McKinney v. Huntsville School District

US DISTRICT COURT

WESTERN DIST ARKANSAS

FILED

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS ~—OLT ‘17 2018

FAYETTEVILLE DIVISION DOUGL ASF. YOUNG, Clerk

JESSICA McKINNEY, Deputy Clerk

as next friend and legal guardian of

K.P., a minor PLAINTIFFS

V. CASE NO. 5:18-CV-5067

HUNTSVILLE SCHOOL DISTRICT DEFENDANT

MEMORANDUM OPINION AND ORDER

Currently before the Court are a Motion for a Preliminary Injunction (Doc. 4) and

Brief in Support (Doc. 6) filed by Jessica McKinney, as next friend and legal guardian of

K.P., a minor, and a Response (Doc. 12) and Brief (Doc. 13) in Opposition submitted by

Defendant Huntsville School District (“the District”). The Court heard oral argument on the

Motion on July 19, 2018. Because of the impending start of the 2018 school year, the

Court scheduled a telephone conference for August 2, 2018, at which time it denied

Plaintiff's Motion from the bench. This Opinion and Order memorializes that ruling."

1. BACKGROUND

On Saturday, February 24, 2018,* during a weekend visit with his father, K.P., a

student at Huntsville High School, took a photo of himself wearing a trench coat and

holding an AR-15 rifle. His design in taking the picture was to emulate a 1920’s style photo

of a mobster with a tommy gun, a style he found aesthetically pleasing. After taking the

1 To the extent the Court's rulings here vary from the rulings made from the bench, this

Opinion and Order shall control.

2 The photo was taken and posted ten days after the deadly Parkland shooting in Florida,

where a gunman used an AR-15 to kill at least seventeen high school students.

picture, K.P. posted the photograph late Saturday evening on Instagram with no caption.

Though the exact time is not clear at this point, the next morning, K.P. opened his

Instagram account and saw that a number of individuals had commented on his post.?

These comments included: “school shooter meme,” “when | drop my pencil, start

shooting,” and “see you at school on Monday.”

At approximately 6 a.m. on Sunday morning, K.P. allegedly removed the photo he

uploaded. In its place, he posted a similar photograph of himself in the trench coat but

sans rifle. This time, however, he included the following caption:

You think | would ever wear this in public? That last post had no caption

because | thought some people may blow it out of proportion, nothing bad

was intended by that. I’m an ambitious, young enterprising individual, who

wouldn't throw my future away for something as pointless as a school

shooting. 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. And my friends go there? Why

would | perform an action that would only bring negativity and pain into their

lives? Life is about spreading positivity, and making our lovely earth better

when we are called out of it than it was when we first began breathing it’s

(sic) air, and drinking its water.

(Mot. for Preliminary Injunction, Doc. 6, p. 2 (emphasis added)).

It is undisputed that these photos and comments reached the campus communhity.4

For instance, on Saturday evening, soon after the initial picture had been posted, Principal

Roxanne Enix began receiving calls and text messages from concerned parents and

3 There was some testimony that early Sunday morning (around 3 a.m.), K.P.’s mother,

Jessica McKinney, was alerted about the photo and the comments and called/texted K.P.

to find out what was going on.

4 Indeed, in response to questions from the District’s attorneys, K.P. admitted knowing

that the posts would likely reach the school, especially given that the vast majority of the

individuals who had immediate access to his Instagram account were other Huntsville

students.

school officials who had seen the pictures and posts and who had identified K.P. as a

Huntsville student—in part because other pictures on his Instagram account featured him

in Huntsville athletic gear. (Doc. 6-2, p. 6). The posts were also uploaded to the school’s

Facebook account by a concerned individual who wanted to know what the District’s

reaction would be.

Upon seeing the post, Principal Enix and school officials immediately perceived a

threat to the school. The additional comments by the other posters, other Huntsville

students, and K.P.’s follow-up post only increased these concerns. For instance,

individuals seeing the “when | drop my pencil, start shooting” comment allegedly worried

that the comment implicated two students (the pencil dropper and the shooter). (Doc. 12,

p. 11).

The Huntsville School District and the police also took the matter very seriously.

Police officers went out searching for K.P. at his father’s house and ultimately were able

to speak to him on Sunday evening after he had returned to Jessica McKinney’s house.

Before they made contact with K.P., an undercover officer accessed K.P.’s Instagram

account and observed that K.P. had posted a dark-humored meme in the wake of the

Parkland shooting.® The police discussed this meme with him, his later posts, and their

possible interpretations. As a sign of good faith, K.P. offered to hand over three firearms

that he had in his possession. The police also advised K.P. that he had been suspended

and that he should not report to school the following day. The police ultimately concluded

5 Although this meme was discussed during the preliminary injunction hearing, the

specific details of the meme were not learned. The only testimony is that one officer

confronted K.P. with it and asked him whether he recognized that some people might

construe the post as inappropriate given the recency of the shooting.

that K.P. did not pose a threat to the school and no legal charges were ever brought.

Nevertheless, despite the police department’s determination, students, staff, and

community members remained incredibly concerned about the safety of the school and

its members. For instance, teachers and District officials reading K.P.’s follow-up post

wondered whether his comment about choosing a more “high profile crowd” meant that

he was speaking about administrators and teachers rather than students. (Doc. 6-2, p.

8). These concerns prompted at least one teacher to refuse to perform her outside

morning duty. (Doc. 12, p. 6). As a result, Principal Enix allowed all teachers to perform

their morning duties from inside the school building. In addition, parents and other

community members continuously called Principal Enix throughout the weekend and

students themselves expressed fear about returning to campus. See, e.g., Doc. 12, Exhs.

A-E (affidavits of students, teachers, and administrators describing the immediate

reaction to these posts).

To allay fears, Principal Enix held an early-morning emergency staff meeting at

Huntsville High School before school started on Monday, February 26, 2018.° Later that

day, at the request of Huntsville police and the FBI, school officials pulled students out of

classes to conduct several assemblies with law enforcement officers on the importance

of appropriate social media postings.’

The following day, K.P. received a formal letter advising him that he had been

suspended for a period of ten days and that he had been recommended for a 365-day

§ Enix testified during the hearing that such an early morning meeting is reserved for

“crises.”

A similar assembly was also held at Huntsville Middle School.

expulsion.’ The expulsion hearing was held on March 5, 2018, and the school board voted

to uphold the recommendation to expel him for a year. In deciding on K.P.’s punishment,

the School District relied on two specific District policies listed in the student handbook,

4.17 and 4.20.

4.17: The District's administrators may also take disciplinary action against

a student for off-campus conduct occurring at any time that would have a

detrimental impact on school discipline, the educational environment, or the

welfare of the students and/or staff. A student who has committed a criminal

act while off campus and whose presence on campus could cause a

substantial disruption to school or endanger the welfare of other students or

staff is subject to disciplinary action up to an including expulsion. Such acts

could include, but are not limited to a felony or an act that would be

considered a felony if committed by an adult, an assault or battery, drug law

violations, or sexual misconduct of a serious nature. Any disciplinary action

pursued by the District shall be in accordance with the student’s appropriate

due process rights.

4.20: No student shall by the use of violence, force, noise, coercion, threat,

intimidation, fear, passive resistance, or any other conduct, intentionally

cause the disruption of any lawful mission, process, or function of the

school, or engage in any such conduct for the purpose of causing disruption

or obstruction of any lawful mission, process, or function. Nor shall any

student encourage any other student to engage in such activities.

(Docs. 6-8, 6-9).

Although the expulsion had the effect of disrupting K.P.’s classes, the District

offered—and enrolled him in—an alternative, online education program, known as A+,

that would allow him to take as many classes as he could manage so that he would still

be on track to graduate with his class. Moreover, any classes successfully completed

during this program will be added to his transcript as normal and will not bear any

8 The Huntsville student who wrote “when | drop my pencil, start shooting” was similarly

expelled for a year, and at least one (if not more) of the other individuals who posted

comments in reaction to K.P.’s posts were also disciplined by the District.

2 K.P.’s expulsion is set to expire on March 5, 2019.

indication that they were earned through the A+ program during his expulsion. K.P.

testified that he did not complete any courses, in part because he had difficulty getting

enrolled in the program and had other online connectivity issues. He ultimately went to

work in construction and has not attempted to enroll at any other school district.

Plaintiff now seeks a preliminary injunction that would enjoin continued

enforcement of the expulsion and require the District to remove any reference of either

the initial suspension or the expulsion from K.P.’s transcript. (Doc. 4, p. 2).

Il. LEGAL STANDARD

It is well established that “a preliminary injunction is an extraordinary and drastic

remedy, one that should not be granted unless the movant, by a clear showing, carries

the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citing 11A

C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 (2d

ed. 1995)) (emphasis in original).

Although the factors to be considered when deciding whether this burden has been

met are similar nationwide, district courts in the Eighth Circuit should consider: (1) the

movant's likelihood of success on the merits; (2) the threat of irreparable harm to the

movant in the absence of injunctive relief; (3) the balance between this harm and the

injury that granting the injunction will inflict on the other party; and (4) whether the

injunction is in the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109,

114 (8th Cir. 1981). While no single factor is determinative, id., the Eighth Circuit has

made clear that in weighing whether to grant a preliminary injunction, the “likelihood of

success on the merits is most significant.” Minn. Ass'n of Nurse Anesthetists v. Unity

Hosp., 59 F.3d 80, 83 (8th Cir. 1995) (quoting S & M Constructors, Inc. v. Foley Co., 959

F.2d 97, 98 (8th Cir. 1992)). Despite the importance of the likelihood of success on the

merits, the inquiry should focus on “whether the balance of the equities so favors the

movant that justice requires the court to intervene to preserve the status quo until the

merits are determined.” Dataphase, 640 F.2d at 113.

Ili. DISCUSSION

A. Likelihood of Success on the Merits

As noted above, the likelihood of success on the merits is often considered the

most important factor on a motion for a preliminary injunction. Given the importance of

this factor to the overall decision, the Eighth Circuit has advised against “wooden

application” of the probability test. Dataphase, 640 F.2d at 113. Indeed, the movant need

only show a “fair chance of prevailing on the merits.” Planned Parenthood Minn., N.D.,

S.D. v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008). The Court considers the movant's

likelihood of success on each claim in turn.

i. Free Speech Claim

The law is clearly established that neither teachers nor students shed their

constitutional rights to freedom of speech or expression at the schoolhouse gate. S.JU.W.

ex. rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012) (quoting

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)). Nevertheless,

“the constitutional rights of students in public school are not automatically coextensive

with the rights of adults in other settings,” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S.

675, 682 (1986), because the rights of students “must be ‘applied in light of the special

characteristics of the school environment.’” Hazelwood Sch. Dist. v. Kuhimeier, 484 U.S.

260, 266 (1988) (quoting Tinker, 393 U.S. at 506). Therefore, under Tinker, “conduct by

the student, in class or out of it, which for any reason—whether it stems from time, place,

or type of behavior—materially disrupts classwork or involves substantial disorder or

invasion of the rights of others is . . . not immunized by the constitutional guarantee of

freedom of speech.” Tinker, 393 U.S. at 513; see also Lee’s Summit, 696 F.3d at 778

(“Under Tinker, speech which actually caused a substantial disruption to the educational

environment is not protected by the First Amendment.”).

Of course, school districts do not have to wait until a substantial disruption occurs

before springing to action. See, e.g., Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062,

1070 (9th Cir. 2013); Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 772 (5th Cir.

2007) (“School administrators must be permitted to react quickly and decisively to

address a threat of physical violence against their students, without worrying that they will

have to face years of litigation second-guessing their judgment as to whether the threat

posed a real risk of substantial disturbance.”). As such, courts around the country employ

a reasonable foreseeability test. In the Eighth Circuit, that test has been described as

such: “Tinker applies to off-campus student speech where it is reasonably foreseeable

that the speech will reach the school community and cause a substantial disruption to the

educational setting.” Lee’s Summit, 696 F.3d at 777. Therefore, in the context of off-

campus speech, the Eighth Circuit has made clear that school districts may punish

speech which either caused a substantial disruption or where it was reasonably

foreseeable that such speech would reach the school community and cause a substantial

disruption.

Applying this law here, the Court concludes that Plaintiff does not have a fair

chance of succeeding on the merits of the First Amendment free speech claim. It cannot

be seriously disputed that K.P.’s posts caused a substantial disruption at Huntsville High

School. Parents, teachers, administrators, police, and even the FBI were involved,

beginning as early as the Saturday that the post was first uploaded and continuing through

the new school week. The affidavits in the record show that students and teachers

expressed fear about coming to school or performing their duties. Classes—at both the

high school and middle school—were disrupted when the school, at the request of the

police department and FBI, conducted campus-wide assemblies. The level of disruption

in this case was in many ways more severe than what occurred in Lee’s Summit.

Because speech which causes a substantial disruption is not immunized by the First

Amendment, it is likely that the conduct in this case falls outside of the ambit of First

Amendment protection.

Even if these posts had not caused a substantial disruption, which the Court finds

that they did, school officials likely could still have punished K.P. for the conduct because

it was reasonably foreseeable that such posts would 1) reach the school community and

2) cause a substantial disruption. K.P. testified himself during the hearing that he knew

the posts would likely reach the school community, and that the majority of the individuals

who had immediate access to the posts were in fact his friends and students at Huntsville.

The posts also indisputably reached the community, as concerned parents were the first

individuals to notify Principal Enix of the post, and as these parents were soon joined by

concerned teachers and administrators all asking what the District’s response would be.

Moreover, someone in the community uploaded the post to the Huntsville Facebook page

and asked whether school officials planned to respond. Finally, the posts and the

responses they generated could reasonably have led school officials to forecast a

substantial disruption. Some comments suggested that more individuals than just K.P.

were involved, another wrote “see you at school on Monday.” Given the totality of the

circumstances, it was reasonably foreseeable that such comments would cause a

substantial disruption to the campus community.

Despite the strength of the District’s position given the state of the law, K.P. argues

that he is likely to succeed on the merits of his free speech claim for several reasons. The

Court considers each in turn.

First, K.P. argues that it was the other posts commenting upon his original post

that caused the disruption and, therefore, permitting the school’s punishment of K.P.

would in effect be to sanction a heckler’s veto. While this argument might hold more water

in a non-school context, the Court agrees with the Tenth Circuit’s recent sentiment that

this argument “ignores the special characteristics of the school environment where the

government has a compelling interest in protecting the educational mission of the school

and ensuring student safety.” Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 38 (10th

Cir. 2013) (internal citation omitted). Moreover, the evidence also undercuts the

argument that it was solely these third-party students’ comments, rather than K.P.’s posts,

that contributed to the disruption. It is not seriously disputed that the posts of the other

students following K.P.’s initial and follow-up posts likely worsened the situation. But, that

doesn’t eliminate the District’s ability to punish K.P.’s off-campus speech here, as the

record shows that the initial concerns of community members followed immediately on

the heels of K.P.’s initial post and where Principal Enix testified that K.P.’s follow-up post

caused additional disruption as teachers and parents began expressing to her fear for

their safety and the safety of their children.

10

Plaintiff next argues that K.P.’s intent in making the post and his follow-up

comments bears heavily on the inquiry and immunizes his conduct. The Court disagrees.

The focus of the test is not on the speaker’s intent in making the communication. Instead,

it centers on whether school officials could predict that such expressive conduct would

cause a disruption. See, e.g., Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 439

(4th Cir. 2013) (“Similarly, Candice’s intent that her Confederate flag shirts be only a

symbol of her heritage and religious faith is irrelevant. Again, the proper focus is whether

school officials could predict that the Confederate flag shirts would cause a disruption.”):

Wisniewski v. Bd. of Ed. of Weedsport Cent. Sch. Dist., 494 F.3d 34, 40 (2d Cir. 2007)

(“These consequences permit school discipline, whether or not Aaron intended his IM

icon to be communicated to school authorities or, if communicated, to cause a substantial

disruption.”). This is largely the same reason the Court concludes that the analysis is not

altered by the fact that the police ultimately concluded that K.P. did not pose a threat to

the school. See Wisniewski, 494 F.3d at 36, 40 (upholding dismissal of a case where

student was punished for off-campus speech under Tinker notwithstanding that police

investigators and even a psychologist had concluded that the student posed no danger

to the school).

Finally, Plaintiff argues that the Eighth Circuit's cases upholding school districts’

discipline of students for similar off-campus speech are distinguishable because they

involved more egregious conduct that was targeted at the school—in the sense that in

those cases, threats were made against specific teachers or students. While it is true that

many of the cases in this area of the law involve students whose conduct was more

egregious, the metric used to assess a district’s punishment of off-campus speech is not

11

how egregious the speech was, but rather whether it either caused a substantial

disruption to the school environment or whether school officials could reasonably have

forecast such a disruption. For the reasons noted above, the answer to both of these

questions is yes.

Therefore, while the Court does not doubt that there is a constitutional “line-in-the-

sand” marking the boundary between permissible and impermissible regulation of off-

campus speech, the Court is not persuaded that this case crosses that line. Given the

extant precedents in the Eighth Circuit, the Court finds that Plaintiff is unlikely to succeed

on the merits of the First Amendment speech claim.

ii. Overbreadth Challenge

The overbreadth doctrine “constitutes a departure from traditional rules of

standing’ as it allows a plaintiff to “challenge a statute on its face because it also threatens

others not before the court—those who desire to engage in legally protected expression

but who may refrain from doing so rather than risk prosecution or undertake to have the

law declared partially invalid.” Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354

F.3d 249, 257-58 (4th Cir. 2003) (internal citations omitted). Therefore, a law or regulation

“should not be invalidated for overbreadth unless it reaches a substantial number of

impermissible applications.” New York v. Ferber, 458 U.S. 747, 771 (1982); City of L.A.

v. Taxpayers for Vincent, 466 U.S. 789, 800-01 (1984). Moreover, “[b]ecause of the duties

and responsibilities of the public elementary and secondary schools, the overbreadth

doctrine warrants a more hesitant application in [the public school] setting than in other

contexts.” Sypniewski v. Warren Hills Reg’! Bd. of Educ., 307 F.3d 243, 259 (3d Cir. 2002),

cert. denied, 538 U.S. 1033 (2003).

12

The Court finds that Plaintiff does not have a fair chance of succeeding on the

merits of the overbreadth challenge. By their very terms, the District’s two policies, 4.17

and 4.20, proscribe student conduct which disrupts the educational environment and

jeopardizes the safety of school students or officials. The Court finds that the ambit of the

regulations are thus directed to activities that, because of their proclivity for causing

disruption, would not be entitled to First Amendment protection. In essence, the District

has adopted and incorporated the Tinker test into its regulations. Thus, because Plaintiff

has not demonstrated that such a test would “reach a substantial number of impermissible

applications,” Ferber, 458 U.S. at 771, the Court finds that Plaintiff does not have a fair

chance of succeeding on the merits of this claim. Taylor, 713 F.3d at 41, n.14 (“[T]he

substantive restriction at issue . . . restates the Tinker standard. Tinker represents the

most speech-protective standard articulated by the Supreme Court in school speech

cases . . . [i]t is doubtful that Plaintiffs could demonstrate that a majority of applications of

the Tinker standard would be unconstitutional.”).

iii. Void-for-Vagueness Challenge

The “void-for-vagueness doctrine is embodied in the due process clauses of the

fifth and fourteenth amendments.” D.C. and M.S. v. City of St. Louis, Mo., 795 F.2d 652,

653 (8th Cir. 1986). As the Eighth Circuit has succinctly summarized:

A vague regulation is constitutionally infirm in two significant respects. First,

the doctrine of vagueness “incorporates notions of fair notice or warning,”

Goguen, 415 U.S. at 572, and a regulation “violates the first essential of due

process of law” by failing to provide adequate notice of prohibited conduct.

Connally v. Gen. Constr. Co., 269 U.S. 385 (1926) (citations omitted). In

short, a regulation is void-for-vagueness if it “forbids or requires the doing

of an act in terms so vague that [persons] of common intelligence must

necessarily guess at its meaning and differ as to its application... .” /d.

Second, the void-for-vagueness doctrine prevents arbitrary and

discriminatory enforcement. Goguen, 415 U.S. at 573. “A vague law

13

impermissibly delegates basic policy matters to policemen, judges, and

juries for resolution on an ad hoc and subjective basis .. . .” Grayned v. City

of Rockford, 408 U.S. 104, 108-09 (1972).

Stephenson v. Davenport Comm. Sch. Dist., 110 F.3d 1303, 1308 (8th Cir. 1997).

Nevertheless, “[t]he degree of constitutional vagueness depends partially on the

nature of the enactment.” Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 689

(8th Cir. 1992) (citation omitted). Thus, “given the school’s need to be able to impose

disciplinary sanctions for a wide range of unanticipated conduct disruptive of the

educational process, the school disciplinary rules need not be as detailed as a criminal

code which imposes criminal sanctions.” Fraser, 478 U.S. at 686.

Although this appears to be a much closer question given the testimony at the

hearing, the Court nevertheless concludes that Plaintiff does not have a fair chance of

showing that these regulations are void-for-vagueness. As noted above, the school

regulations in this case gave notice that discipline could be imposed for activities

occurring off-campus which would have a negative impact on school discipline, the

educational environment, or the welfare of students or staff. The Court finds this

regulation to be sufficiently clearer than other, similar regulations upheld against

vagueness challenges. See, e.g., Collins v. Prince William Cnty. Sch. Bd., 142 Fed. App’x

144, 146-47 (4th Cir. 2005) (upholding against a vagueness challenge a school regulation

allowing discipline for offenses occurring off-school grounds that were “connected in

some way with the school’). Considering the latitude afforded to school districts, the Court

concludes that Plaintiff has not demonstrated a fair chance of showing that these

regulations are void-for-vagueness. '°

10 Of course, even if the Court's findings on this point were different, denial of the

14

B. Irreparable Harm

“The basis of injunctive relief in the federal courts has always been irreparable

harm and inadequacy of legal remedies.” Bandag, Inc. v. Jack’s Tire & Oil, Inc., 190 F.3d

924, 926 (8th Cir. 1999) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-

07 (1959)). To show irreparable harm, “a party must show that the harm is certain and

great and of such imminence that there is a clear and present need for equitable relief.”

Lee’s Summit, 696 F.3d at 778 (citations omitted). Irreparable harm occurs when a party

has no adequate remedy at law, typically because its injuries cannot be fully compensated

through an award of damages.” Gen. Motors Corp. v. Harry Brown's, LLC, 563 F.3d 312,

319 (8th Cir. 2009). Failure “to demonstrate irreparable harm, standing alone, may be a

sufficient basis to deny preliminary injunctive relief.” Caballo Coal Co. v. Ind. Mich. Power

Co., 305 F.3d 796, 800 (8th Cir. 2002) (quoting Dataphase, 640 F.2d at 114 n.9)

(quotation marks omitted).

Plaintiff contends that that the “irreparability of [K.P.’s] harm is self-evident, and

exacerbated by loss of [the] opportunity to earn an athletic scholarship.” (Doc. 6, p.8).

Although Plaintiff is not more specific, it appears that Plaintiff makes three arguments as

to the irreparable harm that would occur in the absence of injunctive relief: 1) K.P.’s

education suffering because he can’t attend class, 2) K.P.’s exclusion from extra-

curricular athletic events, and 3) K.P.’s potential loss of an athletic scholarship. None of

these constitute irreparable harm.

First, while it is well established that education is not one of the fundamental rights

preliminary injunction would still be warranted because, as will be explained in the

following section, Plaintiff has failed to demonstrate irreparable harm, which is an

independent and sufficient basis on which to deny injunctive relief.

15

protected by the United States Constitution, San Antonio Sch. Dist. v. Rodriguez, 411

U.S. 1, 38 (1973), the Supreme Court has indicated that state policies guaranteeing an

education to all pupils within a state create a property interest to that education which is

then protected under the Due Process Clause of the Fourteenth Amendment. Goss v.

Lopez, 419 U.S. 565, 574 (1975). Therefore, a state is prohibited from depriving a student

of that interest without adhering to the procedures required by that clause. /d.

Nevertheless, whatever the extent of the property interest, the law is clear that such an

interest is not absolute, and a student has no property interest in the choice of a particular

school or curriculum. Swindle v. Livingston Par. Sch. Bd., 655 F.3d 386, 394 (5th Cir.

2011) (“A student who is removed from her regular public school, but is given access to

an alternative education program, has not been denied her entitlement to public

education.”); Lindsey v. Matayoshi, 950 F. Supp. 2d 1159, 1169 (D. Haw. 2013) (noting

that “a student has no right to direct, control, or determine” her curriculum as part of the

entitlement to a public education, or to “receive a public education on special terms or

conditions designated by herself or her parents”).

This is why courts considering similar cases routinely hold that a student suffers

no irreparable harm where the District provides an alternative educational option and

where the student can stay on track to graduate. See, e.g., Lee's Summit, 696 F.3d at

779 (finding no irreparable harm where student was sent to alternative school where he

could earn credit and stay on track to graduate); B.W. through Wann v. Vallivue Sch. Dist.

No. 139, 2018 WL 2448448, at *11 (D. Idaho May 31, 2018) (finding in a case where a

student was allowed to take online classes during pendency of expulsion that “harm is

not only unlikely, it does not exist.”); Doe v. Blake Sch., 2018 WL 2018204, at *10 (D.

16

Minn. May 7, 2018) (finding no irreparable harm where a student was able to complete

his coursework remotely, notwithstanding the fact that he would “miss out on important

and memorable events like the lacrosse season, prom, and graduation’).

Here, the evidence reveals that the District made available and even enrolled K.P.

in an online education program, A+, which would have allowed him to take as many

classes as he could manage and thereby stay on track to graduate with his class.'' While

there were apparently problems with the initial on-boarding of K.P. to this program (which

ultimately factored into his decision to forego this program), this does not alter the Court’s

stance that this cannot serve as a basis for alleging irreparable harm.

Additionally, the Court finds that K.P.’s exclusion from extracurricular events and

the related claim that he would lose an athletic scholarship because of this exclusion also

cannot constitute irreparable harm. K.P. argues that he is a gifted track runner and the

ban from participating in extra-curricular activities such as track during the expulsion

period would deprive him of an opportunity to earn a full-ride scholarship to college, which

would likely mean, according to him, that he could not afford to attend college. See, e.g.,

Decl. of K.P., Doc. 6-3 at J 7; Decl. of Jessica McKinney, Doc. 6-7 at {| 7.

To the extent Plaintiff's argument rests on the contention that the District has

deprived K.P. of a vested property interest by banning him from participating in extra-

curricular activities such as track, the Court finds this argument unsupported by any cited

authority and routinely rejected by courts across the country. See, e.g., Denis J. O’Connell

High Sch. v. Va. High Sch., 581 F.2d 81, 84 (4th Cir. 1978); Seamons v. Snow, 84 F.3d

11 Moreover, the testimony revealed that credits earned through the A+ program are

reported on the student’s transcript as a normal class and therefore bear no mark

indicating that the credit was earned during a period of expulsion.

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1226, 1235 (10th Cir. 1996); Brindisi v. Regano, 20 Fed. App’x 508, 510 (6th Cir. 2001).

These cases uniformly hold that there is no property interest in participating in extra-

curricular activities. Moreover, even within this Circuit, courts reject the notion that loss of

a potential scholarship may constitute irreparable harm. See, e.g., Lee’s Summit, 696

F.3d at 779 (rejecting as speculative students’ argument that expulsion would jeopardize

their music careers because of an inability to participate in the school’s band); Doe, 2018

WL 2018204, at *11 (finding that testimony that student would be unable to afford to

attend college without scholarship shows that most of the potential harm is compensable

through a money damages award).

Plaintiff has failed to show irreparable harm. This finding, standing alone, is reason

enough to deny injunctive relief.

C. Balance of the Harm Between Movant and Non-Movant

As the District rightly acknowledges, it is responsible for securing the safety of

students and staff, maintaining order within the public schools, enforcing standards of

student conduct, and imposing discipline when such standards are not met. (Doc. 13, p.

7). The District argues that the grant of the injunctive relief Plaintiff seeks would send a

message to the student body and the Huntsville community “that the school is no longer

expected to take these responsibilities seriously.” /d.

The Court agrees. And while the Court must ensure that protected speech is not

restricted by a school district's actions, it concludes that enjoining the District's

punishment of K.P., requiring his immediate re-admittance, and requiring the District to

remove any evidence of either the suspension or expulsion from K.P.’s record would

unduly frustrate the District's right—and duty—to ensure a safe academic environment

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conducive to the education of young Arkansans. D.J.M. ex rel. D.M. v. Hannibal Pub. Sch.

Dist. No. 60, 647 F.3d 754, 766 (8th Cir. 2011) (“One of the primary missions of schools

is to encourage student creativity and to develop student ability to express ideas, but

neither can flourish if violence threatens the school environment.”). Thus, the Court finds

that the balance of harms in this case favors the denial of Plaintiff's motion for injunctive

relief. .

D. Public Interest

At first blush, the public interest factor appears to be evenly balanced between the

parties. For, while “[iJt is always in the public interest to protect constitutional rights,”

Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008), there is also no question that

“protecting the safety of school [students and] staff is undoubtedly a significant

government interest.” Lovern v. Edwards, 190 F.3d 648, 655-56 (4th Cir. 1999).

However, because Plaintiff has not made a sufficient showing that K.P.’s conduct

was protected by the First Amendment, the public interest in this case tilts toward the

District. Thus, this factor also favors the denial of Plaintiff's motion for a preliminary

injunction.

On balance, the Court certainly sympathizes with Plaintiff's argument that the

District's reaction here could be considered swift and unnecessarily harsh. But, as the

Eighth Circuit accurately summarized in a similar case:

Had we been sitting as the school board, we might very well have

approached the situation differently, for it appears to us that the board’s

action taken against J.M. was unnecessarily harsh. Other options have

occurred to us that could have furthered the district's interest in protecting

its students, as well as have punished J.M., but also have aided him in

understanding the severity and inappropriateness of his conduct. However,

“ijt is not the role of the federal courts to set aside decisions of school

administrators which the court may view as lacking a basis in wisdom or

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compassion.” Wood v. Strickland, 420 U.S. 308, 326 (1975) Those

judgments are best left to the voters who elect the school board.

Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 627 (8th Cir. 2002).

For the foregoing reasons, the Court finds that the Dataphase factors do not favor

the entry of a preliminary injunction.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Plaintiff's Motion for a Preliminary Injunction

(Doc. 4) is DENIED. th

IT IS SO ORDERED on this 7 day of October, 2018.

De

Lf? -D STATES DISTRICT JUDGE

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