Federal ESE lawsuit will proceed in Hillsborough
When the Herrera family first sued the Hillsborough County school district in federal court, Judge James Moody didn't think they had a case.
"Plaintiffs’ initial complaint alleged repeated conclusions of Defendants’ 'deliberate indifference' and 'pattern, practice, and custom of failing to ensure the safety and well-being of special needs students,'” Moody wrote.
He allowed them to re-file, and they did. Now he's letting the discrimination suit proceed.
"Plaintiffs’ second amended complaint, however, includes sufficient facts of a policy, practice, or custom, which caused I.H.’s injury," he wrote in his order on Tuesday, denying the district's motion to dismiss the Nov. 1 complaint.
"For example, Plaintiffs allege that: Defendants knowingly hired a Director of ESE who had no meaningful training, certification, or background in ESE; there were multiple incidents involving injuries and deaths of ESE students in Hillsborough County before and after I.H.’s death, and that these incidents demonstrate a pattern and practice of disregarding the safety and rights of ESE students."
Federal court is an unusual venue for such a lawsuit. But if the Herreras had filed a negligence suit in state court, the award would have been limited by sovereign immunity.
Instead, they are trying to prove that the ESE services in the Hillsborough school district are so lacking that they amount to discrimination.
While the district did not conduct an investigation after Isabella's death, its lawyer has argued that investigations did take place after the other incidents, and that no such discriminatory behavior exists.