| Ari Marken, Santa Monica
HS teacher, sexually harassed a 13-year-old girl Michael Chwe, michael@chwe.net Return to smmusdsafety.org On December 4, 2008, the Santa Monica-Malibu Unified School District (SMMUSD) found that Santa Monica HS math teacher Mr. Ari Marken had sexually harassed a thirteen-year-old ninth grade girl in one of his geometry classes, in violation of SMMUSD policy 5145.7. This finding was the result of an independent investigation by Attorney Investigator Robin Oaks, who wrote the investigation report (right). Mr. Marken was removed from his classroom for five weeks while the investigation took place. In a memo to Mr. Marken, Asst. Superintendent Michael Matthews wrote that Mr. Marken “created an intimidating, hostile or offensive educational environment.” On September 13, 2008, Mr. Marken emailed the student saying that she would never beat him at tennis. Mr. Marken made a bet with the student in which if the student beat him in tennis, she would get extra credit on every test in Mr. Marken's geometry class, and if the student lost, she would have to clean his desk. At least once while playing with the student, Mr. Marken did not wear his shirt. On October 7, 2008, Mr. Marken sent an email to the student saying, "Don't tell others that you're my favorite. I'm not supposed to have those." After geometry class one day, Mr. Marken took a granola bar to the student's third period English class and gave it to her; Mr. Marken then asked the student if she had a "crush" on anyone in the class. Earlier in the fall, Mr. Marken had told his students that he had broken up with his girlfriend. In early October 2008, Mr. Marken touched the student's head on top and moved his hand in a back and forth motion, moving her hair; according to the student, Mr. Marken had massaged her head. In an independent review, on March 10, 2011, Judge Ruth Kwan of the Los Angeles Superior Court wrote: "The complained of conduct may seem innocuous or innocent when taken alone, however, when viewed collectively, the complained of conduct supported the investigator's findings." Despite his violation, Mr. Marken was allowed to return to the classroom less than one week after the district's finding. On December 3, 2009, Mr. Patrick DeCarolis, an attorney representing the girl's family, sent Asst. Supt. Mike Matthews copies of Facebook communications between Mr. Marken and another young woman which began in June 2007, before the young woman had graduated from Santa Monica HS. The SMMUSD began an investigation. Mr. Marken was put on leave again, for the entire 2009-2010 school year, but returned to the classroom in September 2010. The SMMUSD has never explained the reasons why it put Mr. Marken on leave for a second time. High school teachers are adults in a position of power and authority over children. Parents tell their children to trust and obey teachers. When a high school teacher is found to have sexually harassed a student, parents have a right to be informed about the teacher's actions so they can protect their children, and at the very least tell them how they can recognize, avoid, and report sexual harassment. Sexual harassment includes a wide range of actions, physical and verbal, including for example "unwelcome leering, sexual flirtations or propositions" and "excessive or repeated touching of a student that is without a clear educational purpose" (from SMMUSD policy 5145.7). The effects of sexual harassment on children also range widely, from few apparent symptoms to severe conditions including depression, panic attacks, and post-traumatic stress disorder, which recur over a lifetime (Kendall-Tackett, Williams and Finkelhor 1993). In a landmark 2000 report on teacher sexual misconduct, the Honorable Sydney L. Robins, former Supreme Court Justice of Ontario, Canada, wrote that the effect of sexual abuse on a child is often less related to the severity of the abuse and more related to "the vulnerability of the victim or the way in which disclosure of abuse was responded to. Accordingly, a seemingly minor incident of sexual touching by a close and trusted adult can have a profound and lasting impact." The SMMUSD released information about Mr. Marken on July 10, 2012, only after actively cooperating with Mr. Marken in his lawsuit to prevent the release of the investigation report. The SMMUSD never responded to parent questions about Mr. Marken. The SMMUSD asked parents to destroy emails and not talk to each other about the case, tried to intimidate students and parents with threats of slander, did not acknowledge parents' legal rights, publicly misrepresented its own legal obligations, and violated California state law by engaging in illegal delay. On August 31, 2010, SMMUSD Supt. Tim Cuneo sent a memo to parents asking them to destroy an email which Mr. DeCarolis sent to parents on August 30, 2010. When asked directly whether parents were legally obligated to do so, Supt. Cuneo in his reply did not answer, and instead of acknowledging parents' free speech rights, tried to further threaten and intimdate parents. (For more information, click here). On December 7, 2010, over 150 SMMUSD parents wrote a letter to Supt. Cuneo and Santa Monica HS principal Dr. Hugo Pedroza asking for information about Mr. Marken so they could best protect their own children. Supt. Cuneo and Dr. Pedroza did not respond. (For a news article about this letter, click here). When interviewed by the press, Supt. Cuneo said that he could not disclose details about Mr. Marken for legal reasons, when exactly the opposite was true. California case law has long established that when a public employee has received disciplinary action, documents concerning this discipline must be released to the public when requested. For example, in AFSCME Employees v. Regents of University of California (1978), the California First District Court of Appeal wrote: "where the charges are found true, or discipline is imposed, the strong public policy against disclosure vanishes; this is true even where the sanction is a private reproval. In such cases a member of the public is entitled to information about the complaint, the discipline, and the 'information upon which it was based.' " On December 14, 2010, I made a request under the California Public Records Act (CPRA) for the SMMUSD to supply public records concerning its investigation of Mr. Marken and its finding that he violated district sexual harassment policy. Under CPRA section 6253, local agencies must respond within 10 days, with a 14 day extension, and "Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records." On December 20, 2010, SMMUSD counsel replied to my request saying that the SMMUSD needed the 14 day extension. On January 6, 2011, SMMUSD counsel replied again, saying that the SMMUSD needed an additional extension of one month so that Mr. Marken could have time to seek a court order preventing the release of the documents. On February 4, 2011, I wrote to the SMMUSD Board of Education and Supt. Cuneo saying that this additional one month extension was a violation of CPRA section 6253. On February 7, 2011, I wrote to SMMUSD counsel saying that I did not agree to the one month extension and that I expected the SMMUSD to act according to the commitment it had made (on January 6, 2011) and release the documents on that day. Later on February 7, 2011, SMMUSD counsel replied, saying that it was the SMMUSD's position that the one month extension complied with the law and also that it was giving Mr. Marken's counsel an additional day to obtain a restraining order. On February 8, 2011, Judge Ruth Kwan of the Los Angeles Superior Court decided to grant Mr. Marken a temporary restraining order preventing the SMMUSD from releasing the documents until the preliminary injunction hearing on March 10, 2011. (Click here for a news article about this court date and here for a letter to the editor I wrote.) On February 23, 2011, I filed suit in the Los Angeles Superior Court to direct the SMMUSD to release the documents I originally asked for in my CPRA request. I am represented by attorneys Jeff Glasser and Thomas R. Burke of Davis Wright Tremaine. On March 10, 2011, Judge Kwan ruled that unless Mr. Marken appealed, the SMMUSD must release the documents by March 21, 2011. Mr. Marken's attorneys argued that his actions were not significant or pervasive, and offered to put each action in context. Judge Kwan replied that "you cannot look at each individual conduct in a vacuum, or in isolation," and that in reaching her decision she looked at the "totality of the conduct" of Mr. Marken. Judge Kwan agreed that the finding of the district's investigator was "well-founded," and in light of the law, she had no choice but to deny Mr. Marken's request. Judge Kwan said that a teacher's conduct, and how a district investigates it, are issues that all parents are interested in, particularly when allegations of sexual harassment are involved. Judge Kwan said that particularly after a teacher has been found to have violated school district policies, "the public has a great interest in knowing." Mr. Marken appealed this ruling. On January 24, 2012, the Court of Appeal of the State of California, Second Appellate District, ruled (right) that "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 public's interest in disclosure of this information—the public's right to know—outweighs Marken's privacy interest in shielding the information from disclosure." The Court of Appeal also stated that the SMMUSD's additional one month delay was "unauthorized." The Court of Appeal found "serious questions" with the legality of this delay: "In this case the District notified Chwe within the statutorily mandated 24-day period it intended to produce the requested records but also said it would delay providing any copies for an additional month to permit Marken's counsel to file his lawsuit. We have serious questions whether that delay was authorized under the CPRA." The Court of Appeal's decision was covered by the San Francisco Chronicle and national legal websites including Findlaw.com. One of the legal issues in this case is whether third parties (in this case Mr. Marken) can file suit to prevent a public agency (in this case the SMMUSD) from releasing public records. The CPRA (section 6259) establishes a special procedure if a public agency refuses to release public records: the requester can sue, and if the court finds that the public agency violated the CPRA, then the requester is awarded court costs and legal fees. The CPRA also establishes an expedited appeals process. In its decision, the Court of Appeal said that third-party lawsuits are permissible, even though they do not have the special protections of the CPRA. In other words, if third-party lawsuits are permissible, then anytime a person files a request for records from a public agency, then the public agency can cooperate with a third party to sue the public agency and thus get around the expedited appeals process and its obligation to pay the requester's legal fees if it loses. This makes it much easier for public agencies to avoid disclosure and discourages requesters from filing suit to obtain public records. Because of this aspect of the Court of Appeal's decision, on March 1, 2012, my attorneys and I petitioned the Supreme Court of California for review. This petition was supported by amici briefs by the California Newspaper Publishers Association, the Los Angeles Times, the McClatchy Company, Bloomberg News, the Reporters Committee for Freedom of the Press, and the Howard Jarvis Taxpayers Association. However, the Supreme Court denied review on May 9, 2012. The SMMUSD finally released information about Mr. Marken (the investigator's report and Asst. Superintendent Matthews' memo to Mr. Marken) on July 10, 2012. The SMMUSD should answer parent and student questions openly instead of trying to intimidate and discourage them. The SMMUSD should stop violating state law and should acknowledge the free speech rights of parents and truthfully represent its legal obligations to the public. The SMMUSD should hold itself to the highest standards of public accountability instead of covering up incidents in which student safety is at risk. |
Investigation
report, November 25, 2008 and memo to Mr. Marken,
November 26, 2008 Judge Kwan's ruling, March 10, 2011 |