ALLENTOWN, Pa. — Teachers and administrators at Central Elementary School knew they had a problem with F.H., a 12-year-old who had been accused of going into a bathroom stall and sexually assaulting a first-grade boy.
But instead of calling police and removing F.H., district officials covered up the attack and allowed him to remain in class, leading to the sexual assault of three more first-graders, parents say.
The allegations, contained in a $15 million federal lawsuit against the Allentown school system, have created an uproar in Pennsylvania’s third-largest city, with outraged parents demanding the superintendent’s ouster and state lawmakers working on a legislative fix.
The case has also illustrated how difficult it can be under the law for parents to hold a school system responsible for the safety of their children.
‘Serious issues’ in the district
“I’m disgusted,” said Yolanda Colbert, 36, whose three children attend Allentown schools. “These 6-year-olds are the most vulnerable, and if adults cannot protect them, we have some serious issues in the Allentown school district.”
The district denies wrongdoing and has asked a judge to dismiss the lawsuit. But it has not disputed that assaults occurred, and its legal response has only further inflamed public opinion in one of the state’s poorest school districts.
In federal court last month, the district’s lawyer, John Freund III, argued that under the Constitution school officials cannot be held responsible simply for failing to protect youngsters from assaults by other students.
He cited federal court rulings that say school systems are generally immune from paying damages unless it can be shown that they actually took “affirmative” steps that put youngsters in danger, and that the action taken “shocks the conscience.”
Freund said in an interview that he was making a narrow legal argument, not a generalized statement about the district’s responsibility to its youngsters. Various state and federal laws, not to mention “basic morality, common sense and professional duty ... clearly obligate schools to protect students,” he said.
But his argument rankled parents.
‘Affirmative’ act of endangerment?
“I understand there is a civil case, but it still makes me very uncomfortable that a school district would stand up and say under any circumstance, ‘We don’t have to protect our children,’ ” said Emily Mebust, the parent of a kindergartner.
A judge has yet to rule on the school system’s request for a dismissal. No trial date has been set.
The lawsuit, filed by the parents of three of the alleged victims, said school system officials concealed the assaults “in an effort to veil the long-standing violence” in certain Allentown schools.
The assaults began in December 2003, a few months after F.H., a special-education student with a history of behavioral problems, was transferred to Central Elementary from another school in the district, according to court papers.
After learning of the first assault from a second-grader who witnessed part of it, administrators kept quiet and allowed F.H. to remain in school, the lawsuit said. The 12-year-old sexually assaulted three more first-graders over the next four months, according to the parents.
The final assault, for which F.H. was found guilty in juvenile court of rape and sent to a detention center until he turns 18, took place after he was put on “hallway detention” — out of view of any teacher and next to a bathroom used by first-graders, the lawsuit said. That is a key point in the plaintiffs’ case.
‘Lion into the lambs’ lair’
Scott Wilhelm, the plaintiffs’ lawyer, said putting F.H. next to a bathroom was an “affirmative” act.
One legal scholar agreed.
“You have reason to believe that this lion is mauling the lambs, so you move the lion into the lambs’ lair?” said Perry Zirkel, an education law professor at Lehigh University in Bethlehem. “It sounds bad. It sounds like a terrible affirmative act to put the kid next to the bathroom.”
Nevertheless, Zirkel said the plaintiffs still have little chance of winning because the courts have set such a high bar for such claims.
And Freund said the lawsuit overstated the extent to which teachers and administrators were aware of the attacks. “Everyone, to our knowledge, acted as they should have acted,” he said.
But the parents of the fourth victim said the district has shown little regard for their son. Nobody from the district has contacted them since his rape, they said in an interview.
“It’s a constant slap in the face,” said the boy’s mother, who spoke on condition of anonymity to protect her son’s privacy. “They still will not accept any responsibility. They will not accept any accountability.”
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