The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
L. H., ON BEHALF OF THEIR MINOR )
CHILDREN; D. J., ON BEHALF OF )
THEIR MINOR CHILDREN; B. C., ON )
BEHALF OF THEIR MINOR CHILDREN; )
AND J. F., ON BEHALF OF THEIR ) Case No. 4:22-cv-00801-RK
MINOR CHILDREN; )
)
Plaintiffs, )
)
v. )
)
INDEPENDENCE SCHOOL DISTRICT, )
)
Defendant. )
ORDER
Plaintiffs are parents and next friends of minor children who are students in the Defendant
Independence School District and filed this case on their minor children’s behalf on December 6,
2022. (Doc. 1.) Plaintiffs challenge Defendant’s policy that removes material in school libraries
upon receipt of a challenge to such material, pending a formal review process. Plaintiffs claim the
policy violates the minor children’s First Amendment rights and Fourteenth Amendment Due
Process rights. Plaintiffs assert the policy’s automatic application, lack of notice to students
before, during, and at the end of the formal review process, and lack of opportunity for appeal are
unconstitutional.
Before the Court is Defendant’s motion to dismiss. (Doc. 18.) The motion is fully briefed.
(Docs. 19, 23, 32.) For the reasons below, Defendant’s motion to dismiss is GRANTED and this
case is DISMISSED.
Background
Defendant Independence School District (“District”) has a regulation, Board Regulation
6310, which, among other things, allows a student, parent, or guardian to make a formal complaint
about library materials he or she finds objectionable on a form obtained from the Superintendent’s
office. (Doc. 1 at ¶ 26; Doc. 1-2 at 3.) Board Regulation 6310 provides that the complaint will be
considered by the Superintendent and librarian, and, “[c]ontingent with their decision, the material
will be returned to the shelf for continued use, or removed from library circulation.” (Doc. 1-2 at
3.) Board Regulation 6310 refers to Policy and Regulation 6241 – Controversial Materials. (Id.)
Board Regulation 6241 provides, among other things:
Despite the care taken to select those materials deemed to be educationally useful,
occasional objections to the selection of instructional materials may be made by the
public.
If a challenge is made, it should be properly channeled through guidelines and
procedures established by the Board.
On occasion, honest differences of opinion may arise about books or materials used
in the public schools. In order to handle questions that might arise in an impartial
and orderly manner, the following procedures shall be followed:
1. All complaints shall be reported immediately to the building principal
involved, whether these come by telephone, letter, or personal conference.
2. The person making the complaint shall receive the form “Review of
Instructional Materials.” A copy of this form may be picked up in the
administrator’s office.
3. This form must be completed and returned by the person making the
complaint.
4. Media being questioned will be removed from use, pending committee study
and final action by the Board of Education, unless the material questioned is a
basic text.[1]
5. The Superintendent of Schools shall, within fifteen (15) days of receipt of
the written request, appoint a review committee of nine people. The committee
shall consist of the administrator of the building involved, three teachers, a
member of the Board of Education, and four lay persons. The administrator
shall serve as secretary.
6. The classroom teachers appointed shall be represented by the grade level or
subject area where the media is used, another grade level or subject area, and a
librarian.
7. The four lay persons appointed shall be selected from a list of eight people
recommended to the Superintendent by the president of the Board of Education.
Two of the four persons appointed must be parents/guardians of children in the
schools.
8. Within twenty (20) days of the appointment of the committee, the committee
shall meet, review the written request for reconsideration, read the questioned
1 This is the automatic-removal policy that Plaintiffs challenge as unconstitutional in their
complaint. (Doc. 1 at ¶ 31.iv n.1.)
materials, evaluate, and prepare a written report of its findings and
recommendations to the Superintendent of Schools.
9. The committee may recommend that the questioned materials be:
a. Retained without restriction;
b. Retained with restriction; or
c. Not retained.
10. The Superintendent shall, at the next appointed meeting of the Board of
Education, report the recommendations of the Review Committee to the Board
of Education. The decision of the Board will be final.
11. The decision of the Board shall be reported to the principal of the school, to
the complainant, and to other appropriate professional personnel on the next
school day. The principal shall see that the decision of the Board is carried out.
12. The librarian responsible for that school shall keep on file all pertinent
information concerning the questioned materials or any books or materials
likely to be questioned.
(Doc. 1-5 at 1-2.)
Under the District’s policies and regulations, there is no notice to students or parents when
materials are challenged and no mechanism for appealing the final Board decision as to whether
material is returned to circulation or permanently removed. (Doc. 1 at ¶ 32.)
On December 16, 2022, Plaintiffs filed their complaint, containing two counts brought
pursuant to 42 U.S.C. § 1983. In Count I, Plaintiffs claim that the District’s automatic-removal
policy violates the minor students’ rights under the First Amendment to the United States
Constitution by removing all student access to all challenged materials, including where removals
are made without merit and on the basis of viewpoint and content. (Id. at ¶ 63.) In Count II,
Plaintiffs claim the automatic-removal policy violates the minor students’ Fourteenth Amendment
due process rights to notice and an opportunity to be heard as to the deprivation of their First
Amendment rights implicated in Count I. (Id. at ¶¶ 72-73.) Plaintiffs seek a preliminary
injunction, as well as a corresponding permanent injunction and declaratory judgment, directing
the District to cease enforcing its policy of automatically removing materials upon challenge as it
allegedly violates “students’ First and Fourteenth Amendment right to access ideas and
information and due process[.]” (Id. at 14.)
In its motion to dismiss filed under Rule 12(b)(6), Defendant argues Plaintiffs lack
standing, there is no justiciable controversy, and Plaintiffs fail to state a claim upon which relief
can be granted.
Legal Standard
Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases” and
“Controversies.” As the United States Supreme Court has explained, “[n]o principle is more
fundamental to the judiciary’s proper role in our system of government than the constitutional
limitation of federal-court jurisdiction to actual cases or controversies.” Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 408 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341
(2006)). An actual case or controversy requires “a definite and concrete controversy involving
adverse legal interests at every stage in the litigation.” Schanou v. Lancaster Cnty. Sch. Dist. No.
160, 62 F.3d 1040, 1042 (8th Cir. 1995).
The party invoking federal jurisdiction must prove jurisdictional facts by a preponderance
of the evidence. Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018). “It is to be presumed
that a cause lies outside [of the Court’s] limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994) (citations omitted). Dismissal of an action is appropriate if the court
does not have subject matter jurisdiction over a claim. Croyle ex rel. Croyle v. United States, 908
F.3d 377, 380 (8th Cir. 2018); Fed. R. Civ. P. 12(h)(3).
Standing is a threshold or jurisdictional issue. See Cook v. ACS State & Local Sols., Inc.,
756 F.Supp.2d 1104, 1106 (W.D. Mo. 2010). A district court does not have subject matter
jurisdiction when a plaintiff lacks standing. Nelson v. Maples, 672 F. App’x 621 (8th Cir. 2017)
(citing Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002)). “Standing to sue is a
doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016). “To establish the ‘irreducible constitutional minimum of standing,’
[Plaintiff] must show [it has] ‘(1) suffered an injury-in-fact, (2) that is fairly traceable to the
challenged action of [Defendants], and (3) is likely to be redressed by a favorable judicial
decision.’” Yeransian v. B. Riley FBR, Inc., 984 F.3d 633, 636–37 (8th Cir. 2021) (quoting Spokeo,
136 S. Ct. at 1547).
“An injury-in-fact exists where the plaintiff has sustained, or is in immediate danger of
sustaining, a concrete and particularized harm that is actual or imminent, not conjectural or
hypothetical.” Phila. Indem. Ins. Co. v. Atl. Specialty Ins. Co., No. 6:20-CV-03065-MDH, 2020
WL 4819949, at *1 (W.D. Mo. Aug. 19, 2020) (quoting Steger v. Franco, Inc., 228 F.3d 889, 892
(8th Cir. 2000)). Injury is “fairly traceable” to the government action at issue where a causal
connection is alleged between the government’s action and the plaintiff’s injury. Braden v. Wal-
Mart Stores, Inc., 588 F.3d 585, 592 (8th Cir. 2009). “Because redressability is an ‘irreducible’
component of standing . . . no federal court has jurisdiction to enter a judgment unless it provides
a remedy that can redress the plaintiff’s injury.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801
(2021) (citing Spokeo, 578 U.S. at 338).
Analysis
I. Capacity
Defendant argues Plaintiffs cannot proceed on behalf of their children unless and until they
are judicially appointed to do so. The Court considered and ruled on this issue in its Order on
Plaintiffs’ motion for preliminary injunction of February 23, 2023 (Doc. 35), and thereafter, the
Court granted the parties’ consent motion for appointment of next friend (Doc. 38), mooting this
issue.
II. Justiciable Controversy - Injury-In-Fact
Defendant argues “there is no justiciable case or controversy for this Court to consider”
because “Plaintiffs’ entire lawsuit is predicated on a hypothetical, future challenge, in which a
book is automatically removed pending review.” (Doc. 19 at 7.)
The Court finds Plaintiffs fail to demonstrate the requisite element of an injury-in-fact.
Plaintiffs have not alleged they sustained, and do not allege they are “in immediate danger of
sustaining, a concrete and particularized harm that is actual or imminent, not conjectural or
hypothetical.” Phila. Indem. Ins. Co., 2020 WL 4819949, at *2 (internal quotation marks omitted).
Plaintiffs’ filings specify that “Plaintiffs challenge the risk of constitutional injury posed by the
existence of the policy as a legal matter[,]” (Doc. 22 at 2), that “Plaintiffs do not seek to have any
book returned to the library shelves[,]” (id.), and that Plaintiffs “seek[] neither to prohibit
challenges to library materials nor require the return of any library material that has been
removed.” (Id. at 3.) Rather, “[t]his case . . . targets the automatic-removal policy only. It is not
about [the District]’s curricular decisions nor its policy for reviewing books prior or subsequent to
their inclusion in its library collection.” (Doc. 20 at 6-7.) Plaintiffs allege the automatic-removal
policy “threatens the ability of the Plaintiffs to learn and engage with a diversity of ideas and
information, including seeing their own experiences reflected in the books and developing greater
understanding of the experiences of others.” (Doc. 1 at ¶ 68.) Plaintiffs allege that enforcement
of the policy, removal of books pursuant to it, and “the ongoing challenges to books at [District]
libraries present[] a credible threat that additional books will also be removed based on their
viewpoints.” (Id. at ¶ 69.)
Plaintiffs’ alleged injuries are hypothetical, speculative, and conjectural, rather than
concrete, imminent, and actual. Plaintiffs do not allege any challenge is currently pending or that
any such challenge has been threatened by a potential challenger. Plaintiffs do not allege that any
book is currently temporarily removed as a result of the enforcement of the policy. Plaintiffs’
complaint alleges only one instance of the policy ever being enforced, which their other filings
make clear is an event or action they do not challenge in this lawsuit. In light of this record,
Plaintiffs’ complaint fails to allege an injury-in-fact as required to establish Article III standing.2
III. Failure to State a Claim
Because Plaintiffs fail to establish standing for their claims, this Court lacks subject matter
jurisdiction over this case and will not address Defendant’s further argument as to whether
Plaintiffs fail to state a claim upon which relief may be granted.
Conclusion
Accordingly, Defendant’s motion to dismiss is GRANTED and this case is DISMISSED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: April 27, 2023
2 Even assuming that Plaintiffs adequately plead an injury-in-fact and causation, the Court would otherwise
find Plaintiffs’ allegations fail to plead redressability. Enjoining Defendant from enforcing its automatic-removal
policy would not foreclose the possibility that materials would otherwise be removed or access to them restricted upon
challenge at the independent discretion of District personnel pending review of some sort.
Simply put, Plaintiffs seek an advisory opinion from this Court holding Defendant liable for potential future
removal of school library materials upon hypothetical challenges to them. Such an opinion would not preclude future
restriction of Plaintiffs’ access to such materials nor ensure the protection of any alleged due process rights implicated
by such restriction without Plaintiffs being granted pre- or post-removal notice or opportunity to be heard. Such
advisory opinion is outside the constitutional authority of the Court. Therefore, Plaintiffs lacks standing on the
additional ground that the remedy sought cannot redress Plaintiffs’ alleged injury. Uzuegbunam, 141 S. Ct. at 801.