I went back and reviewed my notes and the public disclosure requests I made about this case.
- Beryl Miller, the SPS staffer who was the Civil Rights/ Title IX Compliance Officer at the time of the incident is no longer in that position. She was the SPS Behavioral and Emotional Team Supervisor. Whether she still has that position within SPS, I don't know.
- My question to SPS: Beryl Miller said she spoke with Student 1's doctor and psychologist but she only references notes about the call to the doctor. Are there any notes/documentation about Ms. Miller's call to the psychologist? (Please note: I know under FERPA/HIPPA I cannot have the notes or documentation. I am ONLY asking if they exist - meaning did she call both Student 1's doctor and psychologist?)
SPS Answer: Ms. Miller has confirmed that no additional documents exist beyond the email records provided as exhibits to the investigative report (see pg 54-57 of the previously provided “GHS Exhibits Final” PDF).
It appears Miller asked for permission to talk to both Student 1's doctor and psychologist but only spoke with the doctor.
- SPS paid Yarmuth Wilsdon PLLC $15,425 for the investigation.
- In the Exhibits section of the investigative report, there are 28 documents. One of them is a letter from Ms. Burton's lawyers, Eugene N. Bolin, Jr. and Kevin A. Peck dated April 17, 2015. The letter outlines their concerns over the investigation including the fact that they don't believe the investigator is truly "independent."
They also say that :
"Throughout the field trip, Ms. Burton exercised reasonable judgment and has demonstrated total candor in the investigation which has followed. The primary factual question in our view is this: what could have been done to prevent Student 1's alleged misconduct from occurring?"
They state that because neither Garfield High nor Ms. Burton were ever informed of the student's previous conduct:
"We believe that this is a complete defense to any claim that Ms. Burton played any causative role in Student 1's alleged misconduct during the trip."
I am not a lawyer so I don't know what "causative" means legally. But, it appears that the lawyers were building up this idea that nothing could have been done by Burton or the chaperones to prevent Student 1's actions. I think the real issue is what could have been done to discourage or lessen the chances of it happening? (We'll get to the issue of whether Student 1 should have been on the trip at all.)
They ask many valid questions about what was on Student 1's transcript and note that Blanchett was required to answer two questions for any student who transfers into SPS: 1) past/pending disciplinary actions; history of violent or disruptive behavior; past, current, or pending criminal or juvenile court proceedings; or history of gang affiliation? 2) Does the student currently have, or has the student had in the past, a restraining order filed against him/her?
They also say that Student 1's parents were required state that the information on the SPS enrollment form was "true and accurate." As well, Ms. Burton's lawyers asked if SPS had "certified" that information as the enrollment form states it would.
But here's where I found the fuzziness around what Ms. Burton would or would not have done had she known of Student 1's issues:
Had this critical information been provided to Ms Burton, Student 1 very likely would not have been permitted to gone on the field trip to New Orleans. And even if Ms. Burton had permitted Student 1 to go on the trip, she would have had very serious discussions with him first, to satisfy herself that he would strictly conform to the behavior expected of all students on the trip. He also would have been much more closely supervised on the trip. Ms. Burton specifically described all of this during her interview with you on Tuesday.
So there was some discussion - at some point during this meeting -that Burton might have considered allowing him on the trip even if she had known of his past behavior.
About the drinking, there is language about Burton not wanting to "upset the apple cart" or "cause a problem among her dedicated volunteer-chaperones, so she had one cocktail with them."
We believe the (sic) SPS has over-looked the multiple roles a faculty member is expected to fulfill when leading a large, multi-day field trip. Ms. Burton's first role, of course, was to protect the safety of the 39 students on the trip. However, she was also responsible for leading the 8 adult chaperones and obtaining their best efforts on the trip.
The key, we believe, it (sic) not whether a violation of a rule occurred, but whether the faculty and chaperones exercised reasonable judgment (not perfect judgment) at all times during the trip. Under all of the circumstances present (sic) here, we strongly believe Ms. Burton and her chaperones did indeed exercise reasonable judgment (with the possible exception of the physician-chaperones who we understand has apologized for the incapacitation - incident.)I appreciate they are lawyers trying to do their job but what circumstances were there that made Burton feel the chaperones had to drink? That the kids needed a later curfew? That they could freely mingle in each others' rooms? I'm not getting that part at all.
Then the lawyers go to the rule about not allowing students of the opposite sex in the same hotel room.
On one evening during the trip we understand that Student 1 was in a hotel room with the two girls he allegedly victimized, along with a third girl. This was permitted by the chaperone staff, but only after Student 1 complained that he was "uncomfortable" with his own male roommates. The three girls were asked by another chaperone if they had any objection to Student 1 joining them in their room to watch TV before curfew. The girls not only agreed, but welcomed Student 1 into their room. It was sometime later that evening, that Student 1 allegedly began acting out and touching one of the girls after they objected.
This section made me a little queasy because it almost sounds like they are either finding "causal" reasoning that the girls allowed Student 1 in their room or maybe even blame them.
Another interesting argument from her lawyers (I believe referring to Burton's feelings that students of different sexual orientations should not have to room with people they are uncomfortable with):
"The reasonableness of a strict application of the rule quickly begins to disappear under these kinds of unique circumstances. Further, the rule promulgated by the SPS does not provide for any discretion by the chaperones, much less consideration, for such unique circumstances. Faculty members and chaperones are therefore left to exercise their best judgment on a case-by-case basis - which is precisely what they did. They should not be criticized later for doing so, and certainly not disciplined."
I think they err in their thinking because it is not the rule that is ambiguous but rather, the question of who rooms with whom (and who decides). The rule is clear. I don't think there needs to be discretion on the part of the teacher leader or chaperones except in the case of moving same-sex roommates around if there is an issue.
The investigative report itself says this:
Ms Burton admitted that she did not raise this concern with any GHS or SPS District official, before or after the trip.
They call her ignoring SPS field trip regulations "technical violations" and that the "mitigating circumstances outweigh the violations."
One interesting key point that I'm not sure what to think about the issue of how to assign students to rooms. Assigning by sexual orientation would be highly problematic. Burton's lawyers try to say that if something had happened to Student 1 in his room and Burton had known of his "discomfort" with his roommates previous to that, she would have gotten blamed for that.
Problem is that the student may have been reassigned where he slept (that part is unclear to me) but he still was in a room with boys. And, this was not about where he slept - it's about where he hung out. (To note, Student 1's inappropriate behavior on the Blanchet field trip was with a boy; the Garfield incident involved girls.)
His second alleged assault on one or both girls (and apparently the most egregious) occurred on the bus ride to the airport at the end of the trip.
Note: the investigative report does not back up that the bus trip behavior was the most egregious - what happened in the hotel room seems far worse.
They then make this leap:
Even if Ms. Burton and the chaperones had not consumed a drop of alcohol, the result would have been the same.
I would agree I don't think the drinking was the cause of his behavior but the lax behavior of the adults certainly didn't help.
As to the issue about whether Student 1 possibly felt more enabled by the lax application of district rules, from the investigative report:
Student 1 also spoke about noticing the drinking by chaperones and said it was a "relaxed" atmosphere on the field trip.