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to Parents of Handicapped Child
School District Failed to Provide FAPE;
Retaliated Against Parents and Child
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
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
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requested a special education due process hearing against the Hillsborough County School Board about services that were withdrawn from their son’s IEP.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
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
. . . .
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.
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.