Judge's ruling in Ooltewah rape civil cases puzzles some Hamilton County school board members

The exterior of Ooltewah High School photographed on Sunday, January 31, 2016. (Staff file photo by Maura Friedman)

A federal judge took aim Wednesday at Hamilton County Board of Education attorneys, saying they "wasted the court's time" by refusing to disclose evidence in a pair of civil cases filed by Ooltewah High School rape victims.

The ruling has some board members mystified about what's happening with the litigation.

U.S. District Magistrate Judge Christopher Steger said he didn't need to privately review the five sealed emails board attorneys gave him because that evidence clearly fell under a ruling he made last month.

Board lawyers must furnish those five emails today to their opponents: Plaintiffs' attorneys who say lawyer Scott Bennett worked to shield the Hamilton County Schools system from liability by "floating" defense theories to outside investigator Courtney Bullard before she finished what was supposed to be an independent report on the district and Ooltewah's compliance with sexual harassment policies after the 2015 rape.

"It is difficult to imagine how the board's counsel could have reviewed these emails and reached the conclusion that these emails did not constitute 'communications to or from Attorney Bullard,'" the magistrate judge wrote.

Steger's tone is likely due to a ruling he made last month: Board members waived attorney-client privilege in August 2016 when they voted to release Bullard's report, and the board's attorneys had to turn over any underlying materials that Bullard created while she commissioned the report, including 130 or so emails she and Bennett exchanged.

If board lawyers felt some emails didn't fall under his ruling, Steger said they could submit them for private review, which they did last week. Around the same time, plaintiffs' attorneys attached some of the emails they'd already received to an explosive motion that said Bullard's 2016 report couldn't be independent since she was "openly collaborating" with Bennett and therefore investigating and defending the district.

Board attorneys have vehemently denied that argument. If anything, they say, Bennett asked Bullard to expand her investigation beyond Title IX and look at all of the problems facing the district. Title IX is a federal statute that protects against sexual discrimination in education, and any violations could open the school system up to more liability.

Since they filed suit in 2016, plaintiffs' attorneys have argued Hamilton County Schools has a history of covering up male sexual abuse, and that it failed to protect two students from physical and emotional violence on Ooltewah's school basketball trip to Gatlinburg, Tenn., in December 2015. Four freshman students say they were attacked on that trip, with one having a pool cue forced up his rectum, puncturing his colon.

When they first began defending the board in 2016, board lawyers denied all liability under Title IX, plaintiffs' attorneys said, and that was interesting because Bullard found Title IX violations for one of their emotionally injured students but not the rape victim.

"The plaintiffs confront a situation where [Hamilton County Department of Education] is disagreeing with the findings of its own commissioned investigator, Ms. Bullard, whom [Hamilton County] would later name as its expert," attorneys Eric Oliver, Justin Gilbert and Monica Beck wrote in a motion Wednesday, filed before Steger's order. "To say this is an unusual strategy would be an understatement."

That issue is likely to be a future point of debate in the case. But on Thursday, three school board members said they didn't have a clear understanding of the litigation or the debate surrounding Bullard's report. At least one asked to have an executive session as soon as possible so they can discuss in private what's happening with their lawyer, Bennett.

"I have asked our board chair to get the board together with our attorneys as soon as possible in an executive session because at this point I need some more information," said District 3 board member Joe Smith. "If possible, I'd have it this afternoon."

District 1 board member Rhonda Thurman echoed that sentiment.

"I don't know how much the chairman [Steve Highlander] knows, but I know very little," she said. "It would not surprise me if we did have an executive session at our next meeting [Feb. 15]."

Highlander said public notice is not required for executive sessions because the information discussed is private. He said board members have gone into executive session at least three times since August 2016. There have been a few pivotal events since that time: the Woodmore bus crash on Talley Road in November 2016 that killed six, as well as the ongoing Ooltewah litigation.

Highlander said he was aware of another change that happened Wednesday night: Bennett started his own firm with attorney Mary DeCamp, leaving Leitner, Williams, Dooley & Napolitan PLLC.

Highlander said he had done his homework and consulted with the state board attorney as to how the board was required to proceed with Bennett's shift. Since the contract with him is a standing contract, either party can renegotiate it at any time, but Highlander doesn't predict the board will do so.

"We are in the middle of so much and he would still be responsible for ongoing issues," Highlander said. "It would be really difficult it could cloud the litigation."

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zack peterson918.

Contact staff writer Meghan Mangrum at mmangrum@timesfreepress.com or 423-757-6592. Follow her on Twitter @memangrum.

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