NASHUA — The family that accused Central High School girls’ cross country track coach Kelly Fox of bullying their daughter last year was in court on Monday arguing the Manchester School District, Board of School Committee and member Joe Briggs did little to stop, and in some cases took part in, retaliation for their daughters speaking out against a popular coach.
But Hillsborough Superior Court Justice Kenneth Brown indicated he may throw out some of the claims, asking both sides to hold off on discovery of evidence until he rules on the defendants’ motions to dismiss.
“Looking at your claim, I think some fall by the wayside,” said Brown.
Michael and Dina Conway alleged in a lawsuit filed in July that the school district and school board were negligent by failing to enforce directives and policies against bullying and retaliation. It also alleged Briggs made defamatory remarks about the Conway daughters during a school board meeting.
According to the Conway’s attorney John Sherman, the Conway daughters made a bullying claim against Fox to Superintendent of Schools Thomas Brennan. After taking the complaint, Sherman said, Brennan pledged there would be no retaliation against the girls.
In the weeks following, parents spoke out in support of Fox, there were articles in the New Hampshire Union Leader and supporters wore T-shirts that said, “I support Coach Fox,” to cross country track events.
According to the suit, Athletic Director Jane Clayton held a meeting with district officials, teachers and parents at which she expressed support for Fox. During that meeting one parent called the Conway daughters “cancerous” and that “next they’ll probably cry rape.” Sherman argued allowing this meeting and these types of comments to go unpunished fostered a hostile environment and should be considered retaliation.
“When they don’t follow their own policies, they can be found negligent of the policies they’ve created,” said Sherman.
School district attorney Robert Meagher argued that blaming the district and school board for comments made during meetings goes against their protected freedom of speech.
“You can’t just mention a district employee got up at a public hearing and that gets attributed to the school district,” said Meagher.
Sherman countered that the Conways never spoke publicly about this matter and when the school district was made aware of criticisms made against their family, nothing was done.
“For the school district and the school board to say this is a public issue and of public concern, it suggests they can take a private matter, make it public and protect themselves from a lawsuit, which isn’t logical,” said Sherman.
State and district bullying policies are not relevant, argued Meagher, because neither applies to a teacher or coach bullying a student.
“It has to be student on student conduct and if you’re going to say it is somehow retaliation, the retaliation has to be because of bullying, which refers back to the statute, which is referring to student on student (infractions) and I don’t think there are any allegations of that here except one student wore an ‘I support Coach Fox’ shirt,” said Meagher.
He also argued that claims of inflicting emotional distress should be dismissed as well.
Attorney Joe Kelly Levasseur argued his client, Joe Briggs, was listening to the concerns of constituents during the public meeting mentioned in the Conways’ suit and claims of defamation against him should be dropped.
“His statements don’t rise to level of defamation and even if you think so he has immunity,” said Levasseur.
Briggs was acting as a member of the school board and under the law has immunity from lawsuits, he added.
Brown asked Sherman why Briggs was singled out and other school board members were not. Sherman said it was because Briggs continued to bring the matter up at meetings, but when pressed by the judge again, he said, “This needs to stop.”
Brown said he would make a decision at a later date but sharing evidence between the plaintiff and defendant is on hold pending his decision.
The Conway family is asking for all available damages allowed under the law, including compensation, attorneys fees and other costs.
One of the daughters mentioned in the lawsuit, Elizabeth Conway, is having a standout year on the Central High School cross country team, still under the direction of Fox.