Principals: if you hear something like that from a teacher or teacher aide, you might want to take swift corrective action. I expect you don’t need a lawyer to tell you that, but it takes on added legal significance due to a recent federal court case from New Hampshire. The court held that the district may face liability for the discriminatory actions of a paraprofessional, even when there is no evidence that the principal, the superintendent or anyone else in authority knew about it. The case is in its early stages, but the court held that there were enough plausible allegations to allow the case to proceed. Videotapes showed the paraprofessional pulling on the ear of a student with a disability. Moreover, there were allegations that this was not an isolated incident. And then there was the statement from the paraprofessional to the special services director that “she thought school district policy permitted ear grabbing and hair pulling as methods of keeping [the student] seated during lessons.”
The student had autism and other disabilities and his IEP called for a one-to-one aide. It was the student’s personal aide who was caught on video grabbing the student by the ear. When the district found out about this it put the aide on administrative leave and she promptly resigned.
But the lawsuit was brought against the school district, alleging that the district was guilty of discrimination based on disability. Of course the district launched the “but we didn’t know defense” which is usually successful. However, the court noted that several Circuit Courts have held that a governmental employer, like a school district, can be “vicariously liable” for acts of intentional discrimination committed by its employees, whether the higher ups knew about it or not.
Vicarious liability is a common concept in the private sector. It also goes by the name of “respondeat superior,” which is Latin roughly translated as “let the boss pay for this mess.” So if a UPS driver negligently runs into my car this afternoon, I can hold UPS liable—not just the driver of the UPS truck.
As a general rule, governmental employers are not held “vicariously liable.” The doctrine of “respondeat superior” does not apply, and so they are not held responsible for the actions of their employees. But as this case illustrates, there is an exception to this general rule with regard to disability discrimination claims under the Americans with Disabilities Act.
The New Hampshire court cited cases from the 4th, 5th, 7th and 11th Circuits that have held that the ADA permits vicarious liability. The 5th Circuit case is the most important for us. It is Delano-Pyle v. Victoria County, 302 F.3d 567 (2002). But stay tuned. The issue of vicarious liability under the ADA is now pending before the 5th Circuit again in a case involving a school district. Watch the Daily Dawg for a report on the decision in that case when we get it. In the meantime, don’t let teacher aides or anybody else, think that it’s OK to grab kids by the ear or pull their hair.
The New Hampshire case is Fortin v. Hollis School District, decided by the federal court in New Hampshire on September 18, 2017. We found it at 70 IDELR 196.
DAWG BONE: WE HAVE YET TO FIND A DISTRICT POLICY THAT PERMITS HAIR PULLING OR EAR GRABBING.
Tomorrow: Almost spring break!!