Metropolitan News-Enterprise


Wednesday, May 1, 2019


Page 1


Ninth Circuit:

Student Who Was Given ‘F’ on Essay Should Be Given Chance to Re-Plead

Complaint Says Grade Was Product of Teacher’s Anti-Trump Bias


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ordered reinstatement of an action on behalf of a high school student who claims he was given an “F” on his essay because he would not alter the topic—“Democracy Endangered or Strengthened After Trump?”—and offended the anti-Trump sensibilities of his tenth grade teacher.

In a memorandum opinion, a three-judge panel agreed with U.S. District Court Judge Andrew J. Guilford of the Central District of California that the first amended filed complaint by Wild Chang Sr. on behalf of his minor son was faulty, but said the judge erred in not granting leave to amend.

Guilford reasoned that since the first amended complaint “still doesn’t allege nearly enough facts, granting leave for further amendment is futile.”

The action on behalf of Wild Chang Jr. is against Rowland Unified School District (located in the San Gabriel Valley); Emily Lamar, his English teacher during the 2016-17 school year; and Mitchell Brunyer, was the principal of Rowland High School.

Lamar had instructed the boy to alter his topic which she described as “too broad, too recent and too biased.” When negotiations on the part of Wild Chang Jr. and Wild Chang Sr. with Lamar and Brunyer failed, the student submitted a six-page essay on his chosen topic and received a failing grade.

The first amended complaint alleges:

“During the school year, Lamar expressed political views in class. After the election, she said, ‘I just can’t believe that TV actor is now our president.’ Plaintiff is informed and believes that Lamar’s actions concerning his school paper were the product of her political views and her animosity toward President Trump.”

Guilford commented:

“But one vague, off-handed comment, made outside the context of the assignment and at an unclear point in time is also insufficient to allege Plaintiff’s teacher was so biased that there was no valid educational purpose to her instructions. Even examining these allegations as a whole, they describe facts that make it equally plausible that Plaintiff’s failing grade was the result of Plaintiff’s refusal to follow instructions, and not because of Defendants’ alleged bias.”

At oral argument in Pasadena on April 8, Circuit Court Judge Susan P. Graber remarked that the teacher’s expression of surprise “could be either pro or anti the president.”

Her colleague Jay S. Bybee interjected: “A lot of us were surprised.”

Graber observed: “including the president.”

Santa Monica attorney Robert C. Moest, representing the plaintiff, insisted:

“Certainly the position of the teacher is anti-President Trump.”

Other Students

The pleading also set forth:

“Lamar and Brunyer gave a series of inconsistent explanations for the refusal to accept plaintiff’s work. For example, although it was asserted that the topic was too broad and general, other papers addressing similarly broad subjects were approved. Substitute topics suggested by defendants were as broad or broader. Undue weight was given to punctuation issues that were not a basis for grading other students’ papers, particularly regarding use of a question mark in the title of the paper.”

Guilford wrote:

“At most, those allegations could be described as consistent with a theory that Plaintiff’s teacher treated him worse than other students. But they are just as consistent with another explanation: that these other students didn’t fail the assignment, even though they made mistakes, because they didn’t make as many mistakes as Plaintiff, or disregard their teacher’s instructions as consistently as Plaintiff.”

At oral argument, Moest said that if given leave to amend, he could add allegations concerning other students’ papers which would point to disparate treatment. Bybee expressed concern of what that would entail, asking, rhetorically:

“Do you want the court to grade these papers?”

Memorandum Opinion

Yesterday’s opinion says:

“…W.C. claims that if granted leave to amend, he could allege ‘other facts to show a pattern of lopsided criticism’ sufficient to establish circumstantial evidence of political bias. While we express no opinion as to whether such facts actually exist, we cannot conclude that further amendment would be futile. Moreover, the fact that W.C. has already amended his complaint once does not amount to ‘several opportunities to amend [his] complaint’ and ‘repeated[] fail[ure] to cure deficiencies.’…Finally, there is no evidence of undue delay, bad faith, or prejudice to the opposing party.”

The case is W.C. Jr. v. Rowland Unified School District, 17-56725.


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