On March 5, 2020, a 17-year-old minor and student of Erie School District was ejected from school property without having secured a means of transportation home. In the case of Swogger v. Erie School District, the parent of this student sued the District seeking damages in excess of $75,000 plus attorney fees for alleged instances of discrimination against her emotionally disabled and autistic son.

The Student – Discrimination Against Autism in School

The student was identified for special education services with a primary disability category of emotional disturbance and a secondary category of autism. The student received special education services through an individualized education program (IEP).

The student’s IEP required that he receive transportation as a component of his educational program. According to his IEP, the student has difficulty responding to direction once emotionally elevated. One of the student’s behavioral strategies in the IEP was the use of a “break card” when he was emotionally elevated.  He could use the “break card” to go to the principal’s office or emotional support room when he needed to remove himself from specific situations.

The Incident – Emotional Distress Damages

The allegations of the complaint refer to the following events on March 5, 2020:

  • The student was in a meeting with the school’s behavioral specialist, explaining a recent argument with another student. The student began to get emotionally elevated when recounting the story and was instructed to leave the meeting to go to the principal’s office.
  • On his way to the office, the student was met by a high school administrator and two school police officers. One of the individuals slapped a pen out of the student’s hand. The student was briefly restrained and then released when the principal approached.
  • The school called the student’s parent and left a message but took no further action to arrange for the student’s transportation home. After the failed attempt to contact the student’s parent, the student was escorted to the front lobby and told that he was to leave the school for his home, which was 8 miles from the school.

The complaint alleged that the student did not know how to access public transportation.  Although the student arrived home without injury, the parent contends that after this incident, the student was afraid to return to school and may never be physically and emotionally capable of attending a public high school.  The student currently attends a cyber school.

The District’s Response to Emotional Distress Damages

The District filed a Motion to Dismiss, requesting that the Court dismiss the plaintiff’s claims to the extent they seek monetary compensation for emotional distress. The District argued that the plaintiff shouldn’t be able to seek punitive or emotional damages under Section 504 of the Rehabilitation Act (RA) or the Americans with Disabilities Act (ADA).

The Court has since rejected the District’s attempt to dismiss the lawsuit. The Court found it foreseeable that, when disabled individuals are denied the benefits of programs or services by a public entity or a recipient of federal funds, the aggrieved individual will often sustain emotional harm.

The Court held that because the facts alleged in the complaint could plausibly support a claim of intentional discrimination under Title II of the ADA and Section 504 of the RA, the Swogger plaintiff stated a plausible claim for recovery of emotional damages.

School District Implications About Autism Discrimination: Why the Swogger Case Matters

This is the first case in Pennsylvania that has reviewed the ability of a disabled student to receive monetary damages separate and apart from educational reimbursement. As with all special education cases, failures to adhere to the plan as written can create significant monetary issues for school districts. MBM’s education  attorneys will continue to monitor this case and update you on the Court’s findings. In the meantime, if your school district needs assistance creating and providing special educational plans that maintain the trust and integrity of your educational institution, contact our Education team today at 412-242-4400.

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