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Published in Print: February 26, 2003, as Court Dismisses Challenge To Superintendent Search

Court Dismisses Challenge To Superintendent Search

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A federal judge has dismissed a newspaper's lawsuit challenging the Cincinnati school board's secretive search for a new superintendent last fall.

U.S. District Judge S. Arthur Spiegel ruled on Feb. 11 that TheCincinnati Enquirer's complaint that the search process violated its First Amendment right to freedom of the press was without merit. ("Cincinnati Search: Quick, Quiet, and Controversial," Oct. 2, 2002, and "Paper Sues Cincinnati Schools Over Secretive Search," Nov. 6, 2002.)

The school board refused to turn over candidates' résumés, used fictitious names and numbers on documents to conceal their identities, and reimbursed candidates by cash rather than check for their travel expenses, the newspaper said in its lawsuit.

Members of the board of education argued that such steps were necessary to protect the identities of the people interested in the job. Alton Frailey, an administrator in a suburban Houston school district, was selected on Sept. 6 as superintendent.

Sally Warner

Sally Warner, the board president in the 42,000-student district, said last week she was pleased with the judge's decision, and with the search process itself in "a superintendents' market."

"We really felt like we would not be able to get the kind of candidate we wanted" with an open search, she said. "This [decision] supports that the path we took was the right one to take."

During the search, board members argued that selecting a superintendent for the district was their responsibility and that the public should hold them accountable for the outcome, rather than the process.

In his decision, Judge Spiegel agreed with that rationale.

"If the citizens of Cincinnati are disgruntled with the choice of their elected school board members, they can vote to change those members, or further, work to change the manner of selection of the superintendent," he wrote.

Jack Greiner, the Enquirer's lawyer, said the newspaper was considering whether to appeal the ruling.

A separate complaint filed by the paper with the Ohio Supreme Court, seeking to compel the district to turn over what the paper argues are public records related to the search, is still pending.

Documents at Issue

Working with a search firm, the school board conducted a hunt for a new leader that was as paper-free as possible. Candidates who flew to Cincinnati for interviews brought their résumés with them, handed them to board members during their meetings, and then took their documents home.

The newspaper argued that such a procedure violated not only Ohio's open-records law, but also the paper's First Amendment right to gather news and access government information. Judge Spiegel disagreed.

"In this case, if ordered to produce documents, the board would have to create documents," he wrote. "The court finds no historical basis for ordering a government entity to create public documents where none exist."

Vol. 22, Issue 24, Page 3

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