Lawsuit against Fort Smith Public Schools, board president dismissed

In a 6-page order and opinion dated June 2, U.S. District Court Judge Timothy Brooks dismissed a First Amendment lawsuit against the Fort Smith Public School (FSPS) District and Board of Education President Dalton Person.

A federal lawsuit was filed Feb. 24 in the U.S. District Court, Western District of Arkansas, regarding the reassignment of Felix Curry, former head football coach and athletic coordinator at Northside High School. The lawsuit, filed by Fayetteville attorney Matt Bishop on behalf of Curry and his attorney, Joey McCutchen, referenced Person and the FSPS in their attempts to deny Curry and McCutchen’s ability to speak during a Dec. 16 public school board meeting.

Curry was told Nov. 22 that his contract was not being renewed and was told Dec. 4 that he was being reassigned to the Student Detention Center (“SDC”). The district has provided no reason for the action.

On Dec. 11, McCutchen received an email from Marshall Nye, attorney for the FSPS school board, stating the school board would not meet with them. In response, McCutchen requested Nye put McCutchen on the agenda or list him as a member of the public to speak during the public comment period. That was also denied. McCutchen was later removed from the Dec. 16 meeting for attempting to continue addressing the board once Person told him he could not.

The lawsuit claims the school board and FSPS infringed on Curry and McCutchen’s First Amendment rights. It sought monetary compensation.

In his order, Brooks said the board was within its rights to deny McCutchen the chance to speak at the board meeting, and there is no violation of First Amendment rights. The case was dismissed without prejudice, meaning it can be refiled.

“Thus Defendants’ decision to prohibit Plaintiffs from addressing the Board regarding Mr. Curry’s employment during the ‘public comment’ period was an application of this policy that preserved its consistency and effectuated its purposes,” Brooks wrote. “As such, the restrictions that were made on Plaintiffs’ speech in this limited public forum were not only viewpoint-neutral, but also reasonable, serving the purpose of preserving the Board’s ability to act as a neutral decisionmaker on personnel and employment matters that may eventually be brought before it. Accordingly, even accepting all the allegations in the Complaint as true, no First Amendment violation occurred here.”

Person said the ruling makes it clear that allegations in the lawsuit are without merit.

“It was wrong for Mr. McCutchen to file this lawsuit against me,” Person said in a note to Talk Business & Politics. “The case was so clearly unfounded that Judge Brooks dismissed it before even holding an initial hearing on the matter. I’m pleased that the federal court system swiftly corrected the record on this matter.”

Bishop said they are considering their next move. A second lawsuit related to the firing of Curry could provide a ruling on school procedure that might result in a refiling of the federal lawsuit, he said. A lawsuit filed in Sebastian County Circuit Court on Feb. 18 by McCutchen on behalf of Curry states Curry’s reassignment was unlawful because it did not receive the approval of the FSPS school board.

“We are considering our options in light of the (federal) judge’s ruling,” Bishop said Monday. “One of those options will depend on whether the Fort Smith Public School District followed its own procedures. And if we determine it did not, or if the court decides it did not, we will be refiling.”

The FSPS school board has approved the hiring of Dom Mirocke as the next Northside head football coach.