Trial date set in case of McSwain girl who was forced to remove anti-abortion shirt

08/01/2009 2:31 AM

10/19/2009 10:53 AM

A trial date has been set in the civil rights case of a Merced County girl who says she was forced to remove her anti-abortion T-shirt by school administrators in 2008.

The case, filed by her mother, Anna Amador, alleges that administrators at McSwain Elementary School forced her then sixth-grade daughter to remove a T-shirt depicting a developing fetus on "National Pro-Life T-Shirt Day" in 2008.

Judge Oliver W. Wanger filed a scheduling order Friday that sets the case for a jury trial on Aug. 31, 2010, in federal court in Fresno.

Amador said the district violated her daughter's free speech rights, right to due process, conducted an unreasonable seizure of her property and committed battery by grabbing the girl's arm.

In court documents, the district denied all of the allegations against it and three school employees, and stated that all actions were "taken and conducted within the appropriate duties and obligations to provide an environment conducive for learning, as well as a safe environment for students."

On June 15, the court denied the school district's attempt to have the entire case dismissed for "failure to state a cognizable claim," allowing all but one claim to go to trial.

According to documents filed with the court, Amador's daughter, who is not identified in the lawsuit, was dropped off early at McSwain Elementary School on April 29, 2008, for breakfast in the school's cafeteria.

The girl was wearing a T-shirt depicting a sonogram of a fetus growing at different stages, with the text "growing ... growing ..." and then a blank picture that says "gone."

An unidentified cafeteria worker told Amador's daughter to throw her food away and report to the principal's office. In the office, a district employee allegedly grabbed the girl's arm and led her into the principal's office where the assistant principal and principal were waiting, according to the case file.

Finally, Amador claimed school officials told the girl to remove her T-shirt and instructed her not to wear the shirt to school again.

"The family believes that their daughter was treated inconsistently with the First Amendment," William Becker, Amador's attorney, said. "Their view is that the First Amendment permits their daughter to wear that shirt."

The district also denies that the student was ever grabbed by any school employee.

District representatives did not respond to messages left at the McSwain Union Elementary School District office or at either school site in the district. Anthony N. DeMaria, attorney for the district, was also unavailable.

Calls to Anna Amador's Atwater residence also were not immediately returned Friday.

Becker also brought an additional claim, that the girl was denied equal protection under the 14th Amendment. That claim was dismissed by the court on June 15, but may be considered further if Becker offers a more sufficient explanation for the legal argument. The amended complaint must be filed on or before Sept. 4.

The American Life League, a nonprofit, Catholic anti-abortion education organization, organizes the annual Pro-Life T-Shirt Week.

The purpose of National Pro-Life T-Shirt Week is to give students the opportunity to present their anti-abortion views not only by word, but by what they wear, said Judie Brown, president of the American Life League. The program is now in its fifth year and more than 100,000 students have participated.

While many students may be challenged about the T-shirt by school administrators, only 15 to 20 court cases have been filed in the past few years, Brown said, and most lawsuits have been settled out of court.

"I think that when kids wear pro-life T-shirts, it should be no different than any other type of a T-shirt," Brown said. "We are hoping that at the end of the day, the school district realizes what they've done and how inappropriate it is, how unacceptable it is, that they back off, apologize to the little girl and her family and let it go."

Reporter Danielle Gaines can be reached at (209) 385-2407 or dgaines@mercedsun-star.com.

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