Peter W. D. Wright, Esq.
P. O. Box 1008
Deltaville, VA 23043

RE:    $600,000 Jury Verdict

Dear Pete:

You have asked me to write up some information about my recent $600,000 jury verdict. The "Inside Story" of the case follows:

In the fall of 1992 Keith and Nikole Whitehead sought only one hour per week of individual speech/language services for their young son, Andrew, who has Down Syndrome. For that, they received years of grief through use of the unlimited resources and authority that was delegated to the lawyers representing the School Board for Hillsborough County, Florida. After hearing two weeks of evidence, on April 3, 1998, a jury of eight persons seated in the United States District Court for the Middle District of Florida awarded Keith and Nikole Whitehead each $300,000.00 to compensate them for damages resulting from acts of retaliation in violation of Section 504 of the Rehabilitation Act of 1973 undertaken by the country’s twelfth largest school district. The court disallowed the parents’ request for punitive damages and that request was not submitted to the jury for consideration.

The court refused to instruct the jury on the definition of discrimination under Section 504 (provided at 34 C.F.R. § 104.4). Without the benefit of that instruction, the jury predictably did not find that the school district engaged in acts of intentional discrimination against Andrew Whitehead. A hearing is yet to be scheduled on the parents’ claims under Section 504 that declaratory and injunctive relief is necessary to correct the school district’s discriminatory system of administering the IDEA and its failure to provide rights and procedural remedies required under Section 504.

On April 21, 1998, the Hillsborough School Board requested a new trial or a reduction of the damages awarded by the jury. It also requested that the court enter judgment in its favor, in spite of the jury verdict. Finally, it requested an order holding the parents responsible for its costs related to the intentional discrimination issues in an amount exceeding $17,000.00. The parents were granted fees and costs incurred in connection with the underlying administrative hearing on which they prevailed in 1994. Pending are the parents' requests for fees related to the litigation under 42 U.S.C. § 1983, which was necessary to enforce the administrative order, and related to their damages claims under Section 504.

 The case involved the school district’s failure to provide services to Andrew that were committed on his IEP when he first entered the school district’s kindergarten programs in the fall of 1992. Without notice to his family, the school district decided to withdraw the individual speech/language services written on Andrew's IEP. Only after the family found that Andrew was losing language abilities did they learn that the educational services were not being provided. After receiving no response to their efforts to resolve the matter directly with the school district, the Whiteheads requested the intervention of the United States Department of Education Office for Civil Rights ("OCR"). The school district agreed to an early resolution process and began providing the services. It committed to the OCR that it would quickly consider whether Andrew required compensatory services. Nonetheless, rather than convene a meeting for consideration of the child’s regression as the OCR directed, the school district convened a meeting to review Andrew’s IEP. At that meeting, the school district representatives asserted that testing revealed that Andrew did not require the individual services after all. The school district ignored the parents' requests to see the testing, which had been conducted without their knowledge. Further, the school district representatives failed to consider an evaluation obtained at the parents' expense. In fact, both evaluations demonstrated language regression. Nonetheless, the school district rewrote Andrew's IEP to eliminate the individual services and refused to provide compensatory services. The school district never provided notice to the Whiteheads of the availability of state complaint procedures or of administrative procedures available under Section 504. It failed to provide written explanation or notice of its refusal to provide compensatory educational services.

The Whiteheads requested the administrative due process hearing required under the IDEA. In September, 1993, a local educational agency due process hearing was held. The impartial hearing officer was assigned from the Florida Division of Administrative Hearings ("DOAH"). On January 11, 1994, an administrative order was entered in the Whiteheads' favor. Andrew was awarded individual speech/language services for the upcoming year, individual compensatory services for one year and reimbursement of expenses incurred by the parents for evaluation and substitute educational services. The Final Order declared that the school district had violated the IDEA in 17 ways, had acted in bad faith and had retaliated against the Whiteheads. The violations included the School Board's failure to give effect to the "stay put" provision of the IDEA and its failure to make Andrew's records available to the Whiteheads. The order is published at 21 IDELR 191. The DOAH hearing officer also awarded attorney's fees and costs to the Whiteheads. A substitute hearing officer rescinded the award of fees and costs 15 months later.

In defending against the Whiteheads' request that Andrew's IEP specify services appropriate to him, the school district asserted to the DOAH hearing officer that it had an unwritten, "implemented practice" that precluded writing the individual services on students' IEPs. It claimed that no child in the State of Florida had individual services written on an IEP, and that the decision of a child's need for individual speech/language services is a matter within the professional discretion of the assigned speech therapist, who may or may not be experienced and who may or may not be licensed or meet the state's qualifications as a speech pathologist. The school district submitted to the hearing officer a proposed order approving the unwritten policy. The hearing officer’s order, issued January 11, 1994, rejected the School Board's claim and declared that the policy violated the federal IDEA.

 Although the school district had asked the hearing officer to deny fees to the Whiteheads and provided no notice of the availability of fees, the school district filed an appeal in a state appellate court challenging the hearing officer's authority to rule on fees. The school district also asserted that a state pleading requirement altogether precluded the Whiteheads from recovering fees because they did not plead them in their request for a due process hearing. Although the administrative proceeding was a local educational agency proceeding under state law, the school district filed its appeal in a state court without first seeking administrative review from Florida's state educational agency, the Florida Department of Education ("FDOE").

No aspect of the Final Order other than the award of fees was ever challenged. Nonetheless, the school district re-employed its unlawful practice at the annual review of Andrew’s IEP five months later in June 1994. The parents immediately requested enforcement of the Final Order from the United States District Court, but were denied that enforcement. The Court apparently relied on the school district’s contention that, although the administrative order had not been challenged by the aggrieved party, it was not "preclusive" in subsequent court proceedings. The school district asserted that the Whiteheads would have to reprove their claims in federal court before they could give effect to the administrative findings and decision.

Consequently, the Whiteheads amended their complaint to seek enforcement of the administrative order pursuant to the Civil Rights Act, 42 U.S.C. § 1983. On February 25, 1998, 49 1/2 months after the due process Final Order was rendered, and only two weeks before the damages trial, the District Court entered an order declaring the administrative order to be final and enforceable. Still, school district representatives testified to the jury that the decision with respect to a child's need for individual services, including Andrew's, is a matter within the discretion of the school's speech language therapist. The jury also heard testimony that, despite the Final Order's findings that the Whiteheads were denied access to educational records, the School Board continued to maintain private files containing the only copy of correspondence related to OCR complaints. They were presented with that private file, which revealed that the school district had misrepresented to the OCR the events related to consideration of compensatory services for Andrew.

 Further proceedings are expected to be scheduled on the Whiteheads’ request for injunctive and declaratory relief to address systemic violations of the IDEA and Section 504.

Throughout the process, the Whiteheads have sought the assistance of administrative agencies, particularly the FDOE, Florida's state educational agency. Rather than requiring the school district to cease employing the unlawful policy against its 30,000 students for whom it receives IDEA funds, the FDOE claimed that its hands were tied until resolution of the Whiteheads' litigation. The FDOE made no distinction between the pending litigation-- which involved a question of the enforcement of an unchallenged administrative order--and litigation challenging the outcome of the administrative proceeding, which had not been brought by either party.

 After the FDOE refused to monitor the school district’s compliance with the IDEA and the Final Order, the Whiteheads brought an action in the District Court against the FDOE seeking to require it to fulfill its duties under the IDEA. The Whiteheads charged the FDOE with employing methods of administering the IDEA that have the effect or purpose of defeating the purposes of the program. Included in the Whiteheads' claims are that: (1) the FDOE continues funding local educational agencies, despite uncorrected policies that deprive children of a free appropriate public education; (2) nowhere in Florida law are children with disabilities assured the right to a free appropriate public education; (3) the state law permitting appeal to a state appellate court infringes on the parties’ rights to offer additional evidence, to receive a decision based on the preponderance of the evidence, and to receive all appropriate relief from the court reviewing an administrative decision; (4) the FDOE has failed to provide a forum for state educational agency review of local educational agencies’ due process proceedings, resulting in unnecessarily difficult, expensive and ad hoc judicial decisions interpreting state special education laws without the benefit of the state educational agency’s hearing or review; and (5) that the FDOE failed to provide notice to parents of the state complaint procedure.

In response to the Whiteheads’ lawsuit, the FDOE claimed to the federal District Court that the Whiteheads failed to exhaust available state administrative remedies. In February, 1996, the District Court granted the FDOE’s motion to dismiss on that ground. Because the Whiteheads’ claims challenged the efficacy of the state system of procedural safeguards, and because they could find no provision in state law that provided administrative remedies for their claims of systemic noncompliance with federal law, they requested the FDOE to provide them with whatever proceedings it alluded to in its successful motion to dismiss the federal district court action. They requested notice of the laws, regulations and rules that would apply in that proceeding. Legal counsel to Frank T. Brogan, Commissioner of Education for the State of Florida, submitted the matter to the DOAH for an administrative hearing. The FDOE failed to provide the Whiteheads with notice of the state laws that applied to the proceeding. Subsequently, the DOAH hearing officer requested briefing of his legal authority. The FDOE again failed to provide specific notice of applicable state laws or of the rights and responsibilities of the hearing officer or of the parties to the proceeding. It asserted, however, that DOAH did not have authority to declare state law inconsistent with federal law. Nonetheless, the DOAH failed to dismiss the action.

Upon the FDOE’s numerous requests for continuance of the DOAH hearing, the administrative hearing officer determined that the Whiteheads' claims were not subject to the 45-day deadline for claims cognizable under the IDEA, even though the FDOE had obtained dismissal from the district court based on IDEA administrative exhaustion requirements. The matter was scheduled for hearing eight (8) months after the Whiteheads' request. Weeks before the hearing was to occur, the FDOE hired Charlie Weatherly, Esquire, to represent it in substitution for the Office of the Attorney General for the State of Florida. Pending at that time was the Whiteheads’ suggestion to the hearing officer that he lacked authority to conduct the hearing. The FDOE, through its new counsel, agreed that the hearing officer had no authority to entertain the Whiteheads' claims. Despite the fact that the FDOE itself requested the DOAH proceeding, it claimed that the Whiteheads had requested the wrong kind of administrative proceeding and that they still must exhaust administrative remedies. It asserted that the Whiteheads must file a complaint with the FDOE itself pursuant to 34 C.F.R. §§ 300.660 - 300.662 (State Complaint Procedures), before their challenge to the FDOE could be presented to a court.

Thereafter, the hearing officer recommended to the FDOE that it dismiss the administrative proceeding. The FDOE has failed to act on that recommendation.

 The Whiteheads have asked the United States District Court for the Middle District of Florida to reinstate their lawsuit against the FDOE and to conclude either that exhaustion is excused or has occurred. In a limited appearance on behalf of the FDOE, Mr. Weatherly reasserted that the Whiteheads must file a state complaint with the FDOE before their claims that the FDOE's system of administering the IDEA are cognizable in a court of law. These matters are pending in the district court.

The Whiteheads continue to pursue their claims that the futility of administrative proceedings created and procured by the FDOE and the School Board for Hillsborough County deny parents the due process of law and access to the courts.

 I have represented the Whiteheads  since shortly before their request for a due process proceeding in the summer of 1993. For trial, the Whiteheads also retained co-counsel services of Mitchell D. Franks, Esquire, and Dabney L. Conner, Esquire, of Lane, Trohn, Clarke, Bertrand, Vreeland & Jacobsen, P.A., Post Office Box 3, Lakeland, FL 33802-0003.

I hope this provides you with background and the inside story of the Whitehead jury trial.

Sincerely,

Laura L. Whiteside

Email:  LLWhi@aol.com
 

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