Lawyer: Complaints against teacher confidential

BENNINGTON — An attorney for the Vermont Attorney General's Office says the state Agency of Education will not turn over records subpoenaed by a teacher at a local independent school accused of assaulting a student and calling him by a racial slur.

Lawyers for Jude T. Fitzgerald subpoenaed the agency in May for documents related to any complaints made against Fitzgerald by or on behalf of the now 10-year-old student. A Vermont Superior Court judge said in August that the AOE attorney must detail what records the agency has and explain why they are confidential.

A "fairly detailed" privilege log had been filed with the court, Philip A. Back with the Attorney General's office, representing the agency, said during a hearing in Bennington criminal court on Tuesday.

"Our position is that the defendant isn't entitled to them," but if the defense can show he has a need for them under applicable case law, the court could conduct an "in-camera review," Back told Judge John W. Valente.

Attorney Timothy M. Andrews, representing Fitzgerald, argued that what the log identifies — witness interviews, police reports, communication with the Bennington County State's Attorney's office, and reports from the Department of Children and Families — are all linked to complaints made against Fitzgerald.

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.

Fitzgerald was arraigned in March and in July, a judge dismissed a felony lewd and lascivious conduct charge. 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.

Valente took the arguments under advisement.

Ed Damon can be reached at, at @edamon_banner on Twitter and 802-447-7567, ext. 111.


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