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 Judge Won't Allow Immediate Appeal

April 9, 2008 - A Hancock County judge has decided not to allow three Knightstown High School students and their parents to seek an immediate appeal of his ruling in favor of a Knightstown Intermediate School who had sued them for defamation.

Last Thursday, Hancock Circuit Court Judge Richard Culver denied defense attorneys' request for permission to proceed now with an appeal of a March 25 ruling in favor of the KIS teacher. Culver's denial of this request means that an appeal will have to wait until after a trial has been held on damages and other unresolved issues related to the teacher's claims.

Dan Clevenger, a seventh grade teacher at KIS, filed his lawsuit against four KHS students and their parents last May, alleging he had been defamed in "The Teddy Bear Master," a horror film parody the students made on their own time off school grounds. His lawsuit also made claims for invasion of privacy, and intentional infliction of emotional distress.

Culver, who is a special judge assigned to the case, ruled March 25 that Clevenger was entitled to summary judgment on his defamation claim. He denied a motion for summary judgement filed by American Civil Liberties Union of Indiana attorneys representing the students and their parents, who argued the film was a parody and, therefore, protected speech under the First Amendment.

In his order, Culver said a scene where one student held a stuffed Santa Claus doll against the groin area of another fully clothed student "graphically displays the Mr. Clevenger character … receiving fellatio from a student" in exchange for extra credit. Because such conduct, if true, would amount to criminal conduct, sexual misconduct, or misconduct in a person's trade, profession, office or occupation, Culver said the students' actions were defamation per se.

In instances of defamation per se, damages are presumed. Culver's ruling means that Clevenger is not required to provide proof that there had been any actual harm to his reputation as the result of the students' film.

Culver also ruled in Clevenger's favor with respect to the teacher's invasion of privacy claim. The judge said the students had "made a communication casting a false light upon (Clevenger) that he is involved in sexual misconduct with his students," and that this would be "highly offensive to a reasonable person."

In their motion seeking permission to take an immediate appeal, ACLU attorneys Gavin Rose and Jacquelyn Bowie Suess argued that their clients would suffer substantial expense if forced to wait until after the trial to appeal. They also said that allowing the Court of Appeals to address the substantial questions of law now would promote an orderly disposition of the case. Culver's order denying the ACLU's motion does not indicate the basis for his ruling.

The ACLU's Rose told The Banner said he was disappointed with Culver's decisions. He said he thought the March 25 ruling was "a mistaken interpretation of both the law and the facts," and added that he remains "confident that in the end this film will be adjudged as exactly what it was: a fictitious horror movie about possessed teddy bears."

The four students involved in the film were all expelled from KHS in the fall of 2006. In December of that year, a federal judge in Indianapolis issued an injunction reversing the expulsions while civil rights lawsuits filed by three of the students against the school corporation were pending. Last spring, the parties in that case reached a settlement that involved payment of $69,000 to three of the students and their parents and required CAB to expunge the expulsions from the students’ school records.

 

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