Bill Nemitz: 'Kids will be kids' doesn't sway judge
By Bill Nemitz bnemitz@mainetoday.com
Staff Writer
I have a question for Portland attorney Michael Waxman and the parents of a 16-year-old Yarmouth High School girl whose suspension from the lacrosse team has become, literally, a federal case:
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What in the name of jurisprudence are you people thinking?
"I think it's a really great lesson in citizenship," Waxman said while waiting in vain Tuesday afternoon for U.S. District Judge D. Brock Hornby to strike down the constitutional horrors, real or imagined, in Yarmouth High's honor code.
A great lesson in citizenship? Please.
How about a not-so-great lesson in lawyering?
Waxman went to court Tuesday seeking a temporary restraining order to stop Yarmouth school officials from penalizing his client because she was caught on Facebook with a beer in her hand. The same girl, mind you, who, along with her mother, signed an honor code saying that as a student athlete, she would do no such thing.
Waxman argued that his client, who is now serving a three-week suspension from the lacrosse team -- first she told school officials it wasn't a beer, then she admitted it was, then she tried to plead her punishment down to two weeks on the grounds that she had "self-reported" by confessing -- is the victim of a school system run amok.
He told Hornby that the school's honor code is an unconstitutional intrusion into his clients' lives by school officials who acted as "super parents" rather than educators.
He insisted that by imposing the suspension -- the one spelled out clearly in the code, along with that pesky prohibition against underage drinking -- the school had denied his client her right to due process under the 14th Amendment to the U.S. Constitution.
He even claimed that by requiring the girl to attend six sessions with the school's substance abuse counselor before she could return to her team, the school was imposing "medical treatment" on his client without her parents' consent.
"I find that remarkably offensive," Waxman said.
Really? Here's what's remarkably offensive.
Waxman, a Yarmouth resident, is no fan of school honor codes. In an op-ed column he wrote last month for the Falmouth Forecaster, he called Yarmouth's code a "power grab" that requires kids to "abdicate fundamental rights" to play sports or participate in other extracurricular activities.
Writing an op-ed piece for your weekly newspaper, however, gets a lawyer only so far. To really make a splash, you need a client and a courtroom.
But alas, you also need to make a strong a case. And by the time this hearing ended, it was painfully clear to everyone, except, perhaps, Waxman, that his case had more holes in it than a lacrosse net.
As the ever-patient Judge Hornby explained, the plaintiffs had to satisfy four conditions to get a temporary restraining order stopping the school counseling sessions. (Waxman decided at the last minute not to challenge the three-week suspension, which ends next week.)
First, Waxman had to demonstrate that when the underlying case goes to trial, his clients likely will prevail.
"I find there is little likelihood of success on the merits of (the plaintiffs' case)," said Hornby after thinking about it for 30 long minutes.
Second, Waxman had to show that, without the temporary restraining order, his clients would suffer "irreparable injury" at the hands of the Yarmouth school department.
Hornby, wise man, saw no such injury -- at least not by the school.
Third, the judge had to weigh the relative harm that issuing a restraining order (or not) would cause the school on the one hand and the young lacrosse player on the other.
In this case, Hornby ruled, the school's need for an enforceable honor code trumps the girl's need for relief from her punishment.
Finally, there's the public's interest in trying to keep our kids from partaking in what Hornby quite rightfully noted is "illegal activity" whenever they break out a case of Coors Light.
Advantage, public interest.
In short, for all his straining at the constitutional bit as he prepared to argue his high-profile case, Waxman never got out of the gate.
Nor was he particularly impressive when asked during a break in the hearing whether something bigger was being overlooked here. Something like, shall we say, teaching our kids to honor their commitments?
"That's laughable," Waxman scoffed, noting that we can't expect a piece of paper to prevent kids from being kids.
(Or maybe we can. Thirteen years ago, my daughter turned herself in to her high school tennis coach after drinking a beer at a prom party. She'd "self-reported" and accepted her automatic suspension even before she came to me -- all I could do was tell her how proud of her I was.)
It's impossible to know what impact this sorry spectacle will have in the long run on Waxman's young client -- or, for that matter, on any kid who's watching this play out and wondering how best to navigate the gray area between squeaky clean and falling-down drunk.
Still, it was hard to watch Tuesday's hearing and everything that led up to it without wondering if perhaps someone's being used here to pursue an interest that goes well beyond her own. Where, pray tell, was Waxman's constitutional challenge before she signed and then broke the honor code?
That thought was hard on the mind of David Ray, chairman of the Yarmouth School Committee, as he watched the hearing reach its merciful and predictable end.
"What irks me is that there is a student involved here," said a visibly upset Ray. "And it doesn't take a rocket scientist to think about what the impact of this federal court case is on that student. His client."
Melissa Hewey, the school department's attorney, put it more succinctly.
"This is a matter that should not be in federal court," Hewey told the judge. "It is not a federal case."
She's right.
It's a travesty.
Columnist Bill Nemitz can be contacted at 791-6323 or at: bnemitz@mainetoday.com
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40 COMMENTS
Felix said...
WAXMAN AND HIS AMBULANCE CHASING CRONIES ARE A BIG PART OF THE LEFTY WING NUT PROBLEM IN THIS STATE, AND COST US TAX PAYERS TONS OF MONEY SO THEY CAN MAKE THEIR TRUMPED UP GRANDSTAND PLAYS!!!!!!!
April 14, 2010 at 3:31 AM Report abuse
biddguy said...
Sounds like this girl's parents should have hired Indiana Faithful's attorney. What a waste of money.
April 14, 2010 at 4:16 AM Report abuse
BL said...
Did the parents want another counselor or none Bill? That is a question you of course ignored. That seems to be the issue here. By the way what does the student have to do in these sessions? Hopefully nothing,because that is what she should do.I wouldn't discuss say thing. Unless of course she observed any school administrators holding a liquor or beer or wine bottle at a store!!!
April 14, 2010 at 4:44 AM Report abuse
ElSkipper said...
Waxman is right about not being able to prevent kids from being kids but we can certainly help them to be responsible adults by teaching them to honor their word.That is something that obviously is not covered in law school.
April 14, 2010 at 5:17 AM Report abuse
dfghdfghdfgh said...
AGAIN you missed the point of the case... Its not about missing a game or two, or beer drinking. Its about due process, and removing power from the school. No one wants these idiots running the school system to exact punishment on our children without parent involvement. Our undergrad school systems ranks 17th in the world...17th.
April 14, 2010 at 5:42 AM Report abuse
Micto said...
The point is the honor code should be looked at if people don't like before a case pops up. Right or Wrong she knew the rules, can't think of changing them only when they affect you. I do think meeting with substance abuse counselor is a little much, how many people had a beer in there teens and did not turn into alcoholics?
April 14, 2010 at 7:18 AM Report abuse
justducky said...
As this girl gets older, she , like the rest of us, will learn that there are rules & restrictions in all walks of life. Not all can be ignored or chalenged without consequence. Something that the parents should be installing. Let's hope that she has learned that not only her, but her parents actions were wrong, and they think before they (her & parents ) act. As far as this taking place after school, take a look at professional sports. their players are penalized and even banned (Pete Rose come to mind?), from the sport they love, all for actions off the field.
April 14, 2010 at 7:23 AM Report abuse
Ed said...
If you think it's a waste of taxpayer money to defend a legal challenge to an honor code, you might also want to ask whether we are wasting taxpayer money by employing substance abuse counselors. Only a handful of students get caught violating honor codes, but the vast majority of them do it, suggesting that substance abuse education is pretty ineffective.
April 14, 2010 at 7:40 AM Report abuse
Transplant94 said...
Kids WILL be Kids, and then they become adults with really bad habits and attitudes when this behavior is encouraged by adults. Waxman must not have any kids because he doesn't know the difference between "kids being kids" and teaching your children right from wrong and to honor yourself and reputation by being true to your word. Yarmouth is NOT the first school to have a sports contract with their students and parents. They came about years ago because there are still many parents in this state that believe playing sports deserves a cold beer afterwards, regardless of your age. Yarmouth school DOES have the right to discuss this with the student in school when that student may have violated their contract. Plenty of kids have taken the punishment for violating it, and lived to tell about it. Children in high school are expected to take ownership for their actions these days. This mess is a hard lesson learned for kids putting pictures on FB or MS.
April 14, 2010 at 7:41 AM Report abuse
Blanco said...
In the same OP ED Piece in the Forecaster, Waxman's kid was arrested for possession by a minor. Typical Narcissistic attorney.
April 14, 2010 at 7:49 AM Report abuse
otisslee said...
Wow....Nemitz finally on the correct side of an issue. Stop the presses! DFG, I do want the school to have an enforcable honor code. It is one of the few tools the school has to shape a livable environment in the face of narcissistic parents like these parents. And, by the way, if I am doing a good job of parenting, my kids will never be adversely impacted by an honor code.
April 14, 2010 at 8:11 AM Report abuse
Jennifer said...
Bill is exactly right here. This girl signed this code and knew the consequences. The parents should have been more concerned that their daughter was drinking underage..then working on how they were going to get her out of the situation. What a pathetic waste of time.
April 14, 2010 at 8:29 AM Report abuse
Roger said...
Rules? Rules are for chumps-especially in towns like Falmouth, Yarmouth and Cape.
April 14, 2010 at 9:13 AM Report abuse
ridges said...
Roger said... Rules? Rules are for chumps-especially in towns like Falmouth, Yarmouth and Cape. I have to agree with Roger. The folks in these towns think that NO RULES apply to them. LAWS? What law for underage drinking? Does not apply to my daughter in Yarmouth..as I am sure those parents are thinking!! No life lesson can be taught to kids when parents think like this.
April 14, 2010 at 9:59 AM Report abuse
SL said...
Kids will be kids...and they will drive into a tree at 50 mph after having a few beers. Or maybe kids will be kids and have a few beers and take advantage of a drunk young lady..hhmmm Roethlisburger maybe? Kids will be kids and never be held accountable until they do something stupid, like commit a felony, and then the state gets to hold them accountable. I just hope kids being kids doesn't cost a few more kids their lives or dignity.
April 14, 2010 at 10:09 AM Report abuse
Justincase said...
"As a kid I didn't obey the rules and I didn't turn out so bad, did I?" Amy Fisher
April 14, 2010 at 10:55 AM Report abuse
Blanco said...
Roger & Ridges- Yeah, you know how much better behaved where you are from. No class envy there eh?
April 14, 2010 at 11:07 AM Report abuse
dareu2move said...
How can anybody claim there's no parental involvement? The parents read(?) and signed the code. All of the punishments are clearly spelled out. If it is unconstitutional, then refuse to sign it and then file a lawsuit when your child is banned from participating. After talking to my children, I think the code is about as effective as the 65MPH speed limit. There are a number of kids that are pretty confident they won't get caught.
April 14, 2010 at 11:20 AM Report abuse
sapereaude1 said...
An honor code is an honor code. When I was in high school, violation of the honor code brought expulsion. What are these people thinking? "I only put it in a little way" is a get out of jail free card for rape? "I only took a few things" is a get out of jail free card for theft? This attorney should be publicly humiliated in the stocks, or whipped.
April 14, 2010 at 11:58 AM Report abuse
Headsup said...
Great editorial Bill. It didn't surprise me that Waxman laughed and brushed off the question of honor and responsibilty. He has neither.
April 14, 2010 at 12:03 PM Report abuse
bekkaboo said...
From an article that I read earlier, I thought that the parents were most upset that their daughter was not allowed to have a parent present with her while they questioned her. Police are required to get consent from a parent or have a parent present when they interrogate a minor. From what I have heard, the girl requested to have her mother present and the school balked at that. THERE IS THE VIOLATION OF HER CONSTITUTIONAL RIGHTS. It was not in suspending her from sports for violating the honor code, it was for refusing her representation while she was interrogated about her actions. Whichever parent signed the document with her should have been in that room with her when she was interrogated.
April 14, 2010 at 1:02 PM Report abuse
Calvin said...
bekkabooboo: Where in the Constitution does it guarantee a student the right to be "represented" by their parent in a non-judicial setting (or in a judicial one, for that matter)? Get back to us when you find it, and good luck.
April 14, 2010 at 1:18 PM Report abuse
upnorth said...
If it is REQUIRED sign the honor code AS A CONDITION to play sports, it is BS and should be abolished.
April 14, 2010 at 1:38 PM Report abuse
David said...
She apparently did not ask to have her parents present, but, instead, burst into tears when the school told her she had to call them.
April 14, 2010 at 3:06 PM Report abuse
bekkaboo said...
Just for you Calvin..... Here is the law requiring that a child have a parent or guardian present for police interrogations....... When a child has been arrested, no law enforcement officer may question him unless the child's legal custodian is present or has given permission for the questioning to occur without his presence (15 MRSA § 3203-C2).
April 14, 2010 at 3:30 PM Report abuse
bekkaboo said...
Now, let me add this: my expectation would be that if my child were to be interrogated about underage drinking by a figure of authority at a school, I would be notified and fully expect to be sitting in that room to make sure that MY child is not brow-beaten into a confession for something that s/he didn't do. If my child did what s/he was accused of, then there are consequences that must be endured.
April 14, 2010 at 3:31 PM Report abuse
Dino90000000 said...
Why in the world would the parent's wanted a different counselor to intervene? What difference would that have made in the outcome? That has nothing to do with this case. Or at least it shouldn't have. This didn't need to be that big of a deal. Sometimes in this life, we can't dictate all the terms. And sometimes in this life you should follow common sense rules, and "own up" when you break them. Put it behind you, and move on. It's simply a part of being a member of society.
April 14, 2010 at 4:42 PM Report abuse
David said...
I love how people try to equate what happened here with a police interrogation. If anything, the folks at Yarmouth High are too kind and gentle. And they gave her a tickle on the wrist for punishment. Instead of being grateful it wasn't a mark on her permanent record or, worse yet, handed over to the police, she goes to federal court. If that isn't bad judgment, I don't know what really is.
April 14, 2010 at 4:58 PM Report abuse
bekkaboo said...
I think that the point that people are trying to make here is that if the police can't interrogate the child without the parent present or the parent's consent about something this serious, then the school shouldn't be able to either.... especially if it is something that didn't happen on school property.
April 14, 2010 at 5:12 PM Report abuse
null said...
The most important sentence in this article is the quote from the judge: "I find there is little likelihood of success on the merits of (the plaintiffs' case)". The judge has heard both sides of what happened in the assistant principal's office. The public has only heard the girl's side. Perhaps a student who breaks the law and her word of honor might also tell a little white lie about what actually happened when she was asked about the photo? When the truth comes out it will be that the assistant principal asked her to call her mother, not the other way around.
April 14, 2010 at 5:36 PM Report abuse
common_cents said...
State Drug surveys reveal that up to 85% of high school students drink; so what does that say for the power of so-called honor codes? Curious to see what impact this 'example' has on other kids drinking practices? or on parent supervised graduation parties?
April 14, 2010 at 5:53 PM Report abuse
common_cents said...
I'm disappointed with Waxman's knowledge of contract law; esp. 'moral contracts' which are nearly unenforceable; let alone the Pledge of Allegiance which schools threw out a long time ago. I hardly think a FACEBOOK photo is an egregious offence...maybe if she partied nude in the principal's office,they'd have a case; but this isn't one. Waxman's defense was lame; he should have dumped it in the A.G.'s office since these codes were blessed by the Govt.
April 14, 2010 at 5:59 PM Report abuse
sonoftwig said...
Bekkaboo, this was not a police interrogation, so the law you quoted is irrelevant. So, get back to your constitutional research. According to your logic, every time a kid is sent to the office, mommy and daddy need to be called because school administrators are looking to convict the innocent. Leaving aside the cynicism, how on earth could a school function in this manner?
April 14, 2010 at 7:11 PM Report abuse
MTB said...
Bill, I often disagree with you. Not this time...spot on!
April 14, 2010 at 9:04 PM Report abuse
null said...
Great ed piece. It's a shame that this country doesn't make the plantiff pay for the court costs when they sue and loose. I hope this girl learns the lesson that not only was the school right, but her parents made a mockery out of a private situation. Whatever self-serving interest they had by hiring, or maybe it was pro-bono, Waxman, that should be painfully obvious now that it was clearly a mistake. I hope that Daddy and Mommy let her read these comments so shell know what the world is like-outside the confines of disgusting parenting. She did get a free pass by not having her name published because of her age, so hopefully that gift won't be in vain. However, Waxman...hes clearly getting what he deserves.
April 14, 2010 at 10:34 PM Report abuse
MICKEY1947 said...
Waxman is opposed to an HONOR CODE, Great just what we need from a lawyer. This is exactly why lawyers are lower that used car salesmen.
April 15, 2010 at 1:47 AM Report abuse
Bobby said...
dfghdfghdfgh said..."No one wants these idiots running the school system to exact punishment on our children without parent involvement." Ah, there was parent involvement. Mommy dearest signed the honor code too.
April 15, 2010 at 8:10 AM Report abuse
JackinSoPo said...
Bekkaboo - you wrote - "interrogated about her actions". Well not much of an interrogation has to be done! She posted a picture on the internet of herself drinking... a picture says a 1000 words! Case slosed - grow up!
April 15, 2010 at 1:53 PM Report abuse
bfrank said...
great article ! and sadly, the whole subject matter would be funny if it wasn't so laughable...
April 15, 2010 at 5:15 PM Report abuse
Manny24 said...
Yeah, MICKEY, until you need one. The practice of law is an honorable profession. Lawyers have helped more people than they have hurt. The next time you or a loved one is arrested, injured, going through a divorce, sued or suing, try going it alone and good luck to you.
April 15, 2010 at 5:59 PM Report abuse