How Initiative 42 is Dangerous to Teachers and Principals

In my previous posts about Initiative 42, I have neglected to mention an important fact about myself. I am the son of a retired high school principal.

The reason I mention this is because I understand what teachers and principals go through. After all, Dad brought it home with him all the time.

One of his biggest complaints were about parents. No, these complaints were not because they wanted to get involved in their children’s education. Nor was he ever upset about parents injecting their thoughts about what kids were learning. Rather, his big beef was about discipline.

Just about every time he had to punish a child, the parents would come back to school and read him the Riot Act.

First of all, their children always did right. Second, suspending their children from school always meant that at least one of the parents (and back then, most of the kids still had two parents) would have to miss work to babysit. And third, if he ever paddled one of their kids, then Katie, bar the door, they would come back steaming mad.

Simply put, just about any time a child was punished, the parents would come to their children’s defense, come Hell or high water.

Gone were the days of “if you get a paddling at school, you will get a butt-whooping when you get home.” No. Butt-whoopings (at least, the verbal equivalent) were reserved for the principal who dared to correct their children.

Dad’s been retired for almost twenty years. So, I suppose that it is possible my childhood recollections of these events are a bit exaggerated, but certainly not by much. And as fast as the nuclear family has broken down in the two decades since Dad retired, the scenarios described above don’t seem that far-fetched to me, especially since I have seen way too many people like those parents I have described in my law practice.

In any event, anybody who is remotely associated with education today will agree that it is tough disciplining students. Children with severe discipline problems tend to acquire these problems from parents who, themselves, have discipline problems of their own. Therefore, if the teacher or principal does anything to the child that would remotely inconvenience these parents, then these parents will let their displeasure be known most prodigiously!

This brings me to the point of tonight’s commentary. How would Initiative 42 impact school discipline?

Imagine for a moment that you are a teacher who has a very unruly child. You simply cannot keep that child in your classroom without depriving other children of a quality education. So you send that child to the principal’s office, where he will receive whatever now suffices for discipline in our post-modern world.

By doing so, are you not depriving that unruly child of “educational opportunity?” While he is in the principal’s office getting a tongue-lashing, he obviously is not learning about reading, writing, or arithmetic. Certainly, that time could be made up during recess, or during in-school detention. But if he is sent home for a few days (because his behavior is bad), or if he is expelled (because his behavior is really bad), then that time missed simply cannot be made up. Therefore, he most definitely would have been deprived of “educational opportunity,” wouldn’t you say?

Well, if Initiative 42 passes, educational opportunity will become “each child’s fundamental right.” Presently, educational opportunity is not a “fundamental right.” But if Initiative 42 passes, educational opportunity will become a “fundamental right.” I simply cannot stress the words “FUNDAMENTAL RIGHT” enough because judges will move heaven and earth to protect fundamental rights.

Whenever the State deprives a person of his fundamental right, a lawsuit usually will follow. That’s because lawyers know that defending fundamental rights is like picking low-hanging fruit. The law places fundamental rights in a different category than other rights. And that is always to the advantage of the plaintiff.

For example, marriage is a fundamental right. If nothing else, the whole debate about gay marriage demonstrates the limits of governmental power over marriage. So when homosexuals sued for the right to marry, they were successful because marriage is a fundamental right.

But managing real estate, on the other hand, is not a fundamental right. Just because one may own a building doesn’t give that person the unmitigated right to use that building the way he or she sees fit. If, for example, a town has zoning laws, the town could tell a person, “I’m sorry, but you simply cannot operate your business at that address.”

Moving back to the issue of education, the right to educational opportunity as it stands right now, without Initiative 42, is akin to owning a building. Yes, a child has a “right” to an education, but it is not a “fundamental right.” And because it is not a fundamental right, schools have some flexibility in limiting educational access when necessary.

But Initiative 42 will change that. If enacted, educational opportunity will become a fundamental right that the State must protect. And a chancellor will have the express authority to issue whatever orders are necessary to ensure that these fundamental rights are protected.

So if the State, by and through a school principal, were ever to deprive a child of the fundamental right to educational opportunity – a right that would be ensconced in the State Constitution if Initiative 42 passes – then that child’s parent would have standing to file a lawsuit seeking “injunctive relief” to force the school to let the child back into classes. And because the newly-amended State Constitution will expressly give a chancellor the authority issue injunctions, the chancellor, at the very least, would have to hear the case.

Now, I suspect that more times than not the chancellor would side with the school. Be that as it may, we all know that courts operate during the same business hours that schools do. Thus witnesses, such as the teacher and the principal, would have to miss school in order to testify at court about the facts of the case. So instead of teaching the children who want to learn, they will be in court dealing with the child that they had disciplined for being a distraction.

Fortunately for teachers, “injunctive relief” does not include money damages. Thus, lawsuits for money damages (what we lawyers call “tort actions”) would likely not be heard by the chancery judge. Even if the chancellor did, he or she would follow the Mississippi Tort Claims Act, which gives immunity to teachers in most instances.

But that is only if a suit is filed in chancery court, and not in federal court.  If suits like these were to go to federal court, all bets would be off because federal law trumps state law.

If the parent were to file suit in federal court, he or she could sue the principal and the teacher not only for injunctive relief (which is all the relief a chancellor can give), but also for money damages and attorneys’ fees.  By doing so, the parent could completely avoid sovereign immunity as well as the restrictions found in the Mississippi Tort Claims Act.

Rather than reinvent the wheel, or get whacked for plagiarism, here is an article written by a gentleman named Mike Bersani from Itasca, Illinois back in 1999. This article, which has absolutely nothing to do with education, but has everything to do with federal equal protection cases, was published by the Illinois State Bar Association Local Government Section. The article is entitled, “Floodgates Open to Equal Protection Claims.” Here is a quote:

The Equal Protection Clause of the 14th Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Most lawyers associate this constitutional prohibition with discrimination based on membership in a suspect class, such as race or gender. Indeed, case law supports the principle that some type of class-based discrimination must be alleged in order to state an equal protection claim under 42 U.S.C. § 1983. See Herro v. City of Milwaukee, 44 F.3d 550, 552 (7th Cir. 1995); Albright v. Oliver, 975 F.2d 343, 348 (7th Cir. 1992); New Burnham Prairie Homes v. Village of Burnham, 910 F.2d 1474, 1481 (7th Cir. 1990).

However, an emerging body of case law starting with Esmail v. Macrane, 53 F.3d 176 (7th Cir.1995), and reaffirmed recently in Olech v. Village of Willowbrook, No. 98-2235, Slip Op. (7th Cir. 11/12/98), recognizing an admittedly uncommon and unusual kind of equal protection claim when disparate treatment is based upon sheer vindictiveness, maliciousness, animosity or spite toward a single entity or individual unrelated to any legitimate state interest. Under these circumstances, a “class of one” may bring a section 1983 equal protection claim.

In layman’s terms, under the Esmail doctrine, if a state actor singles out a person for malicious treatment, the state actor could be sued for violating the person’s civil rights.

Although Esmail is still good case law, in that it has never been reversed, Esmail is a case from the Seventh Circuit Court of Appeals. Mississippi is governed by the Fifth Circuit. Therefore, we need to learn what the Fifth Circuit says about “class of one” discrimination claims because Fifth Circuit precedent controls in Mississippi.

This is what Judge Debra Brown of the U. S. District Court for the Northern District of Mississippi opined JUST THREE WEEKS AGO in the case of Michael v. Boutwell, 2015 U.S. Dist. LEXIS 136838, *40-41 (N.D. Miss. Oct. 7, 2015):

“To establish a claim for selective enforcement under the Equal Protection clause, ‘a plaintiff must prove that the government official’s acts were motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right.'” Craig v. City of Yazoo City, 984 F.Supp.2d 616, 624 (S.D. Miss. 2013) (quoting Bryan v. City of Madison, 213 F.3d 267, 277 (5th Cir. 2000)); see also Knapp v. U.S. Dep’t of Agric., 796 F.3d 445, 467 (5th Cir. 2015). While the Fifth Circuit has been skeptical of “class of one” selective enforcement claims, neither it (nor the United States Supreme Court) has explicitly rejected such a theory. See Rogers v. Louisville-Winston Cty. Airport Auth., No. 1:13-cv-197, 2015 U.S. Dist. LEXIS 41692, 2015 WL 1505843, at *3-4 (N.D. Miss. Mar. 31, 2015) (collecting authority). However, where courts have allowed class of one claims, they have required a showing that the plaintiff was treated differently from similarly situated persons. Id.

What Judge Brown is saying is quite telling. Basically, if a state employee acts with the motivation to prevent a person from exercising a constitutional right, then that state employee can be sued. However, the plaintiff must show that he was treated differently from similarly-situated persons.

Well, what does this mean to education?

If Initiative 42 passes, educational opportunity will become a “fundamental right” under the Mississippi Constitution. Granted, educational opportunity would not be a right under the U. S. Constitution. But it would be a “constitutional right” nonetheless since it would be expressly written into the Mississippi Constitution.

Therefore, one could reasonably assert that a claim for selective enforcement under the Equal Protection Clause by an unruly student who was expelled or suspended from school should be permitted since educational opportunity would be a constitutional right that Initiative 42 promises to “to protect.”

Ergo, following the logic of Judge Brown’s opinion, if a principal or teacher (who are governmental officials) were to expel a child because the principal or teacher supposedly had the improper “desire to prevent the exercise of a constitutional right” (i.e., the child’s fundamental right under the Mississippi Constitution to “educational opportunity”), then that principal or teacher could be sued for violating the civil rights of the child under 42 U.S.C. § 1983.   And since Section 1983 trumps the Mississippi Tort Claims Act, that principal would enjoy absolutely no immunity from suit.

So if you are a teacher or principal who wants to hold the Legislature accountable to its duty to fund the schools, take a long, hard look at your students.

Do you trust your students – or more importantly, their parents – not to sue you for violating their “fundamental right to educational opportunity?”

I understand that teachers are concerned about their livelihood. Boy, do I! But I am concerned about the livelihood of teachers, too.

I know from years of observing my father that some parents simply cannot be trusted. And if they are given an inch… if they have any opportunity to take a teacher, a principal, or a school district to court, they will sue for whatever they can get.

Teachers, please…. For your safety…. For your protection. Vote against Initiative 42.



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