A federal judge in Atlanta has denied an Alpharetta High School student a temporary restraining order that would have reinstated him as student council president, finding that while some of the reasons he was removed from office involved constitutionally protected free speech – including his efforts to make the junior-senior prom royalty more inclusive to gays and lesbians – school officials made a case that they had other reasons for removing the student that did not infringe on his constitutional rights.

Alpharetta High senior Reuben Lack had argued that his First Amendment rights were violated after faculty advisers for the student council stripped him of the presidency – a post he had held for 10 months – two months before graduation. In a hearing Thursday, Lack’s attorney, James Radford, had argued that Lack was summoned to a meeting with his faculty advisers and told he was being removed as president a week after he had – for the second time—broached the subject of making the annual junior-senior prom more friendly to gay and lesbian teens who might want to vy for prom king or queen.

At Thursday’s hearing, the Fulton County school district’s attorney, Todd Hatcher, denied that Lack was removed from office for advocating in favor of gay and lesbian teens.

In a 12-page order handed down Friday afternoon, U.S. District Judge Richard W. Story held that five of the 20 reasons school officials cited for removing Lack from office involved constitutionally protected speech. They included reasons associated with an exchange of off-campus Facebook messages with another student and his promotion of the school debate team in a speech to incoming freshmen. School officials had claimed Lack had unfairly vilified the school principal on Facebook when he said she had “shot down” a school President’s Council, and that he had engaged in an “abuse of power” when he promoted membership in the school debate club, in which he was active, during a speech.

Story also held that Lack’s “encouragement of changing Prom King and Queen to Prom Court so that the gay, lesbian, bisexual, and transgendered (LGBT) community would feel more included is also protected speech” and that “an ordinary person would have been dissuaded from speaking” because of the school’s actions.

But Story said that school officials offered evidence that they would have removed Lack for other reasons that did not involve protected speech, among them, that he did not attend Homecoming Decoration day, wear Spirit Week attire (that, according to one faculty adviser’s declaration including dressing up for 80’s Day, Tacky Day, and Hollywood Day), or sell Homecoming tickets, even though he reminded other council members to do so and had previously agreed to participate in those activities.

Other reasons Story cited as not involving Lack’s constitutionally protected speech included “being repeatedly told that meetings would occur before school
because [faculty adviser Michelle] Werre and student-athlete members could not attend afternoon meetings,” and continuing to “unilaterally schedule afternoon meetings” that “undermined the faculty advisers’ authority.”

Lack testified Thursday that with Werre’s help, he had written a set of bylaws that governed student council for the first time and that he convened regular meetings. He said when he was a council member as a sophomore and junior there were no scheduled meetings of student council.

In his order, Story acknowledged he was “concerned about the timing” of Lack’s removal from office “within a month of the Prom Court issue and a week of the acebook conversation” but found evidence to support the conclusion that Lack’s removal in February “was precipitated by [Lack’s] failure to send an email about a class president’s meeting after being personally told to do so by [faculty adviser Emily] Reiser” a week before he was removed “and his failure to attend that meeting the next day.”

Story also found that the faculty advisers “have been counseling [Lack] on an ongoing basis about his failures since September 2011, and Werre and Reiser even went to discuss the issue with their principal, [Shannon] Kersey, on three occasions prior to terminating [Lack.]”

Lack had testified that he had not been warned that he was facing removal as president and that the issues raised on the day he was removed had never been communicated to him before.

“Essentially, the Court finds that [Lack] is a bright student who is ‘aggressively’ engaged in his causes – as his counsel pointed out at the hearing – but he did not show respect or civility to his faculty advisers or complete traditional Student Council “spirit” tasks, which, under the bylaws, he had an obligation to carry out, regardless of his interest level. … The Student Body President is the face of the organization, and as Werre and Reiser told [Lack], it is important for that person to set a good example by ‘getting down and dirty in the trenches.’”

“This is not to say that the Court does not value [Lack’s] zeal to change policy, or that the Court does not recognize the importance of championing the cause of inclusion for all students in school activities,” Story wrote.  Lack, he continued, “clearly accomplished much in the way of policy changes – he helped remove the cafeteria’s ‘utensil tax,’ got microwaves for the cafeteria, was assisting in getting bike racks installed at the school, and was concerned that all students felt included at Prom. However, the Court ultimately finds that his frequent failure to complete or attend any ‘spirit tasks’ and continual undermining of the faculty advisors is sufficient to preclude a finding of a substantial likelihood of success on his First Amendment retaliation claims.

“As the Eighth Circuit has recognized, ‘discipline, courtesy, and respect for authority,’ are legitimate pedagogical concerns.”

In an email to the Daily Report after Story filed his order, Radford said, “We will have to proceed with cross examining witnesses in order to prove that their declarations are not credible. We are still very early in the proceedings.”

School district spokeswoman Samantha Evans, the district’s counsel Todd Hatcher and high school principal Shannon Kersey could not be reached for comment.

Contributor: R. Robin McDonald in Federal courts | subscribe to rss |   share