COLLIER COUNTY — A Collier County judge will allow a lawsuit against the Collier County School Board to continue, but only if the ACLU of Florida amends its complaint.
Circuit Court Judge Hugh Hayes denied the Collier County School Board’s motion to dismiss the lawsuit Wednesday. 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.
Instead, Hayes asked the board to file a motion for a more definitive statement and gave the ACLU of Florida 30 days to amend its complaint.
The lawsuit 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.
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 Collier County School District Attorney Jon 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.
Attorney Jim Fox, who was representing the Collier County School Board, told Hayes that the district provided the ACLU with the documents it requested, except the student disciplinary records, which are confidential.
“An agency ... or a public school, center, institution, or other entity that is part of Florida’s education system ... may not release a student’s education records without the written consent of the student or parent to any individual, agency, or organization, except in accordance with and as permitted by the (Family Educational Rights and Privacy Act),” according to Fox’s motion to dismiss.
“Do we want the ACLU to have the right to obtain a student’s records without a student or parent’s consent?” he said.
Fox said giving the ACLU access to the records would “eviscerate” all rights of privacy for the students and their parents.
Wilson disagreed. He said student privacy would not be violated because the ACLU simply wanted to see what discipline the students received. Once the confidential student information was redacted, he said, the documents were no longer confidential.
“(Former Collier County Superintendent) Dr. (Dennis) Thompson responded curtly and coldly to parents who inquired what happened to these students. What was done? What direction was given?” he said.
Hayes said the answer was not simple in the case. He said he expects the documents will eventually be given to the court for an “in camera review,” in which a judge looks at the documents and determines if they can be released.
That said, Hayes said he had concerns with the way the complaint was currently written.
“You say records and later on documents. Records have different meanings than documents,” he said.
Hayes said the ACLU can amend its complaint to better define records or documents, which would allow the court to move forward with a decision on the matter.
Connect with K-12 education policy reporter Katherine Albers at www.naplesnews.com/staff/katherine-albers/.