Jury awards $250,000 to former student
Testimony: Harassment started in seventh grade, continued into Tonganoxie High School
A federal jury on Thursday awarded $250,000 to a former Tonganoxie student who said other students sexually harassed him for years, thereby denying him access to an education.
Dylan Theno, now 18, filed a lawsuit 15 months ago against the Tonganoxie school district, alleging that district officials were aware of the harassment, but didn't take sufficient action to ensure the verbal abuse stopped. In the lawsuit, Theno alleged he was denied access to an education, a protection afforded under Title IX of the federal education act.
It is expected that the school district's attorney will file a motion, asking U.S. District Judge John Lungstrum to set aside the jury's verdict. If the judge denies that request, the school district still can appeal the verdict to the U.S. Court of Appeals.
According to school Superintendent Richard Erickson, any decision whether to appeal will be made by the district's insurance company, EMC Insurance Company, which is responsible for paying any award in the case.
In a prepared statement, Erickson said he was disappointed by the jury's verdict.
"I want to thank the USD 464 Board of Education, building principals, teachers, classified employees and students for the dignity and professionalism that they exhibited during the past 18 months of litigation," he said. "We will continue as a school district to offer a first-class educational program for our students, striving to improve our services each and every day."
During the trial, jurors heard testimony that the harassment -- which included being called such names as "faggot" and "masturbator boy," and being subjected to sexual-based rumors and other sexual innuendo -- began in seventh grade and continued until November of Theno's junior year, when he left school.
Theno, who is not a homosexual, had asked the six-woman, two-man jury to award him $700,000 for his suffering and future medical bills. In a verdict, returned after about 12 hours of deliberation, the jury settled on the lesser amount.
Theno, who earned a General Education Development degree and is attending classes at Johnson County Community College, said the money is of little solace.
"They awarded me $250,000, but where's the last five years of my life," he said. "How can I get them back."
Theno's parents said that money was not the central issue in the case, filed in U.S. District Court in Kansas City, Kan.
"We wanted to help all the kids so it doesn't happen again," said Dylan's mother, Cheryl Theno.
Theno's attorney called the use of Title IX -- often reserved for cases involving sexual discrimination in sports -- a groundbreaking event.
"Title IX traditionally is applied to overt discrimination," the attorney, Arthur Benson, said. "This is more subtle. But it is something that is common in our public schools. Kids can be mean to each other. ... This verdict should be a warning to all school districts across the country to put them on notice."
Steve Pigg, a Topeka attorney representing the Tonganoxie school district's insurance company, declined to comment.
During testimony in the trial, which began Aug. 2, Theno and his parents said they talked repeatedly with school officials about the harassment. His parents said they took their concerns to junior high and high school principals, the superintendent and school board members.
"It was just like it was becoming part of his name -- that fag Theno, gay Theno," said Alan Theno, Dylan's father.
The Thenos said they kept a log of incidents, as well as conversations with school officials. Dylan Theno's father even tape-recorded some conversations with the high school vice principal.
School district officials had maintained they took the Thenos' complaints seriously and acted on them, in an effort to stop the harassment.
The Thenos said they didn't report each incident of harassment to school officials -- many times at the urging of their son, who was afraid his parents' trips to the schools would only make matters worse for him. Theno said that he had few friends in school and that verbal abuses were hurled at him in the halls, in classrooms and even during sporting events.
"I was scared to walk down the hallways," Theno said after the verdict was returned. ... I was just miserable. I woke up every morning begging my parents to not make me go to school."
Currently, Theno -- who is under a psychiatrist's care -- is taking welding classes at Johnson County Community College. He said that now, nearly two years after leaving Tonganoxie schools, he's healing emotionally.
"I'm still an 18-year-old kid," he said, smiling. "I don't really know what I want to do. One day, you wake up wanting to be an FBI agent. One day, you want to be a welder."
He said filing a lawsuit against his former school district and enduring an eight-day trial was difficult.
"My parents have stood behind me this whole time," he said. "My friends have been here for me. If you truly believe you're right, you've got to fight for that, to prove you are."
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