Should a disabled child who was removed from a town summer camp because of his behavior receive a second chance?
According to a motion filed by the Waterbury town government in response to a lawsuit, the answer is no.
In April, the Vermont Human Rights Commission filed a civil suit against the town in Washington County court, asserting it failed “to engage in an interactive process for reasonable modifications in the town’s policies, practices and procedures; modifications that would have allowed a minor child with disabilities to continue in a summer camp program.”
On July 11, 2017, town officials told the parents of a 10-year-old boy — referred to in court documents as “K.O.” to protect his anonymity — that he could not return to the town’s summer camp because of the boy’s behavior that day.
According to court documents, “after K.O. had been hit by a ball by another child and other children began to yell at him to leave a game, K.O. reacted by yelling, running away, hiding, crying, throwing objects such as backpacks and tennis balls over the fence.”
At the time, neither Debra Fowler — then-director of the town’s recreation program — nor other town officials knew that K.O. had a medical diagnosis of “emotional disturbance.” His individualized education plan indicates “notable social skills problems … inability to learn … emotional and behavior problems … disability impacts him across settings, in and out of school.”
When K.O.’s father picked up his son that day, Fowler told him the boy would not be allowed back, according to the Vermont Human Rights Commission.
On July 14, records state, K.O.’s father — referred to as “Mr. Oak” to preserve his son’s anonymity — wrote an email to the town, disclosing his son’s disability and asking the town to make accommodations to allow the boy to return to the program.
On July 18, William Shepeluk, Waterbury’s municipal manager, told Mr. Oak that K.O. could not return to the camp.
According to an investigative report from the Vermont Human Rights Commission, K.O. had attended other summer camps without incident. The boy’s school records state that “K.O. is a likeable boy overall. He is charming and personable, and draws people in. He cares about pleasing adults and cares what they think. He is resilient, affectionate and sweet. K.O. is curious and asks lots of questions and is a careful observer of his surroundings. He is a good negotiator and knows what he needs to do to get his needs met.”
In his 30-page response to the lawsuit, the town’s attorney, Michael J. Leddy, cited numerous court cases in which a disability accommodation was denied because the request for accommodation came after a person was dismissed.
Among those cases is Bhatt v. University of Vermont, in which a student was dismissed from the school’s medical program due to behavior related to alcohol abuse. Citing his addiction to alcohol as a disability, the plaintiff sought readmission to the program.
The Vermont Supreme Court denied the plaintiff’s claim, writing that, “In essence, the plaintiff seeks to wipe the slate clean and to obtain a second chance — in this case a third chance — to meet the academic and ethical requirements of the college. He has requested as a remedy that he be given a medical degree or that he be reinstated to the fourth-year medical class. In essence, his record of misconduct would be eliminated, as if his disability was a full and complete defense to that misconduct.”
Leddy asserts that “Mr. Oak’s after-the-fact requests for accommodation were actually requests to the town to wipe the slate clean and give K.O. a second chance to participate in the summer-day-camp program, as if K.O.’s alleged mental disability was a full and complete defense to his misconduct that led to his permanent expulsion from that program on July 11, 2017.”
In a response to the town’s filing, Bor Yang, executive director of the Vermont Human Rights Commission, filed a motion arguing K.O.’s dismissal did not occur until after Mr. Oak had disclosed the nature of his son’s disability to town officials.
“The only issue before this court is whether the (commission) sufficiently pled that K.O. made a timely reasonable modification request and whether that request was unlawfully denied,” Yang wrote. “The complaint sufficiently avers that K.O. made a reasonable modification request on July 11, 2017, and a written waiver request on July 14, 2017, before he was permanently removed from the summer camp on July 18, 2017.”
Yang also asserts the town knew about K.O.’s disability prior to July 11, 2017, stating that “K.O.’s therapist attempted to communicate with Recreation Director Debra Fowler prior to July 11, 2017, and camp counselors communicated with third parties about K.O. requiring additional support. A place of public accommodation may be on notice that a person needs an accommodation even before that person has requested one.”
Yang’s motion states that the Vermont Human Rights Commission’s lawsuit represents the interests of the state, and not the interests of K.O. or Mr. Oak, and notes that Mr. Oak is free to bring his own lawsuit against the town.
For the time being, Mr. Oak said he will wait to decide if he will bring his own lawsuit against the town.
“Our primary interest in the case is the public accommodation measures that the (Vermont Human Rights Commission) are asking for and the $10K fund for children with disabilities,” Mr. Oak wrote in an email to the Waterbury Record. “If our child gets a small settlement for the discrimination our child suffered, then that is a good thing. We will wait for an outcome to the town’s motions before we decide whether or not we will sue the town.”
While K.O. was not allowed to return to the summer camp, he has been able to enjoy other amenities offered by the town’s recreation department.
“Our child has been using the pool this summer and the staff there have gone out go their way to protect our child from what they have described as local kids taking advantage of our child and treating our child disrespectfully,” Mr. Oak wrote.
“I commend these lifeguards and pool staff. They have gone out of their way to befriend our child and have shown a great deal of care and compassion toward our child.
“Perhaps we all should follow their example.”