Arkansas Democrat-Gazette

Admit sex-abuse liability, suit gone, district offered


A settlement offer has been made in a federal lawsuit against the Huntsville School District over sexual harassment and sexual assault allegation­s regarding boys on the middle school basketball team.

Joey McCutchen and his law partners will waive attorney fees and dismiss the case if the school district pays Rebecca Nelle $1 and admits liability. Under the agreement, she wouldn’t be able to refile the suit later.

Nelle filed the lawsuit Sept. 10, 2021, on behalf of her child, identified as B.N.

In her suit, Nelle said the school district knew that students on the boys middle school basketball team were being sexually harassed and sexually assaulted by older boys and did little or nothing to stop it.

In a memo Friday to the Huntsville School Board, its attorney, Charles L. Harwell, advised against accepting the offer.

“I told the Plaintiff’s attorney that the requiremen­t of an admission of liability was such a significan­t problem, I could not recommend settlement proposal to the Board, even though it is otherwise a very practical and attractive offer,” Harwell wrote in the memo.

Admitting liability is a twofold problem, wrote Harwell. It can be used in litigation arising from the same events.

“First, the locker room incidents which are the basis of this federal lawsuit occurred during the 2020-21 basketball season,” wrote Harwell. “Additional­ly the Title IX investigat­ion done by the District revealed that similar incidents happened during the 2019-20 basketball season. The statute of limitation­s has not run on claims that other victims could bring relating to those incidents. If the District admits it was liable in the Plaintiff’s case, it means that the District could not deny liability for any additional cases that might be brought before the statute of limitation­s would bar such a claim. …

“Candidly, an admission of liability is very likely to cause others to file suit. So instead of closing the book on these terrible acts, it may be opening the flood gates of litigation.”

The second problem with admitting liability, wrote Harwell, is the school district “is forever cast as a ‘wrongdoer’ and that admission will likely be placed into evidence in any future discrimina­tion case (now I am referring to cases based on something other than the locker room incidents) in an attempt to show the District is a bad actor. … This too adversely impacts the ability of the District to defend itself. It may also encourage others to file suit against the District.”

The School Board will have a special meeting Monday night to discuss the proposal. After elections this past spring, only one member of last year’s School Board remains on the board.

The trial is scheduled for Feb. 13.

Nelle’s lawsuit cites Title IX of the Education Amendments of 1972, which ensures that all students — male and female — have access and equality in education. It offers a wide range of protection related to athletics, admission, housing and sexual harassment, among others.

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.

According to the suit, ninth grade players on the team would “engage in forcible sexual assault” by holding an eighth grade team member down while others assaulted them.

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 an amended complaint, at least 17 middle school or high school players were victimized and at least one student paid another student not to abuse him.

The district has denied liability and allegation­s in Nelle’s lawsuit. The district also has denied school officials knew of the abuse and did nothing about it.

“The District has several strong defenses to this case,” Harwell wrote in Friday’s memo. “The District is not liable for the actions of students unless it knew about the incidents and did nothing about them. We believe the facts will show that the District first found out about these hideous locker room antics in February of 2021 and immediatel­y launched an investigat­ion. No other incidents occurred after the District found out.

“There are those in the community who want to find fault with the manner in which the investigat­ion was done, but it was done in accordance with the federal regulation­s which were put in place during the Trump administra­tion,” wrote Harwell. “Those regulation­s give more protection to the students who are alleged to be the perpetrato­rs. The result is the process is long and drawn out. This resulted in dissatisfa­ction in a number of circles, but none of that means that the District violated Title IX.”

Reached by telephone while on vacation in South Dakota late Friday afternoon, McCutchen couldn’t say much.

“By order of the court, I cannot comment on the evidence and I will not do so,” he said. “But what I will comment on is this School Board meeting, this special meeting, needs to be 110% transparen­t. Every parent, every citizen who wants or needs to speak on this matter should be allowed to do so.”

According to Harwell’s memo to the School Board, the settlement offer would require the School District to provide Title IX training to all staff.

“The Administra­tion had arranged for this training prior to receiving this proposal,” wrote Harwell. “It is to take place on August 8.”

Also, according to Harwell’s memo, “The education records which were provided by the District to Plaintiff’s attorney under a protective order signed by the federal judge will be returned or destroyed. In addition, the Court’s protective order will be made permanent so that these student records will remain confidenti­al as required by federal law.”

A settlement conference is scheduled for Sept. 15.

“If the case is not resolved at that conference, we will likely file a motion with the Court called a summary judgment motion,” wrote Harwell. “This motion typically seeks to have portions or all of the case dismissed because the undisputed facts cannot satisfy the requiremen­ts of the law (Title IX). We will ask the Court to find, as a matter of law, the case should be dismissed. The deadline to file that motion is October 19. If that motion is denied, then the case proceeds to trial.”

The School Board will have a special meeting Monday night to discuss the proposal. After elections this past spring, only one member of last year’s School Board remains on the board.

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