Gabrielle Clark v. Nevada State Public Charter School Authority

1
2:20-cv-2324-APG-VCF - February 25, 2021
1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
4 GABRIELLE CLARK, et al., ) Case No. 2:20-cv-2324-APG-VCF

)
5 Plaintiffs, ) Las Vegas, Nevada
) Thursday, February 25, 2021
6 vs. ) 2:07 p.m.
)
7 STATE PUBLIC CHARTER ) MOTION FOR TEMPORARY
SCHOOL AUTHORITY, et al., ) RESTRAINING ORDER VIA
8 ) VIDEOCONFERENCE
Defendants. )
9 ) C E R T I F I E D C O P Y
10
11 REPORTER'S TRANSCRIPT OF PROCEEDINGS
12 BEFORE THE HONORABLE ANDREW P. GORDON,

UNITED STATES DISTRICT JUDGE
13
14
15 APPEARANCES:
16 For the Plaintiffs:
17 MARQUIS AURBACH COFFING

BY: BRIAN R. HARDY, ESQ.
18 10001 Park Run Drive
Las Vegas, NV 89145
19 (702) 382-0711
20 (Appearances continued on Page 2)
21 COURT REPORTER:
22 Heather K. Newman, RPR, RMR, CRR, CCR #774

United States District Court
23 333 Las Vegas Boulevard South, Room 1334
Las Vegas, Nevada 89101
24 (702) 471-0002 or HN@nvd.uscourts.gov
25 Proceedings reported by machine shorthand; transcript produced

by computer-aided transcription.
HEATHER K. NEWMAN, RMR, CRR, CCR #774

2
1 APPEARANCES CONTINUED:
2 For the Plaintiffs:
3 LAW OFFICE OF JONATHAN O'BRIEN

BY: JONATHAN BURNS O'BRIEN, ESQ.
4 43 West 43rd Street, Suite 002
New York, NY 10036
5 (646) 308-1689
6 For the Defendant State Public Charter School Authority:
7 STATE PUBLIC CHARTER SCHOOL AUTHORITY

BY: RYAN W. HERRICK, ESQ.
8 1749 North Stewart Street, Suite 40
Carson City, NV 89706
9 (702) 486-8895
10 For the Democracy Prep Defendants:
11 GREENBERG TRAURIG LLP

BY: KARA B. HENDRICKS, ESQ.
12 10845 Griffith Peak Drive, Suite 600
Las Vegas, NV 89135
13 (702) 792-3773
14 WILMER CUTLER PICKERING HALE AND DORR LLP

BY: DEBO PATRICK ADEGBILE, ESQ.
15 7 World Trade Center, 250 Greenwich Street
New York, NY 10007
16 (212) 295-6717
17 Also present:
18 Gabrielle Clark
Rebecca Feiden
19 Adam Johnson
20
21 * * * * *
22
23
24
25

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1 LAS VEGAS, NEVADA; THURSDAY, FEBRUARY 25, 2021; 2:07 P.M.
2 --oOo--
3 P R O C E E D I N G S
4 COURTROOM ADMINISTRATOR: Gabrielle Clark, et al. vs.
5 State Public Charter School Authority, et al.,
6 2:20-cv-2324-APG-VCF. This is the time set for plaintiffs'
7 Motion for Temporary Restraining Order.
8 Counsel, please make your appearances, starting with
9 the plaintiff.
10 MR. O'BRIEN: John O'Brien for William Clark and
11 Gabrielle Clark.
12 MR. HARDY: Brian Hardy with the law firm of
13 Marquis Aurbach Coffing.
14 THE COURT: Good afternoon to both of you.
15 Defense?
16 (Simultaneous crosstalk).
17 THE COURT: One at a time. Mr. Herrick.
18 MR. HERRICK: Ryan Herrick on behalf of the Charter
19 School Authority, and with me is Rebecca Feiden, the Executive
20 Director of the Charter School Authority.
21 THE COURT: Good afternoon.
22 MS. HENDRICKS: All right. Good afternoon,
23 Kara Hendricks on behalf of the Democracy Prep parties which,
24 for the record, are Democracy Prep Public Schools, Democracy
25 Prep Agassi Campus, Democracy Prep Nevada, Democracy -- the --

4
1 sorry. We've got a whole list here, the Board of Democracy
2 Prep at Agassi Campus, Natasha Trivers, Adam Johnson,
3 Kathryn Bass, Joseph Morgan, and Kimberly Wall. Also appearing
4 today on behalf of the same defendants is Debo Adegbile who
5 will be making our arguments today, and our client
6 representative is Adam Johnson.
7 THE COURT: Good afternoon to all of you.
8 Before we start, let me remind everyone that's on this
9 videoconference that recording, taping, streaming, or otherwise
10 broadcasting federal district court hearings is expressly
11 prohibited by our court's General Order No. 2017-02 and by
12 Judicial Conference policy. So if you are recording, taping,
13 streaming, or otherwise broadcasting this proceeding, stop
14 immediately or you could be subject to prosecution or contempt
15 penalties. So everyone's please on notice not to be recording
16 this in any fashion.
17 Also, if you are not a lawyer who will be speaking
18 this morning -- this afternoon, please mute your microphone and
19 turn your camera off. That way our bandwidth will be preserved
20 and we'll have good access to everyone's statements.
21 We have noticed, over time, that with these Zoom
22 proceedings, if two people are speaking at the same time, the
23 audio tends to cut out, so please wait until the person is --
24 speaking finishes before you start to speak and I'll make sure
25 everybody is well heard.

5
1 If at any time today you can't hear me or you -- or
2 anyone else or you think we can't hear you, wave your hand or
3 make some kind of visual signal to get my attention and we'll
4 correct the problem.
5 Similarly, if the video for some reason goes out for
6 one of our lawyers, I will immediately suspend the proceeding
7 until we reestablish connection so you don't have to worry
8 about missing anything. I'll make sure -- try to monitor this
9 and make sure everybody stays connected.
10 Let me also note there are some filings or materials
11 in the court docket that were filed under seal that contain
12 some confidential information. If any of the lawyers intends
13 to discuss any of those sealed confidential matters, we'll have
14 to figure out how do that in a closed environment. So we would
15 probably have to put everybody back in the waiting room and
16 then just pull the lawyers back in or go to a separate side
17 room with us to talk about those because there are confidential
18 student information. I don't anticipate needing to do that but
19 just wanted to give everybody a heads-up that if you intend to
20 get into some confidential, sealed material, just let me know
21 that.
22 This is the hearing set on the Temporary Restraining
23 Order motion that was filed by the plaintiffs. I have gone
24 over the papers and the briefs and exhibits that are attached
25 and all those things. I have some specific questions I intend

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1 to ask all of you to help me make a decision today and hone me
2 in on some particulars. We don't have a lot of time,
3 obviously, we don't have all day, it's the afternoon already,
4 so I want you to focus in particularly on the questions I'm
5 going to ask you. You don't need to repeat what you've put in
6 your papers, I've gone over it with my clerks as well, but if
7 there are particular things you want to highlight, certainly
8 this is the opportunity to do that but I will probably
9 interrupt you fairly quickly and jump in with some questions
10 that I have to focus in. And since it's the plaintiffs'
11 motion, they'll get to go first. I'm not sure, Mr. Hardy or
12 Mr. O'Brien going to take the lead on this?
13 MR. O'BRIEN: I'm going to go first, if that's all
14 right, Your Honor.
15 THE COURT: That's fine. Let me ask you particularly,
16 I guess, just to make sure I'm cabining what we're doing here
17 today, my understanding from your motion is you're not
18 necessarily seeking any interim preliminary relief today from
19 the Authority, the Charter School Authority because it looked
20 to me from -- and I'm looking at your motion, ECF 19, Page 25,
21 where you're asking to expunge the grade and permit William to
22 enroll in a class, those kind of things. Those seem to me to
23 go to the other defendants, not the Authority. Is that right
24 at least on the interim basis?
25 MR. O'BRIEN: On the interim basis, yeah. I think

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1 that's true, to the extent that they're not able to effect the
2 change we're seeking, which, again, is simply to change the
3 grade.
4 THE COURT: Okay. And to the extent that if the other
5 defendants need authority from the Authority to do that, then
6 that's why they're here if they have to go to the -- up the
7 chain, I guess.
8 MR. O'BRIEN: Yes.
9 THE COURT: Okay. Let me ask you, on that issue of
10 relief, one of the things you're asking for, on Page 25 of your
11 brief, is to have a declaration that the defendants compelled
12 speech and retaliated against William in violation of his
13 constitutional rights. Is that declaration specifically
14 something that's needed today on a preliminary temporary basis
15 or is that more long-term relief?
16 MR. O'BRIEN: Well, Your Honor, what we're worried
17 about is that any remedial offer we get for a different class
18 or William, for the time he's still enrolled here, that he's
19 going to be exposed again to these identity confession
20 exercises and the -- they create a hostile environment for him
21 whether he's actively participating in them or not. So we -- a
22 declaratory judgment that defendants did indeed compel
23 William's speech with graded assignments would act as a
24 discouragement for them to keep doing it.
25 THE COURT: And I don't necessarily dispute that. I

8
1 guess I'm trying to figure out that declaratory judgment is
2 something that would happen at the end of the case when I enter
3 judgment. We're here on a temporary preliminary basis and
4 that's what I'm trying to figure out, is that declaration
5 something that's necessary on a Preliminary Injunction
6 situation.
7 MR. O'BRIEN: I guess we are seeking some limited
8 prospective relief just in a limited time frame here because
9 William is still enrolled in the school and, you know, whether
10 or not he gets his failing grade changed won't change the fact
11 of whether he'll be exposed again to these racialized identity
12 confession exercises --
13 THE COURT: Okay. All right.
14 MR. O'BRIEN: -- so. . .
15 THE COURT: Understood. You also, in your request for
16 relief, want an order that Principal Johnson personally deliver
17 to plaintiffs the report card corrected and scrubbed of stigma.
18 In all candor, when I read that, I thought it seemed a little
19 vindictive and mean-spirited that you need to have the
20 principal personally deliver this. Does it really matter how
21 that report card or grade is delivered --
22 MR. O'BRIEN: Well --
23 THE COURT: -- for the interim relief.
24 MR. O'BRIEN: -- that's how -- that's -- they need
25 it -- however it's delivered, they need it delivered

9
1 immediately because his -- the only thing keeping a number of
2 college applications from going out is licking the envelope,
3 so, like an e-mail to plaintiffs. Principal Johnson did
4 contravene, you know, delivery of student information by
5 e-mailing that failing grade to the mother after my meeting
6 with defendants, so he could do the same thing this time around
7 is what we're asking.
8 THE COURT: Okay. That makes sense then.
9 Tell me, though, on that point that you just raised, I
10 want to get a time line here. You said the only thing left for
11 college applications is licking the envelope. In a sense,
12 when -- it's been a while since I and my kids went through this
13 process. When are the college applications due? When do
14 transcripts need to be submitted? My vague recollection of the
15 process was that you submit the application and transcripts to
16 follow or at least updated transcripts at the end of the last
17 semester, something like that. Where is your client in this
18 process right now?
19 MR. O'BRIEN: It depends on the school. He has his
20 own college counselor now, and he has missed deadlines because
21 of all this for certain schools. Other schools, it's still --
22 the application process is still live, so. . . I would have to
23 talk more in detail with the college counselor, but that's what
24 it is.
25 THE COURT: Okay. Because that -- that ultimately

10
1 gets to the end game for this case. Obviously, your client
2 wants the grades fixed in his preference so that it can go to
3 the colleges and, so, obviously there's a need to get this
4 issue resolved quickly. I'm trying to figure out -- in all
5 candor, after reading the papers, this is, I think, going to
6 require an Evidentiary Hearing. I have not set that for today
7 because I wanted to first get my arms around the problem and
8 flesh out as many of the legal arrangements as we can. I think
9 we're going to need to have an Evidentiary Hearing if the case
10 is going to go forward and if the parties can't resolve it on
11 their own, so that's one of the questions we'll circle back to
12 at the end of this hearing because obviously I want to do this
13 as expeditiously as possible for your client's sake as well as
14 for the defendants' sake, so, the time line, we may need to get
15 some more information on that.
16 Tell me this, Mr. O'Brien, your -- William objected to
17 one or a few of the written assignments and obviously was
18 troubled by the potential class discussion about those
19 assignments, the identity-type things you refer to. Why does
20 that justify skipping the entire rest of the class for the rest
21 of the trimester, or several trimesters, because he had an
22 objection to one or two of the written assignments and a class
23 discussion?
24 MR. O'BRIEN: No, Your Honor. We try to paint the
25 picture that William Clark didn't have an objection. This

11
1 wasn't a quibble. He was subjected to racial harassment and we
2 make a hostile environment allegation and that's very context
3 specific, very fact specific and we lay out all the elements of
4 relevance here. These are adolescents in a controlled,
5 mandatory setting. William Clark is the only student in the
6 class who appears to be white, who's generally regarded as
7 white and --
8 THE COURT: I get all that, and I've read all that in
9 the paper. My point is, as the defendants seem to point out,
10 this was one or two written assignments in a semester or
11 trimester long course and I understand that that -- your client
12 feels strongly about it, I'm not denigrating that at all, I'm
13 just saying that it's one thing to say I have a real problem
14 with that assignment, I have a real problem with that
15 discussion about the identity, and it's another to say I'm
16 going to skip the whole semester, trimester because of that.
17 So tell me how one justifies skipping the whole trimester as
18 opposed to just sitting out a few classes or skipping a few
19 assignments?
20 MR. O'BRIEN: Well, the answer is we tried, both
21 myself and then before I came onto the scene, my clients, they
22 tried to seek an accomodation and they also tried to receive an
23 assurance that these compelled speech exercises and the ongoing
24 hostile environment would be alleviated, discontinued, or he
25 would be allowed to take an alternative class. So it's not

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1 like they just stood by and, you know, didn't make any attempt
2 to mitigate. And then second of all, in order to preserve
3 their claims, plaintiff shouldn't have to sit and expose
4 themselves to repeated compelled speech exercises in a hostile
5 environment generally, and they couldn't get that assurance
6 that this was just a brief interload -- interlude, and we say
7 this in the complaint.
8 THE COURT: I -- I -- I understand that, but I also --
9 I'm looking at Docket No. 49-9. This is the e-mail from
10 Capri Reid dated December 14th, 2020, where she said, at the
11 end, that William is not required to reveal his race, gender,
12 sex or religious identity. So there she seems to be telling
13 you this seems to be a one-time event during a long trimester
14 course. What evidence do I have in front of me that it was
15 more than just one or two assignments or one or two class
16 discussions? That's what I'm trying to get to. What evidence
17 do I have that this was -- the entire trimester was going to be
18 this way?
19 MR. O'BRIEN: Well, in both William's declarations and
20 in our complaint we said these exercises were ongoing at least
21 until October. So that, combined with defendants' failure to
22 assure us to the contrary, until December 14th by the way,
23 that's what led to plaintiffs' principal position that they're
24 not returning to this class where these exercises are, in fact,
25 ongoing, and William Clark said they are ongoing and up -- up

13
1 until at least October. And, again, we couldn't get an
2 assurance to the contrary from defendants because they really
3 cherish these exercises. You don't see -- you don't just see
4 it in this class, you see it in other areas, too, like the
5 management trainings that Principal Bentheim refers to. I
6 believe it's Exhibit 3 of her declaration, so --
7 THE COURT: Well, he -- my understanding is he left
8 class in early September, so how would he know, with personal
9 knowledge, what else was going on in the rest of September and
10 October in that class?
11 MR. O'BRIEN: He still talks to people. It's a small
12 school. Everybody talks. Everybody knows about this case, and
13 he was told that there was another such exercise with a
14 corresponding slide in October. And, you know, if defendants
15 wouldn't disabuse us of that suspicion in October and November
16 and December, and I really doubt they will now, by the way,
17 these were ongoing, in fact, ongoing.
18 THE COURT: Okay. Let me focus -- stay focused here
19 on the compelled speech angle of it. If I accept your argument
20 that the written assignments were compelled speech, you're
21 asking for an injunction, mandatory, affirmative injunction.
22 And let's say I grant that and I say, okay, and I order the
23 defendants, the school, to give -- change his grade to an A, or
24 we're just not grade it, don't hold it against him, does that
25 really help your client if he's still going to fail the class

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1 because he hasn't been attending that class and would still
2 fail it? And, again, I know there's other relief you're
3 requesting, but I'm trying to cabin it piece by piece. So,
4 what I'm getting to is if it's limited to that, is that
5 incomplete relief, or do you know something different?
6 MR. O'BRIEN: Your Honor, we are not asking for an A.
7 We're not that presumptuous, and this whole time we've been
8 seeking a much more modest accommodation, which is just let him
9 take a different class and in the meantime, remove that grade,
10 which their handbook says they don't even give and which we
11 allege is the result of retaliation, remove that failing grade
12 so that he can submit his report card to colleges now that
13 doesn't have that glaring failing grade for the capstone civics
14 class. And, you know, when William submits his report card to
15 a college, he's saying this is who I am, this is what I'm
16 capable of. You know, failing grade for civics right before
17 college. That's -- you know, we just simply want it removed.
18 We don't want a -- we're not asking for an A.
19 THE COURT: And I guess that's -- if I -- well, I get
20 your point.
21 There is an allegation from the defendants, and the
22 documents seem to indicate, that the class discussions -- well,
23 in the class discussions William didn't have to identify if he
24 was uncomfortable and there were disclaimers in there that you
25 don't have to disclose. Why isn't that sufficient?

15
1 MR. O'BRIEN: Well, that -- that point has been
2 addressed by courts in previous decisions, Lee vs. Weisman,
3 Santa Fe v. Doe, and the point is, is by not participating in
4 this specific exercise, it's glaringly obvious that
5 William Clark is. . . it's glaringly obvious that he's denying,
6 essentially, that he's privileged, that he's an oppressor.
7 He's the only -- a -- visibly the only white student in the
8 class, and he's just as subject to the social pressure and
9 coercion as if he -- you know, as if he did participate against
10 his will.
11 THE COURT: Is there any evidence of other students
12 who declined to identify or declined to participate and stayed
13 in the class?
14 MR. O'BRIEN: I wouldn't know that. I will say
15 William is the only student who appears to be white in the
16 class, which heightens the pressure and humiliation and shame
17 that he has to sit through in silence while this is ongoing.
18 It's no different than the court's analysis of school prayer
19 cases. In fact, it's worse because it's not -- it's
20 racialized, it has to do with skin, and, you know, let's keep
21 in mind the vicious nature of some of these class materials.
22 You know, racism is something that only comes from white
23 people. The SpongeBob cartoon, it was incessant, it was
24 racially hostile, it wasn't just pedagogy, and William is
25 sitting there, doe-eyed, looking at this going on as the only

16
1 apparent white student in the class. The harm he has to
2 undergo is going to happen whether or not he actively
3 participates or not, so, that's my answer.
4 Your Honor, I got to -- I got to make this point
5 again -- I got to make this point. We submitted a declaration
6 for William a couple days ago where he produces the homework
7 assignments themselves and they showed him --
8 THE COURT: I've read it.
9 MR. O'BRIEN: -- working through the questions,
10 answering some rather than others. He answered a number of the
11 questions by highlighting them with the teacher's
12 obstruction -- instruction. That highlighting did not appear
13 when we uploaded it on to eFile, so I just want to make the
14 Court aware, I have those slides now, but it shows him really
15 struggling to answer some questions and not others and
16 that's -- I just want to make that point because he talks about
17 that in the declaration itself and it's not apparent in what we
18 submitted.
19 THE COURT: I appreciate that. And just so the
20 record's clear, you're talking about what's been filed as ECF
21 No. 59, his declaration. I have that, and I have reviewed
22 that.
23 Let's talk about the hostile environment claim for a
24 minute. If William doesn't have to engage in what you call
25 identity confession and labeling exercises and he can work with

17
1 a trusted faculty advisor as the defendants offered, why isn't
2 that a sufficient response from the defendants to show they
3 were not deliberately indifferent to an alleged hostile
4 environment?
5 MR. O'BRIEN: Well, that offer is -- it's not -- that
6 December -- that offer, which is in the December 14th e-mail
7 from counsel, which was pretty late in coming, I mean, that was
8 not the offer a week before, a month before, or 2 -- they were
9 implacable, but that offer where you work with a mentor is in
10 fact an option in the -- in that project class. You can work
11 with another teacher. However, that doesn't excuse you from
12 also going to Kathryn Bass' class. And, so, whether or not
13 William worked with a mentor, per the December 14th offer, had
14 no effect about him attending Kathryn Bass' class. So, just to
15 make that clear.
16 THE COURT: Okay.
17 MR. O'BRIEN: And, you know, the other thing is we
18 never had a problem with the -- the Change the World project as
19 it's described. We just couldn't get an assurance that the
20 identity confessions wouldn't happen in that class, and
21 defendants seem oddly committed to this exercise. And, so, we
22 just couldn't get an assurance that he wasn't going to have to
23 sit through this again. Defendants also spend a lot of money
24 on third-party contractors who are also committed to this
25 exercise and they bring them in, upon information and belief,

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1 at various points. We didn't want him exposed to that and we
2 couldn't get an assurance that he wouldn't be exposed to that.
3 And, again, the key point is being exposed to it, not
4 participating in it.
5 THE COURT: Well, and you mentioned that you had no
6 problem with the Change the World project. I note, attached to
7 your complaint, at Docket No. 1-5 on Page 5 is the I think they
8 call it the course handbook, whatever it is, but on Page 5 it
9 talks about the grading and major assignments, and the
10 Change -- the final Change the World project will represent
11 60 percent of the total grade, which suggests to me you were
12 okay with 60 percent of the course, at least, homework was
13 10 percent, class work's 20 percent -- in all candor, these
14 numbers, when I add the percentages up, it's well over a
15 hundred percent so I'm not quite sure how the math works out,
16 but that's a different issue. But if your client's okay with
17 60 percent of the class, at least, on the final Change the
18 World project, again, I get back to how does that then justify
19 skipping out of the entire class instead of just not
20 participating in the parts that he's got a problem with and try
21 to resolve those?
22 MR. O'BRIEN: Okay. Well, Number 1, we're making an
23 allegation that Kathryn Bass, at the direction -- at the
24 direction of Adam Johnson and others subjected William Clark to
25 racial harassment and subsequently retaliated against him. We

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1 really believe that. We're not just blowing smoke. And, so,
2 we didn't want him, a), to return to a hostile environment
3 where these identity confessions are going on, with these
4 SpongeBob taunting messaging is going on and where these
5 identity confessions are going on while he's conspicuously the
6 only white-appearing student in the class. So, that's why --
7 and we asked could he take it with a different teacher and
8 defendants said no, she's the only one who did it. And at this
9 point, it will be really odd for him to return to that class,
10 it would have been odd in December, or November, with the same
11 teacher who subjected him to racial harassment. Nobody would
12 ask a woman to return to her class taught by a man who, you
13 know, subjected her to sexual harassment.
14 THE COURT: So even their offer to make up his grade
15 without having to engage in the identity confession and
16 labeling exercises, that's not enough?
17 MR. O'BRIEN: Well, he would still have to sit through
18 the exercises going forward, and they would still dock him for
19 not participating in class and attending class in -- for all
20 those Sociology of Change classes he missed. So there's -- and
21 we cite to the grading standards for every class. It's --
22 there's a percentage for -- there's a percentage for
23 attendance, there's a percentage for participation, and there's
24 a percentage for assignments. So he still can't get full
25 credit in this Sociology of Change class even if he does all

20
1 the assignments, many of which are inextricably bound up with
2 these identity things anyway.
3 THE COURT: This class was online, correct, and still
4 online?
5 MR. O'BRIEN: To my knowledge, it's still online.
6 THE COURT: Does that change the dynamic in the sense
7 that it's not necessarily as hostile an environment when you're
8 sitting there in class directly facing people, the online is
9 different, or does that not change anything for you?
10 MR. O'BRIEN: Not necessarily. I don't think so. I
11 mean, my white face is pretty visible right now, framed, as --
12 as Ms. Wall said, everyone is lined up like the Brady Bunch.
13 If everyone else is professing their identities and William
14 isn't, that's pretty conspicuous. And second of all, you know,
15 every state, including Nevada, has cyber- -- anti-cyberbullying
16 statutes. The acknowledgement that real harm can be inflicted
17 virtually over the internet is real and, by the way,
18 cyberbullying doesn't even take into account Zoom videos. I
19 think the presumption is that it's social media chat
20 harassment, but of course it can. So that's my answer.
21 THE COURT: Okay. I'm just trying to see if you've
22 covered my questions. I want to make sure I've got it.
23 For purposes of the retaliation claims, what exactly
24 is William's protected activity? Is it the refusal to complete
25 the specific labeling assignments? Is it the complaints he

21
1 made about the class, or is it the complete departure for the
2 remainder of the term? What -- or all of those? What is the
3 protected activity upon which the retaliation is based?
4 MR. O'BRIEN: Okay. If you don't profess your
5 identity on these graded assignments, you get docked. They're
6 worth 10, 20 points, and they're graded for completion. If you
7 don't do them, that's a point deduction. That's a penalty.
8 And then. . . also, the other -- the other retaliation is the
9 overall grade, a grade they don't even give according to their
10 handbook. Second -- and third of all, we go to great lengths
11 to show that defendants don't actually have regular grading
12 standards. They make regular exceptions as personal favors,
13 they inflate their grades for regulatory and PR reasons, so why
14 wouldn't -- why wouldn't they grant William an accommodation in
15 this -- they chose this to be their hill to die on because
16 they're overcommitted to this, you know, racialized ideology.
17 THE COURT: But you're not answering my question.
18 That's -- that's -- that addresses what's the retaliatory
19 action. My question is different. My question is, what is the
20 protected activity that William engaged in that led to
21 retaliation?
22 MR. O'BRIEN: Okay. Well, with the assignments
23 themselves, he's under no obligation and defendants have no
24 right to have him reveal personal intimate information about
25 himself, especially in a non-private setting for a non-medical

22
1 purpose or non-justifiable purpose. That includes
2 disabilities, gender, sexuality, all that.
3 THE COURT: So it's the refusal to complete the
4 assignments is what you're saying is the protected activity?
5 MR. O'BRIEN: Well, no -- well, it's twofold: It's
6 the refusal to reveal, refusal to speak in the first place,
7 that's the first compulsion, and then second of all, it's the
8 refusal to affirm the labels that are slapped on these intimate
9 identities, like sexuality or race. He will not affirm that he
10 is, in fact, privileged, or an oppressor, given his sexual
11 organs or given his skin tone. He finds that offensive, and
12 he's not going to consent to it. And, you know, I would just
13 like to make the point again, the overall point of this class
14 wasn't just to affirm, it was also to unlearn. And, you know,
15 William objected to that project as well.
16 THE COURT: So it's -- the answer to my question, I
17 want to make sure I understand your position, the protected
18 activity that he engaged in that leads to the retaliation is
19 his refusal to do this identification drill, this -- the
20 written assignments that you're complaining about, as opposed
21 to his refusal to participate in class or as opposed to the
22 complaints he had about the class?
23 MR. O'BRIEN: Well, you -- he has a right not to be
24 exposed to racial harassment and that mere accusation, or hint
25 of that accusation, is also what he's being retaliated against

23
1 for. I mean, who's he to call them -- that's the other point.
2 THE COURT: Well, that's what I'm trying to get to.
3 In order to maintain a retaliation claim you have to show that
4 your client engaged in a protected activity and then the
5 defendants retaliated against that activity. I'm trying to
6 figure out what is the protected activity he did so that I can
7 see if the defendants retaliated against that for purposes of
8 the analysis.
9 MR. O'BRIEN: Okay.
10 THE COURT: And you're saying it's the --
11 MR. O'BRIEN: Effectively objecting to the class,
12 their civics class as unconstitutional and a civil rights
13 violation. That's what he's being retaliated against for, and
14 that's why he received, you know, the draconian penalty of a
15 failing grade that the school doesn't offer, according to its
16 handbook.
17 THE COURT: How do you respond to the arguments from
18 Democracy Prep that it would take the same actions in response
19 to any other student that refused to engage in that activity
20 who leaves the class and doesn't complete the assignments?
21 MR. O'BRIEN: Well, Number 1 is we show ample evidence
22 that they -- they don't adhere to any regular standards with
23 students who don't take classes or don't conform to their
24 requirements and --
25 THE COURT: What specific evidence do you point to

24
1 that shows that those -- that there were students who refused
2 to attend the class -- a class and got better treatment than
3 your client?
4 MR. O'BRIEN: Okay. In the -- in the Bentheim
5 affidavit she cites two specific report cards, and both of them
6 Democracy Prep invented credits that the students didn't have.
7 And one of them -- one of -- in the -- one of the report cards
8 that was done by Adam Johnson for a personal favor because he
9 was a friend with one of the parents, but -- and there's also
10 the allegations, you know, from personal experience by
11 Tishkowitz and Bentheim that they repeatedly did the same thing
12 for athletes, et cetera, et cetera, and. . .
13 THE COURT: My recollection of those declarations are
14 that they didn't say that the problem in the first place was
15 that the student didn't attend class. I could be
16 misremembering, and it didn't say anything about it being
17 racially based either. Am I wrong?
18 MR. O'BRIEN: Am I under an obligation to show other
19 instances of racial retaliation or racial special treatment?
20 THE COURT: You're claiming disparate treatment and
21 equal protection. I kind of think so.
22 MR. O'BRIEN: I'm making -- I'm making the claim that
23 they don't, in fact, follow grading guidelines in any
24 meaningful way in other situations.
25 THE COURT: So I guess that's the question. Is

25
1 your -- what proof do you have that your client was not
2 treated -- that your client was treated differently than
3 similarly situated students? And that's the idea of an equal
4 protection is we're equal and I'm not being protected, or
5 disparate treatment, I'm being treated differently than someone
6 else similarly situated. What's the evidence of that, other
7 than the vague allegations in your -- in declarations from
8 Bentheim and the other one whose name I can't pronounce.
9 MR. O'BRIEN: Well, the disparate treatment is
10 exhibited in the class itself. It's very racially focused on
11 white culpability. Only whites are capable committing racism.
12 If there were no whites, there would be no racism. People of
13 color cannot be racist. These are all quotes from the slides.
14 A course like that's going to come down a lot harder
15 on a kid who -- on the only kid in the class who looks white
16 and, you know, it's a sensitive issue for William, which we try
17 to lay it out anyway. He's got parents -- he's got one parent
18 who is white. He's a mixed race family. You know, he looks
19 white. It's a lot harder for him to, you know, sit by and
20 consent to that than it is for the other students.
21 THE COURT: And I assure you, I'm taking that very,
22 very seriously and I'm sensitive to that. Don't confuse my
23 difficult questions and drilling questions with disagreeing
24 with you about impact it has on your client. I'm grappling, as
25 we all are, with some serious constitutional issues and I got

26
1 to make sure whatever decision I make is based upon sound legal
2 and constitutional theory, so please don't think that I am
3 ignoring or selling short your -- the impact this is having on
4 your client. That's why we're trying do this quick because I
5 recognize how important these issues are and to do them timely
6 so. . .
7 Anything else before I turn back to the defendants? I
8 don't know if there's anything else you wanted to touch
9 briefly?
10 MR. O'BRIEN: No. I will say, you know, if Your Honor
11 is looking for instances of racially motivated activity on
12 behalf of defendants, that is elaborated in both the
13 declarations of Bentheim and Tishkowitz. It doesn't go -- they
14 don't specifically say it relates to the particular report
15 cards Bentheim exhibits, but they give other instances of race
16 playing a factor in defendants' contravening, you know, various
17 protocols, some of them -- I get -- that's another answer I
18 would say.
19 THE COURT: All right. Thank you.
20 MR. HARDY: One other --
21 THE COURT: Mr. Hardy.
22 MR. HARDY: Yes, Your Honor, one thing I think we can
23 talk about too is the fact that you wanted others that were
24 similarly situated. It's very difficult to find a similarly
25 situated individual to him in this particular case because he

27
1 is a very unique individual. It would be if we were to go back
2 30, 40, 50 years ago and when they started bussing in one
3 student at a time and now we have to say that they were being
4 treated -- however you are treating everybody else, right? I
5 mean, we have an individualized person here, so to find
6 similarly situated students is a very difficult situation here
7 that I think we can easily overcome given the historical
8 relevance of this issue.
9 THE COURT: That's a fair point, Mr. Hardy, and
10 certainly the Supreme Court has recognized this sort of class
11 of one --
12 MR. HARDY: Yes.
13 THE COURT: -- theory, but obviously it's a difficult
14 issue to prove and it's a different type situation. So I
15 appreciate that input. Thank you, Mr. Hardy.
16 Let me turn to the defendants then. I'm not sure,
17 Mr. Adegbile, if you're the one that's going to take the lead
18 or Ms. Hendricks, who's. . .
19 MR. ADEGBILE: Your Honor, I think I'm taking the lead
20 for the Democracy Prep defendants.
21 THE COURT: All right. Let me ask you, if I can, a
22 couple of initial questions. The society -- the Sociology of
23 Change class, how many trimesters does it last? Is it still
24 going on? When is it over? Give me the details there.
25 MR. ADEGBILE: Yes. Your Honor, my understanding is

28
1 that it's -- there are two pieces to the curriculum, there's
2 the Sociology of Change and then there's the Change the World
3 piece, which is the end-of-the-year capstone project and, so,
4 my understanding is that the -- that the Sociology of Change is
5 a first trimester course and that the Change the World is a
6 capstone project. They kind of hang together as part of the
7 curriculum that's designed to explore social movements and
8 power dynamics and how different groups contribute to those
9 movements and in our view, Your Honor, the course materials
10 make pretty clear that opposing views are baked into the
11 contemplation of how all of this material is put forward. You
12 know --
13 THE COURT: Is the classroom portion still going on or
14 is that Change the World project a -- an independent study-type
15 thing?
16 MR. ADEGBILE: My understanding is that the Change the
17 -- that the -- that the -- I believe that the -- that piece of
18 the course is over and that the new piece is the Change the
19 World project that we're moving on to and that the Change the
20 World has independent study pieces, but it also has, like, a
21 mentor and advisor that helps to work and engage with the
22 students.
23 THE COURT: And the grades from the Sociology of
24 Change portion of the class, can they be changed at this point?
25 MR. ADEGBILE: Well, Your Honor, I think the Johnson

29
1 affidavit makes clear that our goal in this case is to see that
2 our students graduate and with reasonable effort and any
3 meaningful participation in the class curriculum we would make
4 every effort to see if there was a way to credit the course, if
5 the work was done. What's extraordinary in this situation is
6 that we are being -- not -- we're not being asked, you are
7 being asked to override the judgment of the school that a
8 student who effectively withdraws and rejects curricular
9 requirements can go to court and have a court make the judgment
10 about the curriculum, override all of the educational judgments
11 and enter the grade. And, so, my answer to you is that in the
12 Johnson affidavit, we have made clear that we have tried to
13 engage with this student for purposes of finding some
14 resolution.
15 THE COURT: The answer is yes, the grades can still be
16 changed?
17 MR. ADEGBILE: Yes, if the work is -- if the work is
18 completed, sir.
19 THE COURT: That's all I need to know.
20 How soon after a student applies to college is the
21 transcript provided by the school to the college? What does
22 that time line look like for purposes of getting now to the end
23 of this case?
24 MR. ADEGBILE: I'm not exactly sure what the interval
25 is between the submission of the application and the transcript

30
1 at Democracy Prep. As a typical matter, the transcripts have
2 to follow in close succession of the application and many
3 school deadlines -- obviously, different schools have different
4 deadlines and the pandemic, it's a little bit -- it's a little
5 bit loosey-goosey for all of these things, but as a general
6 matter, they follow close in time to the submission of the
7 application so that the application can be considered complete.
8 THE COURT: And my recollection from years ago is that
9 colleges will grant admission and then say you still have to
10 submit your final transcripts to make sure the kids don't slack
11 off the last semester and update that.
12 For the claims under Title VI and Title IX, one of the
13 issues is which of the defendants received federal funds for
14 those claims. Do you know which do and which don't?
15 MR. ADEGBILE: My understanding is that there are
16 federal -- some funds that run to the Democracy Prep school.
17 The individuals obviously don't receive federal funds. If we
18 were to go forward with an Evidentiary Hearing, we could more
19 specifically provide information.
20 THE COURT: Yeah, my presumption was that the
21 individuals didn't but I don't know if there was some kind of
22 special grants that are out there, but that might be something
23 that might become important later on in terms of who's amenable
24 to suit under those two.
25 Let me sort of throw it at you this way. The

31
1 plaintiffs argue that the slides that are used and the
2 assignments basically require white, heterosexual, Christian
3 males to self-identify as oppressors and that the students have
4 to unlearn bias thinking and stuff like that. Why isn't that
5 compelled speech and indoctrination?
6 MR. ADEGBILE: Your Honor, as an initial matter, I
7 think the materials and our briefs point to this, made clear
8 that folks were not required to self-identify if they had an
9 issue with it. I think Ms. Bass made that point and in some of
10 the dialogue with the family that was made clear as well. I
11 will say that one of the available pathways here was to respond
12 and, in effect, to push back to articulate any differences that
13 plaintiff had with the lessons as they were being put forward.
14 And if you look at the dec that -- the materials that are
15 attached to Mr. Johnson's declaration, there are a number of
16 places that make clear that this -- this was contemplated as a
17 Socratic method where the things that were being put out were
18 prompts that were designed to engage the students in sharing
19 their perspective and offering their views of the curriculum
20 on -- on one side, another, maybe objecting to the
21 characterization in total. And that -- if you read the
22 curriculum in context, I think that that's a fair articulation
23 of what the curriculum was designed to do. It was not designed
24 to indoctrinate or have anybody adhere to a particular view,
25 and I dare say that a student could get an A in this class by

32
1 deciding that they want to push back largely on some of the key
2 material that was put out there, taking a dissenting view.
3 There's still a path to achieve.
4 THE COURT: Is that possible for the only
5 white-appearing high school student in a class like that when
6 they're having a discussion about oppressors and things like
7 that where he's clearly outnumbered and as Mr. O'Brien says, he
8 doesn't look like anybody else in that class?
9 MR. ADEGBILE: Fair point, Your Honor. The views and
10 the context of the class was designed to have respectful
11 dialogue and to have exchanges in people's views be welcome and
12 understood. I take your point that as a young person and
13 adolescent sometimes it can be difficult to articulate your
14 views and to stand your ground, but it was the goal of the
15 curriculum and the class to elevate views and, frankly, it is
16 additive in a school that has a Democracy Prep curriculum and
17 takes as a prerequisite that our society is multiracial,
18 different religious traditions, to understand that the core
19 mission is to educate citizen leaders who can engage across
20 difference and part of that is appreciating differences and
21 respecting others across those differences.
22 THE COURT: All right. When Capri Reid stated in her
23 December 14th e-mail that William was not required to reveal
24 his race, gender, sex, or religious identity -- and that's at
25 ECF 49- -- now you know the e-mail I'm talking about -- does

33
1 that mean that he did not have to complete that graded written
2 assignment that required him to do that, the one that's
3 attached to his declaration?
4 MR. ADEGBILE: I -- I take it that that is what it
5 means. If, for example, he had an objection on a particular
6 piece and wanted to speak to certain pieces but if he wanted to
7 say that as to this piece, this is personally sensitive to me
8 and I can speak to other parts of it, then I think that that
9 would have been an acceptable response, but --
10 THE COURT: Was that clearly communicated to the
11 Clarks that he didn't have to complete that written assignment?
12 MR. ADEGBILE: I think that there's a piece, and I
13 will look for the cite for you, that there were -- that there
14 were places that said that you -- that -- where Ms. Bass said
15 in her engagement with the students that folks did not have to
16 state their identities if they were -- if they were
17 uncomfortable with it.
18 THE COURT: Which is a little different than saying
19 you don't have to do this assignment.
20 MR. ADEGBILE: Fair enough.
21 THE COURT: When also, it's saying in Paragraph 3,
22 that full credit -- we'll allow William to receive full credit
23 for any missed assignment for the last trimester. To do so he
24 would need to attend class and commit to an action plan to
25 complete the missed assignments. So it suggests that he would

34
1 have to complete that assignment.
2 The syllabus indicates that class participation is --
3 and I think it says "valued" and that class work is explicitly
4 20 percent of the grade. So I guess the question is, how do
5 those in-class discussions factor into the grade if it said you
6 don't have to engage if you're uncomfortable, but yet it's
7 still 20 percent of your grade and we value that? Isn't that
8 sort of self-contradictory?
9 MR. ADEGBILE: Your Honor, with respect, I don't think
10 so because there -- it's a trimester-long class and I think
11 it's reasonable to understand that there could be particular
12 parts of a course that are particularly sensitive or that folks
13 have some difficulty with, but there's lots of opportunity over
14 the course of a semester or trimester to engage on pieces and
15 to make efforts to contribute. What we have here was a
16 situation where the student chose to withdraw completely and to
17 not adhere to the curriculum guidance. And, so, I don't think
18 it's -- captures it to suggest that over the course of the
19 semester there was -- there were not contributions that people
20 could make. In the ordinary course, there are days when
21 students make greater contributions, folks have days when
22 they're more taciturn or withdrawn and when teachers grade and
23 apply credit for that type of engagement, it's -- I don't think
24 that they're looking to see that every day you are the most
25 vocal person in the class. What it means is that you are

35
1 grappling with the material and trying to talk about it in a
2 way that is additive, both for you and for your peers. And it
3 doesn't require that you do it only in a narrow way and every
4 day have to engage.
5 THE COURT: All right. Well, let's focus on that for
6 a second. Attached to the complaint is the -- are these
7 slides, it's about 48 pages of slides. I couldn't tell, is
8 this just one -- all the slides for one class or do you know if
9 this is the whole trimester?
10 MR. O'BRIEN: It's a couple different classes right at
11 the beginning.
12 THE COURT: Okay.
13 MR. O'BRIEN: It's not the whole trimester because
14 William didn't sit through the whole trimester.
15 THE COURT: Thank you, Mr. O'Brien.
16 Okay. So Mr. -- with regard to -- you're talking
17 about these slides or -- and the programs were made to make it
18 inclusive and to get the dialogue going. I note on Page 9 of
19 that, as Mr. O'Brien points out, the SpongeBob SquarePants
20 cartoon, reverse racism doesn't exist, reverse racism is not
21 real, black prejudice does not affect the rights of white
22 people. Again, I go back to that doesn't quite sound
23 inclusive. That doesn't sound like let's have a dialogue, it
24 seems more indoctrination, doesn't it?
25 MR. ADEGBILE: Your Honor, that particular piece was

36
1 not framed in the Socratic dialogue type of way but it has to
2 be read in the context of the entire course, which is calling
3 for different opinions, calling for people to push back, to
4 share their views, to agree or disagree and in the full context
5 of the course, which is all about these move -- social
6 movements, which in part is a series of challenges to
7 established order, power dynamics and hierarchies and, so, I
8 take your point, but that particular slide is not framed in
9 the -- in a way that is directly calling to be challenged, but
10 I do think that one piece in one pedagogical approach is also
11 to put something out that folks need to respond to and decide,
12 do you agree or do you disagree.
13 THE COURT: Okay. Do -- I know some of the discussion
14 in the paperwork had been that Ms. Bass gets the written
15 assignments from the students. Do other teachers and
16 administrators have access to those assignments other than
17 Ms. Bass, or do they just go to her and they stay with her?
18 MR. ADEGBILE: My understanding is that the -- that
19 Ms. Bass, the stuff that's posted in the Google docs goes to
20 Ms. Bass and that Ms. Bass, in fact, in the context of the
21 discussions, is one of the -- one of the participants, not --
22 you know, contributing to the discussion but welcoming students
23 to push back on her as well.
24 THE COURT: Okay. Has the school, in the past,
25 assigned a failing grade or threatened non-graduation to a

37
1 student who refused to participate in a class for the remainder
2 of the semester or trimester?
3 MR. ADEGBILE: Your Honor, I -- I don't know if there
4 has ever in the history of the school been that circumstance.
5 What our submission is, is that where a student decides not to
6 participate at all, the school is really in a difficult
7 situation because they don't have a basis in which to provide a
8 grade and while Mr. O'Brien said in his presentation that he
9 wasn't looking for an A and understanding that maybe that was
10 not the end of the game that he was -- end of the road that he
11 was looking for, it's really hard to understand on what basis
12 you or anybody else could recommended a grade at this point
13 because of the approach that the student took and decided not
14 to engage when there were so many efforts to find ways to
15 accommodate and to do it in ways that could be consistent with
16 concerns, though I note that the law is also such that students
17 don't get to decide what curriculum is and that the law -- we
18 cite a number of cases that suggest various compulsion, signing
19 questionnaires and the like, is an inherent part of the
20 educational experience and so a subjective objection with the
21 curriculum certainly is not the standard.
22 THE COURT: And I don't dispute those portions and the
23 law that you've cited to. Certainly the cases seem to hold
24 somewhat similar to that. I guess my question is more to what
25 Mr. O'Brien was -- you know, implies the argument that based

38
1 upon the two declarations of Bentheim and I can't remember the
2 other one's name, but that grades have been changed in the past
3 as favors to the principal's friends or for athletes or for
4 whatever reason. I guess I'm trying to figure out the
5 suggestion, or the implication is that there were other
6 students who were -- similarly skipped classes entirely that
7 got a passing grade despite that. Do you know of any other
8 situation similar to this, and I take it you said no but I
9 wanted to double-check, where there has been another student
10 who did not participate and yet was still given a passing
11 grade?
12 MR. ADEGBILE: I'm not aware of that circumstance,
13 Your Honor.
14 THE COURT: Okay. Do you dispute that an ordinary
15 student would be chilled from continuing to engage in protected
16 activity by the threat of a failing grade or not being able to
17 graduate?
18 MR. ADEGBILE: Yes, Your Honor, we do dispute that.
19 What we -- what we see here is that while, obviously, the
20 threat of not graduating is serious, every effort was being
21 made to try and find paths for success. As I said at the top,
22 the goal is not to fail Mr. Clark; the goal is to provide an
23 opportunity for him to find success both at our school and
24 beyond. And on the chilling point, the core issue here from
25 our perspective is that at every turn some minimum contribution

39
1 to -- or minimum effort to contribute to the class, to take on
2 the assignments, to push back on them, to have a point of view
3 that was consistent with his perspective, in fact, would have
4 created a possibility for his speech to go forward -- sorry,
5 for his grade to go forward, and we don't think that the steps
6 that the school took of constantly being the opposite of
7 deliberately indifferent, being caring and looking for
8 solutions, is consistent with the notion that plaintiff was
9 being chilled.
10 THE COURT: Take it out of the context here and just
11 in general, a student who is threatened with a failing grade
12 and not going to college, who wants to go to college, where
13 college is important, you don't think that would chill that
14 student's behavior?
15 MR. ADEGBILE: Well, I think the -- in fairness, the
16 con- -- you know, the consequence of having a failing grade is
17 serious for a student. The consequence of not graduating is
18 serious for the student. It doesn't chill the -- how the
19 student responds. Yes, it says that in order to graduate, you
20 have to do your work, but that's the rule of school,
21 Your Honor. That's not a special Democracy Prep rule, that's
22 the rule of school that we know from kindergarten going
23 forward. And, so, the point here that you need to submit your
24 assignments and do your work, yes, we accept that, that there,
25 there is, you know, some -- the school is exercising its

40
1 authority to articulate what its curriculum requirements are,
2 but I don't -- but the chilling point goes to the speech. The
3 school -- there was no compulsion to say any particular thing,
4 to have a particular type of view and because of the nature of
5 the class, the class benefits from folks having different
6 views. If everybody has the same view, it is not as effective
7 a class in a democracy.
8 THE COURT: On that I think everyone would agree and
9 there would probably be no dispute from the plaintiffs on that.
10 The question, I guess, is -- and the reality of what this
11 situation occurred here was that really what it looked like on
12 the ground and obviously that's where the plaintiffs diverge
13 and contend that while that may sound good in theory, that's
14 not what happened here. Not that I'm saying I agree or
15 disagree with either side, but I think I would be hard-pressed
16 to find anybody disagreeing with you that the free exchange of
17 ideas is what school is all about.
18 Let me see if I have any other additional questions
19 for you.
20 (Brief pause in proceedings).
21 THE COURT: That's all I had for you. Anything else
22 you wanted to say?
23 MR. ADEGBILE: Yes -- yes, Your Honor. There's no
24 allegation that a student was treated -- acted in the way
25 plaintiff did and was treated differently in the complaint, and

41
1 there's no allegation that Ms. Bass was treating students
2 differently in any sense. And while I recognize that there are
3 various allegations, many of which have very little to do with
4 the complaint or this case in some of the declarations, I think
5 the focus here is on the very high standard that plaintiffs
6 need to meet under a mandatory injunction, asking this Court to
7 step in as a curricular review body, and as you noted,
8 commanding the principal to personally deliver a grade, the
9 basis of which I'm not quite sure how you would even begin to
10 approach that if you were so inclined to do it and for all --
11 for all of the reasons that we cite in our brief with respect
12 to the role of schools in having some dominion over their
13 curriculum within reasonable bounds, we think that it's an
14 extraordinary request and one that's not properly -- properly
15 put to this Court and that the motion should be denied for
16 those reasons.
17 THE COURT: All right. Thank you, sir.
18 Mr. O'Brien, it's your motion so I'll give you the
19 last word, briefly.
20 MR. O'BRIEN: Yeah, Your Honor, I just -- just to
21 recapitulate, this is a case that's really about conscience,
22 not curriculum. The compelled speech exercises, which were
23 serial and ongoing, couldn't be better documented. It's not --
24 it's more heinous than some of the paradigmatic cases, like
25 Wooley v. New Hampshire, where it's a license plate. He's

42
1 being -- plaintiff is being asked to label his sexual
2 identities and racial identities in a clearly pejorative way.
3 He is in a unique situation, visibly the only student in his
4 class who appears to be white. It's an objectively hostile
5 environment, and the compelled speech claim -- the compelled --
6 compelled speech allegations are documented again and again by
7 us.
8 I guess another point I would like to make, you know,
9 find a -- to your question of whether we should find another
10 student who's been failed for not attending a class, I would
11 just like to say that maybe the question should be find another
12 student who's been failed for a class after raising principled
13 civil rights objections, which the Clarks did early on, even
14 without an attorney. Maybe that's the operative question. And
15 defendants are on the record as encouraging resistance to
16 school policy. That's precisely what William did. He was not
17 blowing off the course. This whole time the Clarks were
18 seeking merely accommodation. They never had a problem with
19 the 60 percent of the class, which is that Change the World
20 project in principle, never had a problem with it. They
21 objected to objectively hostile environment. They asked for an
22 accommodation in the form of, say, another class, economics, a
23 class at a community college, something along those lines.
24 And, you know, that was up -- until December, that was
25 rejected, so. . . I mean, the accommodation -- we're not trying

43
1 to rewrite the curriculum here. Plaintiffs were seeking
2 accommodation and William -- and the remedy sought now, if
3 delayed any further, is essentially a remedy and relief denied.
4 If William does succeed in getting this change -- this grade
5 removed in June, it's too late. His applications have already
6 gone out and he's suffered the consequences.
7 THE COURT: What specifically, in that regard, since
8 you're not asking me to award a letter grade, you're asking me
9 to remove that grade from his transcript, doesn't that leave
10 him short of credits at this stage so that he wouldn't
11 graduate?
12 MR. O'BRIEN: Well, we'll make -- we'll make it up.
13 And it's always been plaintiffs' position that we would make up
14 credits in some alternative way that doesn't involve being
15 exposed to what William was already exposed to.
16 So we'd simply like -- we'd simply ask defendants to
17 issue a report card with that grade removed so that he can then
18 submit it to colleges without a failing civics grade first
19 semester senior year. That's -- that's our -- that's what
20 we're asking for with our TRO. And then that's the most urgent
21 pressing matter.
22 THE COURT: All right. Thank you, sir.
23 Let me go off the record for just one second and check
24 with my court staff.
25 (Off-record discussion).

44
1 THE COURT: All right. This -- there's some very
2 difficult issues presented, obviously, well argued by everyone.
3 I'm going to -- since we have some apparent reporters on the
4 line, I'm going to sort of act like a reporter and give you the
5 conclusion first and then explain how I get to where I'm going.
6 I'm going to deny the motion for TRO at this point and
7 without prejudice because I think there's a need for more
8 evidence and the need for an Evidentiary Hearing, and we're
9 going to talk about that Evidentiary Hearing and the timing of
10 it after I sort of explain how I get to where I'm at today and
11 we can all think about how do we bring this to a head or to a
12 conclusion. I'm not going to issue a separate written order;
13 I'm going to put my findings on the record right now and if you
14 need something out of this, you can order the transcript and it
15 will -- it will all be there for you.
16 First off, from a legal standpoint, the plaintiffs are
17 seeking an affirmative or mandatory injunction, not just to
18 preserve the status quo, but to change the status quo by
19 changing the grade, changing the curriculum or at least the
20 course, something like that.
21 As all the lawyers know, there's a test we call the
22 Winter test for a Temporary Restraining Order or Preliminary
23 Injunction. The plaintiff must show a likelihood of success on
24 the merits, likelihood of irreparable harm in the absence of an
25 injunction, that the balance of hardships tips sharply in the

45
1 plaintiff's favor -- or tips in the plaintiff's favor, and the
2 public interest favors the entry of the injunction.
3 As I mentioned, there's a -- plaintiffs request an
4 affirmative or mandatory injunction. The standard for that is
5 even higher. Where the parties seek such a mandatory
6 injunction or requiring the other side to take some affirmative
7 action, I have to deny that request unless the facts and law
8 clearly favor the moving party. That comes from a case called
9 Garcia vs. Google, Inc., 786 F.3d 733, at 740. It's a
10 Ninth Circuit 2015 en banc case. That case also holds that a
11 mandatory injunction is disfavored and should not be granted in
12 a doubtful case.
13 So turning to the Winter elements, first, on the
14 likelihood of success, preliminarily, I have some concerns
15 about Gabrielle's standing -- and I'm going to use first names
16 just to make it easier for myself and everybody else --
17 Gabrielle's standing to assert claims of compelled speech and
18 claims under Title VI and Title IX. I'm also concerned that
19 the individual defendants are not recipients of federal funds
20 so they may not be subject to liability under Title VI and
21 Title IX. That's the individual defendants. But for purposes
22 of today's hearing, I can sidestep those issues because I am
23 comfortable that I could enter preliminary injunctive relief in
24 favor of William and against the appropriate defendants to
25 temporarily redress any of the harms I found, if I found that

46
1 it was warranted. But standing issues and things we're going
2 to have deal with in the long run on this and I'm just kind of
3 tipping the parties off, that's an issue that we'll have to
4 address.
5 So let's turn to the likelihood on the various claims.
6 Their first claim is for First Amendment Compelled Speech.
7 There's two parts to that claim. The first is that the graded
8 written identity assignments were problematic and then the
9 second part is the in-class discussions were problematic.
10 Regarding the written assignments, I think William is
11 likely to succeed on the merits in challenging those because
12 the assignments were a required part of his grade and they
13 seemed to prescribe a particular viewpoint or belief for him
14 and other students to adopt. Because they were graded, there
15 is punishment for not completing them in the form of a poor or
16 failing grade. William, it appears, was required to profess
17 beliefs and attach labels to his personal attributes which went
18 farther than simply asking him to demonstrate his understanding
19 of the curriculum. It's one thing to say here's what the
20 theory says, here's what this or that is, but to say I am
21 white, I am Christian, I am this and that means I'm an
22 oppressor feels like it goes beyond where it should go.
23 I think it's -- there's some likelihood that the
24 school seems to be prescribing particular labels for students
25 to identify themselves, and the goal of those exercises is

47
1 specifically to "unlearn" their pre-existing beliefs related to
2 their personal identities. This is similar to the concerns
3 raised in the Barnette case in forcing students to say the
4 pledge of allegiance because it is an official prescribing
5 "what shall be orthodox in politics, nationalism, religion or
6 other matters of opinion." That's from the Barnette case at
7 319 U.S. reports at Page 642.
8 I agree with the defendants and the Ninth Circuit in
9 the Monteiro case that "a necessary component of any education
10 is learning to think critically about offensive ideas. Without
11 that ability, one can do little to respond to them." I agree
12 with that statement from the Ninth Circuit. But it feels like
13 this goes beyond that standard because the coursework was
14 designed to have students what appear to be unlearn their
15 beliefs about themselves rather than learn theories of the
16 coursework and be able to identify and describe those theories.
17 Yes, I am focusing primarily on a couple of those slides. Yes,
18 I think that could change depending upon the context those are
19 presented in and thus, I think this is another area where an
20 Evidentiary Hearing may help flesh that out one way or another,
21 but I'm forced to at least rule at this point on the cold
22 record and looking at those slides without the full context.
23 But it appears from that that William is being required to
24 accept and proclaim ideas as his own for a grade.
25 Now, let me be clear, as I've tried to convey, most of

48
1 these assignments don't appear to be objectionable just because
2 they discuss dominant groups, or types of oppression or racism,
3 or characteristics in general. But at least for purposes of a
4 compelled speech analysis, it's permissible to provide students
5 with definitions like reverse racism and then test their
6 knowledge about those definitions. I don't have a problem with
7 that. The problem arises when the curriculum pointedly asks
8 for student's own personal characteristics and then seems to
9 require them to ascribe certain traits or labels to those
10 characteristics, regardless of if they agree or disagree with
11 those, and to write those identities above pre-written
12 statements about what those identities should mean for students
13 without the seeming ability to disagree. Again, I'm looking at
14 a cold record here so that may not be accurate.
15 Because the speech is likely compelled, the defendants
16 would need to justify the curriculum under a strict scrutiny
17 test, that comes from the case of Frudden vs. Pilling, 742 F.3d
18 1199, at 1207, that's a Ninth Circuit case from 2014, and
19 that's a high bar to meet and it seems difficult for these
20 exercises, at least on their face, to survive strict scrutiny.
21 But neither side reaches that question in their briefing and I
22 don't have enough information and evidence in front of me to
23 make that decision today. So I'm pointing that out to you.
24 That's at least my initial thought on this, that there's some
25 problematic -- there's some problems potentially with those

49
1 written assignments.
2 The second part of this claim relates to the in-class
3 discussions. This has similar problems as the written
4 assignments in terms of the content requiring a profession of
5 belief. The question here is whether it's compelled, and
6 that's not clear to me right now regarding the in-class
7 discussions. One side -- one slide says that you don't have to
8 share and you should only do so if you're comfortable, but part
9 of the curriculum manual says that class participation is
10 valued and it's part of the grade. Even taking into account
11 peer pressure, it's hard to assess when it is occurring in an
12 online situation. But as the record exists now in front of me,
13 I cannot find that in-class participation was compelled, but
14 again, that may change at an Evidentiary Hearing.
15 The next claim is retaliation, and the plaintiffs
16 argue here that the defendants retaliated against William by
17 giving him a D- grade and threatening he would not graduate if
18 he didn't complete the class. And they assert retaliation
19 claims under both the First Amendment and under Title VI, so
20 I'll take those separately.
21 First, on the First Amendment retaliation claim,
22 William's complaints and refusal to complete the labeling
23 assignments are likely protected activities, but his outright
24 departure from the remainder of the class may not be. Here,
25 I'm motivated by the case of Pinard vs. Clatskanie School

50
1 Dist., 467 F.3d 755, at 764, a Ninth Circuit case from 2006.
2 The problem I have is I don't know enough about why William
3 chose to sit out the rest of the term as opposed to picking and
4 choosing because these were oppressive and maybe some of the
5 other portions weren't and whether the material for the rest of
6 the term was very similar to the assignments that he objected
7 to. We have sort of secondhand information Mr. O'Brien
8 referred to that William heard from other students that this
9 was going on. Again, I need more information on that. And the
10 timing of William's first complaint and what was discussed in
11 the parties' various Zoom calls is unclear. And again, for
12 retaliation we have to focus first on what is the protected
13 activity, which events are in place that the retaliation
14 relates to, and that's -- I have some lack of clarity on those
15 events.
16 At this point, it's likely that at least William's
17 refusal to complete the specific exercises, those written
18 assignments, is probably constitutionally protected activity
19 that could form the basis for a retaliation claim. It's a bit
20 of a close call in my mind whether the school's actions would
21 chill a person of ordinary firmness. The school offered
22 several things to help William out of his situation by
23 encouraging him to feel safe, assuring him that his opinions
24 are valued, the school offered for him to select a mentor
25 teacher he trusted to collaborate with Ms. Bass to try and

51
1 potentially work through some of these issues. Those
2 discussions appear to have occurred over a month or more.
3 That, to me, does not seem like retaliation.
4 On the other hand, given the way an ordinary student
5 would react to a failing grade and the possibility of not
6 graduating in their senior year, especially at the end of it,
7 it seems likely that the plaintiffs have established that it
8 would chill a person of ordinary firmness.
9 But William also must show a retaliatory motive by the
10 defendants, and I don't believe he's met that burden at this
11 element. Based on the record in front of me, I find at this
12 point that William did not receive a failing grade because he
13 objected to the labeling exercise or believed that the class
14 was racist. Rather, it appears he's failing or failed the
15 class because he completely left it for the rest of the term.
16 His evidence of substantial motivation is weak at this point.
17 He's not presented sufficient evidence supporting a conclusion
18 that faculty members and administrators at the school not only
19 disagreed with his expressed views, but also sought to punish
20 and muzzle him in retaliation for his expression of those
21 views -- those views. I don't think he's shown that. That
22 comes from the O'Brien case, 818 F.3d at Page 935. The O'Brien
23 court also noted that the First Amendment does not give a free
24 pass to students who violate university rules simply because
25 they can plausibly show that faculty or administrators

52
1 disapprove of their political views.
2 Because William has not satisfied this third element
3 of this claim, I don't think he's likely to succeed on the
4 merits of this particular claim.
5 There's also a Title VI retaliation claim. Let me
6 turn to that. It's somewhat similar to the First Amendment
7 analysis but not identical. There are factual questions, I
8 think, that have to be resolved before I could find that
9 William is likely to prevail on that claim. Again, it's
10 unclear exactly which of William's actions qualify as
11 protected. Regardless, at this point, I cannot find that he's
12 likely to prevail on the merits of this claim. The school has
13 offered a legitimate non-retaliatory reason for their actions,
14 and the plaintiffs have not shown that the school's reason is
15 pretextual. Given the conclusion in the First Amendment
16 retaliation analysis, that the protected activity was not a
17 substantial motivating factor for the failing grade, William
18 similarly has not established that a discriminatory reason more
19 likely motivated the school here, nor has he shown that the
20 school's explanation is unworthy of credence.
21 So I don't find on this claim that there's a worthy
22 basis for an injunction based on that claim at this point.
23 The next claim is Title VI and Title IX Race and
24 Gender Discrimination. William claims here that the defendants
25 violated those two statutes which prohibit race and sex

53
1 discrimination by recipients of federal funds. The claim
2 appears to be based on three theories: First, that the
3 curriculum is discriminatory by labeling certain races and
4 genders as oppressors and wrong or unjust; second, that the
5 curriculum created a hostile education environment for William
6 as a white-passing male; and third, that by refusing to grant
7 William's grade, they discriminated against him -- I'm sorry,
8 by refusing to grant him a passing grade and to adjust the
9 grade that he has right now, they have discriminated against
10 him because they refuse to accommodate him as they had done for
11 other students. That's the disparate treatment allegation.
12 Turning first to the curriculum portion of this, based
13 on the Ninth Circuit's decision in Monteiro that I talked about
14 a few minutes ago, I can't find at this point that William
15 would prevail on this point about the curriculum. In that
16 Monteiro case the Ninth Circuit asked: "may courts ban books or
17 other literary works from school curricula on the basis of
18 their content? We answer that question in the negative, even
19 when the works are accused of being racist in whole or in
20 part." That's what the Monteiro court said. The court based
21 its decision on the First Amendment implications of allowing
22 challenges to curriculum, that requiring a student to read a
23 book does not mean that he or she is being asked to agree with
24 its contents, that the students need to learn how to think
25 critically about offensive ideas, and that judgments about

54
1 curricula are ordinarily best left to school boards and
2 education officials.
3 Now, the Monteiro court did, however, add an
4 admonition that it would not bar a case alleging that schools
5 have pursued policies that serve to promote racist attitudes
6 among their students, or have sought to indoctrinate their
7 young charges with racist concepts. So, there is some room for
8 William to assert a claim under Monteiro if a reasonable jury
9 could find that the Sociology of Change course materials
10 promote racist attitudes or indoctrinate the principles that
11 white males are oppressors, wrong, or unjust. And there is
12 some evidence that the materials could be interpreted as the
13 school trying to indoctrinate students with certain viewpoints,
14 rather than presenting objective viewpoints from which the
15 students can choose to anticipate or reject and at least
16 demonstrate a knowledge of the theories. But at this stage, as
17 I've said before, I don't have enough evidence in front of me
18 about the assignments and the classroom activities and the
19 context of these slides and how they were presented and
20 discussed to find at least at this stage that he's likely to
21 succeed on that claim. That may change after an Evidentiary
22 Hearing, but at this stage, I can't find that.
23 The second portion of this claim is that of a hostile
24 education environment. The plaintiffs have shown that
25 Mr. Johnson had power to correct the problem and had actual

55
1 knowledge of the plaintiffs' complaints. However, the
2 plaintiffs have not shown that the facts clearly favor a
3 likelihood of success to support a mandatory injunction because
4 of the promptness and seeming reasonableness of the defendants'
5 response. Johnson reached out to the plaintiffs immediately
6 after William first indicated that he would not attend the
7 class. Johnson held a meeting the next day. Johnson reviewed
8 the course materials but decided the course would remain
9 mandatory and explained why to the plaintiffs, and he
10 communicated with the plaintiffs about their concerns many
11 times over several months.
12 In addition, the facts do not clearly favor a
13 likelihood of showing that Johnson's response was deliberately
14 indifferent and the facts do not clearly favor a likelihood of
15 showing racially and sexually hostile environment. At this
16 stage, I just don't have enough evidence to find that he's
17 likely to succeed on that claim. Again, as we've all sort of
18 acknowledged, some of these claims are very contextual and
19 factual and I just don't have enough of that information and
20 evidence in front of me at this point. But what I do have at
21 least at this point is that Johnson at least appeared to take
22 reasonable responses and they don't necessarily appear to be
23 deliberately indifferent to William's concerns.
24 The last portion of this claim is the disparate
25 treatment claim. The plaintiffs contend that the reason the

56
1 defendants will not alter the grade is because of William's
2 race, but they do not offer sufficient evidence at this point
3 to support that claim. As for the specific examples of
4 accommodations that Bentheim identifies in her declaration,
5 there's no evidence of the race of the accommodated students
6 and there's little factual information about why the students'
7 grades were adjusted. There's no evidence that these students,
8 like William, refused to attend the entire time or the rest of
9 the trimester, or that they refused to complete any additional
10 assignments. So the plaintiffs have not clearly shown that
11 similarly situated students outside of William's race were
12 treated more favorably that would support a mandatory
13 injunction of expunging the grade and allowing a different
14 course to make up those credits.
15 That's the first part of the Winter test. The next
16 part is irreparable harm. I have to look at those also.
17 William, I think, has identified a likelihood of
18 irreparable harm. A failing grade on a required course may
19 impact college's decisions on whether to admit him, so I think
20 William has shown that, but Gabrielle has not argued or shown a
21 likelihood of irreparable harm on her behalf at this stage.
22 I'm not foreclosing it, but I don't have that record to support
23 a finding of irreparable harm for her.
24 I next turn to the balance of hardships, and here it's
25 a close question, but I think it waives -- it weighs in

57
1 William's favor, at least in terms of trying to find a
2 temporary solution for having the failing grade not appear on
3 this transcript. William is trying to gain admission to
4 college, which may affect his future prospects for making a
5 living and pursuing his career choices. It may be possible to
6 craft some narrow preliminary relief to offset some of those
7 harms and balance out the hardships.
8 But, even if I find that the written assignments were
9 compelled speech -- which is the area I talked about earlier
10 was the closest I'm getting at least today -- even if I address
11 that, it does not appear that a mandatory injunction now on
12 that narrow issue would do any good on this point because even
13 if I order them to give him an A, or expunge the portion
14 related to the written assignments, that would not do any good
15 because he apparently would still be failing the overall course
16 because he skipped the rest of the classes and assignments.
17 So, at this point, a narrow injunction on that particular issue
18 would not redress his overall problem. So even if I found
19 likelihood of success on that narrow claim, the relief today
20 wouldn't get us there. And for that, I rely upon the case of
21 Lujan vs Defs. of Wildlife, it's 504 U.S. 555, at 561, a 1992
22 Supreme Court case where the court said, "It must be a likely
23 as opposed to merely speculative that the injury will be
24 redressed by a favorable decision."
25 The last Winter factor is public interest. This, too,

58
1 is a close question and I think it cuts both ways. To the
2 extent that William may prevail on his First Amendment
3 compelled speech claim, the public interest certainly would
4 favor upholding First Amendment rights. But schools also have
5 an interest in developing curricula and ensuring students meet
6 their minimum requirements for graduation. So there certainly
7 are public interest issues on both sides of this question.
8 Circling back to the beginning then, my ultimate
9 conclusion is that I will not enter an injunction today because
10 the plaintiffs have not met their burden of showing a
11 likelihood of success on the merits of their claim, especially
12 with the higher burden of a mandatory injunction. However, as
13 I've tried to convey to the parties for the last 20 minutes,
14 that could change after an Evidentiary Hearing. There are
15 several factual questions that could impact my decision.
16 So, I can schedule an Evidentiary Hearing on all this.
17 Given the short time span of this case because of the timing
18 for graduations, the timing for applications and everything
19 else, we need to do this quick. One option is to combine the
20 injunction Evidentiary Hearing with a trial on the merits. The
21 federal rules allow that. I want the parties to consider that.
22 I also want you to consider a mediation session or
23 a -- or a Settlement Conference, either with one of our
24 magistrate judges or with a private mediator to address both
25 the short-term and the long-term solutions. There are several.

59
1 Now I want to talk to the lawyers directly and the
2 clients, I want you all to put the clients -- by that I mean
3 the plaintiffs, Gabrielle and William, and the schools -- I
4 want you to put their interests first, not the lawyers'
5 interest in making headlines and having press conferences or
6 billing hours to clients and making money. Believe me, I am
7 not accusing anybody of that. I think the lawyers have done a
8 great job on this case so far, but there are serious issues
9 here and a lot of harm can be done to William, to Gabrielle,
10 and to the schools and the teachers and the reputation that
11 they have. You all have a lot to lose and creative minds, like
12 these lawyers we have here, who I do believe have creative
13 minds, should be able to come up with some solutions, both
14 short term and long term.
15 Let me show out a few for you all to consider. I'm
16 not saying you have to do this, and I cannot get involved in
17 resolving these issues unless you -- unless I recuse myself
18 from the case, which I'm not inclined to do at this stage. I'm
19 too heavily invested in it, but as the ultimate judge that will
20 sit over a trial, I cannot get involved in your settlement
21 discussions, but I want you to consider a mediation session.
22 I think there may be possibilities, at least in the
23 short term so that William can get his transcript submitted, at
24 least. I don't know, can you change the grade at this point to
25 IP, in progress, or in process, or incomplete. I think that's

60
1 kind of a common way for colleges to use as a placeholder grade
2 at the end of the semester before it's converted into a final
3 grade. You all know better than I whether that would have some
4 kind of stigma, but I would think if it's in progress the
5 colleges aren't going to worry about it. I don't know that
6 Democracy Prep has done that in the past, but, again, see if we
7 can't get creative so that we don't prejudice William's ability
8 to get into a school because obviously, the better school he
9 gets into, the better Democracy Prep looks. So there's
10 self-interest on both sides to help this young man succeed.
11 You all know that. I know I'm preaching to the choir on that.
12 You can consider removing the course from the
13 transcript so no grade shows at all. As Mr. O'Brien suggested,
14 as long as there's a way to somehow get some of the credit by
15 an independent study or something else that my allow him to do
16 that, or leave the grade there but somehow note on the
17 transcript that it's being challenged or disputed. Don't know
18 if that helps or not.
19 I presume you can all come up with a number of other
20 short-term solutions. Perhaps a mediator can help craft some
21 things as well, but I want you all to consider those
22 immediately and see if we can't get some resolution to these
23 issues. And again, it's sort of a short-term and a long-term
24 problem. Short term is between now and the time we have an
25 Evidentiary Hearing, since we need to get these applications

61
1 out for William, and long term is an ultimate resolution of the
2 case.
3 Enough speechifying from me. Let's get down to brass
4 tacks. I want you all to think about whether you want to
5 combine the trial on the merits with the injunction hearing.
6 You need to speak with your clients about that and you need to
7 speak with each other about that. And I need to hear from you
8 to determine how we schedule that.
9 I have a very busy docket. I've got a lot of criminal
10 cases that have to take priority over civil cases, but where
11 there's a will there's a way.
12 I don't know if this is a Jury Trial. I, frankly,
13 haven't looked if there's been a Jury Trial request. It's
14 difficult to schedule Jury Trials in the era of COVID, but
15 we're doing it, and I've done it. If it's a Bench Trial, it's
16 easier to do. If it's just an Evidentiary Hearing, we can
17 conduct it like this Temporary Restraining Order hearing but
18 with witnesses and evidence and I can book out a day or two or
19 a half a day here and half a day there and work around
20 William's school schedule, work around people's teaching and
21 other schedules. I know we've got a lot of educators and
22 Ms. Clark's got a job and everybody's got things to do, so I
23 can work around your schedules. But I would need to know how
24 long that hearing's going to last, how many witnesses you're
25 going to put on, how long the testimony is going to take, and

62
1 whether you need to do any expedited discovery to help you
2 prepare for an Evidentiary Hearing like that. And that's where
3 you get into the -- Hobson's Choice isn't the right term and
4 neither is Sophie's Choice but it gets into the issue of the
5 more discovery you do, the later it is to get a decision and
6 that drags out William's predicament so you all have to figure
7 out how to balance how much information you need for an
8 injunction hearing, if we're just going to do an Evidentiary
9 Hearing, or if we're going to do a trial on the merits, that
10 may take more. Or we go back to Old School and you roll the
11 dice and it's trial by ambush. So there's a lot of options
12 here for you all to think about, and they are very important
13 issues to think about and so I want to you think, instead of
14 just answering right away.
15 My inclination would be to schedule a Status
16 Conference sometime pretty quick to give you all enough time to
17 digest what I've spoken about today, to give you an idea to --
18 and some time to digest my thoughts, to speak to your clients,
19 and then to speak to each other and then get back with me and
20 we can have a Zoom Status Conference to discuss where we go
21 forward.
22 I'm all ears for however you want to do this, but
23 that's where I'm at right now.
24 So, let me turn to Mr. O'Brien, since you're the
25 plaintiff, initial thoughts, concerns, questions?

63
1 MR. HARDY: Your Honor, can I ask a couple questions
2 real quick? I represent the plaintiff too.
3 THE COURT: Sure. Mr. Hardy.
4 MR. HARDY: First of all, with respect to the
5 recommendation for a Settlement Conference before potentially
6 a -- one of the magistrate judges, are you aware of the
7 magistrate judges' schedules, whether they have some
8 availability in the next week or two or whatever the -- are you
9 aware or have you looked into that at all?
10 THE COURT: I -- I have not, but I will squeeze as
11 hard as I can to find some time with someone. I'll do my best,
12 and I know that our magistrate judges are dedicated to justice
13 and I'm optimistic I can get someone to agree. You might not
14 be able to -- you won't be able to hand pick and probably I
15 can't either, but I'll do the best I can.
16 MR. HARDY: And we appreciate, obviously, the great
17 magistrate judges we have in this district and so hopefully we
18 can get one of them to work with us if that's something we
19 decide. I'm just -- I'm asking these questions so that way we
20 have that information as we kind of make these decisions,
21 so. . .
22 THE COURT: Absolutely.
23 MR. HARDY: The second question, I think, that I had
24 was with respect to your decision today. This is not a decis-
25 -- is this a decision that you're making today to deny the

64
1 motion, because that would trigger certain appeal rights, or is
2 this giving an inclination of how you would intend to rule
3 following an Evidentiary Hearing and then we don't have any
4 appeal rights?
5 THE COURT: There are two motions pending. There's a
6 Motion for Temporary Restraining Order and a Motion for
7 Preliminary Injunction. I know Mr. Hardy knows that but for
8 those out of the district, you have to file as two different
9 documents because you're seeking two different forms of relief.
10 I'm denying the motion for Temporary Restraining Order.
11 Theoretically, it's one document but it's filed twice. If that
12 helps you with your appellate position, I'm fine with you
13 taking it up to a Ninth Circuit on a writ or an interlocutory
14 appeal. I want to give you as much opportunity as you need to
15 have. I'm denying the request for a Temporary Restraining
16 Order. I have not addressed the Motion for Preliminary
17 Injunction. That's what I would think would be heard at the
18 Evidentiary Hearing.
19 (Simultaneous crosstalk).
20 THE COURT: You can play it both ways if you need to
21 and I'm not going to --
22 MR. HARDY: You know they each trigger deadlines that
23 we're going to have to start looking at as we start putting the
24 schedule down on paper, so I wanted to make sure I understood
25 that.

65
1 THE COURT: And to the extent that the parties want to
2 stipulate to toll, you know, appellate rights so you don't lose
3 those, I don't know that that would be an issue because you
4 could still appeal the injunction decision if you're worried
5 about timing, but I'll leave you all to talk about that.
6 MR. HARDY: Okay. I -- those are just a couple of
7 procedural issues that I wanted to make sure to address. As
8 local counsel, we're responsible for those things as you can
9 imagine, so, if John has other things he'd like to address with
10 you, go ahead, Mr. O'Brien.
11 THE COURT: You're still muted.
12 MR. O'BRIEN: Judge, just one question on the first
13 compelled speech argument, was your decision that you didn't
14 have enough evidence yet to determine we were likely to succeed
15 on the merits? All right. And that was the decision pretty
16 much across the board, everything required an Evidentiary
17 Hearing?
18 THE COURT: Yeah, it does. And in all candor, that's
19 the closest I get to granting your relief is the compelled
20 speech at this stage.
21 MR. O'BRIEN: Okay.
22 THE COURT: Not to say that I wouldn't change my mind
23 against you or that I wouldn't change my mind in favor of you
24 on the others, but that's the closest one I get.
25 MR. O'BRIEN: Could I just get a brief clarification.

66
1 What evidence -- just so I can do my work, what evidence were
2 you looking for that wasn't supplied with respect to the
3 compelled speech?
4 THE COURT: Mostly, I think, it's like you're saying,
5 it's contextual, it's factual. The slides, those couple slides
6 that you and I focused on, you know, obviously look bad. The
7 defendants argue that you can't just take those two out of
8 context, you have to look at the entire thing and I think if --
9 if the -- if the school comes in and says, you know, these are
10 just two slides to prompt discussion and we've had discussion
11 about these forever and ever and this has never been a
12 problem -- I'm just guessing here -- that might change my mind
13 against your side. On the other hand, if, you know, I get some
14 notion from your client, live testimony that, you know, this
15 was really problematic -- I don't know, I'm sort of guessing
16 here, it's hard for me to tell you what more information I need
17 but I guess I would say it's I need the context, I need how it
18 was presented, I need to know what was -- could he truly remain
19 silent and not participate in that class and what would have
20 been the ramifications. Those are some other issues I'd be
21 concerned about.
22 MR. O'BRIEN: Okay. Well, I'll confer with my clients
23 and I will also reach out to, you know, opposing counsel as
24 we've been doing, but, you know, we're also going to explore
25 the appellate route and also combining an Evidentiary Hearing

67
1 with the trial on the merits, so, I'm just going to talk to
2 all -- all parties involved there.
3 THE COURT: Great. And after I hear from the defense
4 side, think about how much time you need to do that and when I
5 should schedule a follow-up Status Conference for everybody to
6 get back with me and tell me where you're at and what I could
7 do is set a date and if you're still talking we can move that
8 date so. . .
9 MR. HARDY: Would it be helpful, Your Honor, if we
10 gave you some times that we have perhaps next week or something
11 like that so that way we can push everybody together? I don't
12 know what your schedule looks like, but obviously you're busy
13 so we want to try to accommodate you.
14 THE COURT: It's probably better for me to give you my
15 availability and you can work around that, but let me first
16 hear from the defense counsel, any comments or questions or
17 issues you want to raise with me before we get to scheduling?
18 MS. HENDRICKS: Yes, Judge Gordon, I was curious, in
19 our COVID world, what an Evidentiary Hearing is going to look
20 like, if that would be in person or if it would also be via
21 Zoom? Because that may affect the timing and how long things
22 will last as well.
23 THE COURT: The preference is to do that by Zoom just
24 to keep everyone safe. We have had trials, Jury Trials and
25 I've had Evidentiary Hearings in person here in the courthouse.

68
1 We have two courtrooms outfitted with Plexiglas for Jury Trials
2 and around counsel table and the like so if we have to do it in
3 person, there are protections available, but the preference is
4 to do it by Zoom just to preserve and protect everyone. And
5 given that we've got out-of-state counsel, I know it's more
6 difficult to travel in this day and age with COVID, so my
7 preference is to do it by video.
8 MS. HENDRICKS: Thank you.
9 THE COURT: You're welcome.
10 MS. HENDRICKS: And I don't know if my co-counsel has
11 any other questions. I think getting your availability and
12 possibly scheduling a follow-up call next week is a good idea
13 to give us time to go back and talk to our clients and talk
14 through the issues that you've raised today.
15 THE COURT: Okay.
16 MR. ADEGBILE: Agree.
17 THE COURT: All right. Let's just go off the record
18 for a second and talk scheduling so that way Heather doesn't
19 have to type all this up.
20 So, off the record, Heather.
21 (Off-record discussion).
22 THE COURT: Just to bring the record current, I had a
23 discussion with counsel off the record about scheduling. I
24 have set a Status Conference for Friday, March 3rd, at 1:30 in
25 the afternoon for the parties to report to me on the issues

69
1 we've discussed near the end of this hearing about mediation,
2 about scheduling an Evidentiary Hearing, about consolidating
3 with the trial on the merits, and any other issues that I and
4 my colleagues can do to help resolve this matter. If the
5 parties are able to reach complete agreement, they can submit a
6 stipulation and I would probably sign off on that and cancel
7 that Status Conference if we can all reach some dates and
8 things they're comfortable with. If the parties prefer to just
9 simply go straight to mediation and they're in agreement,
10 simply let my courtroom administrator know that and I'll try to
11 start working to arrange something for you on an expedited
12 basis if I can. But as of now, we'll have the next hearing
13 Friday, March 5th, at 1:30 subject to cancelation or movement.
14 If the parties want to delay it because they've having
15 progressive talks on their own without me, I'm happy to move
16 that beyond that as well.
17 All right. Anything else I can do, address for the
18 parties?
19 Mr. O'Brien?
20 MR. O'BRIEN: No. That's it.
21 THE COURT: Mr. Hardy?
22 MR. HARDY: No. We're good. Thank you, Your Honor.
23 THE COURT: Ms. Hendricks?
24 MS. HENDRICKS: I'm fine with that, Your Honor. Thank
25 you very much.

70
1 THE COURT: Mr. Herrick?
2 MR. HERRICK: Nope. Thank you very much, Your Honor.
3 THE COURT: And I apologize in advance, Mr. Adegbile?
4 Adegbile?
5 MR. ADEGBILE: Nothing further, Your Honor.
6 THE COURT: All right. With that then, thank you all
7 for your patience. Well argued; well briefed. And like I
8 said, if there's anything I can do to help you get this matter
9 resolved, let me know. Otherwise, we will be in recess.
10 Stay safe, everyone, and continue to wear your masks.
11 Thank you.
12 (Proceedings adjourned at 4:03 p.m.)
13
14 --oOo--
15 COURT REPORTER'S CERTIFICATE
16
17 I, Heather K. Newman, Official Court Reporter, United
18 States District Court, District of Nevada, Las Vegas, Nevada,
19 do hereby certify that pursuant to Section 753, Title 28,
20 United States Code, the foregoing is a true, complete, and
21 correct transcript of the proceedings had in connection with
22 the above-entitled matter.
23
24 DATED: 2-27-2021 _/s/ Heather K. Newman

Heather K. Newman, CCR #774
25 OFFICIAL FEDERAL REPORTER

Gabrielle Clark v. Nevada State Public Charter School Authority

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Gabrielle Clark v. Nevada State Public Charter School Authority

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1

2:20-cv-2324-APG-VCF - February 25, 2021

1 UNITED STATES DISTRICT COURT

4 GABRIELLE CLARK, et al., ) Case No. 2:20-cv-2324-APG-VCF

11 REPORTER'S TRANSCRIPT OF PROCEEDINGS

12 BEFORE THE HONORABLE ANDREW P. GORDON,

16 For the Plaintiffs:

17 MARQUIS AURBACH COFFING

20 (Appearances continued on Page 2)

22 Heather K. Newman, RPR, RMR, CRR, CCR #774

25 Proceedings reported by machine shorthand; transcript produced

HEATHER K. NEWMAN, RMR, CRR, CCR #774

2 For the Plaintiffs:

3 LAW OFFICE OF JONATHAN O'BRIEN

6 For the Defendant State Public Charter School Authority:

7 STATE PUBLIC CHARTER SCHOOL AUTHORITY

10 For the Democracy Prep Defendants:

11 GREENBERG TRAURIG LLP

14 WILMER CUTLER PICKERING HALE AND DORR LLP

HEATHER K. NEWMAN, RMR, CRR, CCR #774

1 LAS VEGAS, NEVADA; THURSDAY, FEBRUARY 25, 2021; 2:07 P.M.

4 COURTROOM ADMINISTRATOR: Gabrielle Clark, et al. vs.

5 State Public Charter School Authority, et al.,

6 2:20-cv-2324-APG-VCF. This is the time set for plaintiffs'

7 Motion for Temporary Restraining Order.

8 Counsel, please make your appearances, starting with

10 MR. O'BRIEN: John O'Brien for William Clark and

12 MR. HARDY: Brian Hardy with the law firm of

13 Marquis Aurbach Coffing.

14 THE COURT: Good afternoon to both of you.

17 THE COURT: One at a time. Mr. Herrick.

18 MR. HERRICK: Ryan Herrick on behalf of the Charter

19 School Authority, and with me is Rebecca Feiden, the Executive

20 Director of the Charter School Authority.

21 THE COURT: Good afternoon.

22 MS. HENDRICKS: All right. Good afternoon,

23 Kara Hendricks on behalf of the Democracy Prep parties which,

24 for the record, are Democracy Prep Public Schools, Democracy

25 Prep Agassi Campus, Democracy Prep Nevada, Democracy -- the --

HEATHER K. NEWMAN, RMR, CRR, CCR #774

1 sorry. We've got a whole list here, the Board of Democracy

2 Prep at Agassi Campus, Natasha Trivers, Adam Johnson,

3 Kathryn Bass, Joseph Morgan, and Kimberly Wall. Also appearing

4 today on behalf of the same defendants is Debo Adegbile who

5 will be making our arguments today, and our client

6 representative is Adam Johnson.

7 THE COURT: Good afternoon to all of you.

8 Before we start, let me remind everyone that's on this

9 videoconference that recording, taping, streaming, or otherwise

10 broadcasting federal district court hearings is expressly

11 prohibited by our court's General Order No. 2017-02 and by

12 Judicial Conference policy. So if you are recording, taping,

13 streaming, or otherwise broadcasting this proceeding, stop

14 immediately or you could be subject to prosecution or contempt

15 penalties. So everyone's please on notice not to be recording

16 this in any fashion.

17 Also, if you are not a lawyer who will be speaking

18 this morning -- this afternoon, please mute your microphone and

20 and we'll have good access to everyone's statements.

21 We have noticed, over time, that with these Zoom

22 proceedings, if two people are speaking at the same time, the

23 audio tends to cut out, so please wait until the person is --

25 everybody is well heard.

HEATHER K. NEWMAN, RMR, CRR, CCR #774

1 If at any time today you can't hear me or you -- or

3 make some kind of visual signal to get my attention and we'll

4 correct the problem.