Ninth Circuit Decision in Nevada School Brutality-Damages Case:
Witte v. Clark County School District

With his hands held behind his back, school officials forced Shawn to eat his own vomit. According to the pleadings filed in Court, Shawn's nightmare got worse.

Shawn Witte has Tourette's Syndrome, asthma, attention deficit hyperactivity disorder, and emotional problems.

The court pleadings report that in 1995, eight-year-old Shawn was placed in the Variety School, a public school that provides special education services for disabled children. Between 1995 and January, 1998, Shawn was physically and emotionally abused and tormented by his teacher and other school staff.

In 1998, without exhausting administrative procedures and requesting a special education due process hearing, Shawn and his mother filed suit in Federal Court. They brought an action for compensatory and punitive monetary damages against the school district and three individuals, Robert Henry (program director), Beverly Minnear (principal of Variety School) and Woodard Macke (teacher) for violations of the Rehabilitation Act and the Americans with Disabilities Act (ADA), and tort claims under state law.

The District Court dismissed their action because they failed to exhaust administrative remedies under IDEA.

On Thursday, December 2, 1999, the Ninth Circuit reversed. (Read decision)

Physical Abuse

The Ninth Circuit found that:

"Plaintiff was repeatedly subjected to a procedure known as a "take down." In a "take down," Macke [the teacher] or another staff person under his direction forced Plaintiff [Shawn] onto a mat on the ground, on his stomach, and restrained [his] arms and legs by forcibly crossing them behind his back. Macke or another staff person under his direction sat on top of Plaintiff, applying pressure to his buttocks or spine, and refused to get up until Plaintiff cried or screamed. The "take down" procedure was inflicted as punishment for action that were related to Plaintiff's disabilities, such as his making involuntary body movements or tics."

The physical abuse continued:

"Plaintiff had weights strapped to his ankles and was forced to walk on a treadmill, set at a high speed, in an effort to tire him or prevent him from leaving the classroom. When Plaintiff fell down on the treadmill, he was forcibly picked up and made to continue. The inability to control movements, and the impulse to move, are common characteristics of the disabilities that the Plaintiff has."

An emergency room physician treated Shawn for red marks on his neck which were "consistent" with "strangulation." (The instructional assistant, at the direction of the teacher, choked Shawn in an attempt to make him run faster)

Emotional Abuse & Threats

Shawn "was threatened with physical harm if he ever told his mother what was happening to him at school."

Eventually, Shawn did tell his mother.

When his mother complained to the principal, she was also threatened. The principal threatened that Shawn would be taken away if his mother tried to remove him from Variety School.

The principal and teacher threatened Shawn that if he told his mother what was happening at school, he would be taken away from her and would be sent to jail for being a liar.

What triggered these abuses?

According to the Ninth Circuit, Shawn was abused for:

"making noise in the classroom, not running fast enough, not staying on task, not cutting his food, and making involuntary body movements. These actions are characteristics of the child's disabilities and occurred because of his disabilities."

How did the Ninth Circuit resolve the issues in this case? Read the decision in Witte v. Clark County Sch. District (pdf) or Witte v. Clark County Sch. District (html)

Questions

Here are some questions we have:

• Did the Clark County School District know about the conduct of their staff at Variety School?
• Was there a district handbook on the use of "aversives" on children with disabilities?
• Did school staff resign from Variety School on their own accord?
• Did the Nevada State Department of Education know about the activities in Clark County?
• Did the Nevada Legislature know?

We will keep you posted as this story unfolds.

Note from Wrightslaw

The following files about this case are available on the Wrightslaw site:

Original decision by the U. S. Court of Appeals for the Ninth Circuit (Dec 2, 1999)

Complaint in Shawn Witte's case

Analysis of the Witte Case by Pete Wright (Dec. 16, 1999)

Original Wrightslaw Alert on Shawn Witte's case (Dec 3, 1999)

Update on Witte case (Dec 7, 1999)

Update #2 on Witte case (Dec 17, 1999)

2002 decision by U. S. Court of Appeals for the Ninth Circuit (Sep 10, 2002)