“He just had his bell rung….”

A couple of months ago the Dawg recommended that you advise your coaches to drop this phrase from their vocabularies.  This continues to be good advice.  In fact, we now have a federal court case in which this familiar expression has been used as evidence against a school district.

The parent sued the district over a head injury a student suffered after an exercise that was described as a “mat drill.”  The suit alleged violations of Title IX, Section 504, the ADA and various constitutional provisions. None of it stuck. The court dismissed the case in its entirety.

Nevertheless, the fact that “he just had his bell rung” came up in the legal proceedings is noteworthy.  We have heard this expression for many years, usually by a TV commentator during a football game.  In this case, the parent alleged that the coach would not have shrugged off a similar injury if it had happened to a girl.  Thus the allegation was that the coach’s remark revealed an attitude of discrimination based on sex, tolerating injuries to boys that we would not tolerate with girls.

The court noted that there was no indication in the lawsuit that the district had a policy of discriminating against the girls, nor was there an allegation of anything that would amount to deliberate indifference. The coach’s casual comment fell far short of showing sex discrimination.

Todd Clark and Kelley Kalchthaler from our firm ably represented the district on this one, which took a lot of patience because the legal theories kept changing. Originally the parent’s lawyer alleged sex discrimination.  Todd and Kelley filed a Motion to Dismiss the case, so the plaintiff added a claim of constitutional violations.  We filed a Motion to Dismiss those claims also, so plaintiff filed another pleading, tossing in some additional constitutional theories.  Kelley and Todd filed yet another Motion to Dismiss, and so the plaintiff tossed in a final theory—disability discrimination.  Nope.  The court finally granted the school district’s Motion to Dismiss the whole enchilada, noting the patience that the court had extended to the plaintiff:

Here, Plaintiff has been given leave to amend her complaint three times over a period of more than 12 months.  Plaintiff is represented by experienced counsel.  Plaintiff had the guidance of the Court’s August 31 Order and failed to provide new facts in her Third Amended Complaint that addressed the deficiencies in the Second Amended Complaint.   Plaintiff has had ample opportunity to plead her best case and has failed to state a claim under Rule 12(b)(6) twice.

Congrats to Todd Clark, Kelley Kalchthaler and the Giddings ISD for this good result.  The case is Ryburn v. Giddings ISD, decided by the federal court for the Western District of Texas on November 27, 2017.  We found it at 2017 WL 3821691.


Tomorrow: the final Toolbox Tuesday of this year….