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Inside Story of the $600,000 Verdict in Florida Retaliation Case
by Laura Whiteside, Esq.

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You asked me to write an article about the jury trial that resulted in a $600,000 verdict in the Andrew Whitehead case.

On April 3, 1998, an eight-member jury awarded Keith and Nikole Whitehead $300,000.00 each to compensate them for actual damages resulting from retaliation by Hillsborough, in violation of Section 504 of the Rehabilitation Act of 1973. Because the court disallowed the parents’ request for punitive damages, this request was not submitted to the jury for their consideration.

Unfortunately, the jury was not provided with an instruction that defined discrimination under Section 504, so they could not find that the school district engaged in acts of intentional discrimination against young Andrew Whitehead.

A hearing has not yet been scheduled on the parents’ claim that the district’s system of administering the IDEA is discriminatory, in that it fails to provide rights and procedural remedies, as required under Section 504. In claims for declaratory and injunctive relief under Section 504, the element of intent is not required.

As you might expect, several important events occurred since the jury rendered their verdict on April 3.


Hillsborough School Board Requests New Trial or Reduction in Damages Awarded

On April 21, 1998, the Hillsborough School Board requested a new trial or a reduction of the damages awarded by the jury. Although the jury had decided for Andrew's parents, the Hillsborough School Board asked the court to enter a judgment in its favor. The School Board also asked the Court an order to make Andrew's parents responsible for the School Board's costs in defending the intentional discrimination issues (an amount in excess of $17,000.00).

As you know, Andrew's parents are entitled to be reimbursed for the fees and costs they incurred during the 1994 administrative hearing - the hearing where they prevailed. Still pending are the parents’ requests for fees related to the litigation under 42 U.S.C. and Section 1983. This litigation was necessary to enforce the administrative order by the Hearing Officer, and was related to their damages claims under Section 504.

Initial Problems

Parents Requested Speech/Language Therapy for Andrew

In the fall of 1992, Keith and Nikole Whitehead sought one hour of one-on-one a week of speech/language therapy for their son, Andrew, who has Down Syndrome.

After making this request, the parents experienced years of grief trying to secure help for their child. The School Board of Hillsborough County is the nation's twelvth largest school district.

School District Discontinued Services Without Parents' Knowledge or Consent; Child Regresses

Initially, this case involved the school district’s failure to provide Andrew with the services in his IEP in 1992, when he entered the district’s kindergarten program. Without providing his parents with any notice, the district stopped providing the one-one-one speech/language services in Andrew’s IEP. Andrew's parents did not know the school stopped providing these services until Andrew started losing language skills. At that point, the parents discovered that the school was not providing the agreed-upon services.


School District Reneged on Agreement to Provide Compensatory Services

The parents tried, without success, to resolve these problems with the school district. When they were unable to negotiate with the district, the parents asked the Office for Civil Rights (OCR) to intervene. At that point, the district agreed to an early resolution process and began providing the speech language therapy.

The district promised to consider providing Andrew with compensatory education.


School District Evaluated, Decided Child No Longer Needs Services


Instead of meeting to develop a plan to deal with Andrew' lost skills, as directed by OCR, the district convened an meeting to review Andrew’s IEP. At the IEP meeting, the district representatives claimed that new testing showed that Andrew did not need one-on-one services after all!

The parents asked to see this new testing, which was done without their knowledge or consent. The school district ignored their request. The school district also refused to consider information from a private sector evaluation provided by the parents.

School District Refused to Accept Evidence from Their Testing that Child's Skills Regressed

Both the school evaluation and the private evaluation showed that Andrew's language skills had regressed. Although Andrew had regressed, the school staff rewrote his IEP, removed the one-on-one speech language therapy, then refused to provide Andrew with compensatory education.

School District Failed to Provide Parents with Notice

The district also failed to provide the parents with Notice about state complaint procedures and administrative procedures that are available under Section 504. The district also failed to provide the parents with any written explanation or Notice about the refusal to provide Andrew with compensatory education services.

Parents Requested Due Process Hearing

During the summer of 1993, Andrew's parents asked for a due process hearing, as required by the IDEA. The due process hearing was held in September, 1993. The Florida Division of Administrative Hearings ("DOAH") assigned an impartial hearing officer to hear evidence in the case.

On January 11, 1994, the Hearing Officer entered an administrative order in favor of the parents. He made the following award:

Andrew would have individual speech/language services for the next academic year; Andrew would have a year of compensatory education services; Andrew's parents would be reimbursed for the expenses they incurred for evaluations and substitute educational services.

Hearing Officer Found Multiple Violations of IDEA, School Retaliated Against Parents

In his Final Order, the Hearing Officer determined that the district violated the IDEA in 17 ways, acted in bad faith, and retaliated against the parents. These violations included the School Board’s failure to honor the "stay put" provision of IDEA and the board's failure to make Andrew’s records available to his parents. The hearing officer also awarded attorney’s fees and costs. Fifteen months later, a substitute hearing officer rescinded this award of fees and costs.

School District's "Unwritten Practice" of Not Writing Individual Services in IEPs

In defending against the parents' request that Andrew’s IEP specify the services he needed and would receive, the district claimed that it had an unwritten, "implemented practice" that precluded them from writing individual services in students’ IEPs.

The school district also claimed that no child in the State of Florida had individual services written into his or her IEP. The school district insisted that decisions about the child’s need for one-on-one speech/language therapy is up to the discretion of the speech therapist (who may or may not be experienced, or licensed, or meet the state’s qualifications as a speech pathologist). The school district submitted a proposed order approving their own unwritten policy.

On January 11, 1994, the hearing officer issued an Order that rejected the School Board’s claim because their policy violated the IDEA.

School District Appeals Award of Attorneys' Fees

Although the school district asked the hearing officer to deny reimbursement to the parents (and provided no notice about the procedure for recovering fees), the district filed an appeal in a state appellate court to challenge the hearing officer’s authority to rule on attorney's fees. In this appeal, the school district claimed that the parents were barred from recovering fees because they did not plead them in their initial request for the due process hearing. Although the administrative proceeding was a local educational agency (LEA) proceeding under state law, the school district filed an appeal in state court, and did not seek administrative review from the Department of Education (the SEA)

The only portion of the Final Order challenged by the School Board was the award of fees.

Five months later, in June, 1994, the school district resumed its unlawful practice at the annual review of Andrew’s IEP. The parents requested that the Final Order be enforced - their request was denied. Apparently, the Court accepted 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 parents had to prove their claims in federal court, before they could give effect to the administrative findings and decision.

The parents amended their complaint to seek enforcement of the administrative order pursuant to the Civil Rights Act, 42 U.S.C. Sect; 1983.

On February 25, 1998, 49 ½ months after the Final Order (and just two weeks before the damages trial), the District Court entered an order declaring that the administrative order was final and enforceable.

School District Maintained "Private Files"

During the trial, school district representatives testified that decisions about the child’s need for individual services is up to the discretion of the school’s speech language therapist. Although the Hearing Officer determined that the School Board illegally denied the parents access to their son's educational records, the jury learned that the School Board continued to maintain "private files" of correspondence about OCR complaints.

The jury was presented with the "private file." This private file showed that the district misrepresented events to OCR about providing Andrew with compensatory educational services.

On February 25, 1998, the District Court entered an order that the unchallenged administrative order entered four years earlier was final.

Court Issues Injunction to Prohibit School from Refusing to Specify Services in IEP

On May 24, 1998, an injunction was entered that prohibits the School Board from failing to specify the special education and related services in Andrew's IEP - services that his IEP Team decides he needs.

Additional proceedings will be scheduled on the parents' request for injunctive and declaratory relief to address systemic violations, including the policy that permits the School Board to refuse to specify special education and related services on the IEPs of the 30,000 children with disabilities in the school district.

Throughout the process, the parents sought the assistance from administrative agencies, particularly the Florida Department of Education.

Florida DOE Refused to Monitor Compliance or Respond to Parents' Requests for Help

The Florida Department of Education claimed that they could not help - their hands were tied until the parents' litigation was resolved. The FDOE did not require the school district to cease it's unlawful policy against the 30,000 children with disabilities. The FDOE made no distinction between the pending litigation— which involved a question of the enforcement of an unchallenged administrative order—and litigation to challenge the outcome of the 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, to require FDOE to fulfill its duties under IDEA. The parents charged that the FDOE employed methods of administering IDEA that are inconsistent with the purpose of the program.

The parents claim 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 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) the FDOE failed to provide notice to parents of the state complaint procedure.

In response to the parents' lawsuit, the FDOE claimed that the Whiteheads failed to exhaust available state administrative remedies. In February, 1996, the District Court granted the FDOE’s motion to dismiss on these grounds.

Florida DOE Fails to Provide Parents with Notice

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 the 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 state laws that applied to the proceeding. Subsequently, the DOAH hearing officer requested briefing of his legal authority. Again, the FDOE 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 that DOAH did not have authority to declare state law inconsistent with federal law. Nonetheless, the DOAH failed to dismiss the action.

Because FDOE’s made numerous requests for continuance of the 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.

Florida DOE Hired Private, Out of State Counsel

Weeks before the hearing, the FDOE hired private, out of state counsel, to represent them in substitution for the Office of the Attorney General for the State of Florida. Pending at that time was the Whiteheads’ assertion that the hearing officer lacked authority to conduct the hearing.

The FDOE, through its new counsel, agreed that the hearing officer did not have authority to entertain the Whiteheads’ claims. Although the FDOE requested the DOAH proceeding, it claimed that the Whiteheads had requested the wrong kind of administrative proceeding and that the parents must still 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 they could present their challenge to a court.

The hearing officer recommended that the FDOE dismiss the administrative proceeding. The FDOE failed to act on this recommendation.

The parents have asked the District Court to reinstate their lawsuit against the FDOE and to conclude that exhaustion is excused or has occurred. In a limited appearance for the FDOE, the new out of state counsel reasserted that the parents 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 1993, shortly before they requested the due process heaing . For trial, the Whiteheads retained co-counsel services of Mitchell D. Franks, Esquire, and Dabney L. Conner,

I hope this article provides you and your readers with the "inside story" of Andrew Whitehead's jury trial.

Laura L. Whiteside, Esquire

318 South Edison Avenue
Tampa, Florida 33606- 2112
(813) 251-0456

Created: 06/06/98
Revised: 11/10/06



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