School district asks judge to overturn verdict
Ex-student’s attorney seeks $253,000 fees
The Tonganoxie school district is asking a federal judge to reject a jury's verdict that awarded $250,000 to a former student, saying testimony did not support the jury's decision.
On Aug. 11, a U.S. District Court jury awarded the $250,000 to Dylan Theno, who had filed a lawsuit claiming he was harassed for years and, therefore, denied access to an education.
Theno's attorney, Arthur Benson of Kansas City, Mo., said the district's request is routine and was expected.
"You have to do it, if you intend to appeal," he said.
Benson has until Sept. 8 to file a response to the district's motion, which was filed last week. And he said he anticipates U.S. District Judge John Lungstrum would rule before the end of the month.
"I doubt that he will have arguments in person," Benson said.
Once the judge rules -- and if the judge rejects the school district's request -- the school district will have 30 days to file notice it intends to appeal to the U.S. Court of Appeals.
In addition, Benson is asking the district to pay Theno's legal fees, which total slightly more than the jury's verdict. In a motion also filed last week, Benson is seeking $232,000 for the more than 1,000 hours he and his associates spent on representing Theno, as well nearly $21,400 in expenses.
During the next three weeks, Benson and Steve Pigg, the district's attorney, will confer over the Benson's request for fees, discussing whether the rate is fair and whether the hours Benson submitted are reasonable.
Obviously, if the judge overturns the jury's verdict, the district would not pay the fees.
In his motion to set aside the jury's verdict, Pigg argued that evidence at trial did not support the verdict. He said no evidence was presented that Theno was harassed because of his gender, one of the cornerstones for the case to be considered a federal action under Title IX of the federal education law. The other legs of the case required that the school district was aware of the harassment; that Theno was deprived of an education; and that the district was indifferent to the harassment.
In testimony, Theno, now 18, said he was harassed from seventh grade through November of his junior year, when he quit school. He said a rumor was started in seventh grade that he had been caught masturbating in the bathroom. In addition, he was called such names as "gay," "faggot" and "masturbator boy" and subjected to other sexual innuendo.
But in his motion, Pigg said that was not enough.
"No witness testified that the masturbation taunts were in any way prompted by plaintiff's masculinity or perceived lack of masculinity," Pigg's motion said. "Rather, the masturbation rumor was a conveniently crude topic for teenage banter. ... The only evidence of motivation for taunting plaintiff (Theno) was the irritating way plaintiff bagged about his ability to subdue other boys with his Tae Kwan Do expertise, hardly a characteristic considered unmasculine."
Pigg said that none of the students who called Theno names was suggesting Theno was homosexual or effeminate.
"Various witnesses testified that words such as 'gay,' 'fag' and 'faggot' were common, often light-hearted insults exchanged among young men," Pigg's motion said. "Even plaintiff admitted that he had at one time used these words in banter with friends."
Because Theno was not subjected to gender-based harassment, Pigg said, Theno had no claim against the district.
"To hold otherwise would transform Title IX into a federal cause of action for every student who is labeled a 'geek,' 'weirdo' or 'spaz,' or any other word suggesting someone outside the social mainstream of school-age children," Pigg said.
In addition, Pigg said the district addressed complaints from Theno and his parents.