NAPLES — The ACLU of Florida has sued the Collier County School Board, alleging it failed to comply with its repeated requests for public records about 10 North Naples Middle School students who held a "Kick-a-Jew Day" in 2009.
The lawsuit, filed this week in Collier Circuit Court, asks a judge to order district officials to make the public records available to the ACLU, which sought details about the 2009 incident that drew national attention and public scorn — and became an issue during school board races last year.
"At issue here is the duty of government agencies, including school boards, to comply with Florida’s open records laws that ensure transparency for the public," ACLU Legal Director Randall Marshall said in a press release. "This is about accountability."
"Floridians should be able to trust that their public schools are safe places for students," he added. "This lawsuit asks that the Collier County schools fulfill their legal obligation to provide information to sustain that trust."
The lawsuit was not public Thursday and did not show up during the Daily News' routine daily checks that morning because lawsuits can take 48 to 72 hours to process.
Jon Fishbane, the district's general counsel, said the district provided what it could under the law.
“Student disciplinary records are educational records and are thus exempt from disclosure pursuant to federal and state law," Fishbane said, referring to the Family Educational Rights and Privacy Act (FERPA) and Florida Statutes, sections 1002.22 and 1002.221, which mirror FERPA. "Parents have a right to privacy in their children’s educational records and we cannot release them without prior parental authorization to do so.”
The documents the ACLU requested involve a Nov. 19, 2009, incident in which the 10 middle school students imitated an episode of "South Park," a satirical TV comedy series about elementary school students in Colorado. The kids held a "Kick a Ginger Day" and kicked red-haired students, a satire on bigotry.
On Nov. 25, 2009, Douglas Wilson, president of the ACLU's Collier County Chapter, wrote to Fishbane, requesting all records that "constitute or describe the offensive conduct of the students in question, including all documents involved in any investigation of the incident."
District officials provided some documents, the lawsuit says, but none described what occurred and there were no memos or correspondence from school officials or the principal. The records also did not include how the students were disciplined or how the discipline was arrived at.
Although the ACLU didn't know if those records existed, the lawsuit says, district officials declined to make that clear, despite several requests.
The ACLU then requested that the district redact — delete — the students' identities, saying the district had "a duty to provide the records." However, those requests were ignored until Feb. 23 of this year, when Fishbane wrote Wilson to say the district would not produce disciplinary records, even without information identifying the students.
Fishbane's letter said there were no other records than the ones already produced, except for the disciplinary records.
"Plaintiff considers it unlikely that no such documents exist," the four-page lawsuit says.
The lawsuit notes that the state Public Records Act, Chapter 119, Florida Statutes, requires officials to redact confidential information and says the defendant is "obliged to redact the requested documents and produce them."
Attached as exhibits are the ACLU's Nov. 25, 2009, emailed public records request and letters dated Sept. 7, 2010, and Nov. 7, 2010, mentioning past emails and asking about the district's position on redacting the students' identifications. The letters warned that if the matter wasn't resolved, the ACLU would consider suing under the state Public Records Act.
In addition to requesting a hearing, the lawsuit asks a judge to award costs for filing the lawsuit and reasonable fees, which would include attorney fees and the $410 fee to file the lawsuit.
The case has been assigned to Circuit Judge Hugh Hayes.
"We are not interested in who the students are," said Wilson, an attorney who represents the ACLU with Marshall. "We are interested in how the district handled this incident."
"In fact, the actual discipline was positive and consistent with ACLU's opposition to zero-tolerance policies that result in automatic expulsion," he added. "But the complete lack of administrative documentation thus far concerns us about how other incidents will be handled in the future."
The students' punishment was one day of in-school suspension. District officials also called their parents and held parent conferences.
In December 2009, parents and others, including Temple Shalom Rabbi James Perman, complained to the school board, although the rabbi said he didn't believe it was an anti-Semitic incident. The board then voted to reinstate the district's diversity committee.
The incident did prompt other changes. Students at the school focused the first 20 minutes of each day on character traits, beginning with respect and kindness. Homeroom teachers were asked to discuss the traits and focus on preventing bullying. Officials also said they'd seek training videos on those issues.
The next year, school board candidates made religious tolerance and bullying an election issue.
The district's policy allows schools to keep student records confidential, except in emergencies or if records are subpoenaed. For bullying, the Collier County Student Code of Conduct, says punishment options include but aren't limited to suspension, in-school suspension, Alternative Placement, expulsion, and possible referral to "appropriate authorities" for criminal charges.
If a bullying incidents ends in a student getting charged with a crime, school board policy says parents of the victim can move their child to another school under the "Unsafe School Choice Option." The policy says the principal, or designee, shall phone or write the parent or legal guardian of all students involved the same day an investigation into the incident begins.
Depending on the incident's severity, the policy says parents must told about what’s being done to protect their child. The frequency of that notification would depend on the seriousness of the bullying or harassment and notification would adhere to federal privacy laws.