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Federal Judge Biery Continues to Vent in School Prayer Case with ‘Non-Kumbaya Order’

Posted Mar 21, 2012 5:30 AM CDT
By Debra Cassens Weiss

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U.S. District Judge Fred Biery of San Antonio continues to express his irritation with the firestorm over a school prayer case.

When Biery approved a settlement in February, he included a personal statement criticizing the politicians who “demagogued this case.” In the latest development, Biery refused to sanction school district officials for violating a nondisparagement clause, the Wall Street Journal Law Blog reports. But he offered some advice nonetheless in a document entitled “Non-Kumbaya Order: The Homo Sapien Saga Continues.”

“Silence is golden,” he wrote. “Or as grandmothers and moms have taught for generations: ‘If you can’t say something nice, don’t say anything at all.' ”

The settlement agreement approved by Biery in February allows students to pray at graduation, but bars school employees from initiating or joining prayers in the presence of students. It included a provision that says, “School district personnel will not disparage the plaintiffs.”

Hours later, Biery wrote, the school district superintendent criticized the “witch hunt” lawsuit in a television interview, and a director of the marching band later complained about a plaintiff’s “lies and false accusations” on Facebook.

Biery said he recalled only four instances or threatening or imposing sanctions during his 33 years of judicial service, and all involved parties or lawyers speaking words better left unspoken. In one instance involving feuding lawyers, “The court threatened to have United States Marshals take the two attorneys in front of the Alamo and be required to kiss each other. They quickly apologized and the unprofessional verbal sparring ceased.”

Biery hoped his latest solution could avoid a sanctions hearing. In his view, an apology was in order. “While Hollywood once proposed that ‘love means never having to say you’re sorry,’ life and litigation offer more realistic approaches to resolving disputes,” he wrote.

“The court does not expect the parties to hold hands and sing ‘Kumbaya’ around a campfire beside the Medina River,” Biery said, but he did offer a solution. He instructed the lawyers to certify that the plaintiffs, the superintendent and band director have read his order. He also offered the superintendent and band director the opportunity to sign a statement apologizing for their comments and pledging to abide by the settlement agreement. If that happens, the plaintiffs would sign a statement saying the apology is accepted and also pledging to abide by the agreement.

Biery said a show-cause hearing will be held if his suggestion is not acted upon. He ended with this admonition: "Trouble does not come from words unspoken, particularly in this age of emails, tweets, cameras and recorders."

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