Hamilton County Board of Education attorneys have agreed to negotiate a potential settlement with one of the two Ooltewah High School 2015 rape victims. At the same time, as a rescheduled December trial date approaches, they intend to keep fighting the victims' claims that the school system showed deliberate indifference to the culture of hazing and bullying that led to their injuries.
About 30 minutes before a scheduled hearing Tuesday in Chattanooga's U.S. District Court, school board attorneys filed a motion asking Judge Harry "Sandy" Mattice to give them permission to appeal his 62-page ruling from earlier this month that essentially allowed the victims to bring two of their arguments to trial. Mattice said he planned to use Tuesday's hearing, among other things, to discuss possible settlement talks.
In their motion, board attorneys renewed an argument they've regularly made since 2016, when victims "Roe" and "Doe" filed lawsuits against the board in connection with the Gatlinburg, Tennessee, trip that left one student in need of emergency surgery: Did the board have "actual knowledge" of the alleged hazing and bullying that happened before the December 2015 team tournament?
If a higher court, specifically the 6th Circuit Court of Appeals, agrees to overturn Mattice's decision, that could help end the case for the school board.
Neither the judge nor the victims' attorneys had a chance to read the motion before Tuesday's hearing, which largely dealt with whether it made sense to appeal Mattice's ruling before the case went to trial or was settled.
Douglas Fierberg, an acclaimed Washington, D.C.-based attorney whose firm represents victims of school-related abuse, including "Doe" in this case, said any appeal should happen after a possible trial.
Ultimately, Mattice said he wants Fierberg and other victims' attorneys to respond before he rules on the board's request. He set a new trial date for Dec. 11 and dismissed all outstanding motions. The trial was previously scheduled to begin Monday, but Mattice canceled that date in July.
At this rate, the case may not make it to trial.
Board attorney Chuck Purcell said Tuesday he agreed to mediate a possible settlement for "Doe," the rape victim who was hospitalized for six days due to injuries to his rectum and bladder from a pool cue. Purcell said he would not agree, however, to negotiate with Roe, who was prodded with a pool cue but managed to escape being penetrated. Purcell has previously said "Roe" has "no real damages," partly because he didn't have physical injuries.
"Roe" and "Doe" are two of the four students who said older classmates attacked them with pool cues during a December 2015 trip to Gatlinburg, Tennessee, for a basketball tournament.
In a civil case, attorneys often ask a judge to rule in their favor based on the facts and evidence to date. Those requests are called a "motion for summary judgment," and both sides filed them earlier this year. At the root of many of these legal arguments was the question of whether the school district showed "deliberate indifference" to the students before and after the attack, as attorneys for Roe and Doe alleged.
For proof, their attorneys pointed to student surveys that showed widespread bullying at Ooltewah, an independent investigator's report that concluded Ooltewah had a culture of hazing and deficient district policies, and emails in which then-school principal Jim Jarvis claimed there was only one victim even though four students said they were attacked in some fashion with a pool cue.
In their counter, board attorneys said victims didn't tell administrators about any hazing or bullying before the attack. After the rape, the district disciplined the attacking students, allowed the victims to transfer to other schools and hired an investigator to look into the situation and evaluate the district's policies.
Showing "deliberate indifference" is one of the cornerstones of Title IX, the federal law that says no student shall be discriminated against on the basis of sex or gender. Victims' attorneys say the board violated Title IX in this case. In his 62-page ruling, Mattice said any "moral blunder" by the district or its employees didn't amount to deliberate indifference post-attack.
But Mattice did leave the door open for Roe and Doe to argue that the board showed indifference pre-attack. He also said victims' attorneys can discuss a civil rights claim that a "failure to train" district employees resulted in their injuries.
Contact staff writer Zack Peterson at email@example.com or 423-757-6347. Follow him on Twitter @zackpeterson918.