SMMUSD HDQTRS — Parents have the right to review records detailing a Santa Monica High School teacher’s violation of the school district’s sexual harassment policy, an appeals court ruled this week.

While the math teacher, who was reprimanded but not criminally charged in the incident involving a 13-year-old girl, has substantial privacy rights at stake, parents have an overriding interest in learning about his conduct and how school officials responded to it, said the Second District Court of Appeal in Los Angeles.

The teacher, identified in court records as Ari Marken, “occupies a position of trust and responsibility as a classroom teacher, and the public has a legitimate interest in knowing whether and how the district enforces its sexual harassment policy,” the court said in Tuesday’s 3-0 ruling.

The Santa Monica-Malibu Unified School District must now hand over the letter of reprimand Marken received and other records of an independent investigation conducted in November of 2008, with the names of the student and witnesses removed.

The court went so far as to say that the school district would have to disclose the records even if no misconduct was found — so long as a judge who reviewed the material can determine that it was based on reliable information and that the original complaint was “well-founded and substantial.”

Back in time

The case dates back to October 2008 when the mother of a ninth grader told an administrator that her daughter had been sexually harassed by Marken, her math teacher. Marken, who received high marks on ratemyteachers.com, was removed from the classroom for a month while an investigator interviewed the teacher and other staff members, according to court records.

The girl’s parents did not allow her to be interviewed, but the investigator determined that at least some of the allegations were most likely true.

The district found Marken violated the Board of Education’s sexual harassment policy and issued him a reprimand, along with some directives on how to interact with students in the future.

The district’s sexual harassment policy includes everything from making inappropriate jokes or drawings to teasing and touching someone’s clothes in a sexual way, as well as making unwanted sexual advances.

Michael Chwe, a parent with two children at Samohi, filed a California Public Records Act request in December of 2010 asking for any and all documents related to the investigation. That was after more than 140 people signed a letter expressing disapproval of the district’s handling of the case and asking for more information about the incident.

District officials originally agreed to release the information but stalled, giving Marken roughly two months to file a lawsuit arguing that the teen’s complaint was neither well-founded or substantial and that disclosure of his public records would violate his right to privacy and cause him irreparable harm.

A Los Angeles Superior Court judge ruled against him in March of 2011 and the appeals court upheld that ruling.

It is unclear whether or not the school district will release the records.

“We understand the appellate court has decided in concert with the district’s view of the matter and that we are working now with counsel on next steps,” read a statement released Wednesday by Superintendent Sandra Lyon. “We will have a larger statement after our attorneys get back to us.”

District officials may be awaiting word from Marken on whether or not he will seek review by the state Supreme Court. If so, the district may be barred from releasing the documents until the court makes its ruling.

Chwe said he was pleased with the court’s decision and hopes the district releases the records immediately.

“Parents want to know if their kids’ teacher has sexually harassed somebody, they want to know the details and they have a right to that information and a right to know how the district handled investigations into allegations of sexual harassment,” Chwe said. “It’s very frustrating that the district has consistently delayed or prevented this disclosure.”

Chwe’s attorneys were concerned about one aspect of the court’s ruling. The court said people who seek disclosure of government records after an employee has gone to court to keep them sealed is not entitled to have their attorney’s fees paid by another party.

“This will make it harder for people to get access to government records and to ensure that their constitutionally-protected rights are being respected,” said Jeff Glasser, one of Chwe’s attorneys.

Glasser said he is considering seeking further judicial review on that issue.

Richard Schwab, who represented Marken, said the court’s ruling creates “an unfortunate slippery slope” where now a disgruntled parent, student or blogger can “abuse” the public records act in an attempt to “menace” a teacher.

While the public certainly has a right to know, the information being sought by Chwe “would not shed any light on public function,” the allegations made being of the “lowest spectrum.”

“If Mr. Marken had been an administrator or superintendent or the subject matter had been one of a significant issue, then I would have seen the need for public disclosure, but this was not the case,” Schwab said.

He believes the ruling will make public employees more reluctant to cooperate in investigations of colleagues because they may be concerned their testimony could be made public.

“While I certainly uphold the high integrity of the First Amendment, I also believe the right to privacy should be given a high priority,” Schwab said.

Glasser said public employees shouldn’t be concerned if they are following proper rules and procedures.

kevinh@www.smdp.com

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