ALERT: New Decision in Witte v. Clark County School Brutality Case
(September 23, 2002)

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:

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:

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.

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.

* 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.

“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.



* Complaint in Shawn Witte's case (March 2, 1998)

* Decision #1 by the U. S. Court of Appeals for the Ninth Circuit (Dec 2,

* Wrightslaw Alert about Shawn Witte’s case (December 3, 1999)

* Update on Witte case (Dec 7, 1999)

* Key Issues in Witte v. Clark County School District by Pete Wright (Dec
16, 1999)

* Decision #2 by U. S. Court of Appeals for the Ninth Circuit (September
10, 2002)



The Special Ed Advocate is a free online newsletter about special education legal and advocacy issues, cases, tactics and strategy, and Internet resources.

Subscribers receive announcements and alerts about new cases, events, and special offers on Wrightslaw books.


Back issues: 


Wrightslaw & The Special Ed Advocate (ISSN: 1538-3202)
Pete and Pam Wright
P. O. Box 1008 
Deltaville, VA 23043