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Lexington school district denies teacher assaulted student over not observing Pledge

Barnwell family (copy)

From left, Marissa Barnwell, her parents Fynale Barnwell and Shavell Barnwell, and their lawyer Tyler Bailey at a March 9 press conference. The Lexington One school district filed a response to the parents' lawsuit on March 15. Provided/Bailey Law Firm

LEXINGTON — Lexington County School District One says one of its teachers did not assault a River Bluff High School student over her refusal to say the Pledge of Allegiance, denying claims from the student’s parents in a Feb. 13 lawsuit.

That lawsuit said Lexington One, its Superintendent Gerrita Postlewait, River Bluff Principal Jacob Smith, River Bluff teacher Nicole Livingstone and the S.C. Department of Education violated 15-year-old Marissa Barnwell’s constitutional rights, alleging that Livingstone pushed Barnwell, who is Black, against a hallway wall after she didn’t stop to recognize the Pledge in November.

In a March 15 motion asking the federal district court to dismiss the parents’ suit, the district’s attorney David Lyon wrote that based on the initial suit’s complaint, Livingstone encountered Barnwell during the school’s moment of silence, not during the Pledge of Allegiance.

The district’s filing also says the initial complaint didn't allege that Barnwell was made to say the Pledge, salute the flag or stay silent during the Pledge or moment of silence, or that she “received any discipline” after the incident.

According to the district’s response, the narrative laid out in the initial complaint fails to state a First Amendment, equal protection or due process claim.

"There is no allegation that the Student was made to violate her sincerely held beliefs, nor that she received any punishment," the district's filing says.

It also asserts that schools can legally require students to observe a moment of silence. 

“The only logical reading of the Complaint is that Defendant Livingston stopped the student in the hall after the Pledge had ended and during ‘the call to remain standing for the moment of silence,’” the response reads, adding that “a mandatory moment of silence has been held to be constitutional…thus, there would be no prohibition on the School requiring students to stop doing whatever they are doing, including walking down the hall, and to remain silent during the Moment of Silence.”

A footnote in the district's response says that Livingstone "will admit to putting her hand on the Student’s shoulder to get the Student’s attention,” but denies pushing Barnwell.

"Regardless of the exact nature of the touching that occurred in this case, Defendants assert it does not give rise to the causes of action alleged in this Complaint," the response reads.

The initial lawsuit against the district says that Livingstone started yelling at Barnwell to stop walking and pushed her against a wall, before taking her to the principal’s office. 

In a March 16 statement, district spokeswoman Libby Roof said the district's employee, an instructional aide, was placed on administrative leave until the district finished its investigation, which included multiple camera angles which were reviewed by the parents, their attorney and law enforcement.

Livingstone's administrative leave lasted for about two weeks, Roof said. 

The statement also said that "the student and employees involved are receiving extremely hateful communication," which district leaders "condemn." 

"Unfortunately, there will be times when a family will not be satisfied with the district’s response, and we regret when that happens and attempt to resolve issues in a manner satisfactory to all parties involved," the statement said. 

Tyler Bailey, the Barnwell family's attorney, sent a letter to Attorney General Alan Wilson asking him to open a criminal investigation into the incident, according to a March 15 statement from Bailey's law firm.

A spokesman for the Attorney General's office did not respond to a request for comment about that letter March 16.

Bailey's letter to Wilson says that the Lexington Police Department refused to bring any criminal charges related to the incident, which he described as a "horrendous assault."

Police department spokesman Cameron Mortenson said that after conducting interviews and reviewing video, the department's criminal investigation division "determined that there was not probable cause for an arrest."

"They didn't see an assault on video," Mortenson said. "The teacher stops the student, but there isn't any type of assault."

The district’s response also says that while the initial complaint asserts Barnwell suffered physical and emotional pain from the incident, it doesn't describe any physical injury, and adds that state law “does not allow a plaintiff to recover for intentional infliction of emotional distress.”

A separate March 10 filing by the S.C. Department of Education also asks for the lawsuit to be dismissed, saying that none of the department's employees were involved in the incident.

“There is simply nothing alleged factually against the Defendant Department that indicates that any agent or employee of the Department played any role in the event subject of the Plaintiffs’ claim or its aftermath,” the department’s filing reads.

Both the department and the district also argue that they're immune from the lawsuit because of the U.S. Constitution’s Eleventh Amendment, which the department says “prohibits federal courts from exercising jurisdiction over suits asserted against a state by its own citizens or by citizens of another state.”

That immunity also applies to Lexington One and its employees, the district’s filing says, because state laws establish "pervasive control" over school districts and their employees, and since the individual defendants were acting in the scope of their employment by the district.

Reach Ian Grenier at or 803-968-1951. Follow him on Twitter@IanGrenier1. 

K-12 Education Reporter

Ian Grenier covers K-12 education in the Columbia area. Originally from Charleston, he studied history and political science at USC and reported for the Victoria Advocate in South Texas before joining the Post and Courier.

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