NEBRASKA — Thetwo-year legal saga stemming from a Nebraska high school’s actions to curb whatit claimed was “gang-related” speech will proceed to the courtroom after ajudge denied the school district’s motion for dismissal Tuesday.
District Judge Laurie Smith-Camp will let a jury decidewhether school officials acted based on a reasonable fear of a disruption.
The Millard Public School District had argued the complaintwas moot because two of the student plaintiffs — Dan and Cassie Kuhr — hadgraduated and the other, Nick Kuhr, had transferred out of the district;Smith-Camp ruled otherwise and also denied the district’s motion for summaryjudgment.
“A reasonable jury could find that Defendants failed todemonstrate that school officials had anything more than an undifferentiatedand remote apprehension of a disturbance when they suspended Nick Kuhr onAugust 28,” Smith-Camp’s order reads.
This development is the latest in what has been a tumultuouslegal battle since Nick Kuhr, then a freshman at Millard South High School,wore a “Julius RIP” T-shirt to school Aug. 27, 2008. Then, as now, the schoolargued it had a right to prohibit Kuhr and others from wearing the shirts payingtribute to Julius Robinson, a friend of the students believed to be have beenkilled two months earlier in gang-related violence.
On that day, a teacher noticed the freshman wearing thememorial T-shirt, which he had worn before without incident. He was asked toremove the shirt or turn it inside out. After meeting with administrators,mother Jeanne Kuhr decided to take her son home for the remainder of the day.
Dan Kuhr, a senior at a different school within thedistrict, also had worn the message previously without being stopped.
Nick and Cassie Kuhr, along with 30 other students, weresuspended the following day for wearing the shirts after school administrators’warnings.
“It was a respectful display of their feelings for a fallenfriend,” said Brian Jorde, the attorney representing the Kuhrs. “Look at thethree plaintiffs. Absolutely no gang affiliation. None of the students who worethe shirt — there’s no record of gang affiliation or violence.”
On the morning of Aug. 29, 2008, students wearing the shirtsand holding signs gathered across the street from the school to protest theban. School administrators said they feared the demonstration could result inviolence, though none occurred.
The ACLU of Nebraska filed a complaint against the Omaha,Neb., school district a little more than a year later.
“The assembly and the disruption … that was actually causedby the school failing to allow the expression and the free speech,” said Jorde,who joined the case in May. “It wasn’t a reaction to the shirt; it was areaction to the stifling of free speech.”
The only disturbance to the school was its own censorship,said Amy Miller, legal director of the ACLU of Nebraska, in a press release.
“When a school oversteps their authority to say what isacceptable expression using unclear and arbitrary guidelines, then a school istaking a student’s time and energy away from the classroom,” Miller said in therelease.
The case has been marked by a revolving door of lawyers forthe plaintiffs and dueling motions to amend and dismiss.
Smith-Camp’s order settles the issue of whether the Kuhrscan qualify for nominal damages. Despite not specifically requesting them, theplaintiffs – should they succeed in proving First Amendment violations – wouldbe entitled to nominal damages “automatically,” she ruled.
Though the case has now cleared all hurdles to trial, Jordewas quick to note that school officials are not the proverbial bad guys, butthat this was a poor judgment call on their part.
“The school district acts prudently most of the time inthese situations, and we understand their concern for the safety of thestudents to be first and foremost,” he said. “In this instance, based on theinformation known to them at the time of the Kuhrs’ suspensions, there justwasn’t enough to meet the legal standard to ban the T-shirt and the expression.”
Duncan Young, the attorney representing the district, saidthe defense remains “quite confident” heading into the trial despite thejudge’s order.
A pretrial conference in the case is set for Dec. 12, and ajury trial is scheduled for Jan. 24.