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Court filings violate privacy of boys in sexual harassment case, Huntsville school lawyer says

by Bill Bowden | September 28, 2021 at 6:46 a.m.
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Four paragraphs and two exhibits detailing sexual harassment among boys on a junior high school basketball team should be stricken from the public court file, according to attorneys for the Huntsville School District.

Besides being "immaterial to the allegations in the plaintiff's complaint," the information is "impertinent and scandalous in general," Charles L. Harwell, an attorney representing the school district, wrote in a motion filed Monday in Madison County Circuit Court.

Harwell's filing was in response to a July 28 lawsuit from Joey McCutchen, a Fort Smith lawyer representing Benjamin Rightsell of Witter.

McCutchen alleges the School District violated the Arkansas Freedom of Information Act by not informing the media about meetings of the Huntsville School Board to consider disciplinary action in the sexual harassment case. In the lawsuit, McCutchen also said that the school district failed to record and preserve the public portion of School Board meetings, as required by law.

McCutchen filed an amended complaint on Aug. 31 citing other instances in which he believes the school district violated the Freedom of Information Act.

In his filing on Monday, Harwell wrote that neither the exhibits nor McCutchen's four-paragraph background "have any relevance whatsoever as to whether the Huntsville School Board violated the open-meetings requirement of FOIA."

The two exhibits and paragraphs 6 through 9 -- which were included in McCutchen's original and amended complaints -- should be stricken or "placed under seal and out of public view," wrote Harwell.

Exhibit B to McCutchen's filing included a letter that was sent to some parents and a copy of a "Title IX Sexual Harassment Determination of Responsibility" report that was completed by school administrators after an internal investigation.

According to the Title IX report, the accused players had placed their "genitals in the faces" of several eighth- and ninth-grade boys who were being restrained by other boys in the locker room after games. The practice -- called "baptism" -- occurred several times during the basketball season, as well as the previous year, according to the report.

Two boys admitted to "baptizing" other players, according to the report. One of the accused boys said he was "baptized" when he was in the eighth grade by a boy who is now on the senior high basketball team.

Other boys were cited in the report for helping restrain the victims while they were being "baptized." Because they are underage and students, none of the boys' names was used in the report.

On May 3, the School Board met in back-to-back meetings and upheld the punishment recommended by school administrators for the two students. After an appeal, the board met again on May 19 and reduced the punishment for both boys from a one-year expulsion to one semester, according to McCutchen's complaint.

In an Aug. 25 answer to McCutchen's original complaint, Harwell wrote that the School District erred by not informing the media of the May 3 meetings.

Because the meetings concerned disciplinary matters, "the Defendants were mistaken in believing that no notice was required," he wrote in the filing.

The press wouldn't have been able to attend the disciplinary hearings because they were held in executive sessions under Ark. Code Ann. 6-18-507(d)(2)(A).

But notification that a meeting was going to take place is required under Arkansas Code Annotated 25-19-106(b)(2), according to McCutchen's suit.

Disciplinary matters can be discussed in executive session, but no decision made in executive session is legal unless the public body reconvenes and votes in public, according to state law.

The School Board reconvened after the executive sessions and voted in public, wrote Harwell.

Rightsell and McCutchen want the court to declare that the board violated the Freedom of Information Act and that future meetings will be held in compliance with the act. They also requested attorney's fees and expenses.

In Monday's motion, Harwell wrote that the Title IX report included by McCutchen as Exhibit B "contains information involving and concerning minor children that is extremely sensitive, personal, private and protected from public disclosure by law."

When read alongside McCutchen's Exhibit A, which was a July 21 Madison County Record newspaper article, "there is no room for doubt about the subject matter of the investigation and the segment of the school population involved in it," wrote Harwell.

In a brief supporting the motion, Harwell questioned whether McCutchen was "in it to humiliate schoolchildren" by including the exhibits and four-paragraph summary.

"The children and families who were involved in the Title IX investigation have a legal right to privacy," wrote Harwell. "They did not bring this suit and they did not ask to be further drug into the public sphere by the plaintiff, who apparently, insists on making this case about them and what happened to them. They deserve some measure of peace and rest."

On Monday, McCutchen said his court filings don't identify the basketball players involved, and they're only identified with one letter in the Title IX report, which the School District sent to several parents.

"We care about these children," said McCutchen. "We're trying to protect these children. I think this is nothing more than ink in the water by this school district to cover up what's been going on. There was no identifying information in these documents."

When asked about "ink in the water," McCutchen said it was a reference to a defense mechanism used by octopuses. He said the School District was trying to "divert attention away from their multiple admitted Freedom of Information Act violations."

"These children should have been protected back when they were getting sexually assaulted," said McCutchen. "The gravity of what's happened here in relation to these FOI violations speaks volumes."

Madison County Sheriff Rick Evans said his department conducted a criminal investigation into the allegations regarding the basketball players and passed the report on to Prosecuting Attorney Matt Durrett. Durrett said no information will be made public because the report involves minors.

Print Headline: District objects to lawsuit's details

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