JOSHUA TIME 468

Posted on Wed, May. 10, 2006
EKU asks judge to close trial involving ex-studentPARENTS OF MIDDLE-SCHOOLER SAY HE WAS HARASSED
By Beth MusgraveHERALD-LEADER STAFF WRITER
Lawyers for Eastern Kentucky University are asking a federal judge to close to the public a June trial involving a former student at the university's Model Laboratory Middle School, a move that First Amendment lawyers call highly unusual.

The request was filed under seal with no notice given to the public. Under the rules of the federal court, a party must give notice that it is filing something under seal.

But a lawyer representing EKU and two administrators at the Model School said the university sealed documents and is asking a judge to consider closing the trial to protect confidential information. The university is not trying to hide anything or keep the case out of the public eye, he said.

"Our intent is to put the matter before a judge so we can discuss it and figure out how to solve this problem. Closing the trial would be one way to solve it, but it would not be preferable," said Douglas McSwain. "It's not my desire and it's never been my desire to close trials."

Lawyers for the student, who is suing the school for violating his civil rights and rights under the Americans with Disabilities Act, say they are concerned about how the request was filed.

"We have two main concerns," said Katie Yunker, who represents James and Carol Stutts, the parents of the former student. "They're just filing things under seal. They're not asking a judge. A private party is making the determination that there is not going to be public access. We don't think that they have the authority.

"There is also a concern that they are trying to keep things from the public eye that should be under scrutiny."

What should and should not be open to the public in federal and state courts has been the subject of legal debate and public discourse in recent years. Many courts, including Kentucky state courts, limit information about cases online.

There has been a growing concern in federal courts about the number of cases -- some of which involve alleged terrorist detainees -- that have been moved to unpublished dockets. If a case is placed on an unpublished docket, the public does not know it exists.

In federal court, some information is considered confidential and is not published, including Social Security numbers, financial account numbers, names of minor children and dates of birth. Warrants in criminal cases are sealed until the person is arrested.

But in most cases, unless ordered by the judge, information filed in a case is available to the public.

Lawyers for EKU say this case is different from most civil cases because it involves minors and federal education law, which protects students' education records from public scrutiny.

The Stuttses sued EKU and the Model Laboratory Middle School -- which is under the auspices and on the grounds of the Richmond university -- in 2003. They say their son's civil rights and rights under the Americans with Disabilities Act were violated when administrators at the school failed to protect the then-14-year-old, who has multiple disabilities, from harassment, physical abuse and discrimination.
EKU and administrators at the Model Laboratory School have denied those charges.

At the time the case was filed, lawyers for the boy asked for more than $16 million in damages. But that amount might change before the case goes to trial June 20.

In 2003, U.S. Magistrate Judge James Todd issued orders protecting the identities and educational records of approximately 72 other students who may be involved in the case as witnesses or other parties.

The order said that no information would be released to the public unless ordered by the court. Lawyers for the boy also asked the judge to seal all documents related to his medical and psychological condition.

According to court records, EKU has filed at least seven motions under seal without filing a motion asking for a judge's permission. McSwain said the school filed documents under seal without the judge because they believe that the information contained in the documents is directly related to Todd's previous orders.

"The court already had a particular order regarding this in place," McSwain said.

But Yunker and Kate Sanford, who also represents the boy, disagree.
In a motion, they say the defendant's motion to close the hearing had no confidential information in it.

Robert Houlihan Jr., a lawyer for the Herald-Leader who specializes in First Amendment laws, said he has never heard of a judge closing an entire trial, nor does he believe case law supports it.

"I think the bottom line is, if there is a trial in U.S. District Court, there is nothing sealed about it. They can seal stuff at discovery but not at trial."
Jon Fleischaker, a Louisville lawyer for the Kentucky Press Association, agreed.

"I can't imagine in a civil case involving a disability (where ) the case would be closed," Fleischaker said.

Ultimately, it will be up to U.S. District Court Judge Joseph Hood to determine whether the motions filed under seal were filed correctly and whether the June trial will be open to the public.

"It is not our desire to close this whole trial," McSwain said. "We are just trying to get all of these things fleshed out."