A Vermont Superior Court judge will soon decide whether a hazing victim’s parents can access Essex High School records related to their negligence lawsuit.
As detailed in last week’s Essex Reporter, the suit says the district knew or should have known members of the boys hockey team targeted the victim during his freshman year. To protect the victim’s identity, The Reporter is withholding his and his parents’ names.
Monday’s motion hearing focused on several subpoenas seeking confidential high school and family court records that the parents’ attorney says will demonstrate the district’s failure to protect the victim from multiple instances of “assault, sexual assault and other forms of bullying and hazing.”
One of those subpoenas seeks unredacted documents from 2010-16 involving the team, including disciplinary records, investigative reports and any statements related to the allegations in their complaint.
Attorney Hillary Borcherding said those records, which will shed light on what the high school knew about previous misconduct, are in the district’s “exclusive possession.”
“It appears to be a legal position,” she said of the district’s refusal, “not necessarily one built off the facts of the case.”
The lawsuit names Union No. 46 School District, its school board and the Chittenden Central Supervisory Union as defendants. Those entities dissolved last year and now are governed by the Essex Westford School District.
Speaking for the district, attorney Sean Toohey said the defendants provided documents for only the 2015-16 school year because that’s when the victim was on the team. He said records before then aren’t relevant because those students have no relationship to this case.
FERPA, the federal law protecting student records, includes exceptions for subpoenas, but Toohey said district has a greater obligation to keep records of non-party students confidential.
Even records showing a previous hazing incident wouldn’t meet the legal standard of negligence because state law requires districts have “actual knowledge” of specific incidents involving the students in question, Toohey said.
“That’s akin to saying, ‘Well, there was a fight once in the school, so we have to provide immediate supervision of all students at all times because we could foresee there could be a fight in the future,’” he said.
Borcherding said this argument fails to recognize “the nature of hazing,” which she called a tradition passed down from generation to generation. She said even if the behavior changes over time, knowledge of prior events in a location as specific as the boys hockey team locker room is enough to warrant added supervision.
Further, the high school had the same coach and principal during all six years of the plaintiffs’ request, including the year before victim joined the team. Borcherding said that’s when players were reprimanded for a tradition known as locker boxing: a ritual in which players put on gloves and hockey pads and repeatedly punched each other.
Toohey notes Vermont law does not require schools to provide constant supervision. But Borcherding said completely ignoring these lessons – that the locker room needed more supervision – would suggest the district’s duty to oversee and protect players is almost “non-existent.”
Toohey and Borcherding agreed most redactions aimed to protect student names, prompting Judge Robert Mello to ask why the plaintiffs needed them since they’re suing the district, not the students.
Borcherding said names are “incredibly relevant” because the plaintiffs can only investigate how much the school knew by deposing witnesses or perpetrators. If a student was disciplined for hazing two years before the victim joined the team, for example, they could interview him to find out the school’s process.
The district’s attorneys suggested the plaintiffs should instead depose the more than 55 students that fall under their request. Bocherding called that a highly burdensome and expensive process.
She added the district’s attorney has agreed to provide unredacted relevant documents in another hazing lawsuit filed by a victim at the Milton School District. And the plaintiffs have already received records as early as 2003 in the Essex case.
“It’s clear that this refusal to produce documents is not about student privacy; it’s about using FERPA as a shield,” Borcherding said.
Monday’s hearing also featured debate over a separate subpoena targeting family court records related to Alexander Giummo, a then-sophomore whom the parents’ attorney says was one of the main perpetrators. Borcherding said Giummo exposed himself to the victim, repeatedly punched him, damaged his property and urinated on him, among other inappropriate behaviors.
Both the high school’s internal investigation and a subsequent independent review found the victim’s claims were credible, concluding Giummo had violated school policies on bullying, hazing, harassment and retaliation.
A criminal investigation into Giummo’s behavior was forwarded to then-State’s Attorney TJ Donovan in March 2016. He referred the case to family court, where proceedings are confidential.
Since the plaintiffs can’t seek records from the court directly, their attorneys subpoenaed Giummo and his parents for any documents related to criminal proceedings to better understand his “abusive behavior.”
Hoping to quash the subpoena, Giummo and his parents’ attorney, Brooks McArthur, said it’s “mind-blowing” to believe that the privilege of confidentially falls short of the juveniles themselves.
“To suggest that a subpoena can be handed to a juvenile or a juvenile’s parents at the door of the family court … simply can’t be the conclusion of this court,” McArthur said.
As of press time Tuesday, Judge Mello still had the case under advisement.