Updike v. Jonas

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SARAH UPDIKE, et al., Case No. 1:22-CV-374

Plaintiffs, Judge Michael R. Barrett

v.

SARA JONAS, et al., OPINION & ORDER

Defendants.

This matter is before the Court on the motions to dismiss filed by Defendant Leslie

Rasmussen, (Doc. 52), and Defendants Sara Jonas, Linda Hausfeld, Katie Stewart, Bob

Bibb, Larry Hook, the Board of Education of the Forest Hills School District (“Board”), and

the Forest Hills School District (“FHSD”), (Doc. 53). Plaintiffs—FHSD parents and

educators acting on their own behalf and on behalf of their children and students—have

responded in opposition, (Docs. 54, 55), and Defendants have replied, (Docs. 57, 59).

For the following reasons, the Court will deny the motions to dismiss.

I. FACTUAL BACKGROUND

On June 22, 2022, a majority of Board members voted to pass what was entitled

a “Resolution to Create a Culture of Kindness and Equal Opportunity for All Students and

Staff” (“Resolution”). (See Doc. 51, PageID 1581-83). At its core, the Resolution

proclaimed that “FHSD will not use Critical Race Theory, intersectionality, identity, or anti-

racism curriculum, for student education or any staff training.” (Id., PageID 1582).

Specifically, the Resolution declared that:

• Schools may not use race, socioeconomic class, religion,

gender identity, sex, ethnicity, or culture as a consideration

when hiring or administering academic programs or

evaluation systems.

• Neither schools, nor instructors or guest speakers, shall have

student[s] participate in class or complete assignments that

require, guide, or nudge the student to consider his or her

race, socioeconomic class, religion, gender identity, sex,

sexual preference, ethnicity, or culture as a deficiency or a

label to stereotype the student as having certain biases,

prejudices or other unsavory moral characteristics or beliefs

based on these immutable characteristics.

• Schools shall not discipline differently on the basis of race,

socioeconomic class, religion, gender identity, sex, sexual

preference, ethnicity, or culture.

• Schools shall not engage in stereotyping based upon race,

socioeconomic class, religion, gender identity, sex, sexual

preference, ethnicity, or culture, including ascribing character

traits, values, moral and ethical codes, privileges, status or

belief.

• Schools shall not force individuals to admit privilege or

oppression, or to “reflect,” “deconstruct,” or “confront” their

identities based on race, socioeconomic class, religion,

gender identity, sex, sexual preference, ethnicity, or culture.

(Id.).

Plaintiffs brought suit shortly thereafter, asserting that “[t]he Resolution is a

content-based restriction . . . without any legitimate pedagogical purpose,” and is intended

to push “partisan political agendas, using language that is simultaneously extraordinarily

broad and vague.”1 (Id., PageID 1531). They claim that the Resolution has already been

implemented in some circumstances and go on to argue that “[t]he Resolution’s vague,

overbroad, race-based and viewpoint discriminatory provisions impermissibly invade

1 Plaintiffs note that “Jonas, Hausfeld, Bibb, and Stewart campaigned for office together as a group on the

platform of being ‘AGAINST Critical Race Theory,’ and “‘AGAINST Comprehensive Sexuality Education.’”

(Doc. 51, PageID 1543). Indeed, Jonas agreed that “[p]art of [her] campaign platform was to tell people

that [she] would try to eliminate CRT as part of the curriculum in the Forest Hills School District.” (Doc. 39,

PageID 296-97).

upon, among other things, students’ First Amendment Right to receive information and

free speech, educators’ First Amendment Right of free speech and academic freedom,

and the Equal Protection Clause.” (Id., PageID 1532). Accordingly, Plaintiffs bring seven

causes of action and ask the Court to enjoin Defendants from enforcing or otherwise

continuing to implement the Resolution, officially or unofficially.

Defendants have moved to dismiss, with Rasmussen arguing that the suit against

her in her official capacity as a Board member “is redundant [because] the only potentially

plausible claim is against the defendant school board,” (Doc. 52, PageID 1585), and the

remaining Defendants arguing both that Plaintiffs lack standing and that the only proper

Defendant in this matter is the Board, (Doc. 53). The remaining Defendants also

repeatedly return to their position that “[t]he Resolution is not the same as a policy based

on the Board’s bylaws.” (Id., PageID 1588).

Plaintiffs counter that redundancy alone is not an adequate basis for the dismissal

of official-capacity claims, (Doc. 54, PageID 1602-03), and challenge the premise that the

Resolution is “a mere unenforceable ‘vision statement,’” (Doc. 55, PageID 1612). Instead,

they argue, the Resolution is a “policy, practice, or custom” for the purposes of 42 U.S.C.

§ 1983, as well as “an action to implement already existing policies which are contained

in FHSD’s policy books, including the Controversial Issues policy.” (Id., PageID 1621).

Moreover, Plaintiffs contend that the Resolution “imposes a barrier that denies equal

access to the FHSD education system,” and “constitutes an arbitrary interference with the

Plaintiff parents’ rights to control the education of their children.” (Id., PageID 1623-24).

II. LEGAL STANDARDS

“Federal courts are courts of limited jurisdiction; the plaintiff carries the burden of

demonstrating that either the Constitution or a statute has granted the court jurisdiction

over a given suit, and that it may therefore hear it.” Jude v. Comm’r of Soc. Sec., 908

F.3d 152, 157 (6th Cir. 2018); cf. United States v. Cotton, 535 U.S. 625, 630 (2002)

(noting that subject-matter jurisdiction “can never be forfeited or waived”). “Article III

standing is a question of subject matter jurisdiction properly decided under [Federal Rule

of Civil Procedure] 12(b)(1),” Am. BioCare Inc. v. Howard & Howard Attys. PLLC, 702 F.

App’x 416, 419 (6th Cir. 2017), and “[a] Rule 12(b)(1) motion can either attack the claim

of jurisdiction on its face, in which case all allegations of the plaintiff must be considered

as true, or it can attack the factual basis for jurisdiction, in which case the trial court must

weigh the evidence.” Abbott v. Michigan, 474 F.3d 324, 328 (6th Cir. 2007).

In order to establish standing, a plaintiff must generally show “(1) a concrete and

particularized injury-in-fact which (2) is traceable to the defendant’s conduct and (3) can

be redressed by a favorable judicial decision.” Dickson v. Direct Energy, LP, 69 F.4th 338,

343 (6th Cir. 2023). An injury-in-fact arises when a plaintiff suffers “‘an invasion of a legally

protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not

conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). However, “an injury need not

necessarily be tangible . . . to be concrete,” Dickson, 69 F.4th at 343, and an injury may

arise in the pre-enforcement context “not merely out of actual or even expected

enforcement actions, but also ‘costly, self-executing compliance burdens’ or because the

challenged [provision] ‘chills protected First Amendment activity,’” Bongo Prods., LLC v.

Lawrence, 548 F.Supp.3d 666, 677 (M.D. Tenn. 2021) (quoting Nat’l Rifle Ass’n of Am.

v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997)).

As for the merits of the allegations themselves, a party may move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). To withstand a Rule 12(b)(6) dismissal motion, a complaint must contain “more

than labels and conclusions [or] a formulaic recitation of the elements of a cause of

action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up). Courts do

not require “heightened fact pleading of specifics, but only enough facts to state a claim

for relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the

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

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009); see Crawford v. Tilley, 15 F.4th 752, 762 (6th Cir. 2021).

In reviewing a Rule 12(b)(6) motion, a court must “construe the complaint in the

light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable

inferences in favor of the plaintiff.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426,

430 (6th Cir. 2008) (quoting Directv, Inc. v Treesh, 487 F.3d 471, 476 (6th Cir. 2007)).

Courts may also look to “the Complaint and any exhibits attached thereto, public records,

items appearing in the record of the case and exhibits attached to defendant’s motion to

dismiss so long as they are referred to in the Complaint and are central to the claims

contained therein.” Id. (quoting Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)).

III. ANALYSIS

A. Standing

Because a motion to dismiss based on a lack of subject-matter jurisdiction must

typically be considered before a motion to dismiss for failure to state a claim upon which

relief can be granted, see Pritchard v. Dent Wizard Int’l Corp., 210 F.R.D. 591, 592 (S.D.

Ohio 2002), the Court will look to that component of the motion filed by Defendants Jonas,

Hausfeld, Stewart, Bibb, Hook, the Board, and FHSD. At the heart of their standing

argument is the assertion that Plaintiffs have suffered no injury-in-fact and “a fair reading

of Plaintiffs’ Amended Complaint demonstrates that they have admitted that no such

injury exists or is imminent.” (Doc. 53, PageID 1595). But the Court’s reading differs.2

First, consider the contested question of whether the Resolution constitutes a

policy, as opposed to a mere, unenforceable “vision statement” or “statement of belief.” It

defies logic and the basic conventions of the English language to argue that the

Resolution was “only a statement of belief and not a change to existing school policies,”

(Doc. 59, PageID 1678), when the Resolution itself uses mandatory language to declare

what FHSD “will not utilize,” and lists a number of actions that schools and teachers “may

not” or “shall not” take. Even more so when taken in the context of FHSD’s own policy

manual, (Doc. 40, PageID 710)—which explicitly defines “shall” as a word that “is used

when an action by the Board or its designee is required”—and the so-called “Controversial

Issues” policy, (Doc. 39, PageID 532)—which could serve as an enforcement mechanism

2 Jonas, Hausfeld, Stewart, Bibb, Hook, the Board, and FHSD do not explicitly state whether they are

mounting a facial or factual attack on standing, but later take issue with some of Plaintiffs’ factual assertions.

To the extent that Plaintiffs put forth undisputed factual allegations, the Court will accept them as true and

construe them in a light most favorable to Plaintiffs. See Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir.

2014). But where the Court must inquire into the factual predicates for jurisdiction, the Court may look to

evidence outside of the pleadings. See Lovely v. United States, 570 F.3d 778, 781-82 (6th Cir. 2009).

and provides that “[d]ecisions about course content shall be based upon the goals,

policies, and administrative regulations of the school district.”3

In any event, the more relevant definition of “policy” here is that under § 1983,

encompassing “a policy statement, ordinance, regulation, or decision officially adopted

and promulgated” by Defendants. Johnson v. Hardin County, 908 F.2d 1280, 1285 (6th

Cir. 1990) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978)). Critically,

“there need not be a formal policy for there to be an unconstitutional custom that amounts

to policy,” Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994), and both written

and unwritten policies or customs may result in liability, see Jackson v. City of Cleveland,

925 F.3d 793, 830 (6th Cir. 2019). In this case, then, it would appear that a Resolution by

any other name is a policy.

As to injury, Plaintiffs advance claims that Defendants are already enforcing the

Resolution. (Doc. 55, PageID 1607-09). Regardless, Plaintiffs argue, they are entitled to

bring pre-enforcement First Amendment challenges because they have expressed “an

intention to engage in a course of conduct arguably affected with a constitutional interest,”

but that course of conduct is arguably proscribed by the Resolution and there exists a

credible threat of enforcement.4 See Susan B. Anthony List v. Driehaus, 573 U.S. 149,

159 (2014); see also Fischer v. Thomas, 52 F.4th 303, 307 (6th Cir. 2022) (“To identify a

credible threat of enforcement, the first and most important factor is whether the

3 At one point, a Board member even appeared to refer to the Resolution as a policy: among select

correspondence in the record is an email exchange from August 2022 in which a FHSD parent takes issue

with his daughter’s kindergarten teacher including her personal pronouns at the bottom of her email

signature. Defendant Stewart responds to the parent, saying “I wanted you to know this goes against board

policy. I am hopeful this will be corrected and won’t be a concern going forward.” (Doc. 39, PageID 555).

4 Plaintiffs also point to what they say is the overbreadth of the Resolution—specifically in its as-yet-

undefined prohibition on “euphemistic surrogates” related to CRT and anti-racism—resulting in “standing to

assert the rights of third parties whose protected speech may have been impermissibly curtailed by the

challenged prohibition.” Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 835 (6th Cir. 2004).

challenged action chills speech.”); cf. Speech First, Inc. v. Schlissel, 939 F.3d 756, 764

(6th Cir. 2019) (“Even if an official lacks actual power to punish, the threat of punishment

from a public official who appears to have punitive authority can be enough to produce

an objective chill.”). The Court agrees on both fronts and finds that Plaintiffs have satisfied

the injury-in-fact component of this standing analysis through plausible allegations that

the Resolution has already infringed upon their First Amendment rights, as well as

reasonable claims of an objective chill resulting from the Resolution. See generally

Menders v. Loudon County Sch. Bd., 65 F.4th 157, 164 (4th Cir. 2023) (“Establishing

standing in First Amendment claims alleging the chilling of free speech . . . is not that

demanding.”). Furthermore, those injuries are both fairly traceable to Defendants’ actions

and can be remedied by the favorable judicial decision Plaintiffs now seek.

The last standing argument, by Defendants Jonas, Hausfeld, Stewart, Bibb, Hook,

the Board, and FHSD, challenges the standing of parent and teacher Plaintiffs to claim

that the Resolution runs afoul of their liberty interests in the education of their children

and students. Specifically, Defendants assert a lack of standing because “the Courts have

not extended the fundamental right for a parent to make decisions regarding the care,

custody and control of their children to a decision as to how a public school teaches their

child.” (Doc. 53, PageID 1599). But their two-paragraph argument provides little more

than a general overview of applicable caselaw and goes more toward the merits of the

claim. And while Defendants are correct that the liberty interest involved in this claim is

highly limited in scope, see, e.g., Doe v. Bethel Loc. Sch. Dist. Bd. of Educ., No. 3:22-

CV-337, 2023 U.S. Dist. LEXIS 137555, at *39-43 (S.D. Ohio Aug. 7, 2023), parent and

teacher Plaintiffs still possess standing to challenge what they allege to be an arbitrary

and unreasonable exercise of power, see Meyer v. Nebraska, 262 U.S. 390, 399-400

(1923).

B. Official-Capacity Claims

Finally, the parties disagree over the nature of Plaintiffs’ official-capacity claims

against the named individual Defendants. Defendants, looking to the familiar maxim that

“[a] suit against an individual in his official capacity is the equivalent of a suit against the

governmental entity,” Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994), ask the

Court to dismiss any such claims on the basis of redundancy. Plaintiffs respond that they

“may decide what claims to allege and how to allege them,” and argue that Sixth Circuit

precedent “does not require dismissal of official capacity claims on the basis of

redundancy.” (Doc. 54, PageID 1603). In support of their position, Plaintiffs invoke a

recent decision in this District in which the Court held that “the simple fact that some of

the plaintiff’s claims are redundant does not mean that their dismissal is required under

Rule 12(b)(6).” Doe v. Springboro Cmty. Sch. Dist. Bd. Of Educ., No. 1:19-CV-785, 2021

U.S. Dist. LEXIS 73227, at *8 (S.D. Ohio Apr. 15, 2021).

Although Defendants are correct that an official-capacity suit is “to be treated as a

suit against the entity,” Kentucky v. Graham, 473 U.S. 159, 165 (1985), the Court also

finds no affirmative mandate in the relevant (but admittedly mixed) caselaw or the Federal

Rules of Civil Procedure requiring dismissal on redundancy grounds at this preliminary

juncture, see Baar v. Jefferson County Bd. Of Educ., 476 F. App’x 621, 635 (6th Cir.

2012). To that end, and in recognition of the fact that such dismissals appear to typically

occur in the summary judgment phase of proceedings, see Troutman v. Louisville Metro

Dep’t of Corr., No. 3:16-CV-742, 2018 U.S. Dist. LEXIS 205847, at *9 (W.D. Ky. Dec. 4,

2018), the Court declines at this time to dismiss the official-capacity claims against named

individual Defendants, but does so without prejudice and subject to renewal.

IV. CONCLUSION

For the foregoing reasons, the motions to dismiss, (Docs. 52, 53), are DENIED.

IT IS SO ORDERED.

___/s/ Michael R. Barrett___

Michael R. Barrett

United States District Judge