You may have noticed that yesterday’s blog entry was MIA. I was rather busy yesterday and the evening before preparing for oral argument in my appeal of the lawsuit I have against the Fairfield County District Library.
The lawsuit is an attempt to have their barefoot rule removed. The effort has been a long and winding road.
First, you can take a look at their Code of Conduct. The rule is
Shirt and shoes must be worn in any library facility. If a child has learned to walk, the child must wear shoes.
I started way back in 2008 by writing a few letters to them, and eventually giving a presentation to their board. Going in, I was told that the reason for their rule was “decorum”, so that is what I mainly focused on. Here is that presentation (more or less — the actual delivery may have varied from these notes).
By the way, since the main library in my area, the Columbus Metropolitan Library, does not allow me in barefoot (and I lost my lawsuit against them), I have rather limited access to library services. The lawsuit is an attempt to get access to at least some sort of more extensive library usage.
You can see the full docket for the case if you want to. It is long. Very long. Three years worth, obviously. There has been a lot of back-and-forth.
I initially lost on summary judgment and had to appeal. I got a partial remand on appeal, and so we had an Evidentiary Hearing. Evidentiary hearings are a lot like a trial, so I more-or-less got to conduct one side of a trial. It was a very interesting learning experience. If you are interested in seeing how all that goes, I’ve got a copy of the transcript online.
After the Evidentiary Hearing, the trial judge ruled against me, so it was time to appeal again. On an appeal, a few briefs are exchanged, then there is the oral argument. Oral argument for an appeal is a bit of a strange beast: it’s almost a kind of Kabuki theater. Each side has a total of only 15 minutes to make its case. The one who goes first (the Appellant: me), can break up that time and leave some for rebuttal at the end. (Everybody always does so; I reserved 3 minutes, which is also rather standard.)
The tricky part is that this is nowhere near enough time, so careful planning has to go into preparing for oral argument. You need to hit what you think is most important, and even more important, you have to allow for questions for the judges. (The questions are the most important part. First, it shows that the judges are engaged. Second, it is your chance to be your most persuasive and give the judges what they might need to rule in your favor.)
So, while I had 12 minutes for my initial portion, I tried to prepare 8 minutes. That was difficult. I had to pare down all that I wanted to say to the really important stuff. You can take a look at my notes, but by the time I went to use it, I had scribbled all sorts of extra stuff on it, based on last-minute ideas.
Then during the oral argument itself, one has a very delicate tango to dance. You have to respond to the judges. Their questions highlight the issues of concern in their minds and if you don’t adequately address them, you’re toast. So it means that whatever you prepared can get tossed out the window rather rapidly, and you are doing extreme mental gymnastics to answer their questions while paring in your mind so that you still get across the critical stuff. (One way to do this, and of course I did, was to prioritize items in one’s notes, and then just chop away, in real time, the lower priority items.)
After the Library got its chance, we then went to my rebuttal, and the purpose here is to try to counter points from the Library’s presentation, and to maybe stress a final point.
The standard texts on oral argument stress that
The purpose of the briefs is to tell the Court how to rule
in your favor. The purpose of oral argument is to tell the Court
why they should rule in your favor.
I hope I did that.
So, how did it go? It was nice that the Court was fully engaged. I got my points across. I even had one judge say that she found the case quite fascinating. It must be admitted that this is not a standard run-of-the-mill case that they see every day. But I can’t predict the outcome.
What happens next is that the judges go into chambers to decide all the cases they heard yesterday (12 of them), and then the opinion gets written up. That will appear probably in 2 to 3 months.
By the way, folks might ask whether I appeared barefoot before them. This was something I seriously and fully considered. I have had other barefooters tell me that I really had to, to show them I was really serious. But I think the correct decision is what I did: I wore shoes. The reason, and I was ready to use this reason in case any judge asked me why I wasn’t barefoot, is
I’m here to argue this case, not some different theoretical case of whether I can appear barefoot before you.
It was hard enough fitting all I wanted into the 15 minutes. Time arguing about me being barefoot before the court would have wasted the time that would be better put to arguing the law in the case I am trying to win.
Great entry Bob! As usual you show not only your experties, but you sound legal judgement and strategy. I most certianlly back your decision to appear in full suit, for all the reasons you explain. I also believe that showing the judge you were willing to forego your comfort and personal beliefs to show respect for the court and the rule of law boosts your credibility. Now I know why I have taken to referring to you as a master of legal strategy.
Bob, I wish you all the luck in the world and hope you win the case. Because if you do it will be a great victory for us barefooters. And maybe this case could be used in future arbitrary discrimination lawsuits, I hope.
In your presentation to the court you mentioned:
“Dictating “decorum” is really rather tricky. We can look at the 1970s, when school administrators were absolutely convinced that “decorum” required short hair on boys. Again, historically, long hair and beards on men were common, but in the mid-20th century, fashions had changed. In a well-known at the time court case, Jackson v. Dorrier, the Court said:
There is evidence to support the conclusion that the wearing of excessively long hair by male students at Donelson High School disrupted classroom atmosphere and decorum, caused disturbances and distractions among other students and interfered with the educational process. Members of faculty of Donelson High School testified that the wearing of long hair by Jackson and Barnes was an obstructing and distracting influence to a wholesome academic environment.
The “excessively long hair” in this case reached his shoulders. ”
And a few years earlier, it would not even need to reach his shoulders. I saw a dress code from a high school in 1967. It read that boy’s hair must not cover any part of their ears, not go over the collar, and must “conform to the shape of the head”. It’s as restrictive as the army! What on earth for? That was 3 years after the the british rock stars came to the US and made the boys want to grow their hair. But by the early 70s, most boys and young men had that length hair and no one cared. So they switched their “decorum” to mean shoulder length, since they could not stop the “Beatle-length” hair anymore. Shows you how phony that decorum thing really is.
Beach Bum, let me clarify that the quote is from a presentation I gave to the Board of Trustees of the library, before the lawsuit and hoping to avoid it. I was told in advance of that presentation that “decorum” was the reason for the rule, so that is what I focused on (though I did mention safety, just in case).
You are so right about decorum in general. It varies with the times. When I was in high school, there was some sort of historical celebration going on so the student council lobbied for the boys to grow beards (just as the town elders were doing). They were successful. The sky did not fall (again, as you said, showing how phony the decorum thing really is).
The Library switched off of decorum pretty quickly when they figured it would be a loser in court. So they instead concocted different excuses to justify their belief, deep in their hearts, that they just couldn’t allow bare feet.
Ew. Have you ever considered dedicating your time to less idiotic pursuits? And stay out of my library.
I try not to let my life be dictated by the ignorance of others.