Magistrate Judge Mark Beatty concluded that autistic twins James and Jacob Pennington provided enough evidence of severe and pervasive bullying by students and staff at the Flora Community Unit School District No. 35 to defeat the district’s motion for summary judgment.
Beatty entered an order on March 25 in the Southern District of Illinois partially denying the school district’s motion for summary judgment. He also denied the district’s motion to exclude the plaintiffs’ expert, Dr. Daniel J. Cuneo.
Beatty granted summary judgment in regards to the plaintiffs’ equal protection claims, concluding that the boys’ parents failed to compare their treatment to similarly-situated students were treated better. However, he denied summary judgment on all other counts.
“In sum, in viewing the facts in the light most favorable to plaintiffs, a reasonable jury could conclude that James and Jacob were subjected to severe and pervasive disability-based harassment by their peers that altered the conditions of their school experience and to which the district was deliberately indifferent,” he wrote.
Plaintiff James Pennington Jr. filed the complaint on behalf of his sons James and Jacob, who have Autism Spectrum Disorder. He alleges that while the boys were students in the Flora School District, district employees allowed students to bully them, failed to address the boys’ poor treatment to prevent the bullying from continuing, and participated in some alleged cases.
The Penningtons allege violations of the Rehabilitation Act, the Americans with Disabilities Act, the Equal Protection Clause, and the Illinois Human Rights Act. They also claim the district engaged in willful and wanton conduct.
According to the Penningtons, James and Jacob started getting bullied by other students in fourth or fifth grade. In one incident, students threw dodge balls at James in fifth grade, which left bruises on his face. James testified that two teachers failed to intervene, but laughed from the sidelines.
Students also allegedly called James and Jacob “stupid” and “retarded.” When the Penningtons notified the district of the bullying, their concerns were ignored.
The bullying allegedly continued and intensified as the boys got older.
When James and Jacob were in seventh and eighth grade between 2016 and 2018, they claim they were subjected to name calling, insults and other forms of bullying almost daily.
Both boys said they became afraid to report anything to the teachers they thought they would get yelled at. However, James and Jacob did report the bullying to their parents, who then reported it to the school.
Frustrated with the school’s response, the Penningtons began filing police reports, writing letters to various politicians and calling news stations.
The boys’ mother testified that when Jacob was in seventh grade, he was eating lunch at a table by himself when a student walked up and spit juice all over him without provocation.
Another student told the boys that they “just need to pass away and die.”
Then in April 2017, a student stabbed James in the arm with a pencil during science class. The school called his parents and asked them to pick him up. When they arrived at the school, the pencil was still stuck in James’ arm. They testified that they had to take him to the hospital for a doctor to remove the wood and lead from his arm.
The student responsible was given one day of in school suspension and two days of out of school suspension.
Following the incident, the principal penned a letter to the Penningtons stating that she was “not able to uncover any ongoing harassment.”
A few weeks later, James was in the gym for an assembly when other students began taunting him. He testified that he ran out of the school crying and almost got hit by a car.
The boys also testified that students would trap them in the locker room and kick in the bathroom door while they were using the restroom. They said they became so “terrified” of the locker room that they quit dressing out for P.E. and were then punished with detentions.
In October, 2017, students began taunting James when the bullying escalated to hitting him and throwing shoes at him. The students were suspended for a maximum of three days. The disciplinary reports state, “The incident was caught on camera and it was very disturbing.”
However, when James was falsely accused of urinating in a trash can, he was suspended for four days and taken to the police station. James testified that he was actually attempting to zip up his jacket. His parents testified that he struggled with zippers. They added that security footage showed him fumbling with a zipper, and he was allegedly too far from the trash can to have been urinating in it.
After the incident with the police, James tried to commit suicide.
“Our son tried to hang himself in his closet,” James’ father testified. “I can’t tell you what that’s like as a parent to watch your kids try and murder themselves over this and watching them curl up in a little ball every day begging for death. You don’t know what that’s like. I do.”
Shortly after James and Jacob began freshman year in 2018, Jacob was assigned a wooden chair that was splintering. He does not like holes in his clothes, so he requested a metal chair as a solution. The teacher allegedly responded, “No … you’re not going to use your autism as an excuse in here. You sit where we tell you to sit.”
The boys were pulled from the school the following day. They were re-enrolled when the plaintiffs obtained an attorney and the district finally agreed to transfer them to a special school. Their parents testified that they had been asking for a transfer since James and Jacob were in sixth grade, but the school refused.
The Penningtons testified that James and Jacob have closed themselves off to the world and have become afraid to leave the house as a result of the relentless bullying. They became suicidal and have been diagnosed with posttraumatic stress disorder.
James and Jacob have nightmares and have to be medicated in order to sleep. They suffer from paranoia.
Jacob allegedly will no longer sit in wooden chairs and even refused to ride a roller coaster at Holiday World that had wooden seats. James allegedly lives in constant fear of being arrested and thrown in jail.
The Penningtons also testified that the boys are afraid to use the restroom and require someone standing guard, even at home and in the middle of the night.
The school district seeks relief
The school district sought summary judgment, disputing that the harassment was based on the boys’ disabilities and that it was deliberately indifferent to the harassment.
Beatty concluded that the district failed to establish that it responded reasonably to the known acts of bullying and that the name calling sufficiently supports the claim that their harassment was based on their disability.
Also, there is evidence that James and Jacob were bullied in some form almost every day, with some incidents ignored by the school.
“A reasonable jury could find that the totality of the harassment the boys endured was so severe and pervasive that it changed the conditions of their education and created an abusive education environment,” Beatty wrote.
The district also sought immunity under the Local Governmental and Governmental Employees Tort Immunity Act. Beatty reiterated that there is an issue of fact as to whether the district’s employees acted with deliberate indifference, “and therefore the court likewise thinks the question of whether the conduct at issue was willful and wanton is best left to a jury to decide.”
In the school district’s motion to bar plaintiff expert Cuneo, a clinical psychologist, the district argued that he is not qualified to offer his opinions regarding special education and the appropriateness of an IEP and does not have a sufficient basis for his opinions. The district further argued that Cuneo’s expert opinion rests on speculation.
Beatty was not convinced.
He wrote that Cuneo reviewed thousands of pages of disclosures and written discovery from the case, over 1,000 pages of medical records, police and court records, and other miscellaneous documents. Additionally, Cuneo met with the plaintiffs, interviewing them and conducting evaluations of twins James and Jacob Pennington.
“Accordingly, Dr. Cuneo’s opinions are predicated on sufficient facts and any issues the district has on this subject can be explored through cross-examination,” he wrote.
The district also argued that Cuneo relied on “insufficient, inconsistent, and unreliably supported facts laden with a bias towards plaintiffs’ and others legal conclusions.”
Beatty rejected the argument, reiterating that Cuneo’s opinions are predicated on sufficient facts.
Beatty also concluded that Cuneo has worked in the field of clinical psychology for more than 40 years with the Illinois Department of Mental Health and served as a board member of the St. Louis County Special School District for 24 years, making him qualified to provide an expert opinion on the matter.
“In sum, Dr. Cuneo’s professional background, education, work experience, and areas of research qualify him to serve as an expert in this case and offer his opinions to the jury,” he wrote.
Further, Beatty rejected the school district’s argument that Cuneo’s testimony presented a “danger of unfair prejudice.”
U.S. District Court for the Southern District of Illinois case number 3:20-cv-11