T.F. v. Fox Chapel Area Sch. Dist., No. 12-01666 (W.D. Pa. Nov. 5, 2013)
Abstract: A federal district court in Pennsylvania has ruled that a school district did not discriminate against a student with a severe tree nut allergy in violation of § 504 of the Rehabilitation Act. The court found that the school district had offered reasonable accommodations and was not deliberately indifferent to the parents’ claims of peer harassment. It also concluded that the school district had not retaliated against the student’s parents when they filed a truancy petition after the parents withdrew the student from school.
Facts/Issues: T.F. attended kindergarten at Fairview Elementary School (FES) in the Fox Chapel Area School District (FCASD) from August 2010 to December 2010. He suffers from a severe tree nut allergy, which is a recognized disability under § 504. FCASD had adopted a food allergies policy in May 2010, but T.F.’s parents did not learn of it until the administrative hearing in the case commenced.
In May 2010, T.F.’s parents expressed interest in enrolling T.F. at FES and requested a meeting to establish a § 504 plan. The meeting took place in June 2010, during which FCASD proposed the following accommodations: 1) T.F. would not be given any food while at FCASD unless provided by his parents; 2) FCASD would provide an emergency care plan to teachers, cafeteria staff, and custodial staff; 3) a nurse or parent designee would go on T.F.’s field trips; and 4) in case of medical emergency, FCASD was to call (a) 911; (b) Andrew J. MacGinnitie (T.F.’s physician), and (c) T.F.’s parents.
In August 2010, the parents formally rejected FCASD’s proposed service plan. T.F.’s doctor sent a letter recommending that T.F. sit at a nut free table due to his allergies. At a second meeting in August, T.F.’s parents proposed that T.F. not be required to sit alone in the cafeteria. FCASD declined to incorporate the parents’ requested accommodation on three grounds: 1) “part of the routine things that happen in the building at school” [sic]; 2) the 504 Plan only addressed issues that were done differently for T.F. than for other students covered by the district’s food allergies policy; and 3) FCASD wanted the 504 Plan to be understandable and not too long.
The school’s proposed 504 plan was amended several times and ultimately included the following additional accommodations: 1) during lunchtime, T.F. would be seated at “tree nut free” table which was, in fact, a student desk; 2) a treat box would be provided by the parents to T.F. on occasions such as classroom parties and birthdays; 3) Fox Chapel would provide and T.F. would be permitted to purchase a tree nut free lunch, in a sealed wrapper; 4) T.F.’s teacher would keep a tree nut-free snack to provide T.F. when other students were receiving snacks; 5) a staff directive would be issued to follow a food allergy plan, including the use of an EpiPen in case of severe reactions; and 6) T.F.’s cafeteria table (separate student desk) would be cleaned with a cleaner that removes food allergens.
T.F.’s treating physician then requested that T.F. be seated at a rectangular table, on the end cap with a two foot buffer from his fellow students seated at the same table, and that the others at the table also maintain a nut-free lunch. That accommodation was denied because school officials believed the current seating arrangement was appropriate.
The parents also claimed that T.F. was teased and bullied as a result of eating alone, that he experienced anxiety as a result of the seating arrangement, that the school unlawfully disclosed his condition to parents, that T.F. suffered allergic reactions from being exposed to nuts at school, that the school nurse communicated with T.F.’s doctor without parental permission, that the school did not respond to repeated requests for information on the school’s Food Allergy Policy, and that substitute teachers were not trained on the plan.
On November 12, 2010, the parents informed the principal that they were withdrawing T.F. from Fox Chapel. Fox Chapel filed a citation for truancy against the parents on November 18, 2010. The district did not pursue the citation after five scheduled hearings were continued. FCASD withdrew the citation in April 2011.
In December 2010, the parents enrolled T.F. in a cyber-charter school for the remainder of the 2010-11 school year. He was enrolled in a private school for the 2011-12 school year where he remains enrolled. In February 2012, the parents filed a due process complaint on T.F.’s behalf, seeking compensatory damages. The hearing officer (HO) found FCASD had met all FAPE obligations to T.F. under § 504. The HO further found, however, that FCASD had retaliated against T.F. in maintaining the truancy proceedings. Both the parents and FCASD appealed that portion of the HO’s decision that was adverse to them.
Ruling/Rationale: The district court upheld the HO’s determination that FCASD did not violate § 504 and had provided T.F. with a FAPE at all times. It also reversed the HO’s ruling that the school district had retaliated against T.F. by maintaining the truancy complaint.
In order to prevail on a section 504 claim a plaintiff must prove 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 otherwise subject to discrimination because of his disability. Only the third element was in issue.
T.F. was seeking compensatory damages, and as a result the court found that he must prove that the discrimination was the result of FCASD’s deliberate indifference. Under that standard, the court stated T.F. must prove that: 1) FCASD knew that a federally protected right was substantially likely to be violated and 2) FCASD failed to act despite that knowledge. Although plaintiffs are not required to show ill will or personal animus, they must show “deliberate choice, rather than negligence or bureaucratic inaction.”
The court rejected T.F.’s factual allegations on which he based his claim of deliberate indifference. It found that the facts, as cited by T.F., not only did not demonstrate deliberate indifference, but “demonstrate quite the opposite.” The court concluded that FCASD took “reasonable steps to accommodate [T.F.’s] disabilities and include [him] in all class activities; it was not required to grant the specific accommodations requested by Parents or otherwise make substantial modifications to the programs that were used for all other students.”
The court determined that at best the facts as presented by T.F. proved “no more than arguably mere negligence on the part of [FCASD].” It stated: “The evidence as a whole demonstrates that Fox Chapel considered Plaintiffs’ concerns in formulating plans along with all of the professionals involved (T.F.’s physician, school nurse, guidance counselor, principal etc.).” It determined that even the lunch room desk situation, which T.F. made a linchpin of his discrimination claim, fell “far short of establishing deliberate indifference to T.F.’s needs.”
The court stated that for T.F. to succeed on his peer harassment claim he must prove that: 1) he was harassed on the basis of his disability; 2) the alleged harassment was so severe, pervasive and objectively offensive that it altered the condition of his education; 3) the school district had actual notice about the disability-based harassment; and 4) the school district was deliberately indifferent to the harassment. The court concluded that “any teasing T.F. experienced did not rise to the level of severe, pervasive or objectively offensive to the point that it altered the condition of his education; nor could Plaintiffs succeed in showing that Fox Chapel was deliberately indifferent to the alleged harassment.”
The record appeared to show that some of the school’s actions and treatment of the parents were less than ideal. The court emphasized that mere negligence was insufficient when the cause of action required a showing of deliberate indifference:
In sum, this Court’s role is not to determine whether Fox Chapel could have endeavored in some way to address Plaintiffs’ concerns in a more orderly or reasoned way, but only to determine if Plaintiffs have presented sufficient evidence to demonstrate Fox Chapel’s deliberate indifference. When the totality of Fox Chapel’s conduct is reviewed, accepting the deficiencies alleged by Plaintiffs, Plaintiffs have failed to establish a violation of any federally protected right or that Fox Chapel exhibited any deliberate indifference towards them because of T.F.’s disability.
The court also rejected the parents’ retaliation claim, reversing the Hearing Officer. It stated that in order to prove a retaliation claim under § 504, T.F. must show that: “(i) [he] was engaged in protected activity; (ii) the alleged retaliator knew the plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.” The plaintiffs satisfied the first three elements, but the question of causation was disputed, as was the appropriate standard for determining causation. The plaintiffs argued for an “in part” standard and the defendants argued for a “but for” standard.
The court agreed with FCASD that the but-for test should applied, relying on Third Circuit case law and the Supreme Court’s recent decision in University of Texas Southern Medical Center v. Nassar, ___U.S.___, 133 S.Ct. 2517, 2525 (June 24, 2013)(holding that but-for causation is the standard for Title VII retaliation claims). Under that standard, T.F. “must demonstrate that the desire to retaliate was the “but for” cause of the filing and continuation of the truancy proceedings.” The court concluded that T.F. had failed to show “a causal connection between any of the alleged protected activities and [FCASD’s] requests to indefinitely continue the truancy proceedings.” The court rejected T.F.’s allegations that FCASD “subject[ed] the family to multiple truancy proceedings,” finding that the continuances occurred because both parties agreed that the complaint be indefinitely continued.
T.F. v. Fox Chapel Area Sch. Dist., No. 12-01666 (W.D. Pa. Nov. 5, 2013)
[Editor's Note: In November 2012, Legal Clips summarized an article in the Pittsburgh Post-Gazette reporting on the filing of this suit.]