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Lawyers Cut Trenches in Case Involving Kids’ Sexual Improprieties at Old Kings Elementary VPK

| November 29, 2016

flagler schools vpk sex assault case

The Flagler County School District’s two lawyers in the case, Kristy Gavin, left, and Lisa Augspurger of Bush and Augspurger in Orlando, talk with Old Kings Elementary Principal Benjamin Osypian after today’s hearing before Circuit Judge Scott DuPont. The Government Services Building, home of the school district’s offices, is in the background. (© FlaglerLive)

One of the most disturbing local cases unfolding in court this year—it involves an allegation of sexual improprieties between 4 year olds at a pre-school run by Old Kings Elementary and the Flagler County school district, supposedly with a teacher in the room—had its first hearing before a circuit judge this afternoon.

As is usually the case with such hearings, the focus was mostly on resolving procedural roadblocks between the two sides. But it also gave an indication of how the school district will use privacy laws to try to shield records while undermining the plaintiffs’ at-times imprecise claims of “bullying” to create a gulf of doubt between allegations and what actually happened. And it gave an indication of how the plaintiffs will seek to expose as much of the disciplinary history and supervisory structure of such programs as possible, potentially opening a window onto a relatively new world of early childhood education, but one with little of the regulations or oversight that attends K-12 programs.

Circuit Judge Scott DuPont took a brisk, un-hesitant approach in resolving four successive issues raised by the parties, going as far as setting dates and times for depositions and ordering the plaintiffs to provide an immediate definition of words like “bullying” and “proximity” that both sides may agree on. DuPont showed little patience for claims of privacy that did not hew strictly to applicable state or federal law.

But in one of the hearing’s compromises, he reached the legally dubious conclusion that the school district should produce disciplinary records involving two students—but only to the extent that the documents will be accessible to the two sides’ attorneys, not to the public, even though the names of the two students would be blacked out throughout the documents: even the attorneys would not see the names. That conclusion means that while lawyers may have access to records reflecting disciplinary issues at a publicly run and publicly funded pre-kindergarten program, the public is not entitled to know what those records may be.

The case revolves around an alleged incident that took place at the voluntary pre-kindergarten, or VPK, program at Old Kings Elementary on May 25, 2015. According to the complaint filed by attorney Howard Butler on behalf of the parents of the alleged victim and the alleged victim himself (a boy a few months shy of his fifth birthday), the boy was in a sandbox in a classroom, with a teacher present, when he was approached by two other boys of about the same age, one of whom said, “Let’s do sex.” The two boys then allegedly proceeded to lower the boy’s pants and, in Butler’s words, “perform oral sex” in the sandbox.

Defining the limits of private student records and words like “bullying” and “proximity.”

He did not define “oral sex” as he spoke in the classroom today. The more detailed records of a Department of Children and Families investigation found that one of the boys said he told the other boy that he was going to “touch it,” meaning the alleged victim’s penis, and that he did so, along with kissing it and putting it in his mouth. The two allegedly offending boys were suspended from the VPK and did not return the rest of the school year, as it was already late in the year. At least that was the claim in the complaint. The school district’s attorney, Kristy Gavin, said there was no suspension or expulsion as VPKs do not follow the same disciplinary procedures as the K-12 system, though it appears the parents of the alleged victim were provided with a safety plan for their child and, Gavin said, “assured that the students alleged to have committed this incident would not be placed in the same classroom as their child.” (Gavin assisted the school district’s lawyer in today’s hearing.)

But the two boys who allegedly molested the other boy were allowed to enroll as kindergarteners at Old Kings Elementary, where the alleged victim was also to attend school that fall. The parents of the victims were disturbed that their child would be again in proximity to the two other boys. They pulled their child from Old Kings and moved. In fact, the two allegedly offending children also eventually enrolled in another school.

The lawsuit the child’s parents filed seeks damages in excess of $15,000 on five counts: Negligent supervision, four counts of reckless or negligent infliction of emotional distress (one for each of the children, one for each of their guardian), and damages resulting from having to relocate the children to a differ school.

The district responded to the lawsuit by seizing on a number of factually or even stylistically imprecise claims in the original lawsuit—which is itself now being redrafted—stating that even the vagueness of the alleged assailants made it impossible for the district to address the claims, while absent definitions of words such as “bullying” and “proximity” also made it impossible for the district to address the claims. But the district did not deny that an incident had taken place—not when it’s been painfully documented by DCF and addressed if not acknowledged by the district itself with a safety plan.

Butler, the attorney for the plaintiffs, had sought records pertaining to the two allegedly offending children not just in VPK, but in kindergarten. Lisa Augspurger, the attorney representing the Flagler school district in this case, argued that federal law protects those records from being released. She had sought to apply state law to pre-K records, saying the parents of the children involved should have the right to be heard in court before those records are released. DuPont did not agree, and allowed those records to be produced—to the extent that they would not go beyond the attorneys’ offices. He also required the school district to make available any “log” that would document the same sort of incidents involving other children, at Old Kings, as long as it pertains to the two years when the VPK was in operation.

Access to such records was what Butler had described as “the overarching issue” in today’s hearing. Getting at those records, even in the limited way in which they are to be produced, was a victory for his side. He also agreed to email Augspurger his definition of “bullying” and “proximity” within days.

The issue over the scheduling and order of depositions appears to have been the sort of sniping, intramural issue that results from two sets of lawyers splitting hairs—an issue DuPont resolved in a matter of minutes by assigning times and the order of appearance of four individuals at depositions now scheduled for Dec. 14 and 15. (The school district employees to be deposed are Abra Seay, who oversees the VPK program, Gavin, the school board attorney, Benjamin Osypian, the principal at Old Kings Elementary–who attended most of the hearing–and April Dixon, the district’s risk manager.)

No subsequent hearing has been set in the case, with the mid-December depositions.

4 Responses for “Lawyers Cut Trenches in Case Involving Kids’ Sexual Improprieties at Old Kings Elementary VPK”

  1. DRedder says:

    Kids being kids one thing but there’s a bigger issue here no? Like how a pre K or 4yr. old knows so much about a sex act. I hope child welfare has conducted a top to bottom investigation on this, cause I’m sure it’ll be Trump’s fault.

  2. Anonymous says:

    CPS needs to investigate the sexualization of the two offenders (and the root causes of it), as well as counsel the parents of the victim on how to deal with their situation.

  3. Layla says:

    I am speechless over this one. Home school.

  4. says:

    I hope the victims parents get alot more than 15k. This story is so disturbing. The parents of those two boys should be prosecuted. The kids learned it from somewhere. I am going to throw up this story makes me sick.

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