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Saucy Federal Judge Issues ‘Non-Kumbaya Order’

SAN ANTONIO (CN) - In a "Non-Kumbaya Order," a federal judge ordered a South Texas school superintendent and band director to apologize for disparaging an agnostic family who sued to stop prayer at a high school graduation.

U.S. District Judge Fred Biery, who once threatened to sanction two bickering lawyers by making them kiss each other on the lips at the Alamo, subtitled his Non-Kumbaya Order "The Homo Sapien Saga Continues."

Biery found that Medina Valley Independent School District Superintendent James Stanberry and high school band director Keith Riley violated non-disparagement provisions of a February settlement in which the school district agreed to prevent employees from displaying religious symbols, though students would be allowed to pray at graduation.

Biery found that Superintendent Stanberry appeared in an interview on KSAT-TV hours after the settlement was approved, called the litigation a "witch hunt," and said, inaccurately, that the plaintiffs "wanted our teachers to stop wearing crosses.'"

A week later, Riley commented on a student's Facebook page: "[d]on't get me started on the lies and false accusations your friend ... made over last years['] issues." (Brackets as in the Non-Kumbaya Order.)

Judge Biery wrote: "Like a good cook, the court has purposefully let this latest matter dished up to the court simmer for several weeks. The reason for the delay was to see if further allegations were to be made once the emotions of the moments and media attention following the settlement agreement had subsided. The court has not been made aware of any.

"Silence is golden."

Biery gave the school officials 10 days to write and sign an apology. He directed the plaintiffs to then "sign, privately and personally" a statement, "your apology is accepted."

In his 7-page Non-Kumbaya order, Biery added: "The Court takes no pleasure in holding contempt hearings or sanctioning violations of court orders. Indeed, in thirty-three years of Texas and United States judicial service, the Court recalls only four instances of threatening or imposing sanctions, all of which involved words better left unspoken. Or as grandmothers have taught for generations: 'If you can't say something nice, don't say anything at all.' The motion, response and reply now pending before the Court would be instance number five.

The four previous events may be instructive to the parties:

"1. Two usually gentlemanly lawyers continued to pick at each other verbally. The Court threatened to have United States Marshals take the two attorneys in front of the Alamo and be required to kiss each other on the lips. They quickly apologized and the unprofessional verbal sparring ceased.

"2. One the other hand, two lawyers, notwithstanding the Court's admonitions and the jury's obvious displeasure, continued their antics. Because they were acting like third graders, the Court ordered them put in 'time out' for a portion of the trial. The misbehavior ceased, and the jury was quite pleased, much as school officials are pleased when students obey the rules and follow directions.

"3. A citizen, blessed to be an American, wrote to the Court that he would serve as a jury only if he were paid $100 per hour because of his 'importance' to his business. Upon being offered chauffeur service and room and board provided by the United States Marshals Service if he did not appear at the appointed time, the citizen timely came to jury service and apologized.

"4. A young man once disagreed with the Court's ruling as it affected someone with whom the individual had some sort of familial interest. After dropping the F-bomb in open court after the Court's ruling, the young man spent three days in jail."

In the present case, Biery granted a temporary restraining order in May 2011 that barred the benediction and invocation at the graduation ceremony and barred student speakers from engaging the audience in prayer.

The 5th Circuit tossed that ruling on the eve of graduation and the case became a lightning rod for Republican presidential candidates, who lambasted Biery.

At a Tea Party forum in September, Newt Gingrich said that he would "eliminate Judge Biery in San Antonio, and the 9th Circuit," if he were elected.

Gingrich called Biery "tyrannical" and "un-American" at the forum, according to the Christian Science Monitor.

Biery unloaded on the political "demagogues" in February, in approving a settlement, which included a personal statement on the drama since his order.

"To the United States Marshal Service and local police who have provided heightened security: Thank you.

"To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.

"To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.

"To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.

"To the lawyers who have advocated professionally and respectfully for their clients' respective positions: Bless you."

Follow @davejourno
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