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Elbert P. Tuttle Courthouse in Atlanta

A trio of federal judges this morning dug into the tangled, nearly unbelievable case of a 14-year-old girl sodomized in a middle school bathroom after employees used her as bait to catch a repeat sexual harasser.

But the judges didn't want to talk about the facts of the 2010 botched sting operation. Those were not in dispute.

Today was about liability, about who knew what when, about whether the principal and assistant principals could have prevented this attack, about whether the Madison County school board should face a jury trial for civil damages.

"That's what we always wanted, a jury trial," Eric Artrip, attorney for the girl, told news cameras outside the 11th Circuit Court of Appeals in downtown Atlanta early this morning.

Mark Boardman and Clay Carr, attorneys for the school system, both declined to comment, immediately after what, for them, would turn into a grueling examination of school policies and practices.

The U.S. Department of Justice also joined the fray today, arguing on behalf of the girl that the Madison County school board and administrators at Sparkman Middle School failed to provide a safe environment for female students as required under the federal Title IX act.

The key federal issues were "actual notice" and "deliberate indifference." Did school officials have enough warning to know the boy was dangerous? Did officials at Sparkman Middle School act with deliberate indifference to the girl's safety? To the safety of all girls?

The lower court long ago threw out most of the lawsuit, except for state claims of negligence and wantonness against June Ann Simpson, the teacher's aide who hatched the "misguided" sting operation, and against Jeanne Dunaway, the assistant principal who the aide told of her plan to trap the 16-year-old boy.

But the judges didn't seem as concerned with those two individuals, or the state claims, instead spending most of their time on the rest of the command chain, asking about Principal Ronnie Blair, about assistant principal Teresa Terrell, about school board policy and even about other individuals never named in the suit, including the in-school suspension monitor and the school secretary.

The judges also introduced a new element, focusing repeatedly on what school officials did for the girl after the attack.

U.S. Circuit Judge Frank Mays Hull

"There doesn't seem to be any counseling for her," said Judge Frank Hull, saying the record does not show that the school system did anything to help the girl afterwards. Later in the hearing, Hull asked again: "What did the school do for her after the rape?"

Boardman, attorney for the school system, answered: "The only thing I can point to is provide educational opportunities."

The boy, now an adult but referred to as CJC today, was sent to the alternative school. The girl, now an adult but referred to as BHJ, attended Sparkman Middle for another month and a half after the attack.

But those records were fuzzy, lawyers for both sides were unclear on this and the judges asked for a new record of who attended where afterward.

Judge Susan Black also asked both sides to submit the birth dates for the two, saying she had looked and Alabama criminal law does not allow consent by a 14-year-old if the older party is two years older. The records say the boy was 16 at the time of the attack.

Judges continually asked about reliability or school records, asking about discipline codes, making repeated references to the fact that the rape, despite physical tests that showed anal tearing, was entered in school records as "inappropriate touching."

Mark Boardman, attorney for the school system, told the panel that the school did keep records of proven offenses in the student's computer file, but shredded paper records each year. He also argued that children are immature, and unlike with college students, it is not easy to tell if an incident is serious.

Boardman argued the system did take steps to protect students. Both sides raised the issue of Jan. 13, 2010, nine days before the assault, when the boy was accused of sexual misconduct with another girl. Boardman said even though the system couldn't prove that charge, they placed the boy in 20 days of in-school suspension.

But Judge Hull said the attack happened while the boy was roaming the halls on custodial duty. "Somebody should have been supervising and not letting him roam the hallways," said Hull.

She asked Boardman who was the in-school suspension teacher who allowed the boy to handle custodial duties. Boardman said he did not know.

Carr, the other attorney for the board and for the administrators, told the judges that "there was no evidence that Mrs. Dunaway or Mr. Blair was told that CJC would be assigned custodial duty."

Terri Mastando, attorney for the girl, spoke first.

Madison County board policies related to poor record-keeping and a need to catch students in the act to discipline them directly "led to use of the 14-year-old girl as bait in a sting operation," she said.

"I believe the record shows substantial risk of harm to all girls in the school," said Mastando.

Judge Hull asked about this point. Mastando said the aide had told Dunaway of her plan to send the girl to meet the boy in the bathroom. "That deals with Dunaway and Simpson," said Hull, "but you're trying to get to Terrell and Blair on actual notice."

Mastando said the aide told Blair earlier that the boy was propositioning girls to meet in the bathroom. "Terrell did not know directly," said Mastando. But she said Blair told Terrell and others to watch the boy.

Mastando was followed by the U.S. Department of Justice.

Federal civil rights attorney Lisa Stark referred to past misdeeds by the boy, arguing that in this case there was clear warning, including 15 discipline records against the boy in 15 months. "Five of those were sexual in nature and four were violent."

Stark argued that on Jan. 13 the boy had been in trouble for sexual misconduct with another student, and even though the school couldn't prove it, they put him in in-school suspension. He was then left unsupervised, she said, on Jan. 22 when the rape occurred.

On deliberate indifference, Hull told Stark the court needed to hear more on the other people named in the suit. The sting itself could be a matter of deliberate indifference, she said.

"That gets Simpson and Dunaway," said Hull. "I want to hear how you get to Blair."

She added: "You're just trying to get the board back in the case?"

"Right," said Stark, who argued Blair allowed the boy to be unsupervised despite his record.

She also argued that the destruction of discipline records and the failure to keep accurate records was evidence of deliberate indifference.

The judicial examination increased when the attorneys for the board and the administrators rose to speak.

Hull immediately quizzed the school attorneys on exactly who they worked for, how they were paid. Boardman said they were provided by the Alabama Education Association and the Alabama Association of School Boards.

She asked if they were really the attorneys for the insurance provider. Boardman said "no."

The school attorneys were appealing to throw out the state claims, but ended up spending most of their time on the federal arguments about who knew what when about the boy's past.

Boardman said the Jan. 13 the allegation involved a student reporting the boy and another girl "hooking up." Boardman said both denied it. "They still took action."

Judge John Antoon asked if it was state law that records be destroyed. "I guess they could have kept them. Maybe some schools do," answered Boardman.

Hull asked if the secretary could have entered the rape as a crime in the boy's computer record. Boardman said she could have but did not, entering it as "inappropriate touching."

Boardman said the district attorney declined to prosecute the case as a crime. "We don't know why there was no prosecution, do we?" said Judge Black.

Boardman said of the boy's discipline history in the preceding 15 months only three incidents involved female students. But the judges disagreed.

The boy was charged with touching a girl, kissing a girl and paying someone to beat up a girl, said Boardman. "I'm not sure there is only three," said Hull.

"There are three that use the word touching," asked Black, referring to how the rape was listed. "Are they similar to this one?"

Hull asked about an incident in Ardmore shortly before the boy transferred to Sparkman Middle. Boardman acknowledged he wasn't counting that one. But Hull said it was in the boy's records where administrators could see it.

"Ok, we're up to 4," said Hull. She pointed to two more discipline records involving female students. "It looks like there were six prior to this incident." But Boardman said sexual misconduct could be consensual.

That prompted Hull to ask why the system didn't keep the records that go with each discipline report. She said now what those records even mean could be a matter for a trial. "Let the jury decide what this was in light of the fact that this was entered as inappropriate touching."

Simpson, the physical education aide, no longer works for the system. She did not attend the hearing. Nor did her attorney. Hull also asked about that, but no one spoke for Simpson.

Before the hearing, attorney Eric Artrip told reporters that the girl is now "living a quiet life with family in middle Alabama."