Yearbook Gun Photo Trial Ends With Unusual Words From JudgeBy Beverley Wang
The Associated Press
CONCORD, N.H. -- A judge presiding over a high school senior's bid to have his gun in his yearbook portrait congratulated the student for bringing the case forward but said Wednesday he had little chance of prevailing. v "I'm awful proud of you for bringing the case. You stood up for your First Amendment rights," U.S. District Judge Steven McAuliffe told Blake Douglass at the trial's end. "If it doesn't go well for you, I want you to know you did the right thing."
Douglass said he was not discouraged by McAuliffe's negative prediction. "There's still a chance," he said.
His father, Sherwood Douglass, said the family would consider an appeal if McAuliffe ruled against them. The yearbook deadline is March 20 -- any appeal would not occur before then, so the photo likely would never be published. But Sherwood Douglass said an appeal could set legal precedents "so hopefully people won't have to go through the pain of what (Blake) went through."
The Douglass family has maintained Londonderry High School faculty members, not students, banned the photo because of a perceived prejudice against guns. If so, the administrators, acting as state actors, would have violated Douglass' constitutional rights.
But in a preliminary decision last month, McAuliffe ruled student editors decided to reject it. That ruling weakened Douglass' case because students are private actors and, like newspaper editors, their editorial choices are protected by the First Amendment.
In court, Douglass' lawyer, Penny Dean, spent hours laboriously trying to prove her theory that students who voted to ban the photo were rewarded with appointments to the yearbook's editorial staff. Much of her questioning focused on whether the 10 students consulted about the photo were editors with decision-making power or simply students hand-picked by the faculty to agree with them. Eight of the 10 students consulted about the photo voted to exclude it; the group later offered to include the photo in a specially created "community sports" section, but Douglass declined.
"Ten students who had the same opinion as administrators were rewarded by making the right choice," Dean said to Londonderry superintendent Nathan Greenberg.
"That's a very nice conspiracy theory but I don't think it's representative of the facts," Greenberg replied. "If you're implying the kids were bribed by being offered editorships, I think that's ludicrous."
Dean also tried to prove students were coached to say they had final say in yearbook decisions to nullify Douglass' constitutional claims. She pointed to conflicting statements made by one editor, Caitlin Davis. In previous statements, Davis, 17, said faculty yearbook advisers had the power to veto student choices but gave a different answer in court Wednesday. On the stand, on the verge of tears, Davis said she previously answered incorrectly because she was nervous.
Under questioning by McAuliffe, student editors said they never felt pressured by administrators to decide against Douglass' photo.
"All they said was whatever decision was made, they would support us," said Toni Runci, 17, the yearbook's co-chief editor. Runci said she personally favored allowing Douglass' photo, but as editor decided to honor the majority decision.
http://www.nylawyer.com/news/05/03/031005p.html
