Green Bananas cannot sue your School District

Part 8 of the series Judicial Round Up – Corralling Cases That Affect Schools

This month, we are looking at the legal hurdles that potential plaintiffs have to overcome to sue a school district.

Have you ever seen a news story about a law or government action you thought was unfair and wished you could take it to court? It’s likely others have had the same thought. And sometimes the target of these thoughts might be your School District.

While our legal system allows people to sue School Districts, the public can’t just file a lawsuit because they are mad or disagree with District policy. To get into court, a controversy must be “ripe” (courts don’t accept green bananas) and a citizen needs “standing” to sue (if you don’t have a dog in the fight, you must sit down).

Federal court is harder to get into than State Court. Article III of the United States Constitution limits federal courts to deciding actual “Cases” or “Controversies.” This means federal courts do not act like a debating society for general complaints or controversies which are still in their infancy. Federal courts exist to fix real, specific problems.

If someone wants to sue your District in Federal court, the injury can’t be “conjectural” or “hypothetical.” The injury must be concrete (real, not abstract, and at least about to happen) and particularized (it affects you personally, not just the general public).

Here is an example of when a student will get their day in court and when a student will not:

• Example of when a student’s federal lawsuit can go forward: Your District does not permit a student to wear a political protest button. That student may have a concrete injury to the student’s First Amendment right to free speech because the student is not permitted to wear the button. This potential injury is not abstract and could happen again. This student has standing to sue your District.
• Example of when a student likely cannot establish ripeness or standing: A student in Miami, Florida does not like that your Alaska District recycles aluminum cans but not glass bottles. This student claims he’d like to visit Alaska someday, but he believes the bottles from your District will accumulate and pollute Alaska’s scenery so badly, the future trip will be ruined. This student’s case is too conjectural and it lacks any concrete injury. The case will be dismissed because this student does not have standing.   

These two examples highlight the extremes. And closer calls happen all the time.

In a recent case, an Appeals Court examined a close case on whether a case was a “green banana” or whether more facts were needed before the plaintiffs could sue over a school policy.  The case is Roake v. Brumley and the decision can be found at https://assets.aclu.org/live/uploads/2026/02/Roake-Fifth-Circuit-en-banc-decision.pdf .

Under a new Louisiana Law, public schools are required to display the Ten Commandments in each classroom. A group of parents sued to stop the law prior to its implementation, claiming it violates the Establishment Clause of the First Amendment to the United States Constitution which prohibits the government from establishing religion. The trial court granted a preliminary injunction in the case, which stopped the State of Louisiana and its school districts from implementing the law. The preliminary injunction prevented Louisiana’s school districts from displaying the Ten Commandments in schools.

The State of Louisiana appealed the preliminary injunction, claiming that the plaintiffs are a “green banana,” they “jumped the gun,” and the case was not ready for judicial review, in part, because placing the Ten Commandments into a larger display in the classroom might be constitutional.

The Fifth U.S. Circuit Court of Appeals agreed, deciding that the lawsuit was premature because the displays had not yet been posted in the plaintiffs’ classrooms, so the lower court had no basis to decide whether any specific display in a specific classroom violated the First Amendment.

Although the case was dismissed, the court acknowledged nothing in their decision prevented parents and families from challenging specific displays of the Ten Commandments in specific classrooms at a later point. The green banana might become a yellow banana.

Practice Pointers:

With every Commentary we like to provide Practice Pointers. This month, we suggest the following to School Board Members and Administrators:

If the District is ever sued, you should immediately contact counsel. But you should feel free to ask these initial questions when you first read the complaint:

• Has the party suing your District suffered an actual or imminent, concrete, and particularized injury, or is the claim based on a hypothetical, speculative, or future risk of harm?
• Is the injury fairly traceable to the defendant’s conduct, or is it the result of independent actions by a third party?
• Is the injury common to the general public, rather than personal to the plaintiff?
• Is the district being sued because a member of the public does not like a policy that is within your power to decide?

Depending on the answers to these questions, your District might be able to end the litigation quicker than you might think.