Complaint leading to Supreme Court appeal tells of harassment, indifference

Parents say boy abused daughter on Barnstable school bus for months
Lawsuit seeks $3.75 million in compensatory, punitive damages

By James Kinsella

A U.S. Supreme Court decision released Wednesday focused the attention of educators and lawyers across the nation on what legal avenues families can pursue in sexual harassment cases involving schools.

The complaint, if true, details a relentless pattern of indifferenceand inaction on the part of school officials toward the distress of a5-year-old kindergarten student.

But a revisiting of the original 2002 complaint, filed against the Barnstable School Committee and then-Superintendent Russell Dever, raises the question of why school officials acted as they did.

The complaint, if true, details a relentless pattern of indifference and inaction on the part of school officials toward the distress of a 5-year-old kindergarten student.

No comment on the case was available Thursday from the Barnstable school district nor from Stoneman, Chander & Miller LLP, the Boston firm handling the case for the district.

The plaintiffs, the parents of the student, initially sought compensatory damages of $750,000 and punitive damages of $3 million.

The plaintiffs' attorney, Wendy Kaplan, said she plans to re-file the case following the successful legal appeal to the Supreme Court.

In a unanimous decision written by Justice Samuel A. Alito Jr., the court ruled that Title IX does not bar victims of sex discrimination in schools from pursuing claims under an older federal civil rights law arising from the 14th Amendment.

The student, now in middle school, and her parents traveled to Washington, D.C. last month to hear oral arguments on the appeal.

Problem started as girl began kindergarten

According to the original complaint, the problem started eight years ago on a school bus bringing students to and from Hyannis West Elementary School.

The daughter of Lisa Ryan Fitzgerald and Robert Fitzgerald had just started kindergarten at the school in September 2000. Two or three times a week, she would wear a dress to school.

Starting that month, according to the daughter, a third-grade boy riding the same bus as the daughter would coerce her into pulling up her dress and pulling down her underwear.

"He would then force her to spread her legs while other children watched and laughed at her," the lawsuit states.

According to the complaint, the daughter began exhibiting signs of distress.

The parents said their daughter began showing signs of distress, including weight loss, insomnia, renewedbedwetting, illnesses including pneumonia, and tearfulness. She would also pretend she was dead.

They included but were not limited to "weight loss, insomnia, renewed bedwetting, illnesses (including pneumonia), and tearfulness," the lawsuit states. "She would also pretend she was dead."

A number of times that fall, after their daughter had exhibited signs of severe emotional and physical distress, the Fitzgeralds got in touch with the guidance counselor and raised the possibility of placing her back in preschool. But school administrators, saying she was too old for preschool, refused to consider the possibility.

In February 2001, the daughter told her mother that a boy on the school bus had been making her pull up her dress every time she wore one, which was two to three times a week. She said this had happened since the first time she wore a dress on the school bus, in the beginning of September 2000.

Parents discuss matter with principal, prevention officer

The mother got in touch with the school principal, Fred Scully, and told him that her daughter was being sexually harassed and abused.

The Fitzgeralds then met with Scully and the school's prevention specialist, Lynda Day.

They asked that the school investigate the charges, put a monitor on the school bus and remove the alleged perpetrator from the school bus. They also said they would be driving their daughter to and from school until the situation was corrected.

At that meeting, according to the lawsuit, Scully stated the school's policy was to place disruptive students directly behind kindergarten students. He also refused to place a monitor on the bus or remove the alleged perpetrator from the bus.

The Fitzgeralds began driving their daughter to and from school.

The day after the meeting, Day met with two kindergarten girls who sat with the daughter on theschool bus.

The following day, Day told the mother that one of the girls had corroborated the daughter's account. That same day, in Day's presence, the daughter identified the alleged perpetrator as he got off the school bus.

Later that day, according to the complaint, Scully told the mother that he had taken Day off the school's investigation of the incidents. He suggested that the mother call the police and arrange for an investigation.

According to thecomplaint, the principal told the father that the school was, in effect,abdicating all responsibility. He stated since the witnesses were onlyfive years old, the school would take no action.

During a phone call with the father that same day, according to the complaint, "Scully informed Fitzgerald that the school was, in effect, abdicating all responsibility. He stated since the witnesses were only five years old, the school would take no action. Scully stated the police would have to act. He represented to the plaintiffs that any action by the school was dependent on the results of a police investigation."

The police investigated, but took no action.

The same day, the daughter revealed to her mother that the boy also had been making her pull down her underwear, whereupon the other children would laugh at her.

The Fitzgeralds immediately returned to the school with their daughter, and told Scully the new information about the incidents. They again asked Scully to remove the boy from the bus and place a monitor on the bus. Scully again refused.

Parents meet with school superintendent in effort to resolve issue

On March 8, 2001, the parents sent Scully a registered letter renewing their request. Scully forwarded the letter to the superintendent, Dr. Russell Dever. Neither Scully nor Dever took action.

That May, the parents met with Dever to recount their daughter's account of what had happened to her.

"Dever refused to place a monitor on the bus, or to remove the boy from the school bus, and abruptly terminated the meeting," the complaint states.

On or about the same day, Dever sent the parents a letter, saying they could appeal his decision to the Barnstable School Committee.

Around the first day of school in the fall of 2001, the motherapproached again asked to remove the alleged perpetratorfrom the school bus. The complaint states the principal didn't do so, instead responding with deliberate indifference.

According to the plaintiffs, the committee subsequently denied them an opportunity to appeal Dever's decision.

Before the beginning of the next school year, the parents got in touch with the school administration and asked that their daughter not be exposed to the alleged perpetrator.

All that Scully and the administration agreed to do, according to the complaint, was to separate the daughter from the alleged perpetrator.

The father also asked Scully to notify their daughter's teacher and other adults in the school of the incidents in the prior school year. Scully told the father the matter had been "taken care of."

After the father learned that their daughter's teacher wasn't told of the incidents, he repeated his request to Scully about informing adults through the school.

Instead, the complaint states, Scully only sent out a statement to notify him if the daughter appeared upset.

Around the first day of school in the fall of 2001, the mother approached Scully, again asking him to remove the alleged perpetrator from the school bus.

"Scully refused to remove the boy from the bus, instead responding with deliberate indifference," the complaint states.

That school year, according to the lawsuit, the alleged perpetrator was allowed to be in the daughter's presence a number of times while in school.

"In February of 2002, [the alleged perpetrator] was invited to participate in the [the daughter's] gym class, an event that caused [the daughter] great emotional distress," the complaint states.

Teacher directs student to 'high five' alleged perpetrator

The daughter's teacher then directed her to "high five" the alleged perpetrator, which the complaint states caused the daughter additional distress.

The complaint states that Dever and the school committee acted and continue to act with "deliberate indifference" to the discrimination allegedly suffered by the daughter; that they refused to take remedial steps to protect her; that they deny the daughter was harassed in any way; that they were indifferent to her civil rights; that they failed to adopt a sexual harassment policy that conforms to the federal anti-discrimination law known as Title IX; and that the daughter has suffered "serious and emotional distress, and interference with her education."

In the complaint, the plaintiffs sue Dever and the school committee for allegedly violating Title IX; for allegedly violating their daughter's civil rights; and violating a state law that guarantees a student's right to nondiscrimination.

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