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Jan 26 2012

Greta Tells the Ahlquist Story

Our own Greta Christina has a thorough review of the Jessica Ahlquist situation at Alternet. As always, it is well written and tightly reasoned. I especially like this part:

Let’s get #1 out of the way first. This court decision — that as a public school in the United States, Cranston High School West cannot promote religion, either any particular religion or the idea of religion in general — is, in any legal sense, entirely non-controversial. In ruling after ruling, for decades now, this principle has been made eminently clear. There have, of course, been some genuinely controversial court cases recently about separation of church and state, which examined previously untested questions and established new legal precedent.

But Jessica Ahlquist’s was not one of them. Not even in the slightest. This was a no-brainer. If the school district’s lawyers didn’t uncategorically advise the district that they didn’t stand a snowball’s chance in hell, and fervently plead with them to concede the case before trial, they should be disbarred.

Disbarred is probably a bit harsh, but she’s right that if the school’s attorneys didn’t advise them that they had little chance of winning the case, they were being negligent. But we have seen situations many times when school boards ignored the advice of their attorneys, especially in church/state cases. And she’s right that this was not a difficult case for the judge. It was quite obvious.

16 comments

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  1. 1
    Jeremy Shaffer

    But we have seen situations many times when school boards ignored the advice of their attorneys, especially in church/state cases.

    Which is one reason why even “low- level” elections like school boards and city counsils are just as important as state-wide or national elections. If you get one filled with agenda- driven morons because only agenda- driven morons voted you end up with situations like this and, in the end, the only ones hurt are the communitiy.

    What’s more, when an elected body goes against the legal advice given by their attorney, they probably have to add a further expense of hiring a different lawyer. The official attorney can no longer represent the board or what- have- you in the matter if their differing opinion is already on record, which will most likely be the case.

  2. 2
    abb3w

    Van Orden v Perry left a little bit of legal non-obviousness; however, the local community provided a fairly abundant evidence of “climate of intimidation” to kill that.

  3. 3
    F [is for failure to emerge]

    Disbarred is probably a bit harsh

    A formal written reprimand and a caning? If it was the lawyer’s advice and not the board’s decision.

  4. 4
    slc1

    Re Jeremy Shaffer @ #1

    What’s more, when an elected body goes against the legal advice given by their attorney, they probably have to add a further expense of hiring a different lawyer. The official attorney can no longer represent the board or what- have- you in the matter if their differing opinion is already on record, which will most likely be the case.

    In addition, if they go against the legal advice of their attorney, their liability policy will, in most cases, not cover attorneys fees and, when they lose, financial penalties.

  5. 5
    peicurmudgeon

    How many of the people who supported the case and vilified Jessica would willingly increase their taxes to pay for lawsuits that have no chance of succeeding? A survey of the community without mentioning any individual cases would very likely come down hard against wasting their money this way. Apparently, money spent to support religion is not wasted, even if it all goes to lawyers.

  6. 6
    lordshipmayhem

    Disbarment would not be too harsh a penalty. When even some non-lawyer from Canada (like, say, me) could predict this outcome with accuracy, then for the board’s legal advisers to say, “We have a case!” is a demonstration of utter incompetency. They should have their license to practice law lifted to prevent them from misleading their clients further.

    I would go further: disbarment isn’t so much a punishment of the lawyers as not disbarring them would be a punishment on those who would rely on them for advice.

  7. 7
    Ben P

    A formal written reprimand and a caning? If it was the lawyer’s advice and not the board’s decision.

    I think you, and several of the other posters misunderstand the role of lawyers as it is usually played out.

    The decision to continue to defend or settle a case is a decision virtually all lawyers would try as hard as possible to avoid making themselves. It is manifestly a decision to be made by your clients. A lawyer who dismisses a case against a client’s wishes (there is a difference between withdrawing as counsel (i.e. quitting) and dismissing a case) or continues one where his client instructs him not to could potentially face sanctions.

    A lawyers job is generally more to advise and let the client decide.

    If, for example, the lawyer believed the school had a good case (where no reasonable lawyer would do so), and told the school they had a good case, then the school was suprised and upset that they lost and were ordered to pay costs. They’d have at least a plausible malpractice case. (“professional judgment” is a big hurdle, but it wouldn’t get dismissed).

    On the other hand, if the lawyer tells the school board “there’s a 90% chance you will lose this, and a 90% chance you’ll be ordered to pay costs and attorneys fees for the other side” and the school board says “we don’t care, we think we’re right and we want to fight it out,” the attorney is obligated to follow the School board’s wishes.

    The attorney could quit, but in all honesty, as long as the bills are getting paid on time most attorneys have no particular problem taking on losing cases.

  8. 8
    MikeMa

    Legal advice from a graduate of Liberty U might be a bit deficient in this area. I do hope their insurance company, if being called on to pay, is inquiring as to said advice.

    If the board went against (sound) legal advice, those members who voted contrary to the advice should resign. In a just world, they would be liable for some or all of the costs.

    If the legal advice was to pursue this, that legal adviser should be fired and his ridiculously bad advice made public. In a just world, the lawyer would carry some of the liability.

  9. 9
    carolw

    I don’t understand why school boards continue to pursue these obviously unwinnable cases. “God is on my side” does not play in a court of law. I guess they saw it as a matter of pride? They all got their widdle fee-fees hurt because a 16-year-old young woman knows the law better than they do. Boo hoo. I wish I’d had the guts to stand up to my school administration and shut down all the prayers when I was her age. Brava, Jessica.

  10. 10
    eric

    I don’t understand why school boards continue to pursue these obviously unwinnable cases.

    Well, there’s at least three reasons. There’s probably more, and none of these are contradictory, so any particular board member could have one or more of these in mind:

    (1) Its not ‘obviously unwinnable’ to them. Either because they aren’t educated in law, or they think they know better than the BOE’s lawyer, or both.

    (2) As elected officials, they feel ethically obligated to support and promote the policies desired by the majority of their constituents. They feel obligated to ‘fight the good fight,’ as it were, even if they think they’ll lose.

    (2) They want to win re-election and they think supporting this cause will help them do that, regardless of the outcome of the court case. (Likewise, for the Honorable Congresscritter).

  11. 11
    Sastra

    I’ll suggest a fourth option:

    4.) Belief in a magical universe guided by God. The law is against them; the facts are against them; it looks like all is lost. But that is exactly when a miracle is needed … and who has been standing on God’s side? Not the opposition, surely.

    The possible scenarios are now limited only by the imagination. The law is read again and behold, the words have been changed. The Supreme Court bursts unexpectedly into the room and hands down the right verdict. A bolt of lightening descends from above and re-burns the prayer into the wall. Jessica Ahlquist keels over dead and the issue is moot. Scholars discover that one of the pages of the Constitution accidentally got stuck to the back of another one — and it’s the page that had to do with school prayers. The opposing attorney suddenly breaks down during the trial and gives his life to Jesus, with the judge subsequently banging the gavel on the bench and ruling that “that does it: Jesus is now officially Lord of the State of Rhode Island!” to cheers from the crowd. Lads from the Treasury Department come in with wheelbarrows and start dumping dollar bills on the bench, all of which read “In God We Trust.” Case closed!

    These people believe in miracles. Literally. And they were raised on a diet of movie scripts, Bible stories, and true tales of faith.

  12. 12
    MikeMa

    @Sastra,
    Lovely imagination. I do hope you get to use it for good on occasion:)

  13. 13
    Ben P

    (1) Its not ‘obviously unwinnable’ to them. Either because they aren’t educated in law, or they think they know better than the BOE’s lawyer, or both.

    I’ll add a 4th, (or a 5th given Sastra’s post).

    (4) The entire schoolboard is not actually aware of the lawyer’s opinion.

    I don’t do any work with Schoolboards, but I’ve done work with organizations of similar size.

    The Schoolboard’s lawyers are most likely outside counsel, and I’ll wager that every member of the schoolboard does not talk to those counsel on a regular basis.

    It may even be the case that the lawyers never met with the whole schoolboard at once, rather, one or two members (officers most likely) met with the lawyer, than those two members conveyed “what the lawyer said” to a whole meeting of the schoolboard.

    I know from personal experience that what the lawyer tells people, and what people then tell their superiors/subordinates/family/whatever can be different based on what they want to do.

  14. 14
    MikeMa

    @BenP,
    You are no doubt correct but what kind of stupid organization takes a step like the Cranston board did without clear legal advice?

  15. 15
    Ben P

    @BenP,
    You are no doubt correct but what kind of stupid organization takes a step like the Cranston board did without clear legal advice?

    I think you underestimate the power of people to believe what they want to believe.

    I suspect it goes something like a twisted game of telephone.

    Board president meets with lawyer, explains situation, retains lawyer to represent them. Lawyer investigates.

    Lawyer calls board president to offer conclusions and says , then sends formal written opinions to president in what we delicately call a “CYA” letter. (in that it protects you from malpractice claims if the president turns around and says “that’s not what you told me on the phone).

    The conclusion in this case was probably something to the effect of “you will more than likely lose any lawsuit filed by Alquist, and could very likely be ordered to pay fees and costs.”

    The president gets the phone call and the letter, reads them carefully, or doesn’t. Then has a meeting with the school board. He tells the school board, “the lawyer said the judge might rule against us, but we have a chance.”

    The conservative school board members then hear in their own heads “we’ll win unless the liberal judge is biased against us.”

  16. 16
    MikeMa

    BenP
    Well, the board went ahead with the suit regardless of any advice to the contrary so your scenario is as good as any. It might be a good, if expensive lesson, to prevent more idiocy and further loss.

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