Flagler District Rebuts Old Kings VPK Case Alleging Sex Improprieties Between 4 Year Olds
FlaglerLive | September 28, 2016
Six weeks ago the parents of two children who attended the voluntary pre-kindergarten program at Old Kings Elementary sued the school district over claims that both their children were bullied and one of them was sexually assaulted by two classmates in the spring of 2015. The parents, suing on behalf of their children, claimed the program was negligent because only one teacher was in the classroom at the time, as opposed to two. (See the background here.)
Earlier this month the district responded in a series of motions that amount to rebuttals, including a motion to dismiss most counts, to compel the parents to file separate lawsuits against the numerous school officials named in the original filing, and to go so far as denying exact knowledge of the alleged assailant children, since they are referred to only by their first name in the lawsuit.
Much of the legal dueling is expected and nearly automatic in such civil suits, and much of it is law-school sophistry rather than lucid argumentation. But it’s also the first indication of the district’s version of events, or at least its interpretation of events as alleged by Greg and Tami Dunn, the parents of the two children at the heart of the case. The Dunns have since pulled their children from the program and moved out, claiming that the move was itself caused by the incident.
The rebuttals and objections don’t actually deny that an incident took place, that it was of a sexual nature, or that a certain degree of supervision may not have been present at the time. Rather, the response is an exercise in exploiting—or creating–loopholes prompted by the original lawsuit. The response is not focused on establishing facts or proffering a defense so much as demolishing definitions, assumptions and assertions in the Dunn’s original lawsuit.
The Dunns claim that their children were exposed to a pattern of bullying, sexual and racial harassment, public and private humiliation and physical violence, all enabled by “negligent supervision,” which resulted in emotional distress on the children and the parents. Those were serious, adult-sounding charges, though the alleged victims and the alleged assailants were all 4 years old at the time. The focus of the complaint is an incident that involved alleged touching of a boy’s penis on May 27, 2015.
The district’s response, drafted by attorney Lisa Augspurger of Bush and Augspurger, an Orlando law firm, focused on the central allegation of negligence separately, but mostly to deny several premises of the original suit, down to the assumed role of the school superintendent.
Augspurger’s response then rejects the application of the district’s bullying policy at the VPK level, since VPK programs are not part of the K-12 system, and therefore not under the jurisdiction of the school board-approved Student Code of Conduct. Even if it were, Augspurger wrote, the offenses would have to be “repeated, show imbalance of power, and be malicious in intent,” as the code states. The district is claiming that it was never aware that John Doe—the name ascribed to one of the two children alleged to have been at the receiving end of the bullying—was ever bullied while attending the VPK.
The district then denies outright that there was an issue of under-staffing at the VPK. The VPK was in session at Old Kings from 9 a.m. to noon the day the incident involving an alleged sexual assault took place. (The alleged assailant is accused of touching or kissing the alleged victim’s penis, though there was apparently no coercion.) Augspurger in her response states that the incident “occurred, if at all, after” noon, and therefore not during VPK hours. Rather, it occurred during a so-called “wrap-around” service portion of the day, the district’s response states, “which is a program offered to parents of children attending the pre-K program and paid for privately by parents of children attending” that program. It is, in other words, part of Extended Day, the child care program run by the district’s Adult Education division. The district’s policy manual has “no policy as to the staffing requirements” of that program.
The district rejects the application of its “zero tolerance” policy to the incident, suggesting that zero tolerance is applied in connection with school violence, crime and weapons. It denies that any “sexual battery” took place (sexual battery, under Florida law, is defined as rape), and that due to the children’s ages at the time—they were all 4 years old—no criminal charges were filed nor any action taken by the Department of Children and Families. There couldn’t have been a crime under Florida law, which presumes a lack of capacity for anyone under age 7 to commit a crime, the response states.
The district’s response then goes into semantic parries with the original lawsuit. The Dunns had claimed that the two children who had allegedly assailed their child had “re-enrolled” the following school year, thus provoking the parents’ need to pull their children out of the school and move. The district, however, claims the two children never “re-enrolled” for the 2015-16 school-year at Old Kings Elementary. But that appears to be a verbal dance around the fact that the two children did in fact attend the school, but with no need to have “re-enrolled,” thus enabling the legal response to be that “there is no ‘re-enrolled’ at issue in this matter.” So when the Dunns further alleged that their children would be in “close proximity” with their alleged assailants in the following school year, the district’s response, again in a verbal parry, was that “close proximity” was not defined “and calls for speculation.”
The Dunns didn’t just sue the district. They also sued Superintendent Jacob Oliva and Old Kings officials personally—a move that was expected to draw a motion to dismiss, since Florida law provides immunity for individuals acting in their capacity as government employees in most instances. Augspurger filed that motion. If the Dunns are intent on pursuing the employees individually, the district argued, they would have to file separate lawsuits specifying causes of action.
The case goes before Circuit Judge Scott DuPont for its initial set of hearings starting at 1:45 p.m. in Courtroom 402 on Nov. 29, at the Flagler County Courthouse.