Trial Lawyers for Public Justice
High School Students and Textbook Author
Charge Texas State Board of Education Officials with Censorship
TLPJ Files First Amendment Lawsuit Against Board Members for Rejecting Environmental Science Textbook
Trial Lawyers for Public Justice (TLPJ), a national public interest law firm, filed a First Amendment lawsuit today in Dallas against Texas State Board of Education officials, charging that their November 2001 decision to reject an environmental science textbook for use in public high schools constitutes censorship in violation of the U.S. Constitution. The First Amendment prohibits government officials from censoring speech because of the message or viewpoint it conveys. The lawsuit [also below] was filed in the U.S. District Court for the Northern District of Texas to vindicate the free speech rights of the author, as well as tens of thousands of Texas public high school students who have been denied access to the textbook.
The textbook at the center of this lawsuit is "Environmental Science: Creating a Sustainable Future (6th Edition)" by Daniel D. Chiras, Ph.D., and published by Massachusetts-based Jones and Bartlett Publishers. The book has been widely used for over 20 years in top-tier universities including Baylor University in Waco and the University of Texas at Tyler. Despite the fact that Texas' Commissioner of Education recommended adopting Dr. Chiras' book, and that review panels of science professors at Texas A&M University and the Science Teachers Association of Texas had given the book high marks, the Board voted to reject the book.
"The Board's rejection of this widely-used textbook was not based on any legitimate concerns for factual accuracy or curriculum fulfillment," said TLPJ lead counsel Steve Baughman Jensen of Dallas' Baron & Budd, P.C. "The Board rejected the book because 10 of its 15 members disagreed with Dr. Chiras' viewpoints on environmental and economic issues, views based on 30 years of scientific study. This lawsuit aims to expose this blatant censorship and end this unconstitutional behavior."
The class action lawsuit charges Board officials with violating the plaintiffs' free speech rights under the First and Fourteenth Amendments to the U.S. Constitution, and the federal Civil Rights Act of 1871, 42 U.S.C. 1983. The plaintiffs seek a court order declaring that the Board members' rejection of Dr. Chiras' book was unconstitutional and requiring the book's inclusion on the list of state-approved texts. Dr. Chiras also seek damages from several current and former Board members in their personal capacities, stemming from the lost sales caused by their censorship.
Texas is one of the country's largest textbook markets - second only to California - and often sets the agenda for classroom texts nationwide. As a result, the Board's rejection of Dr. Chiras' book had a nationwide "ripple effect," causing schools in other states to decide against purchasing the book. This magnified the infringement on free speech rights, as well as the damages resulting from lost sales.
"I was stunned by the Board's decision to reject my textbook," said Dr. Chiras. "Texas public high schools used an earlier edition of my book, and colleges across the country, including a state university in Texas, have used the current edition. It is incredibly offensive and unfair that my book was falsely portrayed as 'anti-Christian' when this same book is used at Baylor University - a top-tier Christian school and Texas' oldest university."
Though most states select textbooks on a school-by-school or district-by-district basis, Texas adopts textbooks through a formal statewide process. Every year, the Board votes on a list of books submitted for adoption in subject areas scheduled for review that year, then provides the state's public schools with a list of approved books from which to choose. Local school districts may use state funds only to purchase Board-approved textbooks. Before the Board's final vote, the books are vetted in a rigorous process that includes review by textbook panels appointed by the Texas Commissioner of Education, reports by the Commissioner to the Board recommending whether to adopt or reject a textbook, written comments from Texas residents, and public hearings in which residents, experts, and publishers may comment.
Three environmental science textbooks, including Dr. Chiras' text, were submitted to the Board for approval in 2001. All three books were submitted for use in general high school environmental science classes, but Dr. Chiras' book was the only one also submitted for Advanced Placement classes. The Board approved one environmental science textbook without requiring any changes; that book was partly financed by a consortium of mining companies. The Board ultimately approved, but had preliminarily rejected, another textbook after it was modified in response to political criticisms by two conservative "think tanks" in Texas - Texas Public Policy Foundation (TPPF) and Citizens for a Sound Economy (CSE). The publisher of the preliminarily rejected text, J.M. LeBel Enterprises, sharply criticized the approval process as a "book burning" that was "100 percent political." Dr. Chiras and his publisher refused to modify their text in response to similar ideological attacks - and suffered the consequences.
On November 9, 2001, the Board voted to reject Dr. Chiras' book in a 10-5 vote held just one day after public hearings where TPPF and CSE attacked the book as anti-Christian, anti-free enterprise, and anti-American. For example, TPPF charged that Dr. Chiras' book was not acceptable for classroom use because of its allegedly "heavy bias toward radical politics." Indeed, TPPF's spokesperson portrayed the text as unpatriotic based on Dr. Chiras' favorable view of the marketability of solar energy sources. Although the Board did not name any grounds for rejecting Dr. Chiras' book, individual Board members' statements show the influence of TPPF and CSE. In short, the Board improperly rejected Dr. Chiras' book because the author's viewpoint did not echo their own political and religious views.
"The Board's decision to choose an environmental science text financed by the mining industry over one written by a scientist that emphasizes the importance of critical-thinking is no accident," said TLPJ Staff Attorney Adele P. Kimmel, co-counsel in the case. "Texas students will be better prepared to compete for jobs and college scholarships when the Board stops trying to force feed public school students with corporate propaganda and extremist ideology."
"I am taking an Advanced Placement course in Environmental Science to prepare for college," said Plaintiff Lillian Pollak, an 18-year-old senior at the Talented and Gifted Magnet High School in Dallas. "But I am learning even more about censorship than science."
In addition to Jensen and Kimmel, the plaintiffs' legal team includes TLPJ's Rebecca Epstein and Kate Gordon. The complaint in the case, Chiras v. Miller, is posted on TLPJ's web site, www.tlpj.org.
Trial Lawyers for Public Justice is the only national public interest law firm dedicated to using trial lawyers' skills and resources to advance the public good. Founded in 1982, TLPJ utilizes a nationwide network of more than 3,000 outstanding trial lawyers to pursue precedent-setting and socially significant litigation. It has a wide-ranging litigation docket in the areas of civil rights and liberties, consumer rights, environmental protection, toxic torts, worker safety, and access to the courts. TLPJ is the principal project of The TLPJ Foundation, a not-for-profit membership organization. It has offices in Washington, DC, and Oakland, CA. TLPJ's State Coordinators for Texas are Virginia Adams, tel. 214-521-3605, and Scott Hendler, tel. 512-473-3672.
Lawsuit Brief of Chiras v. Miller
Texas Lawyers for Public Justice
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DANIEL CHIRAS, individually; and LILLIAN POLLAK and CONNIE MCLOUTH, as next friend of JULIA MCLOUTH, individually and on behalf of others similarly situated,
GERALDINE MILLER, in her official capacity as chair of the State Board of Education; DAVID BRADLEY, in his official capacity as member of the State Board of Education and in his individual capacity; DON MCLEROY, in his official capacity as member of the State Board of Education and in his individual capacity; CYNTHIA THORNTON, in her official capacity as member of the State Board of Education and in her individual capacity; and GRACE SHORE, in her individual capacity,
COMPLAINT - CLASS ACTION
This lawsuit seeks to vindicate the First Amendment rights of an author of an environmental science textbook, as well as the public high school students who have been denied access to that textbook as a result of illegal viewpoint discrimination by members of the Texas State Board of Education (SBOE). In November 2001, the SBOE, including individual Defendants Geraldine Miller, David Bradley, Don McLeroy, Grace Shore, and Cynthia Thornton, who were all then members of the SBOE, rejected Plaintiff Daniel Chiras textbook for use in Texas high school environmental science courses. The SBOE rejected the textbook despite a recommendation from the Texas Commissioner of Education to adopt the book, and despite the conclusion of the states official textbook review panel that Chiras book was free from any factual errors. In making its decision, the SBOE failed to point to any specific factual errors in the book and failed to identify any other grounds for the rejection. This glaring omission, when coupled with the record surrounding the SBOEs two days of textbook hearings in November 2001, highlights the obvious, but unstated truth regarding the SBOEs decision to reject Chiras book: the decision was guided by constitutionally invalid concerns regarding viewpoints expressed in the text, rather than by any legitimate concerns for factual accuracy or curriculum fulfillment. Such viewpoint discrimination is presumptively unconstitutional and subject to strict judicial scrutiny.
Plaintiffs Lillian Pollak and Julia McLouth are students currently enrolled in the Advanced Placement (AP) Environmental Science course at the Dallas Independent School Districts Talented and Gifted Magnet High School in Dallas, Texas. These students have brought this lawsuit on their own behalf, and on behalf of a putative class of current and future Texas public high school students who are enrolled in or will enroll in environmental science classes. They seek a declaratory judgment against Defendants for rejecting Chiras textbook on unconstitutional grounds and an injunction ordering Defendant SBOE officials to add Chiras book to the list of state-approved textbooks. Plaintiff Daniel Chiras, on his own behalf, seeks the identical injunctive and declaratory relief from Defendant SBOE officials. In addition, Chiras seeks compensatory damages from Defendants Bradley, McLeroy, Shore, and Thornton in their individual capacities. Those damages stem from the lost sales caused by those defendants viewpoint discrimination, which led to the SBOEs decision to reject the book.
As a result of the SBOEs decision to reject Chiras textbook, Texas public schools were prohibited from using state funds to purchase the book. This effectively ensured that Texas high school students enrolled in environmental science classes would be deprived of access to the book. In addition, because Texas is the second-largest purchaser of textbooks in the country, public school districts in many other states follow Texas lead in deciding whether to purchase a textbook. The SBOEs decision to reject Chiras textbook therefore had a nationwide ripple effect, causing schools in other states to decide against purchasing Chiras book.
JURISDICTION AND VENUE
1. Plaintiffs bring this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983 and 28 U.S.C. § 2201-02, and under the First and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331 and 1343.
2. Plaintiffs Lillian Pollak and Julia McLouth (who appears as plaintiff through her next friend and parent Connie McLouth) attend high school in Dallas County, Texas. Because these Plaintiffs have been denied their First Amendment rights to access Plaintiff Chiras textbook in Dallas, a substantial part of the events or omissions giving rise to their claim occurred in this judicial district. Moreover, Defendant Geraldine Miller is a resident of Dallas, Texas. Venue for this action is proper in this court under 28 U.S.C. § 1391(b).
3. Plaintiff Lillian Pollak is an 18-year-old senior at the Talented and Gifted Magnet High School in Dallas, Texas. She is enrolled in the AP Environmental Science course offered at her school.
4. Plaintiff Julia McLouth is an 17-year-old senior at the Talented and Gifted Magnet High School in Dallas, Texas. She is enrolled in the AP Environmental Science course offered at her school. As a minor, she appears through her parent and next friend, Connie McLouth.
5. Plaintiff Daniel D. Chiras, Ph.D. is a resident of Evergreen, Colorado and the author of ENVIRONMENTAL SCIENCE: CREATING A SUSTAINABLE FUTURE (6 th ed.). Chiras teaches environmental science courses at Colorado College, the University of Colorado at Denver, and the University of Denver, and has published 18 books, several of which are used as college and high school textbooks. He has also written over 200 articles on environmental issues published in magazines, journals, newspapers, and encyclopedias.
6. Defendant Geraldine Miller is the current chair of the SBOE. She is sued in her official capacity only. Miller was acting under color of state law at all times relevant to this complaint. Miller is a resident of Dallas, Texas.
7. Defendant David Bradley is a member of the SBOE. He is sued in both his official capacity and his individual capacity. Bradley was acting under color of state law at all times relevant to this complaint.
8. Defendant Don McLeroy is a member of the SBOE. He is sued in both his official capacity and his individual capacity. McLeroy was acting under color of state law at all times relevant to this complaint.
9. Defendant Cynthia Thornton is a member of the SBOE. She is sued in both her official capacity and her individual capacity. Thornton was acting under color of state law at all times relevant to this complaint.
10. Defendant Grace Shore is a former member of the SBOE and served as its chair when Chiras textbook was being considered for adoption, including when the SBOE voted to reject the book. She is sued in her individual capacity. Shore was acting under color of state law at all times relevant to this complaint.
CLASS ACTION ALLEGATIONS
11. Plaintiffs Lillian Pollak and Julia McLouth bring this action pursuant to FED. R. CIV. P. 23(b)(2) on their own behalf and on behalf of a putative class consisting of all current and future Texas public high school students who are enrolled in or will enroll in environmental science classes.
12. This matter is properly maintainable as a class action pursuant to FED. R. CIV. P. 23(b)(2) in that:(a) The class members are so numerous as to make joinder of all of them impracticable. While the exact size of the proposed plaintiff class is unknown, during the hearing in November 2001, SBOE members estimated that 20,000 public high school students in Texas were currently enrolled in environmental science courses. Given that the proposed class includes current and future students, the class is clearly so numerous that joinder of all members is impracticable, as required by FED. R. CIV. P. 23(a)(1).
(b) There are questions of law and fact common to the class members. These common questions of law and fact predominate over questions affecting individual class members. Among the questions of law and fact common to the class is whether the Defendants conduct, as described below, violates the class members First Amendment right of access to information.
(c) The claims of Plaintiffs Pollak and McLouth are typical of the claims of proposed class members. They, as the other class members, are public high school students who are enrolled in or will enroll in environmental science classes. They, like the class as a whole, are victims of Defendants illegal viewpoint discrimination described below, and are not asserting claims for damages, but seek only injunctive and declaratory relief.
(d) Named Plaintiffs Pollak and McLouth will fairly and adequately protect the interests of the class members. They are represented by counsel experienced in class action and civil rights litigation.
(e) Defendants have rejected Chiras book for unconstitutional reasons, which affects all of the putative class members in the same way. This makes injunctive and declaratory relief with respect to the class as a whole appropriate.
13. The SBOE is the state agency granted statutory authority to adopt and distribute instructional materials, including textbooks, for use in all Texas public schools. See TEXAS EDUCATION CODE, Chapter 31; TEXAS ADMINISTRATIVE CODE, Chapter 66. Pursuant to this authority, SBOE adopts textbooks for statewide use through a formal process. This process includes: 1) soliciting bids for new instructional materials for particular courses; 2) review of submitted textbooks by panels appointed by the Texas Commissioner of Education; 3) preliminary and final reports from the Commissioner of Education to the SBOE recommending whether to adopt or reject a particular textbook; 4) solicitation of written comments from Texas residents to the SBOE; 4) public hearings in which residents, experts, and publishers submitting materials may all comment; and, finally, 5) the SBOEs vote on whether to include particular textbooks on a list of those that will be available for purchase by local schools. Local school districts may use state funds only to purchase state-approved textbooks. TEXAS EDUC. CODE, 31.101.
14. The SBOE textbook adoption cycle provides for consideration of textbooks in foundation courses, including environmental science, once every six years.
15. In May 1999, the SBOE solicited bids from publishers for textbooks to be used in both regular and AP environmental science courses in Texas public high schools beginning in the fall of 2002, and to be considered for adoption in the fall of 2001. In response to this invitation for bids, Jones and Bartlett Publishers (Jones & Bartlett) submitted the 6 th edition of ENVIRONMENTAL SCIENCE: CREATING A SUSTAINABLE FUTURE, by Plaintiff Daniel Chiras. Jones & Bartlett requested that Chiras book be considered for adoption with respect to both regular and AP Environmental Science courses.
16. Following Jones & Bartletts bid, the Texas Commissioner of Education submitted Chiras book for review by a panel of educators at Texas A&M University. The review panel was charged with determining the extent to which Chiras book covered the curriculum content requirements for the applicable courses, which are known as the Texas Essential Knowledge and Skills, or TEKS. The panel was also asked to identify any factual errors in the textbook.
17. The review panel initially identified some alleged factual errors in Chiras book, and the Commissioner submitted the panels initial report to Jones & Bartlett to allow the publisher to respond. In Jones & Bartletts response, the publisher agreed to make certain corrections, and also argued that certain areas required no correction because the statements at issue were matters of interpretation and/or opinion, rather than fact. After receiving Jones & Bartletts response, on October 26, 2001, the panel accepted Jones & Bartletts position and reported that no additional factual corrections were necessary. Accordingly, the Commissioner of Education recommended that the SBOE place the book on the list of approved textbooks for use in both the regular and AP environmental science courses.
18. Specifically, the Commissioner of Education recommended that Chiras book be placed on the nonconforming list of approved textbooks. The SBOE generates two lists of approved textbooks: the conforming list and the nonconforming list. The conforming list includes approved textbooks that cover 100% of the TEKS curriculum elements. The nonconforming list includes approved textbooks that cover at least 50%, but not all, of the TEKS elements. Inclusion on either list permits local school districts to use state funds for purchase of the books.
19. In the SBOEs original 1999 proclamation that solicited bids for textbooks to be adopted in 2001, it scheduled one public hearing on the subject for September 2001. In accord with that proclamation, the SBOE conducted a public hearing on September 6, 2001, during which it heard comments regarding Chiras book, as well as two other environmental science textbooks that had been submitted for approval. The SBOE also received written comments from the public regarding Chiras book, submitted in connection with the September 2001 hearing.
20. In late September 2001, the Texas Education Agency forwarded to Jones & Bartlett some of the oral and written comments on Chiras book. In October, Jones & Bartlett provided the Texas Education Agency with written responses to both the oral and written comments made in connection with the September 2001 hearing.
21. After reviewing the public comments, as well as Jones & Bartletts response, the Commissioner recommended adoption of Chiras book. Indeed, Chiras book was one of only three books that the Commissioner recommended for approval in 2001 for use in regular environmental science courses, and the only book the Commissioner recommended that year for approval in AP environmental science courses.
22. On information and belief, following the Commissioners final report on October 26, 2001, two conservative think-tank organizations the Texas Public Policy Foundation (TPPF) and Citizens for a Sound Economy (CSE) requested that the SBOE permit additional public comment on the textbooks proposed for approval, before the scheduled final vote in November. Despite the SBOEs express limitation in the 1999 proclamation that it would accept neither written nor oral comments from the public after October 14, 2001, the SBOE agreed to reopen public hearings on the proposed textbooks on November 8, 2001, just one day prior to the final vote on the books scheduled for November 9.
23. On information and belief, before the newly-scheduled hearing on November 8, members of both TPPF and CSE worked directly with Defendants McLeroy, Shore, and Thornton to develop a strategy for rejecting Chiras book. That work included having members of those organizations feed information and arguments to these Defendants in an effort to help them persuade other SBOE members to vote against the book.
24. The motivation of both TPPF and CSE in opposing adoption of Chiras book was based entirely on their strong disagreement with the authors expression of viewpoint regarding environmental and economic issues. For example, both groups strenuously objected to the book on the grounds it allegedly reflected anti-Christian and anti-free enterprise sentiment. According to CSE representative Peggy Venable, Chiras book presented a radical, controversial, political agenda as science. Venable also claimed that Chiras book was outrageous for allegedly blam[ing] Christianity, democracy and industrialization as causing the so-called environmental crisis. Similarly, TPPF Senior Fellow Duggan Flanakin commented with regard to the book that [t]he vitriol against Western civilization and its primary belief systems is shocking. On November 8, 2001, the day Flanakin presented his comments on behalf of TPPF at the hearing, Flanakin also submitted a single-spaced, 24-page Report to Publisher regarding Chiras book. Jones & Bartlett had never seen or known of the report until November 8, just one day before the scheduled SBOE vote.
25. On information and belief, Defendant Thornton, a member of the SBOE, requested that members of TPPF and/or CSE provide her with specific instances in which Chiras book contained anti-free enterprise statements, and one or both of those organizations complied. 26. At the November 8, 2001 hearing, the SBOE heard comments from several representatives and/or members of CSE and TPPF, all of whom spoke vigorously and passionately against adoption of Chiras book. Notably, neither any of the public comments against the book, nor any of the questions or discussion among SBOE members even mentioned or described any of the TEKS curriculum content requirements for environmental science, nor did they argue that Chiras book failed to meet those requirements in any way. 27. Carol Fletcher, who served on the state Textbook Adoption Committee for environmental science, told the SBOE that the review these books received was vigorous and detailed. She concluded that its my opinion that the textbooks found in compliance with the TEKS and therefore eligible for adoption will be an effective tool for assisting teachers in this endeavor.
28. University of Texas emeritus professor Bassett Maguire, who has been a member of the UT faculty in ecology since 1957, spoke in support of adopting all three proposed environmental science books. Nonetheless, Maguire noted that he would choose Chiras book among the three because it has the best and most coherent discussion of the basic ecology of the Earth.
29. Following completion of public comments on November 8, 2001, Thornton moved to reject Chiras book, and the motion passed on a preliminary vote of 10-5. At the same time, and by the same vote, the SBOE also preliminarily rejected another environmental science text, published by J.M. LeBel Enterprises (LeBel).
30. Just prior to the SBOEs final vote on November 9, 2001, the SBOE permitted Jones & Bartlett editor Dean DeChambeau to respond to the oral comments and TPPF report issued just one day earlier. During DeChambeaus presentation, Defendant Grace Shore asked him whether the author of the book has a definite philosophy toward environmentalism, and also inquired as to the extent to which the author would need to give approval to any changes that Jones & Bartlett might have been willing to make to the book in order to gain its approval by the SBOE. The SBOE members then voted, again 10-5, to reject Chiras book for use in either regular or AP environmental science courses.
31. By contrast with the final vote on Chiras book, on November 9, 2001, the SBOE voted to approve the LeBel textbook that it had preliminarily rejected one day earlier. The decision regarding the LeBel book changed because, into the late night hours of November 8, 2001, the publishers president worked with the Texas Education Agency to correct problems that were identified at the November 8 hearing. The New York Times later reported that president Rene LeBel described this so-called correction process as a book-burning, that was 100 percent political.
32. Ultimately, Defendants own words prove that their motive for rejecting Chiras book was suppression of a particular viewpoint. On November 19, 2001, just 10 days after the SBOE rejected Chiras book, CSE published on its website an article written by Defendant McLeroy, an SBOE member, entitled The Rejected Textbook. According to McLeroys article, the SBOE rejected Chiras book because it was based on a false premise. ... The claim that the root cause of environmental problems is economic growth is simply wrong.
33. Moreover, the Austin American-Statesman reported that Defendant Grace Shore, then chair of the SBOE, told the newspaper that [t]he oil and gas industry should be consulted regarding passage of proposed environmental science textbooks, because [w]e [the oil and gas industry] always get a raw deal.
34. Most notably, Defendant and SBOE member David Bradley reportedly told the Dallas Morning News that, in response to SBOE members review of textbooks, the SBOE members are seeing a change in the attitude of publishers. They are starting to work with conservative groups and textbook critics ... who more accurately reflect the viewpoint of most Texans. I really think the pendulum is swinging back to a more traditional, conservative value system in our schools.
35. As a result of the SBOEs decision to reject Chiras book, no Texas school district has purchased the book for use in environmental science courses. As a direct result, Plaintiff Chiras has been deprived of his constitutional right to express himself without viewpoint-based censorship, and he has also suffered monetary damages. Plaintiffs Lillian Pollak and Julia McLouth, and all other current and future Texas environmental science students have also been deprived of their constitutional right of access to Chiras book as an educational resource.
FIRST CLAIM FOR RELIEF
(Claims by all Plaintiffs against all Defendants, except Grace Shore,
for injunctive and declaratory relief, pursuant to 42 U.S.C. § 1983)
36. Plaintiffs reallege and incorporate by reference the allegations contained in all preceding paragraphs as if set forth fully herein.
37. Defendants actions under color of state law abridge Plaintiffs freedom of speech by limiting the authors expression and by denying access to that expression on the basis of the content and viewpoint of the authors speech.
38. Defendants actions are subject to strict judicial scrutiny and violate Plaintiffs rights under the First and Fourteenth Amendments to the United States Constitution, and the federal Civil Rights Act of 1871, 42 U.S.C. § 1983.
39. As a result of Defendants ongoing violations of the First and Fourteenth Amendments to the United States Constitution and the Civil Rights Act of 1871, the Plaintiffs have suffered and will continue to suffer injury.
40. Pursuant to 42 U.S.C. 1983, the Plaintiffs are entitled to a declaration that their rejection of Chiras book on the basis of viewpoint violated that First and Fourteenth Amendments. Plaintiffs are also entitled to injunctive relief requiring Defendants, in their official capacity, to add Chiras book to the nonconforming list of environmental science textbooks approved for use by Texas public high schools.
SECOND CLAIM FOR RELIEF
(Claim for damages by Plaintiff Chiras pursuant to 42 U.S.C. § 1983
against Defendants David Bradley, Don McLeroy, Grace Shore,
and Cynthia Thornton, in their individual capacities)
41. Plaintiffs reallege and incorporate by reference the allegations contained in all preceding paragraphs as if set forth fully herein.
42. Defendants actions under color of state law have abridged Plaintiff Daniel Chiras freedom of speech by limiting his expression on the basis of the content and viewpoint of his speech.
43. Defendants actions violate Plaintiffs rights under the First and Fourteenth Amendments to the United States Constitution, and the federal Civil Rights Act of 1871, 42 U.S.C. § 1983. Defendants are not subject to qualified immunity because their conduct violated clearly-established constitutional and statutory rights of which a reasonable person would have been aware.
44. As a result of Defendants ongoing violations of the First and Fourteenth Amendments to the United States Constitution and the Civil Rights Act of 1871, Plaintiff Daniel Chiras has suffered and will continue to suffer damages, including but not limited to his share of lost sales resulting from Defendants rejection of his book.
AS TO THE PLAINTIFFS FIRST CLAIM FOR RELIEF, Plaintiffs respectfully pray this Court enter judgment in favor of the Plaintiffs against all Defendants (except Grace Shore), including:(a) issue a declaratory judgment declaring that Defendants have unlawfully rejected Chiras book on the basis of disagreement with the viewpoint expressed in that book;
(b) grant the Plaintiffs permanent injunctive relief requiring the Defendant SBOE officials to add the 6 th edition of ENVIRONMENTAL SCIENCE: CREATING A SUSTAINABLE FUTURE, by Plaintiff Daniel Chiras, to the nonconforming list of approved environmental science textbooks for use in Texas public high schools;
(c) award the Plaintiffs their reasonable attorneys fees and costs pursuant to 42 U.S.C. § 1988 and/or other applicable provisions; and
(d) award further relief this Court finds just and appropriate.
AS TO PLAINTIFF DANIEL CHIRAS SECOND CLAIM FOR RELIEF, Plaintiff respectfully requests this Court enter judgment against Defendants Bradley, McLeroy, Shore, and Thornton, in his favor, including:(a) damages as determined by the finder of fact;
(b) reasonable attorneys fees and costs pursuant to 42 U.S.C. § 1988 and/or other applicable provisions; and
(c) any further relief this Court finds just and appropriate.Respectfully submitted,
TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
Steve Baughman Jensen
TX Bar No. 00783615
BARON & BUDD, P.C.
3102 Oak Lawn Ave., Ste. 1100
Dallas, TX 75219
Adele P. Kimmel
Rebecca E. Epstein
TRIAL LAWYERS FOR PUBLIC JUSTICE
1717 Massachusetts Ave. NW, Ste. 800
Washington, D.C. 20036
October 30, 2003