# Burwell v. Portland School District No. 1J

> District Court, D. Oregon · April 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10392001

## Case

- **Court:** District Court, D. Oregon
- **Decided:** April 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10392001

## How later opinions describe it (automated extraction)

- holding that when politically accountable figures and legislatures oversee the programs, officials, and messages in an advertising campaign, “[n]o more is required” under the First Amendment

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LUCAS BURWELL; MICHELLE Case No. 3:19-cv-00385-JR
YARBROUGH; KATHERIN
KIRKPATRICK; CHRISTOPHER S. OPINION AND ORDER
JOHNSON; and M.S., by and through the
custodial parents, KUMIKO SCHOW and
GLENDEN HEAGY,

Plaintiffs,

v.

PORTLAND SCHOOL DISTRICT NO. 1J
by and through the PORTLAND SCHOOL
BOARD, an Oregon public school entity;
and GUADALUPE GUERRERO in his
official capacity as Superintendent of
Portland School District No. 1J,

Defendants.

James L. Buchal, Murphy & Buchal, LLP, 3425 SE Yamhill Street, Suite 100, Portland, Oregon
97214. Attorneys for Plaintiffs.

J. Aaron Landau and William F. Gary, Harrang Long Gary Rudnick, PC, 497 Oakway Road,
Suite 380, Eugene, Oregon 97401. Attorneys for Defendants.
IMMERGUT, District Judge.
Before the Court is Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
ECF 16. On August 23, 2019, Magistrate Judge Jolie A. Russo issued her Findings and
Recommendation (“F&R”), in which she recommended that Plaintiffs’ First Amendment claim
be dismissed with leave to amend. ECF 20. Plaintiffs filed objections to the F&R, to which

Defendants responded. ECF 22; ECF 23. After de novo review of the F&R, objections, and
responses, this Court adopts the F&R as explained in the following supplemental analysis. Both
counts of Plaintiffs’ First Amendment claim are dismissed because Plaintiffs’ First Amended
Complaint (“Complaint”), ECF 13, fails to state a claim of compelled subsidization of private
speech or a claim of compelled speech.
STANDARDS
A. Motion to Dismiss
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual

allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and construe them in the light most favorable to the non-moving party. See Daniels-Hall v. Nat’l
Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth,
allegations in a complaint “may not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give fair notice and to enable the opposing
party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The court
must draw all reasonable inferences from the factual allegations in favor of the plaintiff. Newcal
Indus. v. Ikon Office Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however,
credit the plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial

plausibility when the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation
marks omitted).
B. Review of Magistrate Judge’s Findings and Recommendation
Under the Federal Magistrates Act (“Act”), as amended, the court may “accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge’s F&R, “the court shall

make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id.; see also Fed. R. Civ. P. 72(b)(3). However,
the court is not required to review, de novo or under any other standard, the factual or legal
conclusions of the F&R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140,
149–50 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Nevertheless, the Act “does not preclude further review by the district judge, sua sponte,”
whether de novo or under another standard. Thomas, 474 U.S. at 154.
DISCUSSION
This Court adopts the F&R’s summary of the allegations in the Complaint. ECF 20 at 2–
5.1 The F&R concluded that count one of Plaintiffs’ First Amendment claim, alleging forced
subsidization of speech, should be dismissed because the Complaint alleges acts of government
speech, rather than private speech. Id. at 8–12. The F&R also recommended dismissing count

two, alleging compelled speech, because the Complaint does not plead facts showing that
Plaintiffs were compelled to speak in violation of their First Amendment rights. Id. at 5–8.
Plaintiffs object on both counts. ECF 22.2 The objections to each count are considered below.
C. Count One: Compelled Subsidization
Magistrate Judge Russo recommended dismissing the forced subsidization count of
Plaintiffs’ First Amendment claim because the Complaint fails to allege subsidization of private
speech. ECF 20 at 8–12. Judge Russo noted that the “complaint is unclear as to whether the
complained of speech was that of defendants as a governmental entity or that of the third-party
students.” Id. at 10. This Court agrees with Judge Russo that to the extent that Plaintiffs’
Complaint alleges acts of government speech, the Free Speech Clause of the First Amendment
does not apply. See id. at 9–10; Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009)

(“The Free Speech Clause restricts government regulation of private speech; it does not regulate
government speech.”).3

1 Although the F&R states that Plaintiffs are “four students and parents,” this Court notes that
four Plaintiffs are parents and one Plaintiff is a student, who brings this action through the
custodial parents. ECF 13 at ¶¶ 3–5.
2 The page numbers provided in Plaintiffs’ objections to the F&R, ECF 22, differ from the
pagination automatically generated by the court’s electronic case filing system (“ECF”). This
Court’s citations to this document refer to the court-generated pagination.
3 To the extent that Plaintiffs argue that the F&R applied the wrong legal standard under Janus v.
American Federation of State, County, & Municipal Employees, Council 31, see ECF 22 at 16–
Plaintiffs argue that the F&R erred in finding that the Complaint alleges government
speech that is immune from challenge under the First Amendment. ECF 22 at 18–24. In their
objections, Plaintiffs reiterate two arguments previously raised before Judge Russo. See ECF 18.
Plaintiffs suggest that Defendants’ speech does not qualify as government speech because it did
not comply with school board regulations and Oregon law. See ECF 22 at 20, 23–24. Plaintiffs

also contend that Defendants’ speech was not government speech because it was not germane to
their duties as government entities and officials. Id. at 19–20, 22 n.5. Each argument is addressed
in turn.
First, Plaintiffs argue that Defendants violated various Oregon statutes and administrative
rules by conduct such as excusing student absences and failing to punish students who left school
to engage in anti-gun protests. Id. at 23–24. However, Plaintiffs offer no compelling legal
authority to support their argument that the government speech doctrine does not apply when
government entities fail to enforce or comply with existing regulations or laws, as alleged in this
case. Instead, Defendants’ conduct qualifies as government speech because, as alleged in the
Complaint, it was directed by politically accountable officials on the city school board.4

According to the Complaint, Defendant Portland School District No. 1J is subject to the school
board’s control. ECF 13 at ¶ 7. Plaintiffs alleged that the school board itself “began the push to
misuse District resources to promote gun control,” including by sponsoring demonstrations. Id.
at ¶¶ 22, 30. Plaintiffs also alleged that these actions were in line with school board policy,
embodied by its unanimous adoption of a resolution in favor of gun control. Id. at ¶¶ 50–51.

18 (citing 138 S. Ct. 2448 (2018)), this Court agrees with Judge Russo that Janus applies only to
compelled subsidization of other private speakers. ECF 20 at 13.
4 Oregon law requires members of school boards to be elected to four-year terms. O.R.S.
332.138.
Although the exact scope of the government speech doctrine is unclear, see Matal v. Tam,
137 S. Ct. 1744, 1760 (2017), the Ninth Circuit has held that school principals’ enforcement of a
district policy regarding school bulletin boards qualified as government speech when it was
“directly traceable” to the district and school board. Downs v. Los Angeles Unified Sch. Dist.,
228 F.3d 1003, 1012 (9th Cir. 2000). Defendants here represent the same “arm of local

government” as the school district in Downs. Id. at 1014. Because Plaintiffs have alleged that
Defendants’ speech was a manifestation of the school board’s policy and subject to the board’s
control, this Court agrees with the F&R that the government speech doctrine applies. See id. at
1012. Furthermore, even if these actions were contrary to board policy or state law, that finding
would not be dispositive of whether they were considered government speech under the First
Amendment. See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 563–64 (2005) (holding that
when politically accountable figures and legislatures oversee the programs, officials, and
messages in an advertising campaign, “[n]o more is required” under the First Amendment).
Regarding Plaintiffs’ second argument, this Court recognizes that speech by some public

entities may be subject to a germaneness requirement. See Keller v. State Bar of Calif., 496 U.S.
1, 10–14 (1990). However, germaneness is not relevant to the threshold question of identifying
what speech is government speech. See Johanns, 544 U.S. at 560–62. Because this Court agrees
with Judge Russo that the Complaint alleges government speech, the germaneness requirement
does not apply.5

5 This Court agrees with Judge Russo that Defendants’ motive is not relevant to the government
speech as pled in this case. ECF 20 at 12 n.5. Regardless of the First Amendment’s application to
officials’ decisions to remove books from school libraries, the Ninth Circuit has declined to
apply the Supreme Court’s plurality opinion in Board of Education v. Pico to government speech
by school officials in other contexts. See Downs, 228 F.3d at 1015–16 (citing 457 U.S. 853
(1982)); see also Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d
Plaintiffs also argue that the Complaint adequately alleges speech of private actors: other
students in the school district. ECF 22 at 24–28. However, this Court agrees with Judge Russo’s
summary of the relevant case law: the government may rely on “assistance from private actors
for the purpose of delivering a government-controlled message.” ECF 20 at 11.6 Plaintiffs’
objections, citing Rosenberger v. Rector & Visitors of University of Virginia, are misplaced

because that case did not involve any government speech. See ECF 22 at 26; Rosenberger, 515
U.S. 819, 833–34 (1995). Furthermore, as Judge Russo suggested in the F&R, the Complaint
does not “sufficiently allege subsidization of private speech, i.e., funding speech by the
students.” ECF 20 at 12 (emphasis added). Thus, this Court agrees with Judge Russo that
Plaintiffs may amend their Complaint to allege how Plaintiffs were compelled to subsidize the
speech of other students.
Finally, to the extent that Plaintiffs argue that Defendants did not fund the speech of
private speakers but instead selectively provided opportunities for speech by certain speakers,7
this Court recognizes that when the government establishes “a limited public forum,” it may not

“discriminate against speech on the basis of viewpoint.” Good News Club v. Milford Cent. Sch.,
533 U.S. 98, 106–07 (2001). Judge Russo noted—and Plaintiffs do not dispute—that the
Complaint does not allege a viewpoint discrimination claim. ECF 20 at 12; ECF 22 at 33. This

1177, 1202 (11th Cir. 2009) (observing that First Amendment standards applied in one school-
based context may be inapplicable in another).
6 Although the F&R cited dicta from Rosenberger, this Court agrees with the F&R’s analysis of
the law on this issue. See Johanns, 544 U.S. at 562.
7 See ECF 22 at 27 (“PPS, however, did not hire the students to march down the streets.”), 28
(“There is an enormous difference between indoctrinating students in classes, even by
unprecedented means, and shutting down a school system for a discrete period of time to turn
students out into the streets for mass political protests.”).
Court concludes that these Plaintiffs have not alleged that Defendants prevented them or their
children from expressing their own views at these school-organized events. See ECF 13 at ¶¶ 27,
43, 46, 53, 60, 64, 71. Thus, their Complaint does not currently state a claim for viewpoint
discrimination. But see Morse v. Frederick, 551 U.S. 393, 423–24 (2007) (Alito, J., concurring)
(emphasizing that school officials lack the “license to suppress speech on political and social

issues based on disagreement with the viewpoint expressed”).
For these reasons, this Court dismisses this count with leave to amend.
D. Count Two: Compelled Speech
In the F&R, Judge Russo recommended dismissing count two, alleging compelled
speech, because the Complaint does not plead facts showing that these Plaintiffs were compelled
to engage in speech in violation of their First Amendment rights. ECF 20 at 5–8. Plaintiffs’
objections reiterate arguments they raised before Judge Russo, see ECF 18, and this Court adopts
Judge Russo’s reasoning from the F&R in full. In doing so, this Court also observes that
although the Complaint describes events at multiple public schools in Portland, it does not state
which schools Plaintiffs’ children attended or what pressures they faced individually. See ECF

13 at ¶¶ 3–5. Therefore, this Court dismisses this count with leave to amend.
CONCLUSION
The F&R, ECF 20, is adopted as explained in this opinion. Defendants’ Motion to
Dismiss, ECF 16, is GRANTED. Both counts of Plaintiffs’ First Claim are DISMISSED.
Plaintiffs may file an amended complaint within fourteen days of the date of this Order.
IT IS SO ORDERED.

DATED this 30th day of April, 2020.

/s/ Karin J. Immergut
Karin J. Immergut
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392001. Public record. Not legal advice.