CLARKSBURG – A Harrison County judge granted a preliminary injunction supporting four female middle school athletes who had been suspended after protesting against a transgender athlete.
Circuit Judge Thomas Bedell ordered a temporary injunction May 2. A hearing on the permanent injunction will take place later.
The five Lincoln Middle School student-athletes stepped out of the shot put circle without throwing April 18 at the Harrison County Middle School Championships meet. Becky Pepper-Jackson, the transgender athlete, also was competing, and the five girls were protesting Pepper-Jackson’s ability to compete following the U.S. Fourth Circuit Court of Appeals ruling allowing her to do so. Lincoln Middle School is located in Shinnston.
Pepper-Jackson
| Courtesy photo
Parents of four of the five girls who were barred from competing filed a complaint April 26 in Harrison Circuit Court against the county board of education. According to the complaint, the five girls were made to run “Indian sprints” at practice by Coach Dawn Riestenberg. And on April 24, they attended a press conference at the state Capitol where West Virginia Attorney general Patrick Morrisey announced his office is appealing the 4th Circuit decision to the U.S. Supreme Court.
On April 25, Lincoln Middle School Principal Lori Scott told one of the parents the five girls would not be permitted to compete at a meet April 27. The coach told another parent the same thing, adding the girls were “to score points for the track team.”
In their complaint, the parents of the four girls said they were being punished by the school board for “exercising their rights to freedom of speech and expression under the Constitution of West Virginia.”
The complaint also detailed the girls’ protest.
“The minor student athletes’ protests were silent,” it says. “They each stepped into the shot put circle, raised the shot put to their chins, and then stepped out of the shot put circle and handed the shot put to the official. The minor student athletes’ individual protests lasted approximately 10 seconds each and did not disrupt the track meet in any way. The minor student athletes’ protest did not affect any other competitors.
In their complaint, the parents of the four girls said they were being punished by the school board for “exercising their rights to freedom of speech and expression under the Constitution of West Virginia.”
The five girls were not allowed to compete in an April 27 meet based on the unwritten voluntary scratch rule Riestenberg testified had been in place for at least four years but not mentioned in the athletic handbook. Two of the girls testified that they didn’t know about the voluntary scratch rule.
Bedell also ruled the student-athletes can’t be punished for exercising their right to free speech at upcoming meets.
“Even though there was no malice found on either part of the defendants, the plaintiffs have met their burden and the temporary injunction has been granted,” Bedell said, according to media reports.
The school board issued a statement denying retaliation.
“The Harrison County Board of Education strongly denies any form of retaliation against the Lincoln Middle School students who voluntarily chose to scratch from an event at the Harrison County Middle School Championship Track Meet,” the board said. “The students were permitted to engage in their selected form of protest without issue. In fact, the coaches and principal were aware of the likelihood of the protests and permitted the students to remain on the roster for their events.
“Those students, like all of the other students on the team, however, were subject to a team rule that any player who scratches in an event cannot participate in that event at the next track meet. This neutral, school-specific rule was in place before the students’ protests and has nothing to do with those protests in any way.
“Other than not being permitted to participate in the same event in which they scratched at the next track meet, the students have competed in track meets and events following their protests without restriction.
“To be clear, no students have been retaliated against or penalized for expressing their views at the Harrison County Middle School Championship Track Meet.”
Morrisey, whose office filed an amicus brief in the case, praised Bedell’s ruling.
“I want to say to these students and their parents: I have your backs,” Morrisey said in a statement. “You saw unfairness and you expressed your disappointment and sacrificed your personal performances in a sport that you love; exercised your constitutionally protected freedom of speech and expression.
“These girls didn’t disrupt anything when they protested. They should be commended, not punished. We need to teach them that it is noble to stand firm in their beliefs and address their grievances within the protections guaranteed by our constitution.
“They need not to be silent. They have won by having their voices heard.
“So glad we were able to weigh in on behalf of these courageous young girls and that they are able to play.”
The complaint seeks declaratory judgments saying the defendant’s actions violated the state Constitution as well as legislative rules governing interscholastic sports. It also sought temporary, preliminary and permanent injunctive relief requiring the school board to rescind its discipline and allow the girls to compete in all future competitions, including the one they missed Saturday.
The plaintiffs are being represented by Caleb David and Michael Dunham of Shuman McCuskey Slicer. The AG’s amicus brief was signed by Chief Deputy AG Douglas Buffington II and Deputy AGs Curtis Capehart and Sean Whelan.
Harrison Circuit Court case number 24-C-104
