|By Lois Henry, The Bakersfield Californian|
|McClatchy-Tribune Information Services|
Practically from the moment the aide whipped open that bathroom door, the bungling began. No one from the school called police. The girl wasn't seen by a nurse or doctor. The kids were kept together in the same classroom and even sent home on the same bus together. The girl's parents weren't called until nearly five hours after the incident.
For me, though, the ultimate sputter moment came when I read that the attorney defending the
Are you kidding me?
Under that theory you could do pretty much anything to an autistic person and it'd be no harm, no foul, which is, of course, ridiculous. I can kind of see why the attorney,
As soon as the lawsuit was filed back in 2010, the district accepted responsibility for the incident. It admitted right up front that its employees should have done a better job keeping an eye on the kids so they didn't end up in the bathroom together.
All that was left to hash out was the harm suffered by the girl.
Herr had to try to reduce the perceived harm, and thus any judgment against the district. Over the course of the two trials (the first one ended in mistrial in 2013), Herr aggressively pursued the no-harm defense.
"It's like a 3- or 4-year-old running around the house naked," Herr summed up. "They do not perceive it as (sexual)."
His strategy backfired in May when a jury awarded the girl and her family
Now that there's been a verdict, you may think that means this is all water under the bridge. Uh-uh.
Whether or not the district, via its insurance company, decides to appeal, I believe the public is owed an explanation for how this incident and this case were handled.
And not just because of the money, though an appalling amount has been spent to defend this case.
From the moment those kids were found in the bathroom to the jury's verdict, I think this cuts to the heart of how KHSD views disabled children. Does the district value them as much as normal kids? If all you had to go on was this case, your conclusion would have to be no.
The basic timeline alone is outrageous.
After a bit of discussion, during which time the girl is left on the toilet with her pants down, Hoyt and Herstam decide to report the incident to their supervisor, the head of
Herstam later that day tells fellow special ed teacher
Word gets to Assistant Principal
Let's pause here to reflect: Every single one of those KHSD employees is a mandatory reporter. They had a legal obligation to report this incident to the cops immediately. That's the first call that should be made, according to KHSD's own policies. Cops first, school hierarchy second. Oh, and KHSD's policies also state that KHSD police are not an adequate substitute for city cops. Fail. Fail. Fail.
Both Willis and Chavez declined to comment, referring me to Herr. Herstam didn't return my call and Hoyt's numbers were disconnected.
There shouldn't have to be a law or policy about calling the parents; it's just common sense. Anyone would want to know ASAP if their kid was found with another kid in a bathroom, pants down.
There is absolutely no way the school would have handled it this way if the girl had been a regular kid with the ability to speak and tell her parents what happened. No way.
Inconceivably, though, it gets worse.
The only two people, Young and Chavez, who did the right thing and reported the incident up the chain, were fired.
A meeting of the special ed department was held
A few days after that, Chavez testified, she was called into a meeting with the vice principal and asked about her and Young's roles in the aftermath of the incident.
Shortly after that, Chavez testified, both women received "non re-elect" letters, meaning after the school year was over they would not be rehired by KHSD.
They knew it was because of the bathroom incident, she testified. They fought the terminations, first going to the principal (who upheld them), then the KHSD board (which also upheld them) and finally the superintendent who overruled the terminations. They were both reinstated in the 2010 school year, but at different schools.
Think about that.
This institution, allegedly, brought its weight to bear not on the gaggle of folks who didn't do the right thing, but on the two people who did.
That's a powerful message. It not only tells employees to toe the line -- or else -- it also very loudly implies that KHSD doesn't take problems as seriously when they involve special-needs kids.
In the weeks and months after the bathroom incident the girl reportedly began sleeping for hours on end, clearly depressed. She became angry and moody where she'd once been energetic and bright, her mother told me. She started soiling her clothes, though she'd previously used the potty regularly. The family was distraught and tried to work with KHSD to get their girl the help she needed.
Instead, they had to fight to make sure that only females worked with her and that she, not the boy, be brought back to her familiar classroom. Eventually, the girl's parents said, they felt they had no choice but to sue.
Once that happened, the issue left KHSD's hands and came under the authority of the district's insurance company, Self-Insured Schools of
Herr said he based his conclusions on the findings of two renowned experts on both autism and childhood sexual assault --
"The experts said that even though (the girl) may have been upset by the incident, it had no long-term effect," Herr told me. He maintained that there was never any evidence she was raped.
"The reason we had to go there was the family wanted millions of dollars for this and I have to see what damages the child really suffered before I can recommend that a public entity spend that kind of money."
Those big-time experts didn't mean much to at least one juror who told me he was much more impressed by Dr.
None of the jurors I contacted wanted their names used because of the controversy this case has stirred up.</p>
"They had credentials stacked as high as my roof," the juror told me of Herr's experts. "But they didn't have any 'on the ground' experience. Dr. Haddock has worked with these people. He has real clinical experience."
Aside from that, he and another juror said they were shocked at how KHSD employees handled the incident, saying they couldn't believe police weren't called.
"What got me was, when they (Hoyt and Herstam) noticed the boy was missing, they went running straight to the bathroom where the girl was," the male juror said. "They didn't look anywhere else, not even his bean bag under the desk where he usually went. That told me they knew there was a problem."
Another juror couldn't get past the changing stories.
"That was the most disgusting thing," she said. "How the KHSD employees just blatantly lied, repeatedly. Their job is to protect children and they couldn't tell the truth."
She zeroed in on the testimony of teacher's aide Hoyt but said everyone involved gave her a bad taste.
"If my daughter gets a scratch at school, they're calling me," she said. "That was the main red flag, that no one called the parents until after school was over."
"The main things we discussed were whether something happened and what the harm was," the male juror said.
I think the jurors did their jobs on this case. But I don't think the taint of how the incident was initially handled and then defended will scrub off KHSD anytime soon.
(c)2014 The Bakersfield Californian (Bakersfield, Calif.)
Visit The Bakersfield Californian (Bakersfield, Calif.) at www.bakersfield.com
Distributed by MCT Information Services
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