A judge has ruled that a victim in the Milton High School football hazing scandal may be able to convince a jury of the district’s negligence (File photo).

Judge dismisses district’s request for summary judgment

A victim in the Milton High School hazing scandal may soon get his day in court after a judge ruled that a jury could potentially find the former student has enough evidence to support his claims against the school district.

Filed in 2017, the lawsuit alleges that the school’s negligent supervision allowed the plaintiff to be sexually assaulted at the hands of his teammates, and accuses school officials of failing to properly investigate once they heard rumors about the 2012 attack. 

The district has said it fulfilled all of its legal responsibilities. In a motion for summary judgment earlier this year, the district called on a superior court judge to find that the plaintiff lacked evidence to bring the case before a jury. The district successfully argued a similar request last year in the lawsuit brought by the parents of Jordan Preavy, who was assaulted on school grounds in 2011 and died by suicide a year later. 

But Judge Helen M. Toor struck down the district’s request, drawing contrasts between the two cases and setting the stage for a jury trial now scheduled for November 18. 

“A jury could potentially conclude, based on the facts presented, that under the circumstances of various reports of harassment within the football team, and in particular because [the district] knew about the assault on Preavy, that the assault on [the victim] was foreseeable,” Toor wrote in a July ruling.

The victim, a freshman at the time, was at a team dinner at a home in Milton when two teammates dragged him to the basement, pushed him onto a couch and forcibly inserted a pool cue into his rectum, over his clothing, the lawsuit says. The Independent does not name victims of sexual assault without their consent. 

In 2013, a year after the assault, the plaintiff and another teammate were called into Milton High School principal Anne Blake’s office to discuss rumors about an initiation ritual involving broomsticks — a meeting Blake told the victim that his parents didn’t need to attend, the suit says. 

Blake told the plaintiff if the allegations were true, she’d have to shut down the football program. Fearing retaliation from his peers, the plaintiff denied anything happened, the complaint says. Blake then directed the plaintiff to tell incoming freshmen there was no truth to the rumors.

It wasn’t until spring 2014 that a parent called the Vt. Department for Children and Families after their child heard the plaintiff being taunted for getting “a pool stick shoved up [his] ass,” the filing says. The Chittenden Unit for Special Investigations subsequently opened an investigation and later charged the victim’s attackers – Colby Darling and Brian Lasell – who served 18-month deferred sentences for simple assault.

The plaintiff’s lawsuit rests on two claims: That administrators were negligent in their failure to properly supervise the football team despite knowledge of its past problems, and that MTSD failed to investigate the incident in a timely manner.

The first claim rests on a dispute over whether administrators had been put on “actual notice” to the football team’s bad behavior prior to the assault. Vermont law says school districts owe students a duty of “ordinary care,” limiting districts’ responsibilities by stating that they don’t owe students immediate supervision at all times, but rather must protect them from foreseeable risks. 

The protection proved enough to sink the Preavy lawsuit, a result the district had hoped would carry over into the second suit because the two cases are “factually indistinguishable.” 

Toor, however, identified several key differences, specifically around the timing of the incidents. She noted that the plaintiff claims that former MHS coach Jim O’Grady learned of the Preavy assault sometime in the fall of 2012 — when the victim was assaulted — at which point the plaintiff has said school officials were already aware of other acts of harassment within the football team. 

“It remains a question of fact for the jury whether the Preavy assault and suicide, combined with the other allegations of harassment within the football team, rendered the assault on the plaintiff forseeable,” Toor wrote. 

The district has also argued that the perpetrators of the Preavy assault had graduated before the assault on this case’s victim, so there’s no way it could have foreseen that the Darling and Lasell posed a risk to the victim. 

But Toor said the more recent assault “mirrors” the Preavy case, and the plaintiff alleges that school officials were well aware of a history of harassing and hazing behavior on the football team for years before the incident, and knew that another student had quit the football team and was threatening suicide due to bullying. 

The suit’s second claim was brought under the Vermont Public Accommodations Act, which requires school districts to promptly investigate harassment allegations and maintain policies that say how investigations will take place. 

VPAA harassment claims can only succeed if plaintiffs exhaust their “administrative remedies,” and both parties case agree that the victim did not file a complaint under the district’s harassment policy. But the VPAA offers five exemptions to that rule, covering cases in which school districts fail to investigate in a timely manner, or cases where victims believe their efforts to seek remedies through a formal process will be futile. 

The parties disagree over whether the victim’s case meets these standards. The district says the victim’s failure to report the incident to administrators meant they had no requirement to investigate. In fact, when Blake asked the victim whether rumors she heard about his assault were true, he lied and said the incidents never occurred, the district says. 

But the plaintiff’s attorney, Jerome O’Neill, argues the district had a duty to investigate once Blake heard rumors about the assault. And even if the victim had told the truth when first asked, the principal said her response would be to shut down the football program entirely, not report the incident. 

In a deposition, the victim said he saw his options as either “shutting my mouth” or “shutting the football program down [and] getting the living shit kicked out of me for the next three years of high school,” court documents show. 

“Ms. Blake called me in, without an adult, and gave me the ultimatum,” the victim said in the deposition. “She knew I would pick shutting my mouth over shutting the football program down.” 

The district says Blake’s threat shows that she intended to take action against the harassment. Judge Toor said a jury may see it a different way. 

“The broader context of the statement … could lead a reasonable jury to infer that Blake wanted plaintiff to tell the freshmen that the assault had not occurred, and that her reference to shutting down the football — ‘the one thing every kid in Milton enjoyed’ — was itself a threat of retaliation,” Toor wrote. 

In an email to the Independent, O’Neill said he believes it’s important for a jury to see all of the facts and decide for itself. “The judge’s decision clears the way for the trial for which our clients have been waiting,” O’Neill wrote in an email. 

Pietro Lynn, an attorney representing the school district, maintained in an email that the district fulfilled all of its legal responsibilities. “We look forward to trying the case to a jury,” he wrote. 

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