Just when Fred Biery, chief judge of the Western District of Texas, thought he’d rid himself of Schultz, et al. v Medina Valley Independent School District, he issued yet another order in the case. Schultz is the highly emotional school prayer case that settled earlier this year, but not until after Biery had received death threats over his handling of the case.
Today Biery issued what he titled a “Non-Kumbaya Order,” a response to the plaintiffs’ motion to enforce a settlement agreement in the case. That settlement agreement, which Biery approved Feb. 9, contained a nondisparagement provision that states, “School District Personnel will not disparage the plaintiffs.”
Biery writes in the order that, hours after he approved the settlement, the MVISD superintendent gave a televised interview and referred to the suit as a “witch hunt” and stated “inaccurately” that the plaintiffs “wanted our teachers to stop wearing crosses.”
Biery also notes in his order that one of the directors of the high school marching band posted a Feb. 19 comment on Facebook that said, “[d]on’t get me started on the lies and false accusations your friend [referring to Corwyn Schultz] made over last years[’] issues.”
Biery writes that he does not expect “the respondents superintendent and band director to engage in a public spectacle of self-flagellation for communicating words better left unsaid.” He then gives the respondents “the opportunity” to sign the following statement within 10 days: “I apologize for statements I made, which were interpreted by plaintiffs as disparaging towards them. I will abide by the Settlement Agreement and Release entered on February 9, 2012.”
By equal measure, Biery writes that the plaintiffs “shall” sign the following statement within 10 days of receiving the apology: “Your apology is accepted. I will abide by the Settlement Agreement and Release entered on February 9, 2012.”
“If the Court’s suggestion is acted upon . . . the Court will find that any alleged contempt by respondents has been purged,” writes Biery.
And Biery imparted some final wisdom in his order: “The Court reminds the parties of the Fifth Amendment to the United States Constitution which provides in part that ‘no person shall be compelled in any criminal case to be a witness against himself.’ While it is invoked for criminal prosecutions, its underlying premise is instructive for Homo sapien relationships in general: Trouble does not come from words unspoken, particularly in this age of e-mails, tweets, cameras and recorders.”
Gregory M. Lipper, senior litigation counsel with Americans United for Separation of Church and State who represents the plaintiffs in Schultz, is pleased with the order. “We asked them to apologize and asked the judge to enforce the agreement. And we believe the judge’s order is the right result,” he says.
Craig Wood, a partner in San Antonio’s Walsh, Anderson, Gallegos, Green & Trevino who represents the defendant school district, did not immediately return a call for comment.
— John Council