# B.A.P. v. Overton County Board of Education

> District Court, M.D. Tennessee · April 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10437933

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** April 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION

B.A.P., et al., )
)
Plaintiffs, )
)
v. ) NO. 2:20-cv-00065
)
OVERTON COUNTY BOARD OF )
EDUCATION, et al., )
)
Defendants. )

MEMORANDUM OPINION

B.A.P. (a minor child) and Richard Penkoski (B.A.P.’s parent) filed an Amended
Complaint under 42 U.S.C. § 1983 against the Overton County Board of Education (the Board),
Richard Melton, and Stephen Henson. (Doc. No. 43). B.A.P. is a student at Livingston Academy
in the Overton County School District, where Melton is the principal and Henson is a teacher. (Id.
¶¶ 8, 12). Melton and Henson are sued in their individual capacities. (Id. ¶¶ 15–16). Before the
Court is Melton and Henson’s fully briefed Motion to Dismiss. (Doc. Nos. 51, 52, 61, 62). For the
following reasons, the Motion will be granted in part and denied in part.
I. Background
This background is drawn from the Amended Complaint and its exhibits (Doc. Nos. 43,
43-1, 43-2), focusing on the allegations relevant to resolving the Motion to Dismiss.
A. Incident
When B.A.P. arrived in Henson’s classroom on August 25, 2020, she was wearing a shirt
stating, “homosexuality is a sin - 1 Corinthians 6:9-10.” (Doc. No. 43 ¶¶ 62–63). This shirt
“express[ed] [B.A.P.’s] political viewpoint founded upon her religious beliefs” (id. ¶ 63), including
her belief “in the Biblical mandate to spread the Gospel of Jesus Christ.” (Id. ¶ 157; see also id. ¶
25 (alleging a “belief in a mandate to exercise her rights to freedom of speech and the free exercise
of religion and to further her political, religious and social beliefs”)).
Henson told B.A.P. to report to the principal’s office, and she complied. (Id. ¶¶ 8, 68, 70).
Principal Melton read from the school handbook and told B.A.P. that her shirt violated the dress

code because it was “sexually connotative.” (Id. ¶ 73–74). Melton asked B.A.P. if she brought a
garment that could be used to cover the message on her shirt, and she said no. (Id. ¶¶ 75–76).
Melton told B.A.P. that she would not be released from the office unless she changed her shirt.
(Id. ¶ 78). Melton then instructed B.A.P. to call her parents and request a change of clothing, and
B.A.P. informed them of the situation by text message. (Id. ¶¶ 77, 79–80).
B.A.P.’s father, Richard Penkoski, called the school and spoke to Melton. (Id. ¶ 81). Melton
again stated that B.A.P.’s shirt violated the dress code because it included a message that was
sexually connotative. (Id. ¶ 81–82). Penkoski ended the call to deliberate with family, and he soon
called back and asked Melton for clarification on his interpretation of the dress code. (Id. ¶¶ 83–
85). Melton read from the dress code and clarified that B.A.P.’s shirt might be sexually connotative

because the word “homosexuality” on her shirt included the word “sex.” (Id. ¶¶ 86–88). Melton
told Penkoski that B.A.P. would be forced to go home if she did not change her shirt, and the call
ended. (Id. ¶¶ 93–94). B.A.P.’s stepmother came to the school and took her home, and B.A.P. was
marked “absent” for the day. (Id. ¶¶ 97–98). “At all material times,” Melton and Henson demanded
that B.A.P. not wear the shirt to school again. (Id. ¶¶ 15–16, 58–59).
Plaintiffs maintain that B.A.P.’s shirt was consistent with an established practice of openly
acknowledging issues of sexuality in the classroom setting. Specifically, Henson’s classroom
displayed what appears to be a standard 8.5x11 piece of printer paper affixed to a cabinet near the
corner bearing the colors of the rainbow and the words, “diverse, inclusive, accepting, welcoming,
safe space, for everyone.” (Id. ¶ 65; Doc. Nos. 43-1, 43-2 (Exhibits)). Plaintiffs characterize this
image as “pro-homosexual.” (Doc. No. 43 ¶¶ 64–66).
B. Policies
The Board’s dress code policy provides: “When a student is attired in a manner which is

likely to cause disruption or interference with the operation of the school, the principal shall take
appropriate action, which may include suspension.” (Id. ¶¶ 42–43). The Board also delegates
authority to school administrators to prepare and distribute a student handbook for their school.
(Id. ¶¶ 3–4, 47–48). Melton drafted the handbook in effect at Livingston Academy for the relevant
time period. (Id. ¶ 58). This handbook was given to Livingston Academy staff, including Melton
and Henson, and staff were required to acknowledge receipt, read it, and ask administrators any
questions about it. (Id. ¶ 55–59).
Livingston Academy’s handbook includes a dress code providing, in relevant part, that
students are to “display good taste in matters of dress,” and that their regular school attire “should
in no way disturb or distract other students or teachers from their normal scholastic pursuits.”

“Clothing with offensive messages, including advertisements for drugs, alcohol, tobacco, sexual
connotations, or double meanings, is unacceptable.” (Id. ¶ 49). The handbook does not define the
terms “offensive messages,” “sexual connotations,” or “double meanings.” (Id. ¶¶ 52–54).
C. This Lawsuit
The Amended Complaint asserts four claims. Claims 1 and 2 are brought against all three
Defendants—the Board, Melton, and Henson. These claims assert violations of Plaintiffs’ First
Amendment rights to freedom of speech and free exercise of religion. (Id. ¶¶ 137–77). Claims 3
and 4 are brought against the Board and Melton, but not Henson. Claim 3 asserts a deprivation of
Plaintiffs’ due process rights under the Fifth and Fourteenth Amendments. (Id. ¶¶ 178–95). And
Claim 4 asserts a violation of Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth
Amendment. (Id. ¶¶ 196–215). Melton and Henson move to dismiss all claims against them for
failure to state a claim, or in the alternative, based on qualified immunity. (Doc. No. 51 at 1; Doc.
No. 52 at 1).

II. Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible if the complaint “pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S.
at 556). In determining plausibility, the Court sets aside allegations consisting of “labels and
conclusions” or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting
Twombly, 550 U.S. at 555, 557).
III. Analysis

A. Plaintiff Penkoski’s Personal Claims
Plaintiff Penkoski brings this action both “individually and in his representative capacity
on behalf of B.A.P. and his other minor children in schools under the authority of” the Board.
(Doc. No. 43 ¶ 13). Melton and Henson argue that Penkoski fails to state a claim against them on
his own behalf because neither Melton nor Henson took an action against Penkoski that amounts
to a violation of Penkoski’s constitutional rights. (Doc. No. 52 at 13 n.2, 18 n.3). Plaintiffs do not
acknowledge or respond to this argument. (See Doc. No. 61). Therefore, Plaintiffs have forfeited
Penkoski’s personal claims against Melton and Henson. See Swanigan v. FCA US LLC, 938 F.3d
779, 786–87 (6th Cir. 2019) (finding claim forfeited where defendants moved to dismiss it and
plaintiffs did not mention or rebut it in their response) (citing Am. Copper & Brass, Inc. v. Lake
City Indus. Prods., Inc., 757 F.3d 540, 545 (6th Cir. 2014)).
Regardless of this forfeiture, moreover, the Court agrees with Melton and Henson.
Plaintiffs seek to vindicate constitutional rights through Section 1983. “[S]ection 1983 provides a

cause of action which is personal to the injured party.” LeFever v. Ferguson, 645 F. App’x 438,
447 (6th Cir. 2016) (citing Purnell v. City of Akron, 925 F.2d 941, 948 n.6 (6th Cir.1991))
(emphasis in original). Plaintiffs’ Section 1983 claims against Melton and Henson are premised
entirely on actions allegedly taken against B.A.P., not Penkoski. “[A] minor’s personal cause of
action is her own and does not belong to her parent or representative.” Shepherd v. Wellman, 313
F.3d 963, 970 (6th Cir. 2002) (citing Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d
59, 61 (2d Cir. 1990)); but see Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S.
516, 526 (2007) (holding that parents have “independent, enforceable rights under [the Individuals
with Disabilities Education Act],” a federal statute not at issue here). Accordingly, Penkoski fails
to state a personal claim against Melton and Henson.

B. Free Speech and Free Exercise
Turning to B.A.P.’s claims, the First Amendment protects freedom of speech and the free
exercise of religion. U.S. Const. amend. I. “[S]tudents do not ‘shed their constitutional rights to
freedom of speech or expression,’ even ‘at the school house gate.’” Mahanoy Area Sch. Dist. v.
B. L. by & through Levy, 141 S. Ct. 2038, 2044 (2021) (quoting Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)). A school environment, however, has “special
characteristics” that courts must consider when applying the First Amendment to student
expression. Id. (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)). For
example, schools have the authority and responsibility to attend to “all students’ psychological and
developmental needs.” Barr v. Lafon, 538 F.3d 554, 567–68 (6th Cir. 2008). In light of that
responsibility, the First Amendment may allow the regulation of expression by a student “that
would be perfectly permissible if undertaken by an adult.” See Vernonia Sch. Dist. 47J v. Acton,
515 U.S. 646, 655 (1995) (considering schools’ regulatory authority over students in the Fourth

Amendment context) (quoting New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)).
In Tinker, the Supreme Court explained that schools may regulate student speech that
“materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
Mahanoy Area Sch. Dist., 141 S. Ct. at 2045 (quoting Tinker, 393 U.S. at 513). This rule gives
schools “special leeway” to “regulate speech that occurs under its supervision.” Id. The Supreme
Court has also “outlined three specific categories of [school-supervised] student speech that
schools may regulate” outside of the Tinker framework. See id. Because the message on B.A.P.’s
shirt does not fall into any of those three categories,1 however, her First Amendment claims against
Melton and Henson are squarely governed by the general rule in Tinker. See Barr, 538 F.3d at 564
(holding that Tinker governed the regulation of student clothing that was not school-sponsored)

(citing Castorina ex rel. Rewt v. Madison Cnty. Sch. Bd., 246 F.3d 536, 539–40 (6th Cir. 2001)).
Tinker presents a “difficult question: how to balance some students’ rights to free speech
with ‘the rights of other students to be secure and to be let alone.’”2 Id. at 562 (quoting Tinker,
393 U.S. at 508); LaVine v. Blaine Sch. Dist., 257 F.3d 981, 992 (9th Cir. 2001) (“School officials

1 B.A.P.’s shirt did not display “‘indecent,’ ‘lewd,’ or ‘vulgar’ speech,” as contemplated by Bethel School
District No. 403 v. Fraser. Mahanoy Area Sch. Dist., 141 S. Ct. at 2045 (quoting 478 U.S. 675, 685 (1986)).
It was not school-sponsored speech under Kuhlmeier. Id. (citing 484 U.S. at 271). And it did not “promote[]
‘illegal drug use,’” as discussed in Morse v. Frederick. Id. (quoting 551 U.S. 393, 409 (2007)).

2 The Tennessee legislature recognizes that “[a] safe and civil environment is necessary for students to learn
and achieve high academic standards,” and that “[h]arassment, intimidation, bullying or cyber-bullying,
like other disruptive or violent behavior, is conduct that disrupts a student’s ability to learn and a school’s
ability to educate its students in a safe environment.” Tenn. Code Ann. § 49-6-4501 (1)(2).
have a difficult task in balancing safety concerns against chilling free expression.”). “[T]o justify
prohibition of a particular expression of opinion” under Tinker, a school must show that it acted
out of “‘more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint,’ but rather, ‘that the school authorities had reason to

anticipate that the [student’s expression] would substantially interfere with the work of the school
or would impinge upon the rights of other students.’” D.B. ex rel. Brogdon v. Lafon, 217 F. App’x
518, 525 (6th Cir. 2007) (quoting Tinker, 393 U.S. at 509).
Schools, it bears emphasizing, are not required to wait for student speech to actually disrupt
the school environment or interfere with other students’ rights before acting. Defoe ex rel. Defoe
v. Spiva, 625 F.3d 324, 335 (6th Cir. 2010) (“Tinker does not require that displays . . . in fact cause
substantial disruption or interference.”). “Nor does Tinker ‘require certainty that disruption will
occur.’” Lowery v. Euverard, 497 F.3d 584, 592 (6th Cir. 2007) (quoting Pinard v. Clatskanie Sch.
Dist. 6J, 467 F.3d 755, 767 (9th Cir. 2006)). Indeed, “[s]chool officials have an affirmative duty
. . . to prevent [disruptions] from happening in the first place,” and “‘[f]orecasting disruption is

unmistakably difficult to do.’” Id. at 596 (quoting LaVine, 257 F.3d at 989). Therefore, the
touchstone of Tinker is reasonability—“whether the record demonstrates ‘any facts which might
reasonably have led school authorities to forecast substantial disruption of or material interference
with school activities.’” Defoe, 625 F.3d at 332 (quoting Tinker, 393 U.S. at 514); see also
Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 440 (4th Cir. 2013) (“As long as school
officials reasonably forecast a substantial disruption, they may act to prevent that disruption
without violating a student’s constitutional rights, and we will not second guess their reasonable
decisions.”) (quoting Tinker, 393 U.S. at 513–14).
Here, an adequate analysis of B.A.P.’s First Amendment claims against Melton and
Henson requires a more developed record than is available on a motion to dismiss. Courts typically
conduct a context-dependent inquiry to determine whether a school official’s forecast of disruption
was reasonable. See Lowery, 497 F.3d at 593 (“[T]he Court must evaluate the circumstances to

determine if Defendants’ forecast of substantial disruption was reasonable.”); see also Pinard, 467
F.3d at 768 (“The Tinker rule is a flexible one, and in applying it, [courts] look to the totality of
the relevant facts, including not only the plaintiffs’ actions, but all of the circumstances confronting
the school officials at the time.”) (internal citations and quotation marks omitted). On this Motion,
the Court can only consider the allegations in the Amended Complaint, which state a plausible
claim for relief. Plaintiffs allege that Henson removed B.A.P. from class due to the message on
her shirt, Melton did not allow her to return to class because of this message, and both Melton and
Henson told B.A.P. she could not wear the shirt to school going forward. The Amended Complaint
does not, however, supply specific facts and context about Livingston Academy and the
surrounding community at the time Melton and Henson took these actions. Without this context,

the Court cannot determine whether Melton and Henson reasonably forecasted that the message
on B.A.P.’s shirt would cause substantial disruption or interference with the rights of other
students. Accordingly, B.A.P.’s First Amendment claims against Melton and Henson will not be
dismissed for failure to state a claim.
For largely the same reasons, the Court declines to resolve Melton and Henson’s alternative
defense of qualified immunity at this time. “To defeat a claim of qualified immunity, the plaintiff
must show that the [defendant’s] conduct (1) violated a constitutional right that (2) was clearly
established.” Anders v. Cuevas, 984 F.3d 1166, 1175 (6th Cir. 2021) (citing Cahoo v. SAS
Analytics Inc., 912 F.3d 887, 897 (6th Cir. 2019)). The Sixth Circuit has often cautioned that “it
is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of
qualified immunity.” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016) (quoting
Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015)). Application of this general rule typically
“rests on qualified immunity’s clearly established prong.” Crawford v. Tilley, 15 F.4th 752, 763–

64 (6th Cir. 2021) (collecting cases).
Where “granting relief to the plaintiff can only be done by recognizing a novel
constitutional right,” granting qualified immunity to a defendant may be appropriate prior to
factual development. Id. at 766. But that is not necessarily the case where “the clearly established
inquiry may turn on case-specific details that must be fleshed out in discovery.” Id. at 765.
Plaintiffs point to Tinker as clearly establishing the First Amendment rights at issue in this case
(Doc. No. 61 at 7–8, 12), and that is correct as a general matter.3 But “clearly established law
should not be defined at a high level of generality”—it “must be particularized to the facts of the
case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal citations and quotation marks omitted).
The clearly-established prong does not require a plaintiff to identify an earlier decision that is

“directly on point, but existing precedent must have placed the statutory or constitutional question
beyond debate.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting Ashcroft v. al–Kidd, 563 U.S.
731, 741 (2011)). “[T]his narrow definition of ‘clearly established’ functions to protect ‘all but the
plainly incompetent or those who knowingly violate the law.’” Mitchell v. Schlabach, 864 F.3d
416, 424 (6th Cir. 2017) (quoting Mullenix, 136 S. Ct. at 308). As discussed above, the application

3 Plaintiffs also cite a previous decision of this Court in their clearly-established analysis (Doc. No. 61 at
7–8 (discussing Young v. Giles Cnty. Bd. of Educ., 181 F. Supp. 3d 459 (M.D. Tenn. 2015)), but that
reference is categorically unhelpful. A district court ordinarily identifies clearly established constitutional
rights by looking to “binding precedent.” Bletz v. Gribble, 641 F.3d 743, 756 (6th Cir. 2011) (quoting Ohio
Civil Serv. Emps. Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988)). And “[a] decision of a federal
district court judge is not binding precedent in either a different judicial district, the same judicial district,
or even upon the same judge in a different case.” Camreta v. Greene, 563 U.S. 692, 708 n.7 (2011) (quoting
18 J. Moore et al., Moore's Federal Practice § 134.02[1] [d], p. 134–26 (3d ed. 2011)).
of Tinker’s general rule to B.A.P.’s First Amendment claims is a context-dependent inquiry that
requires further development. See Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (holding that
“general tests” do not provide “fair warning” of clearly established law outside an “obvious case”).
Therefore, resolving the question of qualified immunity for these claims is a task better suited for

summary judgment than a motion to dismiss. See Hart v. Hillsdale Cnty., Mich., 973 F.3d 627,
642 (6th Cir. 2020) (“Absent any factual development beyond the allegations in a complaint, a
court cannot fairly tell whether a case is ‘obvious’ or ‘squarely governed’ by precedent, which
prevents us from determining whether the facts of this case parallel a prior decision or not.”)
(quoting Evans-Marshall v. Bd. of Educ., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J.,
concurring)); Elliot v. Lator, 497 F.3d 644, 650 (6th Cir. 2007) (citing Kennedy v. City of
Cleveland, 797 F.2d 297, 299 (6th Cir. 1986), for the proposition that “qualified immunity may be
raised both in a motion to dismiss or in a motion for summary judgment”).
Finally, the Court notes that the parties refer to a “failure to train” claim against Melton as
an independent ground for relief. (Doc. No. 52 at 15; Doc. No. 61 at 12–14). Different legal

principles apply to a failure-to-train claim depending on whether it is an individual-capacity claim
or an “official-capacity or municipal claim.” See Essex v. Cnty. of Livingston, 518 F. App’x 351,
355 (6th Cir. 2013). Plaintiffs bring this action against Melton in his individual capacity only. (See
Doc. No. 43 ¶ 15). And that makes sense, as it would be redundant to sue Melton in his official
capacity because the Board—his employer—is separately named as a Defendant. See Sagan v.
Sumner Cnty. Bd. of Educ., 726 F. Supp. 2d 868, 876 (M.D. Tenn. 2010) (“[A] claim against an
individual in her official capacity is tantamount to a claim against the employer and . . . where, as
here, the employer is also sued, the official-capacity suit against the employee is simply redundant
and may be dismissed.”). But the Board is not a party to this Motion to Dismiss, so the municipal-
liability framework has no bearing on the claims currently before the Court.4
As relevant here, an individual-capacity failure-to-train claim is essentially a claim of
supervisory liability. To state a such a claim, a plaintiff must allege that “the defendant supervisor

[either] . . . encouraged the specific incident of misconduct or in some other way directly
participated in it.” Essex, 518 F. App’x at 355 (internal citations and quotation marks omitted).
Direct participation means that the supervisor “at least implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional conduct of the offending officers.” Id. (internal
citations and quotation marks omitted). Alternatively, “a supervisor may be liable under § 1983 if
he ‘abandon[s] the specific duties of his position . . . in the face of actual knowledge of a breakdown
in the proper workings of the department.’” Winkler v. Madison Cnty., 893 F.3d 877, 898 (6th Cir.
2018) (quoting Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 81 (6th Cir. 1995)). Plaintiffs make the
conclusory allegation that the Board’s and Melton’s “training and/or instruction” on the student
handbook “is either erroneous or lacking in proper instruction to avoid violations of Plaintiffs’

constitutional rights.” (Doc. No. 43 ¶ 9; see also id. ¶¶ 15, 132–34). But Plaintiffs do not make
allegations from which the Court can reasonably infer that Melton participated in Henson’s action
before B.A.P. arrived in his office, or that Melton had actual knowledge of a breakdown in the
proper working of the school. Accordingly, B.A.P. cannot pursue First Amendment claims against
Melton based on a theory of supervisory liability.

4 Municipal liability claims require a plaintiff to show “that the municipality had a ‘policy or custom’ that
caused the violation of his rights.” Jackson v. City of Cleveland, 925 F.3d 793, 828 (6th Cir. 2019) (quoting
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). One way to show a policy or custom is to
demonstrate “the existence of a policy of inadequate training or supervision.” Id. (quoting Burgess v.
Fischer, 735 F.3d 462, 478 (6th Cir. 2013)). A municipal failure-to-train claim has its own unique
requirements. See id. at 834 (discussing elements) (citing Ciminillo v. Streicher, 434 F.3d 461, 469 (6th
Cir. 2006)).
C. Due Process
Plaintiffs assert a due process claim under the Fifth and Fourteenth Amendments. As an
initial matter, the Court notes that Plaintiffs’ reliance on the Fifth Amendment is misplaced
because the Fifth Amendment’s due process guarantee “applies to federal, not state, officials.”

Palmer v. Schuette, 768 F. App’x 422, 426–27 (6th Cir. 2019) (citing Scott v. Clay Cnty., 205 F.2d
867, 873 n.8 (6th Cir. 2000)). The Court therefore analyzes this claim under the Fourteenth
Amendment alone.
“The Due Process Clause of the Fourteenth Amendment says that no state shall ‘deprive
any person of life, liberty, or property, without due process of law.’” Schulkers v. Kammer, 955
F.3d 520, 539 (6th Cir. 2020) (quoting U.S. Const. amend. XIV, § 1). This provision contains
distinct procedural and substantive components. See id. (“This clause ensures fair process and
safeguards a substantive sphere as well, barring certain government actions regardless of the
fairness of the procedures used to implement them.”) (internal citations and quotation marks
omitted). The Amended Complaint does not specify the nature of this claim. (See Doc. No. 43 ¶¶

178–95). It does, however, use language that is more substantive than procedural. (See id. ¶ 187
(alleging that “Defendants and others [had] the opportunity to enforce restrictions in an ad hoc,
arbitrary, and discriminatory manner”)); Jones v. Byrnes, 585 F.3d 971, 976 (6th Cir. 2009)
(“[T]he Fourteenth Amendment’s due process provision has a substantive component that
guarantees ‘protection of the individual against arbitrary action of government.’”) (quoting Wolff
v. McDonnell, 418 U.S. 539, 558 (1974)). And Melton treats this as a substantive due process
claim in the Motion to Dismiss (see Doc. No. 51 at 4; Doc. No. 52 at 19–20)—an approach that
Plaintiffs do not attempt to clarify or correct. (See Doc. No. 61 at 19–20). Accordingly, the Court
treats this as a substantive due process claim as well.
Melton moves for dismissal based on well-established Supreme Court precedent that a
party cannot rely on the right to substantive due process for a claim whose underlying allegations
are “necessarily governed by a more definite provision of the Constitution.” See County of
Sacramento v. Lewis, 523 U.S. 833, 842 (1998); (Doc. No. 52 at 19–20). “The Supreme Court has

repeatedly held that where a particular amendment ‘provides an explicit textual source of
constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not
the more generalized notion of “substantive due process,” must be the guide for analyzing such a
claim.’” Kiser v. Kamdar, 831 F.3d 784, 791 (6th Cir. 2016) (quoting Albright v. Oliver, 510 U.S.
266, 273 (1994)). Plaintiffs, despite contending that this holding does not apply here, seemingly
acknowledge that their substantive due process claim is duplicative of their First Amendment
claims. (See Doc. No. 61 at 20 (“[A]s alleged in the Complaint, a violation of the First Amendment
constitutes a violation of the Fourteenth Amendment when due process impinges rights under the
First Amendment.”)). Accordingly, insofar as Plaintiffs seek to bring a substantive due process
claim that that is distinct from their First Amendment claims, it will be dismissed. See Boroff v.

Van Wert City Bd. of Educ., 220 F.3d 465, 471–72 (6th Cir. 2000) (noting that a student could not
use substantive due process “as a fallback constitutional provision” for a free-speech claim directly
addressed by the First Amendment); Hardy v. Unknown Agee, No. 14-2230, 2015 WL 13782958,
at *3 (6th Cir. May 8, 2015) (affirming dismissal of substantive due process claim that was
duplicative of First Amendment free-exercise claim).
D. Equal Protection
“The Equal Protection Clause of the Fourteenth Amendment provides that a state may not
‘deny to any person within its jurisdiction the equal protection of the laws.’” Maye v. Klee, 915
F.3d 1076, 1085 (6th Cir. 2019) (quoting U.S. Const. amend. XIV, § 1). “It is in essence ‘a
direction that all persons similarly situated should be treated alike.’” Robinson v. Jackson, 615 F.
App’x 310, 314 (6th Cir. 2015) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985)). “The threshold element of an equal protection claim is disparate treatment; once
disparate treatment is shown, the equal protection analysis to be applied is determined by the

classification used by government decision-makers.” Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250, 260 (6th Cir. 2006).
The Court need not proceed past the threshold element. Plaintiffs essentially argue that
Melton treated B.A.P. differently because there were no consequences for one other student who
said the word “sex” in front of Henson or five other students who wore “clothing that appeared to
violate the same dress code” as B.A.P. (Doc. No. 61 at 16 (citing Doc. No. 43 ¶¶ 90, 109)). But
these allegations do not establish disparate treatment by Melton because the Amended Complaint
does not allege that Melton was even aware of these incidents. One student’s alleged dress code
infraction occurred at a different school. (See Doc. No. 43 ¶ 109(2)). As for the student saying
“sex” in front of Henson, Plaintiffs do not allege that Melton was present for this comment or

provide any basis to impute Henson’s knowledge to Melton. (See id. 43 ¶ 90). And as for the four
other students, Plaintiffs do not allege that Melton saw or knew about the clothing or expression
at issue. (See id. ¶ 109(1), (3), (4), (5)). Plaintiffs’ conclusory argument to the contrary does not
make up for their lack of well-pleaded factual allegations on this subject. (See Doc. No. 61 at 19
(arguing that “it is not unreasonable to infer that Melton, as principle, was aware of the numerous
apparent dress code infractions that he is admittedly responsible to address”)). Accordingly, B.A.P.
fails to state an equal protection claim against Melton. See Pineda v. Hamilton Cnty., Ohio, 977
F.3d 483, 491 (6th Cir. 2020) (“Section 1983 imposes liability only on a defendant who was
personally involved in the unconstitutional action that caused the plaintiff’s injury.”).
IV. Conclusion
“Most parents, realistically, have no choice but to send their children to a public school and
little ability to influence what occurs in the school.” See Morse, 551 U.S. at 424 (Alito, J.,
concurring). Students, for their part, cannot simply opt out of attending school. See Tenn. Code

Ann. § 49-6-3001 et seq. (mandatory school attendance laws). Over the years, the Supreme Court
has explained some of the many ways that the school environment is unique. It is, of course,
uniquely important to the vital responsibility of educating children. Brown v. Bd. of Educ. of
Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 493 (1954) (“[E]ducation is perhaps the most
important function of state and local governments.”). The school environment is also unusually
close-quartered. “[Students] spend the school hours in close association with each other, both in
the classroom and during recreation periods. The students in a particular class often know each
other and their teachers quite well. Of necessity, teachers have a degree of familiarity with, and
authority over, their students that is unparalleled except perhaps in the relationship between parent
and child.” T.L.O., 469 U.S. at 348 (Powell, J., concurring). And a public school is unique for its

openness to all members of the community. “Through [the schoolroom] passes every citizen and
public official, from schoolteachers to policemen and prison guards. The values they learn there,
they take with them in life.” Id., 469 U.S. at 385–86 (Stevens, J., concurring in part and dissenting
in part).
Within this tightly packed and diverse environment, it is inevitable that students will
encounter and exchange ideas with peers of different backgrounds and beliefs. That is a good thing.
See Tinker, 393 U.S. at 512 (“[Personal intercommunication among students] is not only an
inevitable part of the process of attending school; it is also an important part of the educational
process.”) (footnote omitted). But a school cannot advance its educational mission if the
interactions between students are so confrontational or contentious that there is no room for
ordinary instruction. In recognition of this unavoidable reality, the Constitution recognizes school
officials’ power to regulate student expression based on their reasonable belief that one student’s
speech will interfere “with the school[’s] work” or “colli[de] with the nghts of other students to
be secure and to be let alone.” Id. at 508. Whether a given exercise of that power strikes a sufficient
balance between protecting an individual student’s First Amendment rights and maintaining a
disruption-free environment depends on contextual details that do not lend themselves easily to
resolution on the pleadings alone.
For these reasons, and the reasons explained above, Melton and Henson’s Motion to
Dismiss will be denied as to B.A.P.’s First Amendment claims and granted as to all other claims
it covers—Penkoski’s personal claims against Melton and Henson, B.A.P’s due process claim
against Melton, and B.A.P.’s equal protection claim against Melton. The Court again notes, for
clarity, that Plaintiffs did not assert due process and equal protection claims against Henson, so no
such claims are going forward. And the Board is not a party to this Motion, so Plaintiffs’ claims
against the Board are unaffected by this ruling.
An appropriate Order is filed herewith.
Web. Eusbe.
Cisne
CHIEF UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10437933. Public record. Not legal advice.