CHARLESTON – The case involving a transgender Harrison County teen will be heard by the state Supreme Court in March.
Oral arguments are scheduled for March 4. The case was brought on behalf of Michael Critchfield, a student at Liberty High School in Clarksburg who says he had to endure abusive treatment from Assistant Principal Lee Livengood who followed Critchfield into the boys bathroom, held the student against his will, berated him for using the boys bathroom and demanded he “come out her and use the urinal” to prove he’s a boy.
The American Civil Liberties Union and Toriseva Law are representing Critchfield and his parents.
Livengood
“We are thrilled to be among a small number of cases to be granted the privilege of oral arguments,” attorney Teresa Toriseva said. “At its heart, this case is about the fundamental duty of school boards to protect their students and set model behaviors for young people.
“The Harrison County Board of Education and this administrator have failed in that regard and accountability is needed.”
ACLU-WV Legal Director Loree Stark said the case presents the state Supreme Court a chance to stand on the right side of history by recognizing that all students, regardless of gender identity, deserve protection and respect. She also noted recent executive orders signed by President Joe Biden and favorable rulings from conservative federal courts signaling a better legal landscape for transgender people.
“We’ve said it before and we’ll say it again,” Stark said. “We wouldn’t tolerate this behavior from a student, and we certainly shouldn’t tolerate it from an administrator whose chief responsibility is the wellbeing of students.”
Last February, Circuit Judge Christopher J. McCarthy issued an order granting the Harrison County Board of Education's motion to dismiss, citing immunity. Critchfield’s parents filed the appeal then.
"The Circuit Court’s ruling means that the school system cannot be held liable for this administrator’s admitted behavior against a student," Toriseva said then. "We respect the judge, but we believe his legal analysis is wrong.
“It can’t be that school boards have no liability for the admitted bad conduct of their own administrator. The judge also erred by dismissing the case without even allowing us to conduct a factual inquiry and investigation. We have no choice but to appeal."
Caroline and Jon Critchfield filed the complaint on behalf of the minor in 2019 in Harrison Circuit Court against the county Board of Education. Critchfield currently is a senior at Liberty High School.
In the dismissal order, McCarthy wrote that while the plaintiffs could survive the bar of immunity in the case against the board was a negligence claim, they failed to allege negligent conduct and instead, cited Livengood's intentions as intentional.
In the complaint, the plaintiffs say the child and parents met with Liberty High School officials prior to his freshman year to tell them the transgender boy preferred to be referred to by his chosen name, that his pronouns were “he,” “his” and “him” and that he planned to use the boys restroom.
On Nov. 27, 2018, the complaint says the boy needed to use the restroom after school before a trip to Morgantown with the school band. He went to the boy's restroom near the school cafeteria.
“Moments later, Mr. Lee Livengood, an assistant principal at Liberty High School, followed M.C. into the restroom and began berating M.C. while he was in the stall regarding M.C.’s choice of bathroom,” the complaint states. “M.C. explained that he was a boy and that is why he was using that restroom and that the restroom was empty when he entered.
“Mr. Livengood, then challenged M.C. to ‘come out here and use the urinal’ in front of him if he was really a boy. Mr. Livengood demanded that M.C. expose his private area in front of and in the presence of Mr. Livengood.”
The complaint says the boy explained he was born female but identifies as male.
“As M.C. exited the stall, Mr. Livengood blocked the exit of the restroom preventing M.C. from leaving the restroom,” the complaint states. “Mr. Livengood is a fully grown adult male and is much larger than M.C.
“Mr. Livengood confined M.C. in the restroom and verbally assaulted M.C. which frightened M.C. and made him fear for his safety and well-being. When M.C. escaped from the restroom, he was met by a parent of another child in the band. M.C. broke down into tears and began crying uncontrollably.
“Mr. Livengood, in the presence of this other parent then stated, ‘I’m not going to lie, you freak me out.’”
The parents say they spoke with school administrators within 24 hours of the incident. Livengood was suspended by the school board shortly after the incident, but he eventually returned to the job. And this spring, the board decided not to renew Livengood’s contract for the current school year. But soon after, the board reversed itself and voted to renew his contract.
After the incident, the plaintiffs say Livengood tried to intimidate and harass the child at school and school events.
“In the time following the incident, M.C. has suffered from severe anxiety associated with his education and his extracurricular activities,” the complaint states.
The complaint accuses the board of false imprisonment of the boy because of the bathroom incident.
“When M.C. exited the stall in the restroom, Mr. Livengood blocked the exit of the restroom and prevented M.C. from escaping the restroom without M.C.’s consent,” the complaint states. “Mr. Livengood intended to block M.C. in the restroom in order to intimidate, scare, and assault M.C.
“M.C. was aware he was being confined and knew of no other means of escape except the single entrance to the restroom which Mr. Livengood physically barricaded with his body.”
It also accuses the defendant of assault, sexual harassment, intentional infliction of emotional distress, negligence, negligent retention, hiring and supervision
“While imprisoned in the restroom, Mr. Livengood berated M.C. demanding that M.C. expose himself and use the urinal in front of him,” the complaint states. “Mr. Livengood further placed M.C. in the reasonable fear of an immediate and nonconsensual touching. ..
“The student-school administrator relationship should entitle a student to a greater degree of protection from insult and outrage than if he were a stranger to a defendant.”
The complaint says the school board is negligent because Livengood is an employee and because it breached its duty by failing to immediately act to address the situation.
It says the boy suffered personal injuries and damages, including but not limited to suffering and mental anguish, past and future lost enjoyment of life, past and future humiliation, embarrassment, indignity, and shame, economic damages, diminished earning capacity and future lost wages.
In the original complaint, the plaintiffs sought compensatory damages for permanent physical injuries, past and future pain, suffering and mental anguish, past and future lost enjoyment of life, past, and future humiliation, embarrassment, indignity, and shame, economic damages, diminished earning capacity and future lost wages. They also sought punitive damages as well as attorney fees, court costs and other relief.
They also sought injunctive relief to prevent Livengood from interacting with the boy. The complaint says he tries to interact with the boy despite a meeting in which the board agreed to bring his interactions with the student to a minimum.
Livengood actually was fired following the incident, but he soon was reinstated and currently works at Liberty High School where Critchfield remains a student.
“Mr. Livengood did provide M.C. with a woefully inadequate written apology in which he apologized only for ‘raising his voice,’” the complaint states. “The defendant Harrison County Board of Education has been made aware of every time that Mr. Livengood has appeared in M.C.’s lunch period despite the fact that there are other school staff that are already present at these lunches.
“Mr. Livengood has demonstrated that he does not take the terms of the agreement seriously as he continues to try and manipulate his work duties to interact with M.C.”
The Harrison County Board of Education is being represented by Susan Llewellyn Deniker, Jeffrey M. Cropp and Rodney L. Bean of Steptoe & Johnson.
West Virginia Supreme Court of Appeals case number 20-0171 (Harrison Circuit Court case number 19-C-236)