NICOLE M.

LUNDRIGAN
nlundrigan@lundrigan-law.com TELEPHONE: (513) 813-7610

June 24, 2022

Via Email (Board@foresthills.edu) and Priority Mail

Board of Education
Forest Hills School District
7946 Beechmont Avenue
Cincinnati, Ohio 45255

Re: Legal Liability Resulting From Passage of Resolution to Create a Culture of

Kindness and Equal Opportunity for All Students and Staff (the “Resolution”)

Dear Members of the Board,

First and foremost, we are business owners and residents of this district, and the proud parents of
four students in the Forest Hills School District. We are also lawyers, and the last thing that we
want to do is sue our own school district and Board. However, we will not sit idly by while you
trample the Constitutional rights of students and teachers and destroy this school system.

Aside from being morally wrong as so eloquently stated by the National Underground Railroad
Freedom Center and the YWCA of Greater Cincinnati in their joint “Statement on the Forest Hills
School District decision to ban anti-racist curriculum and training,” the Resolution is legally
deficient. We want to very clearly state to you that the Resolution violates numerous established
legal and Constitutional rights, and will subject the Board and this school district to lawsuits and
potential legal liability. The Resolution must be rescinded immediately.

The Resolution places the school district and board in legal jeopardy, including requests for
temporary and permanent injunctive relief and potential monetary damage awards, for at least the
following reasons:

1. The Resolution subjects the school district, the Board, and the individual members of
the Board who passed it to potential legal liability under 42 U.S.C. §1983 as the
Resolution violates the First and Fourteenth Amendments to the United States
Constitution. Among other things:

a. The Resolution is vague and overbroad on its face, in violation of the First
Amendment. Ms. Jonas’ comments during the school board meeting, prior to
passage of the Resolution by Ms. Jonas, Mr. Bibb, and Ms. Hausfeld, confirms
your knowledge of this Constitutional infirmity.

Lundrigan Law Group Co., LPA ▪ TEL 513 813 7610

The Zimcom Building ▪ 1080 Nimitzview Drive, Suite 402 ▪ Cincinnati, Ohio 45230
Forest Hills School District
June 24, 2022
Page 2

b. The Resolution is race-conscious and race-based on its face, subjecting it to

strict scrutiny under the Fourteenth Amendment, which it will not pass. The
banning of “anti-racism” curriculum and training evidences an invidiously
discriminatory purpose on its face. This obviously violates clearly established
legal rights which were in existence prior to the passage of the Resolution. It
also flies in the face of multiple decades of accepted curriculum and teaching
practices across the United States, as well as long-established principles as to
what constitutes an appropriate educational environment that allows for an open
exchange of ideas and thoughts in a non-threatening environment. It has been
long-established in the United States that racism is abhorred by our
Constitution, and, despite this, the Resolution promotes racism by prohibiting
curriculum which teaches that racism is illegal, as well as morally wrong, and
has no legitimate place in any public school classroom in the United States. We
are not going to go backwards two hundred years.

c. The Resolution violates the First Amendment Rights of students established by

the United States Supreme Court in Board of Educ., Island Trees Union Free
School District No. 26 v. Pico, 457 U.S. 853 (1982) (plurality), to receive
information and ideas, a right that applies in the context of school curriculum
and design. See also Gonzalez v. Douglas, 269 F. Supp.3d 948, 972 (2017)
(striking down statute banning ethnic studies). “[T]he discretion of the States
and local school boards in matters of education must be exercised in a manner
that comports with the transcendent imperatives of the First Amendment.” Pico,
457 U.S. at 864. Government actors “may not, consistent with the spirit of the
First Amendment, contract the spectrum of available knowledge.” See id.at
866-67 (quotations omitted). This right of students to receive information is “an
inherent corollary” of the rights of free speech explicitly guaranteed by the
Constitution. Id.

d. The Resolution violates the First Amendment rights of students because it was
enacted not for legitimate pedagogical reasons, but for illicit political and
partisan reasons. See, e.g., Gonzales, 269 F.Supp.3d at 973-74 (finding that law
prohibiting ethnic studies was enacted for illicit political reasons; stated policy
of a law was pretext for a desire to advance a political agenda by capitalizing
on race-based fears). This also makes it an impermissible attempt to govern
content of school curriculum by enacting your own personal viewpoints into
regulation. Ms. Jonas and others admitted as much during the school board
meeting, prior to passage of the Resolution, whereby it was stated that the
Resolution was being enacted because four of them had run for office on an
anti-CRT platform.

e. The Resolution violates the First Amendment rights of teachers to academic

freedom.

Lundrigan Law Group Co., LPA ▪ TEL 513 813 7610▪ FAX 513 826 9335
The Zimcom Building ▪ 1080 Nimitzview Drive, Suite 402 ▪ Cincinnati, Ohio 45230
 Forest Hills School District
June 24, 2022
Page 3

f. The Resolution may (rightfully) subject the Board and District to the filing of a
grievance and related proceedings by the teachers’ union.

g. The Resolution opens a can of worms with respect to Title VII of the Civil
Rights Act of 1964 and other federal and state employment laws applicable to
the school district. How will the school district establish and enforce anti-
discrimination and anti-harassment policies necessary to assert affirmative
defenses derived from the Supreme Court’s decision in Farragher-Ellerth and
Ohio Revised Code Chapter 4112 in light of the Resolution which states the
opposite? Assuming a teacher or student would even feel comfortable reporting
discrimination in light of the Resolution, how could the school district
investigate and/or remedy discrimination in light of the Resolution? Simply
stated, the school district cannot comply with its legal obligations of non-
discrimination and equal opportunity and also comply with the Resolution.

h. The Resolution, because it is unconstitutional and illegal, is a misapplication of

public funds. Your actions to legislate your personal views into illegal
curriculum, rather than dealing with legitimate and pressing issues facing our
school district is having, and will continue to have, the effect of depleting
seriously needed funds for education and programming, as well as distracting
from the real business of continuing to ensure the excellence of Forest Hills
schools.

The foregoing are just examples of obvious legal problems with the Resolution. It is clear to us the
Board did not consult legal counsel prior to its rushed presentation and passage of the Resolution.
We urge the Board to consult with legal counsel knowledgeable in, among other things,
Constitutional law, school law, and employment law. We likewise urge the individual members of
the Board who voted for passage of this Resolution to consult with their own personal counsel.

The Resolution must be rescinded immediately. To keep in in place after being on clear notice of
the legal jeopardy it creates will only subject the school district and the Board to further liability.

Very truly yours,

Nicole M. Lundrigan W. Kelly Lundrigan

Lundrigan Law Group Co., LPA ▪ TEL 513 813 7610▪ FAX 513 826 9335
The Zimcom Building ▪ 1080 Nimitzview Drive, Suite 402 ▪ Cincinnati, Ohio 45230