Dietrich School District attorneys ask judge to dismiss $10 million civil suit

April 30--DIETRICH -- Attorneys for the Dietrich School District have asked a judge to dismiss the $10 million civil lawsuit alleging school officials ignored months of racial discrimination, mental harassment and physical assault that culminated in the locker room hanger attack of a mentally disabled, black football player in 2015.

The motion for summary judgement, made last week in U.S. District Court, lays out the case for the district: Football coaches, students and the mentally disabled student's full-time aid all testified in depositions and affidavits that the victim of the hanger attack was never harassed, bullied or assaulted prior to or after the Oct. 22, 2015, locker room incident.

One account comes from the victim's full-time aid, Alicia Malan, assigned to shadow him at all times for two school years as his psychosocial rehabilitationist, or PSR.

Malan is employed by an outside agency, not the school district, and filled out reports at the end of each day.

"I was required to watch out for his well-being and to ensure that he was not teased or harassed by his classmates," Malan wrote in her affidavit. "Any such conduct would be reported. With (victim), however, being teased, bullied or harassed was never an issue."

But the documents filed by the district's attorney also revealed troubling new details about the hanger assault and the ensuing investigation, particularly in the deposition of Tanner Ray Ward, a teen originally charged criminally as an adult in the attack.

In the Nov. 28, 2016, deposition, Ward testified under oath he was interviewed only by Dietrich Superintendent Benjamin Hardcastle but never by the Idaho attorney general's investigator or the Lincoln County Sheriff's Office.

Ward also testified that John R.K Howard, the Texas teen who was the only player to plead to criminal charges as an adult, kicked the hanger into the victim's buttocks several times -- a direct contradiction to the way attorneys and District Judge Randy Stoker described Howard's actions during a February sentencing.

"Now, John Howard kicked it, basically, out of your hand and between his butt cheeks, correct?" attorney for the district Bret Walther asked Ward during the deposition.

"Correct," Ward answered.

"And you said he kicked it one time and then a couple of more times before you could get him to stop?" Walther asked.

"Correct," Ward answered.

"And when you said get him to stop, what do you mean by that?" Walther asked. "Why did you use those words?"

"Because he continued to kick it before I could turn and get him to stop," Ward said.

Answering questions from Lee Schlender, an attorney for the victim, Ward said he didn't remember if the victim was hurt because he was reprimanding Howard.

"At this point, I turned and was giving John a 'what for' for kicking it," Ward said.

"A what?" Schlender asked.

"A what for," Ward answered. "Kind of, 'Why on earth did you do that?'"

Ward's deposition stands in stark contrast to the way the attack was described during Howard's Feb. 24 sentencing, when Stoker ordered him to serve three years' probation and complete 300 hours of community service.

At that hearing, both defense attorney Brad Calbo and Deputy Attorney General Casey Hemmer described Howard's role as simply kicking at the victim's bare buttocks and accidentally making contact with the hanger. Calbo suggested Howard might not have known the hanger was lodged in the victim's buttocks.

Ward's deposition minimized his own role in the incident while painting Howard's role as far more malicious than testimony at his sentencing suggested.

Ward, one of two principal actors in the attack who pleaded guilty in a sealed juvenile case, also testified in his deposition that he never once filled out a written form nor was he interview by investigators from the attorney general's office or the county sheriff's office.

His only interview, he said, was with Hardcastle the day after the locker room assault.

Summary judgement

According to the school district's attorneys, the only report of harassment or bullying school officials received was on Oct. 23, 2015, the day after the hanger attack, when the victim's mother reported the incident.

In court documents filed last week, the district's attorneys laid out long legal arguments describing the reason the case should be dismissed.

The gist of the argument: There was no harassment or bullying; if there was harassment or bullying, school officials never knew about it; and as soon as they received the first report of a problem, they investigated and acted swiftly, expelling Ward and Howard and suspending another football player.

Schlender, an attorney for the victim, said arguments always look strong when you only have one side. Schlender and his colleagues have until late May to file a response, and Schlender isn't worried the judge will throw out the case.

"You've got to wait until both briefs are filed," Schlender said. "We have absolutely zero belief this will not go to trial."

In order to throw out the case without it going to trial, a judge must decide there's no disputing the facts, Schlender explained.

"He can't throw this case out if reasonable minds might say there's a conflict here, a debate," Schlender said. "If there are two sides, then a jury has to decide which side they want to believe."

There are several reasons for requesting summary judgement, Schlender said, the most obvious being that you hope a judge will side with you and throw out the case.

But attorneys might also motion for a summary judgement in a strategic move "so that everyone has to put their cards on the table," Schlender said. "It's a good method to find out the positions of all the parties."

Now Schlender and the victim's legal team -- which earlier this month added top national lawyer Mark Lanier -- will have to reveal in great detail before trial the evidence they plan to use to prove their case.

Malan's affidavit

Though she wasn't with the victim during football practices or other activities after school hours, Malan did shadow him at all times during the school day, even at lunch.

"Over the course of my two years as (victim's) PSR, I witnessed only one event that caused me any concern," she wrote in her affidavit.

Malan described the event, which was detailed in the lawsuit, in which a student drew a racially-charged picture of the victim sitting in the back of a bus.

Malan also wrote in the affidavit that grape soda was the victim's favorite drink -- a claim he denied during his deposition and that his attorneys say is evidence of racial harassment.

The PSR finished her affidavit saying the victim was a "fairly normal teenager" who simply needed some help to succeed in school.

"Based on my observations, (victim) was a popular, happy student throughout his time at Dietrich High School, who was well-liked by the other kids; and to my knowledge, he had no enemies. Basically, in a nutshell, (victim) liked everyone, and everyone liked him."

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