A lawyer for the Hamilton County Board of Education denied interfering with an investigation into Ooltewah High School's sexual harassment culture following the 2015 rape of a student, but one board member said Tuesday he and his colleagues need more answers.
Scott Bennett never limited Courtney Bullard's probe into compliance by Ooltewah and Hamilton County with sexual harassment and bullying policies, according to a motion filed Sunday by other attorneys for the school board. If anything, Bennett asked Bullard to expand her review to "the full measure of problems facing the school system," the motion says.
But you wouldn't know it reading the 83-page motion that plaintiffs' attorneys for two student victims filed last week.
"Mr. Bennett reiterates that the scope of Ms. Bullard's investigation 'doesn't need to be limited to Title IX' and that a 'nonviolation of Title IX' ought not 'cover up a breach of duty,'" attorney Charles Purcell wrote in Sunday's motion. "The plaintiff fails to reference any of these statements because they do not fit within the false narrative filed with the court."
Title IX is the federal statute that protects students from sex- and gender-based discrimination, and violations could open up the school system to more liability as it litigates two civil suits from student victims in Chattanooga's U.S. District Court.
Sunday's motion is the first reaction to an explosive motion last week that claimed Bennett was floating defense theories to Bullard before she'd finished her 2016 report on Ooltewah to soften the school system's legal exposure. 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 these 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, and one had a pool cue forced up his rectum, puncturing his colon. In March 2016, the board commissioned Bullard, an attorney with Spears, Moore, Rebman & Williams P.C., to conduct an investigation into the school's culture, as well as the district's policies, following the rape.
Plaintiffs' attorneys and school board lawyers have grappled for months over that investigation.
On one hand, the plaintiffs' attorneys say Bullard's investigation was supposed to be independent of the board, and that 130 or so emails between her and Bennett throw that sense of independence into jeopardy. On the other hand, school board lawyers say Bullard's contract asked her to give legal advice and periodic updates to Bennett and board members.
Not everyone was convinced at the time.
"I wasn't against Bullard, I didn't know anything about her and didn't have any reason to," said Greg Martin, a then board member who voted against hiring her. "I just thought that if we were going to have an outside group look at [Ooltewah], then we needed to have someone outside of the community, as well as our system."
Three board members at the time declined to comment Tuesday about whether Bullard was hired to conduct an independent investigation or whether she was shielding the schools system from liability. A fourth, chairman Steve Highlander, said he couldn't see the implication the plaintiffs' attorneys were trying to make about Bennett.
District 3 board member Joe Smith said he read the Ooltewah report when he came onto the board. "And it seems to me today that there are questions about how independent it was," Smith said. "The board needs to get together with our attorneys as soon as an executive session can be arranged. We need more information. I know I do."
Executive sessions allow board members to meet privately with their lawyer — Bennett — to discuss issues covered under attorney-client privilege.
The question of whether schools systems are hiring people to investigate and defend them is playing out elsewhere, too.
Michigan State University wanted former U.S. Attorney Patrick Fitzgerald to investigate allegations in 2017 against sports doctor Larry Nassar, who was recently sentenced to 40 to 175 years in prison for sexual misconduct. According to a recent New York Times article, Fitzgerald's firm and team wer also charged with responding to litigation against the school.
"Michigan State led the public to believe that there had been an independent investigation," Tom Leonard, the Republican speaker of the Michigan House of Representatives, said in an interview, according to the article. "And then as we continued to dig into this, we found out it was not an independent investigation. It was an internal investigation to shield them from liability."
Ultimately, Bullard said Ooltewah's hazing training was "deficient" and she reported finding a culture of bullying and hazing during the 2015-16 season. She added the school system's then-Title IX coordinator wasn't reviewing compliance full time and that the responses and training by Hamilton County and Ooltewah were "inadequate in some areas, disjointed in others and overall in need of improvement."
Furthermore, a review of her drafts, emails and final report shows she didn't agree with Bennett on everything. In one email, for instance, Bennett said the rape of the physically injured freshman constituted a Title IX violation because it was severe and sexual violence.
When it came to the physically injured freshman, Bullard did not find a Title IX violation, concluding that officials took the appropriate actions in the aftermath to get him help.
Contact staff writer Zack Peterson at email@example.com or 423-757-6347. Follow him on Twitter @zackpeterson918.