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Friday, March 12, 2010

If this is not clearly established law . . .

In late January, a 13-year-old female student at Roberto Clemente Middle School in Germantown, Maryland, refused to stand or speak during the Pledge of Allegiance. Her teacher demanded she stand and, when the girl refused, he kicked her out of the room and sent her to a counselor's office. When she refused to stand the following day, the teacher called a school security officer to escort the girl to the counselor's office. When the girl's mother contacted an assistant principal, the assistant principal said the girl should apologize for her "defiance." Needless to say, the ACLU was then called. (H/T: John Q. Barrett and The Jackson List).

Well, the school district (or its lawyer) finally did a bit of constitutional research to discover that students cannot be compelled to participate or recite the Pledge. Actually, such research was unnecessary, since the district's own policies (consistent with state law) provide that "You will have the opportunity to participate in and/or watch patriotic exercises in school. You cannot be required to say a pledge, sing an anthem, or take part in patriotic exercises. No one will be permitted to intentionally embarrass you if you choose not to participate."

Apparently they forgot to tell this teacher--the student clearly was embarrassed and the teacher clearly embarrassed her.

The school board apologized to the student, announced its regret to the entire community ("this shoud not have occurred"), and promised to hold educational sessions for the students and this teacher.

Query whether the family sues. No way could the teacher win on qualified immunity--little is more clearly established than Barnette and there are no factual distinctions in play that a reasonable teacher would not have known he could not compel a student to participate in the Pledge. The student seems, from some news accounts, to have suffered tangible harm, so she might even get more than nominal damages--punitive damages might even be in play, given the intentionality and obviousness of the violation. More generally, school boards (and thus courts) have struggled, particularly since 9/11, to reimpose or re-emphasize symbolic patriotism in the schools while also respecting First Amendment liberties and Barnette's command. This is an example in which government, in its own words, "fell short."

Posted by Howard Wasserman on March 12, 2010 at 08:01 AM in Current Affairs, First Amendment, Howard Wasserman | Permalink


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Punitive damages are not available against the entity under § 1983, only against the individual officer. And most indemnification agreements do not cover the sort of intentional misconduct that would warrant punitives. So to the extent § 1983 truly imposes any financial deterrent on individual officers, it actually only comes through punitive damages.

Posted by: Howard Wasserman | Mar 13, 2010 10:36:10 PM

Just curious -- what is typically the source of the "punitive damages" in cases like these? Assuming the school pays, and not the teacher, will the effect be drain the state's school budget coffers even further? Or will some other group get hit?

Punitive damages paid from the government makes me a little uncomfortable; are we trying to punish the taxpayers at large? Compensatory damages + firing the culpable individual (if appropriate) seems like the better approach.

Posted by: andy | Mar 13, 2010 2:52:55 PM

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