Chapter 14

Tuesday turned out to be a normal day at school; Kevin and Denise were relieved that they were not called to the office during the day. They found out that only two students from the week’s chosen Program group had been persuaded to participate, but when they arrived at the school’s front entrance to get dressed after school on Monday and saw that they were the only students participating, they vowed not to continue. So as of Tuesday morning there wasn’t anyone participating in the Program.

After school, Kevin and Denise went to Habers’ office to discuss the ideas he wanted to propose for their lawsuit.

“Before we continue down this path and spend any more time developing a lawsuit, I’ll need your concurrence. Here’s the picture: The high school, with the assistant principal as its agent, in suspending you last week, violated the part of the state education act that deals with suspensions. First, unless the student’s offense was violent in nature, no suspension can become effective without a hearing during which the student is informed of his specific offense and, before it becomes effective, he has the right to present information in his defense. Second, the suspension has to be in writing and list the specific rule or rules that the student had broken.

“Mr Winters did neither of those required steps. You were suspended without being informed of the reason and received no written notice. Next, if we make the assumption that you were suspended for engaging in simple speech, like informing your fellow students about your opinions of the Program, then that’s an improper use of the school’s sanctioning powers. It’s a misuse of authority.

“I’d like to see the authorities in your school squirm. I pulled my daughter out after what happened to her last year and I blame them for improper supervision. I sent her to a private school, but there wasn’t much I could do legally against the school. So here’s what I propose. On your behalf, we prepare a lawsuit that asks for $250,000 in compensatory damages for each of you based on potential diminished future earnings that can result from a black mark in your academic record; the fact exists that your suspension has been publically noted in the social media so it cannot be expunged by the school. Second, we’ll seek a $500,000 award each in punitive damages to assure that the school district will follow the law and proper procedure in the future. This incident wasn’t an accidental breaking of the law, it was a deliberate and wilful disregard.

“With all of the adverse publicity that the Program has been getting, I’m certain we’d get a favorable jury verdict; it’s possible, however, that the judge could lower the amounts or that the amounts could be changed on appeal. So part of the legal strategy is considering what you’d accept in a negotiated settlement. Sound good so far?”

“Yes, sir—although I don’t really need the money...” Kevin began.

“Son, it’s not about the money. It’s the message, and the message only hits home when money is involved. I can come up with some options for an out-of-court settlement and we can go from there. You can think of what you’d like instead of money, too, and let me know.”

“Sure, that sounds good—how’s your daughter doing now?” Kevin asked.

“Much better. I didn’t let her go back to school to finish her Program week; she was absolutely terrified. The next week when she went back, they said she’d have to repeat the week and then do an additional one as a damned penalty. She called home in panic and her mother picked her up from school. That’s when we switched her schools. She’s still getting nightmares, but she’s almost back to being like herself again.”

‘You know, sir, I was almost raped just before I started high school.” Denise said. “They refused my medical exemption request and Kevin saved me from having to do the Program. If you think it would help your daughter, I can talk with her about what I learned as I recovered from that experience. I could visit her; maybe Cindy would come too.”

“What a nice suggestion, Denise,” he answered. “I’ll ask her; I’m sure she’d love seeing Cindy again, too. Kevin, here are the forms to sign to move the suit forward; Denise, these are for your mom to sign on your behalf. Okay, guys, I guess we’re done. Call me if you think of anything I’ve missed.”

The two teens left his office and returned home.

“What do you think about a settlement?” Denise asked Kevin.

“I’ve got a few ideas. Let’s discuss it after we get our work done, okay?”

It was now after the Thanksgiving holidays. During the holiday break, Roger, Cynthia, and Ayame had traveled to North Carolina to visit the twins’ parents at Camp Lejeune; Tom had decided to stay in Atlanta to work on the journal article project and he spent an enjoyable Thanksgiving with Kevin, Denise, and her mother. Several days after classes resumed, Habers contacted Kevin.

“I’m about to file the lawsuit later this week, Kevin, but I’d like to send the papers to your school district’s superintendent; they’ll most likely ask for a meeting to discuss the suit. If they do, when would it be convenient for you and Denise?”

They settled on a few possible meeting times in the following week.

“I’ll let you know the meeting time if I hear from their lawyer, then. If anyone from the school tries to talk to either of you before the meeting, please refer them to me—don’t say anything at all, okay?” Habers said.

“Got it, sir.”

Then on Friday, Kevin got a call from Bob Charlesworth.

“Hey, Kevin, how’s it going? Great news; our filings in both federal district courts were granted; and in a big way, too.”

“Wow, that’s great news!” Kevin exclaimed. “What did they say?”

“Basically they declared that the law that established the Program was unconstitutional in several areas. First, Congress couldn’t dictate a mandatory curriculum to the states; that was what your friend Cynthia Denison had realized. Only the states have the right to decide the curricula that their schools must follow, so the federal mandatory aspect of having schools run the Program is eliminated.

“Next, they took up the Ninth and Fourteenth Amendment question. Both courts followed the Supreme Court’s reasoning that the Fifth Amendment doesn’t give minors in the Program any personal privacy rights because minors don’t have full privacy rights under the Fifth Amendment. But that requirement can’t be federally mandated for schools, since they had just ruled that the Tenth Amendment applies; however, if states independently decided to require the Program in schools, states could theoretically require nudity. But they agreed with our argument that states are constrained from mandating the nudity, because of the individual personal rights granted by the Ninth Amendment, since that amendment applies to state law as well as federal law.”

“I’m not sure I understand how the Ninth Amendment applies, Bob. I don’t remember ever really learning about what it’s for—how does it apply?”

“Lots of people haven’t heard much about it; it’s rarely used in constitutional arguments because it’s so general but that’s why we used it here; it was perfect for our filing. Let me explain:

“The Ninth Amendment doesn’t have a long history of being used. It wasn’t addressed by the Supreme Court in their decisions until the late 1940s. That’s when the Ninth and Tenth Amendments were invoked in a case that permitted any person to act to express his own political views, even if he worked for the government. That decision extended the freedom of speech granted by the First Amendment. The first use of the Ninth Amendment for a privacy matter came in 1965; in that case, a law prohibiting the use of contraceptives was thrown out as being an infringement of the right of marital privacy.

“One justice wrote something to the effect that the Ninth Amendment demonstrates that the authors of the Constitution believed that fundamental personal rights exist which are not expressly named in the first eight amendments. The Ninth Amendment was included by the Founders to explicitly state that the list of rights included in the other amendments was not a complete list; many other unspecified rights could exist.

“The problem with the Fifth Amendment being used to support a ruling that minors have no privacy in their person, and therefore the government can force their nudity in a government program, stems from the actual wording of the amendment. Its wording, ‘No person shall ... be deprived of life, liberty, or property ... nor shall private property be taken for public use,’ is completely adult-centric, since a minor has no legal control over his person nor can he legally own property; those rights are vested in his guardian. That’s why the Supreme Court allowed the federal Program law to stand and said that in the absence of a parent being present, the school could assume the guardianship role and require the student’s nudity.

“Our position was that the Ninth Amendment denies to the government, state or federal, any control over any individual’s physical body, and applies whether the individual is an adult or a minor, because no adult-centric language is used. The Ninth Amendment has no basis in property ownership or custodial rights in the way the Fifth Amendment was interpreted. And our legal team had cited many instances of legal precedent, showing that the Ninth Amendment has a direct application to the nudity requirement of the Program. So do you understand our approach now?”

“Oh, yes, that was good, going after the nudity aspect together with the states-rights issue,” Kevin remarked.

Charlesworth continued, “So what’s left after this decision is that the feds can issue curriculum guidelines to the states and those guidelines can be followed or ignored by the states. And the states can run a version of the Program but nudity can’t be required of the participants. This decision applies to these two federal districts only, but it gives an extremely powerful precedent for other court districts to follow.”

“That means that it’s okay for schools to have the Program but the kids can’t be forced to be naked,” Kevin clarified.

“Precisely,” Charlesworth said. “The decision is being released today but it’ll take a few days for the legal people at the schools to digest it and figure out what they should do. Also, my sense is that with virtually no popular support for keeping the Program, these decisions are really unlikely to be appealed. The decisions are based on a clear reading of those amendments and prior decisions involving privacy which cited those amendments, cases that were closely similar in their facts.”

“Wow, that’s fantastic, Bob, thanks so much for what you did,” Kevin said.

“Glad I could help, son, so how are things doing there? Joshua’s told me that you’ve been keeping him busy too, but are you okay with the school now?”

“Yes, sir, ever since they tried to suspend us it’s been quiet, thankfully, and hardly anyone at the school is actually in the Program, so our little resistance movement is working.”

“Yeah, and it’s spread to here, too, you know, anti-Program news is in all the papers and on TV too,” Charlesworth laughed. “Well, keep up the good work and stay out of trouble, you hear?”

“Sure—and thanks again.”

Kevin could hardly wait to tell the others about the good news; they were overjoyed on hearing it.

“Wow,” Roger smiled, “this calls for a celebration, right? It’s Friday, so let’s party!”

The group spent the evening at their favorite hangout with their friends, celebrating yet another victory over the evil Program.

The meeting with the school district officials took place the following Wednesday afternoon. News of the decisions of the federal courts had spread widely over the weekend and on Monday morning, when the selected Program student names were read in school, no one answered the summons to participate.

Habers had told Kevin and Denise that along with Mr Leeds, the district superintendent, several school board members, and the school’s attorney would be present. When they arrived and after the introductions, the superintendent began the conference.

“The school district received the copy of your lawsuit filing, Mr Habers, and we believe that our officials have done nothing to warrant your appalling charges against us. And the compensation you’re requesting is outrageous. The school suspended the pupils for violations of school policy, including improper behavior and failure to follow the directions of a staff member.”

Habers responded, “From the copy of the papers you received—which I’ve filed with the court on behalf of my clients, Miss Roberts and Mr Coris, we contend that they were improperly suspended and now suffer from damage to their scholastic record. Our position in this matter is clearly defined.”

“Very clearly,” their lawyer responded. “We disagree that the suspension was improper and obviously you realize that you’re asking for a huge amount of money—a million-and-a-half dollars; this is well beyond the financial resources of any school district.”

Habers looked across the table at the attorney and the others.

“Yes, I’m fully aware that the lawsuit is requesting a lot of money. But your assistant principal should have thought of the consequences of breaking the law and damaging my clients, whose future could be impacted by his willful and negligent actions. You are aware that if this suit goes to trial, with the weight of evidence against you and the current negative public perception of the Program, you have no chance that your defense will prevail.”

“That amount of money may cause a jury to think twice about an award of that size,” the superintendent said. “Also, we doubt that the damage to these students is that severe. We can expunge the suspensions from their records.”

“But you can’t expunge the public record in social media. We don’t know what kind of future damage that information will cause. It could prevent either or both of my clients from getting a job or a security clearance too; who knows how much damage could result. I’m being conservative in my estimate; the punitive damages are because of your assistant principal’s reckless actions in not following state law and proper school procedures,” Habers went on. “You’ve probably read the transcript of the recording which shows how he summarily and illegally suspended my clients; we can play that recording in court; think of how jury members would react to such callous disregard for the rights of two pupils.”