Classroom cover-up

Sep 15, 2004 at 12:00 am

For more than a decade, students, faculty and administrators in Warren Consolidated Schools repeatedly raised concerns about the bizarre behavior of physical education instructor James Arnold Kearly.

Complaints began surfacing at least as far back as 1984. He allegedly made lewd comments and gestures in front of students, peered down the shirts of middle-school girls and patted the girls’ backsides. A 19-year-old school employee accused him of sexual harassment. At one point he faced criminal charges for allegedly assaulting a girl.

And yet complaints of inappropriate actions by Kearly, who began working for the district in 1966, continued while the school district did little to stop him, even allowing him to transfer from a middle school to an elementary school. Finally, in 1998 Kearly was accused of molesting three 8-year-old girls. He resigned, pleaded no contest to fourth-degree criminal sexual conduct and was sentenced to 90 days in jail.

On behalf of the girls, their parents have sued Kearly, the school district and three administrators. The lawsuit accuses the school district and administrators of gross negligence, sexual harassment and violating the girls’ constitutional right to be free of sexual abuse by failing to properly supervise Kearly, and of inadequately investigating suspicions of sexual and physical abuse and other improper acts. Each plaintiff is asking for “in excess” of $1 million.

The suit, which is scheduled to go to trial in November in U.S. District Court in Detroit, promises a window into what experts call a nationwide problem in which school districts — not entirely unlike the Catholic Church — chose to protect teachers from reprimand and prosecution rather than protect children.

“I’m convinced we need to go to trial to make the point that the community will not allow school districts to protect people who abuse children,” says the girls’ attorney, William Seikaly, a former high school and middle school teacher turned attorney and a former member of the Southfield Public Schools’ board of education.

“I think my commitment to education strengthens my resolve to make sure things like this don’t happen, not just in this case,” says Seikaly, who adds that school districts “are better served by dealing with these problems long before they get to litigation.”

Former Warren School Superintendent Paul Stamatakis — the highest-ranking official named in the suit — refused to be interviewed for this story. Stamatakis’ attorney Suzanne Bartos said that she did not want her client to discuss the case “so close to trial.”

The lawsuit alleges that Stamatakis ignored repeated warnings about Kearly’s conduct and allowed his transfer to the elementary school where the molestation occurred.

However, he testified at his deposition that though younger students are more vulnerable to abusive teachers, he felt the transfer was appropriate since Kearly would be away from older, more developed girls that he might be attracted to.

Attorney Stephen Hitchcock, who represents the school district and two other administrators named in the suit did not return Metro Times’ phone calls.

Kearly’s attorney Terry Welch would not discuss the details of the case, but said that his client denies that there was “any touching of a sexual nature.”

Troubled tenure

Although Kearly, now 66, went to work for the Warren schools in 1966, no district documents have been discovered that suggest problems before 1984. But court records — which include police reports, sworn depositions, letters, affidavits, court opinions and other documents — include a litany of alleged incidents from then until the time Kearly was charged and prosecuted 14 years later.

The following account of Kearly’s behavior and the school administration’s responses is drawn from those records.

The first known complaint was lodged in 1984 when a middle-school student alleged that Kearly grabbed him by the neck and threw him against a locker. A gym aide confirmed the boy’s account and Kearly received a verbal reprimand.

More incidents followed over the next couple of years:

• In 1985, when Kearly was transferred to Flynn Middle School, a female student complained that Kearly looked down her top, as well as another female student’s shirt. Although more than one student witnessed the alleged incident, the principal took no action against Kearly.

• In 1986, principals at Flynn verbally reprimanded Kearly after receiving several complaints from female students who said he hugged them, kept them after class, seated them next to him, touched their buttocks and made sexually suggestive comments such as, “That’s not what you said last night.”

• Kearly was not only accused of preying on school-age kids. Also around 1986, Kearly allegedly sexually harassed a 19-year-old former student who was working as an assistant volleyball coach at Warren High School. Kearly, who was the varsity volleyball coach at the time, reportedly kissed her, conducted meetings with her at local bars, called her at home and said he would pay for a furnished apartment for her. The school district allegedly advised the young woman that she could keep her job if she did not file a formal sexual harassment complaint; Kearly was reprimanded by an associate superintendent for “exercising extremely poor judgment.”

• In 1989 a teacher accused Kearly of urinating in the faculty lounge sink.

• Also in 1989, a Flynn school principal told Kearly that a parent did not want her daughter in his class because he seats girls with “large boobs” in the front row and drops pens so he can look up their dresses.

Police inquiry

An incident the following year brought police into the picture. The investigation began after a female student threatened to take an overdose of pills in November 1990, as a result of Kearly’s alleged abuse. The girl told the school principal that Kearly relentlessly teased and touched her. She said that he pulled her hair, pretended to spit on her and slap her face, touched her buttocks and called her names and a failure, which encouraged classmates to do the same. Eleven students confirmed the girl’s account, stating that Kearly was extremely cruel to her. The students also made similar accusations against Kearly, who they said tickled and hugged girls, touched their buttocks, made a sign that said, “Smile if you love me,” and teased students.

Kearly also admitted that he knew the girl had emotional problems when he targeted her.

Despite these assertions, the principal sent a November 1990 letter to Kearly stating that he would not be reprimanded, but ordered him to refrain from touching and teasing students.

A month later, the school district told the Department of Social Services that the girl who threatened to take pills had been abused, but Kearly was not mentioned in the report; the district said her mother was the source of the alleged abuse.

The Sterling Heights Police Department investigated the girl’s accusations and assault and battery charges were brought against Kearly, who was suspended without pay.

But students’ parents would not allow their children to testify against Kearly.

And the investigating officer, Thomas Dettloff of the sex crimes unit, said the school district was only “minimally cooperative,” failing to produce the interview notes with the students who confirmed the girl’s account. It is unclear why the school district was reluctant to help, but Dettloff recently stated in an affidavit that the interview notes would have “substantially strengthened” the case against Kearly, who he felt certain was a “pedophile.”

Kearly was acquitted of assault and battery charges in December 1991 and permitted to return to school the following month.

After his acquittal, the then associate superintendent of personnel and employee relations expressed “relief” at the verdict in a letter to Kearly and noted that the suspension would be expunged from his file; the 95-day suspension would be referred to as a “conference leave of absence.” It is unclear why the district expunged Kearly’s record.

More accusations continued to surface against Kearly after the court case concluded.

In 1993 a parent told the district that her daughter repeatedly pretended to be sick so she did not have to attend Kearly’s class. The student accused Kearly of inappropriately touching her. The then assistant superintendent reprimanded Kearly in a letter, advised him to get counseling and said, “Any further inappropriate behaviors on your part, especially with female students, will result with more severe disciplinary action up to and including recommendation for the filing of tenure charges.”

That was a reference to a state law, the Teacher Tenure Act, under which administrators can bring charges against teachers they want removed from their district. However, it also entitles tenured teachers to a full hearing process, including union representation, and the right to fight reprimands and transfers. A tenure commission makes a ruling, which can be appealed in court.

Kearly filed a grievance with his union, the Warren Education Association (WEA); the reprimand was expunged because the student was now comfortable in his class and her mother was satisfied “with the way things were going,” according to court records.

Teacher’s pets

In May 1995, Kearly asked to be transferred to a position that would permit him to teach physical education at several elementary schools. But Mike Michalowski, the then school district director of health, physical education and athletics denied the transfer, invoking a clause from the union contract.

The WEA filed a grievance on Kearly’s behalf, arguing he should have been awarded the position on the basis of seniority.

Sharon Hughes, who was then the district personnel director, urged superintendent Stamatakis to uphold Michalowski’s decision. Hughes presented Stamatakis with material from Kearly’s file regarding allegations against Kearly. In a July 1995 letter to Stamatakis, Hughes wrote, “Mr. Kearly’s incidents are severe enough and recent enough to warrant concern. I strongly urge that you support administration’s decision to deny his transfer to elementary education.”

Stamatakis apparently ignored Michalowski and Hughes and approved the transfer.

Normally, Roger Allen, the then associate superintendent of human resources, had the final say on transfer requests. But Stamatakis never consulted Allen, who said he would have denied the transfer, according to his deposition testimony. Allen also said that he had several teachers removed from the district when he felt they were a threat to students.

But Stamatakis said in his deposition that there wasn’t enough information in Kearly’s personnel file to warrant removal.

“I’m telling you, when I saw his file, based on what I saw in his file, I did not have enough evidence to proceed to tenure hearings,” testified Stamatakis at his deposition, adding that since he could not terminate Kearly, he had to grant his transfer request.

In October 1995, according to court records, Stamatakis formally reprimanded Hughes, in part for failing to expunge material from personnel files, including Kearly’s, and for making recommendations “by considering materials which by agreement were to have been destroyed or expunged from the employees’ personnel files.” (The district and the WEA had entered into at least two agreements which required the removal of certain material from Kearly’s personnel file, according to court records. Neither the administration nor the WEA would comment on these arrangements, citing the ongoing litigation.)

After the transfer was approved, the district purged Kearly’s personnel file of all accusations of improper conduct, including the Sterling Heights Police investigation and letters from Hughes and Michalowski opposing Kearly’s transfer. (Copies of those documents from other sources, such as various administrators’ files, remained and have become part of the court case.)

In January 1996, not long after Kearly’s transfer, a male student attending Harwood Elementary School accused Kearly of teasing him. The student said he asked Kearly if he could go to the bathroom and Kearly refused and then grabbed his own crotch in front of the class to demonstrate that the boy should “hold it.”

Around that same time, a Harwood principal confronted Kearly when he saw four fifth-grade girls hugging him; one student said, “I love you and I want to marry you,” according to court records.

The principal, who was aware of some allegations against Kearly, also had learned that Kearly had fifth-grade girls released from class for a month to assist him with the kindergarten students. The principal told Kearly, “You will not use fifth-grade girls for anything.”

When these incidents were reported to Hughes, she wrote Stamatakis in February 1996, asking that he investigate. “It is again with grave concern that I have approached you on this matter of Mr. Kearly and elementary girls. The safety and welfare of our students is our most important charge,” wrote Hughes.

Stamatakis responded by telling her that an assistant superintendent was in charge of investigating Kearly; he also reprimanded Hughes for not expressing her concern to Allen — the same administrator who said he would have opposed Kearly’s transfer had Stamatakis allowed him to make this decision, according to Hughes’ deposition.

Easy targets

It was an odd question from an 8-year-old.

Sally Doe, as she is identified in the lawsuit, asked her mother “if she had big boobs.” Her mother was surprised by the comment, she said in her deposition, since the family did not use that type of language in their home.

Then Sally Doe told her mother that she had “a secret.” Sharing it would ultimately lead to conviction and jail time for a teacher who had befriended and abused her.

“She was afraid looking. She was teary eyed and she said that she was a special helper to Mr. Kearly and that he had been touching her, and I asked where and to show me, and she showed me that he touched her on her buttocks and her breast area … and her pubic area,” testified Sally Doe’s mother at her deposition. The mother later heard that Kearly allegedly threatened to kill Sally Doe’s father if the girl told anyone about the touching, according to her deposition.

Sally Doe also told her mother that she saw Kearly touch two other students, who are referred to as Jane and Mary Doe in the lawsuit.

Jane Doe and her mother were asked to meet with school administrators about the matter. At the meeting, Jane said Kearly had touched her breasts and buttocks, according to court records.

When Mary Doe was asked by school administrators if Kearly had touched her, she initially denied it.

Days later Mary told her mother that Kearly did touch her, according to her mother’s deposition testimony.

“She told me about the game Mr. Kearly would play with her, and she said she would sit on his lap and he would touch her upper thigh to see if she would jump, and that was one of the games … and she told me that this was happening to her as a special helper and that she wanted to run out of the room and scream and tell … but she was afraid she would get in trouble,” testified her mother.

Kearly was suspended and tenure charges were brought against him in 1998. Sally Doe’s mother and the school district contacted Warren police, who investigated. The school district also called protective services and brought in a counselor for the girls. The girls testified against Kearly, who pleaded no contest to fourth-degree criminal sexual conduct, which means inappropriate touching without penetration. He was sentenced to 90 days in jail, but served less time, says Seikaly.

Kearly is listed on the state sexual offender registry.

As for the girls, they have suffered various side effects as a result of the sexual molestation, including headaches, stomach aches, fear of men and being alone, crying spells, intense anger and the inability to concentrate, according to court records.

See no evil

In 2000, on behalf of their daughters, the parents sued the school district, Kearly, Stamatakis and two other administrators. The lawsuit claims, in part, that the district failed to adequately address Kearly’s misconduct, which resulted in him molesting the three girls.

Attorney Seikaly is furious with school administrators he believes protected Kearly at the expense of many children.

“Kearly is sick. He’s a pedophile, but he at least has an illness. The people who covered up to protect him so that he went on victimizing kids for years, they’re truly deplorable,” he says.

In the course of litigation a matter of dispute is whether administrators prohibited Kearly from having student assistants, such as the three girls who he molested.

Stamatakis claimed at his deposition that after he approved Kearly’s transfer, he instructed then assistant superintendent of elementary education James Clor to closely supervise Kearly. He also told Clor that Kearly was not to have any student aides, testified Stamatakis.

Clor, who is now the superintendent of the school district and is also being sued, denied in his deposition that Stamatakis told him to supervise Kearly or that Kearly was not allowed to have student aides. Clor, who has been at the district more than 25 years, also claimed to have no knowledge of Kearly’s past behavior other than a few details about his acquittal in the 1991 criminal case. But Clor’s testimony is contradicted by Hughes, who testified that Clor was well aware of Kearly’s misconduct, had investigated him in the past and even told her he would “punch out” Kearly if he again misbehaved.

Gerald Maiorano is the principal of Siersma Elementary School, where the three girls were molested. He also is being sued.

Maiorano and Kearly had been friends and Maiorano was the godfather of one of Kearly’s children, according to Maiorano’s deposition.

Maiorano said during his sworn deposition that he had heard some talk about allegations involving Kearly and criminal sexual conduct with a student, but he chose not to believe it. He also claims that the school district did not inform him of past accusations against Kearly. Nor was he informed that Kearly was not to have student aides, he testified.

Kearly claimed, during the tenure investigation, that Maiorano allowed him to have student aides, according to court records.

Seikaly says the administrators either minimized the abuse or denied it altogether. An example is Stamatakis’ deposition testimony in which he reluctantly conceded that Kearly grabbed his crotch when a student asked him if he could go to the bathroom. Although several students said they saw Kearly grabbing his crotch, Stamatakis testified that it was only an “allegation.”

“It was his word against the student’s word,” testified Stamatakis at his deposition.

Attorney Seikaly asked if he would consider it an allegation if other students witnessed the incident.

“Well, probably not,” answered Stamatakis, who added that he didn’t remember that the incident had taken place in front of other students.

Stamatakis also said that he had Clor investigate the “allegation.” According to Stamatakis’ deposition testimony, Clor never put the results of his investigation in writing, but said “basically he had the situation under control and … there was nothing to worry about, it’s being taken care of.”

Pedophile profile

Why would school administrators put up with the Kearly for more than a decade?

“I think the district wanted to avoid the embarrassment, and administrators and teachers and people within the district decided it was easier to cover it up then deal with it,” says Seikaly.

Robert J. Shoop, a national expert on sexual exploitation in schools, says districts often take that approach. An educational law professor at Kansas State University, Shoop says school districts are often concerned about their reputation and fear that negative press will sour voters on school referendums and bond increases.

But Shoop says ignoring the problem makes matters worse. For one, it gives the sexual predator permission to strike again. It also silences children who don’t feel their complaint will be taken seriously, says Shoop, who adds that some districts have failed to react until a child is raped, commits suicide or is murdered.

There is no way to know how often school districts ignore or cover up sexual abuse, he says. But the number of lawsuits filed against school districts is a partial indicator since those that take prompt action are less likely to be sued.

Typically, at any given time there are between 200 and 300 school sex abuse cases in courts throughout the nation, says Shoop. “And those are the ones that get to court.”

Earlier this year the Roseville Community School District (RCSD) settled a sexual abuse lawsuit for an undisclosed amount just before it went to trial (see “Teacher’s Pets,” Metro Times, Feb. 18, 2004). In that case, the district allegedly knew of at least 14 incidents of molestation by a teacher. The lawsuit also alleged that when new complaints arose at a school, RCSD administrators would transfer the teacher to another district school without telling those at the new school about the complaints.

Although the Catholic Church is a monolithic institution, compared to the nation’s myriad school districts, Keith Durkin, an associate professor of sociology at Ohio Northern University, sees parallels. He calls the recent church sexual abuse scandal a “perfect example” of an institution trying to keep abuse allegations quiet.

Hundreds of allegations of molestation have been leveled at priests around the country. When accusations arose, the Catholic Church transferred deviant priests to new parishes rather than address the problem.

Durkin, who studies pedophilia, says some institutions are more interested in protecting their reputation than the children they serve. He adds that people in general are reluctant to believe allegations of sexual abuse.

“There is a collective denial with the problem, it seems so horrible and so atrocious it could not possibly happen,” says Durkin.

It doesn’t help that pedophiles are often very charming, relate well to kids and look for vulnerable targets, such as children who are raised by single moms and look for father figures, says Durkin.

Many pedophiles hold jobs that give them access to kids, such as coaches, pediatricians, youth camp directors, ministers and, of course, teachers. He describes a Cleveland case in which a man had been nominated teacher of the year after 40 years of service, but was “finally busted” when he retired for taking in international exchange students and giving them baths.

About 90 percent of molestation cases do not involve intercourse, says Durkin. Fondling, exhibitionism, showing pornography and nudity are common forms of child sexual abuse, he says.

Shoop concurs.

Pedophiles introduce kids to inappropriate behavior slowly over time, he adds.

“Generally there is a long period of grooming that gradually intensifies until the victim does not resist the final advances,” says Shoop.

He says one way to prevent sexual abuse in schools is to train school administrators, teachers and students to look for early signs of pedophilia, and to report suspected abuse immediately.

Under the state Child Protection Act of 1975, school administrators and teachers are required to immediately report suspected abuse to at least one of three agencies — the county’s prosecuting attorney, Family Independence Agency (formerly Department of Social Services) or local police.

Deliberate indifference

In Kearly’s case, it appears that there were signs of trouble early on. Maybe the earliest sign occurred before he applied to the Warren Consolidated Schools District. Kearly had been teaching at the Anchor Bay school district, but resigned during a closed session with administrators, says Seikaly, who calls the secret resignation “a big red flag.” It is unknown what happened at that school district, he says, but he says there is no indication that the Warren district inquired.

Kearly also was not forthcoming about his criminal record on his job application to Warren Consolidated Schools. He wrote that his only offense was a traffic violation. Seikaly discovered that Kearly was convicted of negligent homicide when he fatally hit another driver, according to court records.

A school policy also appears to have enabled administrators to deny signs of trouble concerning Kearly. Seikally cites what he calls the “Kearly clause,” which allows teachers to purge their personnel files of all disciplinary documents if they go three years without repeating the offense.

“The problem is the clause makes no distinction between a child molester and being late for class,” says Seikaly.

The clause was part of the union contract. It came about in 1995 when Kearly had asked to be transferred to the elementary schools. When his request was denied the union filed a grievance, which became part of a rather contentious contract negotiation. In the end, the “Kearly clause” became part of the contract.

The other problem is the district did not wait three years before purging Kearly’s personnel file, says Seikaly.

Administrators also dumped negative documents from Kearly’s personnel file before the union contract adopted this policy, according to court records. Consequently, Stamatakis claimed there was not enough information in Kearly’s file to support tenure charges or deny his transfer to the elementary schools.

But the records were available.

In fact, when Hughes submitted incriminating documents concerning Kearly to Stamatakis, she was reprimanded for not purging them from the file. Stamatakis said at his deposition that he disciplined Hughes because her job was to maintain all personnel files and she failed to do so. (Stamatakis is also embroiled in civil litigation with the Hamtramck school district, which he sued after being fired earlier this year from his post as superintendent for allegedly spending money on building improvements without school board approval.)

When Seikaly filed the lawsuit about four years ago, he asked for all documents concerning Kearly. Initially, the district provided about 400 pages covering his entire 32-year tenure. But Seikaly suspected there were more. Today, he has more than 2,300 documents on Kearly, which he discovered through the course of litigation.

All the defendants, except for Kearly, attempted to get the lawsuit dismissed. Last year, U.S. District Court Judge Paul D. Borman, who is presiding over the case, dismissed the gross negligence claim against the defendants since government agencies and their employees are immune from liability, according to Michigan law.

But the judge would not toss all the claims. The plaintiffs accused the district of “deliberate indifference” which means the administrators not only ignored the students’ constitutional right under the Fourteenth Amendment to be safe from harm, but made sure those rights were not protected, explains Seikaly.

He likens the tough legal standard to a race.

“If this is a 100 yard dash, the school district gets a 20-yard head start, because we have the burden. We can’t just show negligence,” says Seikaly.

Borman said the plaintiffs met their burden.

“It was the ultimate approval of this transfer that put Kearly in a physical position to sexually assault the three plaintiffs in this case,” wrote Borman in a 27-page opinion.

His ruling was essentially affirmed by the U.S. Court of Appeals this year, which stated that if the allegations are true, Stamatakis’ decision to transfer Kearly to the elementary school, “is a paradigmatic example of deliberate indifference.”

The trial is scheduled to begin Nov. 16, and is expected to last six to eight weeks.

Ann Mullen is a Metro Times staff writer. She can be reached at 313-202-8015 or [email protected]