A.S. v. Lincoln County R-III School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

A.S., a minor, by and through )

Next Friend, Chris Schaefer, )

)

Plaintiff, )

)

v. ) Case No. 4:19 CV 91 CDP

)

LINCOLN COUNTY R-III SCHOOL )

DISTRICT, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Public high school student, A.S., engaged in off-campus speech on social

media that targeted a fellow student, and he encouraged other high school students

to perpetuate the speech. Because this speech was directed to and reached the

school community and it was reasonably foreseeable that the speech would cause

substantial disruption in the school environment, the school did not violate A.S.’s

First Amendment right to free speech by imposing discipline for A.S.’s violation of

the school district’s cyberbullying policy. Nor did the school disciplinary hearing

violate A.S.’s Fourteenth Amendment right to due process. I will therefore grant

defendants’ motion for judgment on the pleadings on these constitutional claims. I

will remand A.S.’s remaining state law claim to the Circuit Court of Lincoln

County, Missouri.

Background

On a Saturday in October 2018, A.S. created a post on the social media

platform Snapchat that included a doctored photograph depicting fellow student

C.S. in a casket, words referring to C.S.’s funeral and visitation at a funeral home,

and ‘crying’ and ‘praying hands’ emojis. A.S. shared this post with a limited

group of classmates on Snapchat and encouraged them to post the meme to their

own Snapchat stories, which they did. The following Monday at school, C.S.

placed another student in a chokehold during class, upset about that student’s

comments about his death. After investigation, Assistant Principal Joy Lillard

suspended A.S. for ten days for violating the school district’s cyberbullying policy.

The district’s superintendent extended the suspension to the end of the semester.

The school district’s board of education held a hearing and upheld the extended

suspension.

A.S. (through his next friend) brought this action in state court under 42

U.S.C. § 1983, alleging that defendants Lillard and the school district violated his

First Amendment rights by suspending him for engaging in protected speech and,

further, that the manner by which they conducted the discipline hearing denied him

his Fourteenth Amendment right to due process.1 A.S. also seeks judicial review

of the school district’s action under Missouri law. Defendants removed the matter

1 Lillard is sued only in her individual capacity.

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to this Court, invoking federal subject matter jurisdiction. They now move for

judgment on the pleadings on A.S.’s constitutional claims.2

Legal Standard

When considering a motion for judgment on the pleadings under Federal

Rule of Civil Procedure 12(c), I must “accept as true all factual allegations set out

in the complaint, and must construe the complaint in the light most favorable to the

plaintiff, drawing all inferences in his favor.” Wishnatsky v. Rovner, 433 F.3d 608,

610 (8th Cir. 2006). “Judgment on the pleadings is appropriate only when there is

no dispute as to any material facts and the moving party is entitled to judgment as a

matter of law[.]” Ashley Cty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir.

2009) (internal quotation marks and citation omitted).

I review a motion for judgment on the pleadings under the same standard as

a Rule 12(b)(6) motion to dismiss. See Clemons v. Crawford, 585 F.3d 1119, 1124

(8th Cir. 2009). Therefore, I consider all facts alleged in the complaint as true to

determine if the complaint states a “claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Braden v. Wal-Mart Stores,

Inc., 588 F.3d 585, 594 (8th Cir. 2009). “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.” Iqbal, 556 U.S.

2 A.S.’s state-law claim for judicial review is not a subject of defendants’ motion.

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at 678. Although a complaint need not contain “detailed factual allegations,” it

must contain sufficient factual allegations “to raise a right to relief beyond the

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In addition to the complaint, I may consider exhibits that are attached to the

complaint as well as materials necessarily embraced by the complaint, without

having to convert the motion to one for summary judgment. Humphrey v. Eureka

Gardens Pub. Facility Bd., 891 F.3d 1079, 1081 (8th Cir. 2018); Ryan v. Ryan, 889

F.3d 499, 505 (8th Cir. 2018). Materials necessarily embraced by the complaint

include “documents whose contents are alleged in a complaint and whose

authenticity no party questions, but which are not physically attached to the

pleading.” Ryan, 889 F.3d at 505 (internal quotation marks and citations omitted).

Upon review of the complaint here, I consider the administrative record consisting

of the hearing transcript and evidence before the board of education, as well as the

board of education’s findings of fact and conclusions of law – both filed in this

action by A.S. separately from his complaint – to be materials necessarily

embraced by and consistent with the complaint. Accordingly, on this motion for

judgment on the pleadings, I consider these materials as well as the allegations in

the complaint and the exhibit attached to the complaint.

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Evidence Before the Court on the Motion

Conduct Giving Rise to the Complaint

In October 2018, A.S. and C.S. were students enrolled at Troy Buchanan

High School, which is a public school within the Lincoln County R-III School

District. Joy Lillard was assistant principal at the school. Dr. Mark Penny was the

school district’s superintendent.

On Saturday, October 6, 2018, A.S. created a meme entitled “[C.]’s

funeral.”3 The meme was a photograph of a casket with a photo of C.S.

superimposed on it, positioned to make it appear as though C.S. was lying in the

casket. Words superimposed above the casket stated, “please show up with only

positive vibes”; and words superimposed beneath the casket stated, “at Kember-

Millard-Keon Family Funeral Chapel.” Emojis of a ‘crying-face’ and ‘praying-

hands’ were also part of the meme. A.S. was not at school when he created the

meme, nor was he at a school-sponsored event. A.S. did not use any school

property to make the meme.

On that same day, October 6, A.S. posted the meme to a private Snapchat

group made up of other Troy Buchanan High School students. A.S. encouraged

the members of this private group to post the meme to their own Snapchat stories,

which they did. Posting a meme to a Snapchat story causes the meme to circulate

3 The meme’s title actually stated C.S.’s first name in full.

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outside any private Snapchat group and makes it available to all persons who

“follow” the Snapchat user. Other students also created and posted memes about

C.S. and his “death.”

The date on which A.S. created, posted, and shared the funeral meme with

other students, and encouraged these other students to publicly share the meme,

was Troy Buchanan High School’s homecoming.

On Monday, October 8, during the fourth class period at the high school,

C.S. entered a classroom and put another student, L.P., into a chokehold. The

teacher emailed Lillard and informed her of this incident, stating, “I thought he

[C.S.] was joking but looked pretty upset. L. has been making comments saying

that C. died apparently.” (ECF 6-1.) The teacher also informed Lillard that “we

have things under control” and that she did not write up the students, but she

suggested that Lillard “have a conversation” with them. (Id.)

During her investigation into the incident, Lillard learned about the funeral

meme and that A.S. had created it. When she talked to A.S. about it, he admitted

to making the meme, posting it, and telling others to post it; but he stated that he

never posted it publicly nor meant for it to become public. A.S. stated that other

persons created additional memes of C.S. and that the group thought it would be

funny to act as if C.S. was dead. A.S. memorialized these statements in a written

statement. (Admin. Rec., ECF 4 at pp. 71-72.)

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Lillard spoke to A.S. about the funeral meme on October 11. At that time,

A.S. was serving an out-of-school suspension for posting a photo of a student’s

bare buttocks to a teacher’s “remind app,” a school-related homework site used by

the teacher and accessed by students. That suspension was imposed October 1 and

was set to expire November 13. A.S. was serving this suspension in the district’s

Academic Educational Program (AEP), which is a program located in a district

building separate from the high school. Students participating in AEP receive

daily instruction on coursework as well as lessons on positive behavior supports,

and they receive full credit for coursework completed while in AEP. A.S.’s

suspension for cyberbullying, which is at issue in this case, would not begin until

he finished serving his suspension for the “remind app” incident.

On October 11, Lillard disciplined A.S. for cyberbullying and imposed a

ten-day, out-of-school suspension. She also referred the matter to the

superintendent of schools for consideration of extended suspension. In a letter

dated October 12, Lillard informed A.S.’s parents that A.S. had been suspended for

ten school days, effective October 11, and that the matter had been referred to the

superintendent. In a letter dated October 19, Superintendent Penny notified A.S.’s

parents of his decision to extend A.S.’s out-of-school suspension through the end

of the semester.

In his October 19 letter to A.S.’s parents, Dr. Penny informed them of A.S.’s

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right to have a hearing before the board of education for review of his decision.

Dr. Penny advised that, in the event of a hearing,

the administration will provide you with a list of the witnesses who

will testify on behalf of the administration, together with a short

description of their testimony. Documents may also be used at the

hearing. If documents are to be used, they will be provided to you

prior to the hearing.

(ECF 4 at p. 149.) Dr. Penny also advised that A.S. or his representative could

present witnesses and documentary evidence at the hearing.

A.S.’s parents determined to appeal the suspension, and a hearing before the

board of education was scheduled for and held on November 6. On November 5,

the school district’s attorney provided A.S.’s attorney with copies of its exhibits

and a list of its witnesses with summaries of their expected testimony.

Board of Education Hearing

Lillard and Dr. Penny testified at the hearing on November 6. A.S. and his

father also testified and were represented by counsel. Documentary evidence was

also admitted at the hearing.

Lillard testified to the following regarding her investigations into the

chokehold incident and funeral meme:

When Lillard spoke with C.S. on October 8 regarding the chokehold

incident, he told her that A.S. and his friends had bullied him for over a year, that

this group made memes of him, that a meme about his funeral had been created

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and circulated on social media, and that fellow students were making comments to

him about being dead. The meme was created and circulated on homecoming

Saturday, and people reached out to C.S. asking if he was okay because they heard

he was dead. C.S. told Lillard that the football team held a moment of silence for

him during the football game and that, at the homecoming dance, people made

comments to him about being a ghost. C.S. told Lillard that he could not take it

anymore and he “snapped,” which led to his altercation with L.P. on October 8.

At Lillard’s request, C.S. sent her the funeral meme as well as other memes

targeting him. The funeral meme and several copies of its reposting, as well as the

other memes, were admitted as exhibits at the board hearing.

Lillard also testified that she learned that two students approached teachers

during class on October 8 and expressed concern about C.S. The students also

stated that they would not want to be the target of similar bullying behavior.

Another student expressed concern directly to Lillard and reported that the funeral

meme was being shown in class and that students were talking about it. Two

students were worried that C.S. would hurt himself. Lillard testified that she had

written statements from these students, but they were not produced at the hearing.

Lillard testified that she spoke to C.S.’s mother regarding the “whole

situation” and offered counseling for C.S., either at school or through another

arrangement. C.S.’s mother told Lillard that C.S. was already seeking help for

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depression and that this episode caused more distress than he could handle.

Lillard testified that, based on her investigation, she determined that by his

conduct, A.S. violated the district’s cyberbullying policy. That policy states:

Bullying is the intentional action by an individual or group of

individuals to inflict intimidation, unwanted aggressive behavior, or

harassment that is repetitive or is substantially likely to be repeated

and causes a reasonable student to fear for his or her physical safety or

property; substantially interferes with the educational performance,

opportunities, or benefits of any student without exception; or

substantially disrupts the orderly operation of the school. . . .

Cyberbullying means bullying as defined above through the

transmission of a communication including, but not limited to, a

message, text, sound, or image by means of an electronic device

including, but not limited to, a telephone, wireless telephone, or other

wireless communication device, computer, or pager. The District may

prohibit and discipline for cyberbullying that originates on any

District campus or at a District activity if the electronic

communication was made using the school’s technological resources,

if there is a sufficient nexus to the educational environment, or if the

electronic communication made on the District’s campus or at a

District activity using the student’s own personal technological

resources. Further, students who engage in significant acts of

misconduct off-campus, which materially and adversely impact the

education of District students will be subject to discipline.

(ECF 4 at pp. 110-11.) Lillard also testified to the district’s policy regarding off-

campus behavior, which states that “the School District reserves the right to

impose disciplinary consequences for any student’s conduct (whenever and

wherever it may occur) if such conduct is prejudicial to good order and discipline

in the schools or tends to impair the morale or good conduct of the pupils.” (Id. at

p. 124.)

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Dr. Penny testified that he determined that A.S.’s conduct was prejudicial to

good order and discipline in the school and disrupted the learning environment at

the school given that students actually thought C.S. was dead and they reached out

to see if C.S. was okay; that students shared the meme and talked about it at

school; that staff notified school administrators of the situation; and that it

ultimately led to a physical altercation in a classroom involving C.S. Dr. Penny

testified that this was not a “typical situation.” He also testified to his

understanding that school discipline can be imposed if off-campus misconduct

comes into the school and creates a disruption of the academic learning

environment.

A.S. testified that it was not his idea to start a joke about C.S. being dead.

He admitted that he created the funeral meme for his Snapchat group and told other

students to post it, but he did not think people would take it seriously since the

picture was “obviously fake.” He was at home when he made and posted the

meme. He did not know that C.S. saw the meme until Lillard talked to him about

it on October 11. He testified that he and C.S. were “somewhat friends” before

this happened.

Finally, A.S.’s father testified that Lillard called him and told him about the

funeral meme and A.S.’s role. Lillard did not tell A.S.’s father that there had been

any disruption at school, nor did she talk about possible suspension. A.S.’s father

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testified that he then received a letter from Lillard setting out the ten-day

suspension, and later received Dr. Penny’s letter setting out the extended

suspension. He had had no discussion with any school officials between the time

he received Lillard’s letter and his receipt of Dr. Penny’s letter.

Board’s Findings of Fact and Conclusions of Law

On November 30, the board issued its findings of fact and conclusions of

law.4 It found the school administrators to be credible and gave appropriate weight

to their testimony. Upon consideration of the evidence and testimony, the board

found:

[A.S.]’s meme was targeted to bullying a particular student and his

death. After [A.S.] created the meme, he spread it and encouraged

others [sic] students to publish it and it ultimately went viral. It was

expected to and it did cause a material and substantial disruption, and

invaded the right of C.S. to be secure, left alone, and to access the full

opportunities of the District without being bullied. Students accessed

and showed the meme in class. A fight ensued by C.S. Classes were

disrupted and different students approached different teachers because

of their concern about the cyberbullying and its impact on C.S.’s

mental health. The meme impacted the school environment and

caused a considerable disturbance and disruption.

(ECF 19 at p. 9.) The board determined that these facts showed that A.S. engaged

in cyberbullying in violation of district policy and that such conduct was

prejudicial to good order and discipline in the school and tended to impair the

4 According to the complaint, the board transmitted its decision to A.S. on November 7 but did

not issue its written findings and conclusions until November 30.

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morale and good conduct of the students of the district. The board unanimously

upheld the extended suspension. (Id. at p. 10.)

Judicial Action

A.S. filed this action in the Circuit Court of Lincoln County, Missouri, on

December 7, 2018. Defendants removed the action to this Court on January 23,

2019.

In Count I of his complaint, A.S. seeks judicial review of the board of

education’s decision by trial de novo as provided under Mo. Rev. Stat. § 167.161.3.

In Count II, A.S. seeks relief from Lillard and the school district for First

Amendment violations. In Count III, A.S. claims that the manner by which Lillard

and the board conducted the November 6 hearing violated his rights under the

Fourteenth Amendment, and specifically, that he was deprived of his interest in

public education and in his reputation without due process, and of his right to be

free from arbitrary and capricious punishment. A.S. seeks monetary damages and

equitable relief in the form of expungement of this event from his education

records.

Defendants move for judgment on the pleadings under Rule 12(c) on A.S.’s

constitutional claims, arguing that A.S.’s speech that gave rise to disciplinary

action was not protected by the First Amendment and, further, that A.S. was

provided all the process he was due. Defendant Lillard also contends that she is

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entitled to qualified immunity on A.S.’s constitutional claims.

Discussion

A. First Amendment Free Speech

While it is well established that students do not “shed their constitutional

rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), the First Amendment

does not protect all speech in the school environment, and school officials may

lawfully punish some forms of unprotected student speech. S.J.W. ex rel. Wilson v.

Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012). “[C]onduct 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

S.J.W., 696 F.3d at 776-77. “Thus, student speech that causes a substantial

disruption is not protected.” S.J.W., 696 F.3d at 777.

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.” S.J.W., 696 F.3d at 777 (citing

D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. # 60, 647 F.3d 754, 766 (8th Cir.

2011)). Speech which “actually causes” a substantial disruption to the educational

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environment is not protected by the First Amendment. Id. at 778.

Here, A.S. was off campus when he created the funeral meme, posted it to

social media, circulated it to fellow students and encouraged them to circulate the

meme publicly on social media. But because it was reasonably foreseeable that

this speech would (and indeed did) reach the school community and cause a

substantial disruption to the educational setting, it is not protected speech under the

First Amendment.

First, A.S.’s funeral meme was purposely designed to reach the high school

community given that it targeted a specific student at the high school and was

specifically, deliberately, and purposefully shared with other high school students

on social media, with A.S.’s encouragement that these other students post the

meme to their public Snapchat stories. See Kowalski v. Berkeley Cty. Sch., 652

F.3d 565, 574 (4th Cir. 2011) (“To be sure, it was foreseeable in this case that

Kowalski’s conduct would reach the school via computers, smartphones, and other

electronic devices, given that most of the ‘S.A.S.H.’ group’s members and the

target of the group’s harassment were Musselman High School students.). The

timing of A.S.’s speech is significant, too, given that he created and circulated the

meme and encouraged its dissemination the same day as homecoming – a highly

social and school-centric event involving several high school students and an

increased level of communication among students. Given C.S.’s reaction at school

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the following Monday as well as the other students’ expressed concerns regarding

the meme and its effect, not only was it reasonably foreseeable that the meme

would reach the school community, it actually did.

It was also reasonably foreseeable that A.S.’s meme would cause substantial

disruption to the educational setting. The test is an objective one, focusing on the

reasonableness of the school administration’s response, not on the intent of the

student. See Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 113 (2d Cir.

2012) (citing cases, including Tinker, 393 U.S. at 514). A.S.’s after-the-fact

characterization that the meme was meant to be a joke is therefore irrelevant.

To be “substantial,” the disruption to the school environment must be more

than a mild distraction or curiosity. See J.C. ex rel. R.C. v. Beverly Hills Unified

Sch. Dist., 711 F. Supp. 2d 1094, 1117 (C.D. Cal. 2010). A general “buzz” about

the challenged speech does not rise to the level of substantial disruption. Id. (citing

Tinker, 393 U.S. at 514). And absent evidence of a prior occurrence or of a prior

relationship that would support a prediction of an adverse occurrence, mere

speculation that a disruption may occur is not sufficient to reasonably forecast that

the disruption may be substantial. Id. Relevant to the consideration, however, is

the offending student’s disciplinary history and other students’ reaction to the

speech. See Cuff, 677 F.3d at 113.

Here, it was reasonably foreseeable to a school administrator that A.S.’s

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funeral meme would cause a substantial disruption to the educational setting and

that failure to impose discipline for the meme would perpetuate that disruption.

First, C.S. suffered from depression for which he received outside help. He had

been bullied by A.S. and his group of friends for over a year and was now facing a

virtual and unrestrained “joke” about – of all things – his death. He knew that this

“joke” was circulating among his peers at school, and fellow students directed

comments to him about being dead – not only at school but at the homecoming

dance as well. It was reasonably foreseeable that C.S. would lash out at his

antagonists in the school environment since that is where the offending conduct

was directed and where he experienced it.

Moreover, given “consistent and well-publicized reports” of self-harm

tragedies that result from bullying at school, school administrators are on notice

that doing nothing to prevent known bullying of a student may lead that student to

self-harm, even suicide. See Estate of Olsen v. Fairfield City Sch. Dist. Bd. of

Educ., 341 F. Supp. 3d 793, 811 (S.D. Ohio 2018) (citing Tumminello v. Father

Ryan High Sch., Inc., 678 F. App’x 281, 288 (6th Cir.), cert. denied, 138 S. Ct. 121

(2017)). Indeed, two students at Troy Buchanan expressed concern to teachers or

school administrators that C.S. may engage in self-harm because of the meme.

Notably, the reasonable foreseeability test focuses on the risk of disruption; a

school need not wait for an actual disturbance or a tragic occurrence before it may

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act. See Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007).

In Kowalski, the Fourth Circuit articulated the well-documented effect

bullying has on the school environment:

According to a federal government initiative, student-on-student

bullying is a “major concern” in schools across the country and can

cause victims to become depressed and anxious, to be afraid to go to

school, and to have thoughts of suicide. See StopBullying.gov,

available at www.stopbullying.gov (follow “Recognize the Warning

Signs” hyperlink). Just as schools have a responsibility to provide a

safe environment for students free from messages advocating illegal

drug use, see Morse [v. Frederick], 551 U.S. 393 [2007], schools have

a duty to protect their students from harassment and bullying in the

school environment, cf. Lowery v. Euverard,497 F.3d 584, 596 (6th

Cir. 2007) (“School officials have an affirmative duty to not only

ameliorate the harmful effects of disruptions, but to prevent them

from happening in the first place”). Far from being a situation where

school authorities “suppress speech on political and social issues

based on disagreement with the viewpoint expressed,” Morse, 551

U.S. at 423 (Alito, J., concurring), school administrators must be able

to prevent and punish harassment and bullying in order to provide a

safe school environment conducive to learning.

652 F.3d 565, 572 (4th Cir. 2011) (parallel citations omitted). As was recognized

in Estate of Olsen, school administrators that fail to investigate and impose

discipline on known cyberbullying may face liability for a bullying victim’s

suicide. 341 F. Supp. 3d at 800. “This is because the ‘decision not to enforce rules

against bullying or punishments for bullying [give] students license to act with

impunity.’” Id. at 803 (quoting Shively v. Green Local Sch. Dist. Bd. of Educ., 579

F. App’x 348, 356 (6th Cir. 2014)).

Here, when Lillard imposed discipline and when the board upheld the

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extended suspension, they knew that A.S. had bullied C.S. for over a year before

the funeral meme incident occurred. They also knew that C.S. suffered from

depression. They knew that A.S.’s most recent targeting of C.S. involved C.S.’s

death and that A.S. encouraged other students to disseminate this self-described

“joke” publicly on social media. They knew that students were making comments

to C.S. about being dead. They knew that A.S.’s meme was the original impetus to

other students’ conduct that caused C.S. to snap and have more distress than he

could handle. They knew that the meme caused more than just a “buzz” around

school – it was being shared in the classroom during school hours, was the source

of other students’ articulated concerns regarding C.S.’s well-being as well as their

own, and caused a physical altercation between students in class. Finally, they

knew that at the time A.S. created and posted the funeral meme, he was already

serving a suspension for cyber-related misconduct directed at the school

environment.

Given this knowledge that A.S. was again engaging in disturbing cyber

conduct purposely directed at the school community, was targeting a fellow

student whom he had been bullying for over a year, and had recruited fellow

students to join in, it was reasonably foreseeable that, if left unchecked, A.S. would

continue to target C.S. and/or the school environment and encourage other students

to engage in similar conduct, thus leading to substantial disruption. The

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reasonableness of this forecast is shown here by C.S.’s reaction and by the other

students’ articulated concerns – not only for C.S., but for themselves as potential

victims of cyberbullying. Cf. Cuff, 677 F.3d at 113 (offending student’s

disciplinary history and other students’ reaction to the speech relevant to

foreseeability); J.C., 711 F. Supp. 2d at 1117 (prior relationship could support

prediction of an adverse occurrence).

Moreover, actual disruption occurred in the school setting on account of the

meme. C.S. entered a classroom during a class period and placed another student

in a chokehold, which was observed by the teacher to be “serious.” Other students

talked to their respective teachers during their class periods regarding their

concerns for C.S.’s well-being and their own. While a student’s hurt feelings in

general are insufficient to constitute a substantial disruption in the school

community, a physical altercation or classroom discussion may suffice. See J.C.,

711 F. Supp. 2d at 1117; see also Cuff, 677 F.3d at 113 (speech caused substantial

disruption where students brought matter to teachers’ attention and were “very

worried” about the speech). Here, we have both.

Accordingly, although A.S.’s funeral meme was created off school grounds,

it was purposefully designed to bully and harass another student by generating

chatter among other students at the high school at A.S.’s invitation and

encouragement. Not only did it cause an actual disruption at the school, but it was

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reasonably foreseeable to school administrators that, if left unchecked, it would

create a substantial disruption given the tangible effect it already had on the

targeted student, who suffered from depression, as well as the school community –

not only the students who expressed concern to teachers and administrators about

C.S., but also the students who continued to tease and make comments to C.S.

about his death. This speech was therefore not protected by the First Amendment,

and Lillard and the school district were authorized to discipline A.S. for this

speech.

Citing R.S. ex rel. S.S. v. Minnewaska Area Sch. Dist. No. 2149, 894 F.

Supp. 2d 1128 (D. Minn. 2012), A.S. repeatedly contends that in order to constitute

unprotected speech under Tinker, the off-campus statements must not only be

reasonably calculated to reach the school environment, but they must also be “so

egregious” as to pose substantial disruption in that environment. (ECF 23 at pp. 5,

7, 16, 18, 20.) A.S. argues that his funeral meme was not “so egregious” to justify

its exclusion as protected speech under the First Amendment. Other than the

District of Minnesota’s characterization, I have not found any authority narrowing

the Tinker analysis to require that off-campus speech reach a certain level of

“egregiousness” to warrant school discipline. Indeed, as recognized by the

Western District of Arkansas,

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

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a district’s punishment of off-campus speech is not 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.

McKinney as Next Friend of K.P. v. Huntsville Sch. Dist., 350 F. Supp. 3d 757, 768

(W.D. Ark. 2018). I agree with the court in McKinney and will not alter the Tinker

analysis to mandate that the speech at issue meet a certain level of egregiousness in

itself in order for a student’s off-campus speech to be properly and lawfully subject

to school discipline.

Because A.S.’s funeral meme was not protected speech in the circumstances

of this case, neither Lillard nor the school district violated A.S.’s First Amendment

right to free speech when they disciplined him for engaging in such speech.

B. Fourteenth Amendment Due Process

In his Fourteenth Amendment claim, A.S. contends that the manner by

which Lillard and the board of education conducted the discipline hearing denied

him due process because they presented and relied on: 1) untrue testimony without

corroboration, 2) material evidence that did not exist or was not produced, and 3)

inflammatory and irrelevant exhibits. A.S. claims that, as a result, the board’s final

decision to uphold his suspension was a mere ratification of the superintendent’s

earlier decision, thereby depriving him of his interest in public education and in his

reputation without due process, and of his right to be free from arbitrary and

capricious punishment.

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As an initial matter, I disagree with defendants’ assertion that A.S.’s

placement and participation in AEP precludes his claim that he was deprived of his

interest in a public education. “The intangible benefits of attending public school

have long been recognized and protected by the federal courts.” Engele v.

Independent Sch. Dist. No. 91, 846 F. Supp. 760, 765 (D. Minn. 1994) (citing

Brown v. Board of Educ., 347 U.S. 483, 493 (1954)). Because suspension from

school “is a serious event in the life of the suspended child,” the property interest

in educational benefits and the liberty interest in reputation are implicated. Goss v.

Lopez, 419 U.S. 565, 576 (1975). In this case, although A.S.’s participation in

AEP perhaps minimized some of the effects of his suspension, it does not affect

my determination that he was entitled to the basic right of due process. Engele,

846 F. Supp. at 765 (severity of deprivation is not decisive of student’s basic right

to due process); see also S.W. by & through Walsh v. Rockwood R-VI Sch. Dist.,

No. 4:17-CV-01483-NCC, 2017 WL 5903984, at *6 (E.D. Mo. Nov. 30, 2017).

Students facing a ten-day suspension must be given some kind of notice and

afforded some type of hearing. Goss, 419 U.S. at 579. To satisfy due process in

such a circumstance, the hearing can be informal and can be held immediately

following the incident. “Longer suspensions or expulsions for the remainder of the

school term, or permanently, may require more formal procedures.” Id. at 584.

Constitutionally, due process requires that individuals have “notice and

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opportunity for a hearing appropriate to the nature of the case” prior to a

deprivation of life, liberty, or property. Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 313 (1950). Notice must be “reasonably calculated, under all

the circumstances, to apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.” Id. at 314. In the context

of school disciplinary proceedings resulting in suspension, Missouri law requires

that the student be given oral or written notice of the charges against him/her; that,

if the student denies the charges, the student be given an oral or written explanation

of the facts which form the basis of the proposed suspension; that the student be

given an opportunity to present his/her version of the incident; and, in the event of

a suspension imposed by the superintendent for more than ten school days, the

student, the student’s parents, or others having custodial care may appeal the

decision of the superintendent to the board of education, whereupon the board is

required to consider the evidence and statements that the parties present as well as

records of past disciplinary actions. Mo. Rev. Stat. §§ 167.161, 167.171. A.S.

does not challenge this process.

A.S.’s Fourteenth Amendment claim challenges only the hearing held by the

board of education on November 6. Notably, he does not allege that he was denied

any notice with regard to this hearing, or that he was denied the opportunity to

raise any challenges or be heard. Instead, he challenges only the quality of the

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evidence presented to the board, alleging that it was untrue, incomplete, and

irrelevant. The Supreme Court has stated, however, that Ҥ 1983 does not extend

the right to relitigate in federal court evidentiary questions arising in school

disciplinary proceedings[.]” Wood v. Strickland, 420 U.S. 308, 326 (1975),

abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). And,

as recognized by this Court, “courts have consistently declined to impose the

formal procedures and rules of evidence which govern court trials on student

disciplinary proceedings.” Sykes v. Sweeney, 638 F. Supp. 274, 279 (E.D. Mo.

1986). In a §1983 claim such as that presented by Count III, “It is not the purpose

of this Court to step in and rehear the evidence and rethink the decision of school

board officials.” Id.

Here, A.S. was afforded all the process he was due in relation to the

November 6 hearing. He was represented by counsel before the board; he was

offered the opportunity to confront school officials having knowledge of the

relevant facts; he was allowed to cross-examine the witnesses and challenge the

exhibits submitted; and he was offered the opportunity to present evidence in

support of his case. Having been afforded notice of the time and place of the

hearing, permitted an opportunity to be heard, the right to counsel, and the right to

confront the school officials having knowledge of the relevant facts, A.S. was

afforded his due process. Sykes, 638 F. Supp. at 278; see also Mardis v. Hannibal

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Pub. Sch. Dist. # 60, No. 2:08CV63 JCH, 2009 WL 1140037, at *5 (E.D. Mo. Apr.

28, 2009). To the extent A.S. challenges the evidence upon which the board relied

in making its decision, federal court considering a § 1983 claim is not the place to

relitigate evidentiary questions that arise in school disciplinary proceedings.

Wood, 420 U.S. at 326.

Nor is Lillard liable as a witness. Due process requires an impartial

decisionmaker. See Withrow v. Larkin, 421 U.S. 35, 47 (1975) (“a biased

decisionmaker [is] constitutionally unacceptable”); Jennings v. Wentzville R-IV

Sch. Dist., 397 F.3d 1118, 1124-25 (8th Cir. 2005). A.S. does not allege that

Lillard was a decisionmaker in the board’s final decision to uphold A.S.’s extended

suspension, nor do the reviewed materials show that she was. I am not aware of

any authority, and A.S. cites to none, that imposes due process liability on a non-

decisionmaker who testifies at a school disciplinary hearing, even if it alleged that

the testimony was untruthful.

A.S.’s procedural due process claim fails.

After providing A.S. the procedural due process outlined above, the board of

education upheld the extended suspension based on evidence adduced at the

hearing that: 1) A.S. was already placed on out-of-school suspension for cyber-

related misconduct directed to the school; 2) A.S. admitted to creating, posting,

and encouraging students to share a meme on social media that targeted a

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particular student and made fun of his purported “death”; 3) students accessed and

showed the meme in class; 4) the targeted student engaged in a fight at school

because of comments about his “death”; 5) different students approached different

teachers because of their concern about the cyberbullying and its impact on the

targeted student’s mental health; and 6) classes were disrupted. Against the

backdrop of this evidence, the board’s imposition of an extended suspension that

amounted to twenty-three school days is not “‘so egregious, so outrageous, that it

may fairly be said to shock the contemporary conscience’ of federal judges.”

Keefe v. Adams, 840 F.3d 523, 533 (8th Cir. 2016) (quoting County of Sacramento

v. Lewis, 523 U.S. 833, 847 n.8 (1998)). Nor can it be said that “there was no

rational basis for the [school’s] decision or that the decision was motivated by bad

faith or ill will.” Disesa v. St. Louis Cmty. Coll., 79 F.3d 92, 95 (8th Cir.1996).

Because the circumstances here do not present a “truly egregious [or]

extraordinary case[,]” A.S.’s substantive due process claim fails. Novotony v.

Tripp Cty., S.D., 664 F.3d 1173, 1178 (8th Cir. 2011) (internal quotation marks and

citation omitted).

C. Qualified Immunity

Lillard asserts that she is entitled to qualified immunity on A.S.’s

constitutional claims.

In actions brought under 42 U.S.C. § 1983, qualified immunity protects state

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officials from suit for money damages “unless (1) the evidence, viewed in the light

most favorable to the nonmoving party, establishes a violation of a federal

constitutional or statutory right, and (2) the right was clearly established at the time

of the violation.” Robinson v. Payton, 791 F.3d 824, 828 (8th Cir. 2015). As

discussed above, the evidence fails to establish a violation of A.S.’s First

Amendment right to free speech or Fourteenth Amendment right to due process.

On this basis alone, Lillard is entitled to qualified immunity on these claims.

Nevertheless, it cannot be said that the rights asserted by A.S. in this action were

clearly established at the time they were allegedly violated. Accordingly, Lillard is

entitled to qualified immunity on this basis as well.

In order to be “clearly established,” a right’s contours must have been

“sufficiently definite that any reasonable official in the defendant’s shoes would

have understood that [she] was violating it.” Plumhoff v. Rickard, 572 U.S. 765,

779 (2014). Preexisting law must make the unlawfulness of the official’s conduct

apparent so that she has “fair and clear warning” she is violating the Constitution.

White v. Pauly, 137 S. Ct. 548, 551-52 (2017) (per curiam). “We do not require a

case directly on point, but existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). Qualified immunity therefore protects “all but the plainly incompetent or

those who knowingly violate the law.” White, 137 S. Ct. at 552. Because qualified

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immunity protects officials who make bad guesses in gray areas, Littrell v.

Franklin, 388 F.3d 578, 582 (8th Cir. 2004), it gives them breathing room to make

reasonable but mistaken judgments. Blazek v. City of Iowa City, 761 F.3d 920, 922

(8th Cir. 2014).

First Amendment Free Speech

The law is clearly established that students have First Amendment rights

both on and off the school campus. But the law is not so clearly established

regarding the degree of foreseeability or disruption to the school environment that

must be shown under Tinker in order for school officials to limit a student’s off-

campus speech. See D.J.M., 647 F.3d at 766-67. Courts continue to face this

difficult issue in protecting First Amendment values while being sensitive to a

school administrator’s need for a secure school environment. See id. Given the

uncertainty in this area of the law, I cannot conclude that any reasonable school

administrator would have understood that she was violating a student’s right to free

speech by imposing punishment in the circumstances of this case. “Officials are

not liable for bad guesses in gray areas; they are liable for transgressing bright

lines.” Scott v. Baldwin, 720 F.3d 1034, 1036 (8th Cir. 2013) (quoting Davis v.

Hall, 375 F.3d 703, 712 (8th Cir. 2004)). Lillard is therefore entitled to qualified

immunity on A.S.’s First Amendment claim.

Fourteenth Amendment Due Process

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As discussed above, the law is clearly established that due process requires

an impartial decisionmaker. But the law is not so clearly established as to what

process is due from a non-decisionmaker witness at a school disciplinary hearing.

Indeed, I am aware of no existing precedent that places this constitutional question

beyond debate, and A.S. cites to none. Although A.S. contends that Lillard’s

testimony at the hearing was evasive, embellished, incredible, and untrue, he

nevertheless had the opportunity to cross-examine Lillard and to present evidence,

testimony, and argument on his own behalf. Accordingly, regardless of Lillard’s

alleged conduct as a witness, A.S. was afforded all the process he was due.

Whether the board improvidently found Lillard credible is not a matter for me to

decide. Wood, 420 U.S. at 326.

Supplemental Jurisdiction

In Count I of his complaint, A.S. seeks judicial review of the board of

education’s decision under Mo. Rev. Stat. § 167.161. Under § 167.161.3, A.S. is

entitled to judicial review of the board’s decision by way of “a trial de novo by the

circuit court.” Because I will dismiss all claims over which this Court has original

jurisdiction, I decline to exercise supplemental jurisdiction over this state law

claim and will remand the matter to the Circuit Court of Lincoln County for an

appropriate trial de novo as provided by Missouri law. 28 U.S.C. § 1367(c)(3).

See also D.J.M., 647 F.3d at 767 (district court did not abuse its discretion in

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remanding to state court plaintiff's state-law claim for review of school’s

disciplinary decision), affirming Mardis v. Hannibal Pub. Sch. Dist. # 60, 684 F.

Supp. 2d 1114 (E.D. Mo. 2010).

Accordingly,

IT IS HEREBY ORDERED that defendants’ Motion for Judgment on the

Pleadings on Counts II and III of Plaintiff's Complaint [21] is GRANTED.

IT IS FURTHER ORDERED that defendants Joy Lillard and the Lincoln

County R-III School District shall have judgment against plaintiff A.S. on Counts

II and III of A.S.’s complaint.

IT IS FURTHER ORDERED that A.S.’s claim for judicial review under

Mo. Rev. Stat. § 167.161 (Count I) is REMANDED to the Circuit Court of

Lincoln County, Missouri.

An appropriate Judgment and Order of Remand is entered herewith.

Pettus. 0 Lou.

CATHERINE D.PERRY //

UNITED STATES DISTRICT JUDGE

Dated this 17th day of December, 2019.

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