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Sexual abuse case against Novi Schools, administration and staff drags on
February 16, 2017 by Daniel Dubay
 


FLINT, MI - Some of you may remember that a federal lawsuit was filed against the Novi Community School District (NCSD), its top administration and several staff some time ago because an autistic middle school student was alleged to have been molested by another student for months during school. This allegedly occurred and was allowed to persist in part because Novi staff were never properly trained on identifying and intervening in sexual abuse. The parents apparently only heard about this issue when a third student took a cell phone video of the alleged inappropriate “touching” during a class.

Both sides requested “summary judgment” on the many counts of the case in U.S. District Court - Flint in front of Judge Berg on October 17, 2016. The transcript from that hearing and Judge Berg’s ruling were publicly released on February 9, 2017.

 Judge Berg then ruled that the lawsuit will go to jury trial on many counts if there is no settlement. I personally attended the hearing in Federal Court, and noticed that nobody from our NCSD attended except their lawyers. During the hearing, Judge Berg made many statements that are important public information, some of which are included below.

The NCSD has apparently offered no settlement or compensation to our Novi neighbors despite Judge Berg’s strong advisement at the hearing several months ago: “I want to just say that I find much of what I have read in this case to show conduct that was -- that I think of as very inappropriate on behalf of the school district here. Very inappropriate. And I do not understand why the parties have not been able to settle the case up until now. I don’t know whether the plaintiffs are perhaps taking an unreasonable position of their own here that’s resulting in not having a settlement. I have no idea what’s going on on that. But I will take it under advisement. I nevertheless will encourage you both to consider going back to the negotiation table and see if you can try to work something out."

The judge went on to say, "Obviously, a school system owes a duty of care to the students, to try to make the school system a safe place. And this should not be -- a case like this should not have to be litigated. School systems should be looking at their students and trying to help their students and protect their students and yes, compensate their students if their students are harmed. And there were many aspects that I read about in the investigation here that were unjustifiable and inappropriate. That doesn’t mean that under the law, that a school system is somehow liable. But if it helps in your thinking about whether to go back to the negotiation table, the motions for summary judgment that the defendants make I think have less of a chance of succeeding frankly than the plaintiff’s motions do, even though I know we’re dealing with -- we are dealing with the plaintiff’s motions that are very hard to succeed on summary judgment. Very hard.” (pg 77-78).

Without getting into any of the arguments of the case, there were several times during the hearing when Judge Berg apparently became upset. The main defense of the NCSD appears to be that the undisputed, repeated sexual touching between the two students was “consensual”, and when the defense suggested “mutual touching,” Judge Berg stated angrily, “Sir, I don’t want to hear the word ‘mutual.’ I don’t want to hear the word ‘consent.’ It is irrelevant to what we’re talking about here as far as I am concerned. Move on.” (pg 26-27) Later Judge Berg affirmed, “Well, if that’s what their argument is (consensual touching), then I don’t agree with that argument either.”  (pg 60)

The only other time Judge Berg apparently became upset during the hearing was when the NCSD defense referred to the Novi Police as “the only independent witnesses,” and after being corrected, referred to the children as “the only witnesses.”  Judge Berg responded: “Well, unfortunately, we don’t really know that, do we, because we don’t know who was in the classroom on the date that this happened because for reasons that are completely unclear to me and almost unimaginable, the school has no idea who was in the classroom with these three children, correct?” (pg 42, 44)

In this and the subsequent passage (about the video) Judge Berg uses the words “unclear,” “almost unimaginable,” “How is it possible?” “utterly ridiculous,” and “utterly irresponsible” to describe the behavior of NCSD administration (pg. 45-46):

“THE COURT (Berg): How is it possible that the principal or assistant principal did not immediately contact the teacher who was present in the room at the time? Can you explain that to me?

MR. WEAVER: I don’t have an answer for that. But I don’t think that --

THE COURT (Berg): Well, that is utterly ridiculous. The adult -- you’re so concerned about whether witnesses were there. There was a witness there who was an adult and no one asked her what she saw on that day and I think that is utterly irresponsible.

MR. WEAVER: She was asked that in her deposition.

THE COURT: (Berg) On that day --

MR. WEAVER: I understand that, your Honor. I understand.

THE COURT (Berg): -- why did they not ask the teacher who was in the room? Why are we sitting around trying to figure out who the teacher was in the room?

A trial is scheduled to begin April 10, 2017 if the parties don't reach a settlement first.