W.Va. SC rejects illiterate's educational malpractice suit

John O'Brien Dec. 2, 2008, 4:25pm


CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court has refused the argument of a man who says the public school system didn't adequately prepare him to become a functioning member of society.

Thomas Sturm originally filed suit in 2006 against the Kanawha County Board of Education, a year after he was awarded Social Security Income benefits because he is functionally illiterate, unable to perform activities within a schedule and unable to maintain regular attendance.

A federal court had ruled that Sturm did not exhaust possible remedies under the Individuals With Disabilities Education Act. The Kanawha Circuit Court then ruled that he had failed to exhaust possible remedies under the state's Regulations for the Education of Exceptional Students, a similar law to the federal IDEA.

"(W)e now hold that prior to bringing a civil suit for failure to provide a free appropriate public education under the Regulations for the Education of Students with Exceptionalities... a complainant must first exhaust his or her administrative remedies provided under the regulations or meet the burden of proving an exception to the exhaustion requirement," Chief Justice Spike Maynard wrote.

"Neither the appellant nor his parents exhausted the administrative remedies provided for in Policy 2419. Therefore, it is incumbent upon the appellant to prove an exception to the exhaustion requirement.

"In his brief to this Court, the appellant argues that the circuit court erred in dismissing his claims for failure to exhaust his administrative remedies when, in fact, no administrative remedies were available to the appellant after he graduated. This argument is not well taken.

"The fact is the appellant and/or his parents had 12 years in which to utilize their administrative remedies to address any alleged deficiencies in the appellant's education, and they failed to do so. Obviously, a party cannot stand mute until the time in which to seek redress of perceived wrongs has passed and then complain that he or she no longer has a remedy.

Sturm's original complaint asked for $1 million in punitive damages, but attorney Michael Clifford admitted, "That's just a number a thought up and stuck in there. It's a nice, round one there."

Sturm attended Sissonville High School. He said the school gave him a diploma he didn't earn or deserve.

The justices voted unanimously to hear the case in February.

"Do you contend there is a constitutional right for this child to receive an education?" Benjamin asked at the hearing, to which Sturm attorney Barbara Harmon-Schamberger answered affirmatively. "That the Board of Education recognized that through its use of IEPs (Individualized Education Programs) which the BOE then turned around and did not follow."

Harmon-Schamberger, who was West Virginia's first female Rhodes Scholar and is a former state Secretary of Education, said the board simply didn't do enough for Sturm.

"The minute his grades dropped below a C-minus there should have been a team meeting, nothing was ever done," she argued. "When they did have team meetings the appropriate personnel was never there. There was supposed to be a positive behavior plan, none was ever put in place.

"The school system doesn't get up every day and deal with every C-minus student and say, 'How can we hide this C-minus performance?' In this case, they did. They affirmatively deprived this child of steps and actions and remediation. They just wanted to get rid of him, just pass him through."

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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