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McCloskey Suit Against Villa Duchesne Faces ‘Uphill Battle,’ Lawyers Say

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Bill Freivogel by Evie Hemphill / St. Louis Public Radio. Others provided
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From left, attorneys Eric Banks, Bill Freivogel and Sarah Swatosh join January's Legal Roundtable.

A white student who sued Villa Duchesne, alleging the school discriminated against her by “encouraging and facilitating race-based aggression,” will likely have trouble winning her lawsuit, members of the St. Louis on the Air Legal Roundtable agreed.

“I have never heard of a lawsuit under these facts using this theory before,” said attorney Eric Banks of Banks Law LLC. “I would suspect it’s going to be an uphill battle.”

The student’s suit was filed by Mark McCloskey, who gained national fame after brandishing his gun at protesters walking past his house last summer. He and his wife, Patricia, face criminal charges for their actions.

Now he’s suing the private Catholic school in Frontenac on behalf of an anonymous student. The lawsuit claims the high school senior, referred to as Jane Doe, was threatened by her peers and falsely accused of stating that “Black lives do NOT matter.” Administrators turned a blind eye to the harassment, the suit says.

But while the allegations are eye-catching, members of the Legal Roundtable found the legal basis for the claim to be thin. For all its rhetorical flourishes, the lawsuit rests on the Missouri Merchandising Practices Act, suggesting an education is a commodity one might purchase. Panelists agreed they’d never heard of that law being successfully applied to a school.

They were equally skeptical of the lawsuit’s claims that the school violated its contract with the student, which promises a “safe environment,” “integrity” and “dignity for all students.”

“How do you demonstrate that there’s not integrity, or safety? The girls never committed any violence against Doe,” noted Sarah Swatosh, a partner with Sedey Harper Westhoff. “I just don’t know how they’re going to prove an actual breach of contract.”

She added: “I think Mr. McCloskey is trying to get to have a more heated discussion about race relations in St. Louis. I don’t think he’s intending to prove a breach of contract claim.”

The lawsuit also claimed that the school was trying to indoctrinate the student with “critical race theory.” The Trump administration had inveighed against its teaching in public schools.

But beyond the matter of Trump’s perspective not being shared by a new administration, attorney Bill Freivogel, a professor at Southern Illinois University-Carbondale, noted that Villa Duchesne had every right to preach what it wanted to preach: “Villa is not a public school.”

‘Lily-white law firms’

The panelists also discussed another matter related to McCloskey. A Circuit Court judge removed Circuit Attorney Kim Gardner from prosecuting the case after her campaign cited it in fundraising emails. That decision was recently upheld by the appellate court. Unless the Supreme Court intervenes, a special prosecutor will be appointed.

City taxpayers have recently spent $640,000 on such special prosecutors ($599,000 of it going to a firm investigating Gardner), the St. Louis Post-Dispatch reported. And where that money is going is a problem, Banks said. By his analysis, the three largest beneficiaries are all firms with no Black partners and only a smattering of Black associates.

“I believe that some of the special prosecutor possibilities should be divided in a more diverse and inclusive manner,” Banks said.

“I certainly think there’s an optics problem,” Swatosh agreed. “Kim Gardner is who the city elected. … Kicking her off in lieu of what you called ‘lily-white law firms’ does have an optics problem.”

The panel also discussed an age discrimination claim filed by former KMOV meteorologist Meghan Danahey and the bizarre legal battle underway on the St. Louis County Council, which involves two rival factions both claiming to have elected their candidate as chair.

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. The audio engineer is Aaron Doerr.

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Sarah Fenske joined St. Louis Public Radio as host of St. Louis on the Air in July 2019. Before that, she spent twenty years in newspapers, working as a reporter, columnist and editor in Cleveland, Houston, Phoenix, Los Angeles and St. Louis.

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