Division seeks to dismiss lawsuit

Posted: April 24, 2013

The Winchester Star

HARRISONBURG — Winchester Public Schools is seeking to dismiss a lawsuit that alleges it failed to protect two disabled Handley High School students from bullying and intimidation, and in the case of one of the students, assault.

The documents were filed Tuesday in U.S. District Court in Harrisonburg in response to the complaint filed against the school division March 14 in the same court.

According to the suit, Robert Augustine, of Winchester, is seeking $150,000 in damages from the division on behalf of his two grandchildren, for whom he serves as guardian.

He alleges violations of the Civil Rights Act of 1964 and the American With Disabilities Act.

School officials were given a notice of intent to file the suit from Augustine on Feb. 20. That notice was filed as the lawsuit.

The suit states that one of the students was the victim of bullying, assault, intimidation and civil rights violations during the 2010-11 school year, continuing to the current school year.

“Although administrators, teachers, staff and servants of Winchester Public Schools were notified by the guardians, they failed to protect the student and cease the above issues,” the document states.

The suit also lists specific incidents from as late as Feb. 19 and 20, alleging “bullying, intimidation and cyber bullying by another student.”

“The administrators, teachers, staff and servants of the defendants failed to take action and protect the student,” the suit reiterates.

In a response to the suit, Winchester Public Schools — through Harrisonburg attorney Douglas L. Guynn — denies all allegations against the division.

It also states that some or all of the complaints in the suit are barred by a statute of limitations.

The school district seeks to have the suit dismissed on the basis that the court does not have jurisdiction, the complaint fails to state sufficient facts to establish subject matter jurisdiction over some or all of the asserted claims and the Winchester Public School District is not a proper defendant because it is not a recognized legal entity.

The district also claims that the Augustines’ complaint otherwise fails to state a claim upon which relief may be granted.

According to a notice filed Tuesday in the same court, Augustine has 21 days to respond to the motion for dismissal and submit any further counter-affidavits or other relevant evidence contradicting, explaining or avoiding defendant’s evidence.

Augustine previously told The Winchester Star that his grandson is autistic and has learning disabilities and his granddaughter is deaf in one ear, nearly deaf in the other and also has learning disabilities.

The lawsuit states that both students have suffered emotional and psychological issues and that they are under medical care.

— Contact Melissa Boughton at mboughton@winchesterstar.com