# McCutchen v. Person

> District Court, W.D. Arkansas · June 2, 2025

URL: https://www.frixlaw.com/law-library/cases/11063504

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** June 2, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

JOEY McCUTCHEN and FELIX CURRY PLAINTIFFS

v. CASE NO. 2:25-CV-2016

DALTON PERSON, Individually as President of
the Fort Smith Board of Education; and
FORT SMITH PUBLIC SCHOOL DISTRICT DEFENDANTS

OPINION AND ORDER
Plaintiff Felix Curry was employed by Defendant Fort Smith Public School District
(“the District”) as head football coach at Northside High School when, on November 22,
2024, he was informed that his contract would not be renewed. See Doc. 2, ¶ 8. A couple
of weeks later, he was further informed by the principal of Northside High School that he
was being reassigned to the student detention center. See id. at ¶ 9. Mr. Curry submitted
a request to address the School Board at its next meeting. See id. at ¶ 10. His attorney,
Plaintiff Joey McCutchen, received an email on December 11, 2024, informing him that
Mr. Curry’s request would be declined if he intended to address his employment situation,
because he was “in the process of filing a grievance, and addressing the Board in
advance would be improper.” See id. at ¶ 11. Mr. McCutchen responded by asking that
he (Mr. McCutchen) be placed on the agenda or listed as a member of the public to speak
during the public comment period. See id. at ¶ 12. The District again refused, explaining:
Joey, citizen participation is not a forum to address a personnel matter,
especially when a grievance is being submitted. The grievance will need to
proceed pursuant to District policy, with the ultimate appeal going to the
Board. Just as it would be improper for Coach Curry to usurp this process
by addressing the Board at this junction, it would be improper for his
representative to speak on his behalf. So, if your intent is to address the
Board regarding Coach Curry, or any other personnel matter, that will not
be permitted.
Id. at ¶ 13.
Five days later, during the next School Board meeting, Mr. McCutchen attempted
to address the Board during the public comment period of that meeting. See id. at ¶ 20.
The President of the School Board, Defendant Dalton Person, inquired of Mr. McCutchen
whether he was counsel for Mr. Curry. See id. After Mr. McCutchen confirmed that he
was, Mr. Person replied that Mr. McCutchen would not be permitted to speak and had Mr.
McCutchen escorted from the podium by a police officer. See id. at ¶¶ 21–22.
Mr. Curry and Mr. McCutchen filed this lawsuit against Mr. Person and the District

on February 24, 2025. Their Complaint (Doc. 2) brings two counts: one for a violation of
their First Amendment rights under the United States Constitution, and the other for a
violation of their Fourteenth Amendment rights. Mr. Person and the District have filed a
Motion to Dismiss (Doc. 9) the Complaint for failure to state a claim on which relief can
be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. That Motion has
been fully briefed, see Docs. 10, 13–15, 17, and is ripe for decision.
To survive dismissal under Rule 12(b)(6), the “complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). In ruling, the Court
must “accept as true all facts pleaded by the non-moving party and grant all reasonable

inferences from the pleadings in favor of the nonmoving party.” Gallagher v. City of
Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012) (quotation marks omitted). However, “courts
‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265,
286 (1986)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
As an initial matter, the Court notes it is very unclear what precisely is the basis for
Plaintiffs’ Fourteenth Amendment claim. The Complaint does not state, for example, that

this claim is brought under any particular clause of the Fourteenth Amendment, such as
the Due Process or Equal Protection clauses. And the discussion underneath Count 2 in
the Complaint frames this Count simply as being based on restrictions of Plaintiffs’
speech, which would seem to be more in the vein of the First Amendment than the
Fourteenth. See Doc. 2, ¶¶ 27–30. Furthermore, although Defendants’ Motion seeks
dismissal of Plaintiffs’ entire Complaint, substantively both sides’ briefing only addresses
whether a First Amendment violation has occurred. Given that “the Fourteenth
Amendment makes the First Amendment’s Free Speech Clause applicable against the
States,” Manhattan Comm. Access Corp. v. Halleck, 587 U.S. 802, 808 (2019), the Court
will assume, as the parties apparently have, that Plaintiffs’ Fourteenth Amendment claim

is redundant or derivative of their First Amendment claim, and that the two claims rise or
fall together.
The parties agree that the School Board meeting was what is referred to in First
Amendment caselaw as a “limited public forum.” A governmental entity creates a limited
public forum “by opening property limited to use by certain groups or dedicated solely to
the discussion of certain subjects.” See Christian Legal Soc. Chapter of the Univ. of Cal.,
Hastings College of the Law v. Martinez, 561 U.S. 661, 679 n.11 (2010) (quotation marks
omitted). A governmental entity may restrict speech at a limited public forum without
running afoul of the First Amendment, so long as those restrictions are “reasonable and
viewpoint-neutral.” See Powell v. Noble, 798 F.3d 690, 700 (8th Cir. 2015).
The School Board’s Governance and Operations Policy specifically addresses the
type of situation at issue in this case. It states:

District patrons wishing to have an item placed on the Board meeting’s
agenda must submit their requests, in writing to the Superintendent, at least
five (5) days prior to the meeting of the Board. . . . Such requests may be
accepted, rejected, or referred back to the individual for further clarification.
. . . No item shall be placed on the agenda that would operate to prejudice
the Board concerning a student or personnel matter that could come before
the Board for disciplinary or employment considerations or that is in conflict
with other District Policy or law. . . . During regular meetings, the Board
also may permit a total of up to fifteen (15) minutes for public comments.
Individuals desiring to address the Board during this allotted time must sign
up prior to the commencement of the meeting and provide the name of the
presenter and subject matter of the comments to be offered. . . . The Board
in its discretion may choose to lengthen the time for public comments or
eliminate public comments altogether at any meeting.

(Doc. 2, pp. 39–40) (emphasis added). The underlined portion above is critical here,
because the same Policy manual states elsewhere1 that the final step in the employee
grievance process is that an unsatisfied employee “may appeal the Superintendent’s
decision to the Board,” which “will address the grievance at the next regular meeting of
the Board” by “immediately commenc[ing] a hearing on the grievance.” See Doc. 9, pp.
7–8. That hearing “shall be open to the public unless the employee requests a private
hearing,” but at the conclusion of the hearing the Board’s deliberations must be closed if

1 Plaintiffs provided some, but not all, of the Policy manual as an exhibit to their Complaint.
See Doc. 2, pp. 17–50. Thus the Policy manual is a document that is “necessarily
embraced by the pleadings,” and the Court may consider the entire document when ruling
on the Motion to Dismiss, including the portion addressing the employee grievance
process which Defendants provided as an exhibit to their Motion. See Zean v. Fairview
Health Servs., 858 F.3d 520, 526 (8th Cir. 2017). Importantly, Plaintiffs have not disputed
the authenticity of the portion provided by Defendants, and indeed they implicitly
acknowledge its authenticity when addressing it in their Response. See Doc. 14, p. 4.
they are “deliberating the employment, appointment, promotion, demotion, disciplining, or
resignation of the employee.” See id. at 8.
In other words, Defendants’ actions in this case were a straightforward application
of the Board’s preexisting written policies. Under those policies, Mr. Curry would

eventually have the opportunity to address the Board about his employment, but only at
the final stage of his grievance process if it was not previously resolved in his favor. But
he would not be permitted to address the Board regarding this matter before that final
stage in the process because doing so could “operate to prejudice the Board concerning
a . . . personnel matter that could come before the Board for . . . employment
considerations.”
This policy is viewpoint-neutral. On its face, it applies without exception to all
personnel matters that could subsequently come before the Board for employment
consideration—not just to employees like Mr. Curry who are aggrieved by some action
the District has taken against them. And, again, even for employees who have initiated

a grievance process, the policy does eventually provide them the opportunity to speak on
the topic with the Board at a public hearing if they wish to do so—just not at the particular
time when Mr. Curry and Mr. McCutchen sought to do so here.
Plaintiffs point out that while the quoted section above prohibits this sort of matter
from being “placed on the agenda,” it technically does not contain any such prohibition
with respect to the “public comment” period. Therefore, they argue, the policy was applied
to them arbitrarily and inconsistently. The Court disagrees. Permitting an employee or
his representative to speak during the “public comment” period on a matter that is
expressly prohibited from being placed on the agenda would completely undermine the
purpose of that prohibition. Thus Defendants’ decision to prohibit Plaintiffs from
addressing the Board regarding Mr. Curry’s employment during the “public comment”
period was an application of this policy that preserved its consistency and effectuated its
purposes. As such, the restrictions that were made on Plaintiffs’ speech in this limited
public forum were not only viewpoint-neutral, but also reasonable, serving the purpose of
preserving the Board’s ability to act as a neutral decisionmaker on personnel and
employment matters that may eventually be brought before it. Accordingly, even
accepting all the allegations in the Complaint as true, no First Amendment violation
occurred here.
IT IS THEREFORE ORDERED that the Motion to Dismiss (Doc. 9) filed by
Defendants Dalton Person and the Fort Smith Public School District is GRANTED, and
Plaintiffs’ Complaint (Doc. 2) is DISMISSED WITHOUT PREJUDICE. Judgment will enter
concurrently with this Opinion and Order.
IT IS SO ORDERED on this 2nd day of June, 2025.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11063504. Public record. Not legal advice.