SC school says teacher didn’t assault student over reciting Pledge of Allegiance

Lexington 1 says a River Bluff High School student suing the district was not targeted for a failure to observe the Pledge of Allegiance. The school also denies the student was assaulted by a teacher, as claimed in a lawsuit filed last month.

The school district laid out its version of the controversial incident in a motion Wednesday asking a federal judge to dismiss claims against the district, the teacher and school administrators for violating Marissa Barnwell’s civil rights.

Barnwell, a 15-year-old honor student at River Bluff, claims in the lawsuit that she was pushed into a wall by a teacher while walking in a hallway while the Pledge of Allegiance was being recited over the school intercom. But in its filing, the school claims the incident actually occurred during a moment of silence following the pledge.

That could be significant because part of Barnwell’s claim against the school district revolves around whether a school official punished her for not observing the pledge, something the law says she cannot be required to do.

“(T)he only logical reading of the Complaint is that (the teacher Nicole) Livingston stopped the student in the hall after the Pledge had ended and during ‘the call to remain standing for the moment of silence,’” says the motion written by attorney David Lyon. “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.”

Nor, the district claims, was Barnwell ultimately punished in any way over the incident, and thus her constitutional rights could not have been violated.

“What the Complaint fails to allege is significant,” the motion reads. “The Complaint does not allege that the Student was made to say the Pledge of Allegiance or salute the flag. She was not. The Complaint does not allege that the Student was made to stay silent during the Pledge or Moment of Silence. She was not (nor did she remain silent). Perhaps most importantly, the Complaint does not allege that the Student received any discipline (detention, suspension, etc.) following this incident. She did not.”

In a statement on Thursday, Lexington 1 said Livingston was placed on administrative leave while the incident was investigated. Video footage was shared with Barnwell’s parents and attorney, the district said.

“We believe we have the necessary district procedures and board policies in place to fulfill this commitment,” the statement said. “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.

“Due to the recent media coverage of this incident, the student and employees involved are receiving extremely hateful communication. District leaders strongly condemn this inappropriate behavior. We care for all of our students and employees and regret that those involved in this situation have been the target of cruel messages.”

Student’s lawyer asks for A.G. investigation

Meanwhile, Barnwell’s attorney, Tyler Bailey, is asking South Carolina’s attorney general to investigate after the alleged assault.

Bailey sent a letter to Attorney General Alan Wilson on Wednesday asking for a state investigation into the incident last November at River Bluff High School.

“I am respectfully writing you to request that you use the power of your office to open up an investigation into the criminal assault and violation of the constitutional rights of Marissa Barnwell,” Bailey writes in the letter.

In the letter, Bailey notes Wilson’s own words at the conclusion of the Alex Murdaugh double-murder trial, in which Wilson said the guilty verdict against the disgraced former Lowcountry attorney proved that “no one, no matter who you are in society is above the law.”

“Unfortunately, any little bit of faith the Barnwell Family had in the process has been shattered as a result of the events surrounding the aftermath of Marissa Barnwell’s assault,” Bailey wrote in the letter.

Spokesman Robert Kittle said Wednesday the attorney general’s office had not yet received the letter.

“We’re not normally an investigative agency,” Kittle said. “We would usually ask SLED (the South Carolina Law Enforcement Division) or local law enforcement to investigate and send their findings to us.”

Lexington Police Sgt. Cameron Mortenson confirmed police did investigate Barnwell’s complaint over the incident, but investigators did not find enough probable cause to bring an arrest.

In the school district’s response, Livingston also denies that she shoved Barnwell, with the motion noting that she only admitted to “putting her hand on the Student’s shoulder to get the Student’s attention.”

“Defendants readily admit it is not generally appropriate for a school district employee to push a student against a wall,” the motion says. “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.”

Barnwell was stopped by a teacher in a River Bluff hallway and told she had to stop, Bailey claims, even though other students can be seen on security camera footage moving through the hall at the same time. She said she was pushed into the wall by the teacher, who then escorted her to the principal’s office. The principal sent Barnwell back to class.

Barnwell said she felt “disrespected,” “extremely upset and emotionally disturbed” after the incident.

Bailey notes that under state law, anyone who does not want to participate in the Pledge of Allegiance is exempt and cannot be penalized, so long as they respect the rights of others and do not disrupt school activities. U.S. Supreme Court precedent holds that the government cannot compel anyone to acknowledge the Pledge of Allegiance.

Barnwell, who is Black, claims she was targeted because of her race while white River Bluff students did not receive the same treatment.

“Nobody has answered the calls for justice and accountability from (parents) Fynale and Shavell Barnwell for the horrendous assault of their amazing daughter,” Bailey wrote to the attorney general. “The Lexington Police Department has refused to initiate criminal charges against the teacher who assaulted Marissa Barnwell for ignoring calls to stop in recognition of the Pledge of Allegiance despite the valiant effort of Marissa’s parents and undisputed video evidence corroborating the same.”

But the school district claims the allegations in Barnwell’s complaint don’t rise to the level of a federal case, noting that Barnwell doesn’t claim any physical injury from the incident, only that she experienced emotional distress, a claim plantiffs are more limited in making under South Carolina law.

The motion also claims that the school district is an arm of the state of South Carolina, and therefore has sovereign immunity from being sued in federal court. Livingston and the other named defendants, River Bluff Principal Jacob Smith and Lexington 1 Superintendent Gerritta Postlewait, were acting as agents of the school district at the time and are also immune from the suit as individuals.

“Courts have dismissed due process claims for much more egregious behavior by a school employee than what is alleged to have occurred in this case,” Lyon’s motion says.