Harrison, West Virginia, judge issues preliminary injunction in middle school free speech case

The coach applied an unwritten team rule, on the books for four years, that athletes who intentionally “scratch” an event won’t be rostered for that event for the next meet. They could participate in other events.

From Bedell’s ruling, it’s clear he doesn’t consider this anywhere close to a slam-dunk case for the plaintiffs. The matter “needs flushed out in the course of this litigation,” Bedell said.

But the “public interest always preponderates toward freedom of speech,” the 32-year judge indicated.

Bedell also made it clear this case is not about the gender issue, but instead is about free speech.

At least for now, the gender issue has been decided by the Fourth Circuit and “is the law of the land, in essence,” or at least until it’s challenged to the U.S. Supreme Court, he indicated.

Bedell also said that from the record made during Thursday’s nearly 3 1/2-hour proceeding, he didn’t believe there had been malice by Lincoln Middle School officials.

Dawn Riestenberg, Lincoln Middle School girls track coach, and Principal Lori Scott both testified the “scratch” rule had been in effect for four years and had been applied uniformly.

And Steptoe & Johnson attorney Susan Llewellyn Deniker, representing the Harrison Board of Education, argued that not applying the rule would have been showing favoritism toward the four girls who protested.

Riestenberg and Scott both testified they had supported the girls’ right to free speech, and insisted that making them sit out of the shot put for the next meet hadn’t been in retaliation. The “scratch” rule also didn’t preclude the girls from performing in other events, according to their testimony.

From their testimony, it also was clear that school officials knew the silent protest “scratches” were likely going to happen during the county’s middle school championship track meet.

Riestenberg testified that her initial reaction was to balk because of the possibility of the lost points. But after a talk with Scott, they decided “we were going to put them in and see what happens,” Riestenberg testified.

Their testimony also was that the decision not to roster the girls for the shot put in the ensuing meet was made before the girls participated in a press conference in Charleston involving the transgender athlete issue.

Attorney Caleb David, who represents four of the five girls, appeared to score points with Bedell on a due process argument that started with the “scratch” rule not being in writing, and he continued on with there not being written parameters for appealing a decision.

David, of Shuman McCuskey Slicer PLLC in Charleston, presented testimony from two of the girls and a parent. He also argued that the West Virginia Secondary School Activities Commission’s rule involving forfeits should have superseded the school rule.

On multiple occasions, Bedell interjected with questions on why the rule wasn’t in writing. He also homed in on what avenue for appeal the girls and their parents had, as well as how they would even know how or when to appeal, since the process wasn’t in writing.

The judge appeared to indicate that the free speech issue made application of the rule in this instance different than application of other unwritten team rules, such as ones involving cell phone use.

Following the ruling, the Harrison Board of Education issued a statement:

“The Harrison County Board of Education strongly denies any form of retaliation against the Lincoln Middle School students who voluntarily chose to scratch from an event at the Harrison County Middle School Championship Track Meet. The students were permitted to engage in their selected form of protest without issue. In fact, the coaches and principal were aware of the likelihood of the protests and permitted the students to remain on the roster for their events.

“Those students, like all of the other students on the team, however, were subject to a team rule that any player who scratches in an event cannot participate in that event at the next track meet. This neutral, school-specific rule was in place before the students’ protests and has nothing to do with those protests in any way. Other than not being permitted to participate in the same event in which they scratched at the next track meet, the students have competed in track meets and events following their protests without restriction.

“To be clear, no students have been retaliated against or penalized for expressing their views at the Harrison County Middle School Championship Track Meet.”

Testimony from Scott and Riestenberg was that some Lincoln Middle girl athletes had been wearing “SWS” T-shirts, standing for Save Women’s Sports, to track meets. They did so without any consequence from the school, according to that testimony.

Bedell plans to have the case resolved before he retires at the end of this year. He said it’s too important to let it linger.

State Attorney General Patrick Morrisey’s office filed a friend of the court brief on behalf of the plaintiffs and lauded the decision.

The girls “have won by having their voices heard,” Morrisey said in a statement following the ruling.

Deputy Attorney General Curtis Capehart was part of the hearing, but only in the role of an observer.

The Lincoln Middle School track team has two meets left in its season, and only one — the county’s eighth-grade meet — where Bridgeport Middle School will be participating, according to statements in court.