By Gaylen Duskey
Calhoun schools were in the news recently not necessarily for a good thing that happened but because of something that happened that turned out to be a good thing.
According to an article on the internet site MetroNews: “The National Transportation Safety Board is using a school bus wreck in West Virginia as an example of why alcohol detection systems should be put in its school buses.
“The board cited the March 2024 school bus wreck in Calhoun County in its release.
“The wreck, caused by bus driver Jeff Brannon driving while under the influence of alcohol, seriously injured three students and impacted the other 16 on the vehicle. The school bus experienced a rollover crash near the Calhoun County Middle School because Brannon swerved off the road and tried to overcorrect.
“Brannon’s blood alcohol concentration was 0.161 grams per deciliter when authorities tested him.
“Brannon was convicted last year and sentenced to 22 to 110 years in prison.”
So the Calhoun County school system has been in the news before and with the Jacob McCumbers trial looming out there it probably won’t be the last.
But neither of these legal things are likely to go to the U.S. Supreme Court but two events which happened before did and surprising both had to do with religion and both had to do with freedom of speech.
Read on.
In 1995, a Calhoun County school board meeting took an unexpected turn when a masked man dressed as the devil disrupted the proceedings to protest the use of the “Red Devil” mascot at Calhoun High School. The man, later identified as Thomas Berrill, a resident of Grantsville, had been campaigning against the mascot since 1993, claiming that his religious beliefs compelled him to act. According to Berrill, his Lord and Savior had commanded him to demand the removal of the Red Devil symbol, which he believed was harmful to the children of Calhoun County.
Frustrated by the lack of response to his previous efforts, Berrill decided to make a dramatic statement. He requested to be added to the meeting agenda under the pseudonym “Mr. DeVille” but did not disclose his true identity or his plan to appear in a devil costume. When the meeting began, Berrill entered the room wearing a mask that concealed his face and began “prancing” around the room, addressing the attendees without being called upon. He declared that he was the Red Devil and sarcastically thanked the board for keeping the devil in schools while excluding God. His actions caused significant anxiety among the parents and children present, with some attendees expressing fear for their safety and concern about potential violence.
The meeting was held in a room with only one exit, which heightened the tension. Witnesses testified that they were frightened and unsure of Berrill’s intentions, with some fearing he might be armed. The disruption lasted between one and a half to ten minutes, during which the regular business of the meeting was brought to a halt. Berrill ignored repeated instructions to sit down or leave, and only exited the room when the board president approached him.
Berrill was arrested and charged with two misdemeanors: disrupting a public meeting under West Virginia Code 61-6-19 and wearing a mask in public under West Virginia Code 61-6-22. He was convicted by a magistrate court jury and sentenced to 90 days in jail for each charge, to be served concurrently, along with fines totaling $300. However, the magistrate failed to provide Berrill the opportunity for allocution—a formal chance to address the court before sentencing.
Berrill appealed his convictions to the West Virginia Supreme Court, arguing that his actions were protected under the First Amendment of the U.S. Constitution and Articles 7 and 16 of the West Virginia Constitution, which guarantee the rights to free speech and petition. He contended that his conduct was peaceful and aimed at communicating a grievance to the government, asserting that the line for permissible expression should be drawn at violence or the threat of violence, not at causing discomfort or alarm.
The court, however, found that Berrill’s actions disrupted the orderly conduct of the meeting and failed to follow established procedures for public comment. The court emphasized that First Amendment rights are not a license to infringe upon the rights of others or disrupt legitimate government functions. It ruled that the anti-disruption statute was a reasonable time, place, and manner restriction that served the government’s substantial interest in maintaining order during public meetings. Similarly, the anti-mask statute was deemed constitutional, as it aimed to protect public safety by prohibiting the concealment of identity in public spaces.
The court also noted that Berrill’s conduct, while intended to convey a message, was more likely to create confusion and fear than understanding. Witnesses at the meeting were preoccupied with assessing the potential danger of the situation rather than focusing on Berrill’s message. The court concluded that Berrill had failed to demonstrate that his conduct was likely to be understood as expressive of his intended message.
While the court affirmed Berrill’s convictions, it found that the magistrate had erred in denying him the right to allocution before sentencing. Allocution, a procedural right that allows defendants to personally address the court and present mitigating information, is considered a critical component of the sentencing process. The court ruled that the denial of allocution constituted plain error, as it affected Berrill’s substantial rights and the fairness of the judicial proceedings.
As a result, the West Virginia Supreme Court affirmed Berrill’s convictions but reversed the sentencing decision. The case was remanded to the Circuit Court of Calhoun County with instructions to resentence Berrill after granting him the opportunity for allocution. The court acknowledged that while Berrill’s actions were unlawful and disruptive, they appeared to stem from a sincere concern about the mascot issue. The court urged the lower court to carefully consider any reasonable allocution offered by Berrill during resentencing.
Years earlier actions of Calhoun schools were taken before the U.S. Supreme Court in a much less frivolous case.
In 1942, the West Virginia Board of Education mandated that public schools include salutes to the flag as a compulsory activity for both teachers and students. This policy led to a conflict with a family of Jehovah’s Witnesses here in Calhoun County, whose children refused to perform the salute due to their religious beliefs. As a result, the children were sent home from school for non-compliance, threatened with placement in reform schools typically reserved for criminally active youth, and their parents faced potential prosecution for causing juvenile delinquency.
The case gained national attention when Donald McGlothlin, the principal of Calhoun County High School, refused to expel a student, Lavaughn Kelley, who had declined to salute the flag during a patriotic assembly on Dec. 8, 1941, citing her religious beliefs. This was the day after the Japanese attacked Pearl Harbor and patriotism was at a fever pitch.
Given the day – the Monday following Sunday Dec. 7, 1941, “a day that will live in infamy” — it was not surprising when her refusal to salute the flag set off a firestorm that may not have happened during a different time and era.
McGlothlin believed in the importance of saluting the flag but opposed forcing individuals to do so, as he felt it undermined the principles of democracy. His refusal to enforce the policy led to his forced resignation after being brought before the Calhoun Board of Education.
Several families of Jehovah’s Witnesses challenged the school board’s policy, and the case eventually reached the U.S. Supreme Court. In a landmark 6–3 decision in West Virginia State Board of Education v. Barnette (1943), the Court ruled that compelling public schoolchildren to salute the flag violated their First Amendment rights, specifically the freedom of speech. Justice Robert H. Jackson, writing for the majority, argued that the First Amendment protects individuals from being forced to conform to a unanimity of opinion and that national symbols like the flag should not be given precedence over constitutional freedoms. The decision overturned the Court’s earlier ruling in Minersville School District v. Gobitis (1940), which had upheld a similar policy.
The ruling was a significant victory for individual rights and religious freedom, affirming that dissent and diversity of opinion are essential components of democracy.
Calhoun has an interesting history when it comes to going before the U.S. Supreme Court but it is Our History and our history has made us who we are.
