FAYETTEVILLE -- A federal judge has refused to impose a gag order or close all of the proceedings to the public in a lawsuit against the Huntsville School District that claims members of a boys basketball team were sexually abused.
The lawsuit, filed in U.S. District Court in Fayetteville by Rebecca Nelle on behalf of her child, identified as B.N., claims the school district knew students on the boys middle school basketball team were being sexually harassed and assaulted by older boys and did little or nothing to stop it.
The complaint alleges federal Title IX violations arising from deliberate indifference to and actual knowledge of sexual harassment and sexual assault of multiple students; the district's failure to promptly and properly investigate reports of sexual harassment; and claims a hostile education environment was created that denied B.N. and other students access to educational opportunities.
Title IX of the federal Education Amendments Act of 1972 is a law to ensure all students -- both male and female -- have access and equality in education. It offers a wide range of protection from athletics and admission to housing and sexual harassment.
The Madison County Record newspaper was allowed to intervene in the case to oppose the gag order, which was sought by the district.
The district has denied liability and allegations in Nelle's lawsuit. The district has also denied school officials knew of the abuse and did nothing about it.
The district filed motions to prohibit attorneys and participants in a lawsuit from talking to the media about the case or talking about the case on social media in an effort to limit pretrial publicity. The motion contended attorneys for Nelle are attempting to try the case in the media, which could taint the jury pool.
The school district also asked the court to seal all documents filed in the case and close all live proceedings to the public to protect the identity of the victims and other children involved.
In his Wednesday order, U.S. District Judge Timothy L. Brooks said he recognizes the compelling need to protect both the district's right to a fair trial and the confidentiality of the students and parents involved, but had to weigh those needs against the participants' First Amendment right to comment on the case and the public's right to view the proceedings.
"Given these competing interests, the court will neither prohibit all pretrial publicity nor seal this case in its entirety," Brooks wrote. "Instead, it orders a solution narrowly tailored to balance the interests at stake."
Motion to seal
Brooks said the public's right to access both civil proceedings and judicial records are subject to limitations to protect legitimate privacy interests. He added reasonable alternatives must be considered.
"Therefore, any solution to protect students' privacy interests should only be as restrictive as necessary," Brooks wrote. "Sealing the entirety of these proceedings, as the school district urges, is overbroad. That sweeping remedy would bypass reasonable alternatives and unnecessarily infringes on the public's right of access."
Brooks will require the use of an identification key, accessible only to the attorneys and the judge, to mask the names of students and parents involved. Filings can also be redacted, Brooks said.
The school district had argued redaction does not go far enough because Huntsville is a small town and those involved could still be identified. Brooks noted the allegations had been reported in the newspaper for months prior to the lawsuit being filed and the same inferences could be made by reading the paper.
"While the court will not allow on- the-record identification of minors, sealing the entire case to prevent disclosure of already public facts would be an abuse of this court's discretion," Brooks wrote.
If some future filings would obviously identity an individual intended to be anonymous, the sides can ask to file those documents under seal, Brooks said.
Where the editing of names is not possible, documents must be redacted and the document filed unsealed. An unredacted version of the document should also be filed under seal, Brooks said.
Brooks also declined to close live proceedings for now.
"Much of this case can be heard publicly without identifying the minors involved, and, when specific individuals must be identified on the record, the identification key system will protect anonymity in open court," Brooks wrote. "There may come a point when identifying facts cannot be avoided and closure of an otherwise public proceeding therefore becomes necessary."
Brooks said prior comments made by Joey McCutchen, Nelle's lawyer, have largely been undisputed statements of fact and reciting of the facts in the complaint. A comment about seeking criminal charges against school employees can be remedied by questioning prospective jurors to screen out those who've made up their minds.
"At this point, there is insufficient cause to limit pretrial publicity by the attorneys in this case," Brooks said, noting that prior restraints on free speech are disfavored by courts.
Even so, Brooks reminded McCutchen that he should be careful about his public comments in the future because there are restrictions on what attorneys can say. Brooks said if future comments are made to the media that he considers prejudicial, he may be forced to impose a gag order to ensure a fair trial.
Prior restraint
The judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful. In U.S. law, the First Amendment severely limits the ability of the government to impose prior restraint. Prior restraint issued by a court must be narrowly tailored and burden no more speech than necessary.
Source: Staff report
