Duct tape…a tree…a wiggly 2nd grader. What could go wrong?

Plaintiffs proceed in litigation under the pseudonym “John Doe” or “Jane Doe” to hide their identity.  Courts can approve this practice if it’s deemed appropriate due to the personal nature of the allegations, or other concerns regarding confidentiality.   But sometimes it’s the defendant that ought to be proceeding under a veil of confidentiality. Such is my very favorite Doe case—Doe v. State of Hawaii Department of Education.

The John Doe in this case was a wiggly second grader.  After he’d been “horsing around” the vice principal ordered him to stand still against the wall as a “time out.”  The little guy failed to comply.  You know how it is with second graders.  It was then that our VP made his fateful mistake.  He could have recited the Serenity Prayer, realizing that the behavior of young Doe was out of his control. But instead, he escalated the situation, threatening to impose a harsher punishment if the wiggling didn’t stop.   

It didn’t.  We’ll let the court describe what happened next:

[The vice-principal] followed through on his threat to take Doe outside and tape him to a nearby tree if he did not stand still.  The vice principal used masking tape to tape Doe’s head to the tree. The record is unclear as to whether Doe’s face was pressed against the bark.

The hero of our story is a 5th grade girl who showed early signs of leadership:

The tape remained for about five minutes until a 5th-grade girl told [the vice principal] that she did not think he should be doing that.  He instructed the girl to remove the tape, which she did.

Now that is the EFFECTIVE use of shaming! That girl should grow up to be a school superintendent.

The court held that our VP was not entitled to qualified immunity, noting that “Taping [Doe’s] head to a tree for five minutes was so intrusive that a 5th grader observed that it was inappropriate.”

So ask yourself: who should be proceeding with a pseudonym here?  It seems to me that the VP has far more to be embarrassed about than 8-year old John Doe.

The case is Doe v. State of Hawaii Department of Education.  It was decided by the 9th Circuit Court of Appeals on June 30, 2003.  We found it at 334 F.3d 906.


See you next week, Readers!