Hartzell v. Marana Unified School District

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REBECCA HARTZELL, Ph.D., No. 23-4310

BCBA-D, wife,

D.C. No.

4:21-cv-00062-

Plaintiff - Appellant,

SHR

v.

OPINION

MARANA UNIFIED SCHOOL

DISTRICT, a governmental entity

organized and existing under the laws

of the State of Arizona; ANDREA

DIVIJAK, in her individual capacity,

and Marital Community; JOSEPH

DIVIJAK, husband, Marital

Community,

Defendants - Appellees,

and

DOVE MOUNTAIN CSTEM K-8,

Defendant.

Appeal from the United States District Court

for the District of Arizona

Scott H. Rash, District Judge, Presiding

2 HARTZELL V. MARANA UNIFIED SCH. DIST.

Submitted October 21, 2024

Phoenix, Arizona

Filed March 5, 2025

Before: A. WALLACE TASHIMA, MILAN D. SMITH,

JR., and BRIDGET S. BADE, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY *

First Amendment/Schools

The panel affirmed in part and reversed in part the

district court’s judgment in favor of the Marana Unified

School District and school principal Andrea Divijak in an

action brought by Rebecca Hartzell, pursuant to 42 U.S.C.

§ 1983 and state law, alleging that she was banned from the

premises of her children’s school in retaliation for her

protected speech.

The District and Divijak asserted that Hartzell was

banned because of her conduct; specifically, they allege that

she assaulted Divijak.

Addressing Hartzell’s First Amendment retaliation claim

against the District, the panel held that the district court did

not abuse its discretion in excluding Hartzell’s attempt to

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HARTZELL V. MARANA UNIFIED SCH. DIST. 3

prove her Monell claim against the District based on a “final

policymaker” theory because she did not adequately identify

this theory in the joint pretrial statement. The panel also

rejected Hartzell’s Monell claim against the District based

on a “custom or practice” theory. The panel nevertheless

reversed the district court’s judgment for the District on

Hartzell’s First Amendment retaliation claim because the

District’s official policy of barring speech that was

“offensive or inappropriate” was unconstitutional and a

reasonable jury could conclude that Hartzell was banned

from the school grounds based on this policy, rather than

because of her alleged assault on Divijak.

The panel affirmed the district court’s holding that

Divijak was entitled to qualified immunity with respect to

Hartzell’s First Amendment retaliation claim against

Divijak. Although a reasonable jury could determine that

Divijak banned Hartzell in violation of a constitutional right,

that right was not clearly established given the lack of

persuasive authority addressing First Amendment retaliation

in light of the special characteristics of the school

environment.

The panel affirmed the district court’s judgment for the

District on Hartzell’s claim that the District violated her

procedural due process right to direct the education of her

children because Hartzell’s ban from the school premises did

not implicate her right to direct her children’s

education. The district court also did not abuse its discretion

in denying Hartzell’s motion, made two months after the

district court’s summary judgment ruling, to amend her First

Amended Complaint to add a First Amendment theory to her

procedural due process claim.

4 HARTZELL V. MARANA UNIFIED SCH. DIST.

Finally, the panel reversed in part the district court’s

judgment in Divijak’s favor on Hartzell’s state law

defamation claim, alleging that Divijak sent two defamatory

documents to Hartzell’s employer, because the defamation

claim was viable to the extent it was based on one of the

documents.

COUNSEL

Jacob C. Jones (argued), Snell & Wilmer LLP, Phoenix,

Arizona; Jeffrey Willis, Snell & Wilmer LLP, Tucson,

Arizona; for Plaintiff-Appellant.

Lisa A. Trudinger-Smith (argued) and Tyler H. Stanton,

DeConcini McDonald Yetwin & Lacy PC, Tucson, Arizona,

for Defendants-Appellees.

HARTZELL V. MARANA UNIFIED SCH. DIST. 5

OPINION

M. SMITH, Circuit Judge:

Following an incident on February 7, 2020, at Dove

Mountain K-CSTEM school (Dove Mountain), Plaintiff-

Appellant Rebecca Hartzell was banned from the school

premises. Hartzell claims that she was banned from the

school in retaliation for her protected speech. Defendants-

Appellees, the Marana Unified School District (the District)

and Andrea Divijak, the principal at Dove Mountain, assert

that Hartzell was banned because of her conduct;

specifically, they allege that Hartzell assaulted Divijak.

Hartzell sued the District and Divijak pursuant to 42 U.S.C.

§ 1983 for violations of her First Amendment and procedural

due process rights. Hartzell also sued Divijak for

defamation. 1

The district court granted summary judgment in the

Defendants’ favor on the procedural due process claim, on

the § 1983 claim against Divijak, and on the defamation

claim to the extent it was based on two documents sent to

Hartzell’s employer. The district court also denied

Hartzell’s request to amend her procedural due process claim

to include a First Amendment theory.

At trial, the district court precluded questioning or

argument regarding Hartzell’s First Amendment Monell

claim against the District to the extent it relied on a “final

policymaker” theory. 2 At the close of trial, the district court

granted judgment as a matter of law in the Defendants’ favor

1

Hartzell also brought additional claims not relevant to this appeal.

2

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

6 HARTZELL V. MARANA UNIFIED SCH. DIST.

on the First Amendment claim against the District. The jury

rejected the balance of Hartzell’s defamation claim, which

was the only cause of action submitted to it.

Hartzell appeals each of the district court’s

determinations. We reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

Hartzell is the parent of eight school-aged children, five

of whom attended Dove Mountain during the 2019–20

school year. Divijak was serving as the principal of Dove

Mountain at that time. In August 2019, the District opened

Dove Mountain, a new kindergarten through eighth grade

school. Dove Mountain is a part of and run by the District.

I. Hartzell’s Advocacy

Hartzell has a master’s degree in special education and a

doctorate focusing on applied behavioral analysis and

autism. She also became an associate professor of practice

at the University of Arizona, and a director of the master’s

program in applied behavioral analysis at that institution.

Since approximately 2008, Hartzell has been advocating

for improved services in the District. Prior to February 7,

2020, Hartzell had expressed, both orally and via e-mail,

numerous concerns to District personnel, including concerns

related to school event scheduling, overheated buses,

children accessing pornography on school computers, the

availability of books in the school library, restrictions on

children’s ability to speak to one another in the cafeteria

during lunch, procedures for meetings regarding

Individualized Education Programs, the treatment of

children with disabilities, and special education funding.

HARTZELL V. MARANA UNIFIED SCH. DIST. 7

At trial, Hartzell testified that the District reacted

negatively to her advocacy. For example, in 2011, a District

employee said that Hartzell was “asking for the moon!!!”

Hartzell also identified an occasion in 2016 when Hartzell

sent a strongly worded e-mail and, after sending the e-mail,

was no longer welcome to volunteer at an elementary school

where she had previously been permitted to do so. Hartzell

also identified an occasion two years later, in 2018, when a

District employee told Hartzell that the District instructed

the employee not to allow Hartzell to volunteer. Around the

same time, Hartzell also met with one of the District’s

assistant superintendents who told Hartzell she was not

welcome at schools within the district other than those

attended by her children. Hartzell attributed these decisions

to her advocacy. Hartzell identified an instance in 2018

when a teacher said she was “pissed” after being criticized

by Hartzell and said she had developed “nicknames” for

Hartzell. This teacher also called Hartzell her “first nasty

parent.”

In 2019, in the weeks before Dove Mountain opened as

a new school in August of that year, and as Divijak

transitioned from her position at a different school to become

principal of Dove Mountain, Hartzell began directing her

advocacy to Divijak. In May 2019, Hartzell sent an e-mail

to Divijak expressing concern that she and other parents had

not received adequate notice of a meeting about elective

courses. Hartzell spoke to Divijak and offered to help at

Dove Mountain. Hartzell testified that Divijak responded

abruptly that Dove Mountain was “not interested in help.”

During the fall of 2019, Hartzell sent another e-mail to

Divijak expressing her concern about second graders being

instructed “they had to be quiet before they could go out to

recess.” During that same semester, Hartzell also expressed

8 HARTZELL V. MARANA UNIFIED SCH. DIST.

concerns to Divijak that Dove Mountain’s library was too

small.

On December 10, 2019, Hartzell e-mailed Divijak,

expressing concerns about a school event where her children

were scheduled to perform simultaneously in different

locations. Hartzell was concerned that she would be unable

to watch all her children perform, and she was also

concerned about parking and childcare issues. At Divijak’s

invitation, Hartzell subsequently provided additional

suggestions for the school.

II. The February 7, 2020 Incident

On February 7, 2020, Dove Mountain hosted an event

where students presented projects they had been working on

for a few months. Two of Hartzell’s children were

scheduled to present in different rooms simultaneously.

While attending the event, Hartzell saw Divijak in a

classroom and approached her. Hartzell was accompanied

by one of her children, who attended preschool at Dove

Mountain. No other children were present. Hartzell

“sarcastically” thanked Divijak for “making [her] choose

which kid [she was] going to support again today.” Hartzell

testified that she began to walk away, but Divijak responded

that she was “sorry that [Hartzell was] just never happy.”

Hartzell testified that she turned back around and explained

her proposed solution to the scheduling conflicts. According

to Hartzell, Divijak refused to speak with her further and

began to walk away while Hartzell was speaking. Hartzell

says she responded that it seemed she and Divijak were

never able to have a conversation. However, Hartzell denies

doing anything to stop Divijak from walking away and

specifically denies grabbing Divijak’s wrist. Even so,

Hartzell acknowledges that she accidentally touched

HARTZELL V. MARANA UNIFIED SCH. DIST. 9

Divijak’s arm as she walked by and that she said “stop, I’m

talking to you.” Hartzell recalls that Divijak shouted, “Don’t

touch me.” Hartzell testified that Divijak continued walking

away and that Hartzell said, “Forget it. I’ll just contact the

District.”

After her interaction with Divijak, Hartzell went to the

room where one of her daughters was giving a presentation.

Hartzell testified that she was approached by a hall monitor,

who ordered Hartzell to leave immediately, informed her

that the police would be called if she did not leave, and

escorted her out of the building. Hartzell went to the parking

lot and was approached by Marana Police Department

Officer Jerry Ysaguirre.

According to Ysaguirre, Hartzell admitted placing her

hand on top of Divijak’s wrist to stop her so they could

continue speaking. Hartzell said she immediately regretted

this action and removed her hand. Hartzell insisted to

Ysaguirre that she never grabbed Divijak’s wrist.

Ysaguirre advised Hartzell about the procedures for

investigating “an assault” involving a teacher. He told her

that she was “trespassed from” the entire school property and

that, while her children could continue to attend Dove

Mountain, Hartzell could not enter school property and

would have to arrange for someone else to drop off and pick

up her children. Ysaguirre explained that Hartzell could be

arrested for trespassing if she returned. Ysaguirre told

Hartzell that the order would remain in effect until the

District decided otherwise.

In an incident report, Ysaguirre wrote that “he was

advised that the school want[ed Hartzell] trespassed from the

property.” In an e-mail, Greg Roehm, the District’s Safety

and Security Coordinator, stated that he met with Ysaguirre

10 HARTZELL V. MARANA UNIFIED SCH. DIST.

who “indicated that Ms. Hartzell was given the trespass

warning at [Divijak’s] request” and that Ysaguirre said it

“remains in effect until the district advises him to revoke the

trespass alert.”

Ysaguirre next spoke to Divijak. According to

Ysaguirre, Divijak said she began to walk around Hartzell,

who allegedly yelled out “Dam[n] it,” said the conversation

was not over, and demanded that Divijak stop walking away.

Divijak said Hartzell reached out and grabbed Divijak’s left

wrist with her right hand, fully wrapping her hand around

Divijak’s wrist and holding on. Divijak told Ysaguirre that

she had to pull her arm away to release Hartzell’s grasp.

Ysaguirre did not observe marks on Divijak’s arms, and

Divijak said she did not need medical attention.

Ysaguirre reviewed the school’s security camera footage

and determined that, although the actual grab was not seen

on the video, Divijak’s reaction to the contact was more

consistent with her own description of the incident. That

same day, Roehm reviewed the surveillance video and

reported to the District Superintendent, Doug Wilson, and

the Assistant Superintendents, Carolyn Dumler and Kristin

Reidy, that the “wrist grab is not clear.”

Ysaguirre also spoke to Paul Gute, a parent who was in

the room during the encounter between Hartzell and Divijak.

Although Gute could not see the actual physical contact,

Gute testified that Hartzell reached out and touched Divijak.

Gute also testified at trial that Hartzell touched Divijak but

did not hit or grab her. Gute further testified that Hartzell

did not hold Divijak, who pulled away quickly. Gute was

not interviewed by the District.

HARTZELL V. MARANA UNIFIED SCH. DIST. 11

III. After the Incident

Later that same day, Wilson, Dumler, Reidy, and Roehm

discussed the incident in a group text. In response to

Wilson’s request for the “back story,” Reidy described

Hartzell as “opinionated” and “not flexible at all.” Dumler

described Hartzell as “[v]ery high maintenance.” 3 Principal

Divijak’s secretary, Sarah Wilson, called Hartzell “one of

them” and indicated Hartzell had “been like this all year.”

Wilson also described one of Hartzell’s e-mails as “verbal

diarrhea.”

On February 24, 2020, Hartzell met with Superintendent

Wilson and an attorney for the District. Hartzell’s husband

and her attorney were also present. Hartzell testified that the

District said the decision to ban her from school grounds was

final and would remain in place indefinitely. Hartzell

testified that the District would not lift the ban because the

District “would have an upset assistant superintendent and

principal.” Later in the conversation, the District agreed to

permit Hartzell to enter school grounds to retrieve her

preschooler, as long as she did not speak to anyone. The

District’s attorney told Hartzell that she would receive a

letter in the mail stating the conditions of her exclusion.

Hartzell did not receive any further communications from

the District regarding the “trespass” order. In June 2023, the

District’s counsel told Hartzell that the order was lifted.

On March 30, 2020, the state filed misdemeanor assault

charges against Hartzell in Marana Municipal Court for

3

At trial, Dumler testified that high maintenance is “a term to describe

parents who are very involved and take some time, but they want the best

for their kids.” When asked if these parents “ruffle feathers within the

district,” she said “you could say that, but at the same time they are

parents that add a lot, so we work with them.”

12 HARTZELL V. MARANA UNIFIED SCH. DIST.

“knowingly touching another person with the intent to

injury, insult of provoke such person,” in violation of Ariz.

Rev. Stat. § 13-1203(A)(3). At the request of the town

prosecutor, the charges were dismissed on September 22,

2020.

IV. District Policy KFA

Hartzell contends that the District’s exclusion order was

issued pursuant to a District policy. Specifically, Hartzell

relies on the policy regarding public conduct on school

property, District Policy KFA, which prohibits “[a]ny

conduct intended to obstruct, disrupt, or interfere with” a

school’s operations, “[p]hysical or verbal abuse or threat of

harm to any person on property owned or controlled by the

District,” and “[u]se of speech or language that is offensive

or inappropriate to the limited forum of the public school

educational environment.” The policy provides that “[a]ny

member of the general public considered by the

Superintendent, or a person authorized by the

Superintendent, to be in violation of these rules shall be

instructed to leave the property of the District,” and that

“[f]ailure to obey the instruction may subject the person to

criminal proceedings pursuant to A.R.S. 13-2911 [for

trespassing.]” 4

4

The cited statute provides that “[t]he chief administrative officer of an

educational institution or an officer or employee designated by the chief

administrative officer to maintain order may order a person to leave the

property of the educational institution if the officer or employee has

reasonable grounds to believe either that: 1. Any person or persons are

committing any act that interferes with or disrupts the lawful use of the

property by others at the educational institution [or] 2. Any person has

entered on the property of an educational institution for the purpose of

HARTZELL V. MARANA UNIFIED SCH. DIST. 13

At trial, Assistant Superintendent Dumler was asked if

the District’s policies allowed a person to be banned from

schools based on their speech. Dumler responded as

follows:

Q. In fact, does one of the [D]istrict’s own

policies allow someone to be banned due to

speech?

A. Yes, it does. Well, not due to speech.

Well, due to offensive or belligerent or

disorderly conduct. There’s a couple of

different phrases in the policy.

Q. The kind of offensive speech that’s in the

ear of the hearer, like you said earlier, right?

A. I would – I would say that before the

district would ban someone, we would

probably consult our legal counsel. That

would be our typical practice. We have

banned someone because of aggressive,

belligerent, obnoxious cursing and swearing

at referees and coaches and things like that.

So it can be – there are times when it can be

done.

Q. And that case you’re talking about, about

a parent being temporarily trespassed from a

sporting event for being belligerent and

swearing and cursing and going on and on, is

committing any act that interferes with or disrupts the lawful use of the

property by others at the educational institution.” Ariz. Rev. Stat. Ann.

§ 13-2911(C). It also punishes “[i]ntentionally or knowingly refusing to

obey a lawful order given pursuant to subsection C of this section.” Id.

§ 13-2911(A)(3).

14 HARTZELL V. MARANA UNIFIED SCH. DIST.

that anything like what Professor Hartzell

was doing?

A. Well, it’s different. And part of what

makes it different is that law enforcement

was involved in this one. So because there

was an ongoing law enforcement

investigation, we probably did not do all of

the things in the same order or the same way

that we normally would. Typically, it just is

a principal who brings a situation to us, and

then we consult legal counsel.

V. The Allegedly Defamatory Documents

In October 2020, Hartzell’s supervisor at the University

of Arizona advised her that a document “regarding [Hartzell]

was delivered to her department.” This document was a

printout of the docket from the criminal case brought against

Hartzell. In the upper right-hand corner of the copy of the

docket sheet, there was a typed note reading: “This occurred

at a K-8 school in front of young children. Doesn’t seem

like this is the kind of person that should be training teachers

let alone working with kids.”

In April 2021, someone also sent an unsigned note to the

Compliance Office at Hartzell’s employer. The note read as

follows:

Please be advised that your professor,

Rebecca I. Hartzell has, for at least the last

two (2) years, been using her University of

Arizona email account to harass, bully,

intimidate and threaten people.

A full audit of her account will verify these

accusations.

HARTZELL V. MARANA UNIFIED SCH. DIST. 15

Additionally, I have great concern about her

mental health.

I send this without signature for fear of

retribution but hope you will take this matter

seriously.

The district court assumed without deciding there was

sufficient circumstantial evidence Divijak sent both

documents. Divijak does not challenge that assumption on

appeal and instead argues that the district court correctly

concluded that the statements were not defamatory.

VI. Procedural History

On February 4, 2021, Hartzell sued the District and

Divijak. 5 As relevant here, Hartzell brought a First

Amendment retaliation claim against both the District and

Divijak, a procedural due process claim against the District,

and a defamation claim against Divijak. After the close of

discovery, the district court granted partial summary

judgment against Hartzell. Three parts of that decision are

relevant. First, the district court granted summary judgment

on the procedural due process claim against the District

because Hartzell did not have a constitutionally protected

liberty interest in accessing school property. The district

court considered only Hartzell’s Fourteenth Amendment

right to direct the education of her children in determining

whether Hartzell had a protected liberty interest because the

relevant portion of Hartzell’s First Amended Complaint

cited only that right. Second, the district court concluded

that Divijak was entitled to qualified immunity on the First

5

Hartzell also sued Divijak’s husband, Joseph Divijak, solely “for

collection and judgment enforcement purposes” against their marital

community.

16 HARTZELL V. MARANA UNIFIED SCH. DIST.

Amendment retaliation claim because Divijak did not have

adequate notice that her conduct violated a clearly

established right. Third, the district court granted partial

summary judgment in favor of Divijak on the defamation

claim, concluding that the statements in the two documents

sent to Hartzell’s employer were substantially true or

unactionable. The district court allowed the defamation

claim to proceed based on certain oral statements made by

Divijak.

After losing her procedural due process claim, Hartzell

sought to amend her pleadings to state that this claim also

arose out of the First Amendment. The district court denied

Hartzell’s request for leave to amend.

At trial, the district court precluded questioning or

argument regarding Hartzell’s theory that the District was

liable for the violation of her First Amendment rights under

Monell v. Department of Social Services, 436 U.S. 658

(1978), using a “final policymaker” theory. The district

court reasoned that, even if this theory had been adequately

pled, it was not contained in the joint proposed pretrial order.

That order only identified “[w]hether the District has a

custom, policy, or practice which was the moving force

behind the alleged First Amendment retaliation” as a

contested issue of fact and law.

At the close of Hartzell’s case in chief, the Appellees

moved for judgment as a matter of law pursuant to Fed. R.

Civ. P. 50(a). The district court granted the motion on

Hartzell’s First Amendment retaliation claim against the

District. As a result, only Hartzell’s defamation claim

against Divijak was submitted to the jury. The jury found in

Divijak’s favor.

HARTZELL V. MARANA UNIFIED SCH. DIST. 17

Hartzell now appeals (i) the grant of the District’s

motion for judgment as a matter of law with respect to the

First Amendment claim against the District; (ii) the

exclusion of her “final policymaker” theory; (iii) the grant of

Divijak’s motion for summary judgment with respect to the

First Amendment claim against Divijak; (iv) the grant of

summary judgment with respect to her due-process claim

(and the related denial of her motion for leave to amend);

and (v) the exclusion of certain of her defamation theories at

the summary-judgment stage.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291.

“We review a district court’s grant of summary judgment

de novo.” Berry v. Valence Tech., Inc., 175 F.3d 699, 703

(9th Cir. 1999). We “[v]iew[] the evidence in the light most

favorable to the nonmoving party and draw all inferences in

its favor[.]” Id. Summary judgment is only appropriate “if

the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

Similarly, “[w]e review de novo an order granting or

denying judgment as a matter of law” pursuant to Fed. R.

Civ. P. 50(a). Quicksilver, Inc v. Kymsta Corp., 466 F.3d

749, 755 (9th Cir. 2006) (quoting Lawson v. Umatilla

County, 139 F.3d 690, 692 (9th Cir. 1998)). “Judgment as a

matter of law is proper when the evidence permits a

reasonable jury to reach only one conclusion.” Id. (quoting

same). As in the summary-judgment context, “we must

consider all the evidence and all reasonable inferences drawn

from the evidence in a light most favorable to” the non-

moving party. Id. (quoting Janich Bros., Inc. v. Am.

Distilling Co., 570 F.2d 848, 853 (9th Cir. 1977)).

18 HARTZELL V. MARANA UNIFIED SCH. DIST.

“The district court’s alleged evidentiary errors are

reviewed for abuse of discretion.” Geurin v. Winston Indus.,

Inc., 316 F.3d 879, 882 (9th Cir. 2002).

“The district court’s denial of leave to amend the

complaint is reviewed for an abuse of discretion.” Cervantes

v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th

Cir. 2011).

ANALYSIS

I. First Amendment Retaliation Claim Against the

District

“A government entity may not be held liable under 42

U.S.C. § 1983, unless a policy, practice, or custom of the

entity can be shown to be a moving force behind a violation

of constitutional rights.” Dougherty v. City of Covina, 654

F.3d 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at

694). “In particular, . . . a municipality cannot be held liable

solely because it employs a tortfeasor—or, in other words, a

municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Monell, 436 U.S. at 691.

We have identified “three ways” in which “[a] plaintiff

can satisfy Monell’s policy requirement.” Gordon v. County

of Orange, 6 F.4th 961, 973 (9th Cir. 2021). “First, a local

government may be held liable when it acts ‘pursuant to an

expressly adopted official policy.’” Id. (quoting Thomas v.

County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014)

(per curiam)). “Second, a public entity may be held liable

for a ‘longstanding practice or custom.’” Id. (quoting same).

“Third, ‘a local government may be held liable under

[Section] 1983 when “the individual who committed the

constitutional tort was an official with final policy-making

authority” or such an official “ratified a subordinate’s

HARTZELL V. MARANA UNIFIED SCH. DIST. 19

unconstitutional decision or action and the basis for it.”’” Id.

(alteration in original) (quoting Clouthier v. County of

Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010),

overruled on other grounds by Castro v. County of Los

Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc)).

A. The “Final Policymaker” Theory

The district court did not abuse its discretion in

excluding Hartzell’s attempt to prove her Monell claim using

the “final policymaker” theory.

The district court excluded this theory because Hartzell

failed adequately to identify it in the joint pretrial statement. 6

“[P]arties have a duty to advance any and all theories in the

pretrial order[] . . . .” El-Hakem v. BJY Inc., 415 F.3d 1068,

1077 (9th Cir. 2005). “Accordingly, a party may not ‘offer

evidence or advance theories at the trial which are not

included in the order or which contradict its terms.’” Id.

(quoting United States v. First Nat’l Bank of Circle, 652 F.2d

882, 886 (9th Cir. 1981)). “A pretrial order, however, should

be liberally construed to permit any issues at trial that are

‘embraced within its language.’” Miller v. Safeco Title Ins.

Co., 758 F.2d 364, 368 (9th Cir. 1985) (quoting Circle, 652

F.2d at 886). Even so, “particular evidence or theories which

are not at least implicitly included in the order are barred.”

Circle, 652 F.2d at 886.

The “final policymaker” theory is a separate legal theory;

the district court did not abuse its discretion by precluding

that theory at trial. We have repeatedly identified the

methods for proving Monell liability as separate legal

theories. See, e.g., Bell v. Williams, 108 F.4th 809, 818 (9th

6

It is therefore unnecessary for us to address whether Hartzell also

needed to move to amend her pleadings to present this theory.

20 HARTZELL V. MARANA UNIFIED SCH. DIST.

Cir. 2024) (referring to the plaintiff’s three “Monell theories

of liability”); Benavidez v. County of San Diego, 993 F.3d

1134, 1154 (9th Cir. 2021) (rejecting “[e]ach of the

[plaintiffs’] three Monell theories”). We have treated the

“final policymaker” theory as a separate theory from the

“policy, practice, or custom” theory. Pasadena Republican

Club v. W. Just. Ctr., 985 F.3d 1161, 1172 (9th Cir. 2021)

(noting “the constitutional violation must be caused by a

‘policy, practice, or custom,’ or be ordered by a policy-

making official”).

In addition, the “final policymaker” theory requires

proof that differs significantly from the other two Monell

theories. See Lytle v. Carl, 382 F.3d 978, 982–83 (9th Cir.

2004) (discussing how this court determines whether an

employee is a “final policymaker”). Among other things, the

“final policymaker” focuses on a specific person or persons,

their authority, their knowledge, and what they said and did

on a specific occasion to ratify a specific decision. See, e.g.,

Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999)

(reviewing the actions and state of mind of the

policymakers). The other Monell theories focus on the

municipality’s policies, customs, or practices for a class of

situations. See, e.g., Castro, 833 F.3d at 1075–76 (reviewing

what precautions the entity defendants had taken for all

prisoners detained in the police station’s “sobering cell”).

Once a “final policymaker” theory is added, the final

policymaker becomes a new central character whose

presence significantly affects the scope of the claim. When

a plaintiff fails to disclose that the assertion of Monell

liability is based on a “final policymaker” theory of liability,

“the objectives of the pretrial conference to simplify issues

and avoid unnecessary proof by obtaining admissions of fact

HARTZELL V. MARANA UNIFIED SCH. DIST. 21

will be jeopardized if not entirely nullified.” Circle, 652

F.2d at 886.

The district court did not abuse its discretion in finding

Hartzell had not adequately disclosed a “final policymaker”

theory. In the joint proposed pretrial order that was later

adopted as the final pretrial order, Hartzell identified

“[w]hether the District has a custom, policy, or practice

which was the moving force behind the alleged First

Amendment retaliation” as a contested issue of fact in the

proposed pretrial order. Hartzell did not, however, identify

as a contested issue whether a district employee, such as

Superintendent Wilson, was a final policymaker or whether

a final policymaker had ratified Divijak’s decision or action.

The district court reasonably understood the phrase “custom,

policy, or practice” to invoke the first and second theories

enumerated in Gordon, those based on an expressly adopted

official policy or a longstanding practice or custom.

As Hartzell argues, the word “policy,” and other phrases

containing that word, are sometimes used to encompass all

the methods for proving Monell liability. See, e.g., Bidwell

v. County of San Diego, No. 22-55680, 2023 WL 7381462,

at *2 (9th Cir. Nov. 8, 2023) (“A policy may consist of an

expressly adopted municipal policy, a longstanding practice

or custom, or an action taken or ratified by an official with

final policymaking authority”). While Hartzell is correct,

the authority upon which she relies clarifies that there are

three ways in which a plaintiff can satisfy the “policy”

element and, again, treats “final policy-making authority” as

a separate theory. Gordon v. County of Orange, 6 F.4th 961,

973–74 (9th Cir. 2021); see Scanlon v. County of Los

Angeles, 92 F.4th 781, 811–12 (9th Cir. 2024) (identifying

“three ways a plaintiff can satisfy Monell’s policy

requirement”).

22 HARTZELL V. MARANA UNIFIED SCH. DIST.

Hartzell further argues that the word “policy” is

contained in the phrase “final policymaker,” but this is not

persuasive. The use of the word “policy” does not implicitly

include all the legal theories that also include the word

“policy.” In the pretrial order, Hartzell described the

contested issue as “whether the District has a custom, policy,

or practice which was the moving force behind the alleged

First Amendment retaliation.” The placement of “has a”

before “custom, policy, or practice,” supports the district

court’s conclusion that Hartzell was proceeding under the

first two theories of Monell liability, as opposed to asserting

that a specific person was a “final policymaker.” Moreover,

Hartzell used “policy” as an alternative to “custom” and

“practice,” which suggests that she was using “policy” in its

narrower sense rather than to refer to the “final policymaker”

theory of proving Monell liability. Based on these

circumstances, and given the district court’s familiarity with

the parties’ positions and the case’s history, the district

court’s understanding of Hartzell’s position does not reflect

an abuse of discretion.

Hartzell objects that the District and Divijak were

permitted to pursue legal theories relating to the timeliness

of Hartzell’s claims that were not disclosed in the joint

pretrial proposed order. Hartzell has not appealed these

decisions. Even if she had, the district court did not abuse

its discretion in permitting these arguments. These theories

were discussed extensively in the district court’s summary

judgment order, so any risk of prejudice and surprise was

limited.

In her reply brief, Hartzell argues for the first time that

she timely disclosed a “final policymaker” theory in her trial

brief. This argument fails for two reasons. First, Hartzell

forfeited it by failing to raise it in her opening brief. See

HARTZELL V. MARANA UNIFIED SCH. DIST. 23

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We

review only issues which are argued specifically and

distinctly in a party’s opening brief.”). Second, Hartzell’s

later disclosures did not cure her breach of the “duty to

advance any and all theories in the pretrial order[.]” El-

Hakem, 415 F.3d at 1077.

B. The “Policy” Theory and District Policy KFA

Notwithstanding the district court’s reasonable decision

to exclude evidence of the “final policymaker” theory, we

conclude that its overall resolution of the First Amendment

retaliation claim against the District was erroneous.

Specifically, the district court erred in granting the District’s

Rule 50(a) motion with respect to the First Amendment

claim because a reasonable jury could have concluded that

Hartzell was unconstitutionally banned based on official

District policy. The provision of Policy KFA banning

“speech . . . that is offensive or inappropriate” would be

unconstitutional if applied to ban Hartzell for criticizing

Divijak. And Hartzell presented sufficient evidence for a

reasonable jury to conclude that the District relied on this

policy, rather than Hartzell’s alleged assault on Divijak, to

ban Hartzell from the Dove Mountain school premises.

1. Constitutionality of Policy KFA

The District contends that Policy KFA is constitutional

because it prohibits only “interference with or disruption of

an educational institution.” On its own, there would be little

doubt that this prohibition is constitutional. However, this

sentence does not stand alone; instead, Policy KFA provides

an expansive definition of “interference with” and

“disruption of” that forms the basis of Hartzell’s

constitutional challenge. Policy KFA defines “interfer[ing]

with or disrupt[ing]” an educational institution to include,

24 HARTZELL V. MARANA UNIFIED SCH. DIST.

among other things, “[u]se of speech or language that is

offensive or inappropriate to the limited forum of the public

school educational environment.” “If there is a bedrock

principle underlying the First Amendment, it is that the

government may not prohibit the expression of an idea

simply because society finds the idea itself offensive or

disagreeable.” Snyder v. Phelps, 562 U.S. 443, 458 (2011)

(quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)).

Because Policy KFA allows the District to prohibit speech

that it finds “offensive or inappropriate,” it runs afoul of this

principle. See id.

The District defends Policy KFA by arguing that schools

nevertheless have substantial authority to regulate speech on

school grounds. It is certainly true that “courts must apply

the First Amendment ‘in light of the special characteristics

of the school environment.’” Mahanoy Area Sch. Dist. v.

B.L. ex rel. Levy, 594 U.S. 180, 187 (2021) (quoting

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266

(1988)). Even so, for “school officials to justify prohibition

of a particular expression of opinion, [they] must be able to

show that [their] action was caused by something more than

a mere desire to avoid the discomfort and unpleasantness

that always accompany an unpopular viewpoint.” Tinker v.

Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509

(1969). “Certainly where there is no finding and no showing

that engaging in the forbidden conduct would ‘materially

and substantially interfere with the requirements of

appropriate discipline in the operation of the school,’ the

prohibition cannot be sustained.” Id. (quoting Burnside v.

Byars, 363 F.2d 744, 749 (5th Cir. 1966)); accord id. at 513

(using the equivalent phrase “materially disrupts classwork

or involves substantial disorder or invasion of the rights of

others”).

HARTZELL V. MARANA UNIFIED SCH. DIST. 25

Here, the District has failed to make this showing. First,

Hartzell proffered testimony that she did not grab Divijak’s

arm, but merely accidentally touched Divijak’s arm as she

walked by. A reasonable jury could infer from this

testimony that Hartzell was banned for her speech during her

encounter with Divijak as opposed to any physical contact.

“‘[P]ure speech’ . . . is entitled to comprehensive protection

under the First Amendment.” Tinker, 393 U.S. at 505–06.

Second, the District’s interest in disciplining and

protecting students was not in play. The speaker was a

parent rather than a student, the parent was speaking to

another adult, and the only child within earshot was the

speaker’s own. On these facts, the District does not have a

special interest in regulating speech because it is not

standing “in the place of parents,” as sometimes occurs when

regulating student speech. Mahanoy, 594 U.S. at 187.

Third, to be sure, schools have “an interest in protecting

minors from exposure to vulgar and offensive spoken

language.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S.

675, 684 (1986). But although Hartzell’s speech was critical

and sarcastic, it was not vulgar or lewd like the speech

described in Bethel. See id. at 678 (use “of an elaborate,

graphic, and explicit sexual metaphor” during school

assembly). Bethel also recognized a school’s interest in

“prohibit[ing] the use of vulgar and offensive terms in public

discourse.” See id. at 683. However, unlike a “school

assembly or a classroom” with an “unsuspecting audience of

. . . students,” id. at 685, the need to teach students the

“appropriate form of civil discourse” does not arise when the

speech at issue is made by a parent to an administrator

outside of the presence of students except for the parent’s

child. Id. at 683, 685.

26 HARTZELL V. MARANA UNIFIED SCH. DIST.

The Supreme Court has identified a few other categories

of speech that schools have a special interest in regulating,

but Hartzell’s speech fits none of them. See Mahanoy, 594

U.S. at 187–88 (identifying properly regulated categories of

speech, including speech promoting illegal conduct and

speech others may reasonably perceive as being endorsed by

the school).

Finally, although Hartzell’s speech occurred on school

property, Hartzell had been invited to attend the

presentations of her children, and Divijak had been speaking

with other parents. In that context, it was not disruptive or

intrusive for Hartzell to approach Divijak and express

concerns related to her children’s education.

The District cannot constitutionally prohibit all speech

on school property that it finds “offensive or inappropriate.”

Nor can the District prohibit that speech simply by defining

it as disruptive or intrusive. Clearly, the District can prohibit

offensive or inappropriate speech if it “materially and

substantially interfere[s] with the requirements of

appropriate discipline in the operation of the school[.]”

Tinker, 393 U.S. at 509 (quoting Burnside, 363 F.2d at 749).

Although “undifferentiated fear or apprehension of

disturbance is not enough to overcome the right to freedom

of expression,” “facts which might reasonably have led

school authorities to forecast substantial disruption of or

material interference with school activities” could be

different. Id. at 508, 514. Such facts are not present here.

As a result, the provision of Policy KFA barring “speech

. . . that is offensive or inappropriate” is unconstitutional if

the District applied it to ban Hartzell because of her criticism

of Divijak.

HARTZELL V. MARANA UNIFIED SCH. DIST. 27

2. Whether Hartzell was Banned Pursuant to

Policy KFA

At trial, the parties presented conflicting testimony and

theories to establish the reason Hartzell was banned from

Dove Mountain. Based on this conflicting evidence, a

reasonable jury could credit the evidence that Hartzell was

banned because she intentionally touched or grabbed

Divijak. A jury could also credit the testimony that the

District did not rely on Policy KFA in banning Hartzell and

that Divijak did not have authority under Policy KFA to ban

Hartzell from Dove Mountain. But this disputed testimony

presents a factual question, and “[a] question of fact may be

resolved as a matter of law” only if “reasonable minds

cannot differ and the evidence permits only one conclusion.”

Quicksilver, 466 F.3d at 759.

Hartzell presented evidence from which a reasonable

jury could infer that (1) Policy KFA allowed the District to

ban those whose speech the District deemed offensive or

inappropriate, (2) Divijak found Hartzell’s advocacy

offensive, and (3) she was banned after criticizing Divijak.

Thus, as we explain next, Hartzell presented sufficient

evidence from which the jury could have concluded that the

District banned her for offensive or inappropriate speech

pursuant to an official policy in violation of the First

Amendment.

We first consider whether Hartzell presented sufficient

evidence from which the jury could infer that District policy

allowed Divijak or other District employees to ban parents

from school premises for offensive speech. The most

significant evidence on this point is Policy KFA, which

expressly prohibits “speech or language that is offensive or

inappropriate to the limited forum of the public school

28 HARTZELL V. MARANA UNIFIED SCH. DIST.

educational environment.” Addressing this policy, Assistant

Superintendent Dumler testified, albeit equivocally, that

parents could be banned from school premises because of

offensive or inappropriate speech. When asked whether the

District had a policy of “allow[ing] for someone to be

banned due to speech,” she responded, “[y]es,” but then

immediately stated “not due to speech,” but “due to

offensive or belligerent or disorderly conduct. There’s a

couple of different phrases in the policy.” She then provided

one example of the District banning someone “because of

aggressive, belligerent, obnoxious cursing and swearing at

referees and coaches” at a sporting event. She testified that

in her 20 years working in the District’s administration, this

was the only incident in which a parent was trespassed from

any district property. 7 However, the evidence must be

viewed in the light most favorable to Hartzell, and a

reasonable jury could find that Policy KFA authorized the

ban Divijak imposed here.

Next, a jury could infer that Divijak found Hartzell’s

criticisms offensive from the facts of the February 7, 2020

incident. Hartzell sarcastically thanked Divijak for “making

[her] choose which kid [she was] going to support again

today[,]” and a reasonable jury could find that Divijak would

be offended by this statement. Divijak’s reaction to

Hartzell’s speech would also support a jury finding that she

was offended. For example, Divijak walked away from

Hartzell while Hartzell was still speaking, and Divijak

7

Although Dumler did not refer to the policy that she was discussing as

the Policy KFA, her description of that policy as including “a couple of

different phrases” and as including the word “offensive” tracks with the

language of the Policy KFA. Therefore, a reasonable jury could infer

that Dumler’s testimony referred to Policy KFA.

HARTZELL V. MARANA UNIFIED SCH. DIST. 29

shouted at Hartzell after Hartzell touched her arm. 8 And

after the incident, Divijak was “crying,” she requested that

Ysaguirre give Hartzell a trespass warning, and she told him

that she wanted to press charges against Hartzell.

Finally, Hartzell was banned a short time after the

encounter with Divijak. Because a reasonable jury could

find that Policy KFA authorized Divijak to ban parents

whose speech she found offensive and that Hartzell was

banned almost immediately after saying things Divijak could

reasonably find offensive, a reasonable jury could also find

that Policy KFA was a moving force behind the ban on

Hartzell.

Our opinion in Eagle Point Education Ass’n/SOBC/OEA

v. Jackson County School District No. 9, 880 F.3d 1097 (9th

Cir. 2018), further supports Hartzell’s theory of the District’s

Monell liability based on an official policy. In that case, a

school district adopted policies in anticipation of a teacher’s

strike that prohibited, among other things, signs and banners

at any district facilities without the approval of the district

superintendent. Id. at 1100. A student filed suit against the

district, alleging violations of the First Amendment, after a

district security guard prohibited her from parking her car in

a school lot with a sign in the back windshield stating that

she supported the teachers. Id. at 1101. The school district

argued “that [a] restriction imposed on [a student’s speech]

was not an application of the District[’s] policies.” Id. at

1107. “Specifically, it contend[ed] that [the student] was a

victim of [a] security guard’s own decision, not [the

challenged policy].” Id. We rejected that argument because

8

Of course, Divijak’s position is that Hartzell grabbed her wrist.

However, Hartzell denies this, and the evidence at this stage of the

litigation must be viewed in the light most favorable to Hartzell.

30 HARTZELL V. MARANA UNIFIED SCH. DIST.

the security guard’s action “was by no means an implausible

interpretation” of the relevant policy. “Moreover, at the time

of the incident, the high school’s assistant principal did not

tell [the student] that the guard had made a mistake.” Id. at

1107–08. Instead, the assistant principal said the student’s

conduct was “forbidden.” Id. at 1108. 9 We found there was

“no suggestion that the security officer would have taken any

action but for the adoption and enforcement of the policies,”

and we affirmed a grant of summary judgment in the

plaintiff’s favor. Id. at 1107.

Here, Hartzell contends she was banned pursuant to a

District policy prohibiting “offensive speech,” while the

District denies that Hartzell was banned based on her speech

and instead contends that Hartzell was banned for her

conduct, alleging that she assaulted Divijak. As explained

above, a reasonable jury could conclude that Policy KFA

allows members of the public to be banned from schools for

offensive or inappropriate speech, Hartzell’s speech could be

viewed as offensive or inappropriate, and Hartzell was

banned. Moreover, a reasonable jury could conclude that

Divijak relied on Policy KFA to ban Hartzell, and Divijak’s

conduct in banning Hartzell would not have been an

“implausible interpretation” of the policy. See id. at 1107–

08. And like the assistant principal in Eagle Point, here the

superintendent did not revoke the ban as a mistake or suggest

that Divijak lacked authority to ban Hartzell. Instead, the

superintendent stated that the ban “would remain

indefinitely and that the decision was final.”

9

The record in Eagle Point did not indicate that the assistant principal or

the security guard invoked the policy challenged by the plaintiff. See id.

at 1101.

HARTZELL V. MARANA UNIFIED SCH. DIST. 31

The District’s arguments that the district court properly

granted its Rule 50 motion are not persuasive: they are based

on disputed facts, and from these facts a reasonable jury

could find that Hartzell was banned pursuant to official

District policy. First, although Dumler testified that Divijak

had no authority to ban anyone under Policy KFA, a jury

could reject this testimony. Moreover, the course of events

in this case could support a finding that Divijak had the

authority to ban Hartzell. Specifically, there was evidence

that Divijak requested the trespass order, and as previously

discussed, the District Superintendent did not revoke the ban

but instead confirmed that it would remain in effect.

Second, the District argues that Hartzell denied violating

the policy and thus could not have been ejected pursuant to

it. This argument fails because the District could have

banned Hartzell pursuant to Policy KFA for “offensive

speech,” even though Hartzell denied that she violated the

policy. Indeed, Hartzell testified that she believed that she

did not violate Policy KFA but was excluded because the

District decided she had violated it.

Third, the District argues that various witnesses testified

that it did not rely on Policy KFA to ban Hartzell. A jury

could credit this testimony and reject Hartzell’s claims, but

because all reasonable inferences must presently be drawn

in Hartzell’s favor, this argument does not entitle the District

to judgment as a matter of law. There is sufficient evidence

in the record to permit a reasonable jury to find that Hartzell

was banned pursuant to Policy KFA.

Accordingly, the district court erred in granting

judgment as a matter of law to the District on Hartzell’s First

Amendment claim because a reasonable jury could conclude

that Hartzell was banned pursuant to the District’s

32 HARTZELL V. MARANA UNIFIED SCH. DIST.

“expressly adopted official policy.” Gordon, 6 F.4th at 973

(quoting Monell, 436 U.S. at 694).

C. The “Custom and Practice” Theory

Turning to Hartzell’s “custom and practice” theory of

Monell liability, she argues that, even if the evidence she

presented at trial was not sufficient, that was because she

relied on the district court’s statement that she had already

established liability under this theory.

At trial, the District objected to the relevance of

questions by Hartzell’s counsel about whether there was a

practice of retaliation for speech in the District. Hartzell’s

counsel explained that the purpose of his questioning was “to

show that there’s a custom within the district of similar

retaliatory conduct.” The district court responded that

Hartzell had “established that” but the current question

sought “basically an admission by the [testifying witness]

that there is a custom or practice.”

Although the district court’s response lacked precision,

read in context, it is clear that the district court was

acknowledging that Hartzell had established why a custom

of retaliatory conduct would be relevant, not that Hartzell

had established that this custom existed. Indeed, the

following day, Hartzell’s counsel argued that the district

court had ruled that he had established a custom of retaliation

and so counsel concluded that he did not need “to keep

pushing this anymore.” The district court clearly rejected

counsel’s characterization of its ruling sustaining the

relevance objection, stating “You misunderstand my

comments, Counsel. I didn’t say you’d established custom,

policy or practice. That’s what the whole case is about,

basically. If I had done that, I guess I could have done a

directed verdict in your favor.”

HARTZELL V. MARANA UNIFIED SCH. DIST. 33

Moreover, even if the district court had expressed the

latter belief, nothing barred the district court from

reconsidering its conclusion. “As long as a district court has

jurisdiction over the case, then it possesses the inherent

procedural power to reconsider, rescind, or modify an

interlocutory order for cause seen by it to be sufficient.” City

of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882,

889 (9th Cir. 2001) (quoting Melancon v. Texaco, Inc., 659

F.2d 551, 553 (5th Cir. Oct. Unit A 1981)). Accordingly,

the district court was not bound by any mid-trial

determination about the sufficiency of Hartzell’s evidence.

In her reply brief, Hartzell also argues that she offered

sufficient evidence of a custom of retaliation because there

were several instances when Hartzell or others had been

banned for their protected speech. However, Hartzell’s

opening brief argues that the Rule 50(a) motion was

improperly granted as to the custom theory only because of

the district court’s statements. Hartzell thus forfeited this

argument. Miller v. City of Scottsdale, 88 F.4th 800, 805 n.4

(9th Cir. 2023).

II. First Amendment Claim Against Divijak

The district court did not err in concluding that Divijak

was entitled to qualified immunity on Hartzell’s First

Amendment retaliation claim.

“Qualified immunity shields government actors from

civil liability under 42 U.S.C. § 1983 if ‘their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’”

Castro v. County of Los Angeles, 833 F.3d 1060, 1066 (9th

Cir. 2016) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). “To determine whether [a government

actor] is entitled to qualified immunity, a court must evaluate

34 HARTZELL V. MARANA UNIFIED SCH. DIST.

two independent questions: (1) whether the [government

actor’s] conduct violated a constitutional right, and

(2) whether that right was clearly established at the time of

the incident.” Id. As already noted, a reasonable jury could

determine that Divijak banned Hartzell in violation of a

constitutional right. The question is whether that right was

clearly established.

A right is clearly established “when, at the time of the

challenged conduct, the contours of the right are sufficiently

clear that every reasonable official would have understood

that what he is doing violates that right.” Ashcroft v. al-Kidd,

563 U.S. 731, 742 (2011) (cleaned up) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). “Although the

Supreme Court ‘does not require a case directly on point for

a right to be clearly established, existing precedent must

have placed the statutory or constitutional question beyond

debate.’” Evans v. Skolnik, 997 F.3d 1060, 1066 (9th Cir.

2021) (quoting Kisela v. Hughes, 584 U.S. 100, 104 (2018)).

The question is beyond debate when “there are ‘cases of

controlling authority’ in the plaintiff[’s] jurisdiction at the

time of the incident ‘which clearly established the rule on

which [she] seek[s] to rely,’ or ‘a consensus of cases of

persuasive authority such that a reasonable officer could not

have believed that his actions were lawful.’” Id. (quoting

Wilson v. Layne, 526 U.S. 603, 617 (1999)).

“The Supreme Court has ‘repeatedly told courts—and

the Ninth Circuit in particular—not to define clearly

established law at a high level of generality.’” Id. at 1067

(quoting al-Kidd, 563 U.S. at 742). In the First Amendment

context, “the right in question is not the general right to be

free from retaliation for one’s speech, but the more specific

right to be free from” a particular type of government action.

Reichle v. Howards, 566 U.S. 658, 665 (2012) (focusing on

HARTZELL V. MARANA UNIFIED SCH. DIST. 35

the “right to be free from a retaliatory arrest that is otherwise

supported by probable cause”).

Hartzell’s reliance on O’Brien v. Welty, 818 F.3d 920

(9th Cir. 2016), is misplaced. Although we noted in O’Brien

that “[t]he constitutional right to be free from retaliation [i]s

‘clearly established[,]’” O’Brien arose at the pleading stage

before “an evidentiary record ha[d] been developed through

discovery[.]” 818 F.3d at 936 (quoting Krainski v. Nevada

ex rel. Bd. of Regents, 616 F.3d 963, 970 (9th Cir. 2010)).

Therefore, in O’Brien we decided only the narrow point that

we could not “determine, based on the complaint itself, that

qualified immunity applies.” Id. (quoting Groten v.

California, 251 F.3d 844, 851 (9th Cir. 2001)). Thus,

O’Brien’s holding does not suggest that, especially at

summary judgment, the appropriate level of analysis is the

general right to be free from retaliation. 10

Here, qualified immunity applies. “[C]ourts must apply

the First Amendment ‘in light of the special characteristics

of the school environment.’” Mahanoy, 594 U.S. at 187

(quoting Hazelwood, 484 U.S. at 266). As a result, cases

arising outside public schools are of limited use in evaluating

the scope of Hartzell’s First Amendment rights here.

Hartzell has identified one case arising in public schools,

Macias v. Filippini, Case No. 1:17-CV-1251 AWI EPG,

2018 WL 2264243 (E.D. Cal. May 17, 2018). Even

accepting that Macias is analogous, one district court case is

10

Krainski does not support Hartzell either. Krainski merely held that

“the doctrine of qualified immunity protects state actors when the

constitutional right at issue was not ‘clearly established’ at the time of

the actions at issue.” 616 F.3d at 970 (quoting Saucier v. Katz, 533 U.S.

194, 202 (2001), overruled on other grounds by Pearson v. Callahan,

555 U.S. 223, 227, 235 (2009)).

36 HARTZELL V. MARANA UNIFIED SCH. DIST.

neither a case of controlling authority nor a consensus of

cases of persuasive authority. See Evans, 997 F.3d at 1067. 11

In her reply brief, Hartzell argues that an Arizona statute

regarding misrepresentations to the police establishes that

Divijak’s conduct violated her clearly established rights and

that qualified immunity is inconsistent with the Civil Rights

Act of 1871. We do not consider these arguments because

Hartzell forfeited them by presenting them for the first time

in her reply brief. See Martinez-Serrano v. INS, 94 F.3d

1256, 1259-60 (9th Cir. 1996).

Hartzell also argues for the first time in her reply brief

that “in a sufficiently ‘obvious’ case of constitutional

misconduct, we do not require a precise factual analogue in

our judicial precedents.” See Sharp v. County of Orange,

871 F.3d 901, 911 (9th Cir. 2017). Hartzell waived this

argument twice, first by failing to raise it in her opposition

to Appellees’ motion for summary judgment and again by

failing to raise it in her opening brief here. See United States

v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994) (“Issues not

presented to the district court cannot generally be raised for

the first time on appeal.”).

For these reasons, the district court’s qualified-immunity

determination was not erroneous.

III. Procedural Due Process

“The Fourteenth Amendment protects individuals

against the deprivation of liberty or property by the

11

Hartzell does not identify any cases supporting her view that her

clearly established rights were violated other than (1) those establishing

a general right to be free from retaliation and (2) Macias v. Filippini,

Case No. 1:17-CV-1251 AWI EPG, 2018 WL 2264243 (E.D. Cal. May

17, 2018), discussed infra.

HARTZELL V. MARANA UNIFIED SCH. DIST. 37

government without due process.” Portman v. County of

Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). “A section

1983 claim based upon procedural due process thus has three

elements: (1) a liberty or property interest protected by the

Constitution; (2) a deprivation of the interest by the

government; (3) lack of process.” Id. Here, the district court

concluded that Hartzell “had no constitutional right to access

school property, [so] no procedural due process was required

before [she] was banned from the property.”

The only right Hartzell identified in her First Amended

Complaint was the “fundamental right to direct the education

of her children.” Indeed, “the ‘liberty of parents and

guardians’ includes the right ‘to direct the upbringing and

education of children under their control.’” Troxel v.

Granville, 530 U.S. 57, 65 (2000) (plurality opinion) (first

citing Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923),

and then quoting Pierce v. Soc’y of Sisters, 268 U.S. 510,

535 (1925)). This is often called the Meyer-Pierce right.

However, “once parents make the choice as to which school

their children will attend, their fundamental right to control

the education of their children is, at the least, substantially

diminished.” Fields v. Palmdale Sch. Dist., 427 F.3d 1197,

1206 (9th Cir. 2005), opinion amended on denial of reh’g

sub nom. Fields v. Palmdale Sch. Dist., 447 F.3d 1187 (9th

Cir. 2006).

Here, Hartzell was banned from accessing school

property. This does not implicate Hartzell’s right to direct

her children’s education. Instead, “what Meyer-Pierce

establishes is the right of parents to be free from state

interference with their choice of the educational forum itself,

a choice that ordinarily determines the type of education

one’s child will receive.” Id. at 1207. Because Hartzell does

not allege that her ability to send her children to the school

38 HARTZELL V. MARANA UNIFIED SCH. DIST.

of her choice was restricted, the Meyer-Pierce right does not

apply. Hartzell seeks to distinguish Fields on the grounds

that her ban extended beyond the schoolhouse itself to the

school’s parking lot and other facilities. See Fields, 427 F.3d

at 1207 (suggesting, in now-superseded language, that “the

Meyer-Pierce right does not extend beyond the threshold of

the school door”). Setting aside that the language Hartzell

relies on was superseded, Hartzell takes an overly

formalistic view of Fields. The quoted language merely

reiterates that the Meyer-Pierce right allows Hartzell to

choose what type of school her children attend.

In the alternative, Hartzell argues that her due process

claim encompassed a First Amendment theory. However,

the district court found that she did not allege a procedural

due process claim in her First Amended Complaint.

“[A]dding a new theory of liability at the summary judgment

stage would prejudice the defendant who faces different

burdens and defenses under [the new] theory of liability.”

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir.

2000). Accordingly, “[a]fter having focused on [one theory]

in their complaint and during discovery, [plaintiffs] cannot

turn around and surprise the [defendant] at the summary

judgment stage” with a completely different theory. Id. at

1292–93. The plaintiff’s claim cannot survive when “the

complaint gave the [defendant] no notice of the specific

factual allegations presented for the first time in [the]

opposition to summary judgment.” Pickern v. Pier 1

Imports (U.S.), Inc., 457 F.3d 963, 969 (9th Cir. 2006).

The district court did not err in finding that Hartzell’s

First Amended Complaint did not adequately disclose this

theory. There, after a more thorough discussion of the right

to direct the education of her children, Hartzell alleged only

that “[t]he Due Process Clause of the Fourteenth

HARTZELL V. MARANA UNIFIED SCH. DIST. 39

Amendment prohibits the government from censoring

speech pursuant to vague standards that grant unbridled

discretion.” Although this allegation uses the phrase

“censoring speech,” it does not mention either the First

Amendment or retaliation. Also, while this allegation states

a legal principle, it does not identify which liberty or

property interest Hartzell was allegedly deprived of or what

the District did to deprive her of it. “[T]he necessary factual

averments are required with respect to each material element

of the underlying legal theory . . . .” Wasco Prods., Inc. v.

Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006)

(alteration in original) (quoting Fleming v. Lind-Waldock &

Co., 922 F.2d 20, 24 (1st Cir. 1990)). Summary judgment is

not “a procedural second chance to flesh out inadequate

pleadings.” Id. (quoting same). Finally, although the First

Amended Complaint invoked the First Amendment in a

separate § 1983 claim alleging retaliation, First Amendment

retaliation and procedural process claims involve different

burdens and defenses. Therefore, the District would have

been prejudiced if Hartzell were permitted to proceed on a

First Amendment theory that she had not pled in the

operative complaint.

The district court also did not abuse its discretion in

denying Hartzell’s motion to amend the First Amended

Complaint to add a First Amendment theory to her

procedural due process claim. The district court entered a

scheduling order with a deadline to amend the pleadings.

Hartzell filed her motion after that deadline. Accordingly,

Hartzell needed to satisfy Rule 16(b)’s “good cause”

standard to be permitted to amend. See Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604, 608–09 (9th Cir. 1992).

That standard “primarily considers the diligence of the party

seeking the amendment,” and “[i]f that party was not

40 HARTZELL V. MARANA UNIFIED SCH. DIST.

diligent, the inquiry should end.” Id. at 609. Here, Hartzell

waited more than two months after the district court’s

summary judgment ruling before moving to amend the First

Amended Complaint. The district court did not abuse its

discretion in finding that Hartzell was not diligent.

Even if Hartzell had satisfied Rule 16’s “good cause”

standard, the district court would not have abused its

discretion in concluding that prejudice to the District would

provide an independent basis for denying leave to amend.

See Coleman, 232 F.3d at 1295 (noting that “prejudice to

[the defendant], although not required under Rule 16(b),

supplies an additional reason for denying” leave to amend).

As the district court noted, granting leave to amend would

have prejudiced the District by negating its summary

judgment victory and potentially requiring another round of

summary judgment briefing.

IV. Defamation

The district court erred in granting summary judgment in

Divijak’s favor on part of Hartzell’s defamation claim. In

presenting her defamation claim, Hartzell sought to rely on

two documents allegedly sent to her employer. 12 A jury

could find one of those documents defamatory, but the

district court correctly granted summary judgment with

respect to the other document. “To support a claim for

defamation, a statement about a private figure on a matter of

private concern ‘must be false’ and must bring the subject of

12

In a footnote, the Appellees suggest that Hartzell may have failed to

preserve this ground of appeal by not seeking to admit the two documents

at trial. Because the district court ruled at summary judgment that

Hartzell could not present a defamation claim using these documents,

she was not required to seek their admission at trial to present this

argument on appeal.

HARTZELL V. MARANA UNIFIED SCH. DIST. 41

the statement ‘into disrepute, contempt, or ridicule’ or

impeach the subject’s ‘honesty, integrity, virtue, or

reputation.’” Takieh v. O’Meara, 497 P.3d 1000, 1006

(Ariz. Ct. App. 2021) (quoting Turner v. Devlin, 848 P.2d

286, 288–89 (Ariz. 1993) (in banc)).

This principle establishes two limits on defamation

claims. First, “[w]hile any disparaging statement can cause

reputational harm, a true statement cannot support a claim

for defamation.” Id. (citing Read v. Phoenix Newspapers,

Inc., 819 P.2d 939, 941 (Ariz. 1991) (in banc)).

Second, “a statement is not actionable if it is comprised

of ‘loose, figurative, or hyperbolic language’ that cannot

reasonably be interpreted as stating or implying facts

‘susceptible of being proved true or false.’” Id. (quoting

Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990)). “The key

inquiry is whether the challenged expression, however

labeled by the defendant, would reasonably appear to state

or imply assertions of objective fact,” which depends on “the

impression created by the words used as well as the general

tenor of the expression, from the point of view of a

reasonable person at the time the statement was uttered and

under the circumstances it was made.” Id. (internal

quotation marks omitted) (quoting Yetman v. English, 811

P.2d 323, 328 (Ariz. 1991) (in banc); then quoting Sign Here

Petitions LLC v. Chavez, 402 P.3d 457, 463 (Ariz. Ct. App.

2017)). “[S]tatements cast as subjective beliefs are generally

insulated from defamation liability[] . . . .” Id. However,

statements of opinion are actionable “when they imply a

false assertion of fact” or when they “may be proven false[.]”

Id. (quoting Turner, 848 P.2d at 293). They are not

actionable when they do not “present ‘the kind of empirical

question a fact-finder can resolve.’” Id. (quoting Yetman,

811 P.2d at 333).

42 HARTZELL V. MARANA UNIFIED SCH. DIST.

We begin our analysis with the first document. That

document is a printout of a docket sheet reflecting the

criminal charges brought against Hartzell after the February

7, 2020 incident. That printout says Hartzell was charged

with knowingly touching someone with intent to injure,

insult, or provoke that person. The printout contains a

typewritten note reading, “This occurred at a K-8 school in

front of young children. Doesn’t seem like this is the kind

of person that should be training teachers let alone working

with kids.”

Divijak argues that the first sentence “simply informs the

reader that the incident underlying the charged crime

occurred at [a] K-8 school.” This sentence does not

explicitly state that Hartzell had engaged in the conduct

identified in the document. However, one reasonable

inference from the phrase “this occurred” is that the

underlying event actually occurred. The printout indicates

that Hartzell was charged with a particular crime. A

reasonable person could read the note as an allegation that

Hartzell committed that crime. This reading is supported by

the rest of the sentence. If “this occurred” meant only that

the charges had been brought, it would not make sense to say

that the charges were brought at a school or that they were

brought in front of young children. A reasonable jury could

find that the author meant that the charged crime was what

had occurred. Whether Hartzell “knowingly touch[ed

Divijak with] the intent to inj[ure]/insult/provoke” is a fact

rather than an opinion, and because Hartzell has offered

testimony that this fact was false, she has created a triable

issue as to whether this document is defamatory.

The second sentence in the note, which opines that

Hartzell is not suited for training teachers, would likely not

be actionable standing alone. In context, however, that

HARTZELL V. MARANA UNIFIED SCH. DIST. 43

sentence supports the view that the note could be actionable

defamation. That sentence immediately follows, and

explains the relevance of, the statement that “this occurred.”

As a result, the writer implied that “this” was relevant to their

view of Hartzell’s fitness for her profession. False or

unfounded criminal charges would not necessarily affect

someone’s fitness as a trainer of teachers. True ones would

be far more likely to have that effect. As a result, the second

sentence suggests that a reasonable person could read this

note as claiming that the charges against Hartzell were based

on an incident that had actually occurred.

However, a reasonable jury could not find the second

document defamatory. That document is a typed, unsigned,

one-paragraph note stating that Hartzell had been using her

university email account to “harass, bully, intimidate[,] and

threaten people.” The note also states that “[a] full audit of

her account will verify these accusations. Additionally, I

have great concern about her mental health.”

We agree with Divijak and the district court that, at least

in this context, the words “harass,” “bully,” “intimidate,”

and “threaten” cannot be actionable because they “merely

describe how the author of the Second Document interpreted

Plaintiff’s communications.” Arizona courts have

considered dictionary definitions to determine whether

certain statements were actionable. See, e.g., Takieh, 497

P.3d at 1007. Each of the terms used here has at least one

definition that reflects a subjective opinion or belief rather

than an objective, provable fact. “Bully” is defined as “to

treat (someone) in a cruel, insulting, threatening, or

aggressive fashion,” or “to use language or behavior that is

cruel, insulting, threatening, or aggressive.” Bully, Merriam-

Webster.com, https://www.merriam-webster.com/

dictionary/bully [https://perma.cc/WT4N-CFRK]. “Harass”

44 HARTZELL V. MARANA UNIFIED SCH. DIST.

is defined as “to annoy persistently,” or “to create an

unpleasant or hostile situation for especially by uninvited

and unwelcome verbal or physical conduct.” Harass,

Merriam-Webster.com, https://www.merriam-webster.com/

dictionary/harass [https://perma.cc/SB59-9JM6].

“Intimidate” is defined as “to make timid or fearful[;]

frighten,” or “to compel or deter by or as if by threats.”

Intimidate, Merriam-Webster.com, https://www.merriam-

webster.com/dictionary/intimidate [https://perma.cc/DNL9-

74MH]. And “threaten” is defined as “to utter threats

against,” or “to cause to feel insecure or anxious.” Threaten,

Merriam-Webster.com, https://www.merriam-webster.com/

dictionary/threaten [https://perma.cc/S9MT-6DRF].

Nothing in the second document suggests that “bully,”

“harass,” “intimidate,” or “threaten” is being used to do

anything more than describe the author’s subjective reaction

to Hartzell’s e-mails. 13

Nor does the rest of the second document change the

result of our analysis. The statement that the author has

“great concern” about Hartzell’s mental health is entirely

subjective. Although the author indicated that their

accusations could be “verif[ied]” by reviewing Hartzell’s e-

mail account, we do not believe this statement, standing

alone, alters the typically subjective meaning of “harass,”

“bully,” “intimidate,” or “threaten.”

Accordingly, the district court’s grant of summary

judgment on Hartzell’s defamation claim is reversed, but

only to the extent that claim rests on the first document.

13

We express no view on whether these words could be actionable in

another context, such as where the plaintiff is accused of engaging in

sexual harassment or making criminal threats.

HARTZELL V. MARANA UNIFIED SCH. DIST. 45

CONCLUSION

For the foregoing reasons, we affirm the district court’s

ruling that Hartzell may not proceed on a Monell claim

against the District based on a “final policymaker” theory or

a “custom and practice” theory, that the First Amendment

retaliation claim against Divijak fails because she has

qualified immunity, and that the claim for procedural due

process fails. However, we reverse in part because the First

Amendment retaliation claim against the District is viable to

the extent it is based on District Policy KFA, and because

the defamation claim is viable to the extent it is based on one

of the documents sent to Hartzell’s employer. We remand

for retrial of the referenced defamation claim against

Divijak, and the § 1983 Monell claim against the District

based on the theory that Hartzell was banned from school

property pursuant to the District Policy KFA.

REVERSED in part, AFFIRMED in part, and

REMANDED.

Each side shall bear its own costs on appeal.