Monday, December 9, 2013
PORTLAND - A federal judge ruled Tuesday that a student athlete who was caught holding a beer in a photo on Facebook will continue to get substance abuse counseling at Yarmouth High School, as called for in the school's honor code.
The 16-year-old lacrosse player sought a temporary restraining order to block that part of her punishment. She was denied by Judge D. Brock Hornby after a hearing in U.S. District Court.
The girl, who is not being named by The Portland Press Herald because she is a minor, has also been suspended from games for three weeks and can't go on a team trip next week.
Her parents and their attorney, Michael Waxman, sued Yarmouth school officials last week, challenging the constitutionality of the honor code and claiming the girl's civil rights were violated during the school's investigation. She admitted she held a beer in the photo on the Web site.
Tuesday's ruling weakened the parents' case, said Yarmouth School Committee Chairman David Ray.
"This is one of those examples where the law is exactly what our common sense would be," said Ray, who attended Tuesday's hearing. "What Mr. Waxman is trying to do here is create a mountain out of a molehill. To me, Judge Hornby was sending a strong signal he doesn't see a lot of merit in the claims Mr. Waxman is making. I'm very hopeful Mr. Waxman will understand this isn't the forum for him to express his personal beliefs on the honor code."
Hornby ruled Waxman was unable to demonstrate that his clients likely will prevail when the case goes to trial, as required before a temporary restraining order can be issued, and that the school's need for an enforceable honor code trumps the girl's need for relief from the school punishment.
Waxman, who lives in Yarmouth and has a practice in Portland, said after the hearing, "I'm a little disappointed. I was hoping, at the very least, the judge would permit this family to choose an appropriate mental health worker."
The girl will have four more counseling sessions with Jill Frame, the school's substance abuse counselor, to complete the mandatory six sessions before she can return to playing lacrosse.
Waxman said his client decided that she didn't want special treatment and dropped a request to be reinstated to her team while the matter plays out in court.
Yarmouth High's honor code is a four-page document that students must sign to participate in sports or other extracurricular activities. Students pledge that they won't use alcohol or tobacco, haze other students or take part in anything that might embarrass the school during the school year -- on or off school property, in or out of their activity's season.
The lawsuit names Frame, Assistant Principal Amy Bongard, Principal Ted Hall, Superintendent Judy Paolucci and the Yarmouth School District as defendants.
According to the lawsuit, the girl was called out of her math class to go to Bongard's office, where she was shown the photo of her holding a silver can and told that school officials knew she had violated the code. The girl said she was questioned for 20 minutes and felt forced into confessing, the suit says.
Melissa Hewey, a lawyer with Drummond Woodsum & MacMahon who is representing the defendants, told the judge Tuesday, "This is a matter that should not be in federal court. This is a code permitted by state statutes. It is important to point out what we're talking about here is illegal conduct."
Hewey said the code's role is "not unreasonable. That is not delving into private lives."
The lawsuit will still move forward, but Waxman said he will consider dropping it if school officials agree to some type of open forum for parents and students to have input on the code.
"Let's have a debate," Waxman said outside the courthouse. "There's lots of strongly held views on this subject."
Principal Hall said the decision should help students at his school return to what he called "some sense of normalcy."
"I'm pleased with this decision," he said.
Staff Writer Jenn Menendez can be contacted at 791-6426 or at: firstname.lastname@example.org