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April 2010
My favorite Doe case is Doe v. State of Hawaii, 334 F.3d 906 (9th Circuit, 2003). The case arose in 1998 when a second grader named "John Doe" was sent to the vice principal's office for fighting. The vice principal, David Keala, instructed young Doe to stand still against the wall as a form of time out. Young Doe did not stand still, thus inducing the vice principal to make a colossal mistake: He told Doe that if he did not stand still, he would take him outside and tape him to a tree. The second grader continued to wriggle and squirm, thus throwing down the proverbial gauntlet. Whereupon, according to the court, "The vice principal used masking tape to tape Doe's head to the tree. The record is unclear as to whether Doe's face was pressed against the bark." This situation went on for five minutes, at which point a fifth grade girl confronted the vice principal about how inappropriate this behavior was. Perhaps feeling a tad embarrassed and ashamed to be scolded by a fifth grader, the vice principal instructed the young lady to free Doe — or perhaps we should say "the plaintiff." The Doe family filed suit. Keala filed a motion for summary judgment, asserting that he was entitled to immunity from personal liability, but the court denied it. The court concluded that Doe had been "seized" in violation of the Fourth Amendment for no offense greater than "horsing around." As to immunity, the court observed that even a fifth grader knew what Keala did was wrong. So, no immunity for our vice principal. He should have known that taping a kid's head to a tree is a violation of the U.S. Constitution. The case ended up being tried in 2004. After a two-week trial, the jury awarded the Doe family $3,600, a far cry from the $500,000 they sought. According to the Honolulu Star-Bulletin, Keala was 67 at the time and had come out of retirement to serve as a temporary vice principal. I’m guessing that he stayed retired after this incident. Several lessons can be gleaned from this brief, but fascinating, case. First, vice principals should not try to bluff students into compliance. I suspect Keala did not really want to tape the kid to a tree. But when his warning didn't work, he felt honor bound to follow through. So don’t bluff. Second, I expect the heroine of this story, the fifth grade girl, is destined to be an educational leader, probably a superintendent. At an early age, she illustrated exemplary judgment and courage in this situation. Third, this case clearly shows that the U.S. Constitution is a living document. I did a word search of the historical text, looking for tape, trees and horsing around. None of those words are in the Constitution. It is silent on all of these issues. And yet, the 9th Circuit said Keala violated the Constitution. So, you have to be careful. Finally, this case illustrates a general rule: I call it the duct tape rule. Although the court used the term "masking" tape, I'm confident it was duct tape. And I have learned that if you end up in court, it is better to be the tapee than the taper. We all know that "horsing around" among students is on the rise in the spring, but to all vice principals I say the same thing: Save the duct tape for ducts! JIM WALSH is editor in chief of Texas School Business. Also a school attorney, he co-founded the firm of Walsh, Anderson, Brown, Gallegos & Green, P.C. He can be reached at jwalsh@wabsa.com or by visiting www.walshanderson.com. |
If you want to stay out of the courthouse, you should check your student rolls every year to see if the infamous Doe family has moved into your district. This family is singlehandedly responsible for more litigation than any ambulance-chasing, tassel-shoe-wearing, briefcase-toting lawyer in the country. The sheer number of Doe v. Somebody cases will boggle your mind.