Collier judge dismisses ACLU's 'Kick A Jew Day' lawsuit

— A two-year battle for Collier County school records detailing a "Kick a Jew Day" incident at North Naples Middle School in 2009 came to an end this week, after a judge dismissed a lawsuit filed by the ACLU.

On Tuesday, Collier Circuit Judge Hugh Hayes dismissed a lawsuit filed in April by the American Civil Liberties Union of Florida, which sought all records detailing the "offensive conduct" by the 10 students and the district's investigation.

The judge dismissed it "with prejudice," meaning the ACLU cannot refile it, but can head to the Second District Court of Appeal.

Hayes told the ACLU's attorney, Douglas L. Wilson, and James Fox of Roetzel & Andress, who represented the board, he was restricted by prior courts' decisions, but suggested they use specific language in the order they submit for him to sign so the appeals court will consider it.

"I feel like the Legislature has gotten a little too liberal or possibly lax in its own interpretation of what is privileged and what is confidential," Hayes said.

The legal battle stems from Nov. 19, 2009, when students imitated an episode of "South Park," a satirical TV series in which kids kicked red-haired students "Kick a Ginger Day," a satire on bigotry. It drew national attention and public scorn — and a one-day, in-school suspension for the students.

Once Hayes signs a final order, the question of whether students' education records are confidential — even if student identifiers are deleted — could be clarified by the appellate court.

The three-judge panel could decline to hear the appeal or issue a decision and possibly certify it as "a question of great public importance." It would then go to the state Supreme Court, which could clarify the state constitution and state laws involving education records, public records and student confidentiality.

The state's highest court already declined to hear a similar case involving disciplinary incidents on Seminole County school buses.

In June, after the Collier County School Board filed a motion to dismiss, Hayes allowed the ACLU to amend its lawsuit to overcome the "education records" prohibition and further define what it sought. He suggested Wilson remove the word "records" and say "emails, documents, correspondence" or other words.

He agreed with Fox's argument that courts have interpreted state laws and the Family Educational Rights and Privacy Act — or FERPA, a federal law that protects the privacy of student education records — to say that even if a student's identifying information is redacted — deleted — districts are prohibited from releasing "educational records" without the student's or parent's permission.

Federal law doesn't bar it, but the district could lose education funds.

The ACLU didn't remove the word "record" and argued once information identifying the students is deleted, the documents are no longer considered education records and should be made public.

Wilson, president of the ACLU's Collier County Chapter, began seeking records days after the incident from District Attorney Jon Fishbane.

He obtained a few, but even after repeated requests, none fully described what occurred and there was no correspondence from school officials or the principal, or details about what discipline was deemed appropriate and how students were disciplined.

He asked the district to redact — delete — students' identities, saying the district had "a duty to provide the records," but heard nothing until Feb. 23, when Fishbane said he wouldn't provide any disciplinary records and no other records existed.

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