School system answers lawsuit

Lawyers: Father could’ve done more during bus incident

The father of a 9-year-old autistic boy could have stepped onto a school bus and clothed his half-naked child who had removed his own pants and diaper on the ride home last year, according to a response from Newport News Public Schools to a pending lawsuit.

But the father, Matthew Harvey, never asked to do so, the response contends.

“They did not feel comfortable as adult females attempting to redress a grade school-aged male who had undressed himself,” attorneys hired by the school system wrote on behalf of the bus assistant and bus driver at the center of the lawsuit.

The monitor and driver “explained the situation to the father at the bus stop,” and the father picked up the boy — and his clothes — and carried him away without putting them on, according to the response from attorneys Richard Matthews and Anne Lahren.

While there was no “specific invitation” for the father to come onto the bus to clothe his son, Harvey would have been allowed on the bus had he asked, Matthews and Lahren maintain.

“The father could have redressed him on the bus,” the lawyers wrote.

“There were no other students remaining on the bus, so that was not an issue.”

Matthews and Lahren, with the law firm of Pender & Coward, also say the video footage shows the boy was “adequately covered by outer garments” as the father carried him away.

A lawsuit brought by the boy’s father on May 5 contends the bus monitor struck the 9-yearold autistic student in the face Sept. 30 on the way home from the Center for Autism at Kiln Creek Elementary School.

Jacob Murov, the local attorney who filed the lawsuit, said the complaint is backed by video footage and the school system’s letter to bus monitor Patti Washington.

The suit, filed in Newport News Circuit Court, seeks $15 million in damages.

The disciplinary letter to Washington, written by Newport News Public Schools transportation supervisor Susan Moore, said the boy had no shoes and “wet sock feet” when he got on the bus Sept. 30.

The 9-year-old removed his socks and began chewing one of them.

But the sock fell out of his mouth, Moore wrote, and Washington picked it up. “You appear to strike him in the face with the wet sock,” Moore wrote in the Dec. 6 letter to Washington, obtained this week by the Daily Press.

As the bus run continued, the letter notes, the boy — who the lawsuit says doesn’t communicate verbally — begins to remove his pants and diaper.

“There were two instances in (which) you told the student you wished you could ‘whip his tail,’ which is a direct threat,” Moore wrote to Washington.

When the bus got to the boy’s stop, Washington allowed the boy to get off the bus naked from the waist down, the letter said.

“You did not attempt to put his clothes back on, nor did you invite the father on the bus to clothe his son,” Moore wrote.

The previous day, Moore added, “you and the driver were having a conversation about the student, while he was on the bus, in which you referred to him as acting like an ‘animal’ and a ‘monkey.’” She also refers to another incident where she grabbed a boy and jerked him into his seat.

Moore wrote that “this type of callous behavior towards students is a direct violation” of a school board policy. The bus monitor, she wrote, is supposed to sit behind the last student on the bus.

“The videos clearly show that you were not following through with your assigned duties,” Moore wrote on school division stationary. “This letter serves as your Final Warning for these infractions.” Washington, bus driver Deborah Richardson and the Newport News School Board — the seven-member body that oversees the Newport News Public Schools — are named as defendants in the lawsuit.

The school system’s answer to the complaint strikes a very different tone than Moore’s Dec. 6 disciplinary letter.

Washington’s hitting the boy with the sock was unintentional, and was “incidental contact given that (the boy) was chewing on the wet sock,” Matthews and Lahren wrote in the answer.

Moreover, the lawyers added, Washington’s wish that she could beat the boy’s tail, “does NOT meet the dictionary definition of a ‘threat.’

And in reference to Washington referring to the boy as “an animal” and a “monkey,” the attorneys wrote that the video footage “showing uncontrollable conduct” on the boy’s part on Sept. 29 “provides context as to any descriptive conversation” about it.

Moore’s disciplinary letter, Matthews and Lahren wrote, “reflects the opinion of the author,” while the video “provides full vision of the incident.”

But Murov, the attorney representing the family, said he found the school system’s answer “pretty outrageous,” saying the division is now “backtracking” from the school system’s own letter to Washington.

The assertion that “telling someone you wish you could whip his tail does not meet the dictionary definition of a threat is completely inconsistent” from Moore’s letter, Murov said.

The letter, he said, “specifically calls that a direct threat in violation of school board policy.”

“This is a common theme with their answer,” Murov said. “They seem to be shifting gears now — shifting their explanations — and disputing what’s in the letter.”

Murov also noted that Moore’s letter says nothing about the “context” of the 9-year-old boy being out of control on the bus the day before as a justification for being called a monkey and an animal.

“I find it telling that they’re now trying to blame the kid,” Murov said. If the boy was out of control, he said, you would think school officials would have notified the father the day before.

As for whether Harvey should have asked to go on the bus to pull his son’s pants back on, Murov said that ignores the fact there’s a strict school division policy in place that parents are barred from buses.

A list of frequently asked questions on the school division’s website, he said, says “parents are prohibited from getting on the bus,” and that Harvey was never told that was a possibility.

In an interview Thursday, Matthews defended the school division’s response. “There’s absolutely nothing outrageous about our answer,” he said.

“A lawsuit has to be based on facts as established by the evidence, not by the contents of a letter,” Matthews said. “The video conclusively establishes what happened on the bus that day and is the best evidence. It supports the position taken in our answer.”

In a separate filing on Friday, Matthews asked that the case against the School Board be dismissed on the basis of “sovereign immunity.”

That legal doctrine, which dates back to colonial times, stems from the premise that “the King can do no wrong,” according to several writings on the topic. In practice, the doctrine provides government entities — including school boards — immunity from lawsuits if they commit mere “simple negligence.”

On the other hand, a case can proceed if a defendant’s conduct reflected “gross negligence,” which the lawsuit alleges the School Board committed in this case.