Malad Elementary School (summer)

Malad Elementary School, pictured, is the Oneida County School District 351 school where two disabled students encountered civil child abuse and a lack of appropriate services, according to a lawsuit.

A Logan attorney has won a civil child abuse lawsuit, resulting in a federal judge ordering an Idaho school district to pay the families of two students with disabilities a combined $1.2 million for physical and emotional suffering.

A jury found Oneida County School District 351 was liable for inflicting civil child abuse on the students and failing to provide them with appropriate services.

The lawsuit against filed on behalf of the two children and their families chronicled the treatment the two children endured at Malad Elementary School.

After the lawsuit recently went to trial in Pocatello and the jury ruled in favor of the plaintiffs, Judge David C. Nye ordered District 351 and three district employees — former superintendent of District 351 David Risenmany, current District 351 Special Education Director Terri Sorensen and current Malad Elementary School third-grade teacher Kerry Evans — to pay $700,000 to Malad residents Timothy and Marla Swope and their male child, who was identified in the lawsuit only by the initials B.S. to protect his identity.

Nye also ordered the district and the same three district employees to pay $500,000 to Malad resident Denise Coombs and her female child, who was identified in the lawsuit only by the initials O.C.

District 351 said it’s going to challenge Nye’s $1.2 million judgment in hopes of reducing the amount it has to pay.

But Aaron Bergman, the Logan attorney who represented both families in the discrimination lawsuit filed in March 2017, says District 351 “was well-aware of the problems” at its two-story, 70-year-old elementary school in Malad, which he described as reminiscent of a “medieval obstacle course.”

But instead, District 351 “simply opted to treat these kids like second-class citizens,” Bergman said in reference to O.C. and B.S.

The lawsuit argues that District 351 failed to adhere to the Individuals with Disabilities Education act, which has the intent to ensure children with disabilities can, to the fullest extent possible, enjoy the same educational experience as children without disabilities.

The district failed to provide aides, transportation services, safety rails and bathrooms that could safely accommodate the children, the lawsuit states, causing them embarrassment and even serious injury.

The Malad Elementary School does not have an elevator installed. Instead, students who use wheelchairs must ride a large, slow stair-climber. Bergeman said B.S. and O.C. spent almost two hours of a seven-hour school day riding the stair-climber each day to get to their classes.

Both B.S. and O.C. also encountered significant injuries as a result of inadequate or missing safety devices at Malad Elementary School, the lawsuit states.

B.S. suffered a break of the upper part of his arm bone when his 350-pound electric wheelchair rolled off an 8-inch ledge and landed on top of him, according to the lawsuit. The ledge should have had a handrail installed, said Bergeman, adding that Timothy Swope offered to build one but never received a response from District 351.

During the winter or spring of O.C.’s fifth-grade year, the school’s stairlift became damaged and unusable. “For the interim, O.C. was compelled to get out of her wheelchair and to crawl up the stairs with her hands,” the lawsuit states.

Bergeman said that in order for O.C. to access a music room in the school she had to crawl a set of four stairs all the time regardless of the working condition of the stairlift.

This was something O.C. was compelled to do in front of all her peers, Bergeman said. On one occasion, O.C. got her leg caught and because of the loss of feeling in her lower extremities, proceeded to climb the set of stairs with a dislocated kneecap, a dislocated tendon and a broken femur, the lawsuit said.

The only wheelchair-accessible bathroom in the school is on the first floor, meaning a trip to that bathroom would often take 20 to 45 minutes for B.S., the lawsuit states.

At one point, the school hired an aide for B.S., and contrary to Timothy Swope’s explicit instruction, the district gave that employee authority to disrobe B.S. and provide toileting procedures. That employee’s lack of experience, B.S.’s unfamiliarity with the aide as well as bad instruction regarding toileting procedures “placed B.S.’s physical well-being and life at risk,” the lawsuit states.

In one incident, Evans denied O.C.’s request to go to the bathroom, then he scolded her and asked her to clean up her mess when she wet herself in front of her peers, the lawsuit states. No one contacted O.C.’s parents, and Evans compelled O.C. to sit in her urine-soaked clothing for the remainder of the day, the lawsuit said.

Though District 351 officials discussed safety plans in the event of an emergency, Malad Elementary School staff and faculty were never provided with a safety plan regarding B.S. or O.C, said Bergman, adding that when the entire school evacuated the building for fire drills, both B.S. and O.C. were left behind on the second floor.

“I don’t say it lightly, but the only logical explanation is that these students were less worthy of the School District’s time or resources,” Bergman said about B.S. and O.C. “My heart just breaks to think about what these kids went through day after day after day.”

Bergman said about Judge Nye’s $1.2 million judgment against the School District, “In my estimation, based on the quality of the injuries, the frequency of the injuries and the environment, I think that the award was appropriate. It could have been more and I still would think it would have been appropriate.”

Nye’s awarding of damages to O.C., B.S. and their families came after a jury trial last week at the U.S. Courthouse in Pocatello. The jury ruled in favor of the plaintiffs after nearly two days of deliberation.

When asked for reaction to the verdict, current District 351 Superintendent Rich Moore said: “We know that our old building has (Americans with Disabilities Act) compliance issues and we tried to make accommodations the best we could. But with all due respect to the jury, we think the amounts awarded for the ADA compliance issue were a little stiff.”

District 351 and its Boise-based attorney, Chris H. Hansen, plan to challenge the judgement amount awarded in the case, Moore added.

Moore said District 351 is aware of the changes it needs to make to Malad Elementary School, which for several years now has made local headlines for its inability to remain heated in the winter.

Moreover, District 351 has tried and failed to pass a school bond that would fund the construction of a new elementary school for several years now, too. In addition to the necessary changes needed to make Malad Elementary School safe, District 351 is now on the hook for $1.2 million in damages because of the lawsuit.

“We will try to address some of those ADA compliance areas this summer,” Moore said. “Some we can and others will be a bit more tricky because of the age of the building. Do you spend $100,000 to put an elevator in knowing that hopefully in the near future you pass a bond and build new elementary? Where is the break point where you want to be compliant but you know that you will need a new building in the future anyways?”

But for Bergman, the costs of any school upgrades, changes or modifications needed to provide each and every student with the same educational opportunities are something you can never put a price tag on.

“This case has been and always will be about these kids,” Bergeman said about B.S. and O.C. “I am just grateful and feel privileged to have been someone that could be there with them through this. It has been an amazing experience and their resilience as children is something I will always be impressed by for the rest of my life.”