FAYETTEVILLE -- A court motion filed Monday seeks to seal the proceedings in a federal lawsuit against the Huntsville School District alleging that members of a boys basketball team were sexually abused.
The motion, filed by the school district, says the case should be sealed to protect the identity of the victims and other children involved.
"The unfortunate reality is that the only way to protect all of these children from the consequences of decisions adults make is to seal these proceedings in their entirety," according to the motion. "No live testimony and no record of this case -- be it a pleading, motion, brief, court order or otherwise, should be open to the public without a prior order of this Court."
The lawsuit was filed last month in U.S. District Court in Fayetteville by Rebecca Nelle on behalf of her child, identified as B.N.
In her suit, Nelle said the 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.
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 claims that a hostile education environment was created that denied B.N. and other students access to educational opportunities.
The district has denied liability and the allegations in Nelle's complaint. The district has also denied that school officials knew of the abuse and did nothing about it.
The school district is also seeking a gag order to prohibit attorneys and participants in the case from talking to the media or discussing the case on social media in an effort to limit pretrial publicity. The motion contends that attorneys for the plaintiffs are attempting to try the case in the media.
In the motion to seal, the school district argues that Nelle's complaint includes information that could be used to identify every child involved.
"B.N.'s exact identity is known or knowable with surgical precision by a person with reasonable intelligence reading the Plaintiff's Complaint," according to the motion. "Likewise, the Plaintiff uses similar methodology to identify six alleged child perpetrators by initials and then goes on to say that as many as 17 members of the boys' basketball team may have been victimized."
The motion argues that Nelle identified herself, and by initials, her own child and six alleged perpetrators, and others can also be identified because of the complaint.
"She has, for all practical purposes, identified every other child who was involved in these events, as alleged," according to the motion. "She cannot make that decision for the other children and their families."
Both state law and Title IX require the identities of child victims, their families, perpetrators, witnesses and others, including those making a report, be kept confidential, according to the motion. The district argues that the requirement extends to judicial proceedings.
A district court's decision to seal records must balance various interests, according to the motion.
"In this case, the interests are, on one side, the public's generalized interest in open court proceedings -- a compelling interest, to be sure -- versus the right of the children and their families to privacy, peace and an opportunity to heal," according to the motion.
The motion contends that anyone could easily eliminate 99.98% of the school population and identify all of those involved in any role -- abusers or victims -- using readily available material, including team photos, rosters, yearbooks, score books, social media posts and other open sources.
"Each of those children and their respective families are entitled to privacy," according to the motion. "The minor children who are survivors of these terribly private, embarrassing, humiliating events risk precise public identification -- without their names being published. Survivors risk further humiliation, embarrassment and degradation. Alleged perpetrators will forfeit the opportunity to make amends and rehabilitate in private."
The motion also argues that victims and their parents might refuse to participate in law enforcement investigations for fear they will not be able to remain anonymous.
According to Nelle's suit, freshman 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 by older basketball players. He was then threatened if he told school authorities or his parents.
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.
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October 26, 2021 at 04:39PM
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District: Seal sex-abuse case - Northwest Arkansas Democrat-Gazette
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