Ungagged: County ready to tattle

When attorneys for the Albemarle County School Board settled a $150,000 lawsuit over a middle school dress code, neither side would disclose how much the county had to pay. After all, the agreement, announced February 20, contained a confidentiality provision– or "gag order."

That decision has some taxpayers wondering why a publicly elected body would agree to hide how much it had to fork out for having a dress code a federal appeals court called "unconstitutionally overbroad."

Former School Board member Gary Grant is one. "The board is doing the public's business," says Grant. "If our government has to cough up money, the citizens they represent ought to know."

On March 4, in a surprising reversal, Albemarle deputy attorney Mark Trank announced that he would ask the plaintiff's counsel if they would consent to releasing the settlement. "The board feels it's in the public's interest to release it," he said.

Why the switch? Trank declined to comment.

"Maybe they're feeling some heat from the public," speculates Grant.

Jack Jouett Middle School student Alan Newsom brought the suit against the county in 2002 after he was forced to wear his National Rifle Association camp t-shirt inside out when a teacher objected to its images of weaponry. The NRA assisted the plaintiff in the suit.

Ironically, the plaintiff's father– who had previously denounced gag orders now finds himself in the awkward position of appearing to block revelation of the settlement amount.

"I'm kind of offended by the idea they make an agreement, and now it's my fault they have to keep their word," says Fred Newsom. He also mentions that the county has "contacted us repeatedly and almost frantically" seeking consent to unseal the terms.

So why won't he divulge?

"I'm bound to keep my word," replies Newsom.

"We have attempted in good faith to negotiate with the defendants on this issue," says NRA attorney Dan Zavadil. And one of the conditions he and the Newsoms want is an apology to Alan.

"As of my last contact with Mr. Trank," says Zavadil, "they still emphatically refuse to agree to say the two simple words: 'I'm sorry.' That ridiculous refusal tells me that in their arrogance, they still don't get it."

After six hours of "tedious" court-ordered mediation, the parties agreed to a "binding, written, confidential settlement agreement with enforcement provisions in the event of any breach," he continues. "The defendants knowingly entered into that agreement with the benefit and advice of two experienced attorneys and the school superintendent."

Now, Zavadil accuses the School Board of "waffling."

So why the gag in the first place?

"It's hard for me to speculate," says school superintendent Kevin Castner, who was named in the suit, along with all school board members and the Jouett principal and assistant principal. "They weren't consulting me. The board gave our attorneys rights to negotiate."

"Any agreement that involves a minor child might be considered private under FERPA" the Family Educational Rights Privacy Acts says Trank.

Castner points out that the secret settlement cost taxpayers nothing because the county's insurance carrier paid.

However, Frosty Landon, founder of Virginia Coalition for Open Government, questions that justification.

"I would argue the settlement can affect insurance rates," says Landon. "Actually, the expenditure, even if indirect, still is a government expenditure. You're back to the issue of government accountability."

Before the parties went into mediation, Fred Newsom expressed fear that the settlement terms would be sealed, and he compared the county's desire for secrecy to Michael Jackson's alleged silence-buying in an early 1990s molestation case.

The Virginia Coalition for Open Government noted in its July 2002 newsletter that some members of the Albemarle School Board "seemed more interested in stopping leaks from closed sessions and focusing on their right to invoke discretionary exemptions to the Freedom of Information Act."

However, not everyone faults the county.

"If you're not going to get resolution, it's probably better to seal," says Robert O'Neil, of the Thomas Jefferson Center for the Protection of Free Expression. "Just getting the issue off the table has value to the community. In reality, only a fraction of cases ought to be sealed."

"There's a gradual movement to force more disclosure," says Landon, citing cases in the public interest such as the molestation of children by Catholic priests or manufacturers who make defective tires.

"They're reining in these confidential, sealed agreements when the government is a participant," says Landon.

Of the Newsom case, he asks, "In whose interest is it to keep confidential the amount of the settlement?"

Fred Newsom seems alternately bemused and irked that the county is now so eager to reveal the details of the contentious, mediated settlement. The school subsequently rewrote the school dress code to forbid images of weapons.

"How about if we just ask any Albemarle official to shake Alan's hand and apologize?" suggests Newsom.

That's not going to happen, at least according to Trank.

He points out that the Newsoms' two victories in the U.S. Fourth Circuit Court of Appeals were for a preliminary injunction to allow Alan to wear the shirt while his lawsuit was being litigated not on the merits of the First Amendment case itself.

The appeals court said Alan was likely to prevail in his claim that his First Amendment rights were violated, and urged the parties to settle.

"The board and other defendants believe they did not do anything that violated Alan Newsom's rights," Trank says. "The defendants did not admit any wrongdoing or liability. That's why you settle a case. We feel the school division and administration at Jack Jouett acted appropriately."

The Albemarle County School Board is now willing to reveal how much its insurance company had to pay Alan Newsom but won't offer the apology the Newsoms want