2Q?.~ H~Y -6 f'i'H2= '-l 1 CLEtm Qf COURT
IN THE SUPERIOR COURT OF GUAM ,gy:_.~---
L.A., a minor person with a disability by and CIVIL CASE NO. CV0464-23 through her parent, and G.D., a minor person with a disability by and through his parent, DECISION AND ORDER RE SUMMARY Plaintiffs, JUDGMENT MOTIONS
vs.
KENNETH ERIK SWANSON, Ph.D., in his official capacity as Superintendent, Guam Department of Education, et al.,
Defendants.
In this lawsuit by students seeking redress against the Guam Department of Education's
Superintendent and Board members, the Court reviews both parties' arguments for summary
judgment. The Court determines that Plaintiffs L.A. and G.D. have filed claims in compliance
with the Every Child Is Entitled to an Adequate Public Education Act ("the Adequate Education
Act") and the Government Claims Act, signifying that this Court has subject matter jurisdiction.
The Court further determines that L.A. and G.D. may seek declaratory relief in addition to
injunctive relief.
For conditions that have been addressed by a Department of Public Health and Social
Services inspection, the Court GRANTS GDOE summary judgment and DENIES L.A. and G.D.
summary judgment relative to injunctive relief. The Court, however, DENIES summary
judgment on the issue of the presence and effect of mold, a condition that DPHSS inspections do
not address. That issue remains to be tried.
OR~G!NAL CV0464-23 DECJS[ON AND ORDER RE SUMMARY JUDGMENT MOTIONS Page2
The Court further GRANTS G.D. summary judgment for the unsanitary conditions at
Oceanview Middle School (OMS) while it operated under a failed school inspection grade, but
DENIES L.A. summary judgment for failing to demonstrate an unhealthful campus at Agueda I.
Johnston Middle School (AIJMS). Finally, the Court determines that the undisputed facts show
that GDOE violated the Act during the times it failed to provide L.A. with a certified special
education teacher and GRANTS L.A. summary judgment in that regard.
I. PROCEDURAL HISTORY
L.A. and G.D. filed this case 1 under the Adequate Education Act, Guam Public Law No.
28-45. L.A. and G.D. claimed that their schools-AIJMS and OMS-maintained unsafe and
unsanitary learning environments in violation of the Act. Second Am. Compl. (Jan. 22, 2024). 2
L.A. further sought relief for GDOE's failure to provide her with a certified teacher. Id.
GDOE moves for summary judgment, arguing that there are no genuine issues of material
fact relative to GDOE's provision of an adequate education for both students. 3 Def.'s Mot.
Summ. J. (Aug. 27, 2024) ("GDOE Mot."). In response, L.A. and G.D. cross-moved for
summary judgment, claiming declaratory relief was appropriate as undisputed facts show GDOE
did not provide an adequate education. Pls.' Mem. in Opp'n to Def.'s Mot. Summ. J. & Cross-
Mot. Summ. J. for Declaratory Relief (Oct. 25, 2024) ("Cross-Mot."). Separately, L.A. and G.D.
1 GDOE has never filed an Answer to the Second Amended Complaint.
2 GDOE argues in their Opposition to Plaintiff's Cross Motion for Summary Judgment that Plaintiffs are barred from referencing their original Complaint because they failed to request and obtain leave of court for their Second Amended Complaint to relate back to the Original Complaint. Guam Rule of Civil Procedure 15 does not require this; relation back automatically occurs when the claims arose out of the same conduct, transaction, or occurring set forth in the original pleading. That is the case here. 3 GDOE's motion also sought summary judgment for claims by students who have since been dismissed from this action. Dec. and Order Granting Mots. Dismiss (Sept. 10, 2024). CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 3
moved for summary judgment on their request for iajunctive relief. Pls.' Mot. Summ. J. for
Injunctive Relief (Dec. 2, 2024) ("Pls.' Mot.").
The Court heard the three motions on January 21, 2025. During the hearing, the Court
indicated that relative to jurisdictional issues, it was inclined to rely on Quan Xing He v. Gov 't of
Guam, 2009 Guam 20, and Kittel v. Guam Mem 'l Hosp. Auth., 2020 Guam 3-cases the parties
had not briefed. The Court permitted supplemental briefing and took the matter under
advisement once the supplemental briefing completed on February 7, 2025.
II. UNDISPUTED FACTS
The following facts are undisputed based on the record presented to the Court.
L.A. and G.D.
1. L.A. is a public school student with a disability who attends AIJMS and requires
special education services. Deel. Paola Agostini ,r 1 (Dec. 2, 2024 ). 4
2. During the 2023-2024 school year, there were a number of absences of L.A.' s
teachers for various reasons such as serving for jury duty, attending mandatory
trainings, and for documented medical needs. Deel. Eliza Paulino in Support of
Def.'s Opp'n to Pls.' Dec. 2, 2024 Mot. Summ. J. (Dec. 31, 2024) ("Fourth Paulino
Deel."); GDOE Mot. at 15; Cross-Mot., Ex. H.
3. On June 26, 2023, Guam Legal Services Corporation submitted a claim on behalf of
L.A. claiming that GDOE violated the Adequate Education Act by failing to provide
a "certified teacher for every class in a ratio established by relevant collective
bargaining agreements" and "a healthful, safe, sanitary learning environment." Pls.'
Opp'n Def.'s Third or Suppl. Mot. Dismiss, Exs. B, C (Feb. 7, 2025). L.A.'s claim
4 GDOE submits no facts to dispute L.A.'s special education status or attendance at AIJMS. CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page4
mentioned that from April 24, 2023, to the end of the 2022-2023 school year, she did
not have a certified teacher in at least one of her classes in addition to having
uncertified teachers when a certified teacher was unavailable. She also stated that
AIJMS is not a healthful, safe and sanitary learning environment. Id.
4. G.D. is a public school student who attends OMS. GDOE Mot. at 4-5 (inferring
G.D. 's attendance as OMS).
5. On June 26, 2023, on behalf of G.D., Guam Legal Services Corporation submitted a
Government Claim that OMS does not provide a healthful, safe and sanitary learning
environment for G.D., who has cerebral palsy and a history of eczema, asthma and
multiple allergies. Id., Exs. E, F.
School Inspections.
6. DPHS S developed rules and regulations surrounding school sanitation and as such
conducts school building inspections and assigns schools passing or failing ratings
based on the number of demerits incurred. 26 Guam Admin. R. & Regs. (GAR)§§
4701-4722 (2022). These procedures were developed for the purpose of protecting
and promoting "the health and safety of all employees and students in schools on
Guam." Id. § 4701. These ratings directly translate into the ability of a school to
receive a sanitary permit which is required to operate a school. Id. § 4705(a).
Receiving more than forty demerits results in an immediate suspension of the
school's sanitary permit. Id. § 4720(d)(4)(iv).
7. The inspections assess scores under the following categories: the location and
premises; the building (including cleanliness of walls, floors, and classroom
equipment); ventilation, temperature, and relative humidity; plumbing (including CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 5
approved sewage disposal systems); water supply; handwashing facilities; showers;
restrooms; garbage and trash disposal; food protection; and safety. See, e.g., Suppl.
Deel. Duane Mantanona, Ex. 1 (Nov. 8, 2024); 26 GAR§§ 4705-4718. These
inspections, however, do not account for mold. 5 Apr. 23, 2024 Hr' g at 10:21-22
(Test. Kenneth Swanson); 6 see also Suppl. Deel. Duane Mantanona, Ex. 1.
8. In July 2011, DPHSS inspected AIJMS and assigned a grade/rating of 2/A. Suppl.
Deel. Eliza Paulino, Ex. 1 at 1 (Nov. 8, 2024) ('"Second Deel. Eliza Paulino"). At
some point thereafter, AIJMS received a sanitary permit from DPHSS that expired on
June 30, 2023. Pis.' Mot., Ex. 14 at 3. This permit was on display at AIJMS on
October 7, 2024-over a year and three months after its expiration. Id. The next
documented inspection by DPHSS was on May 6, 2024, where AIJMS received a
grade/rating of 3 8/C. Second Deel. Eliza Paulino, Ex. 1.
9. On September 29, 2022, DPHSS inspected OMS and issued a grade/rating of 56/D.
Cross-Mot., Ex. F. Major deficiencies noted included:
a. Multiple instances of standing water harboring mosquito larvae or other pest
breeding sites.
b. Rooms not kept clean, neat and orderly (e.g.: electrical cords causing a
tripping hazard), affecting the overall sanitation of the facility.
c. Doors were unclean and not tight-fitting, allowing pests to enter.
5 The Public Health inspections do not officially look at mold growth as a category when issuing demerits, however, DPHSS has noted the existence of mold in its general remarks when discussing issues like cleanliness of the ceilings and walls and considers the existence of mold when assessing shower facilities. See Cross-Mot., Ex. F, Att. 1 at 2; 26 GAR§ 4714. 6 This testimony is also found in Exhibit H, page 64, of Plaintiff's October 25, 2024 Memorandum in Opposition to Defendant's Motion for Summary Judgment.
OR~G!Nt\L CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 6
d. Cockroach egg cases and droppings found throughout the school's storage
areas.
e. Indoor temperatures were too hot to provide a comfortable working and
learning environment.
f. Inadequate lighting.
g. Handwashing sinks not connected to the sewage system, but instead draining
into waste containers or clogged.
h. No sanitary papers towels or liquid hand soap nearby sinks.
1. Loose or stained flooring in shower rooms/rest rooms.
j. Toilets stained and clogged with toilet tissue, feces, and urine, and no toilet
paper.
10. OMS was again inspected on April 10, 2023, and received a grade/rating of 61/D.
Suppl. Deel. Duane Mantanona, Ex. 1. This inspection was not provided to the Court.
11. On April 15, 2024, OMS underwent a public health inspection and received a
grade/rating of 36/C. Id. Noted corrections were completed by June 9, 2024. Id.
Mold.
12. On July 25, 2023, GDOE published an "Update on GDOE Typhoon Recovery &
Public Health Inspections" and stated that one of the top ten areas to address is "mold
growing and persisting due to damp conditions and lack of air circulation." Pls.'
Mot., Ex. 6.
13. A Mold Abatement/Remediation Plan was developed which listed both AIJMS and
OMS as schools that were included, however, this plan is undated. Id., Ex. 8. CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 7
14. Superintendent Kenneth Swanson stated this plan was for all schools in the GDOE
system, there are EPA regulations around mold and spores in schools they must abide
by, and the DPHSS inspections do not address mold. Cross-Mot., Ex. H.
15. In the Superintendent's June 14, 2024 Report on Priorities, GDOE's former
Superintendent lists addressing mold/air quality/deep cleaning as one of the ongoing
priorities. Cross-Mot., Ex. B.
16. Although GDOE has started the process to procure services for mold
abatement/remediation, there is no evidence before this Court that GDOE has
resolved its publicly expressed concerns regarding mold.
III. LAW AND DISCUSSION
A. The Court has Subject Matter Jurisdiction.
GDOE first contends that L.A. and G.D. lack standing to bring these cases because their
claims did not comply with the Adequate Education Act. The Legislature created the Adequate
Education Act to provide a mechanism for school children to access the courts to vindicate their
right to an adequate public education. P.L. 28-45:3. Before a student can sue in court, however,
the Adequate Education Act requires the student file a claim "in the manner required by"
portions of the Government Claims Act. P.L. 28-45:16 (7 GCA § 12108.l(b)); see also Dec. and
Order Granting Mots. Dismiss at 3-7 (explaining administrative exhaustion).
One of these requirements is that the claim provide a "concise statement of the facts upon
which the claim is made, including the time, place and other circumstances and the department
or agency or fund of the government of Guam that is concerned." 5 GCA § 6201(c). While there
is no caselaw analyzing if claims are sufficiently filed under the Adequate Education Act, there is
caselaw from the Guam Supreme Court analyzing the sufficiency of claims filed under the CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 8
relevant portions of the Government Claims Act. Given that the Adequate Education Act
requires claims to be filed pursuant to these same standards, the Guam Supreme Court's
jurisprudence dictates how to determine if claims are properly filed.
The Guam Supreme Court in Quan Xing He v. Government of Guam assessed whether a
claim under the Government Claims Act contained a "concise statement of the facts upon which
the claim is made"-the same issue in question here. 2009 Guam 20 ~ 27. A two-part test was
developed to determine if there was strict and substantial compliance with the filing
requirements. "First, the court must determine whether the claimant has complied to some extent
with every statutory requirement. If so, the court then determines whether such compliance is
sufficient to constitute substantial compliance." Id. ~ 34. That is the "substantial" part of the
test. "The only 'strict' part of this test is the requirement of having to comply (to some degree)
with every statutory requirement, because there cannot be substantial compliance if there is no
compliance at all; if one required element is omitted, then the court cannot determine whether the
claimant has substantially complied with that requirement." Id. The Guam Supreme Court
further stated that the purpose of the Government Claims Act "is to provide the government with
sufficient information to enable it to adequately investigate claims." Id. ~ 41. This sentiment
was affirmed in Kittel v. Guam Memorial Hospital Authority, where the Guam Supreme Court
stated that substantial compliance exists when there is "sufficient information disclosed on the
face of the filed claim to reasonably enable the public entity to make an adequate investigation of
the merits of the claim and to settle it without the expense of a lawsuit." 2020 Guam 3 ~ 15.
Here, L.A. and G.D. submitted their written, verified Government Claim to GDOE on
June 26, 2023. L.A. 's claim references a time period of "from April 24, 2023, to the end of the
2022-2023 school year" and explains that "L.A. did not have a certified teacher in at least one of CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 9
her classes in addition to having uncertified teachers when her regular certified teacher was not
available. Also, based upon information and belief Agueda I. Johnston Middle School is not a
healthful, safe, and sanitary learning environment." Pls.' Opp'n Def.'s Third or Suppl. Mot.
Dismiss, Exs. B, C. G.D.'s claim states that "G.D. has cerebral palsy and has a history of
eczema, asthma and multiple allergies. Based upon information and belief Oceanview Middle
School is not a healthful, safe, and sanitary learning environment." Id., Exs. E, F.
The Court determines that L.A. and G.D. have complied with every statutory requirement
such that there is a concise statement of the facts upon which the claim is made, including the
time, place and other circumstances and the department or agency or fund of the government of
Guam that is concerned. L.A. and G.D. both provide information on the time in question, with
L.A. giving the specific school year and G.D. listing "middle school" which provides a confined
time period, they list the schools in question, and they provide sufficient information to
determine that the department of concern is GDOE. The Court determines that the statements
provided by L.A. and G.D. are sufficient concise statements in that they explain the general bases
of their issues, such that GDOE could make an adequate investigation of the merits of the claims
and settle them without the expense of a lawsuit per Kittel. GDOE also had sufficient
information to know that L.A. 's claim dealt with an issue of certified teachers. Additionally,
based on the claims of a lack of a healthful, safe, and sanitary learning environment, combined
with the information on G.D.'s chronic medical conditions, GDOE was provided sufficient
information to investigate the claims by looking into issues such as the DPHSS inspections and
the status of the mold remediation work. Given that L.A. and G.D.'s claims strictly and
substantially complied with the Adequate Education Act, the Court determines that it has subject
matter jurisdiction. CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 10
B. Declaratory relief is available.
GDOE argues it is entitled to summary judgment because any violations of the Adequate
Education Act that may have existed in the past are now corrected. As the Adequate Education
Act states, an injunction may not be issued if a condition upon which a claim has been made has
been corrected. 7 GCA § 20302. GDOE argues that this prohibition on injunctive relief extends
to a prohibition on declaratory relief.
The Court does not agree with this assessment. While the Adequate Education Act
explicitly allows for injunctive relief until a condition is corrected, the Act does not prohibit
other forms ofrelief. GDOE cites the Court's September 10, 2024 Decision, wherein the Court
wrote in a footnote that the Adequate Education Act allowed only injunctive relief. Dec. &
Order Grant. Mot. Dismiss n.6. The Court takes this opportunity to clarify its previous
statement. Footnote 6 was specific that injunctive relief, but not damages, was available for
prevailing students. It did not rule out declaratory relief.
To be clear, L.A. and G.D. do seek declaratory relief. See Sec. Am. Compl. And Guam
law gives the Court the ability to declare one's rights in cases of actual controversy:
Any person ... who desires a declaration of his rights or duties with respect to another, ... in cases of actual controversy relating to the legal rights and duties of the respective parties, [may] bring an action in the court having jurisdiction for a declaration of his rights . . . . He may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of such rights or duties, whether or not further relief is or could be claimed at the time.
7 GCA § 26801. Declaratory relief can also be granted in addition to other remedies. 7 GCA §
26802.
Specific to declaratory relief, Plaintiffs argue that regardless of if GDOE has cured
deficiencies for inadequacies, such relief provides a "clear and authoritative determination of CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 11
legal rights and obligations, which can prevent future disputes and ensure that the statutory
requirements are consistently met." Pls.' Opp'n Def. 's Third or Suppl. Mot. Dismiss at 4. The
Court agrees that both declaratory and injunctive relief are critical in ensuring students' rights to
an adequate public education are met. Declaratory relief provides the students with an
affirmation of their rights and provides legal support to prevent future violations. While the
correction of violations may preclude L.A. and G.D. from injunctive relief under 7 GCA §
20302(8), any violations that have occurred may form the basis for awarding declaratory relief.
C. Summary judgment is appropriate on some issues.
Having settled the scope of relief the Court may grant, the Court now turns to whether
GDOE or L.A. and G.D. are entitled to summary judgment on the issues of whether AIJMS and
OMS are healthful, safe and sanitary, and whether L.A. lacked a certified teacher. In reviewing
these issues, the Court binds the parties to the requirements under the Guam Rules of Civil
Procedure. This includes Rule 56(c)'s requirements that movants provide parts of the record to
demonstrate the presence or absence of material issues of fact, though the Court may rely on
other materials in the record. GRCP 56(c)(3).
Moreover, the Court considers that under Guam Rule of Civil Procedure 8(a), a pleading
need only contain a short and plain statement of the claim. The Guam Supreme Court has
confirmed that pleadings are to be construed liberally, rejecting a more stringent standard
imposed by federal courts. Ukau v. Wang, 2016 Guam 26 ,r 27. DOE has argued that this Court
not allow L.A. and G.D. to proceed on issues that are not specifically enumerated in their initial
Government Claims. Rule 8, however, allows a case to proceed if a party has given notice of a
claim. The Court has already determined that L.A. and G.D.'s claims were sufficiently stated.
The Court further determines here that the Second Amended Complaint, which sought injunctive CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 12
and declaratory relief, gave GDOE adequate notice of their claims.
1. Healthful, Safe, and Sanitary Learning Environments
Under Guam law, schools may not operate without valid sanitary permits. 10 GCA §§
21101, 25101; 26 GAR§ 4705(a). The Director ofDPHSS has the discretion to conduct
inspections at a frequency dependent on existing resources, health risk, the type of people served,
the potential for disease transmission and injuries, and history of noncompliance. IO GCA §
21104. Additionally, DPHSS regulations state that schools can apply for the renewal of sanitary
permits no earlier than 30 days prior to their expiration dates. 26 GAR§ 4705(g). Given that
DPHSS has developed rules and regulations to assess the sanitation of schools and is authorized
to determine whether schools can be awarded sanitary permits, the Court finds it appropriate to
defer to that agency's findings. 7
In deferring to DPHSS' evaluations, the Court examines DPHSS' grade or rating to
determine if a school is adequately healthful, safe, and sanitary, specific to the items assessed in
a Public Health Inspection. These items include claims such as L.A.'s concerns about the
restrooms in AIJMS. For items not addressed by the inspection, like mold, the Court shall
determine if these issues impact whether a school is adequately healthful, safe, and sanitary. 8
L.A. and G.D. present numerous photos and other evidence of unsanitary conditions
during times when their schools held passing inspection grades. Pls.' Mot., Ex. 14 (photos taken
7 Other jurisdictions rely on their state health department's inspections to determine the existence of health hazards in schools. See, e.g., Bd of Educ. of the Hilton Cent. Sch. Dist. v. Gordon Ambach, as Comm'r ofEduc. of the State ofNY, 474 N.Y.S.2d 244,245 (N.Y. 1984); Macon Cty. V Bd. ofEduc. Of Decatur School Dist. No. 61,518 N.E.2d 653 (Ill. App. 1987). 8 Superintendent Swanson noted in his deposition that the schools regulate mold and spores because of an Environmental Protection Agency requirement. Cross-Mot., Ex. H. As with DPHSS, the Court believes that deference should be given to expert agencies. If the parties can proffer evidence of the EPA requirements and/or assessments, the Court will consider them in its determination. CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 13
in October 2024). As the Court noted in its Decision and Order Granting Motions to Dismiss,
the Court is cautioned not to substitute its own notion of sound educational policy in place of
those developed by GDOE. Likewise, the Court hesitates to override or overrule health
inspectors trained to know what makes a learning environment unhealthy and to direct what steps
must be taken to correct unhealthful conditions. In other words, when DPHSS has certified a
school as sanitary through the issuance of a sanitary permit, this Court will accept that
assessment for purposes of reviewing violations of the Adequate Education Act.
Students who complain about unsanitary conditions despite a school's passing grade still
have avenues ofrelief. For example, Guam law affords those who wish to complain about health
violations the opportunity to protest directly to DPHSS. See 10 GCA § 20117. Students who
wish to challenge the grade, DPHSS' methods, or other conditions can do so through the
administrative and legal processes provided under Guam's health and safety code. But for
purposes of the Adequate Education Act, a school is in compliance with the Act's requirements
for a healthful, safe, and sanitary environment when it holds a passing inspection grade.
As for AIJMS, L.A. does raise sanitary concerns for periods after AIJMS's health permit
expired9 and before it obtained a new passing grade-that is, from June 30, 2023, to May 6,
2024. 10 During this time, AIJMS did not have a permit, and as such, the Court cannot rely on a
9 L.A. tries to introduce an issue of fact as to when AIJMS' last sanitary permit expired. While the May 2024 inspection report indicates the previous inspection occurred in 2011, L.A. also furnished evidence of a that AIJMS had a sanitary permit on display that expired on June 30, 2023. The Court finds the latter permit-which L.A. introduced-to be credible evidence that AIJMS' prior permit expired on June 30, 2023. 10 AIJMS had a valid permit at the time L.A. filed her claim on June 26, 2023, until the permit's expiration four days later on June 30, 2023. However, no party raised the issue ofripeness. Nonetheless, although AIJMS had a valid sanitary permit when L.A. filed her Government claim, the case ripened once the permit expired, and was ripe at the time L.A. filed her lawsuit. CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 14
DPHSS inspection. Based on the Court's review of the record, there is just one reference of a
deficiency in this ten-month period. It is L.A.'s parent's statement that in October 2023, she
observed a bucket with muck on the bottom next to L.A.'s desk and was told that sometimes the
bucket contains foam, but apparently there was no foam in it at the time of the observation.
Deel. Paola Agostini ,i 3. The parent also noticed rust on LA. 's desk. Id This sole piece of
evidence of an empty bucket and rust stain do not present a genuine issue of material fact as to
unsanitary conditions at AIJMS, nor does it establish that L.A. is entitled to declaratory and
injunctive relief as a matter of law.
As for OMS, when G.D.'s claim was filed on June 26, 2023, OMS had a failing rating of
61/D resulting from the April 10, 2023 inspection. This rating was corrected on June 9, 2024.
Thus, as with L.A., G.D. cannot avail of injunctive relief now that OMS has a valid permit. The
Court must instead examine whether G.D. has demonstrated there is no genuine issue of material
fact as to the condition of OMS up to June 9, 2024. Though the Court has not received the April
2023 inspection, which OMS failed, the Court knows from the September 2022 inspection that
OMS suffered from major sanitation issues. Students enrolled there, including G.D., were in
close proximity to mosquito breeding grounds; had to endure dirty and non-functioning
bathrooms lacking hand soap and paper towels; washed their hands in sinks unconnected to
sewage systems and overflowing with wastewater; studied in classrooms with air temperatures
that exceeded 83 degrees; risked slipping on loose tile; and were exposed to improper food
handling practices. Aff. Samuel Donato, att. I (Aug. 11, 2023). These were just some of the
circumstances that G.D. faced as he attended OMS in the 2022-2023 school year, and which
possibly amplified his eczema, asthma and allergies, not to mention detrimentally affected his
ability to learn while dealing with cerebral palsy. GDOE offers no defense to these conditions CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 15
other than to say that they are now corrected. Again, while the corrections mean injunctive relief
may no longer be available, this Court is prepared to declare that up until OMS passed its
inspection on June 9, 2024, it violated the Adequate Education Act in allowing its campus to
pose a hazard to the health of G.D.
2. Mold
The Court now turns to the issue of mold, which is not covered in DPHSS inspections.
The parties present information illustrating the presence of mold at OMS and AIJMS. L.A. and
G.D. also provide information about GDOE's work to address mold at the schools starting from
July 2023. This includes GDOE's update on typhoon recovery and public health inspections to
the Guam Education Board, GDOE's Mold Update and Remediation Plans, procurements in
progress to address mold, a report from Superintendent Swanson in June 2024 about the priority
of addressing mold, and photos from AIJMS of "mold on [the] ceiling." Cross-Mot., Ex. B; Pls.'
Mot., Exs. 6, 12, 13, 14.
To the contrary, GDOE presents information arguing that mold is not present at the
schools. It states that "the mold and electrical problems resulting from Typhoon Mawar were
resolved after the typhoon and before SY2023-24." GDOE Mot. at 17. Further it provides a
declaration from Jimmy Pangelinan, a GDOE employer in facilities and maintenance, who states
that "mold remediation and abatement are not always for the existence of mold" and that "as far
as [he is] concerned, there are no problems in GDOE schools currently." Deel. Jimmy . Pangelinan at 2 (Dec. 31, 2024). Pangelinan further states that the mold remediation and
abatement procurement plans were for the purpose of "eliminat[ing] all kinds of questions and
curiosity," but not because of suspicions about the presence of mold. Id.
The conflicting details about the existence of mold, past and present, create genuine CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 16
issues of material fact. The Court therefore denies both parties' motions for summary judgment
specific to the issues of mold. This matter must be resolved at a trial.
3. Certified Teacher
Finally, the Court looks to L.A.' s claims that she was not provided with a certified
teacher. The Adequate Education Act states that students are entitled to have a certified teacher.
1 GCA § 715(12). It further defines "certified" as "a person hold[ing] at least the first level of
professional certificate issued in accordance with standards at least as stringent as those in place
on the day this Section is effective, for the position he or she holds." 1 GCA § 715(m).
When the Adequate Education Act was enacted, Guam law already required special
education students to have special education teachers. In 2003, the Guam Legislature reenacted
Title 17, Chapter 9 of the Guam Code Annotated, whose purpose was to "provide to all children
with disabilities of public school age." P.L. 27-17 (codified as 17 GCA § 9101). 11 To that
extent, the Legislature directed GDOE to ensure appropriate special education teachers for
special education students. It further required GDOE to "provide ... for the proper training and
development of special education teachers, aides and staff to ensure continued quality special
education services." P.L. 27-17 (codified as 17 GCA § 9104).
According to P.L. 27-17, the "stringent" standards in place at the time the Adequate
Education Act came into existence already required GDOE to provide not just certified teachers,
but trained special education teachers. This means that under Guam law, GDOE was required to
furnish L.A., a special education student, with teachers qualified to teach her.
11 P.L. 27-17 was amended by P.L. 31-158. The amendments do not alter any of the statutes referenced here. CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 17
The Court now turns to those instances in which GDOE failed to meet those standards.
GDOE concedes numerous times when L.A.' s teachers were not present. According to AIJMS'
principal, on at least 41 occasions, L.A.'s teacher was not present. "Of those 41 claimed
absences, 26 were due to legitimate documented sickness, jury duty, or finalization of
memoranda, while 12 were actually covered by certified teachers and 3 were when teachers were
present but had to attend an IEP, Staffing, or ACTUM meeting." Fourth Deel. Eliza Paulino ,r
39. Assuming that 12 of 41 teacher absences were covered by certified special education
teachers, 12 that means 29 times, GDOE failed to meet the standards mandated by law to provide
L.A. with an appropriate teacher.
GDOE contends that the teachers had legitimate excuses-illness, jury duty, or
administrative work. Plainly stated, the Adequate Education Act does not make exceptions for
when children can go without qualified teachers. Instead, it requires GDOE to adequately plan
to ensure each student receives an adequate public education. 5 GCA § 1302(a). Moreover, this
Court declines to adopt any type of sliding scale test to dictate how many days of justified
absences are enough before GDOE commits a violation of the Act. This Court interprets the
Adequate Education Act as written, and the Act requires GDOE to ensure L.A. has a teacher
qualified to teach her.
One fact L.A. has not disputed is that "as of December 30, 2024, the condition of no
certified teacher for LA. has been corrected." Fourth Deel. Eliza Paulino ,r 42. As there is
nothing in the record to dispute this, the Court finds that injunctive relief cannot be issued.
However, as discussed above the Court may issue declaratory relief for prior violations. To that
12 Paulino doesn't say that the covering teachers were certified special education teachers, so there could be more than 29 occasions in which L.A. did not have the properly qualified type of teacher. CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 18
end, the Court declares that on those 29 or more occasions that GDOE failed to provide L.A.
with a certified teacher-that is, a teacher meeting the stringent standards for teaching L.A., a
special education student-it violated the Adequate Education Act.
IV. CONCLUSION AND ORDER
In summary, the Court makes the following rulings:
The Court has subject matter jurisdiction as L.A. and G.D. filed claims strictly and
substantially in compliance with the Adequate Education Act and the Government Claims Act.
The Court may award both declaratory and injunctive relief.
Regarding AIJMS having a safe and healthful environment, the Court DENIES L.A.' s
Cross-Motion for Injunctive Relief, as AIJMS has a current, valid health permit. Moreover, L.A.
fails to establish as a matter of law that AIJMS did not provide a safe, healthful environment at
the time when it did not have a health permit. Accordingly, the Court DENIES IN PART L.A.'s
Motion for Declaratory Relief such that this claim does not proceed to trial, with the exception of
mold issues, as discussed below.
The Court GRANTS G.D.' s motion for summary judgment for declaratory, but not
injunctive, relief specific to the claim of OMS failing to be a healthful, safe, and sanitary
learning environment based on the DPHSS inspections and ratings for the six months prior to
filing his claim until OMS received a passing inspection grade.
On the issue of mold, the Court finds there are genuine issues of material fact and
therefore DENIES L.A. and G.D's motion for summary judgment for declaratory and injunctive
relief such that the existence of mold implicates the schools being a healthful, safe, and sanitary
learning environment. A trial schedule shall issue for a trial relative to whether there was or is CV0464-23 DECISION AND ORDER RE SUMMARY JUDGMENT MOTIONS Page 19
mold present at AIJMS or OMS, and if mold exists on those campuses, whether its presence is
such that it violates the Adequate Education Act.
On the issue of a certified teacher, the Court GRANTS L.A.'s Cross-Motion for
Summary Judgment for Declaratory Relief but DENIES her Motion for Summary Judgment for
Injunctive Relief.
SO ORDERED, 6 May 2025.
~~RlARTE Judge, Superior Court of Guam
Appearing Attorneys: Daniel S. Somerfleck, Esq., and Philip Tydingco, Esq., Guam Legal Services Corporation, for Plaintiffs Jesse Nasis, Esq., Matthew E. Wolff, Esq., and James Stake, Esq., Guam Department of Education, for Defendants