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Ennis Britton's On the Call
The Special Education Team of Ennis Britton hosts the podcast “On the Call." Each episode focuses on a real-life special education scenario you may have encountered or might bump into very soon. Ennis Britton attorneys Jeremy Neff and Erin Wessendorf - Wortman take the call and then discuss applicable cases and laws related to the scenario presented. Each episode wraps up with practical tips based on the Special Education Team's years of experience serving school districts throughout Ohio.
Ennis Britton's On the Call
On the Call: SLAPP
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On the Call: SLAPP A classroom disruption sparks a parent letter packed with phrases like “prompt action” and “least restrictive environment,” and suddenly everyone’s asking: Who do we respond to, what can we say, and how do we protect staff without spilling confidential student information? In this episode, Erin and Jeremy review key takeaways from a recent case in Massachusetts and what it signals about parent petitioning, anti-SLAPP protections, and school communications. They break down what schools can address publicly, how to keep communications in the right lane, and practical ways to support staff while protecting student privacy.
Join Jeremy for LRP's Ask the Attorney on 9/17. He’ll be hosting a live Q&A addressing common IDEA and Section 504 compliance challenges, including child find and evaluations, FAPE, discipline, and school safety. Bring your questions and get practical guidance from an experienced education attorney with firsthand school experience. Register here!
And it's written, how can I help you?
SPEAKER_00Good morning. Quick question. Sure. We had a really tough incident in the classroom yesterday. After several parents emailed, and one family sent a letter to the principal, the superintendent, and the school board saying there's been an ongoing disruptive behavior and asking what action we are taking now. The parents knew enough that I'm concerned about what information is being shared with all the community and families.
SPEAKER_02Okay, so talk to me briefly about what's going on in the classroom.
SPEAKER_00So there's a student in the classroom who is on an IEP and is experiencing severe behavior outbursts beyond what is typical for her. We're evacuating the classroom, the classroom is being destroyed, bookshelves turned over, all the things. We're working through updating the FBA and BIP.
SPEAKER_02So the other students are going home and talking to their parents.
SPEAKER_00Exactly. And then teachers are also rattled because the letter that was sent was copied to other parents. We're trying to keep the classroom safe, support the teacher, and not accidentally confirm anything about a student's IEP.
SPEAKER_02Got it. So let's look at this letter and what a potential response can be. And I'm Aaron Wessendorf Wortman. Let's explore today's call. I am so excited for this case. I know you say this about my kids. I know I like it. I can't help it. I uh sometimes I bring cases. I'm like, all right, this is this is a good one. And well, they're all good. You bring good cases too.
SPEAKER_04I was gonna say it'd be helpful if occasionally you'd be like, Jeremy, I'm so excited about this case you picked, but no, I feel like.
SPEAKER_02I don't say I do. I'm excited. Shut up. I have done all the things. I bring good references, I bring good laughter, but this case, it's it's so fun to me because, and I know we talked about this earlier, it's um IDEA adjacent. How do I want to say it, right?
SPEAKER_04Because I mean, and I know Or a different perspective or something. Correct.
SPEAKER_02Um it and I don't want to start with the case, but I'm gonna at least allude to it based on the phone caller, right? Because we have situations where you and I get, and the other members of our special education team get phone calls where how do we handle a it's typically an elementary school student who we are having to evacuate the classroom often, right? We're tearing down things from the walls.
SPEAKER_04Reverse removal sounds so less terrifying than evacuate.
SPEAKER_02That's fair. Uh so but we're doing that, and how do we the focus from our phone calls and our conversations then with clients is on that student, right? And FBAs are revisiting FBAs, building BIPs, revisiting BIPs, building in new IEPs, maybe considering LRE adjustments, all of those pieces. And what the phone call, and then this case tends to look at for me is you you just re reverse removed. Is that what you said? Reverse removed, the gun evacuated, the other children in the classroom. What about the other 20 or so children? And what about their education, the communications from the parents, and all of that is I view IDEA adjacent, or just looking at the same situation with a little bit different of a lens, right? And so let's start black letter law here. Boom. So if we're talking black letter law, biggest concern we have is what?
SPEAKER_04Faith always. Right.
SPEAKER_02Fape always, and then also privacy.
SPEAKER_01Yeah.
SPEAKER_02Right? I mean, we're not saying that we're not providing fape to the student with a disability.
unknownRight.
SPEAKER_02There's a concern then from every other parent, they still have a right to fape too. Gen ed kids have a right to something.
SPEAKER_04I mean, truly, right? I mean, often my answer is, you know, when they're like, oh, these parents are really mad, I'm like, well, it's a lot easier for somebody who can point to a specific statute that gives them rights to challenge you. And not that we don't care about those other kids, but correct.
SPEAKER_02And we do, and we do, and we don't. That's not true. We do. It's not that we don't. It's just the level of legal implications is less.
SPEAKER_04Yeah, what's the pathway to doing something? Right. Trevor Burrus, Jr.
SPEAKER_02But all 20 of those kids in that classroom, 25, whatever it is, they all have privacy rights.
SPEAKER_04Correct.
SPEAKER_02And yet, how do you balance those privacy rights when you have parents who are communicating with you with some maybe additional information that they know, air quotes?
SPEAKER_03Right.
SPEAKER_02Either through what their child is telling them, what the other parents and the mom's face page are telling them all of the things. I can't ever call it Facebook now since you started calling it Facebook.
SPEAKER_04I feel like that was from The Simpsons or something, like a long time ago that I stole that. So apologies.
SPEAKER_02My husband has now started letting my son watch The Simpsons. I can't tell if I think this is appropriate or not. Um I was never allowed to watch it growing up, like ever. That's awesome. It's like ever, ever, which is so terrible, but it's true. But we have privacy issues, right?
SPEAKER_04We have privacy. Can we talk about the FAPE just a little bit? And and I know this isn't the main focus, but the FAPE, even if we're talking about that kid that's causing the evacuation. Yes. Um, you know, if you're regularly getting that dysregulated, you're probably not receiving your fape either. And which also then implicates, well, is this the least restrictive environment? And there's those tensions because the law wants kids generally included. It's such a right. Yeah. There's a lot of pushes and pulls here.
SPEAKER_02And and I'm going to assume for the purposes of today's episode, we are doing all of those things from an IEP team in looking at FAPE, in looking at LRE for the student with a disability, right? I'm going to assume those things. I look at this case then with the lens of the other students.
SPEAKER_03Yes.
SPEAKER_02And then privacy of the student with a disability. And there's privacy rights under both IDEA and FERPA, right? And we can't discriminate against the student with a disability because they have a disability, right? And treating them differently with regard to the rest of the parents, and there's a balancing act.
SPEAKER_04Yeah. And just the dynamics of running a building, too. You know, the building principal for your caller is like, oh my gosh, how do I do this? Because, you know, probably staff are frustrated. Parents are frustrated. The parent of the kid who's causing the uh evacuations is frustrated. Like there's it's a tough one to win.
SPEAKER_02It is tough all around, but I'm going to go and we're going to talk about this case. And I know we're we're case talking early, but it's because we're not delving in for purposes of this episode into IDEA full and all of those regulations. I'm sitting more in that, in that push and pull of how do we meet the needs of the student with a disability and how do we meet the needs of the rest of the students in those classrooms, especially when you have a concern about privacy and things have hit the fan, right?
SPEAKER_04I'm so proud of you. You just didn't swear there. It was such a great opportunity. Good work.
SPEAKER_02I'm growing. I can't say it'll happen forever, but I'm growing. So we're going to talk about a case. It's called Doe versus Thorale. And this came out of an appeals court in Massachusetts, February of 26th.
SPEAKER_04A state appeals court, right?
SPEAKER_02Correct. Correct. And it's because it it was a state appeals court because it was a defamation lawsuit. Why are we talking defamation right now today? So I'm going to go case history first a little bit, and then I'll teach us new law today. We'll talk some new law. Annie Slap. Yeah, I've excited, right? I'm just very fun.
SPEAKER_04I had to do a little research. I'm like, okay, I've heard of this. I know.
SPEAKER_02And then where it goes, but really, man, this is an ugly case for everybody. Yeah. Both before, during, and it can only be after two. So the very basic facts of it are essentially you have an elementary class who was dealing with frequent student outbursts. So just like our caller sort of described, right? We're talking disruptions, unsafe behavior, maybe some bullying and racist language happening. That's what's alleged, right?
SPEAKER_03Yeah.
SPEAKER_02So parents of a student without disabilities, okay? A typical student, get together with other parents. They start chirping at them. Maybe they're communicating on Facebook messages or through whatever texting, emailing, they're talking to other students within this classroom. We need to get a uniform letter together to tell this school we are upset about our kids constantly having this disruption and having been removed from the classroom, right? Reverse removal evacuation, whatever you call it. So they write a letter to the school district saying, look, our kids' class has been evacuated due to an unnamed student's behavior. They don't name the student, right? And they listed other incidents over the prior two months: profanity, property damage, bullying, racial slurs, and they said, please take action, enforce your code of conduct, support the teacher, reconsider where the student's LRE is.
SPEAKER_04Yeah, they're shown a little bit of knowledge of the law. And when you say they sent it to the school district, I think it was important to the court, like who. So we're talking about some of the administrators, we're talking about board members.
SPEAKER_02Oh yeah.
SPEAKER_04Maybe the teacher, I think. Yep.
SPEAKER_02Oh yeah, they did it to the teacher too. And so they did all of this and to some of the other parents who said, yes, please include me. They knew enough to be dangerous about special education law, but it also they knew enough where it was abundantly clear who this kid was. Oh.
SPEAKER_03There was no question. Right.
SPEAKER_02So the parents of the student with the disability get wind of this letter, they find out about it.
SPEAKER_04They weren't copied.
unknownNo.
SPEAKER_02They were not copied.
SPEAKER_04They weren't copied. All right.
SPEAKER_02I don't love it. I think one of the case pieces said that after receiving or maybe before receiving the letter, the teacher had reached out, it was unclear in the case that the teacher had reached out to say to all of the parents in the whole classroom. And she had said she, I think, and I'm assuming, so maybe not a she, whatever. That due to disruptive behaviors within our classroom last week, our classroom had to learn, uh, I'm sorry, had to move its learning to a secondary space. So I think probably before the letter or not, or whatever. So the teacher is saying that. So the parents of student with disability are so pissed about this letter, they turn around and they sue the parents who wrote the letter. They don't include the school, which I find interesting, right? They turn around and sue for defamation.
SPEAKER_04Well, yeah, I mean the school didn't do it. Yeah. Okay.
SPEAKER_02Right? And you're like, oh, what is happening? And they say defamation. You interfered with my kids' educational rights, intentional infliction of emotional distress, all the things. So amazing.
SPEAKER_04Can we pause? And our listeners can't, you know, see this, but Aaron's showing off in front of me as I sit here trying to make my reading glasses kind of balance over my headset and so I can look across the table where I don't need glasses. When she printed this case, it is so tiny. It's like think of the worst like prescription bottle you've ever tried to read or something like that. And she's sitting over here without glasses on, just like, you know, well, what it says is I also like I I got a lot.
SPEAKER_02Sorry. I know. It's fine. I shut up. It's fine. So in any event, the parents sue the parents of the student of with disability sue the parents who wrote the letter, right? The general education parents who wrote the letter, right? The general education student parents, and they say defamation, intentional infliction of emotional distress, and maybe interference with a contract because of interference with LE. That's how I kind of thought that.
SPEAKER_04Yeah. Yeah.
SPEAKER_02So parents of a student of the general education students, they seek a dismissal. So like normal contract pieces. And the court agrees. Because we are talking, they said, look, this is an anti-slap litigation. I was like, oh, anti-slap like a two-piece slap.
SPEAKER_01Very good.
SPEAKER_02Which then makes me very much, and I know you hate this, but I'm gonna do it anyway.
SPEAKER_01What do I hate?
SPEAKER_02You hate that. So it's a good thing. Let me reach the mute button. I can't quite reach. No, it's it reminds me like I read the slap litigation, and I'm like, slap, and my head goes to very early 2000s. Pop, rap, music, maybe the flow rider, low, get low, low, boots with a fur, turn around, give that big booty a slap. Like that's what I shut up. There is an audience in our podcast listeners who will absolutely be like, yes.
SPEAKER_04All right, you know what? Then let's let's pull it. You know, we we need to do a social media post on this. I think the reference should be there's a Lil John and Ludacris song, and somebody else, I don't remember who was in it, where they have a similar, let's say, theme. So yeah.
SPEAKER_02Booty slap. It's fine. So what is it? Sorry, that's my reference. And uh please just laugh with us. Anti-slap, what is it? So slap, right? I'll go for that, stands for strategic lawsuit against public participation. So, really, a slap lawsuit is what this the parents of the student with a disability filed to say, look, and what the litigation has said is those sorts of lawsuits are designed to punish or silence someone from speaking out on a public issue. Trevor Burrus, Jr.
SPEAKER_04Before you defame the parents, what what you mean is that that's what they're alleged to. That's what they were alleged to file. And what a court found they filed. Yes, and what a court found. It's a defensive maneuver. So they didn't say we're filing a slap lawsuit. Instead, the defendant said, ooh, we think that's what you did, and this is our defense. Trevor Burrus, Jr.
SPEAKER_02Correct.
SPEAKER_04Thank you very much for Because the public policy is to not let someone strategically sue to silence appropriate public participation. Trevor Burrus, Jr.
SPEAKER_02Correct. We still want people to the First Amendment right of freedom of speech to comment on public issues. So anti-slap laws are designed to stop allegedly retaliatory lawsuits so people aren't scared out of voicing their First Amendment concerns. So in Massachusetts, there's two prongs to an anti-slap lawsuit. First is that you have to um essentially where we go engage in petitioning behavior. That you are looking at petitioning and it is a public issue, you're using free speech for a public issue. And if the lawsuit is about something else, like if what you're talking about is something else, anti-slap doesn't apply. But if your lawsuit is based on petitioning or free speech on public issue, if that's a yes, then next it goes to like it's a burden shifting. So if as a defendant you say this was based on my freedom of speech, and the court says yes, great. Now it goes back to the other side. And the other side then has to show that really what they were petitioning, there was no legal protection. You had no reasonable facts in in what you were doing in your legal petition. Right.
SPEAKER_04This is an elementary school, right?
SPEAKER_02Yeah.
SPEAKER_04Yeah. So their reasonable facts were based primarily on hearsay from their kids. From elementary kids. Yeah. Which which normally, I mean, that somewhere, at least in Ohio, like there's a I don't think it's actually a rule of evidence, but there's some case law indicating, uh, under the age, I want to say like 13 or something, we're not gonna assume credibility here. But this court's having to decide, like, all right, what do we do?
SPEAKER_02Yeah. And I liked it because at least the court said to start, we're gonna believe the defendants here and say they had a petitioning activity. They were writing to the school, expressing concerns, yes, copying other parents, but about their own kids and their own kids' experience, and that is perfectly protected under the law. The plaintiffs in this case said, no, no, no, this is gossip. The court wasn't buying that. They said, no, we don't view this as gossip, we view this as a illegal petitioning activity.
SPEAKER_04But key here, right, is that they sent this to the school and to decision makers in the school who could act in a way that would respond to their requests.
SPEAKER_02Correct. If they would have just sent it around to all of the parents and never involved the school, uh maybe a different question, right? But so the defense then does what they need to do appropriately. So they tennis match it back then to the parents. And the parents of the student with a disability who filed the lawsuit have to then say, look, you know, whatever you did as your petitioning has no legal basis in the law. You have no factual support. And that's where we're going into can we believe the littles and what they're saying? And the court was saying, look, some things maybe were exaggerated because we were listening to a small child. But really, there's some factual grounding here. And the court said, look, the parents weren't really requesting anything that was forbidden under the law. They were saying, pay attention to our kids too, right? Our kids have a right to an education. You need to pay attention to our kids too, and to be able to have a balancing act there. And so the court dismissed those claims against the parents for defamation and all that.
SPEAKER_04And the parents had also received a letter from the teacher that you referenced earlier. So the court said, look, that you know, they were putting this all together and that helped them the parents think that, well, there there is some basis here because what our kids are saying lines up with what this school authority who's in the room, and there's a professional educator, is saying as well, to some extent, because that professional educator needed to not violate privacy. So I mean there's a there's a lot of ways this could have gone sideways, and it didn't.
SPEAKER_02Correct. It did not. But what the court also did is they focused very heavily in this decision. Well, maybe not focused very heavily, but there were enough mentions. This is an issue back to the school. Ah so parents are fighting. So if I'm gonna take this case right and I'm gonna look at the lessons learned from this, and we're gonna turn it into practical answers, right? Maybe not the practical answer, is not listen to flow writer all of the time. But fine. Luda instead. My apologies. I mean, not a bad choice either.
SPEAKER_04Lil John. That's my little John, sorry. I can't do it that loud.
SPEAKER_02It's probably an Usher song, is a Usher song.
SPEAKER_04Oh, you know what? He might be a part of it. Because yeah, there's somebody else. All right, we'll figure it out.
SPEAKER_02But when we're looking at practical tips, this is going to, even as this case played out, and I think the parents wound up withdrawing the kid for a period of time too.
SPEAKER_04But they said that was part of the harm. Like the next year, they're like, we're out of here.
SPEAKER_02I don't imagine how they can bring this kid back now that they lost this lawsuit either, just in the community. Can you imagine?
SPEAKER_04Please don't let your pride get in the way of your kids.
SPEAKER_02I yes, but also That's my practical tip. But practical tip this for the schools, right? If I'm going to take the lens for the schools, this is playing out for you. And the potential for this to play out, right, in classrooms where we are having to reverse remove kids, uh, could very well be out there all the time. And you probably have parents that are communicating to you and complaining at you, teacher, school principal, you know, board, special education director, my kids are being impacted by all of this. I want this to happen to that kid. Well, that kid has as many rights maybe more, maybe more as the others. And so how are we balancing that? Right? What are we looking at? Is there a level of appropriate communication from a building, from an intervention specialist or a general education teacher to all parents? Right? And I think that has to be a district level um determination on how far we go, right? If there is a level of communication, what is included? And do you have a plan for what that looks like?
SPEAKER_01Yeah.
SPEAKER_02This is not a plan to be built on the back end. Classroom disruptions at a young age are happening all the time.
SPEAKER_04Yeah, and not and not a plan to be left to the classroom teacher either. No, no.
SPEAKER_02I mean, these sorts of complaints, if we do get them even, they need to be routed into the appropriate lane that this is should not be for a Jen Ed teacher to respond to on his or her own or an intervention specialist on his or her own. This is building level or school district level types of at least plans of communication, right? And making sure we all know what's appropriate versus what's not.
SPEAKER_04When when I saw this in your outline, Aaron, this notion of like routing it to the right lane. Also, what my mind raced to is ensuring that you're not trying to block that lane. Don't put orange barrels in the way. Like if people are this frustrated, they are communicating it. I promise you that. Oh, yeah. It's a question of are you allowing a way for them to reliably communicate it to people who are appropriate for them to communicate it to? Or are you letting it turn into something else? Where um, you know, not not this episode, but we've had some pretty wild cases we've read about where if the community doesn't feel heard, parents don't feel heard, they can do some really disruptive things, whether it's imp implicates the school or not, like the school wasn't sued in this case. No, it's still a problem for them.
SPEAKER_02Oh, I guarantee you there was there was still, and I don't even know that the school district was mentioned or the school building was mentioned in the case. I don't recall.
SPEAKER_04I couldn't read it.
SPEAKER_02Stop. I'm sorry. I'll print it, I'll print it for the elderly next time. I'll make sure I provide some accommodations to a disability. I don't know why that went British, but we did. Um but I think it's also ensuring that we have in looking at what is our level of honest communication on these school issues, right? There's a way to be honest with all parents without giving away privacy information to a student. I do think that that teacher in this case, in the email that they sent out, that was as honest that she could be while being appropriate and not divulging information. Parents are always going to want more, or if it's their student, they're going to want less shared.
SPEAKER_03Right.
SPEAKER_02Right? But we have to engage in what that balancing act is and making sure we're all trained on knowing the appropriate path forward for that communication and making sure we have we are proactive in this and not reactive.
SPEAKER_04Yeah, and and part of that proactive is also training our folks in terms of when that parent, you know, let's let's say this initial email and a bunch of parents are copied on it, and it's maybe like approaching maybe protected personal information for a kid. Just because somebody copies the world on an email to you as a school person doesn't mean you should reply all.
SPEAKER_02No, it never reply all.
SPEAKER_04Right? So I I think that's part of it too, is just kind of giving our people, there are some basic rules. We want communication open, but we don't necessarily want to uh communicate back to the world because then we're republishing something that potentially would be defamatory.
SPEAKER_02So let's revisit our caller dealing with a parent and this anxious classroom team. We know and have talked about is important for schools and teams to know what can be addressed publicly, safe learning routines, how concerned concerns are handled, supports for staff from what cannot be addressed, anything confirming a student's disability status or what's in their plan. School teams need to be prepared for instances like this that isn't a single-prong response, but a tailored response for each group of parents on the whole that doesn't inadvertently disclose private information. It we know it is a tough tightrope to walk. And we need to make sure that everybody walking that tightrope needs to be calm and communicating consistently to protect all involved or risk falling from that privacy rope.
SPEAKER_04Thank you for tuning in to On the Call. If you have found value in our discussion and think your educator colleagues would as well, please share this podcast through text, word of mouth, staff meetings, chats and teachers launch. Your support is what drives this podcast.
SPEAKER_02We work to bring real life situations and practical tips to each episode. If you have a topic you would like to suggest or want to share your thoughts, please connect with us on social media or email us at podcast at nsbritain.com.
SPEAKER_04A quick note this podcast is intended to be used for general information only and is not legal advice. If you have a specific question, please consult an attorney.
SPEAKER_02We are looking forward to being on the call with you again soon.
