buy a tree nut free lunch in the cafeteria; T.F.’s teacher would keep a tree nut free snack to provide T.F. when other students were receiving snacks; a directive to follow a food allergy plan including the use of an epipen if necessary; and T.F.’s lunch table would be cleaned with a cleaner that removes allergens.
The principal sent a letter to T.F.’s classmates informing them that an unnamed student had a severe tree nut allergy and requested that parents take steps to reduce the risk of contamination in the classroom. In addition, the nurse used materials from the Food Allergy Anaphylaxic Network in training staff. The final proposed Section 504 Plan ultimately incorporated nearly all of the parents’ requested accommodations, with the exception of the lunch room desk plan. The school district seated the student at a nut free table which was, in fact, a student desk. Parents asked the district to place T.F. at a rectangular table with peers who had safe lunches with a small buffer between himself and the other students. The school district’s response was the school’s tables were round and that it didn’t have appropriate chairs for rectangular tables. Parents objected to the district’s 504 plans in part because they believed that seating the student at a student desk during lunch socially isolated him, caused him anxiety, and caused other students to tease and bully him.
On November 12, 2010, parents informed the principal that they were withdrawing T.F. from school based on the lunchroom seating and bullying. When, after 11 unexcused days and no response from parents to the school district’s offer to meet to rectify the situation, the district filed a citation for truancy. After five scheduled truancy hearings were continued, the district withdrew the citation at the end of the school year. The parents filed a due process complaint alleging disability discrimination under Section 504 of the Rehabilitation Act and retaliation claims. The hearing officer found that the District did not violate Section 504 and had provided the student with FAPE at all times. However, the hearing officer found in favor of the parents’ claims of retaliation. Both the parents and the school district appealed.
The Ruling
To prevail on a claim under Section 504 in a public school context, a plaintiff must show that he (1) has a disability; (2) was otherwise qualified to participate in a school program; and (3) was denied the benefits of the program or was subject to discrimination because of his disability. Where, as in the T.F. case, plaintiffs seek compensatory money damages under Section 504, plaintiffs must show discrimination rising to the level of “deliberate indifference.” To establish “deliberate indifference”, plaintiffs must prove that the school district (1) knew a federally protected right was substantially likely to be violated; and (2) failed to act despite that knowledge. Here, the parents pointed to several alleged failures by the district in support of their deliberate indifference claim including its failure to provide an appropriate Section 504 plan to T.F.; failure to change T.F.’s lunchtime seating arrangement; failure to address T.F.’s disability based peer harassment and instituting truancy proceedings in response to parents’ ongoing advocacy for discrimination. However, the court found that the facts not only did not demonstrate deliberate indifference, but demonstrated “quite the opposite”. The court found that that the school district took steps to reasonably accommodate the student’s disabilities. It was not required to grant the specific accommodations requested by the parents or to make substantial modifications to the programs that were used for all other students.
The court also found insufficient evidence that any teasing the student endured was severe enough to implicate Section 504. To establish peer-to-peer harassment, plaintiffs must show (1) the victim was harassed based on his disability; (2) the harassment was so severe, pervasive and objectively offensive that it altered the condition of his education; (3) the school district had actual notice of the harassment; and (4) the school district was deliberately indifferent to the harassment. One student admitted teasing T.F. on an occasion and was disciplined. With the exception of this incident, parents were unable to provide the school’s principal with concrete situations, examples or names of students who were bullying T.F. Consequently, the Court concluded that parents failed to establish peer-to-peer harassment and that the school district was deliberately indifferent.
The court also rejected parents’ retaliation claims. The Court ruled that the parents must demonstrate that the desire to retaliate was the “but for” cause of filing the truancy proceedings (relying on University of Texas Southern Medical Center v. Nassar , applying “but for” to Title VII retaliation claims). In fact, the school district requested that the magistrate indefinitely continue the hearings. The school district neither knew whether the magistrate notified parents nor was the school district responsible for the magistrate’s scheduling actions. The school district was required by law to file the truancy citation and this action was not based on T.F.’s disability, but rather was standard practice when a student stops attending school.
The court concluded that parents failed to show “a causal connection between any of the alleged protected activities and the District’s requests to indefinitely continue the truancy proceedings”.
The Bottom Line
This decision provides some clarification on the interpretation of the deliberate indifference standard of Section 504. Section 504 does not mandate substantial changes to the school’s program and the courts must be mindful of the need to strike a balance between the rights of the student and the parents and the legitimate financial and administrative concerns of the school district.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
