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The incident is alleged to have taken place out of view of the teacher in the classroom. (Andre Pan)
Two children are suing the Flagler County School Board, Superintendent Jacob Oliva and top administrators at Old Kings Elementary following alleged incidents in 2015 when both children were bullied and one of the children was allegedly sexually assaulted by two fellow-students in a pre-school class. As a result, the family of the children who were allegedly targeted had to move.
The siblings are identified only as John Doe and Susan Doe. John was not yet 5 at the time of the alleged incident. The incident is alleged to have taken place in a voluntary pre-kindergarten classroom at Old Kings Elementary. The VPK is run by the school and the district.
The suit claims that John was repeatedly targeted by students identified as Bill and Dave, who were “students with known behavioral problems” the suit states, a claim the school district disputes and a Department of Children and Families investigation does not support. The suit states the students assailed the boy “with escalated teasing, social exclusion, intimidation, bullying, physical violence, sexual and racial harassment resulting in public and private humiliation.”
On May 25, 2015, the suit alleges, the bullying included a case of sexual battery, with the two alleged assailants pulling down John’s pants and committing “sexual battery on his private parts during class within view of the teacher,” who is also named in the suit. The suit states the bullying had been long-standing and had not been properly addressed by school staff despite “repeated serious and escalating instances” perpetrated against the same boy.
The suit alleges that the school violated its policy, which requires that a teacher and an assistant be in the classroom at all times.  Only the teacher was in the classroom, the suit alleges.
The sheriff’s office and the Department of Children and Families investigated. The DCF investigation found conflicting allegations of the victim’s penis being either touched, grabbed or kissed briefly, but apparently no coercion. DCF found no history of sexual abuse, neglect or domestic violence in the history of either children who allegedly assaulted John Doe. One of the children lived in a home with no internet access and said he had no knowledge of sexual practices, investigators found, but that “he has been cited for talking about sex previously,” according to the investigation.
What happened to the students who caused the alleged incident is in dispute. The complaint states that the two students were expelled for three months, and that three months after the alleged incident, presumably in August when school resumed, the school allowed the two students to return to school in violation of the school’s zero-tolerance policy regarding sexual battery. That led the boy’s guardians to pull the children out of Old Kings and enroll him at a different school, forcing the family to move as well. By then the child had turned 5.
The school district says there was no suspension or expulsion. “There was no suspension of a three-month period,” Kristy Gavin, the school board’s attorney, said today. “A, it’s the end of the school year, and B it’s a pre-k student.” The VPK division is not under the district’s student code of conduct, which covers students in kindergarten through 12th grade. The VPK system is under the district’s adult education division, which also oversees extended day.
Gavin says the aftermath of the alleged incident was handled differently than what the suit alleges. “The principal met with the parents of the alleged victim and a safety plan based on their concerns developed,” Gavin said. “They were assured that the students alleged to have committed this incident would not be placed in the same classroom as their child.”
Whether there were two teachers in the room or not at the time of the alleged incident is also unclear. State law requires a ratio of one teacher per 11 students, or one teacher per 20 students with a teacher aide present. The Flagler school district runs its VPKs with 22 students per classroom, but with two teachers in each classroom, not an aide, says Abra Seay, who oversees the VPK system for the district. Asked whether there were two teachers in the classroom in question, at the time of the alleged incident, Seay said: “I can’t comment on that yet because I wouldn’t want to say for sure, I’d have to go back and look at my notes and see.” (Seay was briefly interviewed after she’d left the office for the day.)
There are rare occasions when one of the two teachers may not be in the classroom, Seay said. “We try to avoid it at all costs,” she said, but at the same time, no VPK student is ever allowed to be outside of a classroom without an escort, and there are times when a student may need to be taken to a nurse, for example, or taken out of the classroom for any other emergency. One of the two teachers would then have to do that.
The suit also charges that Susan Doe, who felt responsible for her brother, was herself targeted by bullying by the two alleged assailants. The suit does not elaborate.
“We entrusted our 4 year ten month old son to the care of the VPK program at Old Kings Elementary School under the direction and control of the Flagler County School Board,” the guardians of the children said in a prepared statement. “When he was previously bullied by two of his classmates we timely reported it to all those involved and were assured that it would not happen in the future and that he would be protected. What ultimately happened to our son in his class during school hours is outrageous as was the later decision by all those involved—apparently motivated by politics over student safety—to allow the same two perpetrators back into the same school as our son whose innocence was tragically shattered by them.” The statement does not explain the alleged “politics.”
The statement was issued by the Butler Law Group, the Jacksonville-based law firm the family hired to file the suit, as part of a package distributed to local media that included the complaint and an image of the family’s garage, with packing crates, to show how the family had to move because of the incident. Howard Butler is the attorney of record.
Counseling services were offered to all three children. The parents of two of the children declined, in one case because his parent wanted to “keep a state of normalcy and plans on having a busy summer and rest of the year in hopes that in time he will forget that this happened.” Another parent accepted the services, telling DCF of being concerned that her child “has too much sexual knowledge from an unknown source. She believed that he was too comfortable with not thinking about being caught. She wants to make sure that he knows the seriousness of his actions.”
The suit 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.
Gavin will not be handling the case directly for the school district. The case is covered by the district’s liability policy. It’ll be handled by an attorney appointed by the Northeast Florida Education Consortium, of which the Flagler school district is a member. An answer to the lawsuit by the district is expected by Aug. 29.
Dunn v. Flagler School Board
Click to access dunn-v-school-board.pdf
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August 11, 2016 at 4:55 pm
OH MY… CAN YOU SPELL…GET YOUR CHECKBOOK OUT …
August 11, 2016 at 5:12 pm
I believe kristy Gavin is mistaken when she says “The VPK division is not under the district’s student code of conduct, which covers students in kindergarten through 12th grade. The VPK system is under the district’s adult education division, which also oversees extended day”. VPK used to be run through adult education but was moved to district level two years ago under the direction of Abra Seay, a district administrator
August 11, 2016 at 10:23 pm
First and most the school legal counsel needs to go.
The rest of the school authorities involved including teacher Hernandez actions need to be investigated as well as Abra Seay, that by the way is a candidate for SOE and God help us on that with her on that very vital elections Supervisor position.
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