District Court Abused Its Discretion by Failing to Appoint Counsel for Minor Child in First Amendment Case, Holds Eighth Circuit

In Crozier v. Westside Community School Dist., No. 19-1312 (8th Cir. Sept. 2, 2020), the Eighth Circuit reaffirmed the general rule that parents may not represent their minor children pro se in federal court, but under the particular facts of this case hold that the district court ought to have appointed counsel for the minor.

The parents of minor A.C., a middle-school student, alleged that she was assigned with her class “to watch a video about athletes kneeling during the national anthem.” When she was called on in class, A.C. expressed politically conservative views in support of the military and police, then launched into a discussion of the use of (what the opinion describes as) the “N-word.” “The teacher then interrupted A.C. and directed her to stop speaking.” The next day, while A.C. was absent, the teacher allegedly “told several class periods worth of students that A.C. was a racist.” A.C. was allegedly bullied by classmates as a result, suffered emotional distress and depression, was placed under suicide watch, and transferred to another school. The parents’ pro se federal complaint alleged claims under§ 1983 for First Amendment retaliation claim and denial of Equal Protection.

The district court dismissed the action, holding that the parents could not represent their minor child pro se and had no independent standing to bring a § 1983 claim on their own behalf. The parents approached dozens of lawyers to bring the case for them but were unable to obtain counsel. They then returned to court to move that the court appoint counsel for A.C.. The district court denied the request, “because (1) the § 1983 claims were ‘not likely to be of substance,’ and (2) A.C. lacked standing for declaratory and injunctive relief, as she was no longer a student at [the school].”

The Eighth Circuit affirms the ruling on proceeding pro se. “Non-attorney parents cannot litigate pro se on behalf of their minor children, even if the minors cannot then bring the claim themselves.” While noting that this rule was not “ironclad” – courts have recognized that non-lawyer parents may represent their children in Social Security appeals – it holds that no such exception has been recognized for § 1983 or general state tort law. The panel also holds that A.C.’s fundamental right to access to the courts was not impaired because the limitations period was tolled (under borrowed state-law principles) until after she reaches age 21.

Nevertheless, the panel holds that counsel ought to have been appointed to A.C., and that the district court abused its discretion in denying the parents’ request. While “the district court did not err in considering the potential merit of the plaintiffs’ claims,” the panel finds that it gave short-shrift to a potentially serious collision of rights in the case. As a general rule, “schools and teachers may limit classroom speech based on legitimate pedagogical concerns,” yet “the extent to which teachers may control student speech in the classroom is an open issue.” “The allegation here is that a public school teacher retaliated against a student merely for expressing her personal views when called upon to speak in a classroom. The complaint asserts that the teacher defamed the student by falsely labeling her as a racist who uses the ‘N-word’—an act that the district court understandably did not describe as reasonably related to a legitimate pedagogical concern.” The panel remands the case for appointment of counsel under 28 U.S.C. § 1915(e).

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