Noblesville student suing for discrimination loses argument that Barker has ‘personal animus’ toward pro-life views

A Noblesville high school student alleging her school discriminated against her when it prohibited her from running a pro-life student group has lost her bid to transfer the case away from Senior Judge Sarah Evans Barker based on allegations of the judge’s “personal animus” toward pro-life views.

Noblesville High School student E.D. sued her central Indiana school district last month after approval of her group, Noblesville Students for Life, was revoked. The school argues the organization was “redirected” because it violated school policy.

E.D. has alleged violations of her First and 14th Amendment rights as well as other state and federal laws. But when her case was assigned to Barker in the U.S. District Court for the Southern District of Indiana, she argued those claims would not be fairly and impartially considered.

Barker referred the matter to Chief Judge Tanya Walton Pratt, “expressly denying” bias and averring that “certain factual allegations contained in the motion as a predicate for the relief sought are inaccurate or untrue, but that such factual errors are immaterial to a resolution of the motion.” Pratt reassigned the request for a new judge to herself, then denied the motion. Her ruling means the case will continue on Barker’s docket.

“In this case, Plaintiff has not presented compelling evidence that the presiding judge has any personal animus, personal bias, or prejudice against Plaintiff,” Pratt wrote in a Friday ruling. “Instead, Plaintiff’s counsel presents arguments based upon his inference from the presiding judge’s prior service on the board of hospitals that … she has bias or prejudice against a claim of potential litigants who are pro-life. He also bases his argument on a series of judicial rulings, but those rulings do not show a bias or prejudice against Plaintiff in this case.”

Specifically, E.D.’s counsel — Charitable Allies in Indianapolis — submitted an affidavit under 28 U.S.C. § 144 arguing that, “Almost all recent cases that have been filed in the Southern District of Indiana that mention pro-life issues in the fact pattern have been assigned to Judge Evans Barker … . Judge Evans Barker has consistently ruled against pro-life litigants.”

But pointing to a search on LexisNexis, Pratt said nine abortion-related cases have been filed in the Southern District of Indiana since 2013, three of which were assigned to Barker, two to Pratt, two to Judge Jane Magnus-Stinson, one to Judge Richard Young and one to Judge James Hanlon.

The three cases assigned to Barker, a Reagan appointee, include Whole Woman’s Health Alliance, et al. v. Rokita, et al., 1:18-cv-1904, in which Barker ruled both for and against the state and abortion providers in a case waging a “global assault” on Indiana’s abortion regulation mechanisms. The 7th Circuit Court of Appeals later stayed Barker’s injunction against five Indiana abortion laws in that case.

The second case is Caitlin Bernard M.D. v. Individual Members of the Indiana Medical Licensing Board, in their official capacities, et al., 1:19-cv-01660. There, Barker enjoined a 2019 law that would have prohibited a second-trimester abortion procedure often referred to as a “dismemberment abortion.” The state did not appeal that ruling but the case is proceeding in the district court.

And in 2017, Barker struck down a law requiring so-called “mature minors” to notify their parents before getting an abortion. The 7th Circuit affirmed in August 2019, but the U.S. Supreme Court granted cert and remanded for another 7th Circuit review in light of June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020).

The 7th Circuit again upheld the injunction on remand, though the appellate court was not unanimous.

The state then once again sought Supreme Court review, and the case was distributed for conference among the justices in June 2021. The Supreme Court’s docket has not been updated since.

“Plaintiff offers nothing but Plaintiff’s counsel’s own speculation that the presiding judge has ruled against pro-life causes in three cases over the last five years because of personal bias or prejudice rather than on consistently applying her understanding of current precedent established by the Supreme Court and Seventh Circuit,” Pratt wrote Friday in denying the motion for change of judge.

Specifically as to the Whole Woman’s Health case, E.D. argued Barker had ruled inconsistently as to expert witnesses in a manner that favored pro-abortion witnesses. But according to Pratt, “Plaintiff offers nothing but Plaintiff’s counsel’s own speculation that the presiding judge inconsistently ruled as to expert witnesses in Whole Woman’s Health based upon the expert’s pro-life or pro-abortion associations rather than on the Federal Rules of Evidence.”

Those “associations” included Barker’s service on the boards of Indiana University Health and Methodist Hospital, as well as her previous work for former U.S. Sen. Charles H. Percy, “who was a proponent of abortion and advocated against pro-life issues,” according to E.D. The plaintiff argued Barker should be disqualified from the case based on her work with Percy pursuant to 28 U.S.C. § 455(b).

But according to Pratt, “(t)he fact that the presiding judge served on the board of Indiana University Health and Methodist Hospital, which provide abortion services in addition to the countless other medical services provided, is too far attenuated from the issues in this case (freedom of speech and association relating to a pro-life high school club) to raise a reasonable question of impartiality.”

And as for Barker’s work for Percy, she did not “serve in governmental employment and in such capacity participate as counsel, adviser or material witness concerning the proceeding or express an opinion concerning the merits of the particular controversy,” as required for disqualification under 28 U.S.C. § 455(b)(3).

Finally, looking at the appearance of bias under 28 U.S.C. § 455(a), “The Court determines that the matters raised by Plaintiff would not cause a reasonable, well-informed, thoughtful observer to perceive a significant risk that the presiding judge will resolve the case on a basis other than the merits. Thus, the presiding judge’s impartiality cannot reasonably by questioned, and disqualification is not necessary.”

The case is E.D., et al. v. Noblesville School District, et al., 1:21-cv-03075.

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