Brief #3

Bernadette Harris June 10, 2009 EDA6232 Brief #3 Title/Caption: Doe & Doe v. Withers, 20 IDELR 422 Facts: Joe and Jane Doe, on behalf of their minor son, D.D., sued the teacher, principal, superintendent and school board of Taylor County, West Virginia for refusing to follow the student’s IEP. The Doe’s alleged that the defendants had violated their son’s right to a free and appropriate education under IDEA. The IEP had been instituted for several years prior to their son entering high school, and the results of the IEP had been satisfactory to the parents. The child had been successful despite his disability. Upon entering high school, a teacher was allowed to refuse to comply with the IEP, and their child began to fail. Procedural History: Mr. & Mrs. Doe had their son diagnosed with a learning disability in fourth grade. He was placed on an IEP (Individual Education Plan) by the exceptional student services team at his elementary school. The IEP included an accommodation that D.D. was to be given all testing orally, due to his learning disability. All tests were to be administered orally, by an exceptional education teacher, in a “learning disability resource” room. Throughout elementary and middle school, all of D.D.’s teachers complied with the IEP and D.D. received satisfactory grades in all subjects. When D.D. entered Grafton High School, he began receiving poor grades, so Mr. & Mrs. Doe attended a conference with the teachers to discuss the IEP and stress the need for the special accommodations for testing. All of D.D.’s teachers with the exception of Mr. Withers, the history teacher, agreed to comply. The special education coordinator for the school then sent Mr. Withers written notice that D.D. needed special testing accommodations. Mr. Withers continued to refuse to comply. Instead, he continued throughout the semester to administer nine more written tests to D.D., which he failed because of his learning disability. In addition, Mr. Withers berated and insulted D.D. in front of his classmates, causing him humiliation and embarrassment. When the next set of report cards were sent home, Mr. & Mrs. Doe attempted to meet with Mr. Withers, but he never met with them. Mr. Withers then went on a leave of absence and was replaced by a substitute teacher who immediately complied with the IEP and D.D.’s grades immediately improved. Issues: Were the teacher, principal, superintendent and school board in violation of IDEA law as well as FAPE for Mr. Withers’ refusal to follow the student’s IEP? Holdings The court decided that during all relevant time periods pursuant to the case, the principal and superintendent either knew or should have known of Mr. Withers’ refusal to comply with the student’s IEP, violating both state and federal law and failed to enforce his compliance. They also ruled that as a result of the negligent and intentional acts and omissions on the part of the defendants, the student failed the first semester of the course and received 0 credit on his permanent school record. In addition, the teacher acted in bad faith and neglected due diligence in his refusal to provide for the IEP’s

accommodations. In doing so, all defendants in the case violated the student’s rights under IDEA. Rationale: . The courts ruled that the defendants had committed a deprivation of civil rights in violation of the U.S. Constitution, section 504. This section addresses the rights of students with disabilities to a Free and Appropriate Public Education (FAPE). The teacher’s refusal to comply with an IEP designed to provide a free and appropriate education to D.D., accommodating his disability, and the remaining defendant’s failure to act on this refusal violated D.D.’s constitutional rights. In addition, all defendants were bound by IDEA to follow all provisions called for in the student’s IEP and had refused to do so. Disposition: The courts originally awarded compensatory damages as follows: $30,000 against Mr. Withers $10,000 against the school principal $10,000 against the superintendent $10,000 against the school board Concurrence: None 1. Why did you choose this case? How does it specifically relate to your individual project topic? I chose this case based on my research for my individual project. I find it almost unbelievable that a teacher would blatantly refuse to comply with a state directed legal document, which is what an IEP is. The teacher must have known, as having been informed by the ESE coordinator, that he was bound by law to accommodate the student according to the IEP. It also was puzzling to me why the teacher would refuse, since there was really no additional work to be done on his part. The student was supposed to have the oral test administered by an ESE teacher in a separate room, which meant the teacher did not even have to administer the test! 2. Do you agree or disagree with the decision? I absolutely agree with the decision, and probably would have awarded even more in compensatory damages to the family. The stress that this student had to suffer at the hands of this teacher was completely unacceptable. In addition to his grades suffering, he was humiliated, verbally abused and caused great distress being forced to take tests in a manner that was not possible for him with his disability. This could have led to the family seeking further damages for psychological damage. The teacher’s conduct in this situation was completely disgraceful and his certification should be revoked. 3. As a future educational leader, how might you either a) prevent a similar situation –orb) handle a similar situation? In a similar situation as the school leader, I would have a policy in place at my school, as well as training that took place on an annual basis. During the mandatory training, all teachers would participate in an information session/workshop regarding IEP’s and 504 plans, the legal implications that they carry, and their liability to comply with them. At

the close of the session, teachers would sign a document acknowledging their attendance at the session as well as their understanding of their obligation to comply with IEP’s and 504 Plans. This would include a section where the teacher acknowledges that they can be immediately terminated by the school for refusing to comply. I would also work closely with my ESE coordinators, teachers and school psychologists conveying to them that I would want to be immediately informed of any concerns they may have about a student’s accommodations not being met in the classroom.