Investigation: Park City School District discriminated against diabetic student
May 10, 2016
The Park City School District discriminated against a diabetic student by forcing a parent to accompany her on field trips and also by failing to properly implement her disability accommodation plan, according to an investigation by the U.S. Department of Education’s Office for Civil Rights (OCR).
The investigation was opened in November when Bridgette Llewellyn, whose diabetic daughter is a kindergartner at Parley’s Park Elementary School, contacted the Office for Civil Rights with several complaints. Llewellyn told The Park Record in an interview that the district has demonstrated a pattern of being unable, or in many cases unwilling, to provide the proper care for her daughter.
"It’s the worst feeling in the world," she said, adding that she filed the complaint, in part, to ensure other students with medical conditions or disabilities also receive proper care. "When you think of the Park City School District, you think of a progressive, educated group of people. You think of excellence, and a community of wonderful, supportive people. You don’t think of willful endangerment, of kids being put in dangerous situations on a daily basis. You don’t think of violations of civil rights."
Ember Conley, the district’s superintendent, responded in an interview with The Park Record that the district had begun altering its policies and training additional staff to alleviate Llewellyn’s concerns before the Office for Civil Rights got involved.
"I don’t think it had to get to that level," she said. "I think it was a parent wanting to be heard in a different manner."
A document detailing the findings of the investigation shows the district was unable to assuage Llewellyn’s concerns before the OCR became involved, however. Some of Llewellyn’s most pressing worries were about her daughter’s Section 504 Accommodations Plan that outlines her diabetic needs.
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The report shows that, after the district agreed to a 10-item plan for Llewellyn’s daughter in September, two steps were not consistently followed. The district did not train a back-up staff person to give her child insulin during times school nurse Nicole Kennedy was not available. Administrators also failed to comply with a stipulation that if her daughter’s insulin numbers were high or low, teachers were to call the nurse to provide insulin under normal circumstances and only call Llewellyn or her husband for extreme highs or lows.
Instead of following the plan, however, the district called Llewellyn to school between 12 and 16 times last fall to give her daughter insulin before Kennedy began her work day, or during Kennedy’s off days on Fridays, according to the report.
Kennedy’s schedule was expanded in January to cover the entire school day, after school leaders became aware of the OCR investigation, but the district did not provide a substitute nurse Feb. 22 when she called in sick. Instead, Llewellyn was called, but she could not remain at school all day to provide care for her daughter. As she tells it, what unfolded encapsulates her frustration with the district.
"That was the day my daughter learned she was disabled," she said.
Llewellyn claims that, after she expressed her frustration to Tom Van Gorder, an associate superintendent who oversees the nursing staff, and explained that diabetic students are in danger at school when a nurse is not present, the first solution he suggested was that her child leave school that day.
After Llewellyn threatened filing another OCR complaint, Van Gorder eventually brought in other nurses to care for her daughter, Llewellyn said. But the nurses did not provide the same level of care as Kennedy. When Llewellyn’s daughter’s insulin was low, they pulled her out of class and had her test her own blood sugar, something she’d never done before and that even adults with diabetes struggle with, Llewellyn said.
That night, her daughter came home in tears.
"She said, ‘I feel alone and different because I have a disability,’" she said. "I couldn’t get her to calm down. She was like, ‘Tell God this is too hard and I don’t want diabetes anymore.’ She’s 6, asking, ‘Mom, why can’t you get rid of diabetes?’"
Van Gorder declined through district spokeswoman Molly Miller to comment for this story.
As well as failing on several occasions to ensure the proper nursing care for Llewellyn’s daughter, the OCR determined, the district has discriminated against diabetic students by forcing their parents to accompany them on field trips. Though there was no such written policy to that effect, the investigation found that it was practice for teachers to ask parents of diabetic students to come along on trips — and if they couldn’t, their students would remain at school while their classmates went.
Llewellyn is well aware of the practice. She was called the morning of a field trip her daughter’s after-school kindergarten class was set to take to Smith’s grocery store last fall because there would be no one else to provide insulin. The OCR determined the district, by doing so, infringed upon the civil rights of Llewellyn’s daughter by treating her differently than her classmates.
"The district’s rationale that they wanted to make sure the student received insulin when the nurse could not attend a field trip reflects a certain, practical logic," the investigation statement reads. "However, as a legal matter, this rationale is not a legitimate, non-discriminatory reason since it relies on (Llewellyn) to provide the student’s Section 504 accommodations, which is ultimately a legal responsibility of the district."
The district entered into an agreement with the OCR to resolve the violations. It must implement a number of policies to ensure such discrimination does not occur again, provide the policies to parents and students and must report back to the OCR for approval.
Conley said the district is viewing the OCR’s investigation as an opportunity to improve its practices.
As part of its efforts to shore up the concerns included in the OCR report, the district is hoping to hire additional nurses, bringing the total to seven, for the next school year, Conley said. Under this plan, the larger schools would each have their own nurse, while one nurse would be split between McPolin Elementary School — the smallest school in the district — and Park City High School. Another nurse would serve as the "district nurse" and would train her subordinates and be in charge of documentation.
Substitute nurses would also be on call for nurses who call in sick, Conley said.
A nurse fired and a candidate withdraws
But as well as the violations the OCR listed, Llewellyn believes the district struck back against her and Kennedy for their roles in the investigation. Those who assist in OCR investigations are legally protected from retaliation.
Kennedy was given notice last month that her contract will not be renewed next year. Llewellyn believes it is because she participated in the investigation and advocated for better care for students.
"She’s never had anything negative said about her," Llewellyn said. "And yet, out of the blue, she’s not returning to the district next year. It’s absolutely shocking. Probably the biggest asset from the nursing staff is gone. It does seem highly suspicious because she’s spoken up multiple times on behalf of the children."
Kennedy, when reached by The Park Record, said she has hired a lawyer and is taking legal action to get her job back. The district did not give her a reason why her contract was not renewed, and she declined to speculate whether it was because of her participation in the investigation.
Kennedy’s husband, Kevin Kennedy, was running for a seat on the Park City Board of Education but announced Monday that he is withdrawing from the race to avoid a potential conflict of interest.
Conley said she could not comment on personnel matters when asked why Kennedy will not return next school year.
The OCR did not investigate the decision not to renew Kennedy’s contract as part of Llewellyn’s complaints, but it did look into whether the district retaliated against Llewellyn and her daughter when administrators cancelled a field trip her after-school kindergarten class was set to take to Nuzzles & Co. pet rescue in December.
According to the OCR report, the district cancelled the trip because staff members had not scheduled a nurse early enough to be available to accompany the class. The district reasoned that it would be better to cancel the trip than fail to comply with Llewellyn’s daughter’s accommodations plan, the report states.
But the report also states the district lied to parents about why the trip was cancelled. According to the report, Judy Tukuafu, director of community education for the district, told the kindergarten teacher to "make up a reason that does not point at any specific child."
Conley said she has been investigating whether Tukuafu directed the teacher to lie. So far, she said, she doesn’t have any evidence that actually occurred.
The OCR, while clear in its report that Tukuafu directed the teacher to make up an excuse for cancelling the trip, ultimately decided that the cancellation did not qualify as retaliation against Llewellyn or her daughter.
"While the stated reason for the cancelation of the field trip was not true, we find it reasonable, if not laudable, that the district was ultimately taking steps to comply with (the accommodations plan)," the report states.
Llewellyn, though, remains unconvinced the district did nothing wrong. She contends that lying to parents was a violation of several district policies — one of which states that employees must not make a false record or communication of any kind — and the Utah Administrative Code. She filed formal complaints with the district against Tukuafu and Van Gorder.
She also filed a complaint against Conley, alleging that the superintendent was complicit in discriminating against her daughter by failing to take quick action to rectify Llewellyn’s concerns throughout the year.
"The district has yet to act in good faith," Llewellyn said. "I would like to see one example of the district acting in good faith."
Conley responded that she and the district take seriously all concerns from parents.
"I depend on my team to follow steps in mitigating concerns and also using the lens of what’s legal and appropriate for all students," she said.