Administrators seek dismissal of First Amendment lawsuit

OREGON –School administrators are asking a federal district court to dismiss a FirstAmendment lawsuit stemming from the suspension of eight members of theClatskanie High School basketball team in 2001.

A 9th U.S. CircuitCourt of Appeals panel ruled in early May that student members of the team hadparticipated in constitutionally protected speech when they signed a petitioncomplaining that their coach, Jeff Baughman, was verbally abusive and asked forhis resignation.

According to the9th Circuit opinion, the students presented the petition to Baughman in February2001, after which Baughman immediately met with school principal Michael Corleyand superintendent Earl Fisher. All three are defendants in the lawsuit. Corleythen met with the students and athletic director Lester Wallace, also adefendant, allegedly telling the students they had two options: participate in amediation and play in an away game planned for that evening, or choose not toplay in the game.

The students, with three exceptions, chose not toboard the bus and did not play in the game. They claim they were not told theywould be disciplined for choosing the second option, but the next day those whodid not board the bus to play in the away game were suspended from theteam.

After their suspension, the students filed a lawsuit claimingthey had been punished for complaining about Baughman, a violation of theirFirst Amendment rights. The district court ruled in favor of the administration,concluding that the students’ actions were not constitutionally protectedbecause the speech ”was not a matter of public concern nor political innature.”

The students appealed, and the 9th Circuit panel,after ruling that the students’ petition was constitutionally protectedspeech but that their boycott of the game was not protected because it ”substantially disrupted and materially interfered with a schoolactivity,” remanded the case back to the districtcourt.

”The remaining question is whether the plaintiffs’permanent suspension from the basketball team was simply for refusing to boardto the bus, or instead was wholly or partly in retaliation for petitioningagainst Baughman in the first place,” according to the 9th Circuitdecision.

The panel concluded that ”the record is notsufficiently clear for us to resolve the retaliation issue on thisappeal.”

Last week, school administrators filed a supplementalmotion for summary judgment with the district court to dismiss the remainingclaims against them. The motion claims the administration’s decision tosuspend the players resulted solely from their refusal to board the bus and playin the away game, and thus they did not violate the students’ FirstAmendment rights.

Peter Mersereau, attorney for the administrators,said he is optimistic that the district court will rule in favor of theadministration.

”The proof is in the pudding,” Mersereausaid. ”The one plaintiff who played the game, or I should say formerplaintiff, was not suspended. I don’t know how it could be more clear, hesigned the petition but was not suspended.”

Mersereau said ifthe court does not grant them summary judgment, he is requesting that theindividual defendants be released from the lawsuit based on qualified immunity.Qualified immunity protects government officials from lawsuits when theirconduct does not violate clearly established statutory or constitutional rightsof which a reasonable person would have known.

The students’ attorney, Michael Seidl, could not be reached for comment Tuesday. But in aLegal Affairs magazinearticlein 2003, Seidl expressed his motivation behind pursuing thecase.

”Coaches have historically been given extraordinaryleeway to engage in conduct that by most standards would be consideredabusive,” Seidl told LegalAffairs. ”And it’s time to correct theproblem.”

Mersereau said he expects the motion to be heard inAugust. If it is denied, he said the case should go to trial in January2007.