Taxpayers in neighboring districts funding legal fight in Dist. 211 rape case

For eight years, taxpayers in three suburban high school districts have been helping fund a legal fight between another school district and the families of five special education students who were sexually assaulted by a classmate in 2005.

So far, more than half a million dollars have been spent fighting the families' claims that Palatine-Schaumburg High School District 211 administrators and several teachers at Hoffman Estates High School were negligent in the supervision of special education students. But much of that cost has been shared by taxpayers in Northwest Suburban High School District 214, Maine Township High School District 207 and Glenbrook High School District 225.

That's because all four districts belong to an insurance pool that spreads the cost of such litigation across all its members.

Leaders from the school districts say the liability-sharing program reduces the districts' insurance costs and protects taxpayers in the event of catastrophe through economy of scale.

But lawyers for the families say the true power of the insurance pool is that it allows districts to drag out legal battles and has almost complete autonomy since there is no direct oversight of the insurance pool's decision-making by the elected school boards. Instead, litigation and settlement decisions are made by the finance officers of each district who make up the board of directors for the insurance pool.

“I definitely think that if the school board was overseeing this there might be a little more understanding of the human toll of this case,” said Catherine Massarelli, an attorney representing four of the families. “These children were let down and the school board being involved might have a little more compassion for what occurred than just looking at the bottom line.”

What occurred was the rape of four young, mentally disabled girls and the groping of a fifth in fall 2005 by a classmate named Christopher Girard, who was eventually sentenced to 11 years in prison. Some of the rapes happened even after parents of one of the girls raised concerns about Girard's behavior, according to the lawsuit.

“We just told them to follow him,” said the girl's mother, who is called Mary Roe in the lawsuit but asked not to use her real name to avoid identifying her daughter. “And then she was raped, too.”

According to the lawsuit, a then-14-year-old freshman girl identified as Jane Roe, Mary's daughter, told her parents that she thought one of her friends might be pregnant — she was not — because she was having sex with Girard under the bleachers in the gymnasium and in a closet in the special education program's science room. Mary said she told her daughter's teacher Jackie Zydek about her concerns on Sept. 21, 2005, and asked her to not allow her daughter to leave the cafeteria during lunch, the lawsuit states.

Five days later, Girard sodomized Jane and another girl under the bleachers in the gymnasium at Hoffman Estates High School during the students' lunch break as another special education student kept watch, according to the lawsuit.

“When it happened and we found out about it, I thought, 'Where do we go now? Who do we trust now?'” Mary Roe said.

Zydek did not return calls seeking comment. She is still a special education instructor in the district. However, the attorney representing Zydek, other teachers named in the suit, the district and the insurance pool did respond.

“While it's an unfortunate incident, there is no liability,” said Mike Kujawa, the attorney hired by the insurance pool to defend the lawsuits. “They did the best they could for these kids.”

Kujawa said the law regarding special education students states that they be taught in the “least restrictive environment” and the district was following that protocol by not keeping them from leaving the cafeteria.

Meanwhile, Kujawa places the blame for the drawn-out litigation on the plaintiffs' attorneys. The plaintiffs have more than 100 people listed as potential witnesses for trial, he complained.

Kujawa also said another reason it has taken so long is a three-year delay when the civil case was put on hold while the courts decided whether Schaumburg and Hoffman Estates police could be named as defendants. The plaintiffs allege the police had failed to communicate Girard's criminal history to school officials. A circuit court judge ruled the police were not liable and an appeals court upheld that ruling. Then the cases had to be refiled. And then more legal delays.

“There's an issue up on appeal right now regarding privileged documentation,” Kujawa said. “They wanted us to turn over handwritten notes taken by district administrators after they learned of the incident. I don't want to give them.”

An attempt at mediation last year failed.

Massarelli called the settlement offer “insulting.”

“I really wanted to cry,” Mary Roe said. “This doesn't even cover our legal fees. We weren't thinking money when we filed suit; we were thinking justice.”

But recovery for her daughter has been tough, Mary said. Though the district paid for Jane to go to a private school for special needs students, therapy has been an ongoing process.

The rape changed her daughter, she said. Jane, now 23, is prone to random fits of anger. She is nervous and anxious all the time. Jane is more promiscuous and acts out sexually, her mother said.

“We've tried everything we could to make her feel good about herself,” Mary said. “We think she's a hero for being the whistle-blower about this.”

The four districts that make up the insurance pool paid more than $2.1 million combined to cover the costs of the program's operations this year. That's up 15 percent from the previous year. District 211 is the program's largest contributor, mainly because it has the most students and therefore the greatest potential liability. The district contributed nearly $800,000 to cover its share of the insurance pool's operations in 2014, according to the district's financial records. That's up nearly $100,000 from 2013, but it has nothing to with the ongoing litigation, according to the program's administrator, Mike Nugent.

“Our biggest exposure is property damage,” he said. “If this case goes to trial and breaks bad, it's unlikely to affect the program costs.”

That's because this case dates back to an old insurance policy held by the group nearly a decade ago and the program's annual costs to the school districts relate only to the past five years' worth of claims.

Nugent said the insurance policy covering the program for 2005, the year the assaults took place, carries a maximum payout of $31 million. Anything above that would have to be covered by District 211. In the insurance pool's more than 20 years of existence, no claim has ever been more than what the program is insured to cover, Nugent said. So if the insurance pool has $31 million to work with and a settlement of any kind won't affect future rates, why isn't the program simply settling with the families?

“Our (insurers) would not be very excited about your strategy. Most of that would come from them,” Nugent said.

District 211 board members would not talk about the lawsuit because it is still active. However, District 214 board President William Dussling said the insurance pool is working the way it is intended and he doesn't have a problem with the District 211 case dragging out as long as it has, despite its costs to his taxpayers. He said he empathized with the victims and their families, but he said the proper processes have to be maintained no matter how horrific the crime that spurs litigation.

“There's a confidence we have being in this pool that those cases are being handled in the best possible way to protect all of our interests,” Dussling said.

Meanwhile, Jane's mother said her daughter is doing better these days. While Mary thinks about her daughter's rape frequently, Jane doesn't bring it up much anymore. She's taking classes with other developmentally disabled adults at a suburban college and is thriving, her mother said.

“Her self-esteem has improved,” Mary said. “She said to me the other day when she got home from school, 'This is the first time in my life I feel normal.'”

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Contact Jake at jgriffin@dailyherald.com or (847) 427-4602.