HAMPTON, Va. (WAVY) — Nikia Miller says her daughter’s horrors happened over a year and a half in an elementary school bathroom.

The school district and school board say they took appropriate action, but Miller plans to sue.

“Hampton City Schools has shown me how much they are not concerned with my daughter’s welfare,” Miller said during the comment period at a recent meeting of the Hampton School Board.

Miller says she received a call in March of last year from the principal of John Tyler Elementary about her daughter.

“He proceeded to tell me that another student in the school had sexually assaulted her. It wasn’t one. These were numerous assaults,” she said.

It began when her daughter was almost 6, her alleged attacker was 7.

“She has repeated anxiety attacks and panic attacks,” and Miller says during those attacks, her daughter will scream the other child’s name.

“She has to go to therapy once a week. She has PTSD. This will probably last well into adulthood,” Miller said.

Miller had an attorney notify the Hampton School Board of her intent to sue for failure to properly protect her daughter.

“It’s really frustrating and angering and disappointing that we have to go down this road.”

The board’s attorney, Richard Matthews, responded in part: “In my opinion, even taken in the light most favorable to your client, the facts simply do not represent a case which under Virginia law can impose liability upon the Hampton School Board, or any of its employees… Incidents such as what appear to have occurred here are, of course, unfortunate. However, they are not the legal responsibility of the School Board.”

The school system says Tyler Elementary took immediate action, made a thorough investigation, that the situation was appropriately addressed, and called Miller’s account “not factually correct.”

Commonwealth’s Attorney Anton Bell says the case wasn’t prosecuted because it’s virtually impossible to know what’s in the minds of children at such a young age.

“You have to show that their intent was to break the law,” Bell said. “It’s extremely hard to show that a child understood fully that what they were doing was breaking the law, and having a full understanding of what they’re even doing.”

In a report, a detective said that he had enough probable cause for charges, but Bell says that determination is the job of magistrates and his office, and not detectives.

Miller moved her daughter to another school in the city, but says there’s no safeguard in place to keep her attacker from making the same transfer, putting her daughter in jeopardy once again.

“That’s my worst fear.”

The family contends that at least 10 separate incidents occurred in the school restroom over the 18-month period.

Miller is demanding that Hampton Schools pay for private education through 12th grade (estimated at between $185,000-$255,000) as well as the cost of therapy for her daughter. In addition, she wants Hampton City Schools to monitor bathrooms more closely, and have an annual conversation in each city school, kindergarten thru 12th grade, about sexual assault with parents having the ability to opt-out.

“It’s needed that children understand bad touching,” Miller said.

In a letter to Miller, the school board’s attorney said it did offer to assist with counseling for her daughter and the offer remains, but Miller says they never followed through.

The school district would not go into details about what happened with the older child. However, Bell said that “her parents complied and had her go through with everything that they said they would do,” and there have been no further incidents.

Both Bell and Miller agree that therapy and not incarceration was the proper resolution for the older student.