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I recently chatted with a colleague representing a young boy with a chronic digestive disorder. The principal of his public school refused to allow him to snack during the day as his doctor required, and the child’s condition seriously deteriorated as a result. My friend brought a personal injury action on the boy’s behalf against the school board and the principal.

The case would have been much stronger if my friend had included a civil rights cause of action in her complaint. The child had a protected liberty interest in eating whatever and whenever his health required, and asserting this right as a due process claim would have yielded many benefits. To name just two, the child would have been eligible to recover punitive damages from the principal and attorney’s fees from both the principal and the school board. The defendants’ potential liability and eagerness to settle the case would have been correspondingly higher.

Unfortunately, we as lawyers tend to be unaware of the gaps in our own knowledge. The lesson from this case is that anytime one is litigating against the government, it is imperative to ascertain whether a potential civil rights claim lurks beneath the surface and what advantages asserting it may provide.

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