HAGÅTÑA (The Guam Daily Post) — Two parents of students with special needs have filed a lawsuit against the superintendent of the Guam Department of Education and the Guam Education Board over health and safety conditions at their children’s schools and the failure to provide adequate educational services.
Paola Agostini and Samuel Donato are parents of students with special needs attending GDOE schools. They say their children have been negatively impacted as a result of the health and safety issues faced by the public education school system.
Their attorney, Daniel Somerfleck, filed a lawsuit Friday seeking declaratory and injunctive relief that would require GDOE and the school board to “implement adequate educational services” and “implement a corrective action plan to provide an adequate public education,” according to court documents.
Agostini’s child, a 13-year-old student diagnosed with autism, attention deficit disorder and apraxia, attended Agueda Johnston Middle School in school year 2022-2023. According to her parent, she requires a specially designed instruction education program through an Individualized Education Plan. It wasn’t provided, the lawsuit alleged.
“On numerous occasions, she did not receive her education from a certified teacher based upon illness or other demands. Of particular concern is that from Feb. 5, 2023, to March 7, 2023, the certified teacher of her resource room reading class and from April 21, 2023, through the end of the school year on May 19, 2023, the certified teacher of her resource room language arts class, were not present, nor was her instruction conducted by a certified teacher,” the lawsuit stated.
Agostini’s affidavit noted 64 occasions during which the child didn’t receive education from a certified teacher based on “illness or other demands.”
Agueda Johnston Middle also failed to comply with sanitary building inspection codes, which was confirmed July 24, 2023, at a meeting at the Ordot-Chalan Pogo Mayor’s Office to discuss safety and sanitary issues at the school. At that meeting, GDOE representatives said bathrooms were closed due to sewer blockage, that concrete was falling from the ceiling with rusted rebars exposed, as well as mold and electrical problems, the complaint alleged.
Swanson told The Guam Daily Post last week that his team was taking another look at GDOE facilities and would ensure that “they are safe for everybody.”
Rash, discharge
Donato’s 11-year old child attended Oceanview Middle School during school year 2022-2023. Court documents state the child is diagnosed with cerebral palsy, a history of eczema, asthma and multiple allergies, to include respiratory issues if exposed to mold.
Donato, in an affidavit to the court, alleged health and safety issues at Oceanview Middle had negative impacts on his child’s health.
“He started having a rash, with discharge (below) his … right eye. In December 2022, a doctor prescribed a steroid medication. During the Christmas break, the rash completely healed. Upon returning to school, the rash below his right eye started again. During the summer break, the rash appeared to have completely healed,” court documents stated.
The school inspection report conducted by Public Health in September 2022 was attached to the affidavit and reflected that the school received 56 demerits, resulting in a “D” grade, warranting school closure.
Findings of the report noted multiple violations of school sanitary requirements to include the presence of mold. The school, however, remained open.
The conditions raised concerns from education officials, who discussed temporarily moving Oceanview Middle students to Southern High School campus for school year 2023-2024 so health and safety issues could be addressed. However, following Typhoon Mawar and changes to Public Law 37-4 with regard to sanitary compliance, education officials decided students would remain at their campus while issues are addressed.
Donato’s affidavit expressed concerns mold remains in the classrooms’ air conditioning.
“Because of his asthma and other respiratory conditions (it’s) caused him irreparable injury and continued exposure is probable to cause him irreparable injury,” court documents stated.
Somerfleck alleged the “Every Child is Entitled to an Adequate Public Education Act” was violated. The lawsuit demands relief and requests the court to declare the alleged failures as unconstitutional and unlawful.
Somerfleck requested the court temporarily, preliminarily and permanently enjoin the GDOE superintendent and school board to provide appropriate and adequate education and submit to the court for its approval a plan for the implementation of corrective actions and appoint a “special master to ensure performance” and report to the court the progress and actions taken to remedy issues.
A request was made to award the plaintiffs “reasonable attorneys’ fees and costs.”
A summons was served upon each Guam Education Board member and Swanson to provide a written answer to the complaint within 60 days.
The entrance of Oceanview Middle School on July 3.
