Court ruling in Riverside case assists in advocacy for special-needs students

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Court ruling in Riverside case assists in advocacy for special-needs students
By RICHARD K. DE ATLEY
The Press-Enterprise
A recent court decision in a Riverside County case says special-education teachers have the same standing to sue a school district as the special-needs students they serve.
The ruling is reminiscent of the access to courts that civil rights workers gained during the 1960s -- the right to take action on behalf of others, even if the workers themselves were not targets of discrimination, one attorney said.
The ruling by the 9th U.S. Circuit Court of Appeals stemmed from a lawsuit filed by former Riverside County Office of Education special-education teacher Susan Lee Barker.
Barker, along with a co-worker, had complained to the U.S. Department of Education's Office of Civil Rights about alleged noncompliance by the district in meeting the needs of special-education students.
Barker claimed the district pressured her out of her job for making the complaints. She sued.
Her federal court lawsuit was tossed in lower court because a judge said the protections for special-education students did not extend to a nondisabled person advocating for them. But that ruling was reversed in October.
If it stands, the decision puts a powerful tool in the hands of educators.
"I think this will change the dynamic in schools," said Stanley Swartz, a special education professor at Cal State San Bernardino. "Most any teacher will be able to say 'I don't agree with this,' and the school district will have to be careful about how to handle that."
"It's similar to the Civil Rights Act," Barker's attorney, Janice S. Cleveland, of Riverside, said. "There is a retaliatory provision in it that says if you advocate because someone is discriminating against someone of color, you can sue in your own right. It ties her actions, her protected speech, to discrimination against the students."
The immediate effect of the decision lets Barker, 58, resume her federal court lawsuit against the office of education. Barker worked for the district from 2002 until 2006.
The 9th Circuit ruling has been sent to the lower court, and a hearing has been set for Feb. 8, Cleveland said.
Neither the Riverside County Office of Education nor its attorneys would comment on the Barker case. It involves ongoing litigation and a personnel matter, said education office spokesman Rick Peoples.
Office monitored
The office remains under monitor by the Office of Civil Rights based on complaints filed over its handling of its special-education students. The current oversight plan started in 2007.
The office oversees special-education needs for students, including students at juvenile detention facilities.
Barker, a former Alternative Education Program teacher, and a co-worker had filed a 2005 class-action complaint about the district's special-education program.
The complaint was filed on behalf of hundreds of students.
Among the allegations were that records were not reviewed for youths sent to juvenile detention schools. That resulted in special-education students being placed in those facilities' general student population.
Barker said she also was asked to change documents to lower the level of special-education students' needs -- a task she eventually refused to do.
Barker's case
In her federal court lawsuit over losing her job, Barker said after district officials learned about the complaint, they refused to respond to her e-mails and phone calls and excluded her from staff meetings.
"I had been having a lot of health issues," she said in a recent telephone interview. "You can't imagine the level of stress. You can't, unless you have been a whistleblower or done this kind of thing and then continue working every day. ... My doctor took me off work a month before I was done there."
But the retaliation issue in her lawsuit was not addressed.
Instead, a judge ruled Barker had no standing to sue because she was not a disabled person herself and therefore not protected by the Rehabilitation Act of 1973 and the Americans With Disabilities Act.
The three-judge 9th Circuit panel set that distinction aside.
"We find the anti-retaliation provision of (the Rehabilitation Act of 1973) grants standing to non-disabled people who are retaliated against for attempting to protect the rights of the disabled," the judges said. The panel also found the same protection under the Americans With Disabilities Act.
A lawyer for the National School Boards Association said most issues between teachers and school districts over special education will still likely be resolved before they go to court.
"At the end of the day, most employees don't want to sue their employers," senior staff attorney Lisa Soronen said.
Special education
Barker now is a special-education teacher in the San Francisco Bay Area. She left the state for a few years of lower-pay work in North Carolina and Virginia.
She said she took a $27,000 pay cut to work as a contract teacher in North Carolina. "I didn't feel I would be able to find a job in California" because of her activism, she said, but she eventually made her way back.
One education professional familiar with Inland school districts said she found it "ironic" that the Barker case involved the Riverside County Office of Education.
Jan Blacher is a professor of education at UC Riverside whose research includes long-term studies of families of children with severe handicaps. She characterized the district overall as "collaborative."
"There are a lot of unnamed school districts that could be called to task every day over this sort of thing, but Riverside County Office of Education is not one of them," she said.
But the Office of Civil Rights concluded that the "preponderance of evidence" showed the Riverside County Office of Education retaliated against Barker for filing a complaint.
Barker said she believes things have improved at the district since then.
"Most of the people involved with this on the administrative level are no longer there," she said.
Right to Sue
Blacher declined to comment on the specifics of the Barker case because she was not familiar with them.
But she said she has seen a few cases where the teacher's legal standing to sue might have made a difference.
"If more money was spent on serving children and less on attorneys for one side or the other, I think everyone would be better off," she said.
Barker said she has no regrets.
"When they reversed the decision, to me that made up for a great deal of what happened," Barker said. "I gave up four years of my life for this, and I am not sorry I did. I will never be sorry I did."
Legal Timeline
Susan Lee Barker's legal battle that resulted in a key 9th U.S. Circuit Court of Appeals decision stemmed from her complaints over how the Riverside County Office of Education handled special-education students:
May 2002: Susan Lee Barker is hired at the Riverside County Office of Education as an itinerant Resource Specialist Program teacher for the district's Alternative Education Program.
2003: Barker begins complaining to supervisors that she believes disabled-student services in the district are noncompliant with state and federal laws.
May 2005: Barker and a co-worker file a federal class-action discrimination complaint for hundreds of students with the U.S. Department of Education's Office of Civil Rights.
June 2005: Barker claims supervisors in the district begin taking retaliatory action against her for filing the complaint.
July 2005: Barker files another complaint with the U.S. Department of Education's Office of Civil Rights. This time she outlines the alleged retaliation against her and a co-worker by the district. The co-worker later settles.
June 2006: The Office of Civil Rights concludes "the preponderance of the evidence" showed the district had retaliated against Barker.
August 2006: Barker leaves the district, claiming she was "constructively fired" -- forced out of her job.
March 2007: Barker files a federal court lawsuit against the district.
August 2007: A judge says Barker has no standing to sue.
October 2009: The 9th U.S. Circuit Court of Appeals reverses the lower court ruling and returns the case.
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