Attorneys seek Agency of Education records for teacher accused of hate crime

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BENNINGTON — Attorneys for a teacher at a local independent school, who is charged with assaulting a student and calling him by a racial slur, want the Vermont Agency of Education to turn over records relating to any complaints made against him on behalf of the child.

His attorneys have also subpoenaed a clinical social worker for the child's mental health and treatment records.

An attorney for the AOE said in court this week that the defense may already have most of the documents in the agency's possession, including the student's confidential school records.

Jude T. Fitzgerald, 47, has denied criminal charges that he allegedly pulled an 8-year-old boy's hair and genitals and used a racial epithet towards him at the Southshire Community School in North Bennington during the 2015-16 school year. The school's board of directors has placed the Brattleboro resident on administrative leave.

In March, Fitzgerald pleaded not guilty to three charges in Vermont Superior Court Bennington Criminal Division. A felony lewd and lascivious conduct charge was dismissed last month. But Fitzgerald still faces single counts of cruelty to a child under 10 years old and simple assault, misdemeanors that carry "hate crime enhancements" because the state alleges the crimes were racially motivated.

Attorney Timothy M. Andrews, representing Fitzgerald, said during a hearing Thursday that a subpoena to the AOE in May was for any documents related to any complaints made against the teacher by or on behalf of the now 10-year-old student.

"As long as these records are relevant, we're entitled to them," Andrews said, adding it would be the agency's responsibility to show why they should not be provided.

Philip A. Back with the Vermont Attorney General's Office said the AOE objected to the subpoena in part because any student records in its possession would be confidential under federal law. And no complaints relating to the allegations in the criminal case were filed with the AOE, he said.

"My understanding is that a lot of the records we have may already be in the defendant's possession," Back said.

The AOE normally would not have student records, he said. But they were obtained by the defense and turned over to the Bennington County State's Attorney's Office, he said, which provided them to the agency.

Judge William Cohen said Back must file a log with the court detailing what records the agency has and, if those documents are confidential, explain why.

"It would be helpful to know what the defendant already has," Cohen said.

Back said the agency was notified of some type of allegation by the state Department of Children and Families. But DCF records involving child abuse are confidential by state statute, he said, and would be protected under an inter-agency memorandum of understanding.

A second subpoena for the child's "complete mental health and treatment records" went unanswered by a social worker. Fitzgerald's attorneys moved for a show-cause hearing on why they shouldn't be provided, which is scheduled for Thursday.

"We know the AOE conducted an investigation ... prior to charges being brought," Andrews said in court. "Someone had to have prompted that investigation to take place, which means the AOE was notified of allegations even before state's attorney was involved and charges were filed."

Reach staff writer Edward Damon at 802-447-7567, ext. 111 or @edamon_banner.

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