Brief 1

Bernadette Harris May 25, 2009 EDA6232 Brief #1 Title/Caption: Whitehead v. School Board of Hillsborough County, 918 F. Supp. 1515, 24 IDELR 21, (M.D. FL 1996) Facts: Keith and Nicole Whitehead, parents of Andrew Whitehead, sued the Hillsborough, FL school district for failure to provide a free appropriate education for their child with special needs. Their child was in need of speech and language therapy, and the district refused to provide him services or design an I.E.P. for him. The parents began at the district level, with a local hearing without a jury and were ordered to provide an I.E.P. which included language therapy. Procedural History: In prior hearing, the district had been ordered to provide the child with an I.E.P. which included speech and language therapy. The district refused to comply, arguing that they had an “unwritten practice” of not writing I.E.P.’s. Instead, without notifying the parents, they tested the student and decided he didn’t need services, and refused to provide any. The child’s language and speech continued to regress. The following year, the parents requested a due process hearing, as entitled by I.D.E.A. The judge ordered in favor of the parents, and ordered the district to provide a year of speech and language therapy and an additional year of compensatory services, and then reevaluate the child’s I.E.P. They awarded the parents attorney’s fees and costs, as well. Five months later, the district filed to have the case reheard and the monetary award reversed, during which time they still refused to enforce or implement the child’s I.E.P.! The order was instead upheld, and the district still refused to comply. This decision on the part of the school district resulted in the court entering an injunction that prohibits the school board from failing to specify special education needs or to create I.E.P.’s. The district still failed to provide services, so the parents appealed to the Florida Dept of Education, who refused to intervene. Issues: Was the Hillsborough County School District negligent in providing an appropriate free education for this student, and for not implementing and following an I.E.P. for the child’s special needs, according to the provisions of IDEA? Holdings: The district willingly neglected the student’s special education needs, and their obligation under I.D.E.A. to provide for them. Even after being ordered in a preliminary local hearing to provide services, they deliberately failed to do so. The district’s refusal to comply with the court’s decision contributed to the child’s language and speech regression. The repeated negligence on the part of the district caused an injunction to be imposed on the school district in a later court hearing. Despite this injunction, the district continued to violate IDEA mandates by failing to implement the IEP and allowing the student’s education to suffer. Rationale: At the hearing, the officer found the district had committed 17 violations of I.D.E.A., and had acted in bad faith. The district deliberately retaliated against the

parents by testing the child without consent and by not providing the parents with proper complaint procedure information. They also chose to ignore the court order to implement the child’s I.E.P., as well as the injunction that stated they could not specify special education needs, nor elect to not provide I.E.P.’s. Under IDEA, districts, schools and individual teachers are mandated to comply with all stipulations of students’ IEP’s, without exception. The refusal to implement or comply with an IEP is considered willful misconduct and bad faith on the part of the district. Disposition: The courts awarded the parents $600,000 in damages! [ The parents are still seeking further compensation through litigation.] The case is still active, as the parents continue to exhaust all state level remedies and have their case heard by the Department of Education. They attempted to appeal to the Dept. of Education for further punitive damages, but the federal courts found the parents had not yet exhausted all attempts at state remedies. If eventually able to appeal to the federal courts, the plaintiffs could also cite the district’s violation of the Rehabilitation Act of 1973 which protects students with disabilities’ rights to a free and appropriate public education. Concurrence: None 1. Why did you choose this case? How does it specifically relate to your individual project topic? I chose this case because it involves litigation with regard to a district’s failure to implement (or follow) a student’s I.E.P. This is the basis of my individual project, as I am seeking to explore whether we, as a state, are currently efficiently servicing our special needs students, and adhering to their I.E.P.’s in our public schools. I am also exploring whether our current policy of inclusion is an adequate and effective means of meeting the needs of these students. This case relates specifically, as it involves the parents’ struggle to get the school district to provide the services their child needed, and the court’s ruling in their favor. It is another example of the courts’ ruling against educational entities who refuse to comply with modifications and accommodations noted in student IEP’s. 2. Do you agree or disagree with the decision? I completely agree with the court’s decision in this case. The Individuals with Disabilities Education Act (I.D.E.A) states that schools, teachers and districts are bound by law to comply with all terms stated in a student’s IEP. Neither the teacher, school or district has the authority to implement a “non-IEP” policy. The school had been ordered to supply special services to the child, and they refused. The district deliberately retaliated against the decision by retesting the child without the parents’ consent, making its own determination to terminate services, and then terminated them without notifying the parents. The district also claimed to have an “unwritten” policy of not writing I.E.P.’s, which violates another section of I.D.E.A.

3. As a future leader in education, how would you handle a similar situation? If I found that I was working within the confines of a district that was trying to implement a policy that blatantly violated federal law such as the aforementioned case had, I would take the necessary steps to implement change. For example, I would collect as much research and documentation to support my argument and bring it before the district’s superintendent. If I were unsuccessful in that effort, I would then bring a complaint before the school board, and eventually up the chain of command from there. At the individual school level of administration, however, I would indeed have my ESE team create and enforce the implementation of the student’s IEP and would be ready to defend my actions if complaint were brought against me by the district.