Free Speech

Court-Appointed Lawyer Ordered for Junior High Schooler's First Amendment Lawsuit

"The Croziers allege that the teacher 'lied to intentionally defame and label A.C. as a 'racist who said the N-word.'"

|The Volokh Conspiracy |

From Crozier v. Westside Community School Dist., decided earlier this month by the Eighth Circuit (Judges Steven Colloton, Roger Leland Wollman, and William Duane Benton):

In the fall of 2016, A.C. was a student at Westside Middle School in Omaha, Nebraska. The complaint alleges that a teacher assigned A.C.'s eighth-grade class to watch a video about athletes kneeling during the national anthem. The week before, it is alleged, there were "violent race riots" in North Carolina that "were spurred by the shooting of an unarmed black man by a police officer." In that context, during a "critical thinking" discussion, the teacher called on A.C. to share her ideas. A.C. demurred, but the teacher insisted that A.C. answer.

A.C. then expressed her view that "kneeling was disrespectful to law enforcement and military, and questioned that this violence could have stemmed from music lyrics that said such things as 'F-the Police, and the use of the N-word.'" (A.C. employed euphemisms in her comments and did not use profanity or the actual "N-word.") When the teacher demanded to know where A.C. obtained this information, she answered, "from the media."

To explain further, A.C. shared an example from the previous school year when she overheard a conversation between two seventh-grade students, one black and one white; the white student asked why he couldn't say the "N-word" when the black student could. The teacher then interrupted A.C. and directed her to stop speaking. The Croziers allege that if A.C. had been permitted to finish, she would have expressed her view that no one should use the "N-word."

A.C. stayed home from school the next day due to illness. The teacher allegedly "told several class periods worth of students that A.C. was a racist." The Croziers allege that the teacher "lied to intentionally defame and label A.C. as a 'racist who said the N-word.'" They assert that the teacher, in speaking to other students, "made the supposition that A.C. was home that day due to suspension," even though she knew that A.C. was home sick. The Croziers allege that the teacher admitted branding A.C. a racist: when A.C.'s mother later told the teacher that it was "entirely unfair that [she] labeled A.C. a racist," the teacher "rolled her eyes and smugly responded, 'I do not believe that to be unfair.'"

As a result of this alleged retaliation, the Croziers claim, A.C. was taunted by other students who "heard what [she] said," and A.C. feared for her safety if she returned to school. Some students sent A.C. text messages asking if she was suspended. When she returned to school, some called out to her in the halls. To avoid "sneering and bullying," she removed herself to the Dean's office to do schoolwork, and began eating lunch in bathroom stalls to avoid anyone who could harm her. She allegedly suffered emotional distress, anxiety, and depressive thoughts.

After meeting with the principal and assistant superintendent, the Croziers removed A.C. from school and began schooling her at home. A month after the classroom discussion, A.C. called a suicide hotline, described how the teacher's actions had caused her harm, and said that she wanted to kill herself. She twice attempted suicide. A.C. entered therapy and for a time was under 24-hour suicide watch. The Croziers later transferred A.C. to a new school.

The Croziers contacted eight lawyers about A.C.'s case but were unable to retain one…. [Later, t]he Croziers contacted twenty-seven more lawyers, Nebraska Legal Aid, and a legal clinic at a local law school, without success. The lawyers gave various reasons for declining, including lack of qualifications for the case, workload, lack of interest in the case, and conflicts of interest.

The Croziers sued pro se, but the Eighth Circuit concluded that nonlawyer parents generally couldn't represent their children in court (just as nonlawyers generally aren't allowed to represent anyone other than themselves). And because "In Nebraska, if a plaintiff is a minor at the time a cause of action accrues, the statute of limitations is tolled until plaintiff reaches the age of 21," this means "A.C. has a 'reasonably adequate opportunity' to sue," and refusing to let her parents represent her "does not violate her fundamental right to access the courts."

Nonetheless, the Eighth Circuit concluded that the trial court should appoint a lawyer for A.C.:

"Indigent civil litigants do not have a constitutional or statutory right to appointed counsel." "Rather, when an indigent [plaintiff] has pleaded a nonfrivolous cause of action, a court 'may' appoint counsel." 28 § U.S.C. 1915(e)(1)…. The [district] court concluded that although the Croziers demonstrated "their lack of financial resources" and made a "diligent effort" to obtain counsel, their constitutional claims were "not sufficiently meritorious to warrant the appointment of counsel." … We review that decision for abuse of discretion. A district court "has a good deal of discretion to determine whether representation is warranted given the nature of the case and the litigants," but the discretion is not unbounded.

The district court denied the motion for counsel after concluding that the Croziers were "unlikely to prevail" on their claims, including the core claim that the teacher violated A.C.'s right to freedom of speech by retaliating against her. In support, the district court cited a ruling that it was constitutional to discipline a student for uttering profanity in a principal's office, and decisions declaring that schools and teachers may limit classroom speech based on legitimate pedagogical concerns. The court concluded that "the First Amendment affords little protection to student speech during class time," so the teacher "likely would be entitled to qualified immunity."

The merits of the case have not been briefed and argued, but we think the district court was too quick to dismiss the usefulness of counsel, at least on the core claim of First Amendment retaliation. It is clearly established that "[s]tudents in the public schools 'do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'" … [T]he extent to which teachers may control student speech in the classroom is an open issue. And 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 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 complaint asserts that the teacher defamed the student by falsely labeling her as a racist who uses the "N-word"—an act that the district court understandably did not describe as reasonably related to a legitimate pedagogical concern. 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 district court did not address whether retaliation by defamation is any more permissible than the "punishment" expressly forbidden by Tinker, or otherwise elaborate on why retaliation for classroom speech would be consistent with the First Amendment.

Ordinarily, the denial of a motion to appoint counsel would mean that the plaintiffs may continue to litigate pro se, obtain a ruling on the merits from the district court, and exercise their right to appeal. But in the unusual circumstances of this case, the district court's denial of the motion, together with the rule against pro se representation by parents, terminated the action before any claim could be adjudicated. The student could proceed on her own when she reaches the age of majority, but that course would entail substantial delay and potential prejudice in pursuing the vindication of her alleged rights. We thus conclude that the district court's assumption about the likely application of qualified immunity was insufficient on this record to justify denial of the motion for appointment of counsel.

We have only a complaint before us, so we do not know whether the Croziers can prove their factual allegations. Some legal theories in the pro se complaint appear stronger than others, and an attorney might assist in winnowing the claims. Having received no briefs on the merits, we express no view on whether any claim ultimately would be successful.

But the core allegation of First Amendment retaliation is a serious claim on which the plaintiffs and the court would benefit from the assistance of counsel, especially when the case otherwise cannot proceed to a timely decision on the merits. We expect that some member of the bar, in the tradition of the profession, will respond favorably to a request from the district court….

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  1. Yep this sounds like the world Kirkland imagined. Brought to life by your friendly neighborhood marxist murderers.

    1. The only thing missing is her showing up with a semiautomatic weapon.

      1. Everything seems to end with murder for you. It’s not healthy.

    2. You think RAK, or this dumb teacher, is a mass murderer?

      1. It’s telling that you jumped from Marxist murderers to mass murderers.

        It’s been a while since the US has had Marxist mass murders, but the left now seems intent on excusing that.

        1. I did misread and thought there was a mass there. It still seems like Sometimes Bad Is Bad is hitting the drama button pretty hard.
          This teacher clearly sucks in a child-endangering way, so why push it beyond credibility?

          To what are you referring in the past as the US having Marxist mass murderers back in the day?

          1. Note that the teacher appears to still be employed by the school, so it looks more like this is systemic sucking in a child-endangering way. We can look forward to seeing more of this as the CRT stuff becomes embedded in the school system.

            It might be good for parents to homeschool for a while until we can manage to purge this stuff.

            1. Er, do we know that the allegations are true ?

              Of course, my every prejudice sings out that they are true, but my one remaining heartstring still tuned to fair play suggests that perhaps we might wait and see how the evidence plays out before consigning the teacher to the fires of Hell.

              Though she undoubtedly belongs there 🙂

          2. I did misread and thought there was a mass there.

            As often as you misrepresent what people have said one would think you’d take extra care to avoid this “misreading” problem you have.

          3. “I did misread and thought there was a mass there.”

            Yeah, “Marxist murder” and “mass murder” are different by a few orders of magnitude.

    3. ” Yep this sounds like the world Kirkland imagined. ”

      First comment?

      You are going to make the Conspirators jealous.

  2. Of course at this point we don’t know if the claims are true, but what we can say is that these are Serious Allegations.

    “the teacher called on A.C. to share her ideas. A.C. demurred, but the teacher insisted that A.C. answer.”

    Good instinct on A. C.’s part (if it happened). Of course, the easy course would be to pretend to agree with whatever the teacher was saying. If you really want to lay it on thick, thank the teacher for pulling you out of the vale of clinger ignorance in which you previously dwelt.

    1. The district court denied the motion for counsel after concluding that the Croziers were “unlikely to prevail” on their claims

      If they subsequently prevail, is there any kind of sanction applied to this judge, who rubbed their chin gently and looked pensively skyward and decided they were not likely to prevail?

      1. No, there is not “any kind of sanction” for a judge being overruled by an appellate court.

        1. Yes, there is . . . in clingers’ fever dreams.

  3. “In that context, during a “critical thinking” discussion…”

    Heh. The folks charged with teaching “critical thinking” are usually the ones least qualified to teach it.

    1. The people who feel qualified to judge teaching performance aren’t.

      1. Well, parents and students, the folks who have to live with the outcomes, have to do their best. Hopefully we can set up a system where parents have more choice over where they send their kids.

      2. So you think this was an example of good teaching?

      3. You suggest that K12 schooling performance is something that normal people can’t judge?

        Teaching is not some magical highly arcane art that only the anointed can understand and rightly judge; it’s a commonplace activity that nearly anyone can do, poorly.

        And lots of teachers have been doing it poorly as long as there have been teachers.

        I assure you that nearly everyone on the planet is qualified to judge K12 teaching performance. Maybe not grad school, or the higher end of undergrad, but K12, definitely, in general.

        If the allegations are accurate, it’s trivial to judge as either rank incompetence or vile malice, with perfect defensibility. It sure as hell isn’t Good Pedagogy.

  4. Perhaps because those in charge of such instruction are apprehensive that some students might actually learn and apply critical thinking in their lives.

    A pervasive “habit of basing beliefs upon the evidence and giving them only that degree of credence which the evidence warrants” might still “cure most of the ills from which the world suffers,” but this won’t carry much weight with those whose core agendas or beliefs critically rely on its absence.

    1. Sorry, my previous comment was in response to TwelveInch’s “The folks charged with teaching “critical thinking” are usually the ones least qualified to teach it.”

      (I’ve noticed that when I initiate a comment by clicking Reply, it sometimes – as with my previous comment – gets delinked from the replied-to comment when I’m using Chrome browser on my iPhone, but never when using Chrome on my laptop. Have others seen this behavior?)

    2. Yeah, I recall from my college days that many humanities profs loved to talk about critical thinking, but not to have it applied to them.

      1. Just a possibility, but have you considered whether you might not have been as good at critical thinking as you imagined yourself to be?

        1. Certainly. My stuff doesn’t always work. But eventually it has to.

        2. “Just a possibility, but have you considered whether you might not have been as good at critical thinking as you imagined yourself to be?”

          And I guarantee I could conduct a better discussion about kneeling at football games than this teacher, and I could do it without breaking the children.

          1. Yeah, it’s a pretty low bar.

            (And I dunno about 12″-Piano-Player, but I have excellent reason to believe I’m a very good critical thinker*, and have had the same experience. People like to deploy [how I hate the term, but it’s their term, and it fits] “critical thinking” as a tool against the Other, but “that’s different” when it’s their core beliefs.

            Very few people seem to rigorously apply it to themselves, for obvious all-too-human reasons.

            * Of course, why would you believe me? It’s not like I can provide evidence! But equally, acknowledging that should at least let you know I’m either speaking from experience or dedicated to … lying to a random commenter in a dumpster fire for no obvious reason?)

  5. How many Republican judges on that panel?

    A Republican and faux libertarian law professor must be heartbroken by the student’s depicted decision to evoke, rather than use, the vile racial slur. Perhaps A.C. could be invited to act as guest blogger to correct that situation?

    1. The church of exalted “reason”, on full display.

      If this is really who you are, I feel really bad for you. It’s pathetic and sad.

      1. Some on the left are able to muster a criticism that goes beyond guilt-by-association ad hominem attacks. And some used to stand up for civil rights. But most of them have switched to the laziest modes of thinking, including outcome-oriented reasoning. As you say, pathetic and sad.

        1. If the left is switching to thinking like the right, what’s going to be left to argue over?

      2. “If this is really who you are, I feel really bad for you. It’s pathetic and sad.”

        I’m a guy who doesn’t like vile racial slurs. Or those who seem to delight in using them every chance they perceive.

        I do not like bigotry or bigots. I say so.

        This seems to rankle the Volokh Conspiracy’s carefully cultivated conservative commentariat.

        Why?

        1. Does that assertion have anything to do with this case or thread?

          Did you just accuse a random high school girl you know nothing about of being a slur-slinging bigot Because Obviously Those People Are, In Flyover Backwater Badplace?

          Or just people on this thread who have demonstrably done no such thing?

          GFY, Kirkland.

          1. “Did you just accuse a random high school girl you know nothing about of being a slur-slinging bigot . . .?”

            No. To the contrary, I expressly indicated that the student merely evoked, rather than used, a vile racial slur.

            Other than that, great comment!

            Get an education, clinger. Start with standard English.

            1. “Did you just accuse a random high school girl you know nothing about of being a slur-slinging bigot . . .?”
              “No…”

              You said, “I’m a guy who doesn’t like vile racial slurs. Or those who seem to delight in using them every chance they perceive…” in a post about a little girl accused of using a racial slur.

              I know what you meant, but others might not.

              1. I was referring to a serial slur-slinger; that person was not the student from Nebraska.

                You’re flailing.

                1. As I said, I know what you meant. But there are people who might not read the comments frequently enough to know what you meant. I refer to those people as, “our betters.”

        2. Kirkland,
          You don’t even KNOW that any racial slur was used. Only your bigotry drives you to condemn anyone who does not see the world through the same shit-colored glasses that you wear.
          Talk about haters; you are the exemplar clocked in self-righteousness.

          1. That is why I indicated it appeared the student evoked that slur rather than used it. I expressly did not say the student used that slur, then contrasted that circumstance with the customary usage at a right-wing blog with a scant legal veneer.

            If you guy don’t keep your gloves up this isn’t going to be much of a contest.

          2. You guys really aren’t keeping up. Arthur was pointing out that the girl had the discretion to use the term “N-word” instead of using the slur outright, which, is in contrast to Eugene who Arthur believes too frequently uses on this blog.

            He was juxtaposing the choices of a middle schooler and a law professor and sharing his opinion that the middle schooler had the better of it.

            I mean, you must not come here often as Arthur generally finds a way to make that point in every post on which he comments. Now I understand why he makes the point in every post, because apparently you guys read it every day but still don’t get his point.

            *I take no position on whether the good Reverend’s efforts are wise or useful or substantively correct. But he has a coherent point and makes it pretty clearly pretty regularly.

            1. “Now I understand why he makes the point in every post, because apparently you guys read it every day but still don’t get his point.”

              They don’t want to get the point. They can’t handle the point.

              Plus, in most cases, it appears they’re incapable of apprehending the point.

            2. I mean, you must not come here often as Arthur generally finds a way to make that point in every post on which he comments.

              I’ve been coming here for a while, but I stopped reading his posts years ago, since I concluded that they were not worth my time. I am usually pretty tolerant – I even sometimes read Pollock posts – but I do have a limit.

              So it may be that he occasionally offers something worth reading, but I do not have the inclination to sift through six deep piles of ordure for each, very occasional, nickel.

    2. Three Republicans, Colloton (G.W. Bush), Wollman (Reagan), Benton (G.H.W. Bush).

      I was expecting at least two Democrats on the liberal expansion of court appointed attorneys.

      1. That lineup was relatively predictable in the relevant court (Circuit Court Of Appeals For The Can’t-Keep-Up Backwaters).

      2. Making sure a defendant has access to a lawyer to adequately defend his or herself is a liberal value now? What a strange comment.

        1. Defendant?

    3. Your forgot to accuse the student and her parents of being clingers.

  6. The fact that no lawyer wanted to touch this makes me skeptical about the allegations. If the allegations had serious substance, then I would think they could find some counsel, even an ambulance chaser, to take it.

    1. Or it could be that they have been conditioned to believe that if they litigate for a (suspected) racist, they’ll be branded as racist as well, and it’ll hurt their business.

      Cancel culture in action.

      1. Or, since being a lawyer and not a law professor is actually a business, a consideration is always how to get paid. And, in a case like this, there would likely be no damages to recover and no fee to be paid if the client didn’t pay first. So, not taking a case may be a rational economic decision and no reflection at all on the merits of the case.
        Now, a separate lawsuit against the teacher for slander and the school, maybe, as her employer (normally schools argue that their employee is not employed to slander people) and assuming the teacher has any money and is worth suing, them just maybe the case might be worth taking on. Especially for the type of lawyers that have no real practice and have a lot of time to waste.

        1. Or, since being a lawyer and not a law professor is actually a business, a consideration is always how to get paid. And, in a case like this, there would likely be no damages to recover and no fee to be paid if the client didn’t pay first. So, not taking a case may be a rational economic decision and no reflection at all on the merits of the case.

          No, that’s wrong. This — like just about any civil rights case — was brought under a fee shifting statute. The defendants pay the fee if the plaintiff prevails.

          1. “IF”. The student loan servicers don’t take payments drawn from the fee awards you might have won. They want fungible US funds.

      2. What Squire said. My guess is that all the lawyers looked at the case, thought about the time involved, realized the parents couldn’t pay and there would be insufficient damages to justify a contingency, and politely declined.

        1. Then it might be time to fire up the IJ Signal.

  7. I’m not sure how much good it will do her to have an assigned lawyer, but I wish her luck.

    1. This is mostly, if not entirely, limp lack-of-virtue-signaling by three Republican judges.

      Amplified by a polemical right-wing blog.

      It seems to be working.

  8. “The student could proceed on her own when she reaches the age of majority, but that course would entail substantial delay and potential prejudice in pursuing the vindication of her alleged rights.”

    Aw man!

    They missed the perfect time to use the, “Justice delayed is justice denied,” statement!

    I wonder how the 8th will enforce the order if the district court can’t find a lawyer (the parents already tried 35).

    1. There’s gotta be a new lawyer in that community somewhere with student loan payments to make.

      1. Then I’m not sure how being appointed to the case will help. Seems like those would be the worst people to appoint, since they need to make money to make those payments. Let’s instead see a senior lawyer making a seven-figure income do it.

        1. If the senior lawyer saw an opportunity to earn seven figures from this case, they would have no shortage of representation.

  9. School officials, both teachers and administration, are the most powerful officials in the country as they hold your children’s future in their hands. It is so easy for them to brand someone with a life altering accusation that will ruin your children’s future prospects.
    Win or lose this teacher’s label will follow this child for life.

    1. Cops kill people.

      Wouldn’t you say that’s more significant “life altering” than a teacher’s accusation and makes them more powerful than school officials?

      1. They have cops in the schools now.

    2. “School officials, both teachers and administration, are the most powerful officials in the country as they hold your children’s future in their hands.”

      No, it’s your children who hold your children’s future in their hands. School is one of the ways they can shape their future, but it’s far from the only way. Ain’t nobody paying attention to anything Bill Gates says because of that one semester at Harvard, for example.
      This kid doesn’t know what opposition from school administrators looks like. Read Malala’s book. That’s what opposition looks like.”If you try to go to school, we’ll shoot you (again)” is opposition. Or look at what the first batch of black students at Little Rock’s Central H.S. got to deal with (enough to require armed escorts). Then come back and complain about how being called “racist” is the worst thing ever.

      1. Apparently you have never been to high school and are therefore not familiar with the concept of bullying.

        And when the bullying starts from a teacher, it is even worse.

  10. Educators should avoid current politics. No matter what the utterance, it will pointlessly offend half the audience, in this divided country.

    1. Judging from this example, there are some “educators” who feel it is their duty to offend/harass/”reeducate” students who disagree with them about current politics.

      1. I agree. If the alleged facts are true, the student gave a perfectly acceptable answer. The teacher’s actions, if true, are outrageous.

      2. Indeed. The whole purpose of public education is to educate children about current politics.

        That’s precisely why vouchers and homeschooling are so dangerous. If the control of what is taught to children is taken out of the hands of public schools, there is a terrible danger that children may be distracted from learning the right things about politics, by an inappropriate concentration on math, science, reading and (real) history.

        Or even worse, the wrong things about politics. Or, dear God, God.

        1. “Or even worse, the wrong things about politics. Or, dear God, God.”

          How is it that your all-powerful deity allows people to teach wrong things about Him?

          1. Oh dear God.

            “Or, dear God, God” was – crashingly obviously, like the rest of my comment – uttered in .

            Thus the person saying “Or, dear God, God” is an fanatical atheist school administrator contemplating with horror the possibility that a child educated at home or in a private school, may be taught terrifying falsehoods such as that there is a God, by some creepy handmaid.

            Do try and keep up.

            1. “Or, dear God, God” was – crashingly obviously, like the rest of my comment – uttered in .

              seems to have automatically rejected the last three words before the full stop; which were “the progressive voice”

              Perhaps it’s sacrilegeous to take the Great God Progress in vain.

            2. “Do try and keep up.”

              You’re the one who wrote 4 paragraphs without answering the question you were asked, and you’re demanding that *I* keep up?

  11. I’m not sure which is more stupid – the teacher who starts a discussion on “critical thinking” then refuses to let such critical thinking proceed or the protectionist court rules.

    1. Yeah, the real shame is that the class probably could have had an interesting discussion on the arguments about whether or not kneeling during the anthem is disrespectful to law enforcement and the military.

      But I doubt many such discussions are happening in today’s schools.

      1. This is primarily because too many grownups involved (administrators, teachers, parents) aren’t truly grown up. They don’t want to meaningfully engage with ideas that threaten their own, using critical thinking tools that may be rusty from disuse. And they *certainly* don’t want their children doing this. What could be worse than exposing their kids/young charges to ideas and methods that may cause them to question their parents’/teachers’ most cherished political beliefs or religious values?

        It doesn’t take too many of the most vehement such adults to make such discussions prohibitively dangerous.

      2. “the class probably could have had an interesting discussion on the arguments about whether or not kneeling during the anthem is disrespectful to law enforcement and the military.”

        More likely, the discussion would have proceeded along similar lines to the way it does among alleged adults. Not very interesting.

        1. If you are going to prejudge a discussion as “not very interesting” before it even happens, why discuss anything at all?

          I think it is perfectly interesting.

          1. People yelling at each other, calling each other “fascists” and “Marxists” even though neither side really knows what actual “fascists” or “Marxists” are like seems interesting to you? Nope. It’s bad enough having to sit through the election advertising two months before an election. and, on YouTube, a lot of them are unskippable, alas.

    2. Well, I have some sympathy with “the protectionist court rules.”

      The court can reasonably expect the people appearing as advocates to be competent in the law, and in court rules. However sincere the parents may be, they are liable to waste a lot of court time.

      And having the court bend over backwards to help amateur advocates is not very fair on the other side.

      1. Your logic breaks down on the fact that the parents could represent themselves regardless of competency or wasted time. If the court outlawed all pro se applicants, it would be bad social policy but defensible for its consistency.

        However once you allow any pro se, it is manifestly unjust to deny the minor access to the courts merely because she is a minor while simultaneously denying her parents (who can be held legally responsible for everything she does or fails to do) the right to act for her.

        Footnote: Having seen the antics of many credentialed lawyers, I find it hard to credit the “waste of court time” argument. But even assuming that’s the root problem, address it directly. Charge people who waste time or bring frivolous motions. Don’t mistake credentials as a proxy for competence.

        1. If litigants represent themselves pro, there is a natural limitation of the amount of time the courts have to waste with amateur advocates. If any amateur advicate can represent any litigant, then there is no such limitation.

          1. ” If any amateur advicate can represent any litigant”

            They can’t, but amateurs can advocate their own litigation, if they’re dumb enough to risk it. Disclaimer: I went pro se into my divorce proceeding. My ex-wife, did, too, and I was a much better not-a-lawyer than she was. I had to pay money, but kept the house and sole custody of the offspring, which was the real issue in dispute.

  12. If the allegations are true, I truly feel for the student and her family, but I really don’t think the courts should be appointing (or even recruiting) counsel for civil plaintiffs. I don’t doubt the strength of cancel culture but, generally, if a plaintiff can’t find a lawyer there’s a reason.

    1. The reason is that in a case like this the deck is stacked on the side of the school. No students will come forwar as witnesses because they know that they will get screwed when it comes time for college recommendations etc.

      1. The deck is usually stacked on the side of the defendant, what with plaintiff having to come up with evidence that proves a legal claim of liability.

    2. Such reasons, however, may have little or nothing to do with the legal or moral rights or wrongs involved, and much to do with other matters like payment for services and possible reputational damage for taking up a contentious issue.

  13. A basic problem for the plaintiffs is that one doesn’t have a constitutional right to avoid being defamed. Ordinarily retaliation requires taking away something one has a constitutional right to.

    A second problem is a line of cases holding that “racist” is a term of opinion, not fact, and hence isn’t actionable as libel.

    And we haven’t even got to qualified immunity yet.

    1. Ordinarily retaliation requires taking away something one has a constitutional right to? Like a job with a private company or government? Or does firing someone not count as a retaliatory act now?

      The quote, apparently from the complaint, is that the teacher claimed the student was “a racist who said the n-word” and conjectured — without basis, and wrongly — that A.C. was absent due to a suspension. The alleged statements are factual claims, not opinion.

      If the local educational system has not made it clear that teachers making derogatory statements about particular students to private parties, particularly to other students when the student is absent, is unacceptable (and thus that the teacher might have qualified immunity) … that is a terrible indictment of the educational system.

      1. “Ordinarily retaliation requires taking away something one has a constitutional right to? Like a job with a private company or government? Or does firing someone not count as a retaliatory act now?”

        When you file your paperwork alleging a first-amendment violation because you were fired from your private-company former employer. the clerk is legally allowed to laugh directly in your face as they date-stamp the papers.

        1. Are you sure about that?

          What if you work for a private prison and criticized the operations of said prison? Can the state get around the constitution by subcontracting out its functions rather than hiring employees?

          1. “Are you sure about that?”

            Yep. If you work for a private employer, arguing a first amendment claim is pointless. You don’t have any first amendment rights that are binding on private parties.
            You coming along and trying to muddy up the definition of “private employer” doesn’t change that.

    2. Here’s a CA8 case that appears to hold that retaliatory defamation can violate the first amendment if a person of ordinary firmness would be deterred from engaging the the protected activity.

  14. Perhaps one of the “often” freedom supporting lawyers that write for this site could lend a hand?

    1. If they’re licensed in the relevant jurisdiction, which seems unlikely.

  15. Could one of the clinger whisperers parse the conservative principles at work here?

    These complainants could not find a lawyer willing to handle the claim, ostensibly despite strenuous effort.

    Do conservatives hope the government will select a lawyer and pay that lawyer with taxpayer funds to assert a private claim?

    Do conservatives hope the government will conscript a lawyer and require that lawyer to work at government direction without compensation?

    1. “Do conservatives hope the government will conscript a lawyer and require that lawyer to work at government direction without compensation?”

      I was kinda hopin’ that it would be you, Arthur.

      1. I do not spend much time in Nebraska.

        I blame my education.

        1. “I do not spend much time in Nebraska.

          I blame my education.”

          Oh, I see. It’s right in the middle. Hope that helps.

          1. I drove across it twice last summer. There’s not much there to commend visiting, if one does not already own property there.

      2. I see him more on the side of the teacher. Self-righteous bully who thinks his/her opinions justify any kind of misbehavior and lack of professionalism.

        I once joked that there is an old saying that dogs and their masters start looking alike after a while. The same is the case for lawyers and their clients. Jerky clients tend to pick jerky lawyers, and decent clients tend to pick decent lawyers. (There was once a major exception to my rule. We had to sue a former client. He was a real Class A jerk, but surpisingly his lawyer was a complete gentleman.)

        In this case, the rule would hold.

  16. A teacher’s job is to educate children. If a child does something like this (assuming the teacher’s fears and beliefs are true) their job is to help the child learn, or contact the parents.

    Not to launch into an echo chamber cancellation smear campaign, like a good little nonsentient automaton aiding power grabs by the elite.

    The teacher should be fired (cancelled) for this. Or be re-educated, a service she denied the child by going for the cancellation kill.

    1. …speaking of the “cancellation culture” of the left.

  17. As much as I sympathize with A.C., D.C. will almost certainly have to dismiss again on remand. Standing for declaratory and injunctive relief seems implausible regardless of the merits given that the child no longer attends the school, and it’s hard to take seriously the proposition that the current SCOTUS caselaw on qualified immunity would permit Tinker as limited by Morse, Hazelwood and Fraser to clearly establish law in the particular circumstances of this incident.

  18. “I didn’t say she said the N-word, I said she said ‘the N-word.’ That’s factually accurate, case dismissed.”

  19. If the facts of the complaint prove true, then there are a few other n-words of concern for this teacher of whichever ethnicity or background: nabalism, nanity, and nocence.

    Applicable m-words might be media matrix minion, malice, mendacity, and mean-heartedness.

    1. Cool, Now make it all rhyme, and you’ve got yourself a Country-western song.

      1. Jo Joan, or the Worst and Only Country-Western Tune with “Chalice” in It

        Your struttin’ sanity masks your nanity
        right down to your custom-made boots
        you stomp all around, kickin’ the ground
        with crowd-pleasin’ hollers and hoots

        Your nabalistic heart right from the start
        seems so smart loving nobody ever
        you partner with malice, drink from its chalice
        doing whatever to wimmin wherever

        [Why won’t you pick up the phone
        hey, it’s the last one you picked up–  Jo Joan
        can’t you pick up how everything’s blown
        still cruising in your pickup alone]

        Your cowboy shirt never seen good dirt
        and scuffs aren’t allowed on your fenders
        but your genius capacity for whoppin’ mendacity
        adds muck in your mean-hearted benders

        When you’re not drunk you’re still a damn skunk
        pushing girls around and bullying boys
        you’re a godless minion spoutin’ the worst opinion
        bad-mouthing goodness top of your joys     

        […]

        You have no sense, take pride in all nocence
        unyielding to love and the Above
        your need for pretense, injury, and offense
        turns sweet embrace into a shove

        Why won’t you pick up the phone
        it’s the last one you picked on–  Jo Joan
        can’t pick up on all you’ve blown
        cruising to nowhere in your pickup alone

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