I write to address what I perceive to be a misperception or perhaps even a mischaracterization of matters surrounding the search of a student at Winslow High School. By way of background, I am an attorney at Lambert Coffin in Portland. Our firm agreed to represent the student in question as cooperating counsel for the MCLU. Dennis Carrillo, one of the attorneys here at LC, was primarily responsible for the matter but I worked closely with Dennis on the matter and am familiar with all aspects of the case, including the resolution.

Based on the recent articles in various Maine dailies, but primarily written by Morning Sentinel staff, and based on two recent editorials in the Sentinel, two themes seem to have developed. First, there appears to be a theme that the parties to this settlement, including both the student (and by extension the MCLU) and the school, tried to “hush” the matter up, or at least try to shield the matter from undue public disclosure, and have only reluctantly responded to requests for more information which according to the articles has been maddeningly inadequate. Admittedly, the insinuation of a failure to timely disclose has been directed more at the school and school officials than at the student, but of a necessity there can’t help but be some negative spillover in the direction of the student. The second theme that has developed is that, but for the efforts of the Morning Sentinel and the Blethen newspapers, this matter might never have seen the light of day. Neither theme is accurate and I write to correct any misperception that may have been created.

As to the first theme, that the matter should have been disclosed earlier and with more information, our obligation on behalf of the student was to advance her interests. Those interests were best served, as it turned out, through private negotiations with the school about the matter, which culminated in the resolution which was recently approved by the court. I have seen nowhere reported that the parties actually filed an application with the Maine Superior Court for approval of this settlement on August 27, 2007. The documents filed with the application for approval identified the student, the student’s mother, the nature of the offense leading to the claim, in summary fashion the parties’ respective legal positions about claim, the amount of the settlement, the changes that would be made to Winslow school policies regarding searches, and all other aspects of the resolution of the claim. The application for approval of the settlement was not filed under seal and was therefore a public document available to be viewed by any member of the public by simply asking the court clerk. As to the provision in the application, which was incorporated into the court order approving the settlement, that the parties agree “that there will be no public statements made by either party or a joint public statement . . .,” this was intended to keep each side from attempting to retry the matter in the press after the approval of the settlement. Each side in a contested legal matter often has a slightly different recollection or perception of the relevant facts and subtle distinctions can often lead to different legal results. The intent of the provision was to let the settlement speak for itself, along with whatever public statement upon which the parties could agree. This is precisely what occurred.

As to the second theme, that but for the efforts of the Sentinel the matter would not have seen the light of day, I have to disagree. As noted above, the application for approval was filed in court on August 27. All of the materials sent to the Sentinel earlier this week by Attorney Smith were available for public viewing at the courthouse in Augusta by August 27th. Nothing about the Sentinel’s FOAA request spurred the disclosure of those documents – they were already public records available for viewing and Attorney Smith simply as a courtesy faxed them to the Sentinel. What I find interesting is that on a matter of such public concern, where the story was available for any enterprising reporter to discover simply by glancing over the filings at the Superior Court, it was not until the parties issued a joint press release a month after filing the papers with the court that the Sentinel “discovered” the story. And even after getting the press release, no one from the Sentinel apparently bothered to check the docket sheet to see if there were any public filings on the matter. It is a sad commentary on the state of our print journalism that news is now what entities chose to issue as press releases rather than the product of investigative reporters working beats, checking sources, looking at police blotters, court filings and etc.

Finally, there a side of this story which has been addressed by no one to date, and that is the courage and fortitude of a young woman in Winslow who chose to stand up and make a difference. This young woman didn’t understand the legal niceties of search and seizure jurisprudence and Supreme Court precedent, but she knew enough to say “this isn’t right.” She knew that pursuing this matter would mean that her identity and that of her family would be made public, that she and they could be held up to scorn and ridicule, and that the glare of the public spotlight as this story unfolded could be harsh and unforgiving. The matter has ended quickly and well for her, but she didn’t know, when she decided to pursue this matter 11 months ago, where this would go or how it would end. Yet with all this uncertainty, she knew that what happened to her was not right and she felt compelled to fix it. Seemingly small acts of conscience by average people, like Rosa Parks and Clarence Gideon, have the power to move mountains. This is what happened here, and the people of Winslow should be proud that one of their native daughters had the courage and strength of character to stand up and say “no.” Meeting such people, and having the honor to represent them, gives me great pleasure and tremendous hope for the future of civil liberties in our great country in these difficult times.

Very truly yours;

s/H. Peter Del Bianco, Jr.