School District Files Motion To Dismiss Leung Rape Report Lawsuit

CONCORD, NH — Merrimack County Superior Court received dueling motions in court 48 hours before a hearing to decide whether or not the Concord School District will be forced to release a 100-plus page report into how and why a high school teacher was kept on the job after allegations of inappropriate behavior with a student were raised that led to rape charges in Massachusetts. The American Civil Liberties Union of New Hampshire, on behalf of Dellie Champagne, a Concord parent, and the Concord Monitor, filed a lawsuit in Merrimack County Superior Court for access to public records under the state's right-to-know law for the "first report" about the Primo "Howie" Leung investigation in November 2019. The lawsuit was filed after requests for the report were made by Concord NH Patch, the ACLU, and Monitor reporter Leah Willingham.

Leung, a former "distinguished educator" with the district, faces two counts of aggravated rape of a child as well as single counts of indecent assault and battery on a child under 14 and over 14. He's accused of sexually assaulting a Concord girl during English language learner and culture summer programs that Leung ran at the prestigious Fessenden School in Newton, Massachusetts.

The requests to eye the investigation were rejected by Stephen Bennett of Wadleigh, Starr & Peters LLC, using prior case law as well as the "internal personnel practices" exemption of NH RSA 91-A, the state's right-to-know law.

In its motion to dismiss, a nine-page brief, Bennett told the court while the petitioners didn't like the exemptions of 91-A, they were the law and were currently being upheld by the New Hampshire Supreme Court. The superior court was bound by case law "unless and until" 91-A was changed by either the Legislature or the Supreme Court decided to reverse its prior decisions.

Bennett said the petitioner's use of eight different allegations pointing to the district's potential negligence in handling the Leung case showed the report was not created for disciplinary reasons but to "ascertain how the district responded" to the misconduct. Those allegations do not constitute a basis for releasing the report because the petitioner essentially admitted the report is an internal document dealing with employee misconduct, he wrote. Bennett again cited the internal personnel practices exemptions and prior case law which showed the report should remain sealed and requested a dismissal of the case.

In a 59-page objection, the petitioners countered that keeping the report sealed potentially insulates wrongdoers from public scrutiny and omits any consideration of the "obvious and compelling public interest in the report's disclosure." The district, the objection stated, still hadn't given specific reasons to the public why former Superintendent Terri Forsten and former Principal Tom Sica were terminated two days after reading the report.

"Moreover, Concord’s taxpayers also have had no ability to meaningfully vet the adequacy of the recommendations proposed in the subsequent … report without knowing how the district responded to allegations that Howie Leung was abusing students. Despite this obvious public interest in disclosure, the district — including the Concord School Board — continues to leave its constituents in the dark as to what transpired."

The district, the objection noted, is not legally required to keep the report secret; it is essentially using a loophole in the law, via an exemption, and it doesn't have to adhere to that exemption. The objection added despite the request by the public for more information, even via a redacted, summarized version of the report, the district has declined to be transparent.

The petitioners filed numerous counter-motions, arguments, and exhibits requesting that the superior court reverse previous rulings on internal practices exemptions in order to assist in moving its lawsuit forward — which would lead to the release of the investigation.

Both sides will be in superior court Friday morning to make oral arguments in the lawsuit.

Read the full motion to dismiss here:

SAU 8 Motion To Dismiss by Nh Patch on Scribd

Read the full objection here:

NH ACLU Files Objection To SAU 8's Motion by Nh Patch on Scribd

PREVIOUS PATCH COVERAGE:

• Concord School District Sued For Leung Investigation Documents
• Interim Superintendent Stunned By Pain, Fear Of Concord Community
• School Board Clarifies 'Letter Of Reference' For Forsten, Sica
• Concord Teacher-Student Rape Case Leads To Second SAU 8 Dismissal
• Embattled Concord School Super Terminated By Board Of Education
• Update: Leadership Changes Coming To Concord School District
• Education Department Revokes Accused Rapist's Teaching Credential
• Concord High School Basketball Coach Abruptly Resigns
• Concord High Principal Did Not Influence Investigation: Attorney
• Embattled Concord Principal Led Staff Remotely While On Leave
• Concord School District Is Burning Through Its FY20 Legal Funding
• Bow High School Coach Suspended, Targeted By Anonymous Mailer
• Concord City Council Issues Statement About Leung Case, Schools
• Former Rundlett Assistant Principal Not Credentialed For 12 Years
• Leung Report Release Could Be Embarrassing, Humiliating: Attorney
• Parents To Concord School Board: Fire Assistant Superintendent
• Mom Accuses Concord Teacher Of Trying To Groom Daughter In 2011
• Concord School District To Conduct Full Staff Credentialing Audit
• Second Concord School Employee Found Not To Be Credentialed
• Credentialing Of Concord's Acting School Super Could Take Months
• Concord Police Chief Says He'd Like To See School Investigation
• Acting Concord School Superintendent Not Credentialed With NH DOE
• Concord Superintendent Forsten, Principal Sica Placed On Leave
• Concord Board Of Education Considering Personnel 'Next Steps'
• Concord Board Of Education Members Eyeing Investigative Report
• Parents, Students Vent About Issues With Concord School District
• Concord School Board To Update Public About Investigation Tuesday
• Concord School Superintendent: Letter To Staff 'A Serious Error'
• Petition To Remove Officials From Concord Schools Cracks 2,000
• Concord School Board Holds Emergency Meeting Sunday With Counsel
• Online Petition Launched To Have Concord School Officials Removed
• Concord Superintendent Lashes Out At Media Coverage Of District
• Concord School Board To Revise 'Professional Expectations' Policy
• Concord High School Principal Takes A Leave Of Absence
• Labrie's Former Counsel Not Hired To Probe Teacher Rape Case
• Concord School Board Opens New Investigation Into Leung Rape Case
• How A Distinguished Concord Teacher Became A Student Rape Suspect
• Students Saw Concord Teacher Kiss, Hug Another Student: Docs
• Should The Concord School District Have Responded Faster To Case?
• NH Teacher Held Without Bail After Bay State Arraignment
• Concord Teacher Accused Of Raping Student In Newton, MA
• Distinguished Educators for 2012

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