Skip to main contentSeven weeks from now, the next round of the Whitaker Middle School saga will unfold in a new venue, federal court, when lawyers for Whitaker parents square off against the Portland Public Schools.
The beginning of oral arguments in U.S. District Court in Portland on Feb. 12 may mark the opening in the last chapter of what was a remarkable story in 2001--the discovery that Whitaker, Oregon's lowest-performing middle school, has contained significant environmental hazards for the past decade. (See "The Poisoning of Whitaker," WW, May 23, 2001.)
In the suit they filed in October, Whitaker parents Jackie Wallace, Lynn Penwell and Sue Larson claim that district administrators knew for a decade that Whitaker contained significant environmental hazards and did nothing to fix them or inform community members of the dangers posed by mold, high levels of radon and other air-quality issues.
Based on WW's review of school district documents, Wallace and company have a pretty good case. Those documents show that, as early as 1990, district environmental officials were aware of elevated levels of carbon dioxide inside the school. According to the federal Environmental Protection Agency, such elevated levels are a key indicator of poor air quality, which in turn can lead to a variety of health problems, including diminished mental performance.
And as early as 1991, documents show, district officials also knew that the school contained elevated levels of radon, a naturally occurring radioactive gas. District documents show that radon levels increased in the building throughout the decade, one of two buildings in the district with windows that do not open.
Both the carbon dioxide and the radon readings were indications that fundamental problems existed with Whitaker's ventilation system, a system that, WW found, made Whitaker one of the most expensive in the district to operate.
After Whitaker's ills were first made public by this newspaper in May, Whitaker and two other Northeast Portland schools were temporarily closed for radon testing. They reopened a short time later, but, over the summer, additional testing at Whitaker found that the building was chock-full of toxic mold. The findings went a long way toward explaining chronic health complaints from staff and students, which were reflected in poor performance and high rates of absenteeism for both. When school opened this fall, Whitaker students were sent to two temporary sites--and about a third of them simply left Whitaker, enrolling in other schools.
In October, consultants told interim superintendent Jim Scherzinger that returning the school to health would cost at least $8.3 million. Then in early December--in a move that did nothing to help the district's legal position--Scherzinger announced that Whitaker would be torn down.
Built in 1967, Whitaker is the district's third newest school, but several design elements led to its early retirement: The school has a flat roof, a highly complex and expensive ventilation system, and windows that do not open.
At the same time he announced plans to raze Whitaker, Scherzinger floated the possibility of building a new school on the same site. That idea dismayed some observers, for three reasons: The district already has far too much real estate; enrollment in the Whitaker neighborhood is projected to plummet 34 percent over the next decade; and, perhaps most importantly, the district is broke and faces deficits that could be anywhere between $35 million and $57 million this year.
All of which brings us full circle to the pending lawsuit. One of the questions to be answered in February will be whether the thousands of students and hundreds of staff members who have passed through Whitaker should be certified as a legal class.
William Goode, the plaintiffs' lawyer, has requested that the court make such a certification, in part because a victory by his clients might "substantially impact subsequent [Whitaker plaintiffs] from recovering damages."
The district wants to avoid a class-action suit. Its law firm, Miller Nash, disputes the premise that individual suits could diminish the money available for future plaintiffs. "In reality, PPS resources available to satisfy a judgment have no definitely ascertained limits," the firm's response reads.
While current board members cannot comment on pending litigation, former board member Doug Capps, himself a lawyer, says that while Miller Nash's argument applies to a specific legal question, it may send a confusing message. "That's a curious argument when financial resources are pretty limited," Capps says. "There is an irony there. Can you imagine legislators reading that Miller Nash says the district has unlimited resources?"
WWeek 2015