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When a substitute teacher raped a 12-year-old schoolgirl, Savannah-Chatham County Public Schools decided to cover up rather than investigate, a federal judge determined. In a court order, U.S. District Judge William T. Moore Jr. of Georgia’s Southern District in Savannah said it was “readily apparent” school system personnel had altered substitute teacher Darnique L. Jefferson’s job application to hide his 1995 arrest for sexual battery. School personnel and the Savannah-Chatham County Board of Education last month settled the girl’s suit for $500,000. Jefferson, 27, was convicted of statutory rape, enticing a minor for an indecent purpose and child molestation in connection with his 1999 attack on the 12-year-old, according to court filings. He was sentenced to three years and was to have been released Aug. 4. The case, however, raises troubling questions about school officials’ duty to vet employees and the limits of qualified immunity. William T. Mitchell, co-counsel with Audrey T. Biloon for the 12-year-old girl and her family, said cases such as this one are “virtually impossible” to win because it is extremely difficult to pierce the immunity shield afforded government employees. Allegations that school policy makers violated their administrative duties don’t always rise to the level of a constitutional violation, said Mitchell, who has defended DeKalb County’s school system against similar allegations. Knowledge that an action is a constitutional violation must be proven before a government employee can be stripped of immunity. But the alteration and then loss of Jefferson’s original security check authorization form “made this case viable,” Mitchell said. He is a partner with Cruser & Mitchell in Atlanta. Biloon is the name partner at Biloon & Associates in Savannah. School board attorney Leamon R. Holliday III, a partner at Bouhan, Williams & Levy in Savannah, said, “It was in the best interest of the school district” to settle the case. Holliday said school board members and the superintendent “were unaware until the litigation began that the record had been changed. We did a thorough investigation. We were unable to determine who had changed it. We referred it to the district attorney for prosecution. The school board’s position was that anyone who changed or altered a record should be prosecuted.” Mitchell said that, at one point, school board attorneys suggested not only that the child’s suit was groundless, but also that, once it was dismissed, the board intended to sue her and her family for filing a frivolous complaint. “I think, under the law, it was a frivolous complaint because the school district cannot be liable,” Holliday said Tuesday. “A number of claims were asserted that were patently not supported.” What persuaded the school board to settle, he said, was the existence of the altered security check authorization form. “In the absence of that issue, we think it was a pretty cut-and-dried legal case where the board wasn’t liable.” SAFE AT SCHOOL? In court pleadings filed on behalf of the school system, the board of education and employees, defense attorneys did not argue with the facts in the case. But they did argue that the decision to hire Jefferson as a substitute teacher despite an earlier arrest did not violate the constitutional rights of the student he attacked. One defense attorney, R. Clay Ratterree of Ellis, Painter, Ratterree & Bart in Savannah, claimed that no binding legal precedent exists that guarantees a schoolchild has “a right to be free from sexual abuse by a teacher.” Cooper v. Savannah-Chatham County School District, No. 4:01-cv-174 (S.D. Ga. July 25, 2001). Ratterree defended Gerald Jacobs, the school system’s acting director of human resources at the time Jacobs was hired. Even assuming the student did have such a right, Ratterree argued that her attorneys “fail to offer any evidence that Gerald Jacobs’ conduct, in hiring Jefferson, violated her right to be free from sexual abuse.” While the girls’ attorneys might argue that Jacobs was negligent in hiring Jefferson, Ratterree argued that negligence alone is not enough to impose a constitutional liability on a government-employed supervisor. Ratterree also argued that Jacobs would have to have participated in the crime personally for him to be liable. School system lawyers also said in pleadings that the system’s staff had no way of knowing that Jefferson might commit a crime or otherwise be a danger to children. AN EARLIER ARREST Jefferson was looking for a job as a janitor when he first applied to the Savannah-Chatham County school system in October 1998, according to court records. But when he saw postings for a substitute teacher, he applied instead for that job. On the school system’s security check authorization form, Jefferson reported that he had been arrested on a sexual battery charge three years earlier, according to court records. Mitchell said that Jefferson was charged with fondling a 15-year-old co-worker at a fast-food restaurant in Virginia. The alleged victim failed to appear in court, and the case against Jefferson was dropped. A month after Jefferson applied for a job in Savannah, Jacobs hired him and assigned him to the Pearl Smith Learning Center, an alternative school for students with learning disabilities or behavioral problems. It was at Pearl Center that Jefferson met his 12-year-old victim, according to court records. Within six months, he had begun calling the girl, Mitchell said. Jefferson eventually arranged to meet her off campus, took her back to his apartment and raped her, Mitchell said. The girl became pregnant and had an abortion. ‘A SMOKING GUN DOCUMENT’ Chatham County law enforcement authorities arrested Jefferson in June 1999, and the school system provided the Chatham district attorney with a copy of Jefferson’s security authorization check, which included his disclosure of his 1995 arrest, according to court records. But when the school system’s risk management division sought a copy of the document from the human resources department, they were given a photocopy in which the admission of the arrest had been erased, according to court records. The original record was never found. On the basis of the photocopy, the risk management department and the school system’s legal counsel denied a $1 million damage claim brought on behalf of the girl by her mother. School system counsel insisted that school personnel “had no knowledge of any bad acts involving Jefferson prior to giving him access to children as a teacher and role model in a position of trust,” according to one of the plaintiff’s pleadings. When Mitchell sought a copy of the authorization check under state open record laws, he, too, received a copy that had been altered. The alteration of the record was discovered when the girl’s father obtained a copy of the form that was first given to the Chatham district attorney, according to court records. Jacobs, who retired before the case was settled, had moved Jefferson’s file to a locked filing cabinet in his office after the complaint was filed. The girl’s attorneys accused him of altering and then “destroying a smoking gun document.” They suggested that he had “significant motive to alter the record since he improperly hired Jefferson in violation of [school] policy.” In court pleadings, Jacobs denied that claim and a school board investigation never determined who was at fault. Jacobs first claimed he had reviewed Jefferson’s security check authorization and said he never would have hired Jefferson had the arrest been listed on the application, according to court records. But in a subsequent deposition, he claimed he had never seen the authorization check and shifted responsibility to his secretary. According to one pleading, Jacobs claimed his secretary had the obligation to review the form and draw any problems to his attention. Ratterree, the attorney for Jacobs, argued that his client was immune from liability because he “did not personally participate in Jefferson’s sexual abuse of [the] plaintiff. Nor is there any evidence that Gerald Jacobs, as hiring supervisor, had any sort of policy in place prior to the sexual assault which could have led Jefferson to believe that sexual abuse of students was permitted.” Ratterree branded as “a hypothetical conspiracy” allegations of a plot to alter and destroy Jefferson’s authorization check form. In his order, handed down last January, Moore declined to blame anyone for removing Jefferson’s arrest from his application record. He noted that employees other than Jacobs had access to the file. Moore also said that the other defendants’ claims that they didn’t remember Jefferson’s application were reasonable given that they received as many as 150 substitute teacher applications a month, many of them listing arrests. Still, Moore wrote that someone had altered the record. “The court wishes to note that it is readily apparent that someone at the BOE altered Jefferson’s SCA [security check authorization] form. Unfortunately, at this stage of the case, the evidence is simply insufficient to clearly and convincingly identify the guilty party or parties.”

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