A Terre Haute woman has filed a federal lawsuit alleging that the Fuqua Elementary principal and a teacher violated her 8-year-old son’s First Amendment rights by forcing him to say the Pledge of Allegiance against his will.

The lawsuit on behalf of the child was filed Friday in U.S. District Court in Terre Haute, and the ACLU of Indiana is representing the family.

The woman, Jamie Porter, and her son are requesting a jury trial and are seeking compensatory and punitive damages, as well as attorney fees.

The suit names Fuqua principal Mary Beth Harris and teacher Kelly McFarland, both in their individual capacities. The suit does not name the Vigo County School Corp.

According to the lawsuit, “The law is clear that the government may not compel anyone, including public school students, to recite the Pledge of Allegiance or to stand when it is delivered.”

However, when 7-year-old A.B. asserted his right to remain seated and quiet, McFarland removed him and escorted him to the principal’s office, the lawsuit says.

“He was later required by Harris to recite the Pledge with her. This is a flagrant denial of A.B.’s rights under the First Amendment and he requests his damages, both compensatory and punitive,” the lawsuit says.

The school district’s attorney, Jonathan Mayes of Bose, McKinney and Evans, said in response, “The school corporation is reviewing the complaint with its counsel and has no comment at this time.”

A.B., now 8, was 7 years old when the incident happened. He was a first-grader at the school.

In March, he chose not to stand for his class’s daily recitation of the Pledge; he sat quietly and was not disruptive, according to the lawsuit. The teacher asked him why he didn’t stand and he stated “he was doing it to protest the government of the United States, as it was racist, greedy and does not care about people,” according to the suit.

McFarland “responded by grabbing his hand and taking him to the office of the principal. ... A.B. had never been sent to the principal’s office before and was extremely upset about this as he believed he was being punished for having done something wrong.”

McFarland informed the principal that she was having “trouble” with A.B., who sat in the principal’s office for about 20 minutes then was taken back to class, the complaint says.

As lunch was ending that day, Harris approach him and in front of his class, removed him from the line and took him to another area of the school. She told him they were going to “practice” how to do the Pledge, and she made him recite the Pledge with her, the lawsuit states.

A.B. was “extremely upset at this treatment ... as he was made to feel that he had done something terribly wrong and was in trouble.”

His father died within the last year and “he is struggling with the pain of losing his father ... he is in therapy,” according to the lawsuit.

Later, in a telephone conversation, Harris told the mother “students did not have to say the Pledge, but they were required to stand for it. 

However, the principal confirmed that she had said the Pledge with A.B., but did not explain how this was consistent with her earlier statement that children were not required to recite the Pledge.”

The mother also contacted the superintendent, and she did receive an email indicating A.B. would be able, in the future, to sit silently during the Pledge.

According to the complaint, “A.B. remains extremely upset about going to school. He has always felt that he was an outsider and this, compounded by his father’s death, makes these feelings even worse. He is suffering continuing anxiety and harm because of this incident.”

Also, “A.B. complains of his stomach hurting when he has to think about going to school or when he goes to school. His mother has obtained medical attention and treatment for A.B. because of his stomach concerns.”

The suit contends, “The actions of the defendants were taken with malice or with reckless and wanton disregard of clear law that indicates that a student may sit quietly during the Pledge of Allegiance.”

Indiana law provides that school district governing bodies “shall provide a daily opportunity for students ... to voluntarily recite the Pledge of Allegiance in each classroom,” the complaint says. However, the law also provides that if the student chooses not to participate or the student’s parent chooses to have the student not participate, the student is exempt from participating.

“This statute is consistent with a wealth of case law that holds that a student may not, consistent with the First Amendment, be forced to participate in, or stand for, the recitation of the Pledge, as long as the student remains quiet and non-disruptive.”

The family is not available for an interview, said Ken Falk, legal director of the ACLU of Indiana. 

The lawsuit does not specify the amount of damages being sought. The youth has suffered “emotional and other injuries and violation of his First Amendment rights,” Falk said.

Asked why the principal and teacher are being sued in their individual capacity — and the school district is not named as a defendant — Falk said that in cases alleging violation of the Constitution, “The defendant has to be responsible in some way for the injury. There is not employer liability there like there is in tort law. Constitutional liability is fault based; we sue people we believe are at fault.”

The ACLU of Indiana has become involved in this case because “it struck us as an egregious example of a Constitutional violation,” Falk said. Also, “It’s not the first complaint from around the state of schools which apparently are not complying.” 

Sue Loughlin can be reached at 812-231-4235 or at sue.loughlin@tribstar.com Follow Sue on Twitter @TribStarSue.

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