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Monday, April 23, 2012

The Office of Civil Rights lets gay-bashing Flagler, Florida school administrators off the hook

Out gay student Luke Herbert — now 17 — suffered a blazing, screaming hell of abuses in the Flagler County, Florida public schools between 2008 – 2011.
Gay-bashing bullies jeered “Fag!” and “Cock sucker!” at him during his bus rides. Though Flagler policy requires drivers to report such incidents, with offenders disciplined — none of that, apparently, ever happened. Luke was abandoned to facing his school bus rides in fear, only because he was gay.
When a bully stalked Luke home, hoisted him high up into the air and then crashed him to the ground in front of his house, Luke and his mother Dorene Striffler Davenport filed a police report, but the police said that without witnesses, they could do nothing.
The perpetrator was not unknown to Sheriff’s Deputy Calvin Grant, whose regular beat as a School Resource (Police) Officer is Flagler Palm Coast High School. Grant had attended Flagler schools; he likely would personally know parents of some current students. Might he be personal friends with the parents of Luke’s first attacker? Dorene says that on school grounds, when she was talking with Assistant Principal Travis Lee and Deputy Grant, Luke’s first assailant was pointed out. According to Dorene, Grant told her not to complain about the student attacker, because he was a known gang member who knew where she lived.
To re-iterate what Dorene says took place; a school administrator, Travis Lee, and the Sheriff’s Deputy assigned to the school, Calvin Grant were together, intimidating Dorene against pressing charges against a student who had attacked Luke.

The gang member who attacked Luke, evidently is friends with another of Luke’s anti-gay, criminal tormentors. As part of this other hoodlum’s illegal cyber-stalking of Luke, he sent Luke a Facebook message “it’s funny how you didn’t show up today so i can tell you everything i had to say to you but now i know why, words going around that you got beat up last friday and started crying like the punk you are HAHAHA BUT IMMA STILL GET YOU, BEAT DOWN.”

Where Luke’s criminal tormentor wrote that — “words going around that you got beat up last friday” — reference was to the Friday gang member attack against Luke. Where the thug said “It’s funny how you didn’t show up today,” Luke had stayed away from school for fear of attack. This particular gay-bashing hoodlum was in Luke’s science class, where he routinely led other students in harassing Luke for being gay. With teacher Patricia Bardua as witness, the students mocked Luke as a “Zit-faced faggot!”, and pejoratives still crueler than that. Florida actually has strong anti-bullying legislation, “The Jeffrey Johnston Stand Up for All Students Act,” named for bullycide victim Jeff Johnston. And, Florida has a model anti-bullying policy, which largely follows Jeff’s law (meaning, many anti-bullying policy violations could be criminal).  Yet, obviously, the laws and the policies do not protect students, when administrators don’t fully implement the policies and then follow the laws. Not only did Bardua not take effective action; a guidance counselor, alerted to the abuse, also did nothing effective.
As the bully was escalating his in-school harassment and threats, he simultaneously was intensifying his cyber-bullying of Luke. Assistant Principal Travis Lee, having seen a print-out of the cyber-bullying, as good as gave the bully cover by engaging in victim blaming; he warned both students about cyber-bullying, as though Luke were at fault. Lee gave the bully a pass on umpteen instances of apparent criminal harassment of Luke. The bully told Luke “I will kill your ass and make sure I will drag your ass out of school in a body bag.” Then one day on school grounds, the bully attacked Luke from behind, crashing his head into cement.  Luke says he blacked out, then came to with the bully on top of him, punching him.

Columnist Bennett Kelly published “Luke Herbert and the Dark Side of America’s Fastest-Growing City.” Flagler Schools Attorney Kristy Gavin apparently attempted to intimidate Kelly over that article after it was published. Luke’s mother Dorene by this point was consumed with a hell of worry over Luke’s safety at – and away from – the school, because of these out-of-all-control violent bullies whom school officials were refusing to punish adequately. Deputy Grant did not arrest the attacker, allegedly saying that the attacker had to go home to take care of his younger siblings. Travis Lee and Deputy Grant told Dorene that the attacker would be sent to a facility for delinquents, expelled, and, as he had a prior record, would never be returning to the school. Yet, ten days later, the attacker not only returned to the school; he was back in Luke’s same science class, where again he harassed Luke for being gay, and encouraged other students to do so, with the teacher as witness. During the days he had been suspended, he started a “Beating Up Luke” Facebook page, which had 22 “Likes.”
Superintendent Janet Valentine never asserted proper control over her gay-bashing zoo, to guarantee Luke the safe-learning environment to which he is by law entitled. To the contrary, Flagler school officials continued enabling Luke’s persecutors, in the process apparently breaking laws, including Title IX of the Civil Rights Act.When this journalist asked Assistant Principal Kevin McCarthy why appropriate measures had not been taken upon discovery of the bully’s illegal cyber-bullying of Luke, McCarthy alleged that Luke had been as threatening to the bully as the bully to Luke. Yet, that was not what the documentation showed. McCarthy said the “full” documentation could be had from the school, whose attorney Gavin then said that the documentation was not public. With Occupy Equality‘s Jessica Naomi, I worked on getting the Florida Department of Education to hold all bad actors in the attacks against Luke accountable. But, the Department of Education took Flagler’s Director of Student Services Katrina Townsend‘s duplicitious word for it when she said that Luke’s attacker had faced legal consequences and the matter was closed. The attacker had not faced legal consequences; he was not even arrested. A photo of the gay-bashing bigot recently appeared in a local newspaper; he is shown smiling and singing in a school show. His actor’s bio in a recent student play says that he sends his love to his girlfriend, and thanks “God for all He has done.” The bio  notes that Luke’s cyber-bully, classroom harasser, and violent “take-your-ass-out-of-school-in-a-body-bag,” head-crashed-against-cement attacker will graduate with the Class of 2014.
2014 was supposed to be the year of Luke’s graduation from the school.
During a later meeting, Dorene alleges that Townsend repeatedly attempted to intimidate her and Luke. “She told us that if we brought a law suit against the school, we would be counter-sued. And she warned us that because Luke had gone to the media with all the anti-gay stuff against him, bullies had beaten up another gay student in the local cinema. Townsend said, that the bullies told the other gay student who they beat up that they were sick and tired of hearing about gays in their school.”

My investigations revealed that the Sheriff had received no incident report from the cinema. Did Townsend fabricate the story of a beating of another gay student — hinting that Luke’s talking to the media had provoked that beating — in hopes of scaring Luke out of continuing to complain about the hostile anti-gay learning environment in the school?  After school administrators were notified that the Sheriff’s office had no incident report for a beating in the cinema, Townsend contrived an explanation that she had heard wrong, and that the confrontation had been verbal only. There is a certain appearance that Townsend was lying.
Much of the above took place as Luke also was cruelly shunned in the cafeteria for being gay and different, and subject to regular taunts and threats in the school hallways and beyond. Repeatedly, school officials threatened Luke with serious disciplinary consequences for truancy — that he would get referred to the State’s Attorney, no less — though Luke only skipped school out of fear, and though under Florida law, a student can not be suspended for truancy. A full accounting of all the illegal tortures inflicted on Luke because he was gay would require  a book. Yet, we must not neglect to mention that Luke’s teacher Floyd Binkley mounted an anti-gay harassment campaign against him, encouraging other students to mock Luke for being gay. Gay-bashing Binkley — who sold sodas to his students — warned that if you put Pepsi and Mountain Dew in the same fridge, they would turn gay. He shot a bigot’s malicious glance at his student victim, then sneeringly imitated Luke with a caricature of stereotypically gay mannerisms, while other students laughed mockingly at Luke.

Luke had had it. He went to McCarthy to report Binkley’s illegal harassment campaign against him. McCarthy invented alibis for Binkley. “He’s an older gentleman,” McCarthy told Luke, for example, as though for that reason, Luke should not expect Title IX protections, and Binkley should not be disciplined as per the written school policy.  When Luke was back in Binkley’s class, Binkley turned the subject to grades. In front of his class, the monster bigot Binkley said that everybody would be getting an A, except for Luke who would be getting an F. Even after Luke reported that Binkley retaliated against him that way, the school, instead of disciplining Binkley, punished Luke. During that class period, Luke thereafter was made to sit alone in the media room, until such time as the school would find another class for him. McCarthy referred Luke to guidance counselor Jaime Lee Sanchez; Luke says she smirked at him while saying “I don’t know where to put you, Luke!”

For all that the details of this were brought to Superintendent Valentine’s attention, Binkley remained unpunished. My investigations revealed that Valentine’s executive secretary is Binkley’s wife.
Soon thereafter, Luke quit going to the school, and started going to the media. School Principal Jacob Oliva contrived a “Letter of Reprimand” to Binkley that understated the extent of Binkley’s harassments of Luke in the classroom. School officials told multiple self-serving lies to — and about — Luke regardingBinkley’s filming of a non-apology “apology.” Valentine alleges that Floyd Binkley retired, but his profile and message for students is still on the Flagler Schools site, through which personal e-mails still may be sent to the evil slob.
The Flagler Schools Gay-Bashing Team had scored its barbaric bigot victory over Luke, leaving his tormentors and assailants unpunished in the school, while he was sentenced to a “Virtual School” prison. Luke was expected to sit alone without instruction all day at home at a computer taking his virtual classes.  He  was suffering serious depression from all of the abuse at the school; this dreary drudgery perversion of a “Home Alone” scenario improved nothing. School officials had done nothing to notify Florida Virtual School of Luke’s special circumstances and needs. The school system did not arrange for him to have any tutors or counseling. It had spit him out onto the sidewalk and moved on. His mother, completely supportive, was growing increasingly worried. Luke made this video, talking about some of the tortures inflicted on him in the Flagler Schools.

Luke has yet to be placed in a fully appropriate, safe learning environment on a path to a high school diploma.
In December, 2011, Dorene and Luke filed a complaint against the Flagler Schools with the U.S. Department of Education’s Civil Rights Office regional branch in Atlanta, which opened an investigation. In February, 2012, the OCR’s Martin Chen and an OCR attorney visited Dorene in her home.
“Mr. Chen gave me the impression that they agreed Luke had suffered too much in the Flagler schools,” says Dorene.  ”When Mr. Chen asked me what I wanted out of the investigation, I said that I wanted the school administrators held accountable, and for Luke to have an education in a fear-free environment.” (Back when Luke was in Middle School, he was called “Fag!” “Woman!” and told that he “didn’t have a dick.” A sex harasser pulled Luke’s gym shorts down in front of 50 people, including the gym instructor. The bully was “written up,” but not disciplined. Luke continued to be called insulting, hurtful names based on his sexual orientation. In another middle school incident, a bully who in class had freely been calling Luke insulting anti-gay pejoratives  – including “Dumb faggot!” and “Diseased fuck!” — attacked him on his way home. A witness called police; the perpetrator remained undisciplined and returned to harassing Luke).  Dorene and OCR’s Mr. Chen discussed the possibility of Luke attending a private school.  ”I saw him write the words ‘Private school; done’ – in his notes,” Dorene continues. “That really gave me a lot of hope.  I really thought that meant that somehow, there finally was going to be a good place for Luke to get his high-school education. He’s a good student. I have his 7th grade report card, full of As.”
On Friday the 13th of April, 2012, Dorene and Luke felt they were living a sick waking nightmare. Precipitously, they learned that OCR had granted Flagler Schools a “no-fault” resolution of the investigation, and that the investigation was over. Not a single Flagler administrator was being held accountable. Not a single thing was being done to help Luke. OCR supposedly is requiring Flagler to take “Climate Surveys” and to carry out forms of training, similar to those that appear already to have been required, but which resulted in Luke being tortured in the Flagler Schools anyway.

Dorene says: “How could Mr. Chen sit in my living room, talking as though he had empathy for Luke, and talking about whether I wanted my son to go to a private school, as though Chen would be able to make that happen? Why did he ask me what I wanted from the investigation, hear that I wanted school administrators held accountable, but then not hold them accountable? The resolution agreement paper says that the agreement ‘does not constitute a finding or admission that the school district is not in compliance with Title IX.’  Are they kidding?  Are. They. Kidding? Why did those school administrators allow my gay son to be bullied out of the school, while the bullies are still there in attendance? How is that in compliance with Title IX?  Why did Mr. Chen sit in my living room, knowing what we had already been through, talking to me that way? Why? Why did he write “Private school; done,” in his notes? Does he think that is a funny thing to do to a worried mother and a seriously depressed gay teen bullying victim? To build their expectations up that way, and then to pull the rug out from under them?”
In all OCR investigations, a school has the opportunity to request a “no-fault” resolution; but the OCR Office Director (for Atlanta, Cynthia G. Pierre) must approve the request.  (OCR has an option to conduct a full investigation, which could result in a “Letter of Findings,” specifying ways a school had violated applicable laws). OCR issued this “Letter of Findings,” by the way, in its investigation of the Tehachapi schools, where bullied teen Seth Walsh had been driven to suicide. Is that what it takes for OCR to carry out a full investigation, with findings that a school violated laws?  A bullied LGBT student has to kill him or herself, before OCR will help the student?
OCR essentially granted Superintendent Janet Valentine’s request to call off the investigation of herself and her school district. In the Flagler County School Board meeting minutes, it appears there is no mention, anywhere, of OCR’s investigation. The appearance is that Valentine and the Board are hoping to keep even the fact of OCR’s investigation a secret. The resolution agreement does require the Board to spend some money towards policy modifications; the voting, tax-paying public would have a right to understand the Board’s money-and-policy related decisions. But the investigation has heretofore been reported exactly nowhere. OCR has nowhere published any announcement about the investigation of Flagler.  It is all very “Shh! Shh! Hush! Hush!” as though OCR and Superintendent Valentine had agreed with each other over Earl Grey and Petits Fours not to let word of the — Shh! –”investigation” — Hush! — slip out to the public.

Moreover, according to OCR’s Case Processing Manual, OCR must notify the complainant immediately upon granting a school’s request for a “no-fault” 302 resolution, before the resolution agreement is negotiated. Dorene and Luke had not been notified of OCR’s decision.  OCR refused this reporter’s request for documentation of the notification, if indeed such notification had been given. I am waiting still on a Freedom of Information Act request. Through an OCR spokesperson in Washington, D.C., the Atlanta Office refused to cite examples of past instances where it had gotten tough against gay-bashing schools in its region.
Interviewed by The Center for Public Integrity about OCR’s perceived uselessness, former OCR attorney Sarah Dunne said that savvy attorneys know to tell schools that are under investigation “You don’t have to do jack squat. They’re not going to go after you.”

Jessica Naomi says: “Every time OCR allows school administrators to get away with denying LGBTQ students their constitutional rights to a fear-free education, Arne Duncan‘s U.S. Department of Education desk is drenched in gay-bashed blood. It’s time for activists to unite with parents and students demanding for Duncan to do his job and enforce the law.
The same weekend that Dorene and Luke learned that OCR had let the Flagler County Schools administrators off the accountability hook, news came that the 14-year-old Kenneth Weishuhn, Jr. had been bullied to death in an Iowa public school.  Like Luke, Ken received death threats from classmates, only because he was gay. Ken told his mother “Mom, you don’t know how it feels to be hated.” The Superintendent of Ken’s school district said he had “no idea” that the gay-bashing bullying could lead to Ken’s death. Subsequently, the Sioux City Journal ran a rare, full front-page editorial “We Must Stop Bullying. It Starts Here. It Starts Now.”
If the Office for Civil Rights wants to allege it accomplished something with its top secret “no-fault” investigation of the gay-bashing Flagler Schools, where is OCR’s press release about its investigation?  According to OCR — if it isn’t so very much to ask — what happened to Luke in those schools? And how did OCR protect Luke’s right to a safe learning environment in that public school system? —(It didn’t at all).  — Exactly how much oversight will OCR be providing towards insuring that no other LGBT Flagler Schools student is ever tortured as Luke was tortured in the Flagler Schools? After all, had Flagler administrators followed all existing anti-bullying laws and policies, Luke would not have faced death threats, he would not have been attacked, he would not have faced retaliation for reporting bullying, and he would still be a student in their schools, on track to earning a high school diploma.