Telling Tales Out of School
Penelope Jones was born with spastic cerebral palsy and is unable to control the right side of her body; she is also deaf in one ear and mentally retarded. When she enrolled in a special-education class at Denver's George Washington High School seven years ago at the age of twenty, she functioned at the level of a first-grader. Although her chances of advancing academically were slim, her mother, Penny Murrell, didn't want her to be isolated at home any longer.
Sending her daughter back to school was a tough decision for Murrell. Four years earlier, while Penelope was riding the bus home from Smiley Middle School on June 29, 1989, two boys had molested her in one of the backseats. Penelope told her mother that she'd screamed the entire time, but the bus driver wouldn't stop. After that, Penelope was terrified to go back to school.
Murrell pressed charges against the boys, and also kept her daughter home for the next several years.
In 1993, Murrell finally decided it was time for Penelope to go back to school. Even though she was now twenty, special education children can be enrolled in DPS programs until the age of 21. Murrell says she took every possible precaution to ensure that Penelope would interact with other students only in a controlled environment. She would drive Penelope to school and escort her to class, and then pick her up at the end of the day in her classroom rather than the parking lot. Murrell told Penelope's teachers that her daughter had been assaulted before, and asked that Penelope be allowed to eat lunch in the classroom instead of going to the cafeteria.
School started out well for Penelope, whose bubbly personality made her instant friends. One boy in particular, fourteen at the time and also retarded, started spending a lot of time with her. He would sharpen her pencils and help her with math. If another student sat down by her first, he'd get angry. Murrell recalls Penelope's teachers saying that her daughter had a boyfriend.
Although Penelope was happy at school, she always looked forward to her mother's appearance at the classroom door. As Murrell walked in, she'd rush up and greet her with an excited "Mommy, Mommy!"
But one day in early November 1993, Penelope kept her head on her desk when Murrell arrived. When Murrell asked what was wrong, Penelope just grabbed her mother's hand and said, "Mommy, let's go." She kept her head down as they walked to the parking lot. Once they were in the car, though, Murrell tried to get her to look up. "Penelope," she said. "Penelope." She reached out her hand and turned Penelope's face toward her. Her daughter had a black eye, a busted lip and dried blood around her nose.
Murrell asked if she had gotten into a fight. "No," Penelope answered curtly. Murrell asked again what had happened. "I had a bloody nose," Penelope replied.
Murrell kept pressing, but Penelope only got more upset with each question. "Was someone picking on you?" Murrell guessed.
"No, Mommy, no!" Penelope insisted. Murrell suspected someone had been bullying her daughter.
On Wednesday, November 24, the day before Thanksgiving break, Penelope again acted despondent after school. She spent most of Thanksgiving in her room. A couple of days later, Murrell saw a side of her daughter that she'd never seen before. Hearing crashing and banging sounds coming from Penelope's bedroom, she rushed in: Penelope was tearing up the room, throwing her toys and clothes around and trying to cut herself with shards of glass from broken picture frames. And she was screaming, "I hate myself, I hate myself! People are bad!"
Her daughter had never gone into a rage like this before, and no amount of soothing words or physical restraint would calm her. "She wouldn't tell me what was wrong," Murrell says.
At a loss, Murrell admitted her daughter to the University of Colorado North Pavilion Hospital for a psychiatric evaluation. Two days later, hospital staffers told Murrell they believed Penelope had been sexually assaulted. Murrell talked to her daughter again. This time, Penelope told her that the boy who had been so attentive in class had asked her to go for a walk with him during lunch in early November. He'd taken her to a stairwell near the swimming pool, back by the boys' locker room, then beaten and raped her. The day before Thanksgiving break, he'd asked her to accompany him again. She didn't want to go, but he threatened to hurt her if she didn't. Back by the stairwell, he again sexually assaulted her.
"I just thought a bully in class was picking on her," Murrell says. "I didn't think it was anything that depraved."
Murrell later learned that the teachers had allowed Penelope to go to the cafeteria with the boy, who is referred to only as "John Doe" in court documents. And during the seven years that elapsed between her daughter's assault and the resolution of a suit Murrell filed on her behalf against Denver Public Schools, she learned a lot more about John Doe -- and about the way the school system treats special-needs children.
First thing on December 1, 1993, Murrell called Nellia Hicks, one of Penelope's teachers, and told her what had happened. Hicks told her to call back later that morning when Kathleen Brady, Penelope's primary instructor, would be in class. But Murrell says when she got Brady on the phone, the teacher said Murrell would have to try to resolve things with the boy's mother.
Murrell did call the boy's mother, who seemed genuinely concerned. Her son had spent the early years of his life in the Philippines, she told Murrell, where his father had exposed him to strip clubs and prostitution; because of that, she'd been concerned about how he'd act around girls when he became a teenager. The boy's mother claimed she'd told her son's teachers about his upbringing and cautioned them never to leave him unsupervised, Murrell remembers. But the boy, who functioned at the level of a third-grader, had been named a janitor's assistant at the school, which allowed him access to out-of-the-way spots, including the stairwell where he had taken Penelope.
The next day, the boy's mom called Murrell back and said that her son had admitted to beating Penelope and having sex with her, Murrell says. The boy's mother set up a meeting with Brady, Hicks and school principal Vivian Johnston and took her son along; he led them to where the assaults had taken place and admitted that he had hit Penelope, Murrell says.
Murrell, too, wanted to meet with Johnston, but the principal didn't return her calls, she says. Finally, Murrell made an appointment through Johnston's secretary, but when she arrived for their meeting, the principal wasn't there. "I'd sit there and wait and wait, and she wouldn't come," Murrell says. "The secretary would say that the principal was in meetings that were lasting a long time."
On December 6, at the urging of teachers who said they didn't think Penelope should sit at home and brood, Murrell reluctantly took her daughter back to school. But other students taunted her about having sex, and the boy hit her in the face, Penelope said. She never returned to school after that.
A couple of days later, the boy's mother told Murrell she'd set up a December 10 meeting with the teachers and principal, and she invited Murrell to join them. In the course of discussing whether the boy should be suspended, Murrell remembers, Principal Johnston said she couldn't be sure that the sex wasn't consensual. Because her daughter is mentally retarded, she couldn't consent, Murrell pointed out; she also says she reminded Johnston that the boy had admitted to hitting Penelope. "She kept saying that she didn't have proof that it wasn't consensual, and I kept saying that my daughter couldn't consent," Murrell says. "It went on and on like that to the point of ridiculousness, so finally I said, 'Why don't we suspend both of them, investigate what happened and take it from there?'"
Although Murrell had already made up her mind to keep Penelope at home, she still wanted to cooperate with any investigation. But there wasn't going to be any further investigation. "The principal said, 'You want a suspension? You want a suspension?' and left the room," Murrell remembers. "She came back with a suspension paper and threw it in my face. I just wanted to find out, in a calm, civilized way, what happened to my daughter and what was going to be done about it. I didn't want it to get ugly."
But after that meeting, it only got uglier. Murrell says she felt she had no choice but to sue DPS and the individual teachers and principal.
In November 1995, Murrell filed suit on her daughter's behalf in U.S. District Court, claiming that Denver Public Schools, Brady, Hicks and Johnston had violated Title IX of the Education Amendments of 1972, which prohibits gender discrimination in federally funded schools. The suit also charged that the defendants had violated the Equal Protection Clause of the Fourteenth Amendment by "failing to remedy" the harassment.
But the court dismissed the suit, ruling that Title IX doesn't address "a school's failure to prevent and remedy student-on-student sexual harassment, and that the school district had no constitutional duty to protect Ms. Jones from assaults by a fellow student."
Title IX is really directed at protecting students from discrimination and harassment by teachers, says Murrell's current attorney, Peter Thomas, and makes no mention of student-to-student sexual harassment.
Murrell appealed in 1997, but the Tenth Circuit Court of Appeals held off on considering her claim until a similar case, Davis v. Monroe County Board of Education, was decided by the U.S. Supreme Court.
In that case, LaShonda Davis, then a fifth-grader at a Monroe County, Georgia, elementary school, had repeatedly complained to teachers and the principal that a fellow student was sexually harassing her, yet no one at the school did anything about it. The boy, she charged, was constantly trying to touch her genitals, directing lewd comments at her and rubbing his body against hers. The boy was never disciplined, and Davis wasn't allowed to switch classes for three months. Davis claimed that the boy's harassment interfered with her academic performance and attendance, and a drop in her grades over the semester helped demonstrate that. Most important to Murrell, though, was that Davis and her mother had sued the school district under Title IX, which states, in part, that no one "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance."
The Supreme Court court reversed the earlier court's decisions and allowed the suit to proceed. In the judges' opinion, Justice Sandra Day O'Connor explained, institutions that receive federal funds are liable "only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis's claim was viable because she "attempted to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools. She did not assert the school district was responsible for [the boy's] inappropriate conduct."
The precedent-setting decision came just in time for Murrell, whose allegations would have to meet the four standards established by the case before she could sue under Title IX: that the district had actual knowledge of the sexual harassment; that the district was deliberately indifferent to the harassment; that the harassment was severe, pervasive and objectively offensive; and that the harassment deprived her daughter of access to the school's educational opportunities.
On August 4, 1999, a Tenth Circuit Court of Appeals judge said the court had determined that Murrell's case passed the first test: "Ms. Murrell alleged that she telephoned Principal Johnston to discuss Mr. Doe's harassing conduct, and therefore that the principal had actual knowledge of the assaults at least as of the time Ms. Jones was in the hospital. Nevertheless, Principal Johnston failed to take any action to remedy the situation when Ms. Jones returned to school. Indeed Principal Johnston allegedly refused to investigate the matter or discipline Mr. Doe, and instead suspended Ms. Jones and suggested that the sexual conduct was consensual."
Murrell's suit passed the second test, too, the judge said. "[Johnston's] complete refusal to investigate known claims of the nature advanced by Ms. Murrell, if true, amounts to deliberate indifference."
It also passed the third and fourth tests. "Ms. Murrell has alleged that over the course of about a month, Mr. Doe repeatedly took Ms. Jones to a secluded area and battered, undressed, and sexually assaulted her. Although Mr. Doe's behavior did not last as long as the harassment in Davis, we easily conclude that Ms. Murrell has alleged wrongdoing 'sufficiently severe, pervasive and objectively offensive' to state a claim," the judge wrote. "After the assaults, Ms. Jones became a danger to herself and had to leave school to be hospitalized. Moreover, Principal Johnston suspended Ms. Jones when Ms. Murrell suggested the school district should investigate the claim. Ms. Jones is now home bound as a result of her experience at GWHS. The school district's deliberate indifference to her claims totally deprived Ms. Jones of its educational benefits."
Although the appeals court reversed the district court's ruling on Murrell's Title IX claim, it upheld the dismissal of her Fourteenth Amendment Equal Protection claim against Denver Public Schools. To sue a school district for sexual harassment under that amendment, Murrell would have had to claim that DPS has an official policy of deliberate indifference to sexual harassment. But the appeals court upheld Murrell's Equal Protection claim against Brady, Hicks and Johnston. "I emphasize that the 'deliberate indifference' standard provides a high hurdle for the plaintiffs. Such a high hurdle is necessary, given the myriad contacts which occur daily in this country between teachers and students and between students and their peers," the judge wrote. "The allegations in this case are so egregious, however, that I agree that Ms. Murrell has stated a claim against the principal and teachers under the Equal Protection Clause."
This court decision has carved new legal territory in Colorado. Although the wording of Title IX hasn't been amended, the Tenth Circuit now interprets it to include protection against student-to-student sexual harassment, Thomas says, which could become increasingly important as more student-to-student sexual-harassment cases end up in court.
In the 1999-2000 school year, eighteen reported student-to-student sexual assaults took place in Denver's public schools, according to the district; during the 1998-1999 school year, 27 sexual assaults were reported; in 1997-1998, 19 sexual assaults were reported; and in the 1996-1997 school year, 20 were reported.
The number of juvenile sexual assaults in DPS surpasses the number in Jefferson County, the largest school district in Colorado. But according to Laura Dunbar, chief deputy district attorney in Jefferson County, the number of reported sexual assaults that occur on Jeffco school grounds during school hours is increasing. Her office used to receive seven or eight such reports a year; since January 2000, there have been fifteen reported cases of student-to-student sexual assaults at schools. "Fifteen may not sound like a lot, but when you consider that we file about 100 juvenile sexual-assault cases a year, that means that over 10 percent occur in school," Dunbar says. "This is really problematic. We face, in our community, a level of denial of sexual offense that occurs in schools. There's the attitude of 'that's what boys do' or 'they're adolescents, what do you expect?' I just don't think we should tolerate harassment in any form."
In December 1997, a fourteen-year-old boy at Burbank Middle School in the Boulder Valley School District molested an eleven-year-old boy while their special-education class was watching a movie; the teacher was standing in the hall while the assault took place. When they learned of the assault, school officials notified police and assumed that they would inform the mother, but the police did not. The eleven-year-old's mother didn't learn of the assault until three weeks after it had happened. When angry parents subsequently confronted Boulder school-board members, the board adopted a policy requiring schools to immediately notify parents when assaults or suspected assaults occur. In April 1998, the fourteen-year-old, who was already on probation at the time of assault because of an earlier sexual assault on a child, pleaded guilty to third-degree sexual assault and was sentenced to two years' probation. He was also ordered to undergo intensive therapy and to place his name on the state sex-offender registry.
The victim's parents, following Murrell's lead, recently filed suit in federal court under Title IX. "That pivotal Title IX case had a major impact on the viability of our case," says Lee Hill, their attorney. "Murrell's case was good news for us."
Handling juvenile sex offenders is challenging enough, but when a sex offender is developmentally delayed, it's even harder. Phil Tedeschi is the founder of the Resource Center for High Risk Youth, an outpatient treatment program for juvenile sex offenders in Denver, as well as the clinical administrator at Hand Up Homes for Youth, a residential program for young sex offenders; both programs serve a large number of developmentally delayed juveniles. Tedeschi also sits on Colorado's Sex Offender Management Board, which was created by the state legislature in 1992 to come up with policies for managing convicted sex offenders and is now developing evaluation and treatment standards for juvenile sex offenders, including those with developmental disabilities.
"First they have the deficits that come with developmental delay -- lack of judgment, lack of impulse control and lack of cause-and-effect thinking -- and then their bodies develop, but they still operate on the mental level of someone much younger," Tedeschi says. "A developmentally delayed individual may experience arousal but not have any experience with what that arousal means and not understand when sexual behavior is appropriate."
A lot of developmentally delayed people, he continues, are able to consent to sexual activity if they are taught when it is and isn't appropriate. But people with such disabilities often have a hard time applying what they're taught to real-life scenarios. "For example, a parent may tell her child that when Bobby from next door comes over and asks to kiss you, you say no. But that child may think, 'Well, what about Joe in school?' Some people with developmental disabilities have a clear understanding of consent in one setting but not in another," he says.
Tedeschi has worked with developmentally delayed students who have assaulted other kids in school; such situations aren't uncommon, he says. "We should anticipate sexual behavior as being a fairly common phenomenon among special-needs kids. They experience a lot of anxiety and emotional discomfort, and it's common for people with uncomfortable emotions to find something that makes them feel better. Some people associate sexual behavior as something pleasurable, and it becomes a way for them to cope. It can become compulsive, like an addiction," he adds, explaining that just as many people turn to cigarettes or alcohol for comfort, developmentally delayed kids and adults often turn to sexual activity.
"They're usually not aware that it's inappropriate," he says, "and most developmentally delayed offenders don't know the definition of legal versus illegal sexual behavior."
To help keep tabs on students who might pose a problem, a new state law was passed last session that will make it easier for schools to learn about students who commit sexual offenses outside of school. The law requires district attorneys' offices to notify schools whenever sex-crime charges are filed against a student between the ages of twelve and eighteen.
The Jefferson County District Attorney's Office has been notifying schools about juvenile sex offenders for several years; in December 1997 it started a program called SAFE Jeffco (Sexual Abuse-Free Environment). The attorneys who staff the program hold training seminars to teach school employees how to supervise juvenile sex offenders and identify perpetrators and victims; the school district itself now provides voluntary training to supplement SAFE Jeffco's offerings.
Denver Public Schools does not have such a program, but it does require teachers to undergo Title IX training to learn what constitutes sexual harassment and to recognize when students are being harassed. DPS spokeswoman Amy Hudson says that a summary of the district's sexual-harassment policy, which was established in April 1993 and applies to teacher-to-student harassment as well as student-to-student harassment, is posted in every school; instructions on what a student or teacher should do if he or she witnesses or experiences harassment are also posted.
Although after four years Murrell had finally gained the right to sue the school district, by last year her case was losing momentum. Evidence that she thought she had failed to materialize, and the more damning allegations that she'd made early on -- and repeated to the court -- were never corroborated.
DPS declined to comment on the lawsuit and also refused to let the teachers and principal named in the case comment. But in court documents, the school district has refuted most of Murrell's claims and voiced its own questions about her credibility. This past July 31, DPS attorneys filed a motion for summary judgment, arguing that "years of discovery have revealed Plaintiff's claims to be, quite simply, cut from whole cloth. The heavy handed allegations which served as the sole basis for the Tenth Circuit's remand in this case are simple fiction."
For instance, DPS attorneys said, prior to enrolling at George Washington in August 1993, John Doe had attended Smiley Middle School and, before that, Montclair and Ellis Elementary Schools. No disciplinary action had ever been brought against him at those schools, and his teachers had not mentioned any concerns about his behavior.
But even after Murrell reported the stairwell incidents, John Doe was allowed to roam the school as a janitor's assistant. And in its own motion, DPS acknowledged that students weren't fully supervised at lunch: "During the lunch hour, the special education students could go to the cafeteria, visit with other students and walk around. Brady learned that the two often took walks together at lunch, but did not suspect any inappropriate conduct. She asked the students not to wander off."
Murrell, however, had recanted her original accusation that the teachers had known about the assaults all along. Asked about the allegation in a deposition, Murrell had replied: "I think they suspected it. I can't say that they knew. I -- you know, I'm not clairvoyant, so..."
As soon as Murrell told them what she'd learned, both teachers testified in their own depositions, they'd immediately informed the principal, who eventually suspended the boy for five days.
"District personnel investigated the allegations and concluded that the relationship between Jones and Doe appeared, by all accounts, consensual," DPS attorneys claimed. At the December 10, 1993, meeting between the teachers, the principal, Murrell, Penelope and Mrs. Doe, they noted, "Jones admitted that she 'liked' Doe and that the two had engaged in some form of sex. She did not claim that he 'forced' himself on her.
"Discovery has reduced Plaintiff's claims to a mere shell of the allegations she made five years ago. The Complaint's portrayal of Doe as an obvious would-be sexual assailant, the allegation that the teachers had any knowledge regarding the students' sexual relationship... and the claim that Johnston failed to discipline Doe have all gone up in smoke," the attorneys continued.
In its motion, DPS even implied that Penelope was hospitalized as a result of domestic problems, not because of what happened to her at school. "On November 29, 1993, Jones became upset and uncontrollable at home during a fight with her mother and threatened to harm herself. After police removed her from her home, Jones was taken to a psychiatric facility. From there, she was placed on an involuntary hold for 72 hours, after which she remained hospitalized for several days," the school district's attorney wrote, citing the psychiatric hospital discharge summary. "During her admission at the psychiatric hospital, Jones reported being afraid of her mother. She claimed that 'her mother was pushing her and slapping her in the face causing a nose bleed approximately two weeks ago [and that] when she is bad her mother will lock her in her room and call her stupid.'"
In his response, Thomas called DPS's motion "a masterpiece of artful selection and parsing of facts to construct their own fiction of events."
Thomas reminded the court of Doe's early days in Philippine brothels and nude bars, evidence that the retarded boy's early exposure to sex made him a threat to his female classmates. "He even witnessed his father selling Doe's sister at a child sex auction," Thomas claimed.
In their depositions, Brady and Hicks had claimed that they knew nothing of the boy's past until the December 10, 1993, meeting. When Murrell's attorney questioned the boy's mother, however, she testified that she had expressed her concerns to her son's teachers much earlier:
So when [John Doe] began to be interested in girls when he was in high school, were you worried that some of what he had seen or been around as a child might make him behave inappropriately towards girls?
Mrs. Doe: Yes, because in the strip joints, you bought a person. It was almost like owning a slave.
Did you ever talk to anyone at Denver Public Schools about the kinds of things [John Doe] had been exposed to sexually when he was young?
Mrs. Doe: When he went to high school and when I had mentioned to the teachers -- especially when he was exploding with his teenageitis, we're in love -- watch him, he might be a little rough. A little overly aggressive....
And who do you remember talking to about that?
Mrs. Doe: His teachers. 'Cause I was concerned when they were talking about Penny...
Was this before or after you heard about the incident?
Mrs. Doe: This was before the incident...
Tell me first of all which teachers you spoke to.
Mrs. Doe: Mrs. Hicks and Mrs. Brady.
When you talked to Ms. Hicks and Ms. Brady, did you tell them about the Philippines?
Mrs. Doe: Oh, yeah, on several occasions.
When did you first talk to the teachers? Do you remember?
Mrs. Doe: The day he walked into George Washington High School.
On Monday, September 18, a federal district court judge denied the school district's motion for summary judgment and set the case for trial in December.
But on October 4, the suit was reportedly settled out of court. Both sides agreed that the terms would be kept confidential and also agreed not to discuss the case further; all of the interviews for this story were conducted before any settlement. Murrell had said that she didn't want her daughter to have to relive the assaults at trial; this way, she'll never have to.
Murrell says she doesn't blame John Doe or his mother for what happened to Penelope, but she can't forgive the principal and the teachers. "Until my dying breath, I'm responsible for my daughter, and I'll always fight to make sure people value her rights," she adds. "This has made me very bitter. I can't get over it. Sometimes it borders on severe anger."
Thomas says John Doe, who is now 21, graduated from George Washington and is living at home in Denver. Neither he nor his mother could be reached for comment; their identities are protected by the court.
Kathleen Brady is currently working in the DPS special-education office. Vivian Johnston is retired, and Nellia Hicks left the district in 1998.
Now 27, Penelope is never out of her mother's sight. Murrell, who quit her job as a medical insurance processor a few years ago to be with her daughter full-time, says Penelope is still haunted by the assaults. "She can't tolerate hearing people argue, and she talks about men beating up women," Murrell says. "She hates for people to lie, and she says that men are bad. I try to tell her that not all men are bad and that women can be mean to people, too."
Medication prevents Penelope from going into the kind of rage that landed her in the psychiatric hospital, but just in case, Murrell has removed anything from her bedroom that she could use to hurt herself. She also monitors everything Penelope watches on television. During ER -- one of Penelope's favorite programs -- Murrell sits with the remote control ready. When an episode features a topic such as domestic violence, Murrell changes the channel until the scene is over.
As long as Penelope is occupied, she's happy, her mother says. "She's still gentle and sweet. But what happened to her has changed her. It's made her more mistrusting of people. She clings to me now because she feels I'll protect her from anyone. I don't like her like this. She used to be so carefree. I mean, it's good that she doesn't trust people as much as she did before, but it's taken a lot of happiness away from her."
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