July 22, 1999

Just say Boo to drugs

By ANDREW BERGH
Special to the Journal

Nicknames are cool.

Everybody likes nicknames. And why not? Even insecure types like to think they're unique in some small way. So if a nickname sets you apart from the rest of the world (if only in your mind), why not have one?

People certainly aren't picky, as even common nicknames will do. No matter if there are almost as many Dicks and Peggys as Richards and Margarets, you've still got a teensy bit of cachet when your moniker and real name are different.

Another wonderful thing about nicknames: There aren't any rules. If you want a nickname that has nothing to do with your actual name, no problem. Just ask former Seattle Mariners pitcher Randy "Big Unit" Johnson.

And nicknames are classless, too. Although a billionaire many times over, even Mr. Gates can claim no exclusive right to "Bill."

But alas, there is one sad, unfortunate fact about nicknames: They aren't protected by the Constitution.

Oh sure, you can call yourself by your nickname all you want (although you might draw some funny looks along the way). But the cold hard truth is that you have no constitutional right to have others refer to you by your nickname. That, at least, is the stark, unpleasant message of Phillips v. Lincoln County School District.

The stage for this case is Waldport Middle School in Lincoln County, Ore. That's where 12-year-old Abby Phillips was attending the sixth grade. To family and friends, Abby had always been known by the nickname "Boo."

As part of the school's health curriculum, Abby attended a class on alcohol and drug education that was taught by a teacher named Briggs. One lesson covered the identity of various drugs and required students to list all the street names for marijuana and other drugs. In the past, Briggs's students had always listed "boo" as a street name for marijuana.

And therein lay the rub.

In all prior classes, Abby had turned in school assignments with her nickname, Boo, at the top of the page. But Briggs told Abby to use her full name on all assignments, as he required all other students to do.

On top of that, on at least one occasion when another student referred to Abby by her nickname, the teacher told the entire class not to use "Boo," as it is a street name for marijuana.

Then a teacher named Kilduff joined the fray.

When a classmate addressed Abby by her nickname, the teacher told the student not to use "Boo" because it is a synonym for marijuana. When Abby objected, Kilduff ordered her to sit in a corner of the classroom. (Court records don't saywhether she also had to wear a dunce cap.) Following that episode Abby was frequently teased by her peers, who called her nasty things like "pot" and "marijuana."

Later, for less than clear reasons, Briggs and Kilduff relented and let Abby be called Boo at school.

But the damage was already done, as poor Abby had been battered emotionally by not being allowed to use her nickname.

Abby's mother, Deborah Phillips, came to the rescue. She sued the school district in Lincoln County Circuit Court, seeking big bucks for her daughter's emotional distress. The gist of her claim was that Briggs and Kilduff had negligently made statements about Abby and the significance of her nickname when they knew or should have known that emotional harm might ensue.

Under Oregon law, however, mother and daughter faced a big-time roadblock called the "physical impact" rule. That rule says a claim for negligent infliction of emotional distress will not stand in the absence of physical impact or injury. And since mom had neither alleged nor proved that Abby suffered any physical injury from the teachers' statements, the trial judge granted the school district's motion to dismiss.

But every rule has its exceptions. No physical impact or injury is required, for example, if the defendant infringed on a legally protected interest or right. So in the subsequent appeal, mom argued that the physical impact rule didn't apply because the teachers had violated Abby's constitutional right to be named as she pleased.

The appeals court was unswayed.

There is no authority, the court said, for the proposition that one has the constitutional right to be named in accordance with his or her wishes. And since it felt the physical impact rule did indeed apply, the court ultimately affirmed the dismissal of Abby's claim.

As to whether justice got served, I will let you decide.

But I'll bet there are a lot of boo hoos right now in a certain Lincoln County household.

Previous columns:

• Warning: The soup contains MSG, 07-09-1999
• Grave concerns for the dead, 06-17-1999
• Another roadside distraction, 06-04-1999
• The perils of penitence, 05-21-1999
• Playing dice with your rights, 05-06-1999
• Escaping common sense, 04-15-1999
• The naked truth of Oregon's beaches and wildlife areas, 04-01-1999
• Here's 30 beers; take a hike, 02-25-1999