A federal appeals court has revived a lawsuit on behalf of a Nebraska middle school student who alleges that her teacher cut her off during a classroom discussion about athletes kneeling during the national anthem in support of Black Lives Matter and later labeled her as racist in front of other students.
The unanimous three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled for the family on one narrow procedural issue—that they deserved to have a lawyer appointed to represent them in the case. But while a federal district court had ruled that the family was “unlikely to prevail” on the merits of their claim of First Amendment retaliation, the appeals court suggested that the case raises an important question about student expression.
“But the extent to which teachers may control student speech in the classroom is an open issue,” the 8th Circuit court said in its Sept. 2 decision in Crozier v. Westside Community School District.
The appeals court emphasized that it had only the family’s side of the story before it, and the allegations against the teacher have not been tested in court.
According to the family’s lawsuit, a 13-year-old student identified as A.C. was in her English class in 2016 when the teacher showed a video about athletes kneeling during the national anthem, which was then a new response in support of the Black Lives Matter movement and against police abuses of Black suspects. A classroom discussion also touched on a case in another state of violent community reactions to the police shooting of an unarmed Black man.
According to the suit, the teacher asked A.C. for her views and the student demurred. But when the teacher insisted that A.C. respond, the student said she believed the kneeling was disrespectful to the police and the military. And A.C. said certain rap songs that used the N-word and lyrics such as “F*** the police” were helping stir the violence. (The suit says A.C. did not utter the full N-word or F-word in class.)
A.C. began to discuss a conversation she had overheard the previous school year between two 7th graders, one white and one Black, about why Black people could say the N-word and white people could not. This is when the teacher cut her off, the suit says. A.C. had intended to say she did not believe anyone should utter the, the suit says.
The suit says that the next day, the teacher sent an email to A.C.'s mother stating that the student had to be “cut off” because the information A.C. shared took a “dicey turn” with her making statements that “generalize Blacks.”
A.C. stayed home sick that day, and the suit says she began receiving text messages from fellow students suggesting that the teacher had related the discussion to other classes and had labeled A.C. a racist who uses the N-word.
A.C.'s parents removed her from the school and began home-schooling her. They sued the Westside Community School District as well as the teacher and three administrators, alleging a violation of A.C.'s First Amendment right of free speech, among other claims.
The family initially contacted eight lawyers seeking to represent them, but when each declined, the parents sought to file the suit “pro se,” or for themselves and on behalf of A.C. When a federal district judge ruled that the parents, who are not lawyers, could not represent their daughter on a pro se basis, the parents contacted 27 more lawyers and a legal aid clinic without success.
They asked the trial court to appoint a lawyer, but in a ruling last year the judge refused their request and dismissed their suit.
The 8th Circuit court panel, in its decision, agreed with the lower court that the nonlawyer parents could not represent their daughter in a civil rights lawsuit.
“We think the district court was too quick to dismiss the usefulness of counsel, at least on the core claim of First Amendment retaliation” in the case, the appeals court said.
The court went on to suggest that there might be some merit in A.C.'s case, if proven.
“Whatever the scope of a teacher’s authority to limit classroom discussion, it is clear that students ‘cannot be punished merely for expressing their personal views on the school premises—whether “in the cafeteria, or on the playing field, or on the campus during the authorized hours,” ’ " the court said, quoting from the U.S. Supreme Court’s student expression decisions in Hazelwood School District v. Kuhlmeier and Tinker v. Des Moines Independent Community School District.
“The allegation here is that a public school teacher retaliated against a student merely for expressing her personal views when called upon to speak in a classroom,” the 8th Circuit panel said. “A retaliation claim requires proof that the teacher’s action would deter a person of ordinary firmness from continuing to speak, ... but the stress, anxiety, and ostracization arising from a teacher’s false attribution of racist utterances to a middle-schooler might fit the bill.”
The court said some of the parents’ legal theories in the suit “appear stronger than others, and an attorney might assist in winnowing the claims.”
The appeals court sent the case back to the trial court and ordered the judge to appoint a lawyer for the family.
“We expect that some member of the bar, in the tradition of the profession, will respond favorably to a request from the district court,” the appellate panel said.
A version of this news article first appeared in The School Law Blog.