Judge upholds school’s ban

Rights violated, gun remark out of context, mom says

A federal judge in Little Rock ruled Wednesday in favor of the Cabot School District and Cabot School Superintendent Tony Thurman over limiting school property access to Michelle “Missy” Bosch of Cabot after statements she made at a Moms for Liberty meeting in 2022.

U.S. District Judge Lee Rudofsky ruled that Bosch had “waived the merits of her case in their entirety” after failing to respond to a defense argument that “any alleged retaliation for speech or any procedural due process violation was not the result of a policy, practice, or custom.” In a 37-page order issued Wednesday, Rudofsky called the case “primarily — though not exclusively — a First Amendment retaliation case” revolving around two major events: Bosch’s statement at the June 2022 Moms for Liberty meeting, and the Cabot School District’s subsequent decision to limit Bosch’s ability to enter onto school district property.

According to a complaint filed in federal court on July 25, 2022, Bosch said she attended a Moms for Liberty meeting at Crossroads Cafe in Cabot on June 9 that year to discuss school board candidates and other matters. Four days later, someone anonymously posted a 30-second audio clip to Facebook that she said was taken out of context to make it sound like she was talking about shooting up a school. Bosch was said to have expressed frustration with a school librarian, but in a handwritten statement dated June 13 to Cabot police, she wrote that the people at the meeting were talking about school security and “hypotheticals — shootings, getting into classrooms through doors propped open, etc.”

Bosch’s complaint argued that her civil rights were violated, saying Thurman, the school district and the city deprived her of her rights to free speech, due process of law, association and assembly, equal protection and privileges and immunities when she

was banned from school property without prior authorization. In her complaint, she said the school district’s decision violated numerous provisions of both the U.S. and the Arkansas constitutions and that the Cabot Police Department had engaged in a conspiracy with Thurman and the school district to deprive her of her constitutional rights.

The matter had been scheduled to go to trial on Feb. 6, but the trial date was canceled last November for Rudofsky to consider on that date motions for summary judgment filed by both the Cabot School District and the city of Cabot and a motion for partial summary judgment filed by Bosch. Following that hearing, Rudofsky said he would rule on the motions after determining if any factual disputes remained between the parties.

In his ruling, Rudofsky said that in Bosch’s response to the school district’s and Thurman’s statement of undisputed material facts, she had failed to address all but four of the facts she disputed other than to say those facts were disputed.

“She does not explain whether she is disputing the whole statement or part of it,” Rudofsky wrote. “She does not explain why she is disputing the statement. She does not provide any citation to the record to support her disputation.”

He went on to say that Bosch’s proper dispute of four of the material facts “cuts against her with respect to all the facts she did not sufficiently dispute,” adding, “Whether her failure to do so was a result of legal tactics or legal carelessness, it violated the clear rules of the road.”

Rudofsky said that Bosch also failed to adequately brief all of the claims contained in her amended complaint, that she instead only addressed the First Amendment retaliation issue, ignoring the issues of her procedural due process claim, substantive due process claims, equal protection claim, conspiracy to interfere with civil rights claim, state constitutional claims and her request for punitive damages.

Contacted by phone on Wednesday, Robert Steinbuch, Bosch’s attorney who argued the summary judgment motion on Feb. 6, expressed surprise at the ruling, calling it “bizarre.”

Steinbuch, a professor of law at the University of Arkansas at Little Rock W.H. Bowen School of Law, is also a columnist for the Arkansas Democrat-Gazette.

“We made a complaint with a variety of legal claims,” Steinbuch said. “By the time we got to summary judgment it was clear that two of the claims were the primary claims … the First Amendment claim and the due process claim.”

Steinbuch said the remaining claims were either not addressed or were only addressed “in a bare-bones fashion because we believed this case would be won or lost on the First Amendment claim or the due process claim.”

“As a case develops, you get a sense of what are the strong claims and what claims shouldn’t be pursued,” he said. “So we didn’t particularly pursue those other claims, and it seems he was a little upset because we didn’t come out and say those other claims are gone.”

About the lack of argument in regard to the majority of the defendants’ statements of facts, Steinbuch said those facts were unrelated to the First Amendment and due process claims that he said formed the strongest legal claims — a strength which Rudofsky referenced in his ruling.

“It weighs heavily on the Court that, absent waiver,” Rudofsky wrote, “at least one claim (the First Amendment retaliation claim with respect to the purportedly threatening statement) would likely have made it to trial and may well have ultimately succeeded.”

But, he continued, “fairness to both sides dictates that the Court scrupulously enforce the rules of the litigation road, even if doing so leads to a harsh result.”

In concluding his ruling, Rudofsky said he wished to emphasize that an appeal of his order “would be quite reasonable,” and said that he “would be neither surprised nor perturbed” if he were to be reversed by the 8th Circuit Court of Appeals. He wrote that should the order be reversed, he would “likely move this case to trial on the First Amendment claim with respect to the purportedly threatening statement made by Ms. Bosch,” adding, “it certainly seems like a reasonable jury could go either way on that issue.”

Steinbuch said he was mystified by the ruling but said it appeared to him that Rudofsky had ruled in such a way as to not have to address the merits of the case.

“It’s one thing if he ruled on the merits, but he avoided ruling on the merits entirely,” he said. “Sometimes judges prefer to avoid ruling on the thorny issues of the merits, and if they believe there is a procedural device to avoid that, they certainly will take it.”

Steinbuch said a decision on whether to appeal will have to be made later.

“That’s something I have to talk with the other two attorneys and our client about,” he said. “It’s not for me to make that decision.”

In addition to Steinbuch, Bosch is represented by Chris Corbitt of Conway and Clint Lancaster of Benton.

Thurman and the Cabot School Board are represented by Jay Bequette Jr., Phillip Brick and Cody Kees of Little Rock. Brick, who argued the summary judgment motion for the defendants, did not return an emailed request for comment by press time.