Fort Smith Attorney Joey McCutchen is asking prosecutors to investigate whether criminal charges should be filed against the Huntsville School District and administrators for what he called “egregious” Arkansas Freedom of Information Act violations and for failing to immediately call the Arkansas Child Abuse Hotline after administrators learned of alleged sexual assaults taking place in the boys locker rooms. 

The district has admitted to violating Arkansas’ open-meetings laws but denies responsibility for the sexual abuse allegations. 

McCutchen represents a parent who alleges in a lawsuit filed in federal court the district violated Title IX provisions and, in a separate lawsuit in state court, parent Ben Rightsell, who contends the district violated open-meetings laws by not notifying the press of several expulsion hearings as well as other meetings held by the district.

McCutchen held a press conference Friday on the steps of the Madison County Courthouse in which he revealed an affidavit from a parent, not involved in either lawsuit, who alleges that she made former Junior High School Basketball Coach Kaleb Houston aware of alleged sexual assaults that were taking place in the boys locker rooms by basketball players during the 2020-2021 basketball season. 

The alleged assaults also took place during the 2019-2020 basketball season. Some players were alleged to have been assaulted multiple times during both seasons. 

In the lawsuit filed in federal court, the parent contends that the Huntsville School District knew the assaults were taking place but failed to promptly and properly investigate or stop them. It also alleges that the district created a hostile educational environment by placing those who had allegedly been sexually harassed and assaulted in the same classrooms with their assaulters, some who faced no punishment, which caused the victims to be fearful of retaliation and retribution. 

In the affidavit revealed on Friday, a parent alleges that she and her son informed Houston in October or November of 2020 after her child told her that he witnessed “what he considered to be sexual acts performed by older players on younger players.”

Her son said he was “depants, and was being pushed by boys onto another boys face. He broke free and ran to me in my vehicle,” the affidavit said.  

She states that Houston said he would “take care of it.”  

She also states that she sent Houston a text but that Houston did not respond. When she approached him at a ball game about the text, Houston never responded but kept walking, the parent stated in the affidavit.

As soon as Houston was made aware of the allegations, it should have been reported to the hotline, McCutchen said.

“Failure to report is a criminal offense and it’s designed to protect our children from sexual abuse,” he said. “We think it’s risen to the criminal level, that’s why we’re asking the prosecuting attorney to investigate. … Because if you allow sexual abuse to go on, its scars children,” he said.

Houston, who resigned August 2, has denied knowing anything about the alleged assaults. “I had no idea that any of that was taking on in the locker room,” he has said in an earlier text to The Record. 

McCutchen is asking prosecutors to investigate whether administrators called the hotline immediately. Under Arkansas law, mandated reporters, which include teachers and school officials, are required to called the hotline immediately when they have reasonable cause to suspect abuse has occurred. 

“We think that the citizens of Huntsville are entitled to know when specifically the child abuse hotline was notified and we are asking that the prosecuting attorney do his job and do a full and complete investigation and tell the citizens did the district report it,” McCutchen said.

On Feb. 9, someone called Huntsville High School Principal Roxanne Enix, informing her of the allegations. That night, Enix called Huntsville Director of Athletics Tom McCollough, who in turn called Huntsville School District Superintendent Audra Kimball. 

No action was taken between Feb. 9 and Feb. 22, when an investigation bega-n. At the end of February or early March, a Title IX complaint was filed and an investigation began. 

Huntsville School Board President Danny Thomas said he learned of the allegations on Feb. 22 and texted Kimball that night.

However, the first official hotline call made by the district to the hotline number that The Record can confirm did not take place until March. Kimball has stated that she does not recall either the date or the timeframe that she called the hotline. She has referred all questions to the district’s attorney, Charles Harwell. Harwell has not responded to questions pertaining to the district’s timelines in calling the hotline. Asked one more time when the district called the hotline, another attorney for the district, Steve Zega, said he was “respectfully declining to comment.”

So far the Arkansas Department of Education has not become directly involved in the investigations other than providing support for the district’s Title IX Coordinator Tonja McCone.

“We are extremely concerned about the allegations in Huntsville, and we fully support and respect the investigation and legal processes that are occurring,” spokesperson Kimberly Mundell said. 

“ADE’s involvement in matters like these, however, is limited by state and federal law, as the investigation is handled on the local district level and the legal matter involves parents and the district,” she said.

“Any matters involving the hotline would be investigated by law enforcement and are outside our purview,” Mundell said. 

According to Fourth Judicial District Prosecuting Attorney Matt Durrett, his office will investigate when someone files criminal complaints.

“If there are concerns, or if someone wants the issue looked into, they need to file a complaint with the sheriff’s office.  Once/if that is done, we’ll see what comes of it.  If there are mandated reporters who didn’t comply with the law, we will look into pursuing charges,” Durrett said. 

According to McCutchen both his clients filed criminal complaints in Madison County last Friday on FOIA and mandated reporting issues.

McCutchen is also asking the prosecutor to consider criminal charges against the district for violating FOIA by not tendering emails and text messages he requested. 

“Where is the accountability for the folks that are running this district? If the school board doesn’t want to do their job, then they need to go too,” McCutchen said. 

McCutchen filed suit against the district for multiple FOIA violations in regard to the district not notifying the media, thereby the public, of expulsion hearings in the Title IX investigation. The board also is alleged to have discussed school business — including the mask mandate —  that was being brought before the board over text messages. 

On Friday, McCutchen announced he amended his complaint after reading The Record in which it quoted text messages he had requested but had not received.  The Record obtained those text messages through a FOIA request filed by its attorney, John Tull. 

“We asked for text messages between administration, school board and athletic director, to and from and we were denied our request,” McCutchen said.

“We’re going to provide them [the prosecutor] our second amended complaint, which lays out the details of the numerous, numerous FOIA violations, including this one that we feel like rises to a criminal level,” he said. 

“Mr. McCutchen has been in contact with a deputy in our office,” Durrett said.  “It’s my understanding that he will be forwarding information he has on the matter.  As of now, I can’t say who the investigation will be directed at, since I haven’t seen any of the information myself.”

Failing to immediately call the hotline is a Class A misdemeanor and violations of FOIA are class C misdemeanors. 

After the press conference last Friday, the district filed a motion in the Title IX case in federal court requesting the court to limit pre-trial publicity and asking the court to “issue an Order barring all case participants — attorneys and parties — from commenting to the press or on any platform accessible to the press — including but not limited to social media on matters related to this case,” the motion states.

The district is asking the court to seal all documents and proceedings.

“No live testimony and no record of this case -- be it a pleading, motion, brief, court order or otherwise, should be open to the public without a prior order of this Court,” the filing states.

The district contends that McCutchen is seeking to try his clients’ case in the media and that because of the publicity, it will not be able to have a fair trial in court. It contends that the jury in the case will not be impartial due to the pre-trial publicity. 

This month, in its answer to the initial complaint, the district stated that it was not responsible for the alleged sexual assaults in the case because it did not know the alleged abuse was occurring and that any legal claims should be directed to third parties. 

Zega told The Record on Monday that he was “respectfully declining to comment,” on the case, including why the district was trying to limit pre-trial publicity.