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TMCNet:  OHS coach, former Permian QB case appealed

[December 06, 2012]

OHS coach, former Permian QB case appealed

Dec 06, 2012 (Odessa American - McClatchy-Tribune Information Services via COMTEX) -- Former Permian quarterback and current assistant Odessa High football coach Tate Smith's lawsuit against Odessa College and one of his instructors is still pending in federal court, although defense attorneys have appealed one of Midland Judge Robert Junell's rulings.

Appellate judges heard arguments from both sides on Wednesday, although no decision was entered into the federal court records website.

Junell dismissed parts of the case in February, but allowed the case to continue with regard to Smith's 14th Amendment claims that by not following its own rules, Odessa College and instructor Dessie Davis deprived him of a chance to play football at the University of New Mexico because the failing grade made him ineligible for a scholarship.

Davis' attorneys, Tom Brandt and Joshua Skinner, have filed an appeal on the instructor's behalf -- which has suspended the original case pending resolution of the appeal at the U.S. Fifth Court of Appeals in New Orleans, La. -- challenging whether the 14th Amendment can be applied to an academic decision.

Even if the 14th Amendment does apply, Davis' attorneys wrote in an appeal brief that the situation still did not violate the amendment.

"Simply stated, Mr. Smith was provided all the process that might be required by the Due Process Clause of the Fourteenth Amendment," according to the brief.

Brandt said the arguments, which took place Wednesday morning, went well and he believes the judges were receptive to his arguments.

"They seemed like they weren't too impressed that Mr. Smith was trying to make a federal case out of a grade dispute," Brandt said.

Because Davis is an employee with a public college, Brandt said he believes she is eligible for qualified immunity, which is given unless it is determined she violated a clearly established law.

Smith's attorney, Midlander Steve Hershberger, began his appeals brief by qualifying the importance of being a quarterback in West Texas.

"He is an heir to the tradition of MOJO of the Little Southwest Conference in West Texas and Friday Night Lights, now of literary, motion picture and television fame," the brief stated. "As such, he had come out of Spring Football as the starting quarterback at the University of New Mexico. Where, incidentally, another Permian quarterback, Stoney Case, had starred and used as a springboard to play in the National Football League." Smith was ineligible to play in 2009, and only played parts of four games in 2008 at UNM, splitting time with another quarterback on the team, according to his biography on the UNM athletics website.

In his brief, Hershberger states that the question is whether Davis treated the paper objectively.

"It involves whether she acted arbitrary in treating the final paper as tardy when Smith had utilized the Odessa College computerized grading system timely," according to the brief.

In his amended petition, Smith claimed that he submitted a paper online for the English class, but it was originally denied because it was not in the proper format.

Davis then offered to give him a maximum grade of a 70 if Smith turned the paper in by 5 p.m. that day, but then refused to accept the paper when he emailed it to her later that day because he did not submit it through the online application.

Smith claimed in the amended petition that because he had two-a-day football practices at UNM and meetings afterward, he did not receive the email in time and was too late to submit the paper.

Smith scored a 45 on the paper, and has claimed in court documents that if he wasn't docked 30 points, he would have passed and still been eligible for his scholarship at UNM.

As per Odessa College rules, Smith also went through the appeals process to contest his grade, which was ultimately denied on Oct. 16, 2009.

Contact Jon Vanderlaan on twitter at @OAcourts, on Facebook at OA Jon Vanderlaan or call 432-333-7763.

___ (c)2012 the Odessa American (Odessa, Texas) Visit the Odessa American (Odessa, Texas) at Distributed by MCT Information Services

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