Special Education Case Law Update – Week of November 11, 2012
Braswell v. Board of Education of Prince George County, 2012 U.S. Dist LEXIS 163418 (D. Md. Nov. 13, 2012).
Plaintiff was a seventeen year old special education student diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), a recognized disability under Section 504 of the Rehabilitation Act of 1973. This student, and others, participated in gambling at the high school they attended. Addictive behavior, such as gambling, can be considered a manifestation of ADHD.
In October 2010, the student reported to his special education teacher that the school’s security guard was exhorting money from him by threatening to get the student suspended for his gambling activities. The special education teacher relayed this complaint to the assistant principal and was later reprimanded by the Principal for making the report. Shortly afterwards, the special education teacher, notwithstanding his 16-year spotless disciplinary record, was terminated.
In November 2010, Plaintiff was expelled from school by the Principal despite the Principal having only the power to suspend students for five days or less. The school district did not convene a meeting to determine whether the student’s gambling was a manifestation of his ADHD.
The student brought a claim under Section 504 of the Rehabilitation Act for unlawful retaliation, and the school district moved to dismiss the claim. To establish a violation of Section 504 in the Fourth Circuit, the student was required to show that he was an individual with a disability, and was denied participation in, or the benefits of, a program receiving Federal funds due to discrimination solely on the basis of his disability.
The Court held that the student had failed to establish a prima facie claim of retaliation in his Complaint. The student alleged that the report to his special education teacher regarding the claimed extortion was a protect activity under Section 504, but failed to allege that that this report was based in a concern that the security guard was exploiting or otherwise discriminating against him because of the student’s disability. Second, the Court found that even presuming making the report was a Section 504 protected activity, the student failed to allege a causal connection between the report and his expulsion from school. Notwithstanding the student’s failure to plead a claim under Section 504, the Court allowed Plaintiff 10 days to amend his Complaint to address these deficiencies.