“You keep using that word. I do not think it means what you think it means….”

So said Inigo Montoya in The Princess Bride. The word he referred to was “inconceivable.”  But today we focus on the word “intentional,” particularly when it modifies the word “discrimination.”  The courts keep using that word.   I do not think it means what many people think it means.  Many smart, well educated people.  Many Daily Dawg readers.

When I hear the phrase “intentional discrimination” I think that surely it refers to a deliberate intent to treat someone badly based on race, or sex, or religion, or disability.  I think of those people who spout ugly insults at others based on those factors.  I think of racial slurs and sexist remarks and anti-Semitic statements. There are people who hate other people based on the person’s race, or sex, or religion. Two weeks ago I visited the Baptist Church in Birmingham, Alabama where members of the KKK set off a bomb that killed four little girls in 1963.  Not too long ago someone shot up a synagogue, murdering a number of people because they were Jewish. Now those are examples of intentional discrimination.  You might use words like “hateful” or “malicious.”

But when the courts label something as “intentional discrimination” it might be far less shocking than these examples.  Consider how a federal judge interpreted an affidavit filed by a teacher in a lawsuit accusing the teacher of intentional discrimination based on disability, in this case, an eating disorder:

[The teacher] did not ask C.C.’s parents for permission to interview and photograph C.C.  [The teacher’s] affidavit demonstrates that she (1) was aware of C.C.’s disability and the accommodations requiring C.C. to be excused from any assignment or activity involving diet, nutrition, fitness, or body image, and to discourage any discussion of such issues, and that [the teacher] would not discuss these issues with C.C.; and (2) nevertheless asked C.C.

if she was willing to be interviewed and photographed for a story about eating disorders in the school yearbook.

The Court finds that this evidence creates a fact issue as to whether [the teacher] intentionally discriminated against C.C. because of her disability by knowingly denying C.C. accommodations.  (Emphasis added).

So it does not require hateful words or malicious intent.  Knowing that a student requires certain accommodations and intentionally not providing them can be enough to amount to “intentional discrimination.” That’s why this case is still alive.  Round Rock ISD has tried to get the case dismissed, but the court has rejected that effort because of this lingering fact issue.

This is something that 504 coordinators should emphasize in staff training.  Have you ever heard a  teacher blow off a student’s need for accommodations?   Have you ever heard a teacher express a decision not to implement accommodations that are a part of a student’s 504 plan?  These teachers are not hateful or malicious. It’s not that they bear some ill will toward students with disabilities.  They often honestly believe that the student does not need the accommodations that are in the plan.  They may even be right about that.  None of that matters.  As this case illustrates, knowing what the 504 plan calls for, and deciding not to do it is “intentional discrimination” which can create legal liability for the district.

The case is S.C. v. Round Rock ISD. The latest ruling in this ongoing case was issued by the federal court for the Western District of Texas on January 19, 2021.  It’s on Special Ed Connection at 78 IDELR 40.


Tomorrow: how dad blocked the process…