Marissa Barnwell, a River Bluff High School student, her parents and their lawyer, Tyler Bailey, hold a news conference in Columbia, S.C., on Thursday, March 9, 2023, regarding a lawsuit filed against Lexington School District One. Marissa said she was walking quietly to class and decided not to stop for the pledge or a moment of silence that followed. A teacher yelled at her, confronted her and pushed her against a wall. (Alexa Jurado/The State via AP)
A South Carolina honor roll student says that she was assaulted by a teacher and pushed up against a wall because she didn’t recite the Pledge of Allegiance.
Marissa Barnwell, 15, says that River Bluff High School teacher Nicole Livingston assaulted her in late November in an apparent attempt to stop the student from walking in the hallway as the Pledge of Allegiance was recited over the school loudspeakers.
Although Barnwell was walking “silently in a non-disruptive manner to her class” during the Pledge of Allegiance, teacher Nicole Livingston allegedly accosted her by “yelling and demanding that M.B. stop walking and physically assaulting her by pushing M.B., on the wall and forcefully touching M.B., in an unwanted way without her consent so that she would stop walking in recognition of the Pledge of Allegiance and Moment of Silence that was announced at the conclusion of the Pledge,” according to a lawsuit filed in February.
Barnwell has publicly acknowledged that she is the student in the lawsuit, although the complaint refers to her by her initials only, as she is a minor.
According to the complaint, Livingston then took Barnwell to school principal Jacob Smith’s office.
“M.B. was extremely upset and emotionally disturbed about being taken to the principal’s office as she believed she was being punished for having done something wrong,” the complaint says.
Smith allegedly told Barnwell that he would review surveillance footage from the incident and sent her back to class. According to the lawsuit, the principal “never informed M.B., that she was exempt from participating in the Pledge of Allegiance and should not be penalized for failing to participate.”
The complaint notes that River Bluff High School policy mandates that “all students say the Pledge of Allegiance at a time approximately around 8:40 a.m.,” in accordance with state law — but that state law also says that anyone who doesn’t want to participate is “exempt from participation and may not be penalized for failing to participate.”
The lawsuit also notes that Supreme Court rulings have “made it clear” that the First Amendment “forbids compelling saluting or pledging allegiance to the flag,” although not all teachers appear to understand this. South Carolina law allows a person who doesn’t want to participate in the Pledge of Allegiance to leave the classroom, remain in their seat, or “express his nonparticipation in any form which does not materially infringe upon the rights of other persons or disrupt school activities.”
Barnwell’s parents, Fynale and Shavell Barnwell, have sued Livingston, Smith, the Lexington School District One, and the district superintendent on their daughter’s behalf. They allege negligence, reckless infliction of emotional distress, violations of Fourteenth Amendment Equal Protection guarantees, and First Amendment Free Speech violations.
At a press conference on Thursday, Barnwell said that prior to the alleged altercation, she had never met Livingston.
“I had never seen this lady a day in my life, so when she approached me so angry and upset, I had not known how to react to her,” Barnwell said. “She approached me, she grabbed me, she pushed me up against the wall. I was just not prepared for that.”
Barnwell said that Smith, the principal, appeared to take the teacher’s side.
“He’s just like, ‘Shouldn’t you be proud of your country?”” Barnwell recalled.
The student said that it’s “emotionally damaging and mentally damaging” to have to see Livingston in the hallways at school and that she believes that “people at my school do not make me feel like I belong, make me feel like I’m safe.”
Barnwell said that she hasn’t recited the Pledge of Allegiance in years.
“I haven’t said any of those things since the third grade, once I realized that in those pledges you say ‘liberty and justice for all,’” Barnwell said at the press conference. “Is America really liberty and justice for all? After that I just realized I’m just not going to say this Pledge of Allegiance anymore.”
Barnwell noted that Livingston is a “special needs instructor” at the school, which is confirmed on the school’s website.
“The fact that she had the will to do this to me, I cannot imagine what she is doing to the special needs students who can’t even speak up for themselves,” Barnwell said.
Barnwell’s parents are seeking an undetermined amount of compensatory and punitive damages.
The South Carolina Department of Education filed a motion Friday to be dismissed from the case, arguing that the complaint didn’t sufficiently explain why the department is involved.
“[T]he Complaint does not affirmatively allege that any of the three named individual Defendants were employed by this Defendant, nor acting on behalf of the Department,” the motion to dismiss says (citations omitted). “Nor does the Complaint name any individuals who were actually acting as employees or agents of the Department for which the Department [is liable], nor any factual basis explaining why the Department is even a named Defendant in this suit.”
“[N]or are there any fact-based allegations made against the Defendant Department individually,” the complaint adds.
Barnwell’s lawyer told Law&Crime that he expects to prevail in court.
“I’m not surprised that the S.C. Dept. of Education is seeking to avoid accountability,” attorney Tyler Bailey said in an email. “All of the powers that be have attempted to ignore Marissa’s constitutional rights since the day her rights were violated. We will address their motion to dismiss in a filing later this month and we’re confident that the court will rule on the side of justice in Marissa’s favor.”
A representative for the Lexington School District One told Law&Crime that the attorney representing the district is working on a response to the lawsuit at this time. Citing the “ongoing legal matter,” the school declined to comment further. It is unclear if Livingston and Smith have retained attorneys.
You can read the lawsuit here.
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