9TH Circuit Issues Landmark Decision in Damages/Brutality Case

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9TH Circuit Issues Landmark Decision in Damages/Brutality Case

Friday, December 3, 1999

RE: WITTE v. CLARK COUNTY: 9TH CIRCUIT ISSUES DECISION ABOUT DAMAGES IN

SCHOOL BRUTALITY CASE (DECEMBER 2, 1999)

The Ninth Circuit Court reversed a lower court decision sending back

for trial a suit for damages in WITTE v. CLARK COUNTY Nevada. The Circuit

Court ruled that since the suit was for monetary damages only, it is not a

requirement by the IDEA that the plaintiffs be required to exhaust the

formal administrative processes of the IDEA first, and only then be allowed

into Federal Court. Here is the background to this incredible and

horrendous case.

With his hands held behind his back, school officials forced to

eat his own vomit. According to the pleadings filed in Court, 's

nightmare got worse.

has Tourette's Syndrome, asthma, attention deficit hyperactivity

disorder, and emotional problems.

[NOTE: This afternoon, Pete talked to '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 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, 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, 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,

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 [] 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 for red marks on his neck

which were " consistent " with " strangulation. " (The instructional

assistant, at the direction of the teacher, choked in an attempt

to make him run faster).

EMOTIONAL ABUSE AND THREATS

" was threatened with physical harm if he ever told his mother

what

was happening to him at school. "

Eventually, did tell his mother.

When his mother complained to the principal, she was also threatened.

The principal threatened that would be taken away if his mother

tried to remove him from Variety School.

The principal and teacher threatened 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, 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. "

To read the decision, go to the Law Library website:

PDF:

http://www.wrightslaw.com/law/caselaw/case_Witte_Co_9th_991202.pdf

Html:

http://www.wrightslaw.com/law/caselaw/case_Witte_Co_9th_991202.htm

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