# McClelland v. Katy Independent School District

> District Court, S.D. Texas · November 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10674834

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** November 1, 2021
- **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/10674834

## How later opinions describe it (automated extraction)

- noting that both 12(b)(1) and (b)(3) allow courts to look past the pleadings to resolve disputed facts
- observing that the Tinker standard may be satisfied “either by showing a disruption has occurred, or by showing ‘demonstrable factors that would give rise to any reasonable forecast by the school administration of ‘substantial and material’ disruption” (emphasis omitted

## Opinion text

UNITED STATES DISTRICT COURT November 01, 2021
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

BRONSON MCCLELLAND, §
§
Plaintiff, §
§
VS. § CIVIL ACTION NO. 4:21-CV-00520
§
KATY INDEPENDENT SCHOOL §
DISTRICT, et al., §
§
Defendants. §

MEMORANDUM & ORDER
Pending before the Court are (1) Defendants’ Motion to Dismiss all claims, (2) Plaintiff’s
Motion to Strike Defendants’ affirmative defense that Plaintiff released all claims accruing before
September 29, 2020, by signing a contested settlement agreement; (3) six Motions to Quash
deposition notices served by the plaintiff against individual Defendants and witnesses who are, or
may be, under criminal investigation; and (4) Plaintiff’s Motion to Unseal.
The Court held a hearing on October 20, 2021, on the motions then pending. It took those
motions under advisement, after which the Parties filed supplemental briefing and an additional
motion.
For the reasons set forth below, the Court now GRANTS the Motion to Dismiss, DENIES
AS MOOT the Motion to Strike and Motions to Quash, and DENIES the Motion to Unseal.
I. BACKGROUND
A. Factual Background
Plaintiff Bronson McClelland is a former student of Katy High School. He was the starting
quarterback and team captain of the school’s high-performing football team.
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1. Snapchat Incident
On October 3, 2019, the Katy High School football team narrowly defeated rival Tompkins
High School. After the game, students from both schools went to a local Whataburger, where
students from Tompkins High were allegedly taunting Katy High students. Plaintiff and several
teammates arrived at the scene. During this off-campus altercation, Plaintiff sent a Snapchat1 video

from his friend’s phone to Jose Hernandez, a Tompkins High student who was not a member of
the football team. In this video, Mr. McClelland stated: “[We’ll] put your motherf*cking ass in the
hospital, n*gga’. What the f*ck.”
Mr. Hernandez recorded2 the video and sent it to several of his friends, including Tunmise
Adeleye, an African American Tompkins High football player. Mr. Adeleye uploaded the video
to his personal Twitter page, which Plaintiff states “g[ave] the illusion or appearance that
McClelland sent the video to Adeleye.” Plaintiff’s Second Amended Complaint, Doc. 37 ¶ 17.
On October 4, 2019, Defendant Gary Joseph, the coach of the football team, called
Plaintiff’s father to discuss the video, which was rapidly circulating and garnered substantial media

attention. Plaintiff and his parents met with Coach Joseph and Katy High School Principal Rick
Hull, and the school officials stated that Plaintiff would be disciplined for his involvement in the
Snapchat incident. Specifically, he would be suspended for the following two games and would
be stripped of his position as captain of the team.
Plaintiff then released a public apology regarding his social media conduct in which he
noted the discipline imposed on him. Defendants Hull and Joseph allegedly contacted Plaintiff’s

1 Snapchat is a social media application that allows users to share images and videos meant to disappear
after recipients have viewed them.
2 It appears Mr. Hernandez screen-recorded the video outside of the Snapchat application. Screen-
recording allows the recipient of a Snapchat message or video, which would otherwise be ephemeral, to
keep a copy of the media.
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father demanding that Plaintiff remove or amend his apology, lest it appear that that Hull and Katy
High School “rushed the investigation.” Id. ¶ 23. Plaintiff refused. Defendant Katy Independent
School District (“Katy ISD”) thereafter released its own statement:
On the evening of Thursday, October 3, 2019 . . . a KHS student-athlete posted a video of
himself on social media in which he used racially charged language to taunt a student-
athlete on the opposing team. Campus administration, Katy ISD police and local law
enforcement thoroughly investigated the video incident. The student responsible will face
disciplinary consequences in according with the Katy ISD Discipline Management Student
Code of Conduct and Athletic Code of Conduct. However, it is important to note there are
other related incidents that continue to be under investigation that would lead to additional
consequences for any student found to be involved . . . .

Defendants’ Motion to Dismiss, Doc. 43, at 4-5. Plaintiff alleges that Katy ISD, through Hull and
Katy ISD Deputy Superintendent Haack, knew that Mr. McClelland had not sent the video to “a
student-athlete on the opposing team,” but rather to a non-African American student who was not
on the Tompkins High football team. Nonetheless, Plaintiff alleges, Katy ISD knowingly
“promoted the false-narrative that Plaintiff was a racist and notified the media and general public
that Plaintiff would be punished for his off-campus speech.” Plaintiff’s Second Amended
Complaint, Doc. 37 ¶ 26.
Plaintiff further states that, after this series of events, Coach Joseph held a team meeting
where he discussed the discipline imposed on Plaintiff, noted that he had regularly tolerated the
use of the N-word at practices and in the weight room (without disciplining any other students),
and announced a new rule prohibiting future use of the N-word at on-campus and school-related
events under his supervision.
Plaintiff further alleges that Katy ISD refused to amend its statement even after
confirmation that the video was in fact sent to Mr. Hernandez, despite Mr. McClelland and his
family’s concern that any public impression that he directed the video toward a Black student
would negatively impact his academic and athletic prospects. Plaintiff alleges that several large
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universities informed him that he was not recruitable until Katy ISD’s statements were rescinded
or corrected. After Mr. McClelland exhausted the administrative process to seek resolution of the
alleged false statement, he and Katy ISD ultimately agreed that Katy ISD would have until
September 18, 2020, to resolve the matter before Plaintiff would pursue legal remedies.
2. Marijuana Incident

On the eve of this deadline, September 17, a Katy ISD police canine unit identified
Plaintiff’s car in an allegedly random search while it was parked in Katy High’s parking lot. Police
officer Stephanie Fulgencio found 0.04 grams of a “green leafy substance” on the back floor mat
of the vehicle. She later noted in her official report that this was not a “useable amount.” When
Plaintiff was summoned to his car, he denied ownership, possession, and knowledge of the
presence or nature of the substance. (At the time, Mr. McClelland shared the vehicle with his older
brother, who later admitted during Plaintiff’s disciplinary proceedings that the substance belonged
to him.) Defendants charged Plaintiff with possession of marijuana, suspended him for three days,
and sent him to a Disciplinary Alternative Education Program (“DAEP”) under TEX. EDUC. CODE

§37.006(a)(2)(C)(i).
Section §37.006(a)(2)(C)(i) provides that “[a] student shall be removed from class and
placed in a disciplinary alternative education program as provided by Section 37.008 if the student
. . . sells, gives, or delivers to another person or possesses or uses or is under the influence of . . .
marihuana or a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21
U.S.C. Section 801 et seq.” As Plaintiff emphasizes, TEX. HEALTH & SAFETY CODE §481.121(a)
provides that “a person commits an offense if the person knowingly or intentionally possesses a
usable quantity of marihuana” (emphasis added). Further, Texas law exempts “hemp” from its
definition of “marihuana,” meaning that cannabis with a 0.3% concentration or less of

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tetrahydrocannabinol (“THC”) may be lawfully possessed. See TEX. HEALTH & SAFETY CODE
§443.201; TEX. AGRICULTURE CODE §121.001.
At a disciplinary hearing the following day, Officer Fulgencio allegedly informed Principal
Hull that she located an “unusable amount” of the substance. She allegedly also stated that a
substance must have a THC level above 0.3% to be considered unlawful marijuana, so the

substance had to be tested as to its THC potency. Plaintiff alleges that Principal Hull, disregarding
the “usable quantity” requirement of TEX. HEALTH & SAFETY CODE §481.121(a) and without
knowing the concentration of THC in the substance, determined that Plaintiff was in possession of
marijuana and initiated the process to transfer him to the DAEP.
On September 21, three days later, at Defendant Hull’s request, Officer Fulgencio
conducted a presumptive field test on the substance; Plaintiff alleges that this test can only
determine the existence of THC, but not its potency. Officer Fulgencio and her supervisor,
Assistant Chief Kevin Tabor, prepared a supplemental police report concluding that the substance
had a “presence of THC, this was in fact marijuana.” That day, Plaintiff was sent to the DAEP for

45 days.
Plaintiff challenged his DAEP placement. He also decided that he wanted to leave Katy
ISD. The parties agreed to resolve the disciplinary dispute, and, on September 29, 2020, the parties
signed a settlement agreement. The settlement agreement provided for the abatement of the
disciplinary process. It further stated that Katy ISD, “[i]f asked about discipline by another
education institution out of the State of Texas . . . will refer them to [a] letter [on the status of the
discipline] and indicate that no discipline consequences remain.” Settlement Agreement, Doc. 37-
4, at 4. The following provisions are also relevant here:

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• Sec. II(A), which provides for a complete and general release of claims by Plaintiff’s
family;
• Sec. II(B), the family’s covenant not to sue, which “shall not be binding upon the Family
if Bronson McClelland is not admitted to a transfer school or isn’t cleared by California

regulations for that school to participate in varsity sports due to the allegations from
September 17, 2020”; and
• Section IV(A)(3), which states: “Family understands that the discipline is being abated;
however, if Bronson McClelland re-enrolls at Katy ISD in the future, that abatement will
be null and void and the student will be required to finish the assigned time in the discipline
alternative campus (DAEP). Should this happen, the Family would still be permitted to a
hearing in front of a District Level Committee as defined by the Student Discipline
Management plan. This is the same hearing process that was scheduled for September
29,2020.”

Settlement Agreement, Doc. 37-4, at 2, 4.
Mr. McClelland unsuccessfully attempted to transfer to a school in California, allegedly
“as a result of Katy ISD providing erroneous transcripts to the receiving school.” Doc. 37 ¶ 52. He
then enrolled at Manor Senior High School in Manor, Texas. While at Manor High, he sought to
have his eligibility to play varsity sports reinstated, which required that Katy High School complete
the University Interscholastic League (“UIL”) Previous Athletic Participation Form. On that form,
as required by the Settlement Agreement, Coach Joseph indicated no disciplinary issues or any
reason McClelland could not participate.
On October 29, 2020, having been denied eligibility by UIL to participate in athletics at
Manor High School due to residency requirements, Plaintiff re-enrolled at Katy High School. His

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discipline was reinstated; he was placed into the DAEP, which prevented him from returning to
Katy High School or its football team. Plaintiff graduated from Katy ISD in December 2020 and
is now in community college.
B. Procedural History
This case was removed from Fort Bend County, TX, on February 17, 2021. The Second

Amended Complaint, the one at issue here, was filed in July 2020. It states claims under the First
Amendment, the Fourteenth Amendment, and 42 U.S.C. § 1983. Plaintiff also brings various state
law claims, seeking damages and injunctive relief for defamation; a declaration that Katy ISD
cannot now claim that Plaintiff committed the offense of possession of marijuana because it
previously (allegedly) took the position that Plaintiff did not commit the offense; a declaration that
certain individual defendants acted ultra vires; and damages for conspiracy.
Defendants have filed a Motion to Dismiss and several Motions to Quash Deposition
Notices of individual Defendants and witnesses who are, or may be, under criminal investigation.3
Plaintiff, on the other hand, filed a Motion to Strike Defendants’ Affirmative Defense that Plaintiff,

by signing the Settlement Agreement, released all claims accruing before September 29, 2020.
Finally, Plaintiff filed a Motion to Unseal the Motions to Quash that Defendants filed under seal.
The Court addresses each of these motions below.
II. MOTION TO DISMISS
Defendants move to dismiss all of Plaintiff’s claims under 12(b)(6). They also seek
dismissal of some claims on jurisdictional grounds under 12(b)(1).

3 Plaintiff’s family approached the Fort Bend District Attorney’s Office about potential criminal charges
against several of the Defendants and/or witnesses named in this lawsuit.
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A. Legal Standard
1. 12(b)(6)
Rule 12(b)(6) provides for dismissal of a cause of action based on the plaintiff’s failure to
state a claim upon which relief could be granted. FED. R. CIV. P. 12(b)(6). The burden is on the
movant to show that the plaintiff has failed to state a legally cognizable claim. Constr. Cost

Data, LLC v. Gordian Grp., Inc., No. CV H-16-114, 2017 WL 2266993, at *3 (S.D. Tex. Apr.
24, 2017), report and recommendation adopted, No. 4:16-CV-114, 2017 WL 2271491 (S.D.
Tex. May 22, 2017). “In considering a motion to dismiss for failure to state a claim, a district
court must limit itself to the contents of the pleadings, including attachments thereto.” Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
“Under Rule 12(b)(6), a claim should not be dismissed unless the court determines that it
is beyond doubt that the plaintiff cannot prove a plausible set of facts that support the claim and
would justify relief.” Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). All well-pleaded
facts will be taken as true and viewed in the light most favorable to the plaintiff. Bustos v.

Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010). But any allegations in the complaint which
are conclusory will not be afforded a presumption of truth. Johnson v. E. Baton Rouge Fed’n of
Teachers, 706 F. App’x 169, 170 (5th Cir. 2017) (per curiam). Therefore, a complaint must
contain sufficient factual matter that states a claim to relief that is “plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation
omitted). Legal conclusions that are “naked assertions devoid of further factual enhancement” or
mere “formulaic recitation of [a claim’s] elements” are not enough. Id. Instead, “[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.” Turner v.

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Lieutenant Driver, 848 F.3d 678, 684-685 (5th Cir. 2017) (quoting Iqbal, 556 U.S. at 678). “[A]
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those
facts is improbable and ‘that a recovery is very remote and unlikely.’” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007) (citation omitted). The “[f]actual allegations must be enough
to raise a right to relief above the speculative level, on the assumption that all the allegations in

the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).
2. 12(b)(1)
A party may move for a court to dismiss a plaintiff’s cause of action on the basis that the
court lacks subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). Unlike motions to dismiss under
Rule 12(b)(6), where the plaintiff’s allegations are taken as true and viewed under the most
favorable light, the plaintiff bears the burden of proof that jurisdiction exists under Rule
12(b)(1). See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (“The
burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.”).
Courts must consider a jurisdictional attack under Rule 12(b)(1) prior to considering other

grounds for dismissal. Ramming, 281 F.3d at 161 (citing Hitt v. City of Pasadena, 561 F.2d 606,
608 (5th Cir. 1977) (“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12
motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any
attack on the merits.”)). In considering whether it has subject matter jurisdiction, a court may
consider matters of fact that are either in dispute or outside the pleadings. Clark v. Tarrant
County, 798 F.2d 736, 741 (5th Cir. 1986); Ambraco Inc. v. Bossclip B V, 570 F.3d 233, 238 (5th
Cir. 2009) (noting that both 12(b)(1) and (b)(3) allow courts to look past the pleadings to resolve
disputed facts). “Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be
granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his

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claim that would entitle plaintiff to relief.” Ramming, 281 F.3d at 161. “A case is properly
dismissed for lack of subject matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension
Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)).

B. Discussion
1. First Amendment—Off-Campus Speech
Defendants seek to dismiss Plaintiff’s claim that Katy ISD’s disciplinary action against
him for his off-campus speech violated his rights under the First Amendment. The Court begins
by discussing the applicable caselaw.
In 1969, the Supreme Court famously declared that students do not “shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des
Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 506 (1969). Still, while the First Amendment’s
protections apply to the school environment, “those rights must be tempered in the light of a

school official’s duty to, inter alia, ‘teach[ ] students the boundaries of socially appropriate
behavior’ and ‘protect those entrusted to their care.’” Bell v. Itawamba Cty. Sch. Bd., 799 F.3d
379, 389-90 (5th Cir. 2015) (first quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681
(1986); then quoting Morse v. Frederick, 551 U.S. 393, 408 (2007)). When determining the
contours of a student’s free speech rights, the Court must keep in mind the “special
characteristics of the school environment,” acknowledging that “the constitutional rights of
students in public school are not automatically coextensive with the rights of adults in other
settings.” Morse, 551 U.S. at 396–97 (quoting Fraser, 478 U.S. at 682)).

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The Supreme Court first addressed the limits of school discipline of student expression in
Tinker. In evaluating the constitutionality of the school district’s suspension of students for
wearing black armbands to protest the Vietnam War, the Court balanced the need to maintain
school order and promote a safe learning environment against the students’ right to express their
opinions. 393 U.S. at 740–41. The Court held that the students’ speech, which neither

“interrupted school activities nor . . . intrude[d] in the school affairs or the lives of others,” was
protected by the First Amendment. Id. at 740. Only where a student’s speech actually causes or
reasonably might be projected to cause a “substantial disruption of or material interference with
school activities” may a school impose discipline for student speech. Id.; see also Bell, 799 F.3d
at 390 (observing that the Tinker standard may be satisfied “either by showing a disruption has
occurred, or by showing ‘demonstrable factors that would give rise to any reasonable forecast by
the school administration of ‘substantial and material’ disruption” (emphasis omitted) (quoting
Shanley v. Ne. Indep. Sch. Dist., 462 F.2d 960, 974 (5th Cir. 1972))).
Since Tinker, the Supreme Court has considered the reach of the First Amendment in

schools on three occasions. In each of these cases, it articulated a “narrow exception[ ] to the
general Tinker standard based on certain characteristics, or content, of the speech.” Bell, 799
F.3d at 390. First, in Fraser, the Supreme Court held that a school was constitutionally permitted
to discipline a student for utilizing vulgar and offensive terms and sexual innuendo during an on-
campus event. Fraser, 478 U.S. at 683. The Court noted that the student’s speech took place
during an “official high school assembly attended by 600 students,” and held that it was an
appropriate function of a school to “prohibit the use of vulgar and offensive terms in public
discourse.” Id. at 681; see also id. at 683 (“The determination of what manner of speech in the
classroom or in school assembly is inappropriate properly rests with the school board.”). Next, in

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Hazelwood v. Kuhlmeier, the Supreme Court upheld the right of a school district to “exercis[e]
editorial control over the style and content of student speech in school-sponsored expressive
activities so long as their actions are reasonably related to legitimate pedagogical concerns.” 484
U.S. 260, 273 (1988). And finally, in Morse v. Frederick, the Supreme Court held that a school
official may suppress speech conducted during a school-sponsored event that “promote[s] illegal

drug use.” 551 U.S. 393, 410 (2007).
Each of these cases represents an exception to the substantial-disturbance test articulated
in Tinker. In affirming the schools’ right to discipline the speech at issue in those cases, the
Supreme Court did not require the school officials to forecast a substantial disruption to the
classroom environment or other school activities. Instead, the Court held that the district could
discipline the students because of the “special features of the school environment” and the
particularly harmful aspects of the speech at issue in each case. Bell, 799 F.3d at 392 (quoting
Morse, 551 U.S. at 425, 127 S.Ct. 2618 (Alito, J., concurring)).
Recognizing that Fraser, Hazelwood, and Morse exemplify three narrow exceptions to

the Tinker standard, the Fifth Circuit held in Bell that “threats against, and harassment and
intimidation of, teachers” must be analyzed under the Tinker rule. 799 F.3d at 392.8 In Bell, a
high school student posted a rap recording to his personal Facebook page, and later to YouTube,
while he was “[a]way from school or a school function and without using school resources.” Id.
at 383. The recording contained threatening, profane, and intimidating language directed towards
two teachers, accusing them of sexually harassing students at the high school. Id. at 384. When
the school became aware of the recording, the student was suspended. Id. at 385. On appeal, the
Fifth Circuit upheld the district’s disciplinary actions. Id. at 394. Though the student’s speech
was conducted off-campus, it was “intentionally direct[ed] at the school community,” and the

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speech could reasonably be understood “by school officials to threaten, harass, and intimidate a
teacher.” Id. at 396. These unique features of the speech in Bell allowed the school to reasonably
forecast “a substantial disruption,” justifying school discipline. Id. at 398.
“Bell, however, did not articulate a generally-applicable standard for the discipline of all
off-campus speech.” Longoria Next Friend of M.L. v. San Benito Indep. Consol. Sch. Dist., 942

F.3d 258, 267 (5th Cir. 2019). The Fifth Circuit noted in Bell that it was declining to adopt a
“specific rule” that would apply to all circumstances under which off-campus speech may be
restricted. Id. at 394. Instead, the Fifth Circuit limited itself to the facts of that case, observing
only that “Bell’s admittedly intentionally directing at the school community his rap recording
containing threats to, and harassment and intimidation of, two teachers permits Tinker’s
application in this instance.” Id. In synthesizing the school speech law above, the Fifth Circuit
wrote:
First, nothing in our precedent allows a school to discipline non-threatening off-campus
speech simply because an administrator considers it “offensive, harassing, or
disruptive.” Bell, 799 F.3d at 402 (Elrod and Jones, JJ., concurring); see also id.
(observing that “the First Amendment does not, for example, allow a public school to
punish a student for ‘writ[ing] a blog entry defending gay marriage’ from his home
computer, even if the blog entry causes a substantial disruption at the school” (citing
Snyder, 650 F.3d at 939 (Smith, J., concurring))). Second, it is “indisputable” that non-
threatening student expression is entitled to First Amendment protection, even though the
extent of that protection may be “diminished” if the speech is “composed by a student
on-campus, or purposefully brought onto a school campus.” Porter, 393 F.3d at 618–19.
And finally, as a general rule, speech that the speaker does not intend to reach the school
community remains outside the reach of school officials. See id. at 615 (holding that a
student drawing that was “completed in [the student’s] home, stored for two years, and
never intended by him to be brought to campus” does not “constitute[ ] student speech
on the school premises”); see also Bell, 799 F.3d at 395. Because a school’s authority to
discipline student speech derives from the unique needs and goals of the school setting, a
student must direct her speech towards the school community in order to trigger school-
based discipline. We acknowledge, however, that the “pervasive and omnipresent nature
of the Internet” raises difficult questions about what it means for a student using social
media to direct her speech towards the school community. Id. . . . We recognize that the
articulation of these rules still leaves many questions unanswered, and a more defined
rule will be left for another day. Bell, 799 F.3d at 403. Given these principles, however,
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we hope to give some guidance to schools for the future, with the important reminder that
“a broad swath of off-campus student expression” remains fully-protected by the First
Amendment. Id. at 402 (Elrod and Jones, JJ., concurring).

Longoria, 942 F.3d at 267–69.
More recently, the Supreme Court has indicated that the Tinker standard continues to
apply and that certain circumstances may preclude First Amendment protection of even off-
campus speech. Mahanoy Area School District v. B.L., 141 S. Ct. 2038 (2021). In Mahanoy, the
Supreme Court clarified that special characteristics that give schools additional license to
regulate student speech do not always disappear when that speech takes place off campus.
Circumstances that may implicate a school’s regulatory interests include serious or severe
bullying or harassment targeting particular individuals; threats aimed at teachers or other
students; the failure to follow rules concerning lessons, the writing of papers, the use of
computers, or participation in other online school activities; and breaches of school security
devices. Id. at 2044-45. However, the Supreme Court explained, three features of off-campus
speech often, even if not always, distinguish schools’ efforts to regulate off-campus speech:
First, a school will rarely stand in loco parentis when a student speaks off campus. Second, from
the student speaker’s perspective, regulations of off-campus speech, when coupled with
regulations of on-campus speech, include all the speech a student utters during the full 24-hour
day. That means courts must be more skeptical of a school’s efforts to regulate off-campus
speech, for doing so may mean the student cannot engage in that kind of speech at all. Third, the
school itself has an interest in protecting a student’s unpopular expression, especially when the
expression takes place off campus, because America’s public schools are the nurseries of
democracy. Taken together, these three features of much off-campus speech mean that the

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leeway the First Amendment grants to schools, considering their special characteristics, is
diminished. Id. at 2045-47.
The Court decides this case on grounds of qualified immunity as to the individual
Defendants and governmental immunity as to Katy ISD.
a. Qualified Immunity

When a defendant asserts a qualified-immunity defense in a motion to dismiss, the court
has an “obligation . . . to carefully scrutinize [the complaint] before subjecting public officials to
the burdens of broad-reaching discovery.” Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir.
1986); see also Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 995 n.16 (5th Cir. 1995)
(“[I]mmunity means more than just immunity from liability; it means immunity from the burdens
of defending a suit, including the burdens of pretrial discovery.”). A defendant is entitled to
qualified immunity if his “conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “This is not to say that an official action is

protected by qualified immunity unless the very act in question has previously been held
unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be
apparent.” Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 618 (5th Cir. 2004)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). If, at the time of the events
underlying the litigation, “insufficient precedent existed to provide school officials with ‘fair
warning’ that the defendants’ conduct violated the First Amendment,” the defendants are entitled
to qualified immunity. Jackson v. Ladner, 626 F. App’x 80, 88 (5th Cir. 2015) (quoting Bush v.
Strain, 513 F.3d 492, 502 (5th Cir. 2008)).

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In the traditional two-step approach to qualified immunity, a court first determines that
the plaintiff’s alleged facts stated a claim for the violation of a constitutional right, then analyzes
whether the right at issue was clearly established at the time of the defendant’s actions.
Longoria, 942 F.3d at 264. This two-step inquiry, however, is not mandatory. Id. As the Supreme
Court decided in Pearson v. Callahan, courts have discretion to decide “which of the two prongs

of the qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” 555 U.S. 223, 236 (2009). If the court determines that the right asserted
by the plaintiff was not clearly established, it need not reach the more difficult constitutional
question. Camreta v. Greene, 563 U.S. 692, 707 (2011); see also City of Tahlequah, Oklahoma
v. Bond, ___ S.Ct. ___, 2021 WL 4822664 at *2 (2021) (“We need not, and do not, decide
whether the officers violated the Fourth Amendment in the first place, or whether recklessly
creating a situation that requires deadly force can itself violate the Fourth Amendment. On this
record, the officers plainly did not violate any clearly established law.”); Morgan v. Swanson,
659 F.3d 359, 384 (5th Cir. 2011) (“Because we have granted immunity to the [defendants] at

step two of the qualified-immunity analysis, it is within our discretion to decline entirely to
address the constitutionality of the defendants’ conduct.”). Indeed, the Supreme Court has
“detailed a range of circumstances in which courts should address only the immunity question,”
and has admonished courts to “think hard, and then think hard again, before turning small cases
into large ones” by engaging in unnecessary constitutional analysis. Camreta, 563 U.S. at 707.
The Fifth Circuit recently addressed the issue of qualified immunity as to off-campus
speech in Longoria. There, the plaintiff liked, reposted, and responded to Tweets apparently in
violation of the Cheerleading Constitution she and her parent signed. There, the Fifth Circuit
held that, “[b]ecause Bell . . . did not articulate a generalized rule that could have applied to [the

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plaintiff] M.L.’s speech, it d[id] not constitute clearly-established binding law that should have
placed the defendants on notice about the constitutionality of their actions.” Longoria, 942 F.3d
258, 267. It highlighted two other cases to underscore that much of the law on the boundaries of
off-campus speech remained unclear at the time that M.L. was dismissed from the cheerleading
team. In Porter v. Ascension Parish School Board, 393 F.3d 608 (5th Cir. 2004), the Fifth Circuit

granted qualified immunity to a school official after a student’s sketch depicting a “violent siege”
on his high school community was inadvertently brought to school by his younger brother. Id. at
611, 620. The Fifth Circuit noted that the contours of the First Amendment “as applied to off-
campus student speech inadvertently brought on campus by others” was “unsettled.” Id. at 620.
Because of the uncertainty in the law and the lack of clear precedent that could have guided
official conduct, it held that the school official’s actions were reasonable. Id. at 621.
Since Porter, the Fifth Circuit’s cases have “failed to clarify the law governing school
officials’ actions in disciplining off-campus speech.” Longoria, 942 F.3d 258, 267. In Jackson v.
Ladner, 626 F. App’x 80 (5th Cir. 2015), a case applying pre-Bell authority, the Fifth Circuit

granted qualified immunity to a school official who suspended a cheerleader from the cheer
squad based on messages she sent to another member of the team on Facebook. Id. at 81, 88–89.
It noted that its cases “had sent ‘inconsistent signals’ with regard to ‘how far school authority to
regulate student speech reaches beyond the confines of the campus,’” and therefore failed to
provide school officials with “fair warning” about the boundaries of on-campus speech. Id. at
88–89 (quoting Porter, 393 F.3d at 620).
The Fifth Circuit similarly concluded that the Supreme Court’s cases had not clearly
established the constitutionality of the defendants’ actions because the Supreme Court “ha[d] not
had the occasion to articulate a rule that sets forth the limits of school discipline of off-campus

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speech.” Longoria, 942 F.3d 258, 267. Its most recent case on the matter, Mahanoy, has still
fallen short of doing so. Mahanoy delineated three features of much off-campus speech that
mean “that the leeway the First Amendment grants to schools in light of their special
characteristics is diminished.” Mahanoy, 141 S. Ct. 2038, 2046 (2021). But the Supreme Court
explicitly “le[ft] for future cases to decide where, when, and how these features mean the

speaker’s off-campus location will make the critical difference.” Id. The Supreme Court listed
circumstances that “may implicate a school’s regulatory interests,” id. at 2040 (emphasis added)
but declined to provide any definitive criteria. And in any event, Mahanoy was decided on June
23, 2021, after the events that precipitated this lawsuit.
Though courts “do[] not require a case directly on point” to defeat a qualified-immunity
defense, a school official is entitled to immunity from suit unless “existing precedent . . . placed
the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011) (emphasis added); see also Morrow v. Meachum, 917 F.3d 870, 875 (5th Cir. 2019)
(“[C]learly established law comes from holdings, not dicta.”). Here, there was no general rule

that could have placed Defendants on notice that it would be unconstitutional to discipline Mr.
McClelland for his off-campus speech, which included a threat of physical violence against
another student.4 Thus, the Court finds as a matter of law that Mr. McClelland’s free speech
rights were not clearly established when he was disciplined for the Snapchat video.

4 Plaintiff argues that Defendants did not genuinely intend to physically harm the recipient. Even if this were true, it
is still not “clearly established” that disciplining a student for a “taunt” or threat of violence apparently stated in jest
is unconstitutional. In fact, other courts applying Tinker have dismissed First Amendment claims at the pleadings
stage even where the student’s speech was allegedly meant as a joke. For example, in C1.G. v. Siegfried, a student
was expelled for posting (off campus) a Snapchat picture of him and his friends wearing hats and wigs, with the
caption “Me and the boys bout to exterminate the Jews.” 477 F. Supp. 3d 1194, 1200 (D. Colo 2020). The Siegfried
court dismissed the student’s First Amendment claim on a motion to dismiss, finding that whether the student meant
the post as a joke and whether he intended to threaten anyone were not material to the analysis. See id. at 1209. In
A.S. v. Lincoln County R-III School District, the court granted judgment on the pleadings under Rule 12(c). 429 F.
Supp. 3d 659 (E.D. Mo. 2019). In that case, the plaintiff posted a doctored picture to Snapchat, making it appear that
another student had died and was in a casket, and suggested that a visitation would be held at a local funeral home.
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Without needing to decide the closer question whether Mr. McClelland sufficiently stated
a First Amendment claim, the Court concludes that the individual defendants are entitled to
qualified immunity.
b. § 1983
Section 1983 does not make municipalities vicariously liable for the wrongdoing of their

employees. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Thus, to hold a
municipality liable for a constitutional violation under § 1983, a plaintiff must show that “(1) an
official policy (2) promulgated by the municipal policymaker (3) was the moving force behind
the violation of a constitutional right.” Hicks-Fields v. Harris County, 860 F.3d 803, 808 (5th
Cir. 2017) (quoting Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009)). “[T]he
identification of policymaking officials is a question of state law.” City of St. Louis v.
Praprotnik, 485 U.S. 112, 124 (1988).
Under Texas law, the final policymaker for a Texas independent school district is its
board of trustees. See Longoria, 942 F.3d 258 at 271; Jett v. Dallas Indep. Sch. Dist., 7 F.3d

1241, 1245 (5th Cir. 1993); TEX. EDUC. CODE §§ 11.151(b) (“The trustees as a body corporate
have the exclusive power and duty to govern and oversee the management of the public schools
of the district.”). Because the “specific identity of the policymaker is a legal question that need
not be pled,” plaintiffs can state a claim for municipal liability if they plead sufficient facts to
allow the court to reasonably infer that the Board either adopted a policy that caused injury or
delegated to a subordinate officer the authority to adopt such a policy. Groden v. City of Dallas,
826 F.3d 280, 284, 286 (5th Cir. 2016). In short, plaintiffs must plead facts that sufficiently

Id. at 664. Because it found that the Tinker standard is an objective one, the court held that “A.S.’s after-the-fact
characterization that the meme was meant to be a joke is therefore irrelevant.” Id. at 670.
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connect the policymaker—here, the Board of Trustees—to the allegedly unconstitutional policy.
Id.
Here, Plaintiff pleads no facts suggesting that its Board of Trustees had any involvement
in the incidents underlying this lawsuit. He has not alleged any facts suggesting that the Board of
Trustees formally adopted any policies, regulations, bylaws, or ordinances responsible for the

alleged violation of his First Amendment rights.
Nor has Plaintiff pled sufficient facts to allow the court to infer that the Board of Trustees
delegated policymaking authority to Defendants. “A municipality can be held liable only when it
delegates policymaking authority, not when it delegates decisionmaking authority.” Longoria,
943 F.3d at 271 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986); Jett, 7 F.3d
at 1246–47). The “finality of an official’s action does not . . . automatically lend it the character
of a policy,” Bolton v. City of Dallas, 541 F.3d 545, 550 (5th Cir. 2008); see also Jett, 7 F.3d at
1246. The Supreme Court’s cases “sharply distinguish[ ] between decisionmakers and final
policymakers.” Jett, 7 F.3d at 1247. In this case, Plaintiff points out that Katy ISD issued a

statement that “[t]he student responsible will face disciplinary consequences in accordance with
the Katy ISD Discipline Management Student Code of Conduct and Athletic Code of Conduct.”
Doc. 82, at 3. However, allegations that Defendants disciplined Plaintiff in accordance with
policies directly or indirectly adopted by the Board of Trustees still fail to meet the requirement
that Defendants themselves exercise policymaking authority.
Finally, Plaintiff has not alleged that the Board permitted “persistent and widespread
practices” or “practices that are permanent and well settled and deeply embedded traditional
ways of carrying out policy.” Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984). In

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fact, the Second Amended Complaint does not mention Katy ISD’s Board of Trustees
whatsoever, see generally Doc. 37.
Additionally, to the extent that the Second Amended Complaint alleged “failure to train”
as a method for proving entity liability for a constitutional violation, see, e.g., Segal v. City of
New York, 459 F.3d 207, 219 (2d Cir. 2006), Plaintiff explicitly waived the claim. Plaintiff’s

Supplemental Reply Regarding Qualified Immunity, Doc. 82, at 1 (“At oral argument, Plaintiff .
. . conceded he was waiving . . . a “failure to train” claim (which he never pled).”).
Based on the above, Plaintiff has failed to state a Monell claim. The Court need not
address the third prong—whether an official policy promulgated by a policymaker was the
“moving force” behind a constitutional violation. Because Plaintiff has not stated a claim for
either individual or municipal liability, the First Amendment claim as to Plaintiff’s off-campus
speech is DISMISSED WITH PREJUDICE.
2. Due Process & First Amendment—Athletic Code of Conduct
Plaintiff alleges that Katy ISD’s Athletic Code of conduct is unconstitutionally vague and

overbroad on its face.
a. Vagueness
Mr. McClelland alleges that the Katy ISD’s Athletic Code of Conduct, on its face, is
unconstitutionally vague in violation of the First Amendment. Plaintiff specifically raises issue
with its requirements that athletes “display/model behaviors associated with positive leaders both
in the school and in the community,” “exhibit good citizenship at all times,” and “conduct
themselves as gentlemen and ladies at all times, demonstrating respect for their administrators,
teachers, and fellow students.” See Doc. 37-1, at 43.

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“A law is unconstitutionally vague if it (1) fails to provide those targeted by the statute a
reasonable opportunity to know what conduct is prohibited, or (2) is so indefinite that it allows
arbitrary and discriminatory enforcement.” A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 224-25
(5th Cir. 2009). The standard is heightened in the school context. “Given the school’s need to be
able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the

educational process, the school disciplinary rules need not be as detailed as a criminal code
which imposes criminal sanctions.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686
(1986).
Most importantly here, a void for vagueness challenge is, ultimately, a due process
claim. Cash, 585 F.3d at 225. To state a void-for-vagueness claim, a plaintiff must allege that he
was deprived of a property or liberty right. See City of Chicago v. Morales, 527 U.S. 41, 58
(1999). The vagueness doctrine may be invoked in the school context only where students have
“faced a potential deprivation of their property interests in attending a public school.” Chalifoux
v. New Caney Ind. Sch. Dist., c, 668 (S.D. Tex. 1997) (emphasis added). The Fifth Circuit has

held that “[a] student’s interest in participating in a single year of interscholastic athletics
amounts to a mere expectation rather than a constitutionally protected claim of entitlement.”
Walsh v. La. High Sch. Athletic Ass’n, 616 F.2d 152, 159 (5th Cir. 1980).
In this case, Plaintiff alleges that the discipline imposed on him for the off-campus
speech was suspension from two games and stripping of his title as team captain. Neither
participation in football nor team captainship constitutes a property or liberty right of which
Plaintiff was deprived. Thus, his vagueness claim must fail.

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b. Overbreadth
Plaintiff’s overbreadth claim is also unavailing. The overbreadth doctrine provides that “a
broadly-written statute may have such a deterrent effect on free expression that it should be
subject to a facial challenge even by a party whose own conduct may be unprotected.” Int’l Soc.
for Krishna Consciousness of New Orleans, Inc. v. City of Baton Rouge, 876 F.2d 494, 500 (5th

Cir. 1989). “A regulation is constitutionally overbroad if it (1) prohibits a substantial amount of
constitutionally-protected freedoms, when judged in relation to the regulation’s ‘plainly
legitimate sweep’ . . . and (2) is not susceptible to a limiting construction that avoids
constitutional problems.” Chalifoux, 976 F. Supp. at 670 (citations omitted).
But critically, “[t]he overbreadth doctrine enables a plaintiff to challenge a statute where
it infringes on third parties who are not parties to the action.” Id. (emphasis in original). Courts
“generally do not apply the ‘strong medicine’ of overbreadth analysis where the parties fail to
describe the instances of arguable overbreadth of the contested law.” Wa. State Grange v. Wa.
State Republican Party, 552 U.S. 442, 449 n.6 (2008). In this context, “an overbreadth challenge

is not appropriate if the first amendment rights asserted by a party attacking a statute are
essentially coterminous with the expressive rights of third parties.” United States v. Petras, 879
F.3d 155, 167 (5th Cir. 2018) (citation omitted); see Chalifoux, 976 F. Supp. at 760 (citing U.S.
v. Hicks, 980 F.2d 963, 969 (5th Cir.1992)) (rejecting overbreadth claim against school policy
where students also raised substantive challenge as applied to their own First Amendment
rights).
The First Amendment rights asserted by Plaintiff in this case are “essentially
coterminous” with the expressive rights of third parties. Mr. McClelland has not alleged that the
rights of third parties would be threatened in a manner different from the alleged threat to his

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rights. His Response only contains a general statement of the law on overbreadth challenges,
untethered to well-pleaded facts that could survive a Rule 12(b)(6) motion. See, e.g., Longoria as
next friend of M.L. v. San Benito Consol. Indep. Sch. Dist., No. 1:17-CV-160, 2018 WL
6288142, at *18 (S.D. Tex. July 31, 2018), report and recommendation adopted, No. 1:17-CV-
00160, 2018 WL 5629941 (S.D. Tex. Oct. 31, 2018), aff’d sub nom. Longoria Next Friend of

M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258 (5th Cir. 2019) (dismissing
overbreadth claim upon Rule 12(b)(6) motion). Therefore, the overbreadth claim, like the
vagueness claim, is DISMISSED WITH PREJUDICE.
3. Due Process (Procedural and Substantive)
Plaintiff alleges that the District, Superintendent Gregorski, Principal Hull, and Justin
Graham (Katy ISD’s General Counsel) violated his due process rights by disciplining him for
possessing marijuana on school property. He further contends that Defendants violated his
substantive due process rights by reinstating his discipline for possessing marijuana on school
property, since Superintendent Gregorski had allegedly overturned his discipline and made a

final determination that Plaintiff did not intend to possess the substance on campus.
Under the Fourteenth Amendment, state actors may not deprive “any person of life,
liberty, or property without due process of law.” U.S. CONST. AMEND. XIV. “The first inquiry in
every due process challenge—whether procedural or substantive—is whether the plaintiff has
been deprived of a protected interest in property or liberty.” Edionwe v. Bailey, 860 F.3d 287,
292 (5th Cir. 2017). Further, “[t]o have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it . . . He must, instead, have a legitimate claim of
entitlement to it.” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).

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Here, Plaintiff alleges that Defendants deprived him of a protected interest by placing
him in a DAEP, which damaged his reputation and scholastic record, and prevented him from
participating in football at Katy ISD. However, in Nevares v. San Marcos Consolidated
Independent School District, the Fifth Circuit held that students do not have a protected right to a
specific curriculum or to placement at a particular school; accordingly, an assignment to an

alternative education program does not deprive a student of any protected property rights or
liberty interests. 111 F.3d 25, 26-27 (5th Cir. 1997); see also Harris ex rel. Harris v. Pontotoc
Cnty. Sch. Dist., 635 F.3d 685, 690 (5th Cir.2011) (“A student’s transfer to an alternate education
program does not deny access to public education and therefore does not violate a Fourteenth
Amendment interest.”); C.C. v. Hurst-Euless-Bedford Indep. Sch. Dist., No. 4:14-CV-646-A,
2015 WL 136379, at *3 (N.D. Tex. Jan. 8, 2015), aff’d, 641 F. App’x 423 (5th Cir. 2016).5
Similarly, students “do not possess a constitutionally protected interest in their participation in
extracurricular activities.” Doe v. Silsbee Ind. Sch. Dist., 402 Fed. Appx. 852, 854 (5th Cir.
2010) (quoting NCAA v. Yeo, 171 S.W.3d 863, 865 (Tex. 2005)). The Fifth Circuit has rejected

attempts to classify extracurricular activities as protected interests implicating the safeguards of
due process. Walsh, 616 F.2d at 159; Niles v. Univ. Interscholastic League, 715 F.2d 1027, 1031
(5th Cir. 1983); see also Khan v. Fort Bend Indep. Sch. Dist., 561 F. Supp. 2d 760, 764-65 (S.D.
Tex. 2008).

5 Following Nevares, numerous Texas courts have held that a DAEP referral does not deprive a student of
due course of law under Article I, Sec. 19 of the Texas Constitution. See, e.g., Stafford Mun. Sch. Dist. v.
L.P., 64 S.W.3d 559, 562-63 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Northwest Indep. Sch.
Dist. v. K.R., 2020 WL 4907331, *4-5 (Tex. App.—Fort Worth 2020, no pet.) (“[D]istrict and appellate
courts have no jurisdiction to review the decision to place a student in DAEP.”); Stephens v. Trinity ISD,
2012 WL 5289346, *3-4 (Tex. App.—Tyler 2012, no pet.) (“[T]he alleged damage is to the student's
reputation and the harm that flows from unsubstantiated DAEP placement, particularly, harm to the
student’s standing with fellow pupils and teachers, as well as interference with opportunities for higher
education and employment . . . [D]amage to the reputation of the student alone is not enough to establish
a due process violation.”).
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The facts Plaintiff alleges as to the marijuana-related disciplinary proceedings initiated
against him, if accepted as true, raise substantial concerns. Those concerns, however, are not for
the courts to address. As a matter of law, the Court concludes that Plaintiff cannot state a claim
for a violation of due process, whether procedural or substantive, because he was not deprived of
any protected property rights or liberty interests. Plaintiff’s due process claims are DISMISSED

WITH PREJUDICE.
4. State Claims
Because the Court dismisses Plaintiff’s federal claims, no federal question remains before
the district court. But this fact does not divest the court of jurisdiction; instead, the court must
exercise its discretion whether to exercise supplemental jurisdiction over Mr. McClelland’s state
law claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise
supplemental jurisdiction over a claim under subsection(a) if . . . (3) the district court has
dismissed all claims over which it has original jurisdiction”). When a court dismisses all federal
claims before trial, the general rule is to dismiss any pendent claims. Bass v. Parkwood Hosp.

180 F.3d 234, 246 (5th Cir. 1999) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)).
However, the dismissal of the pendent claims should expressly be without prejudice so that the
plaintiff may refile his claims in the appropriate state court. Bass, 180 F.3d at 246. Therefore,
Plaintiff’s state claims here are DISMISSED WITHOUT PREJUDICE.
III. MOTION TO STRIKE MOTIONS TO QUASH DEPOSITION NOTICES
Because the Court dismisses all claims, it need not rule on the Motion to Strike and Motions
to Quash Deposition Notices. These motions are DENIED AS MOOT.

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IV. MOTION TO UNSEAL
Plaintiff moved to unseal the Motions to Quash that Defendants filed under seal. At the
oral hearing, Defendants argued that individuals Defendants and witnesses have been or are likely
to be subject to public harassment related to this case. While the public has an interest in accessing
court documents, those interests are outweighed in this case by the privacy and safety interests of
the individuals at issue. Therefore, Plaintiffs Motion to Unseal is DENIED.
V. CONCLUSION
The Court is not insensitive to Plaintiff’s circumstances. His educational career and his
hopes for a future in college athletics suffered significant injury, largely due to a moment’s worth
of juvenile and shameful misconduct. Nevertheless, sympathy for a young man’s plight does not
license any court to countermand well-established law or to offload ultimate responsibility from
the individual to educational authorities.

The Court GRANTS the Motion to Dismiss as follows: Plaintiff's First Amendment and
Due Process claims are DISMISSED WITH PREJUDICE, and his claims under state law are
DISMISSED WITHOUT PREJUDICE.
The Motion to Strike and Motions to Quash are DENIED AS MOOT.
Lastly, the Motion to Unseal is DENIED.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on November 1, 2021.

LD eed
Keith P. Ellison
United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10674834. Public record. Not legal advice.