Are you a person of “ordinary firmness”?

Kelsey Boggs and her mom claim they were treated badly by a high school principal in Krum ISD.  Kelsey filed suit against the district and the principal, claiming disability discrimination and unconstitutional retaliation.  We can learn four things from the federal court’s opinion in the case.

First, the district is not going to be liable for a constitutional violation unless there is evidence that the injury was caused by the district’s policy or widely known custom. There was no evidence of that here.  The allegations were about alleged bad behavior by the principal. Even if those allegations are true, they do not implicate the school district. 

Which leads to the second point: what about the principal?  The suit alleged that the principal used his governmental authority to retaliate against the student after her mother went to bat for her.  The court dismissed this part of the lawsuit because the alleged retaliatory acts were simply not that bad.  The judge thought that a person of “ordinary firmness” would not be intimidated by the things the principal allegedly did. Key Quote:

Plaintiff cites no evidence that [the principal] “retaliated” against her in any concrete way….Plaintiff, instead, accuses [the principal] of calling her and her mother “liars,” following her to classes, and openly speculating about her chances to graduate…..A jury could not find that a person of ordinary firmness would be chilled from exercising their free speech rights based on these interactions, however immature.

The third point is a little inside baseball about the legal requirement to “exhaust administrative remedies.” The school asked the court to dismiss the ADA/504 disability discrimination claims on the theory that the plaintiff should have pursued them in an IDEA special education due process hearing. But the plaintiff did pursue such a hearing. It was dismissed based on a “stipulation” drafted by the school district stating that “There are no issues related to IDEA or concerns that the student did or did not receive a FAPE.”  So the court said to the school: you can’t do that.  You can’t “stipulate” that there is no IDEA claim here, and then turn around and argue that the plaintiff should have pursued her IDEA claim. Not fair.  The legalese for that is “judicial estoppel.”  So bottom line on this case: the constitutional claims against the district and the principal were dismissed, but the claim of disability discrimination gets to proceed.  We have no idea if that claim has merit—only that the plaintiff was not required to take it to a special education hearing, and so she can pursue it in this court case.

The final point is for the lawyers more than the educators. It’s usually a mistake to make personal accusations against the other guy in the lawsuit.  This judge was put off by some of what he read in the school’s legal brief:

In their briefs, Defendants levy attacks on Plaintiff’s character that seem to have no or little relevance to the issues to be decided on this motion.  This includes suggestions that Plaintiff is a liar because her Complaint lists an old address rather than her current one—as well as several references to Plaintiff’s personal life, including her dating history, alcohol use, a shoplifting incident, and her mother’s issuance of a bad check.  The Court does not consider irrelevant character evidence when deciding the merits of the motion and reminds Defense counsel of his duty to act professionally in all court matters.

The case is Boggs v. Krum ISD, decided by the federal court for the Eastern District of Texas on March 21, 2019. We found it at 2019 WL 1293851.


Tomorrow: Is Robert Mueller busy?