A new decision maker hired last week in the ongoing Title IX investigation into alleged sexual assaults by players on the boys basketball team said he hopes to provide Huntsville School District with a decision of responsibility by the end of the year. 

Cody Kees, a private attorney with the Little Rock law firm of Bequette, Billingsley and Kees, has been hired as the decision maker by the district after Fayetteville attorney Brian Hogue abruptly stepped down. 

Hogue’s departure happened after receiving a text message from longtime school board member Duane Glenn, in which Glenn sought to improperly influence Hogue’s decision. 

Hogue’s departure left parents, students and administrators in limbo and frustrated by a further delay in an investigation that had been ongoing since early spring and in which a decision of responsibility appeared to be imminent. 

Kees said that because the file given to him appears to be exhaustive, he thinks a decision could be made in just a few weeks.

“I would hope to have it wrapped up this year,” Kees said.  “If all the evidence is there and no clarity is needed, and like I said I tend to think the clarity was already provided. I am aware that there was some back and forth of getting new information. I don’t know why it couldn’t be completed before the new year. That’s certainly my goal,” Kees said. 

Kees said he was speaking to The Record because he wanted to be transparent. He also stated that he had only been given the file last week so that he would address questions in generalities rather than specifics concerning the Huntsville case. 

Two Title IX investigations have arisen from what players referred to as “bean-dipping” and “baptizing.” Each act involved basketball players who were then players on the junior high team being physically restrained by teammates while other teammates placed their bare genitals or buttocks on restrained players foreheads, faces or hair.  The acts took place in the boys locker room before and after games during the 2019-2020 season as well as during the 2020-2021 basketball season and happened to multiple players on multiple nights. One player was alleged to have been assaulted 14 times during one season. 

The district asked coaches to investigate the first Title IX claim, before handing over their findings to the decision makers, which included Huntsville High School Principal Roxanne Enix, Director of Athletics Tom McCollough and Huntsville Middle School Principal Matt Ferguson. The school board went against Enix, McCollough and Ferguson’s decision to expel the students for one year. Instead, the board lessened the punishment, expelling for one semester two students who admitted to “baptizing” teammates and threw out completely punishment for three students who allegedly physically restrained teammates. 

To handle the second still ongoing investigation, the district sought someone from outside the district. Dr. Tammy Tucker of the Fayetteville School District conducted the second investigation.  Tucker’s interviews were more in-depth than those conducted by the Huntsville basketball coaches. During some of the interviews, players who initially denied being assaulted admitted to Tucker that they had been “baptized” and “bean-dipped.” 

After Tucker completed the investigation, the district asked Hogue to render a determination of responsibility. Hogue appeared to be nearing a decision when he received a text message from Glenn, who told Hogue he hoped Hogue would recommend punishing the students being investigated to the maximum extent possible or the district would face “major problems.” 

Glenn told Hogue that Huntsville School Superintendent Audra Kimball and other board members had been threatened. Through a Freedom of Information Act request, The Record obtained three threats against Kimball but none toward any board member.  

Kees was presented the investigatory materials last week and said he had not reviewed all of them yet and could only speak about the case in generalities to explain how the procedures of the case would work.

Kees said he doesn’t plan on considering any new evidence or conducting any further interviews, but rather using what the district has provided to make a recommendation. 

He sees his role as determining whether or not the players being investigated were responsible. “If they’re not responsible, I think that ends the analysis,” Kees said. “If they were responsible, OK, there has to be an appropriate punishment.”

He also said he has no intentions of reaching out to the parents or the students involved. 

“All the information is there. If I see something missing in the interest of fairness, I mean this is about due process, I will do what’s necessary to make sure the information if obtained.”

If that is needed, Kees said, he will reach out to the district’s Title IX Coordinator Tonja McCone. 

“The Title IX regulations are set up to where everybody has a lane to some degree. The Title IX coordinator oversees the process. The investigator obtains the information. The Title IX coordinator kind of oversees facilitating the information, getting it from point A to point B, and then the decision maker comes in and just does that. So I definitely, as I sit here, don’t anticipate reaching out to witnesses. 

“Because I think that’s already been done but if I saw hey, there’s a missing piece, I would not make a final decision without getting that information. In the interest of due process, you want to get all the information,” Kees said. 

Kees will recommend punishment – if any – of the students involved to the district. If the punishment is more than 10 days out-of-school suspension, including expulsion, the recommendation must go before the Huntsville School Board. 

Two members of the board have potential conflicts of interest: Lenora Riedel, who is related to a student involved, and Glenn, who sent the message to Hogue. Both could recuse from voting should the recommended punishment present itself to the board. 

Many people have been outspoken during school board meetings, protesting the school board’s lessening of punishment and lamenting that students responsible for the alleged assaults – some students involved in “baptizing” teammates as well as players physically restraining players – are still playing sports. 

Kees said if he were to consider recommending suspending students from being involved in sports, he would need guidance from the administration. 

Kees said he is only speaking in generalities and has not reviewed the entire file yet. 

“I’m assuming they were athletes because I understand this was like a locker room setting. But I don’t know what extracurricular activities they are involved in or were involved in. … I’ll learn it from the facts,” he said. 

Kees said as he begins his review he would learn more about whether or not he should or could recommend not allowing the students to play sports. 

“I tend to think that I’m going to be left to have to do that because I get the impression that, you know, this was an outside independent investigation or an independent decision maker was brought in to make the decision so that the school, you know, wouldn’t be left to make a controversial decision given the circumstances. 

“So I can see that may be part of the final decision now, and I don’t know at this time, but it certainly could be.”

Kees also said he wasn’t sure if he would consider information included in the first Title IX report in recommending disciplinary measures in this ongoing investigation. 

“But I would make sure that my decision is couched in terms of, ‘Hey, I did consider this or I didn’t.’  … And I’m being real careful just to speak on generalities, which is easy since I don’t even know the specifics.”

During the investigation conducted by Hogue, one player’s attorney requested certain statements from other players who were interviewed not be considered or included in the final investigatory report. George Rozzell of Miller, Butler, Schneider, Pawlik and Rozzell stated that Tucker was biased and requested that a statement made by a player be stricken from the report because it was not timely made. He also asked that other students statements not be included in the report for lack of cross examination. Rozzell also stated at that time that the process had gone on too long. 

Kees said he was not familiar enough with the case to comment, but that he would have to look at the regulations. 

“My thought would be I would try to consider everything. You know that’s my initial impression is to try to consider everything but just to state on the record or in the opinion whether something was credible or not credible or whether there was a conflict and I’m just broadly speaking. I’m not speaking to Huntsville.”

But, he said, to just generally exclude evidence or not even rely on it, “That seems to be a pretty significant thing to do to just not even consider evidence,” Kees said. 

Kees said he accepted the case after the administration decided to make sure that the recommended disciplinary measures were made through an unbiased and objective process. 

“I don’t do anything for Huntsville, never have. I was contacted, ‘Hey they need this person and they need this role filled’ and I felt qualified to be able to do it because how I see this role as outlined in the regulations you take the information that’s been obtained.”

Kees said he also will only consider whether or not the students being investigated are responsible and not whether or not the district has violated other procedures.

Students involved and their parents have asserted that the district has violated certain Title IX procedures and made The Family Educational Rights and Privacy Act (commonly referred to as FERPA) violations during the investigations. 

“The decision maker doesn’t serve in a role to provide feedback or correction on the district’s policies and procedures. I will say this, I would imagine that the Arkansas Department of Education is aware of this investigation,” Kees said. 

Kees said if there are violations of Title IX or FERPA, “The Office of Civil Rights needs to investigate that and put in corrective measures. And at the end of the day, it could presumably take away federal funding,” Kees said.

“My point is if there’s been violations of Title IX and there’s a systemic issue, I’m pretty positive and I would think the department of education would, at the federal level and potentially even at the state level, [investigate]. They have some power there,” Kees said. “They yield some power in terms of what they can do to address that.”

When contacted, Kimberly Mundell of the Arkansas Department of Education, “Our role is limited by state and federal law. We act as a liaison to the OCR (Office of Civil Rights, U.S. Department of Education) and can provide any information requested to them; however, we are not the enforcement authority. OCR is,” Mundell said. 

Kees has been hired to do Title IX trainings throughout the state and practices law relating to school regulations. He agreed to be paid $225 per hour for his work on this case. Hogue had agreed to be paid $300 per hour.