Did the student’s Pledge of Allegiance case survive the District’s motion to dismiss?

The NFL last week issued a rule that it will fine NFL teams if their players refuse to stand during the playing of the National Anthem.  Players can opt out by staying in the locker room during that time.  This is certainly going to spawn a legal challenge.  It will be interesting to watch.

Yesterday, we talked about the Klein ISD case involving the student who says she suffered harassment and retaliation when she refused to stand for the Pledge of Allegiance. The District sought dismissal of the suit but weren’t entirely successful and here’s why…

To hold a school district liable for a constitutional violation, there has to be evidence of an official policy, custom, or practice that led to the violation.  The court observed that official policy can arise in various forms.  It usually exists in the form of written policy statements, ordinances, or regulations, but may also arise in the form of a widespread practice that is so common and well-settled as to constitute a custom that fairly represents official policy.

This suit raised challenges to the district’s written policy and also claimed the district had a widespread practice that led to the violation of the student’s rights.

The student first targeted the parent-notification requirement contained in the district’s legal policy, which tracked Texas Education Code 25.082.  The thinking was that the requirement could potentially put a parent and child at odds if the parent refuses to request an exemption against their child’s wishes.  The Court dismissed this part of the case, however, because the mother actually sought an exemption on behalf of her daughter.  The daughter did not have “standing” to pursue this claim.

The court, however, declined to dismiss the girl’s custom and practice claims.  The lawsuit alleged an unwritten custom or practice of implementing the policy to require students to stand during the Pledge and then disciplining students who refused.  The student cited several incidents in which she was disciplined and singled out when she refused to stand.

The court observed that the Klein ISD Board of Trustees is the final policymaker for the District. The suit alleged that the board had knowledge of the harassment and retaliation and did nothing to deter it.  According to the court, the suit stated sufficient facts to support a plausible inference that requiring the student to stand during the Pledge, and disciplining and harassing her amounted to a widespread practice so as to constitute a custom of the district. The trial court, therefore, allowed the student to proceed on her free speech claim.

The equal protection claim also survived because allegations that the student was “singled out,” including a write-up for sitting during the Pledge, and was the target of derogatory comments, including a comparison to “Soviet communists, members of the Islamic faith seeking to impose Sharia law, and those who condone pedophilia,” supported an inference that she was treated more harshly than other students, based on her beliefs.

This suit is in its very early stages, and as the facts develop further the court will have to decide whether the claims have any evidence to back them up.  We will keep you updated…


Tomorrow:  “American politics is not for the thin-skinned.”