Next Wednesday our firm offers an insightful webinar aimed at diagnosticians, LSSPs, speech therapists, special education directors and anyone else interested in Legal Issues for Evaluation Personnel.  Hope you can join Kelly Janes and Jamie Turner for this practical guide to conducting and reviewing evaluations. Sign up at www.walshgallegos.com. 

I would guess that it was the second half of Voodoo and Hoodoo that the parent objected to. The court described this book by Jim Haskins as “facially serious and scholarly” as it “traces the development of African tribal religion, its transfer and evolution in the New World” and “its survival in the United States through the current practice of two variations of the original African religion, voodoo and hoodoo.”  The second half of the book, however, “is devoted to a presentation of ‘spells,’ ‘tricks’ ‘hexes,’ recipes,’…that outline, in how-to form, the way to bring about particular events.” Like putting a curse on someone you don’t like. 

The parent of a 7^th grader, supported by the Louisiana Christian Coalition, asked that the book be pulled from the library.  The school had a policy about this, which it followed.  First, there was a School-Level committee as per the recommendations of the Library Media Director’s Handbook.  The five-person committee unanimously recommended that the book should be kept in the library, with access limited, however, to 8^th graders with written parent permission.  The committee noted that the book “fulfills the purpose for which it was selected, that is, to offer supplemental information/explanation to a topic included in the approved 8^th grade Social Studies curriculum.”

From there, the matter went to the Appeals Committee, appointed by the superintendent. Again, this was all per school district policy.  That group voted 6-1 to affirm the decision of the School-Level Committee. That one dissenter was a school board member.

The parent appealed the Appeals Committee decision to the 14-member school board.  After hearing from the Appeals Committee, the Christian Coalition, and considering the petition seeking the book’s removal signed by 1,600 people, the board voted 12-2 to remove the book.  Then the lawsuit by parents who wanted the book to be kept in the school library. 

The 5^th Circuit took its cues from the Pico case we told you about Monday and Tuesday of this week.  The court noted that the decision in Pico was a plurality, rather than a legally binding precedent from a majority of the Court.  Despite that, the 5^th Circuit said that the Pico case “may properly serve as guidance.”  That meant that the key issue here was going to be the true motivation of the school board, or at least of the 12 who voted for removal of the book.

There, the court punted, noting that “At this stage, we simply do not have a full picture of the reasons why the School Board members constituting the majority voted to remove the Book.”  The case had not had a full trial where all those factual issues would be sorted out.  The end result was just like in Pico: the case was remanded for a full trial. 

However, the court offered some thoughts on fact issues that cast shade on the actions of the board.  They were:

1. The school library is a special place of free inquiry.  The legal analysis of the library is different from the analysis of what is in the required curriculum.   School board members have more discretion with regard to curriculum, rather than what books are in the library, where students read only what they want to read.  
2. This book had been in the library for a long time.
3. Some of the 12 school board members had not read the book, some had read only parts. Some only looked at the excerpts provided by the Christian Coalition.
4. The board ignored the recommendations of two committees, thereby deviating from its own policy.

School board members today who are grappling with these issues should keep those factors in mind. The 5^th Circuit noted that these circumstances “cannot help but raise questions regarding the constitutional validity of its decision.”

It’s Campbell v. St. Tammany Parish School Board, decided by the 5^th Circuit on September 15, 1995. It’s located at 64 F.3d 184.

DAWG BONE:  FIRST SCOTUS, NOW THE 5^TH: REMAND THE CASE TO DETERMINE WHAT THOSE BOARD MEMBERS WERE REALLY THINKING.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: it could only happen in Miami

It’s not too late to sign up for our firm’s annual HR Symposium. Happening today. Sign up at www.walshgallegos.com for an excellent review of the legal issues involved in the hiring process.

In 1982, the Supreme Court addressed the legality of the actions of a Long Island school board that ordered the removal from the school library of several books that school board members described as “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” The Court framed the issue like this:

“…does the First Amendment impose any limitations upon the discretion of [the school board] to remove library books from the Island Trees High School and Junior High School?”  (Emphasis in the original). 

The first thing any good lawyer should point out about the Pico decision is that there is no “majority” opinion, and thus no “binding legal precedent.”  None of the justices on the court could draft an opinion that garnered support from four other justices.  The case was decided based on the plurality opinion of four of the justices, while one other “concurred in the judgment.”  The other four strongly dissented.  So we do not have a binding legal precedent authored by a majority opinion of the Court.   Nevertheless, the Court’s plurality opinion is the necessary starting point for any discussion of this issue.

That opinion notes the authority and discretion that school officials have to make decisions. It notes that the courts should not intervene in school-based conflicts unless “basic constitutional values are directly and sharply implicated in those conflicts.”  Were they implicated here?  Were they implicated “directly and sharply”?  The plurality opinion said yes:

But we think that the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library.

The First Amendment not only protects the right to expression; it also protects “the right to receive information and ideas.”  The school board members argued that they had the “unfettered discretion to transmit community values.”  The Court disagreed with the “unfettered” nature of that discretion, particularly with regard to the library:

[The school board members] might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values. But we think that [their] reliance upon that duty is misplaced where, as here, they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway. 

The court then laid out the limitations on school board discretion. That discretion “may not be exercised in a narrowly partisan manner.”  “Our Constitution does not permit the official suppression of ideas.” Thus it comes down to motivation: why these books? The court put it this way:

If [the board members] intended by their removal decision to deny [students] access to ideas with which [the board members] disagreed, and if this intent was the decisive factor in [the board’s] decision, then [the board members] have exercised their discretion in violation of the Constitution.

On the other hand, the removal of books that are “pervasively vulgar” or not “educational suitable” is perfectly OK.

The court did not decide what motivated the school board members, noting that the evidence in the record did not reveal a clear cut answer to that question. So the case was remanded to a lower court for further proceedings.  

In the next two Daily Dawgs we will take a look at two Circuit Court cases that came after the  Pico decision.  Hang in there with us!

DAWG BONE: BOOKS CAN BE REMOVED IF PERVASIVELY VULGAR.  A LITTLE BIT OF VULGARITY MUST BE OK.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Voodoo and Hoodoo in Louisiana

We’re Zooming with the Dawg this Friday at 10—hope to see you there.  My partner, Katie Payne, will be joining me as we discuss the controversy over removing books from the library.  In fact this will be the subject of all of the Daily Dawgs this week.  Zooming with the Dawg is free to all Loyal Daily Dawg subscribers: see you Friday!

What happened in Island Trees, New York in 1976 may sound eerily familiar and current.  A group of school board members attended a conference of a politically conservative group of New York parents. There they received a list of books that some described as “improper fare for school students.”  The board then gave the superintendent an “unofficial direction” to have any of the books that were on the list removed from the school library and delivered to the board members for review. 

The superintendent responded to this by reminding the board that the district had a policy “designed expressly to handle such problems.”  It called for the superintendent to appoint a committee to review the books and make a recommendation.  The superintendent expressed support for the existing policy, noting that “I think it can be followed quietly and in such a way as to reduce, perhaps avoid, the public furor which has always attended such issues in the past.” 

Nope. The board wanted the books pulled.  The “public furor” predicted by the superintendent came to pass, and it took the matter all the way to the Supreme Court.

It turns out there was a committee review, but the members were appointed by the board, not the superintendent.  The committee consisted of four parents and four staff members.  Here is the recommendation of the committee for each of the 11 books on the list:

Slaughter House Five, by Kurt Vonnegut: RETAIN, BUT REQUIRE PARENT APPROVAL.

The Naked Ape, by Desmond Morris: REMOVE.

Down These Mean Streets, by Piri Thomas: REMOVE.

Best Short Stories of Negro Writers, edited by Langston Hughes: RETAIN.

Go Ask Alice, Anonymous: RETAIN.

Laughing Boy, by Oliver LaFarge: RETAIN.

Black Boy, by Richard Wright: RETAIN.

A Hero Ain’t Nothin’ But a Sandwich, by Alice Childress: NO CONSENSUS.

Soul on Ice, by Eldridge Cleaver: NO CONSENSUS.

A Reader for Writers edited by Jerome Archer: NO CONSENSUS.

The Fixer by Bernard Malamud. RETAIN.

Just as the board ignored the superintendent’s recommendation, it also rejected the committee’s decision. The board was OK with one book: Laughing Boy, and permitted Black Boy to be available with parental approval. The other nine were to be removed.

Four high school students and one junior high student sued, alleging that the board had ordered removal of books “because particular passages in the books offended their social, political and moral tastes and not because the books, taken as a whole, were lacking in educational value.”  The students lost at the district court level; won at the Circuit Court level; and at the Supreme Court….well….it got complicated there.

That’s the background to the only SCOTUS decision directly addressing the authority of school officials to remove books from a school library.  It’s Board of Education of Island Trees Union Free School District No. 26 v. Pico, 102 S.Ct. 2799 (1982). 

I am going to devote all of the Daily Dawg entries for this week to this issue. This means that tomorrow’s entry will not be “Toolbox Tuesday” as it normally is. We will resume with Toolbox Tuesday, covering special education discipline, next week.   So tomorrow I’ll tell you about the Supreme Court’s ruling in the Island Trees case.  Wednesday we’ll look at a later case generated by our neighbors to the east in Louisiana decided by the 5^th  Circuit. Thursday we’ll take a look at a case from the 11th Circuit.  And Friday we’ll wrap up this discussion.

DAWG BONE:  REMOVING BOOKS?  HAPPENED BEFORE.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: The Pico case goes to the Supreme Court.

Today’s court case begins with what a 16-year old boy from Pennsylvania posted on Snapchat “while at an Easter Sunday celebration with his extended family in New Jersey.”  Here’s the post:

Everyone, I despise everyone!  F___ you, eat s___, blackout, the world is a graveyard! All of you, I will f___ing kill off all of you! This is me, this is my, snap!

On Easter Sunday!! We can only hope that the rest of the extended family was hunting for Easter eggs while singing “He Lives!” 

By now, I’m sure that Loyal Daily Dawg  Readers can predict what happened next.  Cops showed up at his house.  The kid was arrested and charged, had his phone confiscated, was sent to juvie, subjected to a psychological  exam, and, oh, by the way, expelled from school. Expelled. 

Things did not go well for the school when the case went to court.  The psychologist reported that the student was no threat. It turned out that what he posted were the lyrics of a song by Spite, which is yet another punk rock band that I’m pleased to have never heard of.  As in the case I told you about yesterday, the school was unable to convince the court that whatever disruption occurred was attributable to the student.  

The court noted that there was a major impact on the school, particularly after the superintendent notified the entire community that a threat had been made. This was based on the limited information that the superintendent had at the time. The next day, predictably, 25 % of the students did not show up, and the others were described as “anxious and upset.”  None of that convinced the court that the student should be expelled.  Key Quotes:

Though G.S.’s post sparked a chain of events that undoubtedly led to the disruption of normal operations at Penncrest, and resulted in communal agitation and fear, we nevertheless conclude that his post was constitutionally protected speech for which the school could not punish him.

Public schools may certainly take appropriate, good faith steps to protect their communities in fluid situations where it is unclear whether a student’s off-campus speech indicates genuinely harmful intent, as neither the First Amendment nor [a provision in the state constitution] require that they sit on their proverbial hands until a potential threat comes into actual fruition.  However, where a student’s properly contextualized, off-campus speech is not distinctly connected to school activities or clearly directed towards members of their educational community, a public school’s reach exceeds its constitutional grasp if it seeks to punish that student for any disruption to normal school operations that results from that speech.  

The courts always have the benefit of hindsight, which school administrators don’t have.  With that perfect 20/20 hindsight, it does look like the school overreacted. But what if this student had turned out to be the next school shooter?  If this Snapchat post had surfaced (and it would) the school would be blamed for not taking it seriously.

I wonder if the case would have come out differently if the school had only suspended the student for a short time to investigate. That’s the type of action taken in “fluid situations” that the court seems to be OK with. Once they had the report of the psychologist that the student posed no threat, they could have backed off on the long term discipline. 

Lessons learned the hard way. This one is G.S. v. Rose Tree Media School District, decided by the Commonwealth Court of Pennsylvania on January 7, 2022.  I found it at 2022 WL 67262.

DAWG BONE:  THERE WAS DISRUPTION….BUT WHOSE FAULT WAS THAT?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Today we continue our discussion of the case where a student posted a video on Snapchat depicting another student as a singer expressing an intent to kill, tie up, and eat other students. You read that right.  When confronted about this, the student pointed out that what he posted was lifted from lyrics by a popular band, Cannibal Corpse.  It was all a joke. He didn’t mean anything by it.

The school did not see the humor. It expelled the student, based on the student making a “true threat” and disrupting school by engaging in cyberbullying.  Yesterday we explained why the Supreme Court of Pennsylvania concluded that this was not a “true threat” and therefore, was constitutionally protected free speech.  Today, we turn our attention to the other issue: did the student’s action cause a material and substantial disruption of school?

There certainly was a reaction at the school, but the court did not think it met the “material and substantial” standard. The school reported the incident to the police, who promptly investigated and concluded that there was no threat.  Hearing that, the superintendent sent an email to all parents, informing them that there had been a threat on social media, but it had been investigated, dealt with, and there was no further concern over safety.    

That’s what any good superintendent would do, right?  Maybe so. But the Supreme Court of Pennsylvania had an interesting take on this:

While J.S.’s memes no doubt impacted the school environment to some degree, we do not believe that they rose to the level of a substantial disruption required by Tinker.  Initially, we note that the School District responsibly investigated the possibility of a threat by immediately contacting the police.  Upon receipt of law enforcement’s investigation and conclusions that J.S. did not present a threat and that it was safe to attend school the next day, however, IT WAS THE SCHOOL DISTRICT THAT CREATED A DISRUPTION BY SENDING AN EMAIL TO PARENTS THAT A THREAT HAD BEEN RECEIVED.  With respect to the students at school, the interruption was relatively minor….Importantly, there is no allegation that school was missed, classes or instruction interrupted, or the operation of the school was compromised. (Emphasis added).

So whatever disruption occurred was caused by the superintendent…not the student.  But imagine the blowback the superintendent would have faced had he not sent that email. 

Concerned Parent: “Do you mean to tell me that a student made a threat on social media and you didn’t even tell us about it?”

Cases like this engender that “damned if I do, damned if I don’t” attitude. But let’s add some context that might help.  It’s unlikely that the court would have been troubled by a short suspension to give the school time to investigate. This kid, however, was “permanently expelled.” I don’t know what “permanently” means in Pennsylvania, but it sounds pretty long.  Having imposed such a harsh penalty on the student, the school imposed on itself the burden of proving that the student’s meme was either a “true threat” or caused a major disruption of school.  The school failed both tests. 

The other point I would make is that sometimes state law requires a report to the community.  What if this had happened in Texas?  Would the superintendent be required to inform parents?

I don’t think so.  We do have a statute (T.E.C. 37.113) that requires a notification to parents if the school receives “a bomb threat or terroristic threat relating to a campus or other district facility at which students are present.”  What happened in this case, however, was not a “bomb threat” and it also fell short of a “terroristic threat” due to the lack of harmful intent. 

This colorful and interesting case is  J.S. v. Manheim Township School District, decided by the Supreme Court of Pennsylvania  on November 17, 2021.

Tomorrow we’ll tell you about another Pennsylvania case that went against the district.

DAWG BONE: SOMETIMES IT’S WISE TO BACK OFF ON LONG TERM DISCIPLINARY ACTION WHEN YOU KNOW ALL THE FACTS.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: a Snapchat snap about a song called Snap by a group called Spite.

For the remainder of this week I’m going to tell you about two student discipline cases from Pennsylvania that were overturned by the courts. There are lessons to be learned. First, let’s focus on what is and is not a “true threat.” 

The fact of this case reminded me of the common parlor game: “what was the first concert you attended?”  I’m pleased to report that my answer to that question is Peter, Paul and Mary in Tulsa, Oklahoma approximately 1963.  The edgiest part of that concert was “Puff, the Magic Dragon” because….well… you know, it wasn’t really about a magic dragon. 

Things are a lot edgier today.   Somewhere in America today there is a kid whose answer to the “first concert” question is going to be “Cannibal Corpse.”   I had not heard of this group until it came up in the case I’m about to tell you about.  Turns out the group has been around since 1988 and has produced 15 studio albums, two box sets, four video albums and two live albums.   They’ve had a good bit of success with album titles like “The Wretched  Spawn,” “Gore Obsessed” and “Violence Unimagined.”  I much prefer “Where Have All the Flowers Gone?”

So two boys in Pennsylvania were Snapchatting over a period of ten days.  Some of this involved mocking another student and joking about the possibility that he would be a school shooter because he liked Cannibal Corpse.  The Snap that caused all the hoopla (and litigation) was a meme video sent by J.S. (aka “the plaintiff”) in which the other boy was captioned as planning to kill other students, tie them up and eat them.  Whoa.  The court noted that this kind of talk was similar to the lyrics of some Cannibal Corpse songs. What else would you expect with a name like that?

All of this was off-campus activity.  The video was posted on Snapchat for all of five minutes, and seen by no more than 40 other kids, but that was enough time for it to come to the attention of the school.  Cops showed up at the home of the soon-to-be plaintiff early the next morning.  After interviewing J.S. and his parents, they reported to the school that there was no threat. No criminal charges were filed, but the school expelled J.S. for making a terroristic threat and cyberbullying. 

That disciplinary decision was overturned by the  Pennsylvania Supreme Court.  The court noted that a “true threat” is not protected by the First Amendment, but this “mean-spirited, sophomoric, inartful, misguided and crude” posting on Snapchat was not a “true threat.” The court held that “the primary focus” in determining if words amount to a “true threat” should be the “subjective intent of the speaker.” You have to consider “the totality of the circumstances” and for students, this includes “the student’s age, maturity, and lack of judgment.”  

Thus the video meme referencing Cannibal Corpse was not intended to threaten anyone and did not amount to a “true threat.” Since all of this Snapchatting happened away from school, on the boys’ personal devices, and was not a “true threat” it was protected free speech under the First Amendment and the school goofed by expelling the student. 

That is, unless the school could show that the Snapchat video caused a material and substantial disruption of school.  The court addressed that issue also. Come back tomorrow for that!

This is J.S. v. Manheim Township School District, decided by the Supreme Court of Pennsylvania  on November 17, 2021.

DAWG BONE: WAS IT A “TRUE THREAT”?  FOCUS ON WHAT THE SPEAKER TRULY INTENDED.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: the court  second guesses the superintendent.

Fundamental rule in student discipline: comply with your Code of Conduct.  I came across a case from New Jersey where they must have a really hard core Code of Conduct.  The school put the student in an alternative setting for the remainder of the school year based on the student’s possession of a small pocket knife and some alcohol.  How would your district handle that? 

The New Jersey case is a good illustration of the use of two of the tools in the Toolbox.  Since the knife had a blade of three inches, it qualified as a “dangerous weapon.” This means the school can use Tool #5—a Removal Due to Special Circumstances.  That removal could be for as many as 45 school days.  Note: the school can use Tool #5.  It doesn’t have to.

The tough guys in Jersey wanted to use Tool #5, and in fact, to go even further. So they also used Tool #6—a Disciplinary Change of Placement—to justify the removal for the rest of the year.  This is only available when the behavior is not a manifestation of disability.

When I do my Toolbox workshops I often ask principals what penalty would be imposed on a student who had possession of a small pocket knife at school.  Typically they tell me that if the student did not use or threaten to use the knife, the penalty would be very minor. 

Principals should not get carried away with Tool #5.  It is the principal’s tool and the law authorizes a removal for up to 45 school days. But first, you should determine what your Code of Conduct says, and how your district has handled similar situations in the past.  So we should be careful when we say that Tool #5 authorizes principals to remove kids for up to 45 school days. A more accurate statement would be: The principal can remove the student for a period of time consistent with the Code of Conduct, not to exceed 45 school days.

The case is Ocean Township Board of Education v. E.R., decided by the federal court in New Jersey in 2014. We found it at 63 IDELR 16.

DAWG BONE: ASSISTANT PRINCIPALS SHOULD SLEEP WITH THE CODE OF CONDUCT UNDER THE PILLOW. 

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: have you heard of Cannibal Corpse?

Are you signed up for our firm’s annual HR Symposium?  It’s coming up next week—Tuesday the 15^th.  The focus this year will be on the many legal issues that arise in the hiring process.  This year when we have so many vacancies we are doing a lot of hiring. This is not the time to get sloppy about that process. So I hope you will sign up for this year’s Symposium. It’s all happening on Zoom. Sign up at www.walshgallegos.com. 

Now, for today’s Daily Dawg content…..

It was a brutal football season for us Longhorn fans last year.  Many of the games followed the same pattern.  The Horns played well in the first half, and often for three of the four quarters, only to squander the lead in the fourth quarter.  It turns out that winning three of the four quarters counts for squat. It’s only the final score that matters. 

This came to mind for me as I read Lamar CISD v. J.T.  This is a special education case in which the court ruled in favor of the district, thus overturning the decision of the special education due process hearing officer.  The main issue in the case was about whether or not the district had provided J.T. with a meaningful educational benefit during the 2018-19 school year.  In working with J.T. that year LCISD was a lot like the Longhorns, only in reverse: a bad first half, but a strong second half.    

During that first half—the fall semester--the court recounted at least five incidents in which J.T.’s teacher “responded inappropriately.”  This included throwing the boy’s shoes across the room, kicking him in the shin, shoving him to the ground and pushing him from a ball chair onto the floor.  The teacher, who was new to the district, resigned at the end of that semester.

When the mother saw the video of one of these incidents she pulled J.T. out of school. For the rest of the year, the school served J.T. by ratcheting up homebound services. The ARD Committee also agreed to provide OT, personal care services, ABA therapy, adaptive PE, and to make up for any lost speech therapy by the end of the year. Moreover, the district agreed to pay for six months of private counseling sessions for J.T.

The mother was complimentary of the homebound teacher, noting that the teacher “has gone above and beyond to make sure that J.T. progresses.”  That hard work paid off.  The student mastered his IEP goals in English, math, science, social studies and behavior.  He showed improvement on the STAAR, doing “exceptionally well on the Biology STAAR” while passing Algebra I and failing English/Language Arts by “only a few questions.”

To return to our football game analogy, what we have here is a lousy first half for the district but a whole ‘nother ballgame in the second half.   By the end of the year, the district could claim victory.  But do we measure educational benefit semester by semester? Or by the year as a whole?  Does the score at halftime matter?

The court held that it’s only the final score that counts.  (Note: the court did not put it in those words.  What a missed opportunity!)   The court held that we look at academic progress over the scope of the entire year.  After all, IEPs do not contain weekly, monthly or by-the-semester goals. They contain “annual” goals. 

So as we trudge along in this difficult year, remember that it’s not too late to improve services to students. It’s not too late in the year for students to make good progress. 

This one is Lamar CISD v. J.T., decided by the federal court for the Southern District of Texas on December 31, 2021.  It was reported on Special Ed Connection at 122 LRP 33. 

DAWG BONE: IN SPECIAL ED, JUST LIKE IN FOOTBALL, IT’S ONLY THE FINAL SCORE THAT MATTERS.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!

The Daily Dawg reports many cases in which someone obtains a court order to get reimbursed for their attorneys’ fees.  Almost all of those cases involve the plaintiff recovering from the defendant.  So it is rare to find a case where the court orders the plaintiff to reimburse the defendant for attorneys’ fees expended. It’s even more rare when the court orders the lawyer who represented the plaintiff to chip in.  But that’s what happened in Lewisville ISD. 

The case was a challenge to LISD’s at-large voting system, alleging that it deprived racial minorities of having an equal shot at representation on the school board.  So you would think that a suit like that would be filed by a person who is a member of one of those racial minorities.  Usually such suits are.   But in this case the plaintiff was a white male. 

This was important. It’s not that white males cannot file suits under our Civil Rights laws. They can. But nobody can file a lawsuit unless they allege that they have personally suffered some “injury in fact.”  This is fundamental. You can’t file a lawsuit alleging that somebody else has been injured.  There are a few exceptions to that general rule, such as when a parent is authorized to file on behalf of a child, but no exceptions applied here.  So here we have a white person alleging that the voting system is illegal because….because it favors white people.  See the problem?

The district filed a motion to dismiss, arguing that the plaintiff had not even alleged any injury that he had suffered, and thus he lacked “standing.”  The court agreed and tossed the case out.  Then the district sought its attorneys’ fees. 

Now that is a steep hill to climb. It’s not enough to show that the court ruled in your favor.  You also have to convince the court that this suit was “frivolous, unreasonable, or groundless.”  To make the lawyer responsible for the fees you have to provide “clear and convincing evidence” of “bad faith, improper motive, or reckless disregard of the duty owed to the court.” 

The court held that the district satisfied both of those standards and ordered the plaintiff and the law firm, Brewer Storefront, PLLC, to pony up $49,498.25 to reimburse LISD for fees expended.

In its defense, the law firm pointed out that it had successfully pursued cases under the Voting Rights Act like this one. That didn’t help them. Key Quote:

This assertion only provides further support for the Court’s finding that these experienced attorneys knew or should have known that [the plaintiff] had no standing to pursue his case.

The court also cited the manner in which the lawyers pursued the case, noting the four depositions “all of which lasted seven hours. And during these lengthy depositions, [the plaintiff’s] attorneys regularly strayed far afield from topics relevant to a voting rights case.

Our law firm handled this case for LISD and I think it provides an excellent example of how we at Walsh Gallegos strive to “help the people who help the kids.”  Kudos to my partners, Meredith Walker, Craig Wood and Christine Badillo for the good advocacy that obtained this result. It’s Vaughan v. Lewisville ISD, decided by the federal court for the Eastern District of Texas on December 28, 2021.

DAWG BONE: YOU WEREN’T HURT?  STAY OUT OF THE COURTHOUSE.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Today we offer some background on the case featured in yesterday’s Daily Dawg. The Supreme Court has decided to hear the case involving a football coach who was ordered to cease his practice of kneeling at the 50 yard line after the final gun to say a prayer. Here is a re-print of the first mention of this case in the Daily Dawg:

Friday, September 1, 2017

Just in time for football: court tells coach to quit praying on the field

High school football.  A praying coach. And the law.  This gives us all the ingredients we need for a made for TV-movie, or a good court case.  It brings out the culture warriors in droves. So let us take a moment to reflect on Kennedy v. Bremerton School District.

Coach Kennedy liked to say a prayer after the football game. He liked to do it smack dab on the 50-yard line. Lots of players joined him. 

This went on for quite a while, but eventually someone complained to a school administrator.  This led to an exchange of lawyerly crafted correspondence between superintendent and coach.  The message to the coach was plain: Coach—you can’t do this anymore.  Here’s my favorite part of the court’s lengthy opinion:

Kennedy’s legal representatives responded to the District’s letter by informing the media that the only acceptable outcome would be for the District to permit Kennedy to pray on the 50-yard line immediately after games.

Hmmmm. How do you suppose the superintendent felt about that?

The Coach eventually sought an injunction to permit him to continue to pray. The court denied it. He appealed to the 9^th Circuit, which has now ruled against him as well.  The court held that Coach Kennedy was not “speaking as a citizen” when he prayed. He was speaking as a school employee:

…by kneeling and praying on the 50-yard line immediately after games while in view of students and parents, Kennedy was sending a message about what he values as a coach, what the District considers appropriate behavior, and what students should believe, or how they ought to behave. Because such demonstrative communication fell within the scope of Kennedy’s professional obligations, the constitutional significance of Kennedy’s job responsibilities is plain—he spoke as a public employee, not as a private citizen, and his speech was therefore unprotected.

The court spelled out the many ways in which Coach Kennedy could practice his religion and then added:

What he cannot do is claim the First Amendment’s protection…when he kneels and prays on the 50-yard line immediately after games in school logoed attire in view of students and parents.

In support of its decision, the 9^th Circuit cited cases that came to the same conclusion in similar circumstances from the 3^rd, 6^th, 7^th and 5^th Circuits. The 5^th Circuit case is Doe v. Duncanville, 70 F.3d 402 (5^th Cir. 1995). 

You might want to let your coaches know about these decisions. The trend line is pretty clear.  This one was decided by the 9^th Circuit on August 23, 2017. 

DAWG BONE: ALWAYS ASK YOURSELF: WHAT WOULD COACH TAYLOR DO?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Lewisville ISD recovers attorneys’ fees….