Tuesday turned out to be a normal day at school; Kevin and Denise were relieved that they were not called to the office during the day. They found out that only two students from the week’s chosen Program group had been persuaded to participate, but when they arrived at the school’s front entrance to get dressed after school on Monday and saw that they were the only students participating, they vowed not to continue. So as of Tuesday morning there wasn’t anyone participating in the Program.
After school, Kevin and Denise went to Habers’ office to discuss the ideas he wanted to propose for their lawsuit.
“Before we continue down this path and spend any more time developing a lawsuit, I’ll need your concurrence. Here’s the picture: The high school, with the assistant principal as its agent, in suspending you last week, violated the part of the state education act that deals with suspensions. First, unless the student’s offense was violent in nature, no suspension can become effective without a hearing during which the student is informed of his specific offense and, before it becomes effective, he has the right to present information in his defense. Second, the suspension has to be in writing and list the specific rule or rules that the student had broken.
“Mr Winters did neither of those required steps. You were suspended without being informed of the reason and received no written notice. Next, if we make the assumption that you were suspended for engaging in simple speech, like informing your fellow students about your opinions of the Program, then that’s an improper use of the school’s sanctioning powers. It’s a misuse of authority.
“I’d like to see the authorities in your school squirm. I pulled my daughter out after what happened to her last year and I blame them for improper supervision. I sent her to a private school, but there wasn’t much I could do legally against the school. So here’s what I propose. On your behalf, we prepare a lawsuit that asks for $250,000 in compensatory damages for each of you based on potential diminished future earnings that can result from a black mark in your academic record; the fact exists that your suspension has been publically noted in the social media so it cannot be expunged by the school. Second, we’ll seek a $500,000 award each in punitive damages to assure that the school district will follow the law and proper procedure in the future. This incident wasn’t an accidental breaking of the law, it was a deliberate and wilful disregard.
“With all of the adverse publicity that the Program has been getting, I’m certain we’d get a favorable jury verdict; it’s possible, however, that the judge could lower the amounts or that the amounts could be changed on appeal. So part of the legal strategy is considering what you’d accept in a negotiated settlement. Sound good so far?”
“Yes, sir—although I don’t really need the money...” Kevin began.
“Son, it’s not about the money. It’s the message, and the message only hits home when money is involved. I can come up with some options for an out-of-court settlement and we can go from there. You can think of what you’d like instead of money, too, and let me know.”
“Sure, that sounds good—how’s your daughter doing now?” Kevin asked.
“Much better. I didn’t let her go back to school to finish her Program week; she was absolutely terrified. The next week when she went back, they said she’d have to repeat the week and then do an additional one as a damned penalty. She called home in panic and her mother picked her up from school. That’s when we switched her schools. She’s still getting nightmares, but she’s almost back to being like herself again.”
‘You know, sir, I was almost raped just before I started high school.” Denise said. “They refused my medical exemption request and Kevin saved me from having to do the Program. If you think it would help your daughter, I can talk with her about what I learned as I recovered from that experience. I could visit her; maybe Cindy would come too.”
“What a nice suggestion, Denise,” he answered. “I’ll ask her; I’m sure she’d love seeing Cindy again, too. Kevin, here are the forms to sign to move the suit forward; Denise, these are for your mom to sign on your behalf. Okay, guys, I guess we’re done. Call me if you think of anything I’ve missed.”
The two teens left his office and returned home.
“What do you think about a settlement?” Denise asked Kevin.
“I’ve got a few ideas. Let’s discuss it after we get our work done, okay?”
It was now after the Thanksgiving holidays. During the holiday break, Roger, Cynthia, and Ayame had traveled to North Carolina to visit the twins’ parents at Camp Lejeune; Tom had decided to stay in Atlanta to work on the journal article project and he spent an enjoyable Thanksgiving with Kevin, Denise, and her mother. Several days after classes resumed, Habers contacted Kevin.
“I’m about to file the lawsuit later this week, Kevin, but I’d like to send the papers to your school district’s superintendent; they’ll most likely ask for a meeting to discuss the suit. If they do, when would it be convenient for you and Denise?”
They settled on a few possible meeting times in the following week.
“I’ll let you know the meeting time if I hear from their lawyer, then. If anyone from the school tries to talk to either of you before the meeting, please refer them to me—don’t say anything at all, okay?” Habers said.
“Got it, sir.”
Then on Friday, Kevin got a call from Bob Charlesworth.
“Hey, Kevin, how’s it going? Great news; our filings in both federal district courts were granted; and in a big way, too.”
“Wow, that’s great news!” Kevin exclaimed. “What did they say?”
“Basically they declared that the law that established the Program was unconstitutional in several areas. First, Congress couldn’t dictate a mandatory curriculum to the states; that was what your friend Cynthia Denison had realized. Only the states have the right to decide the curricula that their schools must follow, so the federal mandatory aspect of having schools run the Program is eliminated.
“Next, they took up the Ninth and Fourteenth Amendment question. Both courts followed the Supreme Court’s reasoning that the Fifth Amendment doesn’t give minors in the Program any personal privacy rights because minors don’t have full privacy rights under the Fifth Amendment. But that requirement can’t be federally mandated for schools, since they had just ruled that the Tenth Amendment applies; however, if states independently decided to require the Program in schools, states could theoretically require nudity. But they agreed with our argument that states are constrained from mandating the nudity, because of the individual personal rights granted by the Ninth Amendment, since that amendment applies to state law as well as federal law.”
“I’m not sure I understand how the Ninth Amendment applies, Bob. I don’t remember ever really learning about what it’s for—how does it apply?”
“Lots of people haven’t heard much about it; it’s rarely used in constitutional arguments because it’s so general but that’s why we used it here; it was perfect for our filing. Let me explain:
“The Ninth Amendment doesn’t have a long history of being used. It wasn’t addressed by the Supreme Court in their decisions until the late 1940s. That’s when the Ninth and Tenth Amendments were invoked in a case that permitted any person to act to express his own political views, even if he worked for the government. That decision extended the freedom of speech granted by the First Amendment. The first use of the Ninth Amendment for a privacy matter came in 1965; in that case, a law prohibiting the use of contraceptives was thrown out as being an infringement of the right of marital privacy.
“One justice wrote something to the effect that the Ninth Amendment demonstrates that the authors of the Constitution believed that fundamental personal rights exist which are not expressly named in the first eight amendments. The Ninth Amendment was included to explicitly state that the list of rights included in the other amendments was not a complete list; many other unspecified rights could exist.
“The problem with the Fifth Amendment being used to support a ruling that minors have no privacy in their person, and therefore the government can force their nudity in a government program, stems from the actual wording of the amendment. Its wording, ‘No person shall ... be deprived of life, liberty, or property ... nor shall private property be taken for public use,’ is completely adult-centric, since a minor has no legal control over his person nor can he legally own property; those rights are vested in his guardian. That’s why the Supreme Court allowed the federal Program law to stand and said that in the absence of a parent being present, the school could assume the guardianship role and require the student’s nudity.
“Our position was that the Ninth Amendment denies to the government, state or federal, any control over any individual’s physical body, and applies whether the individual is an adult or a minor, because no adult-centric language is used. The Ninth Amendment has no basis in property ownership or custodial rights in the way the Fifth Amendment was interpreted. And our legal team had cited many instances of legal precedent, showing that the Ninth Amendment has a direct application to the nudity requirement of the Program. So do you understand our approach now?”
“Oh, yes, that was good, going after the nudity aspect together with the states-rights issue,” Kevin remarked.
Charlesworth continued, “So what’s left after this decision is that the feds can issue curriculum guidelines to the states and those guidelines can be followed or ignored by the states. And the states can run a version of the Program but nudity can’t be required of the participants. This decision applies to these two federal districts only, but it gives an extremely powerful precedent for other court districts to follow.”
“That means that it’s okay for schools to have the Program but the kids can’t be forced to be naked,” Kevin clarified.
“Precisely,” Charlesworth said. “The decision is being released today but it’ll take a few days for the legal people at the schools to digest it and figure out what they should do. Also, my sense is that with virtually no popular support for keeping the Program, these decisions are really unlikely to be appealed. The decisions are based on a clear reading of those amendments and prior decisions involving privacy which cited those amendments, cases that were closely similar in their facts.”
“Wow, that’s fantastic, Bob, thanks so much for what you did,” Kevin said.
“Glad I could help, son, so how are things doing there? Joshua’s told me that you’ve been keeping him busy too, but are you okay with the school now?”
“Yes, sir, ever since they tried to suspend us it’s been quiet, thankfully, and hardly anyone at the school is actually in the Program, so our little resistance movement is working.”
“Yeah, and it’s spread to here, too, you know, anti-Program news is in all the papers and on TV too,” Charlesworth laughed. “Well, keep up the good work and stay out of trouble, you hear?”
“Sure—and thanks again.”
Kevin could hardly wait to tell the others about the good news, they were overjoyed.
“Wow,” Roger smiled, “this calls for a celebration, right? It’s Friday, so let’s party!”
The group spent the evening at their favorite hangout with their friends, celebrating yet another victory over the evil Program.
The meeting with the school district officials took place the following Wednesday afternoon. News of the decisions of the federal courts had spread widely over the weekend and on Monday morning, when the selected Program student names were read in school, no one answered the summons to participate.
Habers had told Kevin and Denise that along with Mr Leeds, the district superintendent, several school board members, and the school’s attorney would be present. When they arrived and after the introductions, the superintendent began the conference.
“The school district received the copy of your lawsuit filing, Mr Habers, and we believe that our officials have done nothing to warrant your appalling charges against us. And the compensation you’re requesting is outrageous. The school suspended the pupils for violations of school policy, including improper behavior and failure to follow the directions of a staff member.”
Habers responded, “From the copy of the papers you received—which I’ve filed with the court on behalf of my clients, Miss Roberts and Mr Coris, we contend that they were improperly suspended and now suffer from damage to their scholastic record. Our position in this matter is clearly defined.”
“Very clearly,” their lawyer responded. “We disagree that the suspension was improper and obviously you realize that you’re asking for a huge amount of money—a million-and-a-half dollars; this is well beyond the financial resources of any school district.”
Habers looked across the table at the attorney and the others.
“Yes, I’m fully aware that the lawsuit is requesting a lot of money. But your assistant principal should have thought of the consequences of breaking the law and damaging my clients, whose future could be impacted by his willful and negligent actions. You are aware that if this suit goes to trial, with the weight of evidence against you and the current negative public perception of the Program, you have no chance that your defense will prevail.”
“That amount of money may cause a jury to think twice about an award of that size,” the superintendent said. “Also, we doubt that the damage to these students is that severe. We can expunge the suspensions from their records.”
“But you can’t expunge the public record. We don’t know what kind of future damage that information will cause. It could prevent either or both of my clients from getting a job or a security clearance too; who knows how much damage could result. I’m being conservative in my estimate; the punitive damages are because of your assistant principal’s reckless actions in not following state law and proper school procedures,” Habers went on. “You’ve probably read the transcript of the recording which shows how he summarily and illegally suspended my clients; we can play that recording in court.”
The school’s lawyer spoke. “We’d like to come to an agreement to settle this without a trial. We’d like to ask that you accept an out-of-court settlement of $50,000 for each of the injured parties and that details of the agreement be kept confidential.”
“I’ve discussed the possibility of settling before trial with my clients, including the minimum offer they will accept. We completely reject the small sum you offer in compensation for such great damage; it offends my clients’ sensibilities and does nothing to address their embarrassment at being suspended, and ignores any future economic and reputational damage.
“However, in view of the financial resources of the school district, we’ll make the following counteroffer. First, we will sign a settlement agreement which provides to both of my clients the funds to pay the costs of a full four-year college degree, tuition and fees, room, and board for each of them in a university in this state; second, Merritt High School will completely end all student requirements for participation in the Naked in School Program; third, no student who has refused to participate in the Program will be prevented from graduating nor will his or her official transcript be withheld; fourth, no official transcript of a Program non-participant will mention the Program in any way; and fifth, the employment of Mr Winters in this district will be ended. And there will be no confidentiality agreement.
“We will not negotiate these terms any further, so now it’s your choice, ladies and gentlemen, whether you want to face a jury over this matter or accept our generous settlement offer. The financial part of the settlement would not have to be paid in a lump sum; it can be paid in yearly increments. You can contact my office before Friday at 5 p.m. with your answer.”
“Isn’t running the Program a state requirement now?” the superintendent asked his lawyer.
“Everything’s in total confusion at the state education department now,” was the response. “Even if it remains a state requirement, it appears that you can’t mandate any nudity. I’ve called them and was told that schools should keep the status quo until you hear further. So if any students volunteer to be nude, I suppose you can run the Program. Otherwise, you can’t force them.” He turned to Habers. “Mr Habers, clearly we’re trying to figure out how we’re supposed to continue the Program. We need to discuss this matter and your offer before we can answer, so yes, we’ll contact you by 5 Friday.”
They left the meeting a few minutes later and heard the group breaking out in a heated discussion after the door closed behind them.
“Kevin, Denise, they may try to pressure you to relent on the settlement terms. They may try to appeal to your school loyalty or try to convince you how the financial costs of the settlement can affect the school’s ability to provide a good education. Just be polite but don’t say anything other than referring them to me.”
That evening after dinner, Kasey Roberts received a phone call. When she finished speaking, she called Denise.
“Honey, that was the school superintendent. I’ll give you just one guess what he called about.”
“Yeah, Mom, tough one. Say, isn’t there some kind of rule that says people in lawsuits aren’t supposed to talk to each other? That only the lawyers are supposed to talk?”
“I don’t think there’s a rule like that. I think it’s customary, because one person may say something he shouldn’t. Anyway, he called because I wasn’t at your conference and technically I’m the party to the suit, not you, right? He wanted to tell me what the financial consequences to the school would be and asked me to reconsider.”
“And...?”
“Ha. I asked him if he was a gambling man, since he had to make a choice between a known payment and possibly a significantly larger one. He didn’t seem to be very happy.”
“Good news, Cyn,” Tom called when he got home. “The journal accepted our article prospectus—that reserves a place for it in the next issue. They told us how many pages we can have for it.”
“Sweet, when’s the next issue coming out?” Cynthia asked.
“The deadline for our article is December 15 and it’ll be out around March 31.”
“How far along is it?” she asked.
“Well, it’s actually written but it’s much too long. We have to cut it. That shouldn’t be a big problem since we can cut it in the sections that quote Program victims’ testimonials. That’ll reduce the impact of the article but they have a website where we can post the testimonials as an appendix to the article.”
“Well, that’s just as good, I guess,” Cynthia remarked. “Everyone is on the web now anyway, so lots of people would see the appendix.”
“Yeah, we figured that. The theme we worked up was the social damage that the Program has caused, based on 37,482 forum posts in seven categories.”
“Shit—I can’t believe someone actually read over 37,000 posts!” Cynthia exclaimed, amazed.
“No, of course not,” he grinned. “We used filtering to sort the posts. There were over 110,000 posts, actually, so the two-thirds we didn’t include didn’t fit any social problem category we chose. We had suicides and attempts, assaults and rapes, hospitalizations or extended treatment for psych reasons, need for medical treatment of injuries, usage of medications for emotional support, teacher and staff maltreatment of Program students, and arrests or other legal action for other Program problems. Then we discussed how the Program was implicated in each of those seven areas with some examples.”
“How does the 37,000 figure enter the article?” Cynthia asked.
“So take the suicide and attempt category. We found 14 cases mentioned with enough detail to be believable. Three suicides and eleven attempts. For psych hospitalizations or treatments, we found um, let’s see, here: 6,247 cases...”
“Holy shit! That many?”
“Yeah, we were surprised too. The medical treatment category was big too. Many girls got internal injuries or infections, even reported reactions to the Shot, so that was significant, it’s 9,873 cases. Everything is in there, like a sports injury because of no protective gear, that sort of thing too.”
“Were there a lot of rapes?” she asked.
“That was harder to fish out from just the sexual assaults, sweetie. There were 632 actual prosecutions for rape mentioned. But the assault complaints were the biggest category. That was 13,588 cases. There were hundreds in that number that could have been rapes but the person who wrote it up didn’t mention if the assault was charged as a rape. And there were over a thousand reports of kids having to take psych drugs while doing the Program. The other reasons had fewer cases. Then we compared these cases to the numbers in the general population. It’s great with the CDC being right next door to us here in Atlanta because they helped with that info. They have this super epidemiology department that keeps all kinds of data on injuries in the population.”
“And I’m assuming that the problems in Program schools is greater than in the population as a whole,” Cynthia stated.
“Got it in one. Rape was something like ten to fifteen times the national incidence depending on how the reports of those assaults are counted. The psych problems in the teen age group were about fifty times as great. The suicide rate was tough to figure because there were many more teen suicides than three in the past two years but only three reports appeared in the forum, so we couldn’t draw any conclusions there. Medical problems were also very high compared to the national average. So this report will be a huge indictment of the social cost of the Program in terms of dollars, for medical care and legal costs, plus the psychological costs to Program participants.”
“Wow—fantastic job, Tom. Can’t wait to see the media’s reaction when that’s published,” Cynthia exclaimed.
“You know, Cyn, you and Rog motivated me—actually everyone at Polytech—on that study. When we first began this project last year, you guys were saying that we needed to handle doing the project like a military campaign and you used military unit structures as an example for us to organize our work. It was your interest in how we were doing and your enthusiasm that pushed everyone to do their best.”
“Well, thank you, Tom. In other words, you’re saying that our bitching about your progress and all of our other hounding of you guys didn’t bother you all that much,” she grinned.
“Well, there was that.... Now that you mention it, your um, ‘pep talks’ were memorable, anyway...” he laughed. “Well, it’s almost done and we’ll have a great product, I think.”
“Sure looks that way. You gotta tell Rog about this, ok? He’ll be back from his swim meet tomorrow.”
The winter holidays were almost upon the six friends. The twins and Ayame planned to spend it at Camp Lejeune with the twins’ parents and Ayame’s parents would be visiting from Japan for Christmas week. Tom was torn between wanting to be with Cynthia and visiting home, but the day before Tom was to buy his plane tickets, his step-father called him.
“Say, son, you haven’t bought your tickets yet, have you?” he asked.
“No, sir. What’s up?”
“Mom and I have a great opportunity, possibly. There are two major positions opening at the Brunswick Nuclear Plant near Wilmington in North Carolina. Your mom was recommended for the head of the engineering division and I’m being recruited for plant manager. We’ve both been interviewed and were just offered the jobs, but we’re still deciding. We’re supposed to visit there again right after the new year, but Mom and I sort of figured that you’d want to be with Cindy for at least part of the holidays. Are we right?”
“Well, I really want to see you guys...”
“Yeah, I know what love is like, son. She’s a wonderful person. What we’re gonna do is go early and look around the area, spend time, and see if we like it—so we’ve made reservations in Wilmington beginning December 22 through January 8. We’ll be only an hour away from Lejeune, so you can visit us and also be with Cindy. How’s that?”
“Oh my god, Dad... Awesome! Cindy—all three—and Ayame’s parents too—are staying at a guest house at Lejeune ‘cause the Denisons’ house is too small for all of them. Let me talk to the others and we’ll figure out all the details. This is so awesome! Talk soon, send my love to Mom, love ya.”
Both of the twins were at away competitions and Ayame was at the library studying, so Tom sent Cynthia a text telling her that his parents would be in North Carolina for the holidays too. A few hours later, he got a call from Cynthia, who was very excited.
“Wow, Tom, it’s for real? Your folks may be moving east, too?”
“Yeah, darling—they just need to decide if they like the area. They’ll be in Wilmington in a hotel, so I guess I need to figure out where I can stay, with them or...”
“Hold it; I’ll call my dad. Let’s see what he can do. I’ll call back soon.”
About an hour later, Cynthia called him back.
“It’s great when your dad is in charge of everything... Okay, here’s what Dad can set up. Your folks don’t have to stay at a hotel there unless they want. Dad can arrange for them to have guest lodging there, and your dad is retired Army? Yes? Even better. It won’t cost them anything, well, food.... But my folks want to invite yours for Christmas dinner and you all can meet Ayame’s parents, too, they’re way cool. Her dad’s an engineer too so you and your mom will have a great time talking to him. See if your folks like that idea. They can stay for the week or longer if they want. And there’s room for you to stay with us too.”
“Way cool, sweetie, wow. This is just incredible. Okay, I’ll let them know.”
Tom called his stepfather back and told him of the offer; he was delighted with the news.
“Oh, sure, that’s much better than what we’d planned,” he told Tom. “How long are you planning to stay with Cindy, then?”
“Well, they were returning on January 2. So I guess that’s how long.”
“We need to meet with the plant people beginning on January 3. And you said that Stuart can get the lodging for that whole week?”
“Yes sir, even longer if you want. But yes, that week is fine,” Tom said.
While Tom was talking, Denise had come upstairs and heard Tom talking about being with Cynthia. She signaled to him that she had news.
“Just a sec, Dad, Denise wants to say something to me.... What’s up, honey?”
“Kevin and I just arranged with Roger to visit there too, for New Year’s Eve. We’re having dinner with everyone. Roger said he heard your folks were going—they’re invited for New Year’s too.”
“Say Dad,” Tom resumed his call, “looks like there’ll be everyone there for New Year’s and you guys are invited too. Would that work?”
“Sure. We’d love to meet your new friends. Let me see if I have Stuart and Sarah’s info—yes, here it is. I’ll call them tomorrow and set up the details. Thanks, son, this should be a great holiday. Bye.”
“Bye, Dad. See you really soon now! ... Say, Denise, how’d it go at your lawyer’s?”
“Well, it’s done; the settlement contract was all signed; it just needs to go to the judge to be approved for the lawsuit to be dismissed as settled. Mr Habers said that’s a formality.”
“And you got everything you wanted?” Tom asked.
“Not quite. We got the tuition, the whole financial part. We couldn’t tell the school not to run the Program or to fire Winters, but they won’t keep kids who refused to participate from graduating. So out of the six things we wanted, we got four. Including four years free college—and at Avery! Kevin is using his share to set up a little scholarship fund, too.”
“That’s great; now you can relax and enjoy your last high-school term. Looks like the forced nudity is all gone now—at Merritt, anyway, right?” Tom asked.
“Yep, it’s voluntary. They’re coming up with what they’re calling ‘incentives’ for kids to participate. They’re trying to get underclassmen to volunteer to be naked by giving credit for one term of gym if they’re in the Program. There are other things too, but none will raise a grade, at least. But it’s still a payoff, you know? Paying the kids to get naked. Why is that so damned important, anyway? Why can’t they just let the Program die off?”
“Maybe they will, Denise, after our article gets published in a few months.”
“Well, I hope so. I gotta get my homework done; see ya tomorrow, big boy,” Denise grinned.
“Yeah, see ya, doll.”
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