ESE lawsuit continues in federal court
Lawyers for the late Isabella Herrera are continuing to pursue a federal lawsuit against the Hillsborough County school district and have requested a court hearing to plead their case. In a 21-page motion filed last week, they also re-stated their allegations of longstanding problems in Hillsborough's exceptional student education department.
This is the second go-around in U.S. District Court. In March, Judge James Moody rejected the civil rights lawsuit, stating -- among other things -- that it resembles a state negligence suit.
But he gave lawyers the option of re-filing, and they did.
Isabella, 7, died after suffering respiratory distress on a school bus on Jan. 25, 2012. A neuromuscular disorder made it difficult for her to sit up straight, and the two employees on the bus did not call 911. Instead they followed a protocol -- which has since been revised -- of alerting their supervisors.
The public and most of the School Board learned of Isabella's death nine months later, around the time special-needs student Jennifer Caballero drowned in a pond behind Rodgers Middle School. Since then, the district has been revising incident reporting and staff training systems for ESE. The effort is ongoing, with focus groups planned this summer and paraprofessional training planned before the new school year begins.
The lawsuit hinges on a number of key questions, including whether the district discriminates against ESE students. The two law firms representing the Herrera family are trying to prove that a pattern of low pay and inadequate training, resulting in a series of incidents dating back to 1999, amount to deliberate indifference.
The district, for its part, has argued that the allegations lack proof, do not meet a "gross misjudgment" standard that the courts have found very difficult to satisfy, and do not meet the tests for a federal suit. In some cases, the district argues, the lawyers are raising issues covered by the Individuals with Disabilities Education Act -- for example, whether the district followed Isabella's Individualized Education Plan -- even though they are trying to prove discrimination under the Americans with Disabilities Act.
On Friday, the school district filed a motion saying it will issue a four-page response to last week's document.