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:

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: [email protected]


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