Lawsuit: 8-year-old sexually assaulted twice by classmate at Ann Arbor's Eberwhite Elementary School

Nicholas Roumel, the attorney representing the girl and her mother, said Monday the lawsuit stems from the mother's belief that the attacks represent a failure to act on the part of the district.

"The allegations made by the child's mother are very serious and, if true, indicate an unacceptable lack of accountability on the part of the district," Roumel said in a statement.

The lawsuit alleges the second-grader was sexually assaulted in October 2010 and March 2011, with both incidents coming to light after the second assault.

AnnArbor.com is not naming the girl because she is the victim of a sex crime. The names of the boys involved in the incident are being withheld because they are juveniles.

According to court documents, the 8-year-old girl went to the bathroom on March 22 when a classmate somehow got into the bathroom with her. The lawsuit alleges the boy pulled her off the toilet and kissed her before undressing himself and the girl and attempting to engage in oral sex.

The boy was one of two special education students who had continually bullied the girl during the school year, according to the lawsuit.

The lawsuit states there were four adults assigned to the classroom— one substitute teacher, one student teacher and two teacher assistants. The substitute and two assistants were out of the classroom at the time of the incident, according to the lawsuit.

The student teacher noticed the boy and girl were missing from the classroom and called out their names, the lawsuit states. When they did not respond, the student teacher told them to come out of the bathroom, according to the lawsuit.

"(The boy) pulled his pants back up. (The girl) was still on the toilet. (The boy) came out first and was fastening his belt. (The girl) came out pulling up her pants," the lawsuit states. "(The student teacher) took them to the office and (the girl) started to cry."

When the students were in the office, the regular teacher was pulled out of a meeting in order to interview the students, according to the lawsuit.

After the girl told the teacher what happened, the teacher said she would call the girl’s mother, but instead called the school’s interim principal, Judy Copes, and left a voicemail when she couldn't reach her, the lawsuit states.

It wasn’t until the next day, March 23, that the interim principal received the message and asked the girl’s mother to come to the school, the lawsuit states.

The girl’s mother was told about the incident and the interim principal urged her not to call police, the lawsuit states.

The girl’s mother took her child to the hospital, where hospital personnel alerted police to the incident, the lawsuit states. Police interviewed the girl, when she stated she had also been assaulted by the same boy in the same bathroom in October, according to court documents.

The girl told police that the two boys who had bullied her during the school year went into the bathroom when she and another girl were changing into their costumes for Halloween, the lawsuit states. The same boy who assaulted the girl in March attempted to engage her in oral sex and the other boy attempted to remove the other girl’s clothes, according to the lawsuit.

"During the October assault, (the teacher) had noticed there were boys in the bathroom and told them to get out," the lawsuit states. "She did not inquire about what had happened in the bathroom even though the two boys and two girls came out together."

Following the March 2011 assault, the boy who had bullied the girl but was not present in the bathroom during the March 2011 incident began telling other students that the girl and the boy had been “humping” during the sexual assault, the lawsuit states.

Eberwhite staff interviewed the two boys and learned the boy who had been telling other students about the assault had told the boy and girl to go into the bathroom together in the March 2011 incident, according to the lawsuit.

The boys were both suspended from Eberwhite for two days, due to their special education status, the lawsuit states.

Copes and Debi Wagner, Eberwhite's principal before Copes' arrival, were both aware of the boys' bullying of the girl from incidents earlier in the year, according to the lawsuit.

The girl’s mother attempted to get a transfer for the girl to another elementary school in the district, but the district opposed it, the lawsuit states. It took two mediation sessions with the Student Advocacy Center before the girl was allowed to leave Eberwhite, according to the lawsuit.

"The district repeatedly refused to transfer (the girl)," the lawsuit states. "... Finally, after two mediation sessions, they agreed to the transfer."

The girl was out of school for five weeks following the March 2011 sexual assault and is still receiving therapy, the lawsuit states.

“Defendant AAPS discriminated against (the student) because of their failure to protect her from bullying and two sexual assaults,” the lawsuit states, ”which significantly interfered with her ability to fully utilize the defendants educational services.”

The lawsuit alleges violations of the American Disability Act, the Persons with Disability Civil Rights Act, section 504 of the Rehabilitative Act, the 14th Amendment and Title IX. The girl’s family is seeking $75,000, costs and attorney fees, as well as any other relief permitted under the law, according to court documents.

The lawsuit states the girl suffers from a range of emotional distress, along with physical manifestations such as fear of going to the bathroom by herself and anxiety about sleeping on her own, the lawsuit states.

Ann Arbor schools spokeswoman Liz Margolis said the school district has not seen the lawsuit and does not comment on pending litigation.

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Kyle Feldscher covers cops and courts for AnnArbor.com. He can be reached at kylefeldscher@annarbor.com or you can follow him on Twitter.