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Mandan family sues school for racial discrimination

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Dickinson, 58602
Dickinson North Dakota 1815 1st Street West 58602

BISMARCK -- A former Mandan family is suing the Mandan School District and a bus driver for a minimum of $2 million, saying the driver and children on his bus repeatedly discriminated against them by called the family's four children "niggers" and "monkeys."

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The family, which is African-American, allege the school district did nothing when the mother complained about the problem. The family now lives in Bismarck.

The mother filed a similar complaint with the state Labor Department's Human Rights Division last year that was dismissed in April with a "determination of no reasonable cause."

The lawsuit identifies family members only by initials but corresponding Labor Department cases and related court records identify them as Ella Bowen-Davis, Gary Bowen-Davis and four of their children.

Their lawyer, Tom Fiebiger of Fargo, served the lawsuit on the school district and the bus driver, David Ustanko, this week.

Mandan Superintendent Wilfred Volesky said, "The only comment I have is that a very similar complaint went through the Department of Labor and the Department of Labor said we had done what was appropriate."

But he added that he recognizes the family has a right to file the lawsuit despite the Labor Department finding.

The North Dakota Insurance Reserve Fund will defend the district, Volesky said.

Ustanko, who lives in Mandan, has no phone listing and could not be reached for comment.

Ella Bowen-Davis' disputes with Ustanko and the school district have spawned other actions.

She filed separate Labor Department discrimination cases against Ustanko for actions she said he took against her family while living next door to her in a Mandan mobile home park, and against the mobile home park. The Labor Department also dismissed those cases, saying Ustanko's and the park managers' actions never amounted to racial discrimination.

Bowen-Davis also sought a judge's civil restraining order against Ustanko for actions she alleged he took against her family while living next door to the her family. The case was dismissed.

In September, Bowen-Davis was arrested and charged with class C felony terrorizing after she allegedly went to her children's Mandan grade school to talk to the principal and threatened a "blood bath" after complaining about Ustanko.

"My client swears she didn't make those comments. My client didn't say that," Fiebiger said.

Bowen-Davis' criminal defense attorney, Susan Schmidt of Bismarck, did not return a call Friday seeking comment for this story.

Morton County State's Attorney Allen Koppy said the case is set for trial in August.

When Forum Communications proposed an interview with Bowen-Davis, Fiebiger discouraged it, saying, "She wanted me to handle it."

The lawsuit alleges other children on the bus and Ustanko picked on the Bowen-Davis children and called them derogatory, racial names during the 2006-07 school year. It alleges Ustanko insisted the Bowen-Davis children sit in the back of the bus because "their place is in the back... Don't you know your history?" It alleges Ustanko sometimes would not stop the bus and open the door for the Bowen-Davis children when they wanted to get on, and disciplined the Bowen-Davis children when other children were not disciplined for behavior similar to the Bowen-Davis children's behavior.

The lawsuit also says Bowen-Davis complained about Ustanko to the school principal and the Mandan district's transportation director throughout the school year, without relief.

The lawsuit alleges the school district and Ustanko violated the state Human Rights Act on the basis of color and race, violated the 1964 federal Civil Rights Act and the 14th Amendment of the U.S. Constitution, with separate counts on behalf of each child. It alleges the school district negligently retained Ustanko as an employee and were negligent in allowing the children to be mistreated and subjected to emotional distress.

The suit seeks at least $50,000 for each of 40 separate counts or a minimum of $2 million total.

The family's allegations to the Labor Department are virtually identical to those in the lawsuit and also points to the school district probable defense.

The Labor Department interviewed Bowen-Davis, her children, school officials, Ustanko and other children on the bus.

The Labor Department found: "The evidence does not support all of (Bowen-Davis') allegations. However, the evidence does substantiate that racial comments and slurs were made by Mr. Ustanko on at least two occasions and other students' comments on at least one occasion."

Even though isolated incidents may not rise to the level of "harassment actionable under the statutes, they may have a particularly harmful effect on young individuals in the educational setting," the Labor Department found. "As such, we find that the (Bowen-Davis) children were subjected to hostile environment harassment in the receipt of bus transportation services."

But, the department found, the school district did take action or offered to take action to solve the problem.

The school principal talked to the parents of one child who had called the Bowen-Davis children names and that student stopped the harassment.

Because the school principal isn't the bus driver's supervisor, the principal referred Bowen-Davis to the school district's transportation director. The transportation director, Gordon Berge, told the Labor Department that Bowen-Davis never complained to him about Ustanko until April 2007, when she said she would :"take her kids off the bus" until or unless Ustanko was fired. Berge has a letter substantiating the timeline. Berge offered to have the children ride a different bus or to assign a different driver to the bus they had been riding.

Bowen-Davis told the Labor Department she refused these offers because she would not put her children on a Mandan bus as long as Ustanko still had a job with the district and that she wanted him fired.

The Labor Department also found that Ustanko disciplined Caucasian and American Indian children on his bus in much the same way and for the same behaviors as the Bowen-Davis children. The department found that the Bowen-Davis children picked their own seats or were assigned to the front of the bus for supervision for a short period

Witnesses told the Labor Department that the Bowen-Davis children were sometimes late getting to the bus stop but that Ustanko never drove past them and refused to let them on.

Bowen-Davis also removed her children from school in April 2007 and told Volesky "she would not be sending her kids to school as long as Mr. Ustanko is employed and that she wanted Mr. Ustanko's employment to be terminated."

The Labor Department found that the school officials took the right steps at the right time and weren't required to fire Ustanko. As such, the children didn't suffer a "hostile environment ... actionable under the statute."

Janell Cole works for Forum Communications Co., which owns The Dickinson Press.

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