The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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….