Hillsborough school officials argue disabled child's death doesn't warrant federal suit

Published Dec. 28, 2012

TAMPA — The death of a disabled 7-year-old child after she stopped breathing on a school bus this year does not warrant a federal lawsuit, Hillsborough County school officials said in a court motion.

In the first response since Isabella Herrera's family sued in federal court Nov. 1, the district argued that events leading up to her death do not demonstrate a violation of civil rights laws that protect disabled children.

The district asked that the case be dismissed.

Isabella, who had a neuromuscular disorder that made it hard to hold her head up, was on her way home from Sessums Elementary School on Jan. 25 when an aide on the bus noticed her head was bobbing up and down.

The lawsuit alleges the aide and driver failed to secure Isabella properly in her wheelchair.

According to the bus video, the driver pulled over and the aide tried to comfort Isabella, who was struggling to breathe. Neither the driver nor the aide called 911, though both had cell phones and made calls to their supervisor and Isabella's mother.

Isabella's mother arrived and called 911. By the time help came, about 15 minutes had passed. Isabella was nonresponsive when she arrived at a hospital. She was pronounced dead the next day.

The Herreras allege their child's civil rights were violated.

The response, filed Wednesday, lists numerous grounds for dismissal. Among them:

• While the family sued the School Board and the district, attorney Thomas Gonzalez argues that the district is not a government entity but a geographical area. District employees, including the driver and aide, work for the School Board.

• The lawsuit alleges the district failed to honor its obligations under the Individuals with Disabilities Education Act. That federal law calls for an individualized education program. In Isabella's case, it included safe transportation. But the suit invokes not the IDEA, but the Americans with Disabilities Act and the 14th Amendment to the Constitution.

• The lawsuit describes acts that could be considered negligent but alleges discrimination, not negligence. The motion goes on to say the Herreras failed to establish any intent to mistreat disabled children, which it would need to prove discrimination.

"Nowhere in the complaint do the plaintiffs allege that any actions or inactions by the bus driver or bus aide were the result of deliberate conduct on the part of the school board," the motion says. "Additionally, nowhere in the amended complaint do the plaintiffs allege that the school board was the 'moving force' behind plaintiff's injury."

The suit, however, seeks to prove a pattern of mistreatment. The district, it says, appears to have engaged in "an egregious pattern of failing to ensure the safety and well-being of special needs students" before and after Isabella's death.

Steven Maher, whose Orlando law firm represents the Herreras, said: "I can't comment on the motion to dismiss as it is a motion that is currently pending before the court. We will be filing an opposition to the motion that will contain our position."

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Isabella was the first of two Riverview area students with disabilities to die this year under circumstances that involved school district employees.

On Oct. 22, Jennifer Caballero, who had Down syndrome, wandered from a gym class at Rodgers Middle School and drowned in a nearby pond.

Six exceptional student education aides were in the crowded gym class. Five are on suspension pending a district investigation. The sixth was with another child when Jennifer disappeared.

The Herreras announced their lawsuit nine days after Jennifer's death, and that was the first time some School Board members had learned about the tragedy.

District officials said there was no written report about Isabella's death. They said they found no reason to investigate the driver or aide, as protocol would have them call their supervisors.

But after the information became public, superintendent MaryEllen Elia issued a memo making it clear employees can call 911 in an emergency. And she said there was never a prohibition against calling 911.

The two deaths — and the handling of information after Isabella's death — have led to heated School Board discussions. And they have brought about efforts to shore up training and emergency procedures in exceptional student education, which serves 29,000 students.

A work group, commissioned by Elia, issued an 88-page report that calls for standardized training, verification of training, and electronic records to make bus employees aware of students' medical needs. The report also calls for documentation of medical incidents such as Isabella's.

The district's special education chief, Joyce Wieland, recently took a transfer to another district job. The School Board plans to hold a three-hour workshop on ESE in January.

Marlene Sokol can be reached at (813) 226-3356 or