Wrightslaw - The Special Ed Advocate Newsletter, Decemeber 17, 1999

1. Complaint: Shawn Witte V Clark County (NV) Schools

On December 3, 1999, we sent an ALERT about the new Ninth Circuit decision in the school brutality case, Witte v. Clark County (NV) Schools.

As promised, Sara Winter, attorney for the child, provided us with a copy of the Complaint and Jury Demand which begins:

"This is a suit for damages arising out of practices of excessive corporal punishment and abuse on students with disabilities in Variety School, a completely segregated public school within the Clark County School District for children with disabilities. Such practices of physical pain and physical restraint are intentionally and deliberately inflicted on students with disabilities and are in violation of Plaintiff’s constitutional right to be free from restraint and the infliction of pain while attending public school."

You can download the Complaint from the Wrightslaw Law Library in pdf and html

You can get the Ninth Circuit's decision in the Wrightslaw Law Library in pdf and html

2. Another Navada School Bruality Case

On December 7, 1999, we published a newsletter that included information about the ongoing use "aversive behavior techniques" on disabled children in Clark County Schools.

Five days later, we received a letter from an attorney about another Nevada school brutality. As you will see, this new abuse case had an unusual twist:

"I recently worked a case involving substantially similar issues, including civil rights violations, abuse/battery and restraint, initiated in September of 1999."

"The hearing officer appointed by the NDOE is Beverly Minnear, Principal in the Witte v. Clark County Case. In October, two days after oral arguments before the Ninth, we requested that she recuse herself from the case. She refused."

"We made the initial request for recusal to the DOE, then followed up with a request directly to Ms. Minnear herself. You'll need to verify this independently, of course. This case is currently in process and has been referred and accepted by legal counsel in California."

Wrightslaw contacted the Nevada Department of Education and requested a list of Nevada hearing officers. According to this list, the principal who is a Defendant in this case is a Hearing Officer for the state of Nevada.

3. The Right to an"Impartial Due Process Hearing"

The Individuals with Disabilities Education Act includes "procedural safeguards" that are designed to protect the rights of disabled children and their parents (Section 1415). These safeguards include the opportunity to examine the child's records, to have advance notice before any significant actions are taken, the right to pursue mediation and litigation, the right to view exhibits and to know the names of witnesses in advance of a hearing, the right to confront and cross-examine witnesses, the right to a free hearing. (Wrightslaw: Special Education Law, page 67)

The statute provides for a proceeding before an impartial hearing officer in matters duct One procedural safeguard is the right to have special education disputes resolved by an "Impartial Due Process Hearing." (20 U.S.C. 1415(f))

"A hearing conducted pursuant to paragraph (1) may not be conducted by an employee of the State educational agency or the local educational agency involved in the education or care of the child. (20 U.S.C. 1415(f)(3))

https://www.wrightslaw.com/law/code_regs/20USC1415.html

As yet, there has been no trial in this case. Yet, it is difficult to understand how the Nevada Department of Education could select the defendant in a child abuse - school brutality case to act as an "impartial hearing officer" in similar special education cases.

4. Answer to Your Questions

After the December 3 Alert, many people sent in questions. Here are a few of your questions, and answers from Wrightslaw.

ELAINE WROTE:

"I am curious--how much was this family awarded in this case? Also, were there ever any criminal charges pursued against this abusive faculty?

FROM WRIGHTSLAW:

As yet, there has been no trial. (See Complaint and Jury Demand uploaded in the Law Library). Until the Ninth Circuit's ruling in this case, courts have held that parents must "exhaust administrative remedies" before they can bring a case to court.

This means that if a disabled child who receives special education was abused by a school employee, the parents had to request an impartial due process hearing. If the due process hearing was conducted at the local level, the losing party could appeal to the State Education Agency (SEA). The SEA would appoint an independent Review Officer who would issue a decision. The losing party could then appeal to state or federal court. (In states that use a "one tier system," the due process hearing decision could be appealed to court.)

If a non-disabled child was abused by a school employee, the child's parents could go directly to court.

No, it doesn't make sense!

SHERRY WROTE:

I appreciate your time and energy in doing this research on Clark County. How can parents search for public documents that seem to be buried or otherwise non-existent?

FROM WRIGHTSLAW:

Our research began at the American Journalism Review

The AJR site includes a Newspapers

At this site, you can search for newspapers by state and city. At the AJR site, we learned that Las Vegas has two daily newspapers, The Review Journal and the Sun. Within an hour, we found most of the information that we included in the article

AN ATTORNEY FROM WASHINGTON DC WROTE:

I specialize in civil and criminal litigation, but I also handle some special education matters on behalf of disabled children and their parents.

I was shocked and horrified by Shawn's story and applaud you for sharing it with your Special Ed Advocate readers. I would, however, like to point out that your article is probably a bit misleading to your non-lawyer readers.

In the beginning, you introduce the facts of the case with phrases such as "According to the pleadings" and "The court pleadings report." In its opinion, the Ninth Circuit states "Because the district court dismissed the action on the ground that Plaintiff's complaint failed to allege a basis for federal subject-matter jurisdiction, we take the facts pleaded in the complaint as true."

I would hate to think that there are people out there who think that after a trial the federal courts handling this matter concluded that all of the facts alleged in the plaintiff's complaint were true (they might very well be true, but that is not what the cases say).

The reason I am writing is because I think The Special Ed Advocate and Wrightslaw.com are top notch, and that the work you do is so vital and appreciated by so many people. Thanks for all of your efforts.

PETE RESPONDS:

Thanks for your comments. After we receive and upload the complaint, I will use this as an opportunity to talk about an appellate court taking the facts as they are pled, without regard to what later trial evidence may be, and also about this case being an example of how courts reverse themselves, by distinguishing the facts from an earlier decision. This case is a good example of how to plead a case and sidestep a minefield.

Read Pete's discussion of these issues.