Law Brief

Legal Brief: Doe v. Withers Liability within the Educational System EDED 6312 School Law Dr. Jones Dallas Baptist University Spring 2012 Name of Case: Doe v. Withers Civil Action Number: 92-C-92 Subject: Liability The Facts: This civil court case takes place in a West Virginia school system located in Taylor County, when a general education high school history teacher failed to follow an IEP for Douglas Devart. During the case Devart and his parents Robert and Virginia ended up using aliases by the names of John Doe, Jane Doe and son D. D.

Doe as a deterrent from the public so the family would not endure any additional embarrassment, slander, and/or liable regarding the son’s handicap. The defendants of this case were D. D. ’s history teacher Michael Withers, Principal Greg Cartwright, Superintendent Wendell Teets and the Taylor County Board of Education. The following is a sequence of events that happened in chronological order that led up to the trial. Plaintiff D. D. was diagnosed as having a learning disability in the fourth grade while attending Anna Jarvis School in Taylor County.

At that time he had been put on an Individual Educational Program (a. k. a. IEP) designed to accommodate his learning disability as required by Public Law 94-142 and implementing federal regulations, 34 C. F. R. 300. 130 and implementing State Policy No. 2419, Section 1. 3, 1. 4 and 2. 11, because of his learning disability D. D. ’s educational program was adapted to provide oral testing by a learning disabilities teacher in a learning disabilities resource classroom. This accommodation was regularly provided at Anna Jarvis School and Grafton Middle School.

When the Plaintiff, D. D. , entered Grafton High School it was shown that he received low grades in most subjects during the first quarter of his freshman year concerned of their sons low performance D. D. ’s parents scheduled meetings with all of his teachers to discuss their son’s IEP and to make sure his needs were being met. After meeting with D. D. ’s parents all teachers except Michael Withers agreed to comply with the oral testing accommodation. After this meeting and as time passed the defendant, Michael Withers, still refused to comply with the plaintiffs, D.

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D. , IEP. Later in the semester D. D. delivered a note from the special education coordinator at Grafton High School directing that Mr. Withers, “must have the Plaintiff tested orally by the learning disabilities teacher in the learning disability resource room. ” Mr. Withers still refused to comply and ended up administer approximately nine (9) more written tests to D. D. , most of which he failed because of his handicap. There are multiple occasions during history class that Mr. Withers insulted and belittled D. D. penly to other students causing him to become extremely embarrassed and angry. Around mid-November, after grade reports were sent home to D. D. ’s parents, the parents attempted to meet again with Michael Withers. No meeting ever occurred due to the defendant being out of town hunting. As a direct and immediate result of the negligence and/or undeviating denial of D. D. ’s IEP, D. D. failed his history course during the fall school semester. He received zero credits on his permanent school record which forced D. D. o participate in any extracurricular activities. In early spring Mr. Withers left Grafton High on a leave of absence, once he was replaced by a permanent substitute teacher D. D. ’s IEP was promptly followed. As a result of being properly evaluated during the second semester, D. D. ’s improved in history to passing. A grievance was filed against Michael Withers, regarding his acts towards D. D. The Taylor County Board of Education was required to administer a comprehensive examination which prepared the student for an entire semester’s examination and testing.

This re-preparation and re-testing along with receiving no credits force D. D. to feel shame and embarrassment within the school community. After the comprehensive exam D. D. was passing all courses at Grafton High. Major Issue: Did Michael Withers, Principal Greg Cartwright, Superintendent Wendell Teets and the Taylor County Board of Education accommodate Douglas Devart’s learning disability as required by Public Law 94-142 and implementing federal regulations, 34 C.

F. R. 300. 130 and implementing State Policy No. 2419, Section 1. 3, 1. 4 and 2. 11. The Opposing Viewpoints: The school district and other participants were following law and federal regulations, however the general education teacher was not ensuing to the terms set forth in the IEP. The Courts Decision and Analysis: Doe v. Withers was decided in part of “section 1983”. Section 1983, also known as United States Code Section 1983 states, Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. ”.

Free and Appropriate Public Education (FAPE) mandates that school districts provide access to general education and specialized educational services, as stated in the above code. It also requires that children with disabilities receive support free of charge as is provided to non-disabled students. It also provides access to general education services for children with disabilities by encouraging that support and related services be provided to children in their general education settings as much as possible. Mr. Withers failed to comply with the expectations of FAPE due to the fact that he willingly refused to accommodate D.

D. ’s IEP. A main issue a jury had was Mr. Withers was aware of the instructional requirements for the student, yet he deliberately ignored them. A jury found in favor of the Devart’s and awarded them damages against Withers in the amount of $15,000, $5,000 in compensatory damages and $10,000 in punitive damages. The special education teacher, school principal, director of Special Education, and the Superintendent were all dismissed from the case because they had told Withers in one way or another to follow the IEP.

Significance of Case for Educators: The first and most significant issue in this case is that it was the very first special education jury trail and the first special education dollar damage trail. The case paved the way for subsequent educational damage cases including W. B. v. Matula (currently treated negatively), Witte v. Clark (also overturned in court of appeals), Whitehead v. School Board of Hillsborough County, and Goleta Union Elementary School District v. Andrew Ordway. Doe v.

Withers set the stage that a general education teacher can be held financially liable for the rules and government regulations that are put forth for a child in their IEP or 504 Plan. Not only does the case start financial damages awarded to families of students who have a disability, but Doe v. Withers also shows that educators are liable for law and regulations set by the district, state, and federal government. There where multiple people in this case that took the time to document and focus their concerns towards the students IEP. All but one eneral education teacher followed the expectations within the IEP, he was the only one in the case that was held liable since he willingly refused to comply. The case has brought up three important points; almost as if a check list or set of concerns that every regular educational teacher would need to know. As a regular education teacher you have an obligation by law to make sure every child has a “Free and Appropriate education”. Free and appropriate are words that eliminate such terms as fair. Abiding by rules and regulations, even when a teacher finds them inappropriate, is expected and mandated.

The first is a set of questions they need to be asking themselves on a weekly basis are (a) which students in my class have an IEP or a 504 Plan? (b) Have a personally reviewed each IEP or 504 Plan? (c) Do I remember what these documents say? (d) Am I making “a good faith effort” at implementing each IEP or 504 Plan? (e) Do I have any proof that I am implementing the IEPs and 504 Plans? If they can not answer these questions with a definite yes then they are not following the law and are out of compliance and in turn can be held liable for punitive and compensatory damages.

These teachers need to evaluate their teaching styles, skills, purpose, and classroom situations. Lastly teachers who willfully fail to implement a child’s IEP or 504 Plan may be at risk of personal liability, the F in FAPE stands for free not fair. There is a big difference between the two, and even though teachers may find that the plan is inappropriate for the disabled student and not fair to everyone else, they are still liable for that child receiving a FREE and appropriate education. Current law states that: Public Law 94-142 is summarized by saying that it Is the purpose of this Act to assure that all handicapped children have available to them, within the time periods specified in section 612(2) (B). a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist States and localities to provide for the education of all handicapped children and to assess and assure the effectiveness of efforts to educate handicapped hildren. * 20 USC 1415 states that you must provide both pupils with exceptional needs and their parents with specific rights, also known as procedural safeguards. These rights include a request for a due process hearing, request for mediation before or after requesting a due process hearing, or request alternative dispute resolution. Statues do not require mediation or alternative dispute resolution prior to a due process hearing. Mediation and alternative dispute resolution are voluntary, informal and do not include attorneys. (20 USC 1415 et seq. , Education Code § 56500 et seq. * 34 CFR 300. 350 (a) Provision of services. Subject to paragraph (b) of this section, each public agency must— (1) Provide special education and related services to a child with a disability in accordance with the child’s IEP; and (2) Make a good faith effort to assist the child to achieve the goals and objectives or benchmarks listed in the IEP. (b) Accountability. Part B of the Act does not require that any agency, teacher, or other person be held accountable if a child does not achieve the growth projected in the annual goals and benchmarks or objectives.

However, the Act does not prohibit a State or public agency from establishing its own accountability systems regarding teacher, school, or agency performance. As you can see above it is the educators responsibility to maintain a Free and Appropriate education to all students, handicap or not. 34 CFR 300. 350 shows as long as you make a good faith effort to assist the child you are not held accountable. The court case addresses the aspect of who is liable when this type of regulation is not met.

Only one defendant was charged with the damages due to the fact he deliberately did not follow the students IEP. As long as teachers are willingly trying to make an attempt of applying an IEP or 504 Plan then and only then are they not be held legally liable of that child’s performance. Ethically and morally as an employee of the school system you should make every effort that a “Free and Appropriate” education is being met for all students, whether or not you agree or don’t agree.

If you are deliberately out of compliance when dealing with students’ special needs you can be liable for that student and could end up paying punitive and compensatory damages. Sources: http://www. constitution. org http://idea. ed. gov http://www. law. cornell. edu http://www. legalinfo. ca. gov http://www. ncls. org http://wrigthslaw http://www. rec4. com Kemere, R. , Maniotis, L. ; Walsh, J. (2010). The Educator’s Guide to Texas School Law (7th edition) William F. Byrne and Hedges Law Firm Danny Ippolitto

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