No. 16-0133 UNITED STATES COURT OF APPEALS

FOR THE FOURTEENTH CIRCUIT

BRIEFING SCHEDULE

Appellant Midlands Consolidated School District, having filed a Notice of Appeal on

September 9, 2016, from the Memorandum Decision and Order on Plaintiff’s Motion for a

Preliminary Injunction of the United States District Court for the Eastern District of Calumet,

dated September 8, 2016, and the appropriate docketing fee having been paid and the docketing

statement having been filed; the Court now sets following schedule and instructions for the

submission of the parties’ principal briefs:

(1) The briefs of both Appellant and Appellee are due in electronic form on or before October 1, 2016, at 5:00 p.m. EST.

(2) Six bound copies of the briefs of both Appellant and Appellee must be delivered to the Clerk’s Office at 211 S. Indiana Ave., Rm. 123, on or before October 3, 2016, at 5:00 p.m. EST.

The parties shall be notified of the time and date set for oral argument at a later date. _________________________________ Andrea Douglas, Chief Judge

AUGUSTINE COVINGTON, a minor, by and through his parent, SHERRI COVINGTON,

Plaintiffs-Appellee,

Appeal from the United States District Court for the Eastern District of Calumet

v.

MIDLANDS CONSOLIDATED SCHOOL DISTRICT,

No. 9:16-MC-1738

Defendant-Appellant. The Honorable Maria Campanielleo District Judge

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALUMET

NORTHERN DIVISION

Civil Docket for Case Number No. 16-0133

Case Title: Covington v. Midlands Consolidated School District Date of Complaint: September 2, 2016

Assigned to: Judge Maria Campanielleo

Date Filed # Docket Text Sept. 9, 2016 Notice of Appeal Sept. 8, 2016 Memorandum Decision and Order on Plaintiff’s Motion for

Preliminary Injunction Sept. 7, 2016 Preliminary Injunction Hearing Exhibit A Sept. 7, 2016 Preliminary Injunction Hearing Exhibit B Sept. 7, 2016 Preliminary Injunction Hearing Exhibit C Sept. 7, 2016 Preliminary Injunction Hearing Exhibit D Sept. 7, 2016 Preliminary Injunction Hearing Exhibit E Sept. 7, 2016 Preliminary Injunction Hearing Exhibit F Sept. 7, 2016 Preliminary Injunction Hearing Exhibit G Sept. 7, 2016 Preliminary Injunction Hearing Exhibit H Sept. 7, 2016 Preliminary Injunction Hearing Exhibit I Sept. 7, 2016 Transcript of Testimony

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALUMET

NORTHERN DIVISION

AUGUSTINE COVINGTON, a minor, by and through his parent, SHERRI COVINGTON, Plaintiff-Appellee, v. No. 9:16-MC-1738 MIDLANDS CONSOLIDATED SCHOOL DISTRICT, Defendant-Appellant.

NOTICE OF APPEAL Defendant Midlands Consolidated School District, by counsel Maurer, Baier, and

Jerome, respectfully appeals the Memorandum Decision and Order entered by this Court on

September 8, 2016, to the United States Court of Appeals for the Fourteenth Circuit.

Respectfully submitted,

Maurer, Baier, and Jerome Aaron Retrac, Esq., Partner Counsel for Defendant

September 9, 2016

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALUMET

NORTHERN DIVISION

AUGUSTINE COVINGTON, a minor, by and through his parent, SHERRI COVINGTON, Plaintiff-Appellee, v. No. 9:16-MC-1738 MIDLANDS CONSOLIDATED SCHOOL DISTRICT, Defendant-Appellant.

MEMORANDUM DECISION AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

CAMPANIELLEO, Judge:

Plaintiff Augustine Covington has sued for injunctive and declaratory relief under 42

U.S.C. § 1983, claiming that the school district violated his Free Speech rights when it suspended

him for performing an offensive poem in the form of a “rap” that was captured on video. His

motion for a preliminary injunction now requires the Court to resolve two issues:

(a) Whether, under Rule 501 of the Federal Rules of Evidence, there is a “dangerous-

patient exception” to the psychotherapist-patient privilege, and how that exception

applies to the testimony in this civil action; and

(b) Whether a public high school may, under the First Amendment, regulate student

speech that takes place entirely “off-campus,” and if so, whether the circumstances

justified Covington’s suspension here.

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FACTUAL BACKGROUND

The following facts were established by uncontested evidence at the preliminary

injunction hearing, and are not disputed by either party. All the evidence discussed below

(including articles and studies cited in footnotes) was admitted without objection, except for the

social worker’s testimony.

Augustine Covington (“Augie”) is a junior at Madeleine Albright High School (“the

School”) in Midlands City, Calumet. Before his father’s death in an automobile accident in June

2015 – near the end of his freshman year – Augie had a 4.0 grade-point average and a spotless

disciplinary record. About a month after Augie’s father passed away, Augie’s mother became

concerned about his apparent depression and anger issues.

They were initially referred by their family practitioner to a psychiatrist, Dr. Lucius Wolf,

who diagnosed Augie with Complicated Grief Disorder1 and Minor Depressive Disorder. Dr.

Wolf prescribed antidepressants, which Augie took regularly until approximately December

2015. By that point, Augie’s depressive symptoms seemed to have improved, and Dr. Wolf

retired the antidepressant regimen. Augie’s mother remained concerned about his behavior and

emotional condition, however, and at her request Dr. Wolf referred Augie to Dr. Theresa Bruno,2

a clinical social worker, for follow-up psychotherapy.

Throughout the 2015-2016 school year Augie’s grades began to slip, and Augie was

disciplined a number of times at school for minor disciplinary offenses such as throwing a

blackboard eraser at a teacher, getting in a verbal altercation with cafeteria personnel, being

1 See generally Mayo Clinic Staff, “Diseases and Conditions: Complicated Grief,” MAYO CLINIC (Sep. 13, 2014), http://mayocl.in/2cdH3nY. 2 Dr. Bruno’s professional qualifications were admitted into evidence as Exhibit G and can be viewed at http://bit.ly/2c03stg.

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persistently late to class, and starting a rap battle in school hallways. He continued to thrive as an

athlete and in his creative writing courses, however, even received national recognition for a

poem written about his father. He also finished out the school year as amember of the varsity

soccer and baseball teams.

Shortly after the next school year began, on the evening of August 19, 2016, Augie

attended a party at the home of a classmate whose parents were out of town. A neighbor, noticing

young people entering the house with cases of beer and congregating on the front porch with red

Solo cups, notified police, who responded and – after the student hosting the party gave

permission for them to enter – arrested and cited several people, including Augie, for the

possession and consumption of alcohol by a minor. See Clmt. Code § 7.1-5-16.5(a)(1).

Word of the arrest had reached the School by the following week. On August 25, 2016,

Augie’s soccer coach, Coach Antonio Talampas, told Augie that because he had violated school

and team rules against consuming alcohol, he would not be allowed to participate in the Calumet

state soccer championship game. Augie pleaded with his coaches and the school principal to lift

or at least delay the sanction, because the game was exceptionally important to him; MAHS had

not won the State Championship since 1980, the year in which Augie’s own father had captained

the School’s team. As he later explained to Dr. Bruno, Augie had dreamed for months of

winning this championship game as a tribute to his late father; indeed he had already composed

(and shared with his closest friend) the post-game remarks that he planned to deliver while

accepting the championship trophy in honor of his father’s memory.

School officials were unrelenting, however, and on August 27, 2016, the School’s soccer

team lost the State championship game, with Augie (ordinarily a starter at forward) on the bench.

Augie was crushed by both the team’s loss and his inability to have fulfilled his dream of leading

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them to victory and preserving, as he saw it, his father’s legacy. Over the ensuing hours, several

friends later testified, his grief turned to rage against the school officials who had imposed what

he felt was unjust – particularly under the circumstances – almost sadistic punishment for what

(it was widely agreed) is a fairly common transgression among high-school athletes.

As they commiserated with him and he continued to stew, Augie shared with two friends

a poem on which he said he had been working for several days. They were not surprised by his

literary efforts: Augie and his particular group of friends often took part in informal “poetry

slam” contests in which they attempted to top one another with both prepared and spontaneous

rhymes, many of which were composed in the distinctive style that, when set to or backed by

music, has been popularized under the broad term “rap”.3

Usually the subjects of these poems were the topics of most teen-age young men’s

conversations: inside jokes and mutual put-down; rivalries with other schools, sexual boasts and

the like. On this occasion, however, Augie’s friends were startled to see that his poem had a

more specific topic and aggrieved tone: the rap was seemingly directed towards “boosters,” or

financial supporters, of the School’s soccer program, and Coach Antonio Talampas, who had

made the initial decision to bench him for the championship game. The rap, as Augie preformed

it for his friends, went as follows:

I can only keep this brief; Please do not mistake this beef for Drake and Meek; It is not fame or fans I seek when this jam leak. Forget Robert Williams and Aubrey Graham; I’m coming to ‘hit em up’ like a real man. Mind made up my plan is flawless;

3 “Rap” has been described as “spoken or chanted rhyming lyrics.” Its origins are complex, and usually traced to West African traditions, but it began to emerge as a distinctly American genre in the 1970’s in the Bronx. Rap (often associated with or used synonymously with “hip hop”) is often considered the dominant popular musical form of the last thirty years. See, generally, Becky Blanchard, "The Social Significance of Rap and Hip-Hop Culture," EDGE (July 26, 1999), https://web.stanford.edu/class/e297c/poverty_prejudice/mediarace/socialsignificance.htm.

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Only way we end this is like Lesane Crooks and Christopher Wallace.4 I’ve had enough, middle fingers up while rolling down the window And you should know this is only the intro wait until I release all the info. I know the boosters were never really fond of me; But I never found that odd you see; Because I am the star and they are a bunch of wannabes. Can’t get over high school, and dropped out of night school; I mean it’s not cool; it’s sad that these dads really need us; Always splurging on team dinner, but pain pills they want to feed us; Son can’t even read but so they will drop a rack on a freaking C+. Money cannot squash this beef, this ain’t a McDouble; You bought the principal, the coach, the teachers, but you’re in trouble; You can’t buy this whistleblower, better get moving, Barney Rubble. And now it’s, time for Coach Talampas I was pissed before, but now you amped this. You blasphemous hater, you know I am the best player; You put your son on the juice and not the one with the Gator. Suspend me for the ‘ship; What you think I wouldn’t flip; When I am done with you, you will praying for your pink slip. Wouldn’t have a win if I started walking out; And I do not want to talk it out; Coming at me your body they’ll be chalking out. Like dude, do you even have any life plans; Cares so much about soccer that he lost his wife man; And yeah we was never tight fam; So you know what . . . I guess we have to throw hands.

Augie’s performance of the rap was captured by one of his friends, with Augie’s consent,

on Augie’s cell phone using a social media application (or “app”) known as “QuickPix.”5

QuickPix is an app similar to the “Story” function of the more popular Snapchat. While Snapchat

allows videos of only 10 seconds, QuickPix permits users to record video up to two minutes long

and share that content with others in one’s network.

4 The slang and multiple allusions to popular culture in Augie’s rap were explicated for the Court by the expert testimony of Prof. Naomi Ginsberg, whose report was admitted into evidence as Exhibit C. 5 Augie’s video was entered into evidence as Exhibit H and can be found here: http://bit.ly/2cLZNPH.

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A distinctive feature of QuickPix, much like Snapchat, is that content created on the app

is ephemeral: after twenty-four hours, it disappears completely from the app, meaning that it

cannot be viewed any longer even by those in the network. Since the content also cannot be

downloaded to others’ accounts, the video or other content effectively disappears exactly one day

after its creation. The only way that videos can be preserved for viewing or transmission after

twenty-four hours is if the video itself has been filmed by external photograph or recording (a

screen capture), whether via telephone or other device.

Unfortunately for Augie, this type of screen capture occurred in his case. QuickPix

postings are viewable only by the user’s QuickPix friends. Augie is QuickPix friends with two

hundred people, approximately one hundred and fifty of whom attend the School. One of those

friends was Bart Talampas, the son of the very coach who was the target of Augie’s rap. On the

morning of Sunday, August 28, Bart saw the video when he opened his cell phone shortly after

waking. (It is not known how many other of Augie’s classmates or other QuickPix friends

viewed the video either during its twenty-four hour lifespan or subsequently.)

Bart, who later told school officials that he was immediately alarmed (as well as

offended) by Augie’s rap, then used his own mobile phone to capture the QuickPix video. He

shortly thereafter shared the QuickPix video with his father, who ultimately provided it to the

School and asked officials to take disciplinary action against Augie.

On Monday of that week, August 29, Augie kept a scheduled appointment with Dr.

Bruno. Although two days had passed since the championship game and the recording of his rap,

Augie’s anger continued to simmer. According to Dr. Bruno’s later reports to authorities, Augie

seemed “agitated” from the start of the counseling session. Augie recounted the events of the

past weekend and his increasing obsession with the role that Coach Talampas had played in his

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benching, which by now Augie had come to believe was deliberately intended to sabotage his

efforts to memorialize his father via a win.

As Dr. Bruno later testified, Augie told her, “Talampas ruined my soccer career. He tore

down everything my father and I built together. I can’t wait to spit on his grave. It’ll happen soon

enough.” Dr. Bruno, startled at the intensity of Augie’s fervor, asked whether he meant that his

coach was facing a terminal illness and, if not, then whether Augie was implying that he meant

to cause the coach harm. She also reminded Augie that at the outset of their professional

relationship, she had outlined “ground rules,” including her obligation to break confidentiality

and notify others if during their sessions he ever confided in her something that she believed

posed a real threat to others.

Augie initially backtracked, denying that he had meant to suggest that he would ever

harm the coach or anyone else at the school. But he continued to inveigh against the School and

the coach, sometimes in alarming terms. Dr. Bruno was disturbed enough by Augie’s language

that, after reviewing her notes of their past sessions and considering the matter overnight she

made the decision early the next day to inform the School, through Principal Ting Hua, that she

was concerned that Augie conceivably posed a danger to Coach Talampas.

Principal Hua immediately convened a meeting with the school’s counseling and athletic

staff and, that same afternoon, issued an emergency suspension of Augie. Augie was called from

class, handed a letter informing him that he was provisionally suspended from school and all

school events indefinitely, effective immediately, and told to go home; his mother was notified

of the suspension by telephone.

Mrs. Covington, through an attorney, immediately appealed the suspension but, two days

later, on September 1, she was served with an order by the Superintendent of Schools suspending

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Augie from school for the remainder of the Fall semester. The suspension notice cited two

instances of conduct that it maintained had violated the school’s code: (1) the “extreme and

inappropriate” statements made in the video that he had “disseminated” on August 27, and (2)

the “threats” and “intimidation” against Coach Talampas made in his therapy session with Dr.

Bruno of August 29. According to the school district, those “communications” violated

Section 7.1.12 of the School’s student handbook which provides, “Any student who engages in

extreme, outrageous, threatening, inappropriate, or persistent acts or communications to any

person or third-party that are intended or reasonably likely to harass, intimidate, harm or

humiliate another may be subject to discipline by Madeleine Albright High School including but

not limited to expulsion.”6

Two days later, Augie and his mother filed the present lawsuit, alleging that Midlands’

actions in suspending Augie violated his First Amendment right to Free Speech.

DISCUSSION

At the same time he filed his lawsuit against the Midlands, Covington moved for a

preliminary injunction restoring Augie to student status immediately. With the concurrence of

the parties, the Court scheduled an immediate hearing on the request for emergency injunction

relief for September 7.

I. Preliminary Injunction Standard

The Fourteenth Circuit follows the Seventh Circuit standard for issuance of a preliminary

6 As in most communities and states, school district regulations and state law provide extremely limited options through administrative appeals or legal action to contest student suspensions or expulsions in the state court; essentially, such challenges are limited to claims that the sanction process lacked the very minimal Due Process protections that apply to such primary and secondary school disciplinary actions. Covington has made no such Due Process claim here, and Midlands does not argue that the Plaintiff failed to exhaust his administrative remedies before bringing suit (which plaintiffs in any event have no obligation to do in § 1983 actions; see, e.g., Bowen v. New York, 476 U.S. 467 (1986)).

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injunction. That standard has been formulated variously as a three-, four-, or five-part test, but

regardless of precise formulation essentially requires the plaintiff to show that:

(a) He has at least a reasonable likelihood of prevailing on the merits of his claim after a

full trial;

(b) The costs to him, if the preliminary injunction were denied, would outweigh those to

the defendant if the injunction were granted; and

(c) He would suffer “irreparable harm” if the injunction were not granted; in other words,

he could not fully recoup those losses by a monetary judgment after a full trial.

See, e.g., Turnell v. Centimark Corp., 796 F.3d 656, 662 (7th Circ. 2015); Kraft Food Group

Brands LLC v. Cracker Barrel Old Country Store, Inc., 735 F.3d 735, 740 (7th Cir. 2013);

Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380 (7th Cir. 1984).

For purposes of the present preliminary injunction proceeding, the parties have (in order

to permit a more expeditious resolution) both stipulated that Covington has established the

second and third of these elements (as well as any “balancing” test among the elements

necessary to issue an injunction), and therefore that only the “reasonable likelihood” prong of the

test is in dispute here.

Thus, the sole question for the Court is whether it is reasonably likely that, if this lawsuit

is litigated by the parties to its conclusion, Augie and his mother will prevail on their First

Amendment claim for declaratory and injunctive relief. But here that probability turns, in large

part, on another issue:whether or not one particular piece of evidence – Dr. Bruno’s testimony –

should be admitted to evidence, as discussed further below.

II. Introduction

In its Answer and response to Covington’s motion for a preliminary injunction, Midlands

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argues that its suspension of Augie does not violate the First Amendment because Augie’s

recording and dissemination of his rap, and his remarks to Dr. Bruno, are — whether the rap and

the remarks considered individually or together — the type of student speech that receives only

limited First Amendment protection under Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393

U.S. 503 (1969), regardless of whether or not that speech is uttered within the school’s four

walls.

Covington responds, first, that Dr. Bruno’s testimony is covered by the psychotherapist-

patient privilege and therefore may not be considered by the Court; second, that Augie’s rap took

place entirely “off campus” and thus wasn’t subject to the school’s regulation under Tinker; and

third, that even if Augie’s First Amendment rights to perform his rap were limited in some

degree by Tinker or a similar test, then the rap fell well within the permissible bounds of “non-

disruptive” speech that the school had no legitimate interest in regulating.

This dispute is of a type that district courts have been asked to resolve with increasing

frequency in recent years. These cases raise issues including the future of mental health services;

the way in which our judicial system conducts searches for truth; the democratic right to express

oneself artistically;7 and the right of the state to exercise control on young (and often

impressionable) minds.

Mental health care is a pressing issue in the United States in many ways. People are more

aware of mental health issues and more willing to go to treatment than they were in past decades,

7As Prof. Ginsberg noted at the hearing, the legal system’s use of rap lyrics to indict (both literally and figuratively) their composers has been increasingly criticized by scholars, journalists, and courts alike. See, e.g., State v. Skinner, 95 A.3d 236 (N.J. 2014) (holding that prosecution’s introduction of profane rap lyrics written by defendant was unduly prejudicial); Andrea Dennis, “Poetic (In)Justice?: Rap Music Lyrics as Art, Life, and Criminal Evidence,” 31 Colum. J.L. & Arts 1 (2007); Scott Eden, “The Surreal Saga of Bobby Shmurda,” GQ (May 2016).

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aided in part by the more widely available health insurance coverage created by the Affordable

Care Act. Robust mental health care leads to greater happiness and productivity, while poor care

exacerbates issues of poverty, unemployment, and homelessness. The amount of respect we

afford the psychotherapist-patient relationship reflects on our legal system and our society as a

whole.

In the meantime, we have entered a period in our country where high school students –

and sometimes even primary and pre-school students – are being suspended at a higher rate than

ever. Those suspensions can lead to a dangerous downward spiral, especially for low-income,

minority, disabled, and LGBT students against whom, it is now well-established, sanctions such

as suspension and expulsion are disproportionately applied.8 The present case addresses a

number of concerns as to how much control the state, including its public schools, should

exercise over its citizens. In a political and social environment in which speech is often criticized

and sometimes suppressed, the Court approaches its task of resolving these issues with great

care.

III. The Dangerous-Patient Exception to Psychotherapist-Patient Privilege

At the preliminary injunction hearing, Covington objected to Midlands’ calling of Dr.

Bruno as a witness. Covington argued that any statements made during the therapy session to

which Dr. Bruno might testify were covered by the psychotherapist-patient evidentiary privilege.

This privilege, which the Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996),9 found

8 Mary Ellen Flannery, The School-Prison-to- Pipeline: Time to Shut it Down, NEATODAY, (Jan. 5, 2015) http://neatoday.org/2015/01/05/school-prison-pipeline-time-shut/. 9 Midlands has conceded that, if Dr. Bruno should be precluded from testifying by the privilege, then her testimony also is precluded from being introduced through any other source, such as her notes or her subsequent accounts of Augie’s statements to school and law enforcement officials, whether as a logical extension of the Court’s upholding of privilege or as a matter of hearsay.

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inherent in Federal Rule of Evidence 501 through common law, “serves the public interest by

facilitating the provision of appropriate treatment for individuals suffering the effects of a mental

or emotional problem.” Id. at 11. The privilege protects “confidential communications between a

licensed psychotherapist and her patients in the course of diagnosis or treatment . . . from

compelled disclosure.”10 Id. at 15.

This evidentiary privilege is a distinct concept from therapist-patient confidentiality

(although the two obviously have similar bases): “By ‘confidentiality,’ we refer to the broad

blanket of privacy that state laws place over the psychotherapist-patient relationship. By

‘privilege,’ we mean the specific right of a patient to prevent the psychotherapist from testifying

in court.” United States v. Chase, 340 F.3d 978, 982 (9th Cir. 2003) (en banc).

There is no dispute about whether the psychotherapist-patient privilege applies to a

clinical social worker such as Dr. Bruno:for statements to be covered, they need merely to be

made to a “licensed psychotherapist . . . in the course of diagnosis or treatment,” 518 U.S. at 15,

as they were here. Nor does Midlands contend that the privilege is inapplicable to Dr. Bruno’s

sessions with Augie for any other reason. Instead, Midlands argues that the particular statements

by Augie that Dr. Bruno reported to school officials and that it seeks to introduce here fall under

an exception to (or waiver of) the privilege known as the “dangerous-patient” exception.

Some courts have found authority for this exception to the general rule of therapist-

patient confidentiality in Jaffee’s footnote 19, which stated:

Although it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.

10 For a general overview of the contours of the privilege from a psychotherapist’s point of view, see Ralph Slovenko, The Psychotherapist-Patient Testimonial Privilege, 57 AM. J. PSYCHOANALYSIS 63 (1997).

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Id. at 18, n.19.

Based on this footnote, the Tenth Circuit in United States v. Glass, 133 F.3d 1356 (10th

Cir. 1998), held that a court may overrule a patient’s assertion of the psychotherapist-patient

privilege when a therapist would testify about the patient’s threat to harm others, provided that:

(a) The threat was “serious when it was uttered;” and

(b) The therapist’s prior disclosure of the threat was the only means of averting harm at the

time that disclosure was made.

Glass, 133 F.3d at 1360. See also United States v. Hardy, 640 F. Supp. 2d 75, 80 (D. Me. 2009).

This dangerous-patient exception is conceptually distinct from the exception to therapist-

patient confidentiality first articulated in Tarasoff v. Regents of the University of California, 551

P.2d 334 (Cal. 1976). Tarasoff required psychotherapists to warn third parties of threats made by

patients. This standard, also known as the therapist’s “duty to protect,” has since been

incorporated into the laws of most states (including Calumet’s). See, e.g., United States v. Auster,

517 F.3d 312, 316, n.9 (5th Cir. 2008) (citing Louisiana statute codifying the Tarasoff standard).

While Tarasoff and its progeny do not themselves address whether a therapist’s

disclosure of patient threats is later admissible at trial, there is an obvious logical link between

the duty to protect and the dangerous-patient exception. Glass, 133 F.3d at 1359.

Another version of the dangerous-patient exception is the theory suggested in United

States v. Auster, 517 F.3d 312, 316 (5th Cir. 2008). The Fifth Circuit suggests that a patient may

tacitly waive confidentiality – and thus any future assertion of privilege – when he makes

statements that he knows the therapist is bound to disclose under Tarasoff. Psychotherapists

generally notify a patient at the start of treatment that the doctor may need to disclose threats

under the duty to protect. In Auster, the Fifth Circuit held that a dangerous patient is put on such

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sufficient notice by this warning that any subsequent threatening statements fall entirely outside

the realm of psychotherapist-patient confidentiality, and thus cannot be privileged at trial. 517

F.3d at 316, 321.

The Fourteenth Circuit has yet to address whether threatening statements fall outside the

psychotherapist-patient privilege, either under the “exception” theory of Glass or the “waiver”

framework used in Auster. But this Court believes that neither of the latter approaches is a

correct interpretation of Jaffee and Rule 501. Instead, the correct approach is the one taken by the

Sixth Circuit in United States v. Hayes, 227 F.3d 578 (6th Cir. 2000), which rejected the whole

notion that a dangerous-patient exception exists.12 As the court noted there, instituting such an

exception would have strong and undeniable “deleterious effect[s] on the atmosphere of

confidence and trust” that is essential to therapeutic mental health care. Id. at 584. It may be true

that “the public . . . has a right to every man’s evidence,” but the public good of mental health

care is an overriding societal interest. Jaffee, 518 U.S. at 9-10.13

As noted above, the dangerous-patient exception to privilege and the Tarasoff duty to

warn are conceptually distinct. But in both instances, courts and legislatures are called upon to

employ a kind of balancing test – weighing the value of letting endangered parties and juries

know about the “existence of a dangerous patient” against the “public cost” of undermining all

psychotherapist-patient relationships. See Chase, 340 F.3d at 986-7; see also Hayes, 227 F.3d at

12 Although the decisions discussing the dangerous-patient exception seem principally to be criminal cases, the privilege itself is based on Rule 501, which applies equally to civil and criminal proceedings, see FED. R. EVID. 501, 1101, and this Court sees no reason that any exceptions would not apply equally as well. 13 It is also notable that the Conference Advisory Committee on the Rules of Evidence, in its draft of Rule 504, did not include the dangerous-patient exception in its lists of exceptions. Proposed Rule 504 was replaced by Rule 501 when the Rules of Evidence were ratified, but the Supreme Court “cited favorably” to Proposed Rule 504 in Jaffee. See also United States v. Chase, 340 F.3d 978, 989–90 (9th Cir. 2003) (en banc) (quoting 3 Weinstein’s Federal Evidence § 504.02, at 504–7).

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586. In a Tarasoff situation, the immediate threat to a third party far outweighs the strain on the

therapeutic relationship. In the case of privilege, however, the relative weights are reversed:

forcing psychotherapists to testify against their patients destroys the trust on which that

relationship is built, for little benefit. See Chase, 340 F.3d at 987. It does not matter whether the

defendant is facing life in prison or suspension from high school; the effect on therapist-patient

relationships is simply too great.

For these reasons, this Court agrees with the Sixth and Ninth Circuits, and disagrees with

the Fifth and Tenth. Regardless of the dangerousness of the patient, or whether his statements

arguably waived confidentiality by their threatening nature, a patient’s privilege against

psychotherapist testimony should be absolute.14

As this Court holds that no dangerous-patient exception to the privilege under Rule 501

exists, it is unnecessary to explore at length how the Glass test would apply to the facts of the

present case. Nonetheless, the evidence introduced at the preliminary injunction hearing raises

significant doubts as to whether Midlands could satisfy that two-part test, and in particular the

requirement that Dr. Bruno’s disclosure of Augie’s statements was the “only means” of

preventing harm to Coach Talampas.

The Court thus holds that Dr. Bruno’s testimony is properly excluded, both from this

preliminary injunction proceeding and from any subsequent trial that might take place.

Therefore, the Court will disregard Dr. Bruno’s testimony, and consider only Augie’s rap, in

considering whether Covington is likely to succeed on his First Amendment claim.

14 Although the result is unnecessary to reach today, this Court also believes that the same reasoning makes Dr. Bruno’s testimony inadmissible even if Auster applies. Dr. Bruno warned Augie that she might have to report a threat; she did not warn that she might have to testify. Therefore, even if confidentiality was broken, testimonial privilege is still protected.

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IV. Does the First Amendment Protect Plaintiff’s Videotaped Rap?

A. Does Tinker apply to online-off campus speech that reaches or targets a public

high school?

Public school students are protected by the First Amendment, and “[i]t can hardly be

argued that either students or teachers shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,

506 (1969). Students in public schools, however, enjoy a more limited form of First Amendment

protection than adults in society at large. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266

(1988). In order to justify censoring a student’s free expression, however, a school still must

show more than a mere wish to avoid unpleasantness. Id. at 508, 509. School officials may only

restrict student speech where they reasonably conclude that it will substantially disrupt the

school’s work or student discipline, or that the speech is inconsistent with its basic education

mission. Morse v. Frederick, 551 U.S. 393, 403 (2007); Bethel School Dist. No. 403 v. Fraser,

478 U.S. 675 at 685.

The Supreme Court has decided four major student-speech cases: Tinker, Fraser,

Hazelwood Sch. Dist., and Morse. Each governs a distinct area of student speech: vulgar, lewd,

obscene, and plainly offensive speech (Fraser); school-sponsored speech (Hazelwood); speech

promoting illegal drug use (Morse); and speech that does not fall into any of those three previous

categories (Tinker). All four of those cases, notably, involved speech that took place at school or

at a school-sanctioned event. Beyond those contexts, the Supreme Court has noted only that

“[t]here is some uncertainty at the outer boundaries as to when courts should apply school speech

precedents.” Morse, 551 U.S. at 401; see also, Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062,

1067 (9th Cir. 2013).

20

This uncertainty has been magnified when it comes to online off-campus student speech.

The case law in the various circuits concerning schools’ ability to punish students for their online

posts is, to put it charitably, a mixed bag (or, perhaps, “still evolving”). For example a number of

courts have overturned student discipline for conduct that occurred entirely off campus. See, e.g.,

J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 927 (3d Cir. 2011); T.V. ex rel.

B.V. v. Smith-Green Cmty. Sch. Corp., 807 F. Supp. 2d 767 (N.D. Ind. 2011); Evans v. Bayer,

684 F. Supp. 2d 1365 (S.D. Fla. 2010); Killion v. Franklin Reg'l Sch. Dist., 136 F. Supp. 2d 446

(W.D. Pa. 2001). Others have allowed schools to reach far beyond the proverbial school house

gate. See, e.g., D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754 (8th Cir.

2011); Kowalski v. Berkeley Cty. Sch., 652 F.3d 565 (4th Cir. 2011); Doninger v. Niehoff, 527

F.3d 41 (2nd Cir. 2008); J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002).

As a threshold inquiry, we must determine if Tinker even applies to online posts. The

circuits are split on this initial question. For example, the Second, and Eight Circuits begin with

the question of whether it was reasonably foreseeable that the off-campus speech would end up

on the school’s grounds. See, e.g., Doninger 527 F.3d at 48; S.J.W. v. Lee’s Summit R-7 Sch.

Dist., 696 F. 3d 771 (8th Cir. 2012). The Third Circuit, on the other hand, has largely left the

question of Tinker’s applicability to off-campus speech unresolved, but generally requires

schools to establish a sufficient nexus between the student’s speech and a substantial disruption

of the school environment. See, e.g., Layshock ex. rel. Layshock v. Hermitage, 650 F. 3d 205,

219 (3d Cir. 2011); cf. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F. 3d 915 (3rd Cir.

2011) (assuming, without specifically ruling, that the Tinker substantial-disruption test applies to

online speech harassing a school administrator).

The Ninth Circuit’s standard is even more ambiguous. Generally the courts in that circuit

21

have held that schools, when faced with an identifiable threat of school violence, may discipline

students in response to off-campus speech that meets Tinker’s requirements. Wynar v. Douglas

Cnty. Sch. Dist., 728 F.3d 1062, 1067 (9th Cir. 2013); see also LaVine v. Blaine Sch. Dist., 257

F.3d 981 (9th Cir. 2001) (holding that the decision to regulate speech must be supported by the

existence of specific facts that could reasonably lead school officials to forecast disruption).

The Fourteenth Circuit has not addressed the issue of student speech and the First

Amendment, but this Court believes that a student’s online, off-campus speech is categorically

excluded from a Tinker analysis.

While the Supreme Court continues to remain silent on online-off campus student speech,

the other circuit courts have slowly allowed schools to obtain an Orwellian level of control in the

lives of their students. See Hazelwood, 484 U.S. at 286 (Brennan, J., dissenting) (“Even in its

capacity as educator the State may not assume an Orwellian guardianship of the public mind.”)

The Second Circuit, in Doninger and similar cases, has stretched Tinker so far that the proverbial

schoolhouse gate now wraps around all parts of the student’s life – every hour, every day, and

every word. High schools are meant to shape the thoughts of young citizens, not to serve as

omnipresent thought police. The circuit courts have taken high school’s role of in loco parentis

and substituted vice-principals and school boards as the effective parents of their students for all

internet-related speech.

Midlands’s contention that refusing to uphold Augie’s suspension in this case would

leave the School defenseless against all threats is unpersuasive. First, had Augie’s rap

represented a “true threat,” it would have constituted unprotected speech under any circuit’s

test.15 Second, there are a wealth of other legal remedies the high school still has at its disposal to

15 Both parties agree that Augie’s rap did not constitute a “true threat,” which is a form of unprotected speech recognized by the Supreme Court in Watts v. United States, 394 U.S. 705 (1969). Additionally,

22

protect itself against damaging speech, such as defamation, libel, and assault. Protecting our

nation’s youth and their educators is a compelling goal, but the First Amendment’s protection of

free speech is so strong that it prohibits educators, and courts, from chilling expression by

punishing frustration and dissent among our youth.

To hold that a post on a mobile device that remained visible for only twenty-four hours

and was seen by, at the very most, a few hundred people justifies a student’s semester-long

suspension would eliminate any glimmer of First Amendment protection for high school

students. Recording devices, mobile applications, and the internet have allowed students to be

tuned into each other at all times. “[W]e are not to strangle the free mind at its source” but rather

allow students the free space to grow and develop socially acceptable behavior. Tinker, 393 U.S.

503 (1969). Mark Twain said, possibly apocryphally, that “anger is an acid that can do more

harm to the vessel in which it is stored than to anything on which it is poured.” We must allow

students the ability to express themselves somewhere in some manner, and we cannot continue

this jurisprudence of state micromanagement.

B. Whether the Plaintiff’s speech caused a “substantial disruption.”

Even if Tinker did apply to online off-campus speech, the school’s suppression of

Augie’s speech here would nonetheless violate his First Amendment rights, because school

officials could not reasonably foresee substantial disruption and/or possible violence based on his

rap.

The speech in this case was from a post on an app that is not nearly as widely used as

Facebook; was intended only for, and intended to be visible only to, the user’s friends; was

posted from his home, not on a school day; and was at least supposed to be visible for only

Midlands has chosen not to raise any issues of defamation and libel with respect to Augie’s rap.

23

twenty-four hours. See Burge ex rel. Burge v. Colton Sch. Dist. 53, 100 F. Supp. 3d 1057 (D. Or.

2015) (holding that middle school could not punish student for a post made from his home

computer to the student’s Facebook account, which was set to “friends only” and only visible for

24 hours, notwithstanding that student commented on his own post that “[his teacher is] just a

bitch haha” and “[y]a she needs to be shot.” Id. at 1065. Contra LaVine v. Blaine Sch. Dist., 257

F.3d 981 (9th Cir. 2001).

Here, Coach Talampas’s testimony indicates that his primary concern about the substance

of the rap was the athletic department violations. But the fear of losing one’s job is not the type

of fear envisioned by the substantial disruption test. Nothing in the record that is available for

this Court to consider indicates that Augie posed an actual, serious danger to the school.

Furthermore, only athletes and boosters seem to have been concerned with Augie’s post.

And any disruption of classroom activity for the students at large was de minimis, rising only to

the level of the typical school yard sports related gossip, but nowhere near enough to justify

school action. A disruption of a minor portion of the school is not what the Supreme Court

envisioned in Tinker.

For these reasons, based on the record as it exists today, the Court finds that Covington

would likely succeed on the merits of his First Amendment claim.

24

CONCLUSION

For all the aforementioned reasons, Plaintiff Augustine Covington’s motion for a

preliminary injunction be and hereby is granted.

It is therefore ORDERED AND ADJUDGED that Defendant and its representatives,

agents, servants, employees, attorneys, and those persons in active concert or participation with

them, are preliminarily enjoined (1) from, directly or indirectly, continuing to suspend Augustine

Covington from Madeleine Albright High School, (2) from taking other disciplinary actions

against Augustine Covington for the actions in controversy in the current suit; and (3) to restore

Plaintiff to his former status as a student, retroactive to the date of the filing of this lawsuit,

August 30, 2016. This preliminary injunction shall remain in place pending the final disposition

of this action on the merits.

SO ORDERED:

____________________________ Campanielleo, M, U.S.D.J.

September 8, 2016

25

EXHIBIT A

QuickPixisanewsocialmediaappthatenablesyoutosharephotosandvideoswithyourfriendsinjusta

matterofseconds!Youcansendthephotosandvideostofriendsdirectly(theywilldisappearforeveraftertheyviewit)orpostthemtoyourfeed“QuickList”-where

yourfriendscanviewthemfor24hours.ThewonderfulnewappthatcombinesthevideolengthofaVinewith

allthebenefitsofdisappearinglikeSnapChat!

JoinQuickPixfreetoday!

26

EXHIBIT B

P.O. 7213 Broad Stream Dr., Broad Stream, California, 65872 * (248) 952-6708 * NGinsberg@usc.org

WORK EXPERIENCE USC ENGLISH DEPARTMENT, Los Angeles, CA Professor, Aug. 2001- Present

• Teach a variety of classes on Creative Writing, Folklore and Ethnomusicology, William Shakespeare, and Spoken Word and Slam Poetry.

• Conduct research on modern day poetic styles and how they relate to pre-colonial works.

GENIUS.COM, Santa Clara, CA Expert Contributor, Jan. 2010- Present

• Research a variety of poetic styles in order to decipher the meanings behind the works. • Edit, maintain, and review contributions to works already posted on the site. • Author articles about emerging trends in music, and poetry.

GINSBERG CONSULTING Los Angeles, CA Legal Written Art Expert Jan. 2014- Present

• Provide testimony in court cases regarding poetry and other forms of written art. • Consult attorneys on the true meaning of modern works.

EDUCATION INDIANA UNIVERSITY, Bloomington, IN PhD in Ethnomusicology, Aug 1998 – May 2001

UNIVERSITY OF CALIFORNIA BERKELEY, Berkeley, CA PhD in Art History, Aug 1995 – May 1998

UNIVERSITY OF SOUTHERN CALIFORNIA, Los Angeles, CA B.A. in English Literature, May 1998

RECENT PEER-REVIEWED WORKS

“French Montana and the French Renaissance” Berkeley Art Journal 2016 “Shaking up Shakespeare in the 21st Century” Chicago Literary Arts Quarterly 2016 “Call me Maybe? And What Would Mark Twain Say” University of Michigan Arts Review 2015 “Why Marshal Matters” Tulane Journal of Arts 2015 “Watch me Whip, I will not” Texas Literary Review 2015 “Breaking Bad Rhyme Schemes” Idaho Journal of Arts and Crafts 2013

Norma Ginsberg

27

EXHIBIT C Dr.NormaGinsberg

ConsultingReport–Covingtonv.MidlandsConsolidatedSchoolDistrict

Icreatedthisreportbasedonmyyearsofextensiveresearchandscholarship.- --- -- -- -- -- -- - --- -- -- -- -- -- -- -- --- -- -- -- -- - ---- -- -- - - --SUMMARY:

“I can only keep this brief; Please do not mistake this beef for Drake and Meek;”

“Beef”isslangmeaningtobeinadisagreement.

ThisportionappearstobeinreferencetoapopulardisagreementbetweentheartistsMeekMillandDrake.TheissuesbetweenthetwobeganwhenMeekMillreleasedevidenceofDrakeusinganallegedghostwriter.Usingaghostwriter,thoughwidelyused,isfrowneduponintherapcommunity.“TheMistakethisbeef”appearstoalludethatthisisnotafakebeeforargumentbetweenMr.Covingtonandthehighschool,especiallywhenconsideringthelanguagebelow.TheMeekMillandDrakedisagreementlargelyfizzledoutafteraslewofmemesand“dis”tracksaimedateachother.Somepeopleargueitwasallshowtoincreasepopularity.http://www.billboard.com/articles/columns/the-juice/6641784/meek-mill-drake-timeline

“ItisnotfameorfansIseekwhenthisjamleak.”A“Jam”isaslangtermforasong.

“ForgetRobertWilliamsandAubreyGraham;”

RobertWilliamsisMeekMills’birthname.AubreyGrahamisDrake’sbirthname.

“I’mcomingto‘hitemup’likearealman.”

“Hit‘emup”canmeanthreateningtoinjuresomebodyphysical.Butgiventhecontextofthelineitappearstobeinreferencetoa“dis”songbyrapartistTupacShakur,featuringhisgrouptheOutlawz.ItistheB-sidetothesingle“HowDoUWantIt”,releasedonJune4,1996,fromthealbumAllEyezonMe.

“Mindmadeupmyplanisflawless;OnlywayweendthisislikeLesaneCrooksandChristopherWallace.”

LesaneCrooksisTupacShakur’sbirthname. Helaterrenamedhimselfin1972toTupacAmaruShakur.ChristopherWallaceisthebirthnameofNotoriousB.I.G.Thislineappearstobeinreferencetoafeudintheearly90sthatendedwiththedeathsofbothMr.ShakurandMr.Wallace.Thedeathswerebelievedtobelinkedtothisfeud.http://rappingmanual.com/beef-tupac-shakur-vs-the-notorious-b-i-g/

“I’ve had enough, middle fingers up while rolling down the window

28

And you should know this is only the intro wait until I release all the info.”

“Intro”isshortforintroduction.“Info”isshortforinformation.

“I know the boosters were never really fond of me; But I never found that odd you see; Because I am the star and they are a bunch of wannabes. Can’t get over high school, and dropped out of night school; I mean it’s not cool; it’s sad that these dads really need us; Always splurging on team dinner, but pain pills they want to feed us; Son can’t even read but so they will drop a rack on a freaking C+.”

“Rack”isaslangtermwhichinthiscontextisreferringtomoneyinthethousands.

“Money cannot squash this beef, this ain’t a McDouble;” “Beef”isslangmeaningtobeinadisagreement.ThereferencetoaMcDoubleappearstobeametaphorinreferencetothefirstlinesofthework.AgainMr.Covingtonappearstobereiteratingthisisnotfakebeeforafakedisagreement,asMcDonaldsisoftencriticizedforthelowqualityoftheirmeat.Mr.Covingtonissayingthatthisdisagreementorbeefcannotbestoppedor“squashed”bythealumnipayingtheirwayoutofthesituation.

“You bought the principal, the coach, the teachers, but you’re in trouble; You can’t buy this whistleblower, better get moving, Barney Rubble.”

BarneyRubbleisacartooncharacterwhoappearsinthetelevisionanimatedseriesTheFlintstones.TheCharactersintheshowusecarsthatareoperatedbytheirfeet.Thislineappearstobesayingthatthesourceoftheartist’sangershouldrunaway.

“And now it’s, time for Coach Talampas I was pissed before, but now you amped this. You blasphemous hater, you know I am the best player;”

“Hater”isaslangtermusedtodescribesomebodywhodisapprovesofsomething;apersonwhoisjealous;and/orapersonwhocriticizessomething.

“Youputyoursononthejuiceandnottheonewiththegator.”“OntheJuice”appearstobeinreferencetosteroids.Bysayingnottheonewiththe“gator”theartistisnotingthatheisnotreferringtojuicelikeGatorade.

“Suspendmeforthe‘ship;”“’Ship”isshortforchampionship.

29

“Whatyoudidn’tthinkI’dflip;”“Flip”isshortforflipoutorrathertogetangry.

“WhenIamdonewithyou,youwillprayingforyourpinkslip.”A“pinkslip”isanoticeofdismissalfromemployment.

“Wouldn’thaveawinifIstartedwalkingout;AndIdonotwanttotalkitout;Comingatmeyourbodythey’llbechalkingout.”

“Chalkingout”isinreferencetoatemporaryoutlinedrawnonthegroundoutliningevidenceatacrimescene.Moregenerallythetermhasbeensynonymouswithtragicdeath.

“Like dude, do you even have any life plans; Cares so much about soccer that he lost his wife man; And yeah we was never tight fam; So you know what . . . I guess we have to throw hands.”

“Throwhands”isaslangtermmeaningtogetintoafight.

30

EXHIBIT D Midlands Family Service Society (MFSS)

Counseling And Psychological Services (CAPS) Authorization for Services

Counseling And Psychological Services (CAPS) offers assessment, crisis

intervention, individual, couples and group counseling, psychiatric consultation and referral. Psychiatric consultation is available to those whose counseling is provided by CAPS.

Confidentiality

1. Information about your contacts will be released only with your signed consent to do so, unless otherwise authorized by applicable law including, without limitation, situations such as allegations of child or elder abuse, or risk of immediate danger or harm to self or others. Further, in order to have information pertaining to couple’s counseling visits released, both partners will need to give signed consent unless otherwise authorized by applicable law as stated above.

2. Pertinent information about your care may be discussed with other MFSS providers without your written consent when such information is for the purpose of treatment planning and/or coordination of care. Your CAPS diagnosis and medication information are routinely shared with a MFSS provider and are subject to all HIPAA.

3. MFSS uses a secure computerized system to store appointment, billing information, and clinical information in the electronic health record.

4. If your sessions include other individuals such as partners or family members, the written consent of each participant is required for records release.

5. Those participating in counseling/therapy groups contract with one another to hold in confidence the identity of group members and the content of sessions.

We welcome your comments about our services and encourage you to bring them

to the attention of your counselor, the administrative assistant or the director or you may express them on our confidential electronic survey.

I have read this Authorization for Services and have had an opportunity to

discuss my questions with a counselor. I authorize MFSS’s CAPS to provide services advised by my CAPS provider.

Your Name (Print and Sign) Date If you are a minor,

Parent/Guardian’s Name (Print and Sign) Date

31

EXHIBIT E

32

EXHIBIT F

33

EXHIBIT I

34

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALUMET

2 NORTHERN DIVISION

3 AUGUSTINE COVINGTON, . Docket No.: 9:16-MC-1738 a minor, by and through .

4 his parent, SHERRI COVINGTON. . .

5 . Plaintiff, . Midlands City, Calumet

6 . September 7, 2016 v. . 9:00 a.m.

7 . MIDLANDS CONSOLIDATED SCHOOL .

8 DISTRICT. . .

9 Defendant. . . . . . . . . . . . . . . . .

10 VOLUME I

11 TRANSCRIPT OF TESTIMONY APPEARANCES:

12 For the Plaintiffs: AMERICAN CIVIL LIBERTIES FOUNDATION OF

13 MIDLANDS By: Ned Dawson, ESQ.

14 8371 S. Amer ROAD, Suite 7 Midlands City, Calumet 76964

15 (281) 330-8004

16 For the Defendants: MAURER, BAIER, AND JEROME By: Aaron Retrac, ESQ.

17 P.O. Box 5516 Madison, Wisconsin 53707-7857

18 (608) 294-9544

19 Court Recorder: Renee DuPont District Court Clerk's Office

20 120 North Henry Street, Room 320 Midlands, Calumet 76964

21 (608) 244-5156

22 Transcription Service: Blaupunkt Reporting Co. 201 North Verdaccio Street

23 Midlands City, Calumet 76964 (608) 722-7428

24 Proceedings recorded by electronic sound recording;

25 transcript produced by transcription service.

35

1 Testimony – Theresa Bruno

2 Atty.: Could you please state your name for the record?

3 T.B.: Theresa Bruno.

4 Atty.: What do you do for a living, Dr. Bruno?

5 T.B.: I am a senior clinical social worker at Midlands Family

6 Service Society, a nonprofit organization here in Midlands

7 dedicated to advocating and serving the social, emotional,

8 educational, and mental health needs of the local community.

9 Atty.: What do you do as a clinical social worker? 10 T.B.: Senior clinical social worker. 11 Atty.: Sorry, what do you do as a senior clinical social

12 worker, Dr. Bruno? 13 T.B.: I do a lot. Mainly, I conduct therapeutic counseling 14 sessions with people who are seeking help with emotional and 15 other mental health issues. I also supervise other junior 16 social workers doing their counseling. 17 Atty.: What kind of mental health issues do you handle? 18 T.B.: There’s a lot: ODD, CGD, BPD. . . 19 Atty.: Sorry to interrupt you, but could you use layman’s 20 terms so everybody could understand? 21 T.B.: Oh, sorry about the jargon. I treat a great variety of 22 mental health issues, including eating Disorders, adjustment 23 disorders, Oppositional Defiant Disorder, Depression,

36

1 Bipolar Disorder, Complicated Grief Disorder, anxiety

2 disorders, cognitive disorders and Borderline Personality

3 Disorder.

4 Atty.: What is your education background?

5 T.B.: I did my undergrad at UIUC, University of Illinois at

6 Urbana-Champaign, and my master and doctoral degrees at Wayne

7 State University. The three degrees are all in Social Work.

8 Atty.: How many years have you been a clinical social worker?

9 T.B.: Well, I finished my master’s degree in 1995 and was 10 licensed right after that, so I would say about 21 years. 11 Atty.: Do you know Augie Covington? 12 T.B.: Yes. 13 Atty.: How did you know him? 14 T.B.: My good friend, Dr. Wolf, always refers cases to me. She 15 referred Augie two years ago and Augie has been with me ever 16 since. 17 Atty.: As a patient?

18 T.B.: Actually, I prefer the term “client.” 19 Atty.: O.k., why did Dr. Wolf send Augie to you as a client? 20 T.B.: Augie went to see Dr. Wolf in 2015 after his father’s 21 death. Dr. Wolf diagnosed him with CGD, Complicated Grief 22 Disorder, and minor depressive disorder - two common 23 disorders resulting from emotional and psychological 24 traumatic incidents, especially after losing a loved one. 25 Dr. Wolf treated him for about a year before his situation

37

1 began to improve. At a certain point, she felt comfortable

2 referring Augie to me.

3 Atty.: What treatment did you give to Augie?

4 T.B.: After the initial assessment, I decided to conduct

5 regular therapy sessions with him since the CGD and minor

6 depression were pretty much under control, as was his

7 anger issue. You know, just talking about his concerns and

8 getting them off of his chest. We talked once every week

9 for about fifty minutes.

10 Atty.: Augie also had anger issues? 11 T.B.: Yes. He wasn’t diagnosed with any specific anger 12 disorder or anything, but I know he had some disciplinary 13 trouble at school. But, as I said, it was under control. 14 Atty.: Are you still treating him? 15 T.B.: No. 16 Atty.: Why? 17 T.B.: Well, that’s the reason why we are all here now, 18 right? 19 Atty.: Can you - 20 T.B.: Sure. I will specify the reason. On August 29, 2016, 21 we had our regular counseling session. Augie was really 22 down. I could tell something was wrong when he walked in. 23 He was angry – I think I should use the word furious - at 24 his school, but particularly at his coach, Antonio Talampas, 25 saying that Coach Talampas did not allow him to participate 26 the state championship game.

38

1 because he missed the practice. I knew how important the

2 championship was to him – for a few months, that was all he

3 was excited about – so I tried my best to comfort him and

4 asked him to talk to me. He never sat down for a second,

5 though, just pacing around in my office. At one point, he was

6 so upset that he said, “Talampas ruined my soccer career. He

7 tore down everything my father and I built together. I

8 can’t wait to spit on his grave. It’ll happen soon enough.”

9 You know, as a therapist, I was immediately on alert. Although 10 clients frequently express fantasies, or verbalize things that 11 they wouldn’t actually do, in therapy, but all the same, I 12 wanted to be sure Augie wasn’t seriously thinking of harming 13 the coach. So I first asked him, “Do you mean that Coach is 14 facing a fatal illness?” When he didn’t reply, I pressed him 15 by asking, “What do you mean by ‘spit on his grave?’ I’m sure 16 you’re not considering...” Even before I finished my 17 sentence, Augie interrupted me. He said, “I know what you’re 18 thinking. I didn’t mean it, I’m just mad.” 19 Atty.: What was your reaction? 20 T.B.: I was kind of skeptical about that answer. But at the 21 same time, I have known Augie for some time, and I knew he 22 was not a bad kid. So I added, “Augie, as I’ve told you before, 23 you cannot say dangerous things because I might have to report 24 you.” 25 Atty.: Is that the exact language you used with him? 26 T.B.: Yes, as far as I can recall. 27 Atty.: What do you mean by “as I’ve told you before?”

39

1 T.B.: When I began counseling, in our initial session, it’s

2 one of my standard disclosures. Also, every six months, Augie

3 and his mother have to re-sign an authorization form that

4 contains similar language.

5 Atty.: What happened next?

6 T.B.: Well, he continued to complain about Coach Talampas

7 and this, quote unquote, ‘shitty situation’ that the coach put 8 him into. He didn’t say anything else that seemed threatening, 9 but he was clearly still furious. He didn’t stop until the time 10 was up, and I had to ask him to leave. I could see the whole 11 thing was devastating to him. 12 Atty.: What happened after he left? 13 T.B.: I thought about his attitude, emotion, expression, and 14 tone in the entire counseling session, along with his mental 15 health record. The more I thought about it, the more unsettled 16 I felt. Finally, I decided to warn the School because I was 17 afraid that Augie would do something stupid. 18 Atty.: When did you warn the School about this? 19 T.B.: August 30. 20 Atty.: So the very next day? 21 T.B.: Yes. 22 Atty.: If it concerned you that much, why didn’t you take 23 action right after talking with Augie?

40

1 T.E.: Because I had several counseling sessions after Augie

2 left. And I didn’t want to act too hastily; this is a drastic 3 step for a therapist to take. By the time I could catch a

4 break and think it through, it was pretty late.

5 Atty.: So you decided to warn the School the very next

6 day?

7 T.B.: Yes. The first thing I did on August 30 was to warn

8 them.

9 Atty.: How many hours had passed between when Augie made

10 concerning statements and when you warned school officials?

11 T.E.: Let me see...He came to the office at 3 pm and left 12 at 4:30 on August 29. I called the school about Augie 13 around 8:30 in the next morning. So I would say...about 16 14 hours. 15 Atty.: O.k.; thank you.

15 16 17 18 19 20 21 22 23 24 25

41

1 Testimony – Augie Covington

2 Atty.: Could you please state your name for the record?

3 A.C.: Augustine Quilroy Covington.

4 Atty.: I am told that you go by Augie, can I call you Augie?

5 A.C.: Sure.

6 Atty.: How old are you Augie?

7 A.C.: I am seventeen years old.

8 Atty.: Could you explain what happened on August 19, 2016?

9 A.C.: Yeah, that was a Saturday, and we had just beat our

10 rivals in overtime thanks to my game winning goal. To 11 celebrate, a bunch of guys from the team decided to throw a 12 party. We invited the whole school basically, but 13 unfortunately we got a little too rowdy and the cops showed 14 up. Almost everybody on the team got away . . . except me. 15 Atty.: Why didn’t you get away? 16 A.C.: Well, my girlfriend Tamika had recently broken her 17 leg skiing, and she wasn’t able to run from the cops. So I 18 thought it would be best if I stayed with her. 19 Atty.: What happened when the police found you? 20 A.C.: Ugh, well they made me like blow to test my BAC, and 21 I was annoyed because I really was not drunk. I mean I was 22 the DD that night. I had only had like four Kyle Killer’s 23 Lemonades and a Pal Light Lime over the course of like four 24 hours. Obviously there was still alcohol in my system

25

42

1 though and Midlands has a zero tolerance policy, so like I

2 got an MIP.

3 Atty.: Did you ever tell your coaches about the MIP?

4 A.C.: Nah, man. I didn’t tell them because the whole team

5 was there, and I didn’t want them to get into trouble.

6 Atty.: How did the coaches find out?

7 A.C.: Ugh, well I had to miss a practice due to a court

8 appearance for the MIP. I tried to play it off like I was

9 sick man, but the coach was annoyed about me missing

10 practice and called my mom. And well . . . my mom didn’t 11 know that I was keeping the MIP from him and she 12 accidentally let it slip. 13 Atty.: How did your coach respond? 14 A.C.: Man, he was pissed. First, he was mad saying I lied, 15 which is not true. I mean I guess I lied about being sick 16 but it is not like I ever told him I didn’t have an MIP. 17 Second, he was mad that I got an MIP, which is ridiculous 18 because this dude drinks all the time. I mean he comes to 19 practice with his eyes red and alcohol on his breath every 20 day. 21 Atty.: What was your punishment? 22 A.C.: Dude, this was ridiculous. Coach Talampas’ son 23 Bart just had to run sprints after practice three weeks 24 ago when he got caught with booze on a game day! But get 25 this, coach suspends me for the State Championship game! I

43

1 was livid. I mean not only am I the best player, but like

2 dude, everybody on the team was at that party. I was just

3 the only guy who got caught because I was helping my

4 girlfriend. I mean, shoot, even the Coach’s son was at that

5 party. Heck I was even his ride home.

6 Atty.: When was the State Championship?

7 A.C.: August 27, 2016. Second worst day of my life.

8 Atty.: Wait. I want to get this straight, why is that state

9 championship game in August?

10 A.C.: [Chuckles} Yeah its weird, isn’t it? Calumet is a big 11 soccer state, we always have the best recruits. So the 12 Calumet Athletic Association got together to move our 13 season to starting in middle of summer and ending at the 14 start of the school year. It is kind of cool because it 15 gives us an edge in recruiting, since College Coaches 16 really don’t have any other states they can look at during 17 that time, and it allows us to focus on our studies more 18 during the school year. 19 Atty.: Oh, weird. What was the result of the State 20 Championship game? 21 A.C.: We [expletive]ing lost. 2-0. It was horrible, those 22 bums weren’t even good either. 23 Atty.: What happened after the State Championship game? 24 A.C.: Man, that night was a blur. I was so mad I was just 25 seeing red. I needed to get away from the soccer team so I

44

1 invited my friends Tauheed and Marshall from my honors

2 creative writing class over to my house.

3 Atty.: What happened at your house?

4 A.C.: We took some of my mom’s Black Duck Vodka and took a

5 few shots and had a few mixers. Tauheed thought the booze

6 would ease my stress, but that really didn’t work. So

7 Marshall thought maybe if we just all tried venting our

8 frustrations that would be better. After a while I went

9 into the other room and scribbled down a draft of the rap

10 that got me into this whole mess. 11 Atty.: What was the purpose of the rap? 12 A.C.: Revenge, plain and simple. 13 Atty.: Did you want to scare the school? 14 A.C.: Yes, in a way. They have done some bad things in the 15 past and I wanted to shake them up a bit. 16 Atty.: What did you mean by “hit em up?” 17 A.C.: It was a reference to the Tupac song I was trying to 18 show I was not kidding around. 19 Atty.: Had you and Coach Talampas ever had any issues 20 before? 21 A.C.: Me and Coach Talampas always had issues. I mean I was 22 the team’s best player, and he never respected me. Plus he 23 never gave the respect my late father deserved. I mean 24 Talampas took over my dad’s job after he died, but never 25 even mentioned him at practice or before games or nothing.

45

1 He did not even support retiring my dad’s number. Really I

2 think he was just jealous because Coach Talampas’ son was

3 never as good as I am.

4 Atty.: So on the next day you saw your psychotherapist,

5 right?

6 A.C.: Yeah

7 Atty.: How long have you been seeking treatment?

8 A.C.: Ummm, I think it was like June or July or something.

9 It was after my father died.

10 Atty.: Were you close with your father? 11 A.C.: Yeah, he was my best friend, coach, and role model. 12 Atty.: How long was he your coach? 13 A.C.: Literally my whole life. He coached my kindergarten 14 team all the way up to my high school team. I am just so 15 bummed that I let him down man. 16 Atty.: What do you mean? 17 A.C.: Well, the last time MAHS had won a state championship 18 in soccer was 1980, when my dad led the Diplomats to the 19 state title. Soccer was what we bonded over and after he 20 died it was really the only thing that made me not miss him 21 . . . sorry . . . can I take a moment? 22 [Atty’s went off the record for 20 minutes and Augie 23 Covington left the room.] 24 Atty.: Should I repeat the question?

25

46

1 A.C.: No, man. Sorry, this is just still so tough. I just

2 thought if I were to win a state tile for MAHS I would be

3 able to follow in his footsteps, and, I don’t know, kind of

4 fulfill our goal, like you know, everything we trained for.

5 And with Coach Talampas suspending me, he like took all

6 that away. I will never get another chance at giving my dad

7 what he always wanted. I will never forgive Coach Talampas

8 for that I hate him more than anything.

9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

47

1 Testimony - Ting Hua

2 Atty.: Could you please state your name for the record?

3 T.H.: Ting Hua.

4 Atty.: How are you involved with Madeleine Albright High

5 School?

6 T.H.: I have been the principal at MAHS for 10 years now.

7 Atty.: Could you tell us what you think makes MAHS unique?

8 T.H.: Well, obviously I am biased, but I like to think we

9 have the strongest curriculum in all the state. We have had

10 famous politicians come through this school like Niles 11 Hayden, Hayley Cross, and J. Lamar Williams. Also, we take

12 sports very seriously here, and our alumni are incredibly 13 involved with sports. 14 Atty.: Could you expand on what you mean when you say your 15 alumni are incredibly involved with sports? 16 T.H.: Yeah, well we are very fortunate to have an affluent 17 alumni base, and they have been absurdly generous to our 18 sports programs. Over the last few years they have funded 19 everything from new uniforms for all our sports teams to 20 paying for a full size Olympic pool for our swimmers to 21 building our pride and joy the great “Madeleine Albright 22 Stadium.” 23 Atty.: What is Madeleine Albright Stadium? 24 T.H.: We believe it is a landmark in Midlands. This stadium 25 looks better than most college stadiums, and I believe it

48

1 truly highlights the schools commitment to a life lived in

2 balance of sports and academics. Texas has their football

3 but here in Midlands we have our soccer and lacrosse, so we

4 built a shrine to those sports with a $60.1 million shrine

5 to high school athletics.

6 Atty.: Are your soccer and lacrosse teams successful?

7 T.H.: Lacrosse absolutely, we have won six straight Calumet

8 class AAAAA titles. Soccer, well we once were, we like to

9 now consider ourselves the Chicago Cubs of the high school

10 soccer world. Our fan base is strong and we have had alumni 11 who have played in both the men’s and women’s who have 12 played professionally, both men and women. But but we have been 13 that illusive state title since 1980. 14 Atty.: Mr. Covington’s rap makes a lot of allegations

15 concerning violations in your high school’s sports teams. Do 16 you have any opinion regarding this? 17 T.H.: While I strongly condemn Augie Covington’s actions, I 18 do acknowledge our alumni base and town has put considerable 19 pressure on the athletes as well as the coaches to strive for 20 success. We are currently conducting an internal investigation

21 to some of the concerns addressed in Mr. Covington’s 22 disgustingly offensive rap. Our first concern, however, was 23 the language and the safety of our students and employees when 24 we heard the rap, rather than the unsubstantiated claims made 25 by the student athletes.

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1 Atty.: Do you believe there is any truth to some of the

2 violations he alluded to?

3 T.H.: We do not believe Mr. Covington made any specific

4 allegations, and they were too vague for me to comment on that.

5 Once again, our foremost concern was the safety of our

6 students and employees.

7 Atty.: Okay, Mrs. Hua let me put this another way. Do you

8 have any personal concerns about athletic violations by

9 your students or coaches?

10 T.H.: Safety is our number one priority, and our biggest 11 concern was Augie’s violent and offensive rap. 12 Atty.: Mrs. Hua, obviously I mean other than Augie. 13 T.H.: We love our alumni. They have been incredibly 14 Generous. I could not imagine that they would do anything 15 to damage the integrity of our illustrious program. 16 Atty.: Do you have any concerns about Coach Antonio 17 Talampas’ coaching after Augie’s comments? 18 T.H.: I do not currently have enough information to form an 19 opinion on that. But I once again reiterate that our foremost 20 concern with Augie’s rap was the safety of Coach Talampas. 21 I would also like to say Coach Talampas is a highly 22 successful individual who has a strong resume of coaching 23 experience and is a favorite amongst our alumni base. That 24 is why he is one of the highest paid high school coaches in 25 any sport in America.

50

1 Atty.: Okay, I want to hear about how you first heard of

2 Augie Covington’s rap. How did the rap come to your

3 attention?

4 T.H.: Well our top booster and eccentric millionaire James

5 Tifom gave me a call on a Sunday at like 6 a.m., and he was

6 fuming. He was demanding that I expel him for “sullying

7 the program’s good name.” I hadn’t even had my morning

8 coffee, and I had no idea what he was talking about. I

9 figured it was just another one of his drunken rants. He is

10 always threatening to pull his funding, and I always make 11 sure to talk him off the ledge because frankly a lot of our 12 extracurricular programs wouldn’t survive without his 13 philanthropy. So I figured I would see what all the fuss 14 was about come Monday. 15 Atty.: What happened on Monday? 16 T.H.: That day was a mess. The head of the booster club 17 was already waiting in my office when I arrived at 7 am. I 18 have an open door policy for all of our top donors at our 19 schools, but rarely do they beat me into the office. Ian 20 Star was upset. He felt the alumni could not continue to 21 support a program that is getting this sort of negative 22 attention. They too wanted Augie to be expelled. 23 Atty.: What did you do next? 24 T.H.: Well, at this point, it was 10 am, and I still had not 25 even checked my emails or heard this “song” that was causing

51

1 all this fuss. So I go to check my email, and I see that the

2 captain of the soccer team, Bart Talampas, had sent me a

3 link to something called a QuickPix video he had uploaded.

4 Atty.: What were your thoughts about the rap?

5 T.H.: I was scared for the safety of our coaches and

6 employees. And knew immediate action was required to

7 maintain school safety.

8 Atty.: Did the alumni’s influence play any role in your

9 decision?

10 T.H.: Anything we do at this school we try to bring alumni 11 into the conversation. But, I will reiterate, my first 12 concern was safety of the students, and before I could even 13 think about the win-loss column I thought about our 14 students. 15 Atty.: So what did you do next? 16 T.H.: Well then to my surprise I received a call from Coach 17 Talampas. 18 P’s Atty: OBJECTION, we talked about this before let’s go off 19 the record. 20 [Atty’s for both parties went off the record for 15 minutes.] 21 Atty: So what did you do next? 22 T.H.: Well, like I said, to my surprise I received a call from 23 Coach Talampas. And I know I am not supposed to discuss 24 the particulars of that conversation, but that was when I was 25 really concerned.

52

1 Atty.: What action did you take next?

2 T.H.: Well, I assembled the powers that be and discussed

3 what we had to do to move for Augie’s immediate removal.

4 Atty.: Did you ever personally fear for your safety from

5 this rap?

6 T.H.: Augie has been getting into a lot of trouble lately,

7 but I know he once was one of our star students and still

8 very much is one of our star athletes. I knew his dad

9 personally, and I was at the funeral. Augie, I think is just

10 in a rut. I know other students were probably scared so 11 like I said that was my main concern, not really my 12 personal safety. 13 Atty.: On that Monday was there a disruption at the school? 14 T.H.: My day was certainly disrupted by the boosters. 15 Atty.: What about the students? 16 T.H.: Honestly I never got out of my office, because angry 17 alumni were walking in all day.

19

20 21 22 23 24 25

53

1 Testimony – Antonio Talampas

2 Atty.: Could you state your name?

3 A.T.: Antonio Alan Talampas.

4 Atty.: Let’s talk about August 25, 2016. What made you

5 suspend Augustine Covington?

6 A.T.: Augie, well he tried to hide his minor in possession

7 from me, and missed a crucial practice right before a state

8 championship. Augie has always been disrespectful to me, he

9 is just like his father, arrogant and cocky. . . just does

10 not think the rules apply to him because he is an above 11 average athlete. 12 Atty.: Isn’t a suspension from the biggest game in the 13 school’s history a little harsh? 14 A.T.: We are a good team, and nobody is above the team. I 15 do not regret that decision whatsoever. The little crazy 16 arrogant prick got what he deserved because of his poor 17 decisions. 18 Atty.: Augie said your son received a lighter punishment 19 for consuming alcohol a few weeks prior. Is this true? 20 A.T.: Yes, but Augie was already on my list, and my son is 21 a good kid. Augie’s punishment was a long time coming. 22 Atty.: How did Augie Covington’s rap come to your 23 attention?

24

25

54

1 A.T.: My son brought it to my attention. He was very upset

2 that Augie was threating me with these outlandish

3 violations.

4 Atty.: Besides the alleged athletic violations where you

5 afraid about anything else?

6 A.T.: Augie is a crazy kid. His father was always crazy,

7 and I know Augie tends to flip out when things aren’t going

8 his way. I mean, I think he set the school record for red

9 cards. I don’t know, but you can never be too careful. We

10 are certainly going to have some issues if he comes out for 11 soccer again that’s for sure. Plus, after I received that 12 call from his psychotherapy thingy or whatever, I was 13 incredibly scared. 14 P’s Atty.: I just want to object here to make sure he doesn’t 15 go into the specifics of the psychotherapist conversation 16 until the judge has ruled on that issue. 17 Atty.: Okay that’s fine, but I don’t think he did here. I 18 just have one more question. Did you find any of the lines 19 in particular threatening? 20 A.T.: Yeah, I mean this nonsense about me giving my son 21 steroids, what the heck is that? It is just jealousy, is

22 that’s what that is. And, I mean, coupled with what the 23 therapist said, I certainly made sure I kept my door locked and 24 was uncertain about going to the school at least for a few 25 days.

55

1 Testimony – Preet Millstein

2 Atty.: Could you please state your name for the record?

3 P.M.: Preet Addison Millstein.

4 Atty.: You are a student at Madeleine Albright High School,

5 correct?

6 P.M.: Yep, student-athlete man. Lacrosse, midfielder

7 assistant to the assistant captain.

8 Atty.: What year are you?

9 P.M.: I am a fifth year senior, or as I like to call it I

10 am a super senior. 11 Atty.: Do you know Augustine Covington? 12 P.M.: Yeah, unfortunately Augie is that dude who called out 13 everybody in that video. 14 Atty.: Did you ever see the video? 15 P.M.: Yeah one of my buddies somehow got a download of it. 16 Atty.: What were your thoughts? 17 P.M.: I was livid. Dude was trying to ruin a good thing. 18 Atty.: What do you mean “ruin a good thing?” 19 P.M.: I mean I don’t know. He seemed like he was trying to 20 bring down all the sports at the school all because he was 21 salty about getting benched for a game. 22 Atty.: Do you think his claims were true? 23 P.M.: I do not have enough information about that. 24 Atty.: Have you ever received special treatment? 25 P.M.: Umm, nah, I am a fifth year bro, remember?

56

1 Atty.: Could you tell us a little bit more about how

2 athletes are treated at your school?

3 P.M.: I mean we are kind of a small group. We have the

4 football players, soccer, lacrosse, gymnastics, swimming,

5 and dressage.

6 Atty.: What do you mean “small group?” 7 P.M.: Well MAHS is a midsized school with about 1,500

8 students. I think the athletes make up about 200 or so of

9 those students.

10 Atty.: Were all the athletes upset about the video? 11 P.M.: Oh yeah, absolutely, it was all they were talking 12 about. 13 Atty.: Were you scared when you saw the video? 14 P.M.: Honestly, I did not know what to think. Augie is a 15 crazy dude. He is always popping off at people, and he is 16 kind of a wild card, so you do not really ever know what to 17 expect. 18 Atty.: What concerned you most about the video? 19 P.M.: That he was calling out the sports programs, and he 20 was calling out the boosters. The boosters are the life 21 blood of this school, and without them, school sure would be 22 a lot less fun. 23 Atty.: On August 29 do you remember anything noteworthy? 24 P.M.: Yeah, well, I started this petition to expel Augie. I 25 had seen Mr. Star and Mr. Tifom go into the principal’s

57

1 office, so I knew I would have the support of the people who

2 matter. So I skipped a few classes and went around trying

3 to get people to sign my petition.

4 Atty.: Who signed your petition?

5 P.M.: I think I only got like 100 or 120 signatures, before

6 one of the teachers started wondering why I was wandering

7 around classrooms that I wasn’t supposed to be in.

8 Atty.: Who signed the petition?

9 P.M.: All sorts of students. Athletes, drama majors, glee

10 club members, everybody. 11 Atty.:Do you remember being disrupted in any of your 12 classes on August 29? 13 P.M.: Well, like I said, I saw classes as optional that day 14 considering the fate of the Lax Bros were on the line.

15

16 17 18 19 20 21 22 23 24 25

58

1 Testimony – Naomi Peirce

2 Atty.: Could you please state your name for the record?

3 N.P.: Naomi Alejandra Peirce.

4 Atty.: You are a student at Madeleine Albright High School,

5 correct?

6 N.P.: Yes, sir.

7 Atty.: What year are you?

8 N.P.: I am a junior.

9 Atty.: Do you know Augustine Covington?

10 N.P.: Yeah I sort of know Augie. He is the kid everybody is

11 talking about because he is suing the school over that 12 video. 13 Atty.: Did you ever see the video? 14 N.P.: No, not at all. I think it was really only seen by the 15 athletes. They seemed to be the only ones who were making a 16 fuss about it. Probably because somebody finally called 17 them out for all the special treatment they get. I mean we 18 have had politicians, artists, and actors come through MAHS, 19 but the soccer and lacrosse teams are the ones who get all 20 the credit.

21 Atty.: So you believe athletes get special treatment at 22 MAHS?

59

1 N.P.: That is an understatement. We have a nationally

2 recognized arts program and a state ranked glee club, but all

3 the money for extracurriculars goes to sports. I mean, I am

4 pretty sure most of the kids on the lacrosse team cannot even

5 read, and I know the soccer kids tend to have an absurd amount

6 of “excused” absences.

7 Atty.: Can you name a specific example of special

8 treatment?

9 N.P.: No, it is just kind of something we all know goes on,

10 but everybody is too afraid to say it. 11 Atty.: How did you hear about Augie’s QuickPix video? 12 N.P.: I eventually did when word got around about Augie’s 13 suspension. To be honest, it seemed like something only the 14 athletes knew or cared about. Most of the school seemed 15 like they could not care less. But the athletes are kind of 16 an exclusive clique and since all the money goes to sports 17 obviously the school took notice. 18 Atty.: Did you ever see the video? 19 N.P.: No. 20 Atty.: Did you hear about what was mentioned in the video? 21 N.P.: Somewhat. 22 Atty.: Were you ever afraid of Augie? 23 N.P.: Ever since his father died, I hear he has gone off the

deep 24 end. Although I never saw the video, once I kind of

25 heard about the gist of the video. I was concerned Augie

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1 would do something stupid.

2 Atty.: Were your classes disrupted at all on August 29?

3 N.P.: Nope. It was pretty much a normal day, except that the.

4 athletes all seemed to be a little on edge.

5

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