Wrightslaw - Special Education Law - Whitehead v Hillsborough

Florida Jury Awards $600,000.00
to Parents of Handicapped Child

School District Failed to Provide FAPE;
Retaliated Against Parents and Child

APRIL 3, 1998. Five years after they requested a special education due process hearing. Andrew Whitehead’s parents had their day in court.

The trial continued for almost two weeks. Andrew’s father told Pete that the jury retired at two o’clock on the afternoon of April, 3, 1998. Less than two hours later, they returned with a resounding verdict for the parents.

Although the jury did not find that the school board intentionally discriminated against Andrew, they did find that the school board retaliated against the parents for attempting to protect their son’s rights under Section 504 of the Rehabilitation Act.

The jury awarded each parent $300,000.00.

On Saturday morning, The Tampa Tribune reported that the Hearing Officer

. . . found that school officials discriminated against Andrew because of his disability and that their low expectations led to the boy doing worse in school.

But Friday, the jury of five women and three men found that the school system did not discriminate against Andrew . . . (but) that the school system retaliated against the boy’s parents when they tried to become involved with his education." (You can read this article at The Tampa Tribune web site: http://tampatrib.com/news/satu1018.htm)

The first jury trial on damages was the West Virginia case, Doe v. Withers. In the next few weeks, we will publish information about that case and the attorney who represented the child on this web site.

The next highly publicized "damages" case was W.B. v. Matula in the Third Circuit. The Withers case and the Matula case have caused a significant ripple effect around the country. In Whitehead, the ripples are just beginning to form.

(Note: The School Board is expected to appeal. Other claims filed by the parents are pending. We are securing the jury instructions and the Complaint filed in the U. S. District Court and will post them on this site. We’ll keep you posted.)

History of the Earlier Proceedings

Keith and Nikole Whitehead requested a special education due process hearing against the Hillsborough County School Board about services that were withdrawn from their son’s IEP. Andrew has Down’s Syndrome.

The due process hearing was held on September 24 and 28, 1993. The Hearing Officer issued an order on behalf of the child and the parents. At paragraph 81 of his decision, he noted that

Finally, Respondent engaged in retaliatory actions including its refusal to permit a private speech therapist to administer therapy to Andrew during the instructional day at Mintz Elementary School while the same therapist is permitted to do so for other of the district’s elementary students. (SEA Decision reported at 21 IDELR 191, January 11, 1994)

After prevailing at the lower levels, the parents filed suit in the U. S. District Court to recover attorneys’ fees and other relief. The Court noted that the Hearing Officer "identified numerous violations of law by the Defendant, including: bad faith, deprivation of Andrew's right to a free appropriate public education, discrimination against Andrew due to his handicap, and retaliation against Plaintiffs." (Whitehead v. School Board of Hillsborough County, 918 F. Supp. 1515, 24 IDELR 21, (M.D. FL 1996))

The Complaint also included a claim against the Florida Department of Education. The Court held that the State Department of Education was not a party to the original due process hearing and therefore dismissed the claim against the Department. (Whitehead v. School Board of Hillsborough County, 932 F. Supp. 1393, 24 IDELR 538, (M.D. FL 1996))

In Count I of their Complaint, the parents sought attorneys' fees for the due process hearing, alleging that they were the prevailing parties.

In Count II, they sought compensatory and/or punitive damages under the Individuals with Disabilities Education Act.

In Count III, they sought compensatory and/or punitive damages under Section 504 of the Rehabilitation Act for intentional discrimination and retaliatory conduct.

Hillsborough County School Board filed a Motion for Partial Summary Judgment in regard to Counts II and III. They asserted that damage remedies are not available under the IDEA or Section 504. The Court held that damages were not available under IDEA, but were available under Section 504. In regard to the Section 504 Count III claim that alleged retaliation, the Court stated that the plaintiffs:

. . . do not allege that they were discriminated against based on a disability, but rather that they suffered retaliation from Defendant when they attempted to assert their rights under Section 504 by filing a complaint against the school for discriminating against their son due to his handicap.
. . . .
Accordingly, finding that a prima facie case of retaliation had been made and that Defendant could not articulate a nondiscriminatory reason for its actions, the Hearing Officer ordered that, "the [Defendant] is prohibited from engaging in retaliatory conduct towards Andrew Whitehead and his parents." Therefore, since damages are allowed under Section 504 for intentional discrimination, there is no cognizable reason why damages should not be allowed for retaliatory conduct in violation of the regulation implementing Section 504 when parents attempt to assert their rights under Section 504.

The school board argued that the parents and child were not entitled to a jury trial. The Court held that the parents were entitled to a jury trial and allowed the Section 504 claim for damages to proceed.

Laura Lee Whiteside, Esq. of Tampa, Florida represented the Whiteheads from the due process hearing through the trial held at the U. S. District Court in the Middle District of Florida, Tampa Division. At the Federal Court level she was assisted by Mitchell Franks, Esq. The Court's file number for the case is No. 94-241-CIV-T-17C . In the next few days and months, we expect to publish new developments as they occur, upload a copy of the special education due process decision, and have information from and about Laura Lee Whiteside, Esq.


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