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ALERT: New
Decision in Witte v. Clark County School Brutality Case
from Wrightslaw,
September 23, 2002
For more articles on disabilities and special ed visit
www.bridges4kids.org.
According to the pleadings filed in March 1998
seeking monetary damages, Shawn
Witte was forced to eat his own
vomit as a disciplinary measure.
Shawn "has been diagnosed with Tourette Syndrome, asthma,
attention deficit
hyperactivity disorder and emotional problems."
Shawn has tics. To control his tics, school
personnel pinned Shawn to the ground
with his arms behind his back. He
was choked. An emergency room doctor
reported bruising "consistent (with) neck strangulation."
Shawn's legs are physically deformed, which "makes it
difficult for him to sustain long
durations of running or running very
fast." School personnel forced Shawn
to run on a treadmill with heavy weights on his feet.
If Shawn "told his mother or
anyone about these abusive practices . . .
(he) would go to jail for being a liar
and/or that he would be taken away
from his mother." (Paragraph 39 of the Complaint)
In November 2000, the U. S.
District court dismissed this case for the
second time. The Court ordered the parents to pay
school district
personnel nearly $7,000 for
legal costs. Again, the attorneys who represented Shawn
appealed to the U. S. Court
of Appeals for the Ninth Circuit.
The court heard oral argument on February 11, 2002 and
issued a decision on
September 10, 2002. * Witte I
On December 3, 1999, we sent an Alert to newsletter
subscribers about the Witte v. Clark
County NV school brutality case:
http://www.wrightslaw.com/news/1999/news_Alert_Witte_99_1203.html
In March, 1998, Shawn
Witte's parent filed suit in the U. S. District
Court against school
officials. She sought monetary
damages and requested a jury trial.
The alleged facts of abuse are horrible:
http://www.wrightslaw.com/law/pleadings/complaint_witte_clark_NV.pdf
A trial on the merits has not been
held. Only time will prove the truth of
the allegations. The District
Court dismissed the case because the
parent failed to request a
due process hearing and instead filed suit in Court.
Although Shawn was receiving
services under IDEA, the well-drafted Federal Court
complaint did
not allege a violation of IDEA.
http://www.wrightslaw.com/law/pleadings/complaint_witte_clark_NV.pdf
In prior cases, the Ninth Circuit Court of
Appeals held that money damages are
not available for IDEA claims. If a
parent fails to exhaust
administrative remedies, i.e., request a due process hearing,
Courts are "without
jurisdiction." Because these parents filed suit in
Court without first requesting a due
process hearing, the case was
dismissed by the District Court.
The parents appealed the dismissal to the U. S. Court
of Appeals for the
Ninth Circuit. In December 1999, that Court reversed
the District Court and
remanded the case back to the
District Court for trial.
http://www.wrightslaw.com/law/caselaw/9th_Witte_ClarkCo_991202.htm
* Witte II
When the case was heard again, the U. S. District "dismissed
all claims against all defendants on
the ground that defendants were
immune from suit in federal court
under the Eleventh Amendment and subsequently
awarded costs
of $6,879.87 to defendants."
The Eleventh Amendment has been construed to bar suits by
citizens against their
states. Witte v. Clark County School
District is a damages case brought under
Section 504 of the
Rehabilitation Act. Witte does not focus on issues of
an appropriate education
under IDEA. Dollar damages are not
available under IDEA. States are not
immune from suits under IDEA. While
individual states may be immune in
some types of cases under the
Eleventh Amendment, school districts, municipalities, and
local units of government are
usually not immune. In a prior case, the Ninth Circuit
found that a California
school district was immune because of the unique nature
of local and state funding of
public school education in
California. In this new decision
issued on September 10, 2002, the Ninth Circuit
discusses immunity and
explains why school districts in one state may be
immune while districts in another state are not.
http://www.wrightslaw.com/law/caselaw/2002/9th.eason.witte.clarkco.nv.htm
"The central question is whether the Clark
County School District is 'an arm
of the state," entitled to Eleventh
Amendment immunity . . . The Supreme
Court has mentioned in passing that the Eleventh
Amendment does not afford
'local school boards' immunity suit . . ."
The District Court ordered the parents to pay the
defendants almost $7,000 for
their legal costs. When the Court of Appeals reversed this
decision, they also
dismissed the award for costs against the parents.
The case is now styled Derrick Eason v. Clark County
School District. During the
last appeal, the Witte case was merged with another similar
case on behalf of
Derrick Eason who also attended Varsity School in Clark
County, NV. When you read
last week's ruling in Shawn's case,
you will also learn about Derrick.
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