McKinney v. Huntsville School District

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

JESSICA McKINNEY,

as next friend and legal guardian of

K.P., a minor PLAINTIFFS

CASE NO. 5:18-CV-5067

HUNTSVILLE SCHOOL DISTRICT,

and ROXANNE ENIX in her individual capacity

as Principal of HUNTSVILLE HIGH SCHOOL

and JOHN DOES 1-10 in their individual capacities DEFENDANTS

MEMORANDUM OPINION AND ORDER

Currently pending before the Court are a Motion to Dismiss (Doc. 10) and Brief in

Support (Doc. 11) filed by Defendants Huntsville School District, Roxanne Enix, and John

Does 1-10 (Huntsville School Board members). Plaintiff Jessica McKinney, as next friend

and legal guardian of K.P., has submitted a Response in Opposition to the Motion to

Dismiss (Doc. 17). The Court heard oral argument on the Motion during a hearing held

on July 19, 2018, at which time it GRANTED Defendants’ Motion from the bench. This

Opinion and Order memorializes that ruling. To the extent anything written here differs

from the Court’s pronouncements from the bench, this Opinion and Order controls.

1. BACKGROUND

On Saturday evening, February 24, 2018, K.P., a student at Huntsville High

School, posted to social media a photograph of himself wearing a trench coat and beanie

while posing with an assault rifle. The photograph did not include a caption. The next

morning, after reading several comments mentioning school shootings, K.P. removed the

photo and posted a second photograph of himself in the same clothing without the assault

rifle. This time, however, he included a caption that read, at least in part, “If | wanted to

make an impact | would choose a much more high profile crowd th[a]n a bunch of hicks

and jocks who are never going to be anything of particular value.” (Doc. 6, p. 13). In the

interim, other students from the school viewed the photo and commented on it, and school

officials were notified. Over the next several days, concerned parents, students, and

teachers contacted the school, requesting to know how the school was going to handle

the perceived threat and whether it was safe to come to work or to bring a pupil to the

school.

In response to these events, K.P. was initially suspended for ten days.

Subsequently, the School Board expelled him for 365 days. As part of this year-long

expulsion, K.P. will be allowed to take the classes necessary for graduation through an

online program called A+, provided to him by the District. This will ensure that he remains

eligible to graduate on-time, and any credits that he earns from the program will appear

on his transcript and will not note that they were earned through this program while he

was expelled.

Plaintiff's Complaint contends that Defendant Huntsville School District (“District”)

violated K.P.’s free speech (Count I), procedural due process (Count II), and substantive

due process rights (Count III). Plaintiff also claims that Defendant Enix (the Huntsville

High School Principal) violated K.P.’s free speech rights (Count IV) and also defamed him

(Count V). Additionally, Plaintiff claims that Jonn Doe School Board Defendants violated

K.P.’s free speech rights (Count VI).

Defendants filed a Motion to Dismiss Counts III, IV, V, and VI pursuant to Federal

Rule of Civil Procedure 12(b)(6). (Doc. 10). They argue that Plaintiff fails to state a claim

for substantive due process violations (Count III) because, in punishing K.P., the District

did not act arbitrarily and capriciously but rather in accordance with its legitimate interest

in school order and safety. (Doc. 11 at 4). Defendants also argue that qualified immunity

protects Enix and the School Board members from damages and therefore request that

Counts IV and VI be dismissed. Finally, Defendants argue that the defamation claim

(Count V) against Enix should be dismissed due to qualified privilege.

ll. LEGAL STANDARD

To survive a motion to dismiss, a pleading must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). The purpose of this requirement is to “give the defendant fair notice of what the

Claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93

(2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court must

accept all of a complaint’s factual allegations as true and construe them in the light most

favorable to the plaintiff, drawing all reasonable inferences in the plaintiff's favor. See

Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).

However, the complaint “must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” /d. “A pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’

Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.” /d. In other words, while “the pleading standard that Rule 8 announces

does not require ‘detailed factual allegations,’ .. . it demands more than an unadorned,

the defendant-unlawfully-harmed-me accusation.” /d.

lll. DISCUSSION

A. Count Ill: Substantive Due Process

Substantive due process claims may be stated in two different ways. First, a

plaintiff may allege that the government has infringed her fundamental liberty interests.

These claims are generally limited to protecting recognized liberty interests such as

“matters relating to marriage, family, procreation, and the right of bodily integrity.” Albright

v. Oliver, 510 U.S. 266, 272 (1994). Second, the Supreme Court has also recognized

substantive due process claims when government actions “shock the conscience.” See

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-53 (1997); Mendoza v. U.S. ICE, 849

F.3d 408, 420-21 (8th Cir. 2017); Moran v. Clarke, 296 F.3d 638, 645, 647 (8th Cir. 2002).

However, when a specific constitutional amendment provides an “explicit textual

source of constitutional protections against a particular sort of government behavior, that

Amendment, not the more generalized notion of substantive due process, must be the

guide for analyzing those claims.” Stewart v. Wagner, 836 F.3d 978, 983 (8th Cir. 2016)

(quoting Lewis, 523 U.S. at 842) (quotation marks omitted). For example, a claim of arrest

without probable cause, “even if labeled a claim of malicious prosecution, ‘must be

judged’ under the Fourth Amendment, not substantive due process.” /d. (quoting A/bright

v. Oliver, 510 U.S. 266, 270-71 & n.4 (1994)); see also Brandenburg v. Hous. Auth. of

Irvine, 253 F.3d 891, 900-01 (6th Cir. 2001) (finding a substantive due process free

speech claim impermissibly duplicative of a First Amendment free speech claim).

Plaintiff fails to plead a plausible substantive due process claim. First, Plaintiff does

not identify any fundamental liberty interests aside from free speech. Second, Plaintiff

makes no assertion that the District's behavior shocks the conscience and provides no

facts that would undergird such a claim. Finally, Plaintiff's free speech claim under

substantive due process, at least as presently pleaded, is impermissibly duplicative of the

First Amendment claims. Consequently, for several reasons, Plaintiff fails to state a

cognizable claim of substantive due process. Therefore, Count Ill of the Complaint is

DISMISSED.

B. Counts IV and VI: Qualified Immunity

Certain government officials who are performing “discretionary functions” are

immune from civil action as long as their conduct does not “violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Hope

v. Pelzer, 536 U.S. 730 (2002) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))

(quotations omitted). “The contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987). When correctly applied, qualified immunity “protects all but the

plainly incompetent or those who knowingly violate the law.” Hollingsworth v. City of St.

Ann, 800 F.3d 985, 989 (8th Cir. 2015) (citing Taylor v. Barkes, 135 S.Ct. 2042, 2044

(2015)) (quotation marks omitted).

Courts analyze two elements to determine whether qualified immunity applies: (1)

whether the official violated plaintiffs constitutional rights; and (2) whether those rights

were Clearly established. Saucier v. Katz, 533 U.S. 194, 199-200 (2001). The order of

operations in the courts’ analysis of the elements is discretionary. Pearson v. Callahan,

555 U.S. 223, 236 (2011). As the Court noted during the hearing on this Motion, resolution

of the “clearly established” prong of this inquiry is dispositive in this case.

To determine whether the rights were “clearly established” so that a reasonable

official would have been on notice, existing precedent must place the constitutional

question “beyond debate.” Hollingsworth, 800 F.3d at 989 (citing City & Cnty. of S.F., Cal.

v. Sheehan, 135 S. Ct. 1765, 1774 (2015)). The Supreme Court has emphasized that

courts should not “define clearly established law at a high level of generality.” Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quotation marks omitted). Because

the underlying policy issue is whether a public official is on notice, courts examine only

“the cases extant at the time of the acts alleged and make a judgment of law as to what

a reasonable public official would or should have known at the time.” Wright v. S. Ark.

Reg Health Ctr., Inc., 800 F.2d 199, 203 (8th Cir. 1986).

The Supreme Court has provided guidance for school discipline issues implicating

the First Amendment, but it has not addressed school discipline arising from alleged

threats of violence outside of school-approved events, including social media postings.

See D.J.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 761 (8th Cir. 2011); see

also generally Morse v. Frederick, 551 U.S. 393 (2007) (addressing school discipline for

off-campus speech at school-sponsored events); Tinker v. Des Moines Indep. Cmty. Sch.

Dist., 393 U.S. 503, 506, 513 (1969) (addressing school discipline for speech causing

substantial disruptions).

However, lower courts have analyzed out-of-school-speech discipline cases and

have developed two different complementary approaches: substantial disruption and true

threat analysis. D.J.M., 647 F.3d at 761. In cases applying both of these tests, the Eighth

Circuit has upheld a variety of student discipline for off-campus speech. See S.J.W. ex

rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 777 (8th Cir. 2012) (reh’g en

banc denied) (applying substantial disruption exception to off-campus social media

posts); D.J.M., 647 F.3d at 761-67 (applying both true threat and substantial disruption

exceptions to off-campus text messages); Doe v. Pulaski Cnty. Special Sch. Dist., 306

F.3d 616 (8th Cir. 2002) (applying true threat exception to off-campus writings); see a/so

Keefe v. Adams, 840 F.3d 523, 531 n.6 (8th Cir. 2016) (reaffirming substantial disruption

exception to off-campus social media posts). Thus, it is now well-established law within

the Eighth Circuit that under certain circumstances school officials may discipline students

for off-campus expressive activity without offending the First Amendment. Differently

stated, there is no clearly established right for students to post images that may be

threatening to a school or its members or that substantially disrupt the school

environment.

The Court concludes that Principal Enix and the John Doe School Board Members

are entitled to qualified immunity for the actions they took in response to K.P.’s posts. At

the time of K.P.’s social media posting, school officials would not have been on notice

that they were violating his clearly established rights under the First Amendment. To the

contrary, a reasonable school official would have known that, under longstanding Eighth

Circuit precedent, schools could discipline students for out-of-school speech without

offending the First Amendment when the speech involved school safety or a disruption to

the school. Ten days after the Parkland school shootings and in light of existing law, a

reasonable school official could reasonably conclude that disciplining K.P. for his conduct

was permissible under extant law. Consequently, Principal Enix and the School Board

Members are entitled to qualified immunity. As a result, Counts IV and VI of the Complaint

will be DISMISSED.

C. Count V: Defamation

To establish a claim for defamation under Arkansas law, a Plaintiff must show

“(1) [that] he sustained damages, (2) that [Defendants] published a false statement

concerning him, (3) that the statement of the fact was defamatory, (4) that [Defendants]

acted with knowledge that the statement was false, and (5) that the publication of the

statement was a proximate cause of damages.” Calvary Christian Sch., Inc. v. Huffstuttler,

238 S.W.3d 58, 69 (Ark. 2006).

Plaintiff has not sufficiently alleged a plausible claim of defamation. Plaintiff does

not plead sufficient facts from which the Court can infer that Defendant Enix made a false

statement of fact. Plaintiff makes broad, conclusory statements and points to only one

specific instance in which she alleges Defendant Enix defamed K.P. Indeed, she hangs

the defamation claim exclusively on Principal Enix’s letter to Plaintiff in which she informs

Plaintiff that K.P. had been suspended “because of terroristic threatening of school

shooting posts on social media. . .” (Doc 1., 919). However, nowhere in the Complaint

does Plaintiff allege that this was not the reason for the suspension, which would be

necessary for this to qualify as a false statement. Consequently, the defamation claim is

insufficiently pleaded and will be DISMISSED.'

There are two final matters before the Court. First, Principal Enix and the John Doe

School Board Members appear as Defendants only in Counts IV, V, and VI of the

Complaint. Because the Court has dismissed these counts by this Opinion and Order,

these Defendants are also entitled to be, and hereby are, DISMISSED from this action.

Relatedly, Plaintiff has now learned through discovery the identity of the School Board

Members identified only as John Doe Defendants in Count VI. Plaintiff therefore filed a

Motion for Leave to Amend (Doc. 20) to substitute their real names for the John Doe

designations. However, as Count VI, the only Count in which they appear, has been

dismissed, the Motion for Leave to Amend (Doc. 20) is MOOT.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 10) is

GRANTED as follows: Counts III, IV, V, and VI are DISMISSED WITHOUT PREJUDICE.

IT tS FURTHER ORDERED that Defendants Roxanne Enix and John Does 1-10

are DISMISSED from this case, and the Clerk is directed to update the docket sheet to

reflect their dismissal from this action.

IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to Amend (Doc. 20) is

MOOT.

1 Because the defamation claim is insufficiently pleaded, the Court need not reach the

question of whether qualified privilege applies.

IT IS SO ORDERED on this | d day of Octobér, 2018.

[/

y LPr><

PIMGTHY L7 BROOKS

UNITED STATES DISTRICT JUDGE

10