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Subj:    ALERT! 9th CIRCUIT DECISION IN DAMAGES CASE
Date:    12/3/99 2:00:32 PM Pacific Standard Time
From:    pwright@wrightslaw.com (Pam & Pete Wright)
Sender:    owner-special-ed-advocate@wrightslaw.com
To:    special-ed-advocate@wrightslaw.com

ALERT! NINTH CIRCUIT ISSUES LANDMARK DECISION IN DAMAGES CASE

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WITTE v. CLARK COUNTY: 9TH CIRCUIT ISSUES DECISION ABOUT DAMAGES IN SCHOOL BRUTALITY CASE (DECEMBER 2, 1999)

With his hands held behind his back, school officials forced Shawn to eat his own vomit. According to the pleadings filed in Court, Shawn's nightmare got worse.

Shawn has Tourette's Syndrome, asthma, attention deficit hyperactivity disorder, and emotional problems.

[NOTE: This afternoon, Pete talked to Shawn's attorney, Sara Winter. She promised to provide us with a copy of the Complaint that was filed in Court and the "Inside Story" of the case. After the Complaint and "Inside Story" are posted on the website, you'll receive an issue of THE SPECIAL ED ADVOCATE.]

The court pleadings report that in 1995, 8 year old Shawn was placed in the Variety School. Variety School is a Nevada public school that provides special education services for disabled children. Between 1995 and January, 1998, Shawn was physically and emotionally abused and tormented by his teacher and other school staff.

In 1998, without exhausting administrative procedures and requesting a special education due process hearing, Shawn and his mother filed suit in Federal Court. They brought an action for compensatory and punitive
monetary damages against the school district and three individuals, Robert Henry (program director), Beverly Minnear (principal of Variety School) and Woodard Macke (teacher) for violations of the Rehabilitation Act and the Americans with Disabilities Act (ADA), and tort claims under state law.

The District Court dismissed their action because they failed to exhaust administrative remedies under IDEA.

On Thursday, December 2, 1999, the Ninth Circuit reversed.

* * PHYSICAL ABUSE * *

The Ninth Circuit found that:

"Plaintiff was repeatedly subjected to a procedure known as a "take down." In a "take down," Macke [the teacher] or another staff person under his direction forced Plaintiff [Shawn] onto a mat on the ground, on his stomach, and restrained [his] arms and legs by forcibly crossing them behind his back. Macke or another staff person under his direction sat on top of Plaintiff, applying pressure to his buttocks or spine, and refused to get up until Plaintiff cried or screamed. The "take down" procedure was inflicted as punishment for action that were related to Plaintiff's disabilities, such as his making involuntary body movements or tics."

The physical abuse continued:

"Plaintiff had weights strapped to his ankles and was forced to walk on a treadmill, set at a high speed, in an effort to tire him or prevent him from leaving the classroom. When Plaintiff fell down on the treadmill, he was forcibly picked up and made to continue. The inability to control movements, and the impulse to move, are common
characteristics of the disabilities that the Plaintiff has."

An emergency room physician treated Shawn for red marks on his neck which were "consistent" with "strangulation." (The instructional assistant, at the direction of the teacher, choked Shawn in an attempt to make him run faster)

* * EMOTIONAL ABUSE AND THREATS * *

Shawn "was threatened with physical harm if he ever told his mother what was happening to him at school."

Eventually, Shawn did tell his mother.

When his mother complained to the principal, she was also threatened. The principal threatened that Shawn would be taken away if his mother tried to remove him from Variety School.

The principal and teacher threatened Shawn that if he told his mother what was happening at school, he would be taken away from her and would be sent to jail for being a liar.

What triggered these abuses?

According to the Ninth Circuit, Shawn was abused for:

"making noise in the classroom, not running fast enough, not staying on task, not cutting his food, and making involuntary body movements. These actions are characteristics of the child's disabilities and occurred
because of his disabilities."

How did the Ninth Circuit resolve the issues in this case?

Read WITTE V. CLARK COUNTY SCHOOL DISTRICT in the WRIGHTSLAW LAW LIBRARY:

PDF:
http://www.wrightslaw.com/law/caselaw/case_Witte_ClarkCo_9th_991202.pdf

Html:
http://www.wrightslaw.com/law/caselaw/case_Witte_ClarkCo_9th_991202.htm

Stories and cases continue to unfold. As we did with our Creative Solutions Contest, we will keep you posted as this story unfolds.

Did the Clark County School District know about the conduct of their staff at Variety School?

Was there a district handbook on the use of "aversives" on children with disabilities.

Did school staff resign from Variety School on their own accord?

Did the State Department of Education know about the activities in Clark County?

Did the Nevada Legislature know?

More to come . . .

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END