District wants judge to deny paper’s motion

Accused could be identified in print, according to response

HUNTSVILLE — The Huntsville School District wants a federal judge to deny The Madison County Record’s motion to intervene in a case involving allegations of sexual abuse among boys on the middle school basketball team.

The school district said the weekly newspaper could reveal the identities of minors involved in the case.

In a court filing, the Record’s owner, Ellen Kreth, said the paper “has made an editorial decision not to identify the victims or their families and will continue to protect their privacy but the public should have an opportunity to access the pleadings and to attend court proceedings which concern their children and the elected school board.”

But there is nothing to prevent Kreth from changing her mind, Matthew L. Fryar, an attorney for the school district, wrote in a response filed Thursday in federal court in Fayetteville.

“Furthermore, Ms. Kreth’s Affidavit makes no such statements with regard to protecting the privacy of the alleged perpetrators of these acts, who are entitled to the same protections as any other juvenile,” wrote Fryar.

The minors’ right to privacy “greatly outweighs” the newspaper’s common law right to access judicial records, according to Fryar.

“This case involves sensitive facts about minor children who have been either accused of or the victims of fairly serious acts of sexual harassment and sexual abuse,” wrote Fryar. “Litigating this case will necessarily require detailed discussion of those acts, along with identification by name of the minors.

“It is entirely plausible that one or more of these children will be required to testify and, in such testimony, be asked to describe what happened to them and who did it. For the sake of these children (both the accused and the victimized), the Defendant asks the Court to seal this case.”

U.S. District Judge Timothy L. Brooks has sealed the initial complaint in the lawsuit pending the resolution of a motion to seal the entire case.

Rebecca Nelle filed the lawsuit Sept. 10 on behalf of her child, identified as B.N. Boys on the basketball team were identified by their initials in the complaint, as they were in a Title IX investigation report drafted by school officials and distributed to parents of the players.

Nelle is represented by Joey McCutchen, a Fort Smith lawyer.

In her suit, Nelle said the school district knew that 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.

According to the suit, ninth- grade players on the team would “engage in forcible sexual assault against multiple boys’ Middle School players by having one or more students holding an eighth-grade team member down while one or more Middle School basketball players would engage in what was called ‘baptism’ and ‘bean dipping.’”

“Baptism,” according to the lawsuit, “refers to the placing of one’s genitals on the face and/or in the mouth of another student. ‘Bean-dipping,’ as the term is used in this complaint, refers to placing a student’s rectum and anus on the face and particularly the nose of another student.”

B.N., according to the lawsuit, was abused on 14 occasions while being held down against his will by older basketball players at the school. He was then threatened with retaliation if he told school authorities or his parents of the abuse, the suit said.

According to the lawsuit, at least 17 middle school or high school players were victimized and at least one student paid another student not to abuse him.

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 that a hostile education environment was created that denied B.N. and other students access to educational opportunities.

On Oct. 22, the Huntsville School District filed a motion to seal the case and a second motion seeking a gag order to prohibit attorneys and participants from talking to the media about the case or talking about the case on social media in an effort to limit pretrial publicity.

Through its attorneys, John E. Tull III and Noah P. Watson, The Madison County Record filed a motion to intervene Oct. 27.

“The parents whose children attend the District and the community as a whole have interests in these proceedings,” according to a brief in support of the motion to intervene. “Many of them keep informed by reading the Record. The District’s motion to limit pretrial publicity will harm the Record’s, the parents’ and the community’s interests in public access to the courts.”

“Here, the Record does not seek to litigate this case on the merits,” the brief said. “Instead, it wishes to intervene for the limited purpose of protecting the public’s right to the judicial proceedings, including the public statements of counsel and parties.”

McCutchen also has filed a lawsuit against the Huntsville School District in Madison County Circuit Court. That suit alleges violation of the Arkansas Freedom of Information Act for, among other things, not notifying the media of School Board meetings to consider disciplinary action against students involved in the sexual harassment case.