Independent Living Institute www.independentliving.org


Flagpole Mom Still Flying High

by Reed Martin, J.D.


We often mention people who stand up for our rights, but we just visited a woman who is sitting down for the rights of her child. And the national attention it is creating could affect all of us...

When a very tired Rosa Parks refused to give up her seat on a bus in Montgomery, Alabama it changed an entire nation's commitment to civil rights. Deanna Lesneski is refusing to give up her seat, which is "chained" to a flagpole in front of Blaine Buffalo Elementary School (McGuffey School District) near Pittsburgh.

We have provided links on our site to the daily newspaper coverage of her vigil, and on Friday we visited her personally. Deanna had taken a number of advocacy steps to secure her son's rights, clearly outlining the rather simple services that would make such a huge difference to him in school. She felt she had gotten a commitment from the school, but when it was breached she went through the complaint procedure thoroughly. But the local school district and state education agency ignored the law and ignored her complaints. Her son is being injured by the school, so she chained herself to the flagpole. School officials told her to quit the protest. Then school officials promised her what she was asking for, which was a related service clearly required by the IDEA, Section 504 and the Americans with Disabilities Act (and then they pulled the plug on it after one day). So the "pole lady", as she says most people call her, is still on duty.

The school now threatens to get an injunction, have her arrested, and cart her away. Wouldn't it be interesting if the school put its energy instead into complying with the law? We can certainly understand the frustration of the parent, but one tactic that school districts are really trying these days is to use any excuse to "criminalize" the process. The schools say a law is being broken, focus on that, and ignore the fact that they are violating special education laws. In this case, there are many laws being broken by the school, but the focus might become the one trespassing law that the school is trying to charge the parent with.

Like traditional civil rights activity, this has signs of getting ugly. Parents of typical students are increasingly nasty to her, hurling obscenities that, if mouthed by students, the school district would presumably respond to swiftly. But the suspicion of some we talked to is that the school personnel are fanning the flames of protest, and have warned that they will not be responsible if someone is injured. Meanwhile, the other children in the classroom are teasing her son because of his disability and intentionally making him miserable. There has been no positive response by classroom or building personnel. That non-response is characterized by the U.S. Supreme Court as "deliberate indifference" or a "refusal to act on their knowledge." Either one, the U.S. Supreme Court has said in two decisions in the past two years, is "intentional discrimination", and can be punished by lawsuits for money damages. One lawsuit under this type of statute in West Virginia resulted in a settlement of $900,000 this week for the student's harassment by the teacher.

We have posted on our website articles about recent cases dealing with harassment of students by other students, by teachers and by administrators. School personnel seem totally ignorant of this development in the law. But on July 25, 2000, the U.S. Department of Education, in an official memo issued by both Norma Cantu, Assistant Secretary for Civil Rights and Judith Heumann, Assistant Secretary for the Office of Special Education and Rehabilitative Services, put all schools on notice.

The "Dear Colleague" letter addressed to state and local school personnel makes it clear that harassment on the basis of disability is illegal and can be punished. The "hostile environment" which this school is condoning, and which might drive that student out of elementary school, can be punished by money damages, and even, the Department of Education memo warns, by arrest and criminal procedures against school personnel. So even if this school is not currently getting good legal advice about this area of the law, they are held responsible for knowing the law, and this "Dear Colleague" letter puts them on notice. Our "Flagpole Mom" has rights, too. She is engaged in what the Americans with Disabilities Act calls the "protected activity of advocacy." Our history of civil rights, from Rosa Parks to today, shows that when someone stands up for their rights or those of others, they will face "threats," "intimidation," "coercion," "retaliation," and "interference." Those five are specified in the Americans with Disabilities Act at sections 503 (a) and (b). One can sue for money damages under those sections, as we have reported on this website. It sounds like Deanna has hit all five -- threats, intimidation, coercion, retaliation, and interference. Take your pick. Only one is needed for a lawsuit.

She and her son are represented by one of the nation's true experts in special education law, so we will follow this drama, and report on it with continued interest. She told Connie and me that she had missed our Thursday night chat line the past two weeks, and is understandably away from her computer. If you want to email us a note of support, we will be delighted to pass it on to her.

This information is educational and not intended to be legal advice. Reed Martin is an attorney who has concentrated on special education rights for over 30 years. He has conducted workshops on IDEA, Section 504 and the ADA in all 50 states. Reed can be reached at: E-mail: connie@westco.net, or visit his website at: http://www.reedmartin.com/

WAPD NOTE and ALERT!

Let the folks below know what you think with your intelligent emails on the subject. Ask your friends to contact them too.

Perhaps Pennsylvania will get the message Loud And Clear!

DO IT NOW!!

Pennsylvania State Board of Education
Suzy Benkovic - E-mail: 00statbd@psupen.psu.edu

Pennsylvania Special Education:
Fran Warkomski - E-mail: 00sedir@psupen.psu.edu