Though no reasonable person would argue that the Holocaust was lacking in deployments of excessive force or injuries against bodily integrity, a trial court recently vindicated a Texas school district whose use of a Nazi-Jew simulation occasioned just such complaints from the parents of one teenager.

Andrew Yara is the student in question, and the case’s procuring cause was “Red Ribbon Day,” a two-day event in which all the high-schoolers of Perryton ISD are subjected to rude demonstrations of power and subjugation. Half the students wear red ribbons the first, the other half the next. While be-ribboned, a student must comply with whatever demands his betters make of him. So it was that Andrew Yara ended up physically lugging a trio of kids to class, while another (his cousin, it so happens) twice leapt upon his back.

The suit filed by Yara and his parents claimed that district policy had led to his back pains, humiliation and depression, and that the school personnel’s training was insufficient to the task of overseeing such an operation. The trial court rejected their arguments, deciding that “Red Ribbon Day” wasn’t district policy, per se, but the brainchild of a high school world history teacher, approved by the principal, and that personnel hadn’t displayed the “deliberate indifference” the law requires to establish liability on a “failure to train” claim.

Lance Cawthon, a former Assistant Attorney General for Texas currently practicing law in the Austin office of Walsh, Anderson, Gallegos, Green & Treviño, P.C. was kind enough to help make sense of the case.

To begin, I asked him if young Mr. Yara might have built a successful case against anyone, considering he was legitimately injured. Cawthon reminded me that the statute of limitations for this particular injury had expired, and then said, “It’s difficult to say… It’s interesting to consider what alternatives a parent might have. One option would have been to sue individual school district employees who were involved in some way, rather than suing the district itself. In that scenario, one would expect the employees’ counsel to assert the defense of ‘qualified immunity’. Substantively, the plaintiffs would have to show the law is sufficiently clear that a reasonable official would know the individual defendants’ conduct violated the student’s constitutional right. In a case like this one, where the underlying facts are rather unique, that standard often works in the defendants’ favor.”

The parents might have brought suit against the students who had administered Yara’s punishment, Cawthon said, “But, assuming you could establish liability…generally speaking, young adults in [their] age range are not in a position to pay a substantial judgment and do not make attractive defendants. Of course, in the case of the cousin, there’s the added complication of suing family.”

Asked how school personnel should prepare for and handle incidents of children harming each other during required programs, Cawthon was clear: “You begin by [laying] out clear ground rules for the activity in advance, [then] any time an accident or injury does occur, you’ve got to pause and ask whether the activity can be made any safer. Ultimately, you also have to revisit the initial risk assessment of the activity in light of how it actually played out and determine whether continuing that activity is a responsible choice.”

Although “Red Ribbon Day” seems to have retired with the World History teacher who sponsored it, I asked Cawthon if the event could have, over yearly repetition, acquired the patina of “policy.”  “You have to worry about practices and traditions attaining ‘custom’ status, which is another pathway to establishing district liability,” he said. “If you have a well-known school-sponsored activity or tradition with a history of accidents or injuries occurring over the years, so that it’s likely to have come to the school board’s attention, a court might conclude the activity is a custom attributable to the district itself.

“Any time you have an activity that might be perceived as encouraging students to treat each other unfairly, and some misfortune occurs, your chances of drawing unwanted attention from a parent’s lawyer have gone up,” he said. “Not all claims and theories of recovery require the plaintiff to tie the injury to the actions of the school board either. It definitely pays to consider not just whether your district could be held liable under the law, but also how the activity might be perceived in terms of general fairness to the students.”

Finally, I asked Cawthon, himself a product of Duncanville ISD, what he thought about Red Ribbon Day. “Having had the chance to hear from both the teacher who taught Red Ribbon Day, as well as a couple of parents whose children went through the activity, I believe there was definitely some value in what it taught,” he answered. “This exercise was never meant to be a re-enactment of Nazi Germany, even though it was spun that way in the plaintiffs’ complaint and in some media accounts that basically just repeated what the plaintiffs alleged. While it was taught in conjunction with class coverage of the Holocaust, it was meant to teach the students a broader lesson about social apathy.

“Red Ribbon Day was developed in direct response to questions from students who couldn’t fathom how something like the Holocaust could have ever occurred in the first place. They just did not understand how regular society could look the other way while it went on. What Red Ribbon Day aimed to do was help students see how influences they could relate to, like routine peer pressure and groupthink, played a role in conditioning people to tolerate the atrocities committed against their own fellow citizens. Red Ribbon Day wasn’t just about the experience of wearing the ribbon, it was also about how you acted and felt when others wore the ribbon. Were you a sympathizer? A bystander? Did you treat students with ribbons any differently than normal? In experiencing both of these roles, students hopefully gained some insight.

“Unfortunately, it appears that not everyone followed the rules and parameters of the activity, which is what led to the accident. When that happens, you have to take into account the new information and decide whether it’s appropriate to continue. Red Ribbon Day was taught at this school for three years, and I’m told it took place without any problems for the first two years. During that time, I suspect Red Ribbon Day was a positive learning experience for a lot of students.”

Stay up on Yara v. Perryton and other important cases in Texas School Administrators’ Legal Digest.

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