A Lawyer’s Hypothesis

A Lawyer’s Hypothesis: Repeated Physical Injuries Suffered by Members of a Protected Class Is Reliable Indicia of Systemic Discrimination

The trial itself was straightforward. An old school with architectural barriers, dangerous conditions, and two disabled students. As the evidence showed at trial, the School District’s response to these conditions was altogether inexplicable.

The physical injuries that two of my clients endured while attending school are disturbing and heart wrenching. But, on hearing their story, to the conclusion, I believe that as horrible as those physical injuries were, they pale in comparison to the injuries caused by the discrimination they endured.

A wheelchair bound student falls from a blatantly dangerous ledge, off a ramp that was constructed to provide disabled persons with access to the school. Fracturing his shoulder, his 350lb wheelchair propels his fragile body to the cement. The result, in addition to the fracture, is a misdiagnosis, a week of pain, and a soon after developed chronic acute mental trauma. The School District tells one aide, be more careful, watch the edges; essentially, leave it to a sub-100lb woman to miraculously protect a mobile, autonomous child in a wheelchair from falling of a ledge; mind you, that wheelchair and child were a combined weight of well over 400lbs. The more practical remedy – putting up a railing, was something the child’s father actually offered. The School District ignored the offer.

Escaping the ledge, the student moves to middle school. But, his disability has made clear that he now requires (as a matter of his own safety) a lift to use the toilet. Unfortunately, due to the mental trauma the child suffered at Elementary School, he is now petrified of transfers to and from his wheelchair and constantly worries that his aides and caretakers will drop him. The School District knows that he needs a lift. It even makes a safety plan, stating that the School District will provide a lift.  But, the District then waits for over a year to get the lift. How do you think that made the child feel, with each and every transfer? After the lift is obtained, the sling does not fit. For yet another year nothing is done, even as the sling digs into the child’s flesh, turning his arms “purple,” as the child cries in pain with each bathroom use.

Another wheelchair bound student falls from the same ledge as the first disabled student. She too uses a wheelchair, but uses a much lighter manual wheelchair and also has the ability to catch her fall, suffering only scrapes. But the same student is  less fortunate on the stairs inside the school. Her aide causes the child to crawl, despite express instructions that such posed a known safety hazard to the child. She fractures her femur, and for many weeks is then confined solely to her wheelchair.

Obviously, these are injuries none of us would expect our children to experience at school. Accidents – sure, we expect that. But this is different. These are dangerous, even obvious hazards to these children. While no one expects a school to prevent all accidents, sure as the day is long we all expect a school to keep its programs, services, and activities away from a dangerous cliff. Yet that is exactly what this school was to these children –  a medieval obstacle course.

But these children’s “physical” injuries were just the tip of the iceberg. And just as the above horrible physical injuries pale in comparison to the injuries caused by the discrimination they endured (below), one has to ask: would these hazards have been allowed to persist, absent the discrimination?

The Discrimination.

The discrimination in this case was in a public school, against two similarly aged minors, disabled students.

The school had two main levels, separated by tens of stairs split into separate flights. Furthermore, from the main level to the music room there was yet another smaller flight of 4 stairs. And in the hallway on the main level, there was yet another step. A wheelchair user could not traverse any of these locations.

Starting in third grade, and until leaving Elementary school, all of the children would attend their main curriculum class upstairs. Why? As Superintendent David Risenmay testified, it was a “right-of-passage.”

Of course, for two disabled wheelchair users, there was no passage. Importantly, both parties’ ADA experts immediately saw a very reasonable and economical accommodation: simply move the disabled children’s classes downstairs for 3rd, 4th and 5th Grade. The District chose to forego the rights of the ADA and Rehabilitation Act, and protect the “right of passage.”

The District purchased a “stair climber” contraption, which took a minimum of 10 minutes per trip up or down the stairs. When viewed under the District’s own programs, services, and activities, the accommodation was ridiculous. The District’s programs, services, and activities required ten (10) separate trips per school day on those stairs. Consider that. Two wheelchair users, on the same school schedule with one stair climber. That equals 1 hour and 40 minutes of exclusion, per student, per day. And that is not even including the wait time as the other student uses the contraption!

Okay, so clearly the stair climber was not a “reasonable” accommodation, or a “meaningful” accommodation, as the ADA and Rehabilitation Act require. But again, the District sided against these real rights in favor of the “right of passage.”

For instance, the District left the children upstairs during fire drills, to watch as their able-bodied peers practiced evacuating the building. Similarly, while the District reduced the stair climber use by 20 minutes each day, it did so by leaving the children to wait in the hall downstairs with their non-teacher aide. One of the children was even made to crawl a portion of stairs – all to avoid the blatantly inadequate stair climber.

Clearly, the stair-climber alone was reason enough for a lawsuit. It was humiliating. The children were terrified of it. And the exclusion from actual beneficial programs, services, and activities was blatant. But, to the District’s shame, there was more.

When Superintendent David Risenmay found accessibility modifications had been made to the upstairs boys’ restroom, he had them taken down. The only upstairs restroom provided was a single, segregated faculty restroom, which after being modified remained too small for a wheelchair user to turn around in, let alone open the door from within. Teachers even complained, asking the disabled children to “schedule” their restroom usage.  And that was just the upstairs.

Downstairs, because again there was no accessible restroom, one of the children was embarrassingly carried into a small, pocket-sized restroom located within the school office. Alternatively, the child was embarrassingly taken to a restroom of the opposite sex, which had a larger stall. Exactly how hard would it have been to make a stall bigger in the boys’ restroom? Clearly not too hard. Such modifications had been done, and then removed, upstairs.

Even the doors to the school were inaccessible. What good is a wheelchair ramp when the door it leads to is too heavy for a disabled person to use? What good is a building when nearly every door  inside is not ADA accessible? Yes, thank you for the aide that now follows me everywhere I go, but the ADA and Rehabilitation Act require an accommodation that is meaningful. Clearly, the Jury agreed – an aide following you every minute of every school day was not meaningful. (Not to mention it was entirely uneconomical. Just change the door handles).

And please, for the love of all that is good and right – why exactly was the disabled parking placed in the dirt? Even according to  Superintendent David Risenmay’s testimony, the spot was oftentimes a muddy bog while the non-disabled parking was paved.

As the attorney responsible for representing these children, I could honestly reach only one logical conclusion. For the District, these children, specifically disabled children, were worth less. These children were not worth the District’s time or resources. There is simply no other explanation.

The Jury rightly found that the Oneida School District intentionally discriminated against these two students.

The Cost to Fix Discrimination Vs. the Cost of Discrimination

All of this was avoidable. The classes could have been moved to the main level. In fact, that is exactly what the School District did when one of the disabled student’s third grade teacher got in a bad motor vehicle accident. But what did the District do once the teacher was healed-up? Moved the class back upstairs. Similarly, the District could have easily modified the restrooms – just take out one of those metal panels and remove one of the toilets. Voila! Make the doors a proper weight, put on some ADA compliant door handles, get some paint and stripe on that paved parking for use by a disabled person. Voila! And there you have it. In my estimation, the School District could have brought itself into compliance with a few thousand dollars, if that. Notably, the School District never raised the affirmative defense of undue financial burden, one of the two well recognized, even statutory defenses to an ADA claim.

Obviously, the cost to fix discrimination in this case was far less than the cost of discrimination. And by cost, I am not talking about sanctions or penalties. I am talking about the real cost – the cost to the individual students. On May 10, 2019, an a Jury sitting for the United States District Court for the District of Idaho awarded these two disabled children real substantial damages, for real substantial injuries. These children’s disabilities were repeatedly and embarrassingly emphasized in front of their peers. They were excluded to spend 2 hours of a 7 hour school day on the stairs. They were kept downstairs in the hall. One was carried into a tiny restroom as others stood on and watched. One was made to cry before her peers, as she literally crawled the stairs. Both were left upstairs for fire drills, with zero plan for escape.

Day, after day, after day these children got the message that the District was sending. They were less. But to these children’s credit, and the District’s eternal shame, these children kept going to school. Though the stair climber device petrified these children, they kept going. Though these children were debased before their peers, crying and crawling, they kept going. Though every minute of every school day was tarnished by real, perfectly avoidable anxiety and needless embarrassment,  they kept going. Shame, embarrassment, humiliation, even  dehumanization was just what these children suffered on each and every school day. And the Jury has reaffirmed exactly what the ADA and the Rehabilitation Act stands for: that cost is very, very real.

When You Know You Can, and Should, Dig Deeper.

This case involved all the elements of heavy, complex litigation. Five Plaintiffs, four Defendants, one a public entity; federal claims; state claims; 20 depositions; years of factual history; and an administrative appeal of federal claims that never see the light of a Jury trial. But every time we dug deeper, the discrimination became all the more obvious. Even at trial, witnesses were disclosing answers that were even more evident of discrimination than the answers given in a cold deposition.

Now, I could follow my  self-flattery and say that this was all due to my superb lawyering. But, I know that is not true. I am no perfect lawyer, and I could not have done this case without the help of my superb partners, associates, colleagues, and most of all, my rock-solid clients. What I do know is that once you have seen enough cases, there is something in your stomach that says “you need to chase this down.” The problem, however, is again that self-flattery. The desire to chase something down is often muddled by other, less savory motivations. Money, revenge, drinking too much of your client’s cool-aide; these can all get in the way of when you should, or should not, dig deeper in a case. But I believe this particular case, with these children, has something to share for all lawyers.

Namely, if you are representing a member of a protected class that has suffered a personal injury, look more broadly at the setting. See if there are more physical injuries suffered by members of the same protected class, in the same general setting. If there are, then you probably do not just have a personal injury case. You probably have a discrimination case. And that is when you can, and should, dig deeper.

Aaron K. Bergman is a Partner with the law firm of Bearnson & Caldwell, who amidst other areas of practice has significant experience in the legal disciplines of personal injury, negligence, discrimination, special education and disabled student rights.