Former student, district settle lawsuit
Insurance compny OKs $440,000 payout
The Tonganoxie school district's insurance company ended a 19-month legal battle by agreeing to pay a former student $440,000.
"That's it," said Steve Pigg, a Topeka attorney representing the school district. "It closes the matter. There are no contingencies I can think of."
The former student's attorney said the effects of the case would be far-reaching.
In the settlement, reached on Thursday, attorneys for the school district and former student Dylan Theno agreed to end a federal lawsuit filed in May 2004. Theno, who said he was the target of sexual discrimination at the hands of other students, won a jury award in August totaling $250,000. And just a few days ago, the judge in the case ordered the district to pay nearly $270,000 in attorneys fees.
The jury award was under appeal to the 10th Circuit Court of Appeals in Denver at the time of the settlement. Pigg said the agreement was reached, with the help of a federal mediator from the Denver court.
The lawsuit centered on Theno's claim that he was bullied in junior high and high school, and that the pervasive bullying forced him to leave school in November of his junior year. He later earned a General Education Development diploma.
In May 2004, Theno sued the local school district in U.S. District Court, alleging other students spread sexual-based rumors about him and called him names such as "fag," "faggot," "queer," "flamer" and "masturbator" from his seventh-grade year until he quit school as a junior. Theno is not a homosexual.
During testimony last summer, witnesses for Theno said school officials were aware of the harassment but did little to curtail it. The suit also said the harassment denied Theno access to an education -- a protection afforded under Title IX of the federal education act.
On Friday, Theno, now 18, said he feels vindicated. He hopes his case helps other students who are victims of bullying, and he hopes the case sends a message to other school districts.
"They need to take action," said Theno, now a student at Area Vocational Technical School in Kansas City, Kan. "They need to follow their code of conduct, their handbook. They need to do what is right."
It's not clear yet how much of the $440,000 will go to Theno and how much his attorney will receive.
"It's enough to change his life," Theno's attorney, Arthur Benson of Kansas City, Mo., said. "And he deserves it."
Benson said the case already has attracted much attention.
"It's important that this is being paid by an insurance company that insures school districts," he said. "The combination of litigation and the free market will now cause insurance companies to bring scrutiny to the anti-harassment policies of all the school districts they insure. That's really the key way these things get their effectiveness spread. This is a big loss for both the school district and the insurance company."
The case already has been reported in educational journals, Benson said.
"I'm sure school administrators are paying attention to it nationwide," he said. "It's the first jury verdict anywhere under Title IX in a student gay-baiting case."
Tonganoxie school Superintendent Richard Erickson, reached on vacation Friday, said he was unaware the suit had settled.
"It was up to the insurance company," Erickson said. "It was their money. ... I was disappointed we lost the judgment in the court case, obviously. It doesn't surprise me the insurance company is settling because they're the one paying the bill."
The completion of the case proved to be an early Christmas present for the Theno family, Dylan Theno's father said.
But he added: "It never really was about the money. It was about doing what was right. ... You have to stand up for what's right. We not only stood up for Dylan, we stood up for the rest of the kids. This has changed other schools in the area."
Erickson didn't respond directly when asked whether this lawsuit prompted changes in school district practices and procedures.
"We're constantly reviewing our policies and trying to update our policies as we need to, as recommended by the Kansas Association of School Boards, and we'll continue to do that," he said.
This case, heard by U.S. District Judge John Lungstrum, could become a springboard in other bullying lawsuits, Pigg said.
"They don't have to agree he has correctly analyzed the law," Pigg said of other judges. "It is a persuasive authority, and it's out there. If you're on the other side of the aisle in this kind of case, you'd certainly use it."
Pigg said he hopes it doesn't have a negative impact on the Tonganoxie school district.
"All of the people I met there, I thought, were fine people trying their hardest to do a good job," he said.
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