It has the appearance of impropriety, and that's the last thing the Hamilton County Board of Education needs.
We're talking about emails that suggest school board attorney Scott Bennett tried to interfere with the conclusions of what was supposed to have been an independent report on the school district's and Ooltewah High School's compliance with sexual harassment policies following a December 2015 assault case involving Ooltewah High School basketball players.
The emails came to light recently as motions are being heard involving lawsuits filed over that incident.
Now, just as they felt they were kept in the dark about details of the initial incident in Gatlinburg, Tenn., during a basketball tournament, board members said they were uncertain about what Bennett may have done or not done, and why.
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"I need some more information," said District 3 board member Joe Smith, who was not on the board when the initial incident took place.
"I know very little," said District 1 board member Rhonda Thurman, who was on the board at the time.
That's the same thing board members said after news of the rape of one player and harassment of others trickled out. Initially, then-Superintendent Rick Smith and Bennett kept information close to the vest. Board members said they felt at a loss as to what to tell their constituents.
That lack of communication led to sagging support for Smith and ultimately to his resignation.
It couldn't have come at a worse time, either. The district already was reeling from continued low standardized test scores and a withering review from the state on its plan for its most struggling schools.
Thursday, in an executive (non-public) session, board members had their opportunity to have their questions answered and to learn about the consequences of two recent judicial rulings that denied board attorneys more time to depose three expert witnesses and said attorneys "wasted the court's time" by refusing to release evidence that clearly fell under a previous order.
Thurman, for her part, said she "tries [her] best to stay out of it. We'll get all the facts at some point. This is why we pay attorneys."
Although Thurman is correct that "we have no say in it," the board's reputation is on the line. After all, although individual members aren't at risk in the Ooltewah lawsuits, the board is.
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We're a little mystified, too, why yesterday's executive session was the first for the body since the beginning of the 2017-2018 school year. Although many of the board members have other jobs, we believe the board should have sought periodic updates from school board attorneys on the cases — if nothing more than to obtain answers to any questions they had.
The appearance of impropriety involving Bennett had its origins in his sound suggestion to the board that, in order to find out more about the culture of Ooltewah High, and its and the district's sexual harassment policies, the board hire an independent attorney to investigate and file a report. The board did so in March 2016, hiring Chattanooga attorney Courtney Bullard to do that work.
When board members waived attorney-client privilege in August 2016 by voting to release the independent report, any correspondence involved in the investigation of the case became fair game and naturally was requested by attorneys for the plaintiffs in the lawsuits.
Since then, exchanges between Bullard and Bennett have been seen in two different lights — the two "openly collaborating" in order to shape the scope of the investigation and in turn reduce the potential culpability of the board (by plaintiffs), and the two corresponding in order for her to give — as requested in her contract — legal advice and periodic updates to the board (by the board's attorneys).
The plaintiffs' lawyers claimed Bennett floated defense theories to Bullard in order to soften the district's "legal exposure," while school board attorneys say Bennett intended her to investigate "the full measure of problems facing the school system."
Although board attorneys originally denied all liability under the federal Title IX statue (that protects against sexual discrimination in education), Bullard found that a violation occurred in the case of one of the harassed — and emotionally injured — players but not in the case of the one who was raped with a pool cue.
However, Bennett, according to plaintiffs, had suggested Bullard to "suppose" the assaults didn't amount to a Title IX violation because they weren't motivated by sexual gratification and weren't sexual violence under Tennessee law (and thus not a Title IX violation).
Her report also found Ooltewah High's hazing training was "deficient" and that a culture of bullying and hazing did occur during the 2015-2016 basketball season.
Any Title IX violations could open the board to more liability.
Going forward, we hope school board members remember the lack of communication that marked the early weeks of the Ooltewah case and always seek to be fully informed about the cases and individuals whose dealings may give them even an appearance of impropriety.