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to Parents of Handicapped Child
School District Fails to Provide FAPE;
Retaliates Against Parents and Child
APRIL 3, 1998. Five years after they requested a special education due process hearing. Andrew Whitehead’s parents had their day in court.
Andrew’s father told Pete that the trial continued for nearly two weeks. 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 site:
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requested a special education due process hearing against the Hillsborough County School Board about services that were withdrawn from their son’s IEP.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 that
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.
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 the
. . . .
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 has represented the Whiteheads from the due process hearing in 1993 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.
We will publish new developments in this case as they occur. We uploaded a copy of the special education due process decision on this site - case_whitehead_hillsborough.html
Laura Whiteside has provided us with an article about "The Inside Story" which we have added to The Special Ed Advocacy Library. See ltr_whiteside_980606.html
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Subscribers to the Wrightslaw Newsletter had our initial ALERT about this case in their InBox on Sunday, April 5, 1998. They were among the first to know about this Six Hundred Thousand Dollar Verdict! Do you subscribe? If not, the link to the free newsletter is below.