Corales v. Bennett

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOUISE CORALES; JAMIE SOLTERO; 

THE ESTATE OF ANTHONY J.

SOLTERO; JANE ROE, I, a minor, by

her guardian ad litem MARY ROE,

I; JANE A MINOR, BY HER

No. 07-55892

GUARDIAN AD LITEM JOHN ROE 1;

GUILLERMO PRIETO,

Plaintiffs-Appellants,

 D.C. No.

CV-06-00849-SGL

v. OPINION

GENE BENNETT; THE ONTARIO-

MONTCLAIR SCHOOL DISTRICT;

KATHLEEN KINLEY,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Stephen G. Larson, District Judge, Presiding

Argued and Submitted

October 22, 2008—Pasadena, California

Filed June 1, 2009

Before: Harry Pregerson and Cynthia Holcomb Hall,

Circuit Judges, and David Alan Ezra,* District Judge.

Opinion by Judge Hall

*The Honorable David Alan Ezra, United States District Judge for the

District of Hawaii, sitting by designation.

6455

CORALES v. BENNETT 6459

COUNSEL

R. Samuel Paz, Law Offices of R. Samuel Paz, Culver City,

California, and Sonia M. Mercado, Sonia Mercado & Asso-

ciates, Culver City, California, for the appellants.

Jacqueline DeWarr Berryessa, Law Offices of Margaret A.

Chidester & Associates, Irvine, California, for the appellees.

OPINION

HALL, Circuit Judge:

On March 28, 2006, Anthony Soltero, Annette Prieto, and

two other students walked out of De Anza Middle School

with the intent to participate in protests in their neighborhood

against then-pending immigration reform measures. Two days

later, they were disciplined for their one-day absence from

school by Vice Principal Gene Bennett (Bennett), who took

away one of their year-end activities and lectured them

harshly regarding the possible legal consequences of truancy,

including police involvement, a $250 fine, and a juvenile hall

sentence. Tragically, Anthony committed suicide after school

6460 CORALES v. BENNETT

that day. Anthony’s parents and one of the other students

brought this action against Bennett, Principal Kathleen Kinley

(Kinley), and the Ontario-Montclair School District, alleging

violations of the students’ and parents’ civil rights under 42

U.S.C. § 1983; violations of California’s Unruh Act; inten-

tional infliction of emotional distress, and negligently causing

Anthony’s suicide. The district court granted summary judg-

ment to Defendants. Because Bennett did not violate the stu-

dents’ constitutional rights, there is no evidence that Bennett

intended to harm the students, and because Anthony’s death

was not proximately caused by Bennett’s actions, we affirm.

I. Background

On Tuesday, March 28, 2006, Anthony Soltero, an eighth-

grade, fourteen-year-old student at De Anza Middle School

(De Anza), Annette Prieto, and “one or two” other middle

school students walked out of school around 8:30 or 9:00 in

the morning.1 They did not have prior permission from the

school or their parents. They left school to participate in pro-

tests against the impending passage of federal immigration

legislation that would have made it a crime to assist or help

undocumented immigrants. In addition to Annette’s deposi-

tion, Plaintiffs submitted Annette’s handwritten account of the

events of the week, which was written a few weeks after the

incident at the direction of De Anza’s principal. Annette testi-

fied in her deposition that the students’ plan was to walk to

nearby Ontario High School and to participate with other stu-

dents in a protest. She testified that “mostly the whole

schools, like, everybody in the schools were walking out and

getting cited for it. Everybody was missing a lot of school

because of that.”2 When they got to Ontario High School

however, no one was there. They noticed the school was on

1

Because we review the district court’s order granting summary judg-

ment to Defendants, we relate the facts in the light most favorable to

Plaintiffs, the nonmoving party. Beck v. City of Upland, 527 F.3d 853, 857

n.1 (9th Cir. 2008). Defendants dispute many of these facts in opposing

depositions.

2

School district administrators were aware of the potential for walkouts

by students and had sent a warning email the previous week to administra-

tion personnel within the district. Both Bennett and Kinley received the

email.

CORALES v. BENNETT 6461

lockdown. Eventually a few students from Ontario High

School arrived and they walked for 60 to 90 minutes to

Ontario Middle School, but nobody was there. At that point,

it was about 11:00 am and De Anza Middle School had been

let out for the day because of scheduled teacher conferences.

The students decided to go home. While only four students

left De Anza to participate in walkouts, two other Ontario

middle schools had walkouts involving 50 to 150 students,

and Montclair police issued citations to 125 students who had

walked out of one of the middle schools.

Bennett testified that on the morning of Tuesday, March

28, 2006, a teacher told him “a girl had come up and asked

another girl to leave campus with her as they were entering

the classroom . . . .” Bennett was able to identify the girl and

discover the identities of Anthony, Annette, and two other

students. He required the four students to meet with him at his

office Thursday morning when classes began.

Annette met with the other students before they entered

Bennett’s office. They discussed the consequences they were

likely to face in the meeting, including that they “were going

to have to pay a fine” and “lose one of [their] year-end activi-

ties.” Annette testified that Anthony told her he was “scared

of what was going to happen and nervous about just the con-

sequences.” Annette, too, stated she was so sick with nervous-

ness about the consequences of missing school that she had

stayed home from school on Wednesday as well.

The De Anza Parent Handbook explains that the conse-

quences for a first-occurrence unexcused absence can range

from after-school intervention (presumably detention) to Sat-

urday Academy. Students participating in any protest that

involves nonattendance at school are specifically identified as

truant in the Ontario-Montclair School District regulations.

AR 5131.4 (Prohibited Activities). In early March, a supple-

mental policy letter was mailed to the homes of all eighth-

grade students explaining that if any disciplinary issues arose,

6462 CORALES v. BENNETT

the student could lose one or more of their promotional activi-

ties, including a dance, a trip to Disneyland, or the promotion

ceremony itself. Annette had been suspended several times

previously during the school year for unrelated infractions.

Anthony had been placed on probation stemming from an

incident the previous spring in which he carried a knife to

school. Bennett, in response to notification from a concerned

parent, had discovered the knife and reported Anthony to the

police. Anthony’s mother, in her declaration, indicated

Anthony could have been sent to jail for three years if he vio-

lated the terms of his probation.

Though accounts of the meeting between Bennett and the

students differ substantially, Annette testified in her deposi-

tion that:

Me, [two other students] and Anthony walked in,

and he pointed at the three of us and said, “You guys

are all dumb, dumb, and dumber.” He said, “You

guys are going to have to pay $250 fine;” that he is

going to get the cops involved, and we’re going to

have to go to Juvenile Hall for, like, certain amount

of years; and that we’re stupid for doing it, and why

did we think that we weren’t going to get caught.

Bennett also told the students that they were going to lose

a year-end activity, ultimately the Disneyland trip for each

student. The reason for the students’ absence was not dis-

cussed. After the meeting, the students returned to class for

the day.

After school that day, Anthony told Annette that he was

scared that his mother would be mad at him and he was wor-

ried about juvenile hall and having to pay a $250 fine. Antho-

ny’s mother was running errands that day, but called home to

check in after school and to get a telephone number from

Anthony. During the telephone call, Anthony told his mother

that Bennett had caught him walking out, and that he was in

CORALES v. BENNETT 6463

trouble and going to lose one of his eighth-grade activities as

a result. Anthony’s mother testified that he didn’t say any-

thing to make her worry about his safety and that she was able

to get the telephone number from Anthony.3 When she

returned home about an hour later, she found Anthony on the

floor of his room, suffering from a gunshot wound in an

apparent suicide attempt. Anthony was pronounced dead later

that evening.

Anthony left a suicide note which states in pertinent part:

“I just want to tell you that I love you [guys] and I’ll miss

you, [and] tell this to all my family. I killed myself because

[I] have to[o] many problems. . . . . Tell my teachers [they’re]

the best and tell Mr. [Bennett] he is a motherf#@(-)ker.” He

also apologized to his father for “making [him] mad.”

None of the students were fined or sent to juvenile hall, and

the police were never involved with the students’ truancies.

On August 8, 2006, Louise Corales and Jaime Soltero

(Anthony Soltero’s parents), the Estate of Anthony J. Soltero,

Jane Roe 1, Mary Roe 1, Jane Roe 2 (Annette Prieto), John

Roe 1 (all minors represented by their guardians ad litem),

and Guillermo Prieto (collectively “Plaintiffs”) filed suit in

the federal district court for the Central District of California

against Bennett; the Ontario-Montclair School District; and

Kinley, the principal of De Anza Middle School at the time

of the protests (collectively “Defendants”).4

The complaint stated six causes of action alleging the fol-

lowing: (1) violations of civil rights under 42 U.S.C. § 1983

3

In her declaration, Anthony’s mother did indicate that Anthony’s voice

“sounded real frightened,” but specifically denied in her deposition testi-

mony that he had said anything to make her worry about his safety.

4

Kathleen Kinley had planned to retire as De Anza’s principal the day

after Anthony’s suicide. She did step down that day, and Leticia Zaragoza

assumed the duties of principal.

6464 CORALES v. BENNETT

and § 1985(3)5 against Bennett and Kinley in their individual

capacities; (2) an unconstitutional policy, custom or practice

causing constitutional violations against the school district6;

(3) failure to train and supervise, causing constitutional viola-

tions, against Kinley; (4) civil rights violations under Califor-

nia’s Unruh Act, Cal. Civ. Code §§ 51.7, 52.1; (5) intentional

infliction of emotional distress, and (6) general negligence

resulting in Anthony’s death. Plaintiffs sought general, com-

pensatory and punitive damages as well as injunctive and

declaratory relief.

Defendants filed a Summary Judgment Motion on March 8,

2007. The district court granted the motion in full. As to the

First Amendment claim, the district court found that there was

a triable issue of fact as to whether the students’ actions con-

stituted expressive conduct. It then applied the Supreme

Court’s test for expressive conduct in schools, set forth in Tin-

ker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514

(1969): school officials must justify their disciplinary decision

by showing “facts which might reasonably have led school

authorities to forecast substantial disruption of or material

interference with school activities.” The district court relied

on this court’s decision in LaVine v. Blaine School Dist., 257

F.3d 981, 992 (9th Cir. 2001), for the proposition that school

officials may take action to protect the safety of individual

students even if such action interferes with the student’s abil-

ity to express him or herself. The district court concluded that

school officials are entitled and obligated to take appropriate

action to ensure the safety of their students, including warning

them (however sternly) regarding the students’ legal obliga-

tion to stay in school during school hours. Having thus found

that the school validly disciplined the students, the students’

actions, in this context, did not constitute protected First

Amendment activity.

5

Plaintiffs do not raise the § 1985 claim on appeal and it is waived. See

Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986).

6

Plaintiffs withdrew this claim and do not argue it on appeal.

CORALES v. BENNETT 6465

The district court found no other Constitutional violation,

and, therefore, no supervisory liability or liability under Cali-

fornia’s Unruh Act, which both require an underlying viola-

tion of Plaintiffs’ constitutional rights. Finally, the district

court held that Bennett’s actions in lecturing the students fell

far short of the type of extreme and outrageous conduct

required to support a claim for intentional infliction of emo-

tional distress, and that Anthony’s act of committing suicide

was both an extraordinary and unforeseeable consequence of

the lecture.

II. Standard of Review

We review a grant of summary judgment de novo. Olsen v.

Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.

2004) (citing United States v. City of Tacoma, 332 F.3d 574,

578 (9th Cir. 2003). “We must determine, viewing the evi-

dence in the light most favorable to . . . the non-moving party,

whether there are any genuine issues of material fact and

whether the district court correctly applied the substantive

law.” Id. “We may affirm on any grounds supported by the

record.” Id. (citing Simo v. Union of Needletrades, 322 F.3d

602, 610 (9th Cir. 2003)). “The underlying substantive law

governing the claims determines whether or not [the disputed

fact] is material.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130,

1134 (9th Cir. 2000). “There must be enough doubt for a ‘rea-

sonable trier of fact’ to find for the plaintiffs in order to defeat

the summary judgment motion.” Id. (quoting Wallis v. J.R.

Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)).

III. Discussion

A. First Amendment Retaliation Claim

Although the students’ walkout was ostensibly to protest

immigration reform legislation, there is no evidence that the

students gave speeches, that they discussed matters of immi-

gration reform, or that they carried placards or signs that con-

6466 CORALES v. BENNETT

veyed their messages during the walk-out. Rather, the

evidence reveals that the students left their school to engage

in a protest march, met up with like-minded individuals from

a local high school, and walked together to a third school. In

the absence of any identifiable speech, these activities, if they

are to be protected by the First Amendment, must fall within

the definition of expressive conduct.

[1] The First Amendment protects conduct that is not

speech but is nevertheless expressive in nature. See, e.g., Tin-

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

(1969) (wearing of black armband to protest Vietnam War);

United States v. O’Brien, 391 U.S. 367 (1968) (flag-burning).

However, First Amendment protection does not apply to all

cases in which someone intends to convey a message by his

or her conduct; rather, First Amendment protection applies

only when “it is intended to convey a ‘particularized message’

and the likelihood is great that the message would be so

understood.” Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir.

1999) (citing Texas v. Johnson, 491 U.S. 397, 404 (1989)).

[2] Here, the record is clear that the students intended to

show their opposition to the proposed immigration reform by

participating in a walkout. The record is less clear as to

whether the walkout was likely to be perceived as such.

Though Bennett admitted he knew of the walkouts taking

place in the area, the reason for the students’ absence was not

discussed in the meeting. Likewise, while 100 to 150 students

walked out of neighboring middle schools, only four students

from De Anza appeared to have missed school that day. Still,

because of warnings from school administrators about poten-

tial walkouts to protest the immigration reform, it is likely

that an actual walkout of the four students would be perceived

as a protest. Thus, we agree with the district court that a rea-

sonable jury, when presented with this evidence, could con-

clude that the students were engaging in expressive conduct.

We next consider whether the conduct was protected, and

if the school violated the students’ First Amendment rights by

CORALES v. BENNETT 6467

disciplining them for their participation in the walkout. Plain-

tiffs concede that the school had a right to discipline the stu-

dents for the actual act of leaving campus without permission.

Plaintiffs argue that the students were not disciplined for vio-

lating that rule, but rather for their expressive choice to partic-

ipate in the immigration protests. As such, Plaintiffs assert a

First Amendment retaliation claim.

“To establish a First Amendment retaliation claim in the

student speech context, a plaintiff must show that (1) he was

engaged in a constitutionally protected activity, (2) the defen-

dant’s actions would chill a person of ordinary firmness from

continuing to engage in the protected activity and (3) the pro-

tected activity was a substantial or motivating factor in the

defendant’s conduct.” Pinard v. Clatskanie Sch. Dist. 6J, 467

F.3d 755, 770 (9th Cir. 2006).

As a threshold matter, we must first determine the scope of

the discipline the students received before we can consider

whether that discipline constituted retaliation for their activ-

ity. Plaintiffs assert that the discipline imposed was comprised

of both the loss of a year-end activity and Bennett’s threats

of police involvement, a $250 fine, and juvenile hall. Plain-

tiffs argue this total discipline imposed exceeded the Parent

Handbook’s stated maximum consequence of a Saturday

Academy for a first-time truancy. Plaintiffs contest the district

court’s characterization of Bennett’s words as merely a harsh

lecture about the possible consequences of truancy, and assert

that they instead constituted a “true threat” of corporal pun-

ishment by Bennett, and were reasonably interpreted by the

students as such. The assumption that Bennett’s words consti-

tuted not only a true threat, but “punishment,” is incorrect.

[3] Plaintiffs’ invocation of the “true threat” strand of First

Amendment case law is misplaced. The true threat analysis is

employed to determine when speech that is “an expression of

an intention to inflict evil, injury, or damage on another” does

not receive First Amendment protection. Fogel v. Collins, 531

6468 CORALES v. BENNETT

F.3d 824, 830 (9th Cir. 2008) (quoting Planned Parenthood

of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activ-

ists, 290 F.3d 1058, 1075 (9th Cir. 2002) (en banc)). “ ‘True

threats’ encompass those statements where the speaker means

to communicate a serious expression of an intent to commit

an act of unlawful violence to a particular individual or group

of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003).

Whether an objective or subjective standard is applied to

determine “an intent to inflict bodily harm” exists, the speech

is examined in the “light of its entire factual context, includ-

ing the surrounding events and reaction of the listeners.”

Fogel, 531 F.3d at 831 (quoting United States v. Orozco-

Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)).

[4] At issue here, however, is not whether Bennett’s speech

should be afforded First Amendment protection. Cf. Doe v.

Pulaski County Special Sch. Dist., 306 F.3d 616, 622 (8th Cir.

2002). Bennett did not express any intent to commit any act

of unlawful violence or to inflict bodily harm upon the stu-

dents. Neither Plaintiffs nor the Government have filed any

criminal or civil action for assault, where Bennett’s actual or

apparent ability to carry out the threat would be at issue. See,

e.g., United States v. Chapman, 528 F.3d 1215, 1219 (9th Cir.

2008).

[5] Plaintiffs instead attempt to connect Bennett’s words to

violence by characterizing them as a form of corporal punish-

ment. This argument fails because the definition of corporal

punishment under California law requires the “willful inflic-

tion of, or willfully caus[ing] the infliction of physical pain on

a pupil.” Cal. Educ. Code § 49001(a). Bennett did not inflict,

nor attempt to inflict, any physical pain on any of the stu-

dents. We decline to expand the scope of actionable threat-

ened “harm” to encompass the legal consequences of one’s

actions. Bennett’s perceived threats were not empty words to

intimidate the students, but based on sections of the California

Education Code, Welfare and Institutions Code, Penal Code,

and Ontario municipal code. Together, these provisions

CORALES v. BENNETT 6469

require compulsory education, prohibit truancy, permit habit-

ually truant students to become wards of the juvenile court,

make it a criminal violation for an adult to cause or facilitate

the truancy of a minor, fine parents or guardians for the tru-

ancy of their children, permit arrest of truant students, and

impose daytime loitering restrictions on minors. See Cal.

Educ. Code §§ 48260, 48263, 48264, 48293; Cal. Welf. &

Inst. Code § 601; Cal. Penal Code § 272(a)(1); Ontario

Municipal Code §§ 5-7.04, 5-7.05.

[6] Because Bennett’s statements cannot be interpreted as

intended to cause any unlawful injury to the students, they do

not constitute a true threat of corporal punishment. We thus

agree with the district court’s characterization of Bennett’s

statements as a stern lecture. Moreover, Plaintiffs cite no case

law to support the proposition that threats of potential future

consequences can alone constitute punishment.7 Even if Ben-

nett had the authority to impose a juvenile hall sentence as a

form of retaliatory discipline, threatening an action is not the

same as imposing discipline.

[7] In Gaut v. Sunn, 810 F.2d 923 (9th Cir. 1987), this court

analyzed a prisoner’s § 1983 claims arising out of beatings by

prison guards and threats of bodily harm if he attempted to

report the beating. We concluded that it “trivializes the eighth

amendment to believe that a threat constitutes a constitutional

wrong.” Id. at 925. We stated that we found “no case that

7

Indeed, Plaintiffs’ own expert discussed the importance of a school

administrator’s use of discipline as a learning device to discuss the poten-

tial consequences of a path a student may be starting down. Bennett was

speaking to a student who had previously been arrested and was placed on

probation (Anthony) and another with multiple suspensions (Annette). In

this situation, Bennett would arguably be remiss in his duties if he did not

adequately warn the students of what consequences may result from con-

tinued truancies and what could have resulted from their actual truancy.

Cf. Terry v. Ohio, 392 U.S. 1, 23 (1968) (noting it would have been poor

police work if officer did not investigate suspicious, though legal, behav-

ior).

6470 CORALES v. BENNETT

squarely holds a threat to do an act prohibited by the Constitu-

tion is equivalent to doing the act itself.” Id.; see also Robin-

son v. Solano County, 278 F.3d 1007, 1017 (9th Cir. 2002)

(holding that “when the seizure itself is otherwise proper the

mere threat of force cannot be an excessive use of force

within the meaning of the Fourth Amendment”). Under Ninth

Circuit law, Plaintiffs do not have a retaliation claim based on

threats of discipline for First Amendment activity if that threat

is itself based upon lawful consequences and is not actually

administered.8

Here, the only consequence actually suffered by the stu-

dents was the loss of one year-end extracurricular activity.

Plaintiffs contend that even the loss of a year-end activity was

a form of retaliation because the discipline did not comport

with the consequences outlined in the Parent Handbook. The

eighth-grade students were adequately warned, however, that

they would not earn the privilege of attending the year-end

activities unless they met all academic and behavioral require-

ments. Annette testified that the students realized they would

likely lose their year-end activities as a result of their truancy

even before they met with Bennett.

[8] Thus, any retaliation claim must be evaluated solely on

Bennett’s decision to discipline the students at all, when their

act of leaving school was intended as expressive conduct. We

now turn to the question of whether disciplining this act at all

violated the students’ First Amendment rights.

8

Plaintiffs also characterize the fear the students felt as evidence that

they were punished by Bennett’s lecture. The facts of the case do not sup-

port this assertion. Annette testified in her deposition that the students dis-

cussed the possibility that they would be fined for skipping school, as

demonstrators earlier in the week had been, before meeting with Bennett.

She also testified that she and Anthony were scared and nervous about the

discipline before the meeting, so much so that the day after the walkout

she and one of the other girls stayed home “sick” with nervousness. Any

incremental fear created by Bennett’s informing the students of the possi-

ble consequence of their actions is insufficient to elevate Bennett’s lecture

to a threat.

CORALES v. BENNETT 6471

1. Constitutionally Protected Activity

[9] The first prong of the retaliation claim is the determina-

tion of whether the students were disciplined for engaging in

constitutionally protected activity. Because this case involves

school discipline for arguably expressive conduct, both parties

and the district court have analyzed the facts under Tinker.

The Tinker framework, however, is intended to apply to deci-

sions by a school to punish a student’s speech or expressive

conduct as such, because of its potentially disruptive impact

on appropriate discipline in the operation of the school. See

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

509 (1969). Thus Tinker contemplates a case-by-case decision

by a school whether student speech either on campus or at an

off-campus school-sponsored event is disruptive and punish-

able under the general authority of the school to minimize dis-

ruptions.

[10] Here, the students’ expressive conduct, in seeking to

participate in immigration protests, occurred entirely off-

campus and was not school-sponsored. The students were

punished not for any disruptive aspect of their expressive con-

duct, as expressive conduct, but for the disruption caused by

the act of leaving campus without permission. Unlike in Tin-

ker cases, the school was not exercising discretion when

determining whether to discipline the student for their infrac-

tion of the general rule forbidding truancy. The disciplinary

rules clearly specified both minimum and maximum sanctions

for leaving campus without permission and missing school.

In fact, district regulations specifically designated students

participating in protests that involved nonattendance at school

as truant, regardless of any parental approval of their act.

Ontario-Montclair Admin. Reg. 5131.4. The case is, there-

fore, better understood as questioning whether Plaintiffs can

be disciplined under the general content-neutral rule that stu-

dents are not allowed to leave campus without permission,

when their purpose for leaving is to engage in expressive con-

duct. See Jacobs v. Clark County Sch. Dist., 526 F.3d 419,

6472 CORALES v. BENNETT

430-431 (9th Cir. 2008) (holding Tinker framework does not

apply to content-neutral rules governing conduct).

The test for whether an exemption should be granted from

a content-neutral rule of conduct to engage in expressive con-

duct was presented in Clark v. Community for Creative Non-

Violence (CCNV), 468 U.S. 288, 294 (1984):

Symbolic expression of this kind may be forbidden

or regulated if the conduct itself may constitutionally

be regulated, if the regulation is narrowly drawn to

further a substantial government interest, and if the

interest is unrelated to the suppression of free

speech.

(citing United States v. O’Brien, 391 U.S. 367, 377 (1968).9

In Clark v. CCNV, the Supreme Court held that protestors

were not entitled to an exemption to the National Park’s gen-

eral regulation limiting camping to designated areas simply

because they were engaging in expressive conduct to protest

homelessness. After determining that the rule was content-

neutral, the Court went on to find that the interest in limiting

wear and tear on parks was substantial and unrelated to the

suppression of expression. Id. at 299. The Court further held

that in determining whether the regulation was narrowly

9

In Pinard, the court declined to apply the O’Brien test because the

court found the Tinker analysis appropriate for analyzing restrictions on

student speech and because the parties had not argued the application

below and the factual record was not developed enough for the Ninth Cir-

cuit to determine if O’Brien should apply. Pinard, 467 F.3d at 759, n.1.

This case does not present the same concerns. The rule here is not discre-

tionary in its application, applies to conduct, rather than speech, and does

not require any further factual development to determine its applicability.

Furthermore, Defendants argued under O’Brien in their motions before the

district court, and have continued to analyze the school’s actions under an

intermediate scrutiny framework on appeal. In reviewing a summary judg-

ment motion, we may affirm on any ground supported by the record.

Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004).

CORALES v. BENNETT 6473

drawn, the regulation should not be judged merely by the

plaintiffs at hand, but also by all those similarly situated who

would also be entitled to an exemption under the rule. Id. at

296-297.

[11] Similarly, the school’s anti-truancy policy is a content-

neutral rule that furthers an important interest unrelated to the

suppression of expression. Indeed, Plaintiffs have repeatedly

conceded that the school has a valid interest in forbidding stu-

dents from leaving school without permission. The rule fur-

thers several substantial government interests, including

enforcing compulsory education, keeping minors safe from

the influences of the street, maximizing school funding based

on attendance (Cal. Educ. Code § 46010), and limiting poten-

tial liability for negligent failure to supervise a truant student

properly. See Hoyem v. Manhattan Beach City Sch. Dist., 22

Cal.3d 508, 523 (1978); cf. Morse v. Frederick, 127 S. Ct.

2618, 2622 (2007) (noting that “the rights of students must be

applied in light of the special characteristics of the school

environment”). None of these justifications is related to the

suppression of speech. The Supreme Court specifically upheld

the compelling government interests in compulsory education

and keeping minors safe from the dangers of the streets in

Prince v. Massachusetts, 321 U.S. 158, 166 (1944). See also

Jacobs, 526 F.3d at 436 (finding increasing student achieve-

ment and enhancing safety important government interests);

LaVine v. Blaine Sch. Dist., 257 F.3d 981, 992 (9th Cir. 2001)

(finding school’s interest in safety of its students compelling).

[12] The rules which discipline truancies and leaving cam-

pus without permission support these goals and are narrowly

tailored to the government’s interests. The narrowly tailored

test was expressed in Turner v. Broad. Sys. Inc. v. FCC, 512

U.S. 622, 662 (1994): “the means chosen [must] not ‘burden

substantially more speech than is necessary to further the gov-

ernment’s legitimate interests.’ ” (quoting Ward v. Rock

Against Racism, 491 U.S. 781, 799 (1989)). The means cho-

sen, however, “need not be the least speech-restrictive means

6474 CORALES v. BENNETT

of advancing the Government’s interests . . . so long as [the

interest] would be achieved less effectively absent the regula-

tion.” Id. at 662.

[13] In Jacobs, this court upheld a school uniform policy

under the Clark/O’Brien analysis, finding that the policy left

open ample alternative channels for student communication.

Jacobs, 526 F.3d at 437. The policy in Jacobs only restricted

students’ speech during school hours and left the students free

to “continue to express themselves through other and tradi-

tional methods of communication throughout the school day.”

Id. “For example, students are still permitted (if not encour-

aged) to have verbal conversations with other students, pub-

lish articles in school newspapers, and join student clubs.” Id.

Here too, the anti-truancy policy only limits students’ expres-

sive conduct during school hours. The students are free to par-

ticipate in weekend or after-school events. De Anza was on

a shortened schedule the week of the walk-outs, leaving

greater-than-normal after-school time available to participate

in immigration reform efforts. The students are free to engage

in speech relating to immigrant rights on-campus, as the

record suggests they did here, both amongst each other and in

the classroom.

[14] In light of this analysis, the school’s policy of disci-

plining truancies and leaving campus without permission eas-

ily satisfies the intermediate scrutiny applied to content-

neutral rules of conduct. See also Cox v. State of La., 379 U.S.

559, 563 (1965) (upholding reasonable time, place and man-

ner restrictions on right to picket in front of a courthouse). As

such, the incidental effect the rule has on the students’ expres-

sive conduct is permissible, and the students’ First Amend-

ment rights have not been infringed by punishing the act of

leaving campus. Indeed, granting Plaintiffs an exemption to

the otherwise generally applicable rule would cast suspicion

on the Constitutionality of the rule itself, because it would no

longer be content-neutral in application. See Carey v. Brown,

447 U.S. 455 (1980) (striking down regulation that exempted

CORALES v. BENNETT 6475

labor picketing from general residential picketing ban as vio-

lating Equal Protection); Clark, 468 U.S. at 299 (noting pro-

priety of evaluating all those similarly situated who would

also seek an exemption to the generally-applicable rule); see

also Jacobs, 526 F.3d at 433. To hold otherwise would be to

allow 12 to 14 year old students to leave school without the

permission of their parents or school authorities to engage in

any claimed First Amendment activity, no matter the danger.

[15] Because the rule satisfies intermediate scrutiny under

Clark v. CCNV, the school was entitled to enforce the rule

against truancy even when the students sought to leave for

expressive purposes. In this context, the Plaintiffs’ act of leav-

ing campus was not a constitutionally-protected activity, and

therefore, Plaintiffs do not satisfy the first prong of a First

Amendment retaliation claim. Cf. Pinard, 467 F.3d at 759

(holding that students’ refusal to board a school bus was not

protected by the First Amendment, even if expressive con-

duct, because the discipline was upheld under Tinker).

2. Deterrence Effect and Retaliatory Motive

[16] Even assuming Plaintiffs had shown they engaged in

a constitutionally protected activity, their claim would fail

nonetheless because they failed to show that Bennett’s actions

had a retaliatory motive. “In the First Amendment context, a

plaintiff creates a genuine issue of material fact on the ques-

tion of retaliatory motive when he or she produces, in addi-

tion to evidence that the defendant knew of the protected

speech, at least (1) evidence of proximity in time between the

protected speech and the allegedly retaliatory decision, (2)

evidence that the defendant expressed opposition to the

speech or (3) evidence that the defendant’s proffered reason

for the adverse action was false or pretextual.” Pinard, 467

F.3d at 771 (emphasis added).

[17] Plaintiffs have not produced evidence of any of the

three factors. Plaintiffs’ reliance on Sloman v. Tadlock, 21

6476 CORALES v. BENNETT

F.3d 1462 (9th Cir. 1994), is misplaced. There, plaintiffs were

able to demonstrate that the disciplining officer both dis-

agreed with their message and that his claimed reasons for cit-

ing and warning plaintiffs were groundless. Id. at 1469-1470.

In contrast, Plaintiffs here have only produced evidence that

Bennett may have known that the students skipped school to

participate in the protest, but not that he was opposed to that

protest. Bennett imposed discipline two days after the expres-

sive conduct occurred and not in the heat of the moment.

Compare Morse, 127 S. Ct. at 2622 (principal immediately

reacted to student display of banner at Olympic torch relay,

demanding that the banner be taken down and issuing 10-day

suspension the same day). Furthermore, Plaintiffs’ evidence

showing that Bennett generally treated students harshly

undermines any argument that his reason for disciplining the

students was pretextual. Plaintiffs have shown no difference

in Bennett’s treatment of them than any other student he disci-

plined. “Such conclusory allegations, standing alone, are

insufficient to prevent summary judgment.” Sloman, 21 F.3d

at 1474. Accordingly, we conclude that the Plaintiffs have

failed to raise a triable issue of fact as to their First Amend-

ment claim.

B. Substantive Due Process

[18] Substantive due process “forbids the government from

depriving a person of life, liberty, or property in such a way

that ‘shocks the conscience’ or ‘interferes with the rights

implicit in the concept of ordered liberty.’ ” Nunez v. City of

Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (quoting

United States v. Salerno, 481 U.S. 739, 746 (1987) (internal

citations omitted)). Plaintiffs argue that Bennett violated the

students’ substantive due process rights by issuing a “true

threat” harsh enough to constitute the crime of child abuse

under Cal. Penal Code §§ 273a(a) or 273a(b),10 which a rea-

10

California Penal Code §§ 273a(a) and 273a(b) read:

CORALES v. BENNETT 6477

sonable jury could find “conscience shocking.” But as noted

above, Bennett’s lecture to the students regarding the legal

consequences of their actions does not constitute a “true

threat” or corporal punishment. Moreover, Plaintiffs have

submitted no evidence showing Bennett willfully inflicted any

unjustifiable pain or mental suffering upon the students. Con-

struing the facts most favorably to Plaintiffs, even if Bennett

called the students “dumb, dumb, and dumber,” told them

they would have to pay a $250 fine, that he was going to

involve the police, and that they would go to juvenile hall,

Plaintiffs have not shown conduct egregious enough to shock

the conscience. See County of Sacramento v. Lewis, 523 U.S.

833, 846-847 (1998); see also, e.g., Brittain v. Hansen, 451

F.3d 982 (9th Cir. 2006) (police officer’s condescending, hos-

tile tone and threats of arrest directed at non-custodial mother

during dispute not conscience-shocking). We affirm the dis-

trict court’s grant of summary judgment to Defendants on

Plaintiffs’ substantive due process claim.11

(a) Any person who, under circumstances or conditions likely to produce

great bodily harm or death, willfully causes or permits any child to suffer,

or inflicts thereon unjustifiable physical pain or mental suffering, or hav-

ing the care or custody of any child, willfully causes or permits the person

or health of that child to be injured, or willfully causes or permits that

child to be placed in a situation where his or her person or health is endan-

gered, shall be punished by imprisonment in a county jail not exceeding

one year, or in the state prison for two, four, or six years.

(b) Any person who, under circumstances or conditions other than those

likely to produce great bodily harm or death, willfully causes or permits

any child to suffer, or inflicts thereon unjustifiable physical pain or mental

suffering, or having the care or custody of any child, willfully causes or

permits the person or health of that child to be injured, or willfully causes

or permits that child to be placed in a situation where his or her person or

health may be endangered, is guilty of a misdemeanor.

11

Plaintiffs agree that our denial of their First Amendment claim neces-

sarily forecloses their substantive due process claim on the grounds of the

alleged free speech violation. See Hufford v. McEnaney, 249 F.3d 1142,

1151 (9th Cir. 2001) (“If, in a § 1983 suit, the plaintiff’s claim can be ana-

6478 CORALES v. BENNETT

C. Equal Protection Claim

[19] Plaintiffs also assert an equal protection claim, alleg-

ing the students were punished disproportionately based on

their Mexican-American ethnicity. There is no evidence in the

record, however, that suggests the students were disciplined

on this basis or that their ethnicity motivated Bennett’s deci-

sions. See Fed.R.Civ.P. 56(e) (“an opposing party may not

rely merely on allegations or denials in its own pleading”).

Plaintiffs argue that this deficiency is due solely to the district

court’s improper grant of summary judgment to Defendants

before they were provided notice and an opportunity to pre-

sent triable issues of fact. This assertion is untenable.

The Defendants’ motion before the district court sought

summary judgment on all claims, on the basis that there was

no genuine issue of material fact and Plaintiffs had failed to

establish all necessary elements of those claims, including

Plaintiffs’ cause of action for violation of civil rights under 42

U.S.C. § 1983. Plaintiffs’ equal protection claim arose under

their § 1983 cause of action. Moreover, Defendants noted in

their motion that “Bennett treated this situation (that of stu-

dents who were found to be truant) the same as any other sim-

ilar situation, without regard to the students’ ethnicity.”

Defendants met their burden for summary judgment. See

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (“burden

on the moving party may be discharged by ‘showing’ — that

is, pointing out to the district court — there is an absence of

evidence to support the non-moving party’s case”). Further-

more, even if the Defendants had not explicitly moved for

lyzed under an explicit textual source of rights in the Constitution, a court

should not resort to the more subjective standard of substantive due pro-

cess.”) (internal citation omitted). Plaintiffs’ family relations substantive

due process claim also fails, as there is no underlying dependent constitu-

tional deprivation. See Smith v. City of Fontana, 818 F.2d 1411, 1419-

1420 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v.

de la Vina, 199 F.3d 1037 (9th Cir. 1999).

CORALES v. BENNETT 6479

summary judgment on the equal protection claim, the district

court has the authority to decide an issue on summary judg-

ment sua sponte, if the losing party was on notice to come for-

ward with its evidence. See Celotex, 477 U.S. at 326. The

Defendants moved for summary judgment on all claims,

including those arising out of alleged violations of § 1983,

Plaintiffs attempted to respond to that motion, and Defendants

disclaimed any concession of the equal protection claim in the

Reply Motion, all before argument on the motion before the

district court. Plaintiffs were on notice that the equal protec-

tion claim was at issue and the district court was within its

discretion to grant summary judgment on the claim. We

affirm.

D. Supervisory Liability

“Supervisory liability is imposed against a supervisory offi-

cial in his individual capacity for his own culpable action or

inaction in the training, supervision, or control of his subordi-

nates, for his acquiescence in the constitutional deprivations

of which the complaint is made, or for conduct that showed

a reckless or callous indifference to the rights of others.” Pre-

schooler II v. Clark County Sch. Bd. of Trustees, 479 F.3d

1175, 1183 (9th Cir. 2007) (quoting Menotti v. City of Seattle,

409 F.3d 1113, 1149 (9th Cir. 2005)). In a section 1983 claim,

“a supervisor is liable for the acts of his subordinates ‘if the

supervisor participated in or directed the violations, or knew

of the violations of subordinates and failed to act to prevent

them.” Preschooler II, 479 F.3d at 1182 (quoting Taylor v.

List, 880 F.2d 1040, 1045 (9th Cir. 1989)). “The requisite

causal connection may be established when an official sets in

motion a ‘series of acts by others which the actor knows or

reasonably should know would cause others to inflict’ consti-

tutional harms.” Id. at 1183 (quoting Johnson v. Duffy, 588

F.2d 740, 743 (9th Cir. 1978)).

[20] Plaintiffs argue that, because of Bennett’s previous

disciplinary interactions with students, Principal Kinley had a

6480 CORALES v. BENNETT

duty to investigate, train, and prevent further similar acts by

Bennett. But because Plaintiffs have failed to establish any tri-

able issue of fact as to any of their constitutional claims, a

supervisory claim against Kinley is not sustainable.

E. State-Law Civil Rights Claims

[21] Plaintiffs next allege violations of their rights under

sections 51.7 and 52.1 of California’s civil rights law, the

Unruh Act. We affirm the district court’s grant of summary

judgment on each claim.

California Civil Code section 51.7(a) states in pertinent

part:

All persons within . . . this state have the right to be

free from any violence, or intimidation by threat of

violence, committed against their persons or property

because of political affiliation, or on account of any

characteristic listed or defined in subdivision (b) or

(e) of Section 51, . . . or because another person per-

ceives them to have one or more of those character-

istics.

(emphasis added). Characteristics listed or defined in sections

51(b) or (e) are: sex, race, color, religion, ancestry, national

origin, disability, medical condition, marital status, or sexual

orientation. Cal. Civ. Code § 51(b), (e).

Under the language of the statute, Plaintiffs were required

to present evidence of “violence, or intimidation by threat of

violence,” committed against Plaintiffs on the basis of a pro-

tected ground (here, race or national origin). As previously

discussed in the First Amendment and Equal Protection analy-

sis, the record supports neither requirement and Plaintiffs

claim must fail.

Section 52.1(a) provides a cause of action where “a person

or persons, whether or not acting under color of law, inter-

CORALES v. BENNETT 6481

feres by threats, intimidation, or coercion, or attempts to inter-

fere by threats, intimidation, or coercion, with the exercise or

enjoyment by any individual or individuals” of rights under

federal or state law. Cal. Civ. Code § 52.1. As set forth above,

however, Plaintiffs’ constitutional rights were not violated

and, thus, there is no basis to support Plaintiffs’ cause of

action under § 52.1.

F. State Law Torts

1. Intentional Infliction of Emotional Distress

Plaintiffs next allege that Bennett’s lecture to the students

constituted intentional infliction of emotional distress.

The elements of a prima facie case of intentional

infliction of emotional distress in California are: ‘(1)

extreme and outrageous conduct by the defendant

with the intention of causing, or reckless disregard of

the probability of causing, emotional distress; (2) the

plaintiff’s suffering severe or extreme emotional dis-

tress; and (3) actual and proximate causation of the

emotional distress by the defendant’s outrageous

conduct.’

Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007) (as

amended) (quoting Davidson v. City of Westminster, 32 Cal.

3d 197, 209 (1982)) (internal quotation omitted). “Outra-

geous” conduct is that which is “so extreme as to exceed all

bounds of that usually tolerated in a civilized community.”

Tekle, 511 F.3d at 856.

Bennett’s statements in warning the students of the real

consequences of their continued violation of laws he did not

write was not extreme and outrageous conduct. The Plaintiffs’

own expert report states that “[p]art of an educator’s responsi-

bility is to use the decisions made by students as a powerful

learning opportunity to ensure that decisions made later in life

6482 CORALES v. BENNETT

are more thoughtful.” Here, Bennett was faced with the task

of disciplining Anthony, an almost fifteen year-old student

who had already been placed on probation for possessing a

knife at school and who faced a three year sentence in juve-

nile hall for a probation violation. His stern warning, while

perhaps unduly harsh, was not extreme and outrageous.12

Under these circumstances, a decision by this court that

exposes an administrator to liability for sternly warning stu-

dents of the consequences of their continued actions would

severely handicap his or her ability to set children back on the

correct path. This is especially true during the critical middle

school years.

[22] Plaintiffs cite examples of ostensibly similar behavior

that was found to be extreme and outrageous. But these cases

are inapplicable, as each relied on the defendant’s intent to

harm the threatened party. See, e.g., Alcorn v. Anbro Engi-

neering, Inc., 2 Cal.3d 493, 498 (1970) (supervisor shouting

insulting racial epithets and terminating employment to

humiliate plaintiff); Golden v. Dungan, 20 Cal.App.3d 295,

305 (Ct. App. 1971) (process server knowingly and mali-

ciously banging on door at midnight); Agarwal v. Johnson, 25

Cal.3d 932, 947 (1979) (use of racial epithet used with inten-

tion to humiliate and recommendation of termination of

employee on unsupported grounds), overruled on other

grounds by White v. Ultramar, Inc., 21 Cal.4th 563, 574 n.4

(1999). In contrast, Plaintiffs have established no evidence to

suggest that Bennett was motivated by ill will or a desire to

harm the students. Plaintiffs have also not shown that the

“scared” feelings the students felt were measurably different

than those they claimed they had before meeting with Ben-

nett. See supra note 8. Accordingly, we affirm the district

court’s grant of summary judgment to Defendants as to the

claim for intentional infliction of emotional distress.

12

Plaintiffs’ reliance on the statements of district educators and adminis-

trators, who opined that if the students’ version of events were true then

Bennett’s statements were “inappropriate,” does not alter this conclusion.

CORALES v. BENNETT 6483

2. Negligence

Plaintiffs’ final cause of action is for negligence. Plaintiffs

argue that Defendants’ conduct negligently caused Anthony’s

suicide. Under California law, “[t]he elements of negligence

are: (1) defendant’s obligation to conform to a certain stan-

dard of conduct for the protection of others against unreason-

able risks (duty); (2) failure to conform to that standard

(breach of the duty); (3) a reasonably close connection

between the defendant’s conduct and resulting injuries (proxi-

mate cause); and (4) actual loss (damages).” McGarry v. Sax,

158 Cal.App.4th 983, 994 (Ct. App. 2008) (internal quota-

tions omitted). Defendants argue that Anthony’s suicide was

an intervening cause that broke the chain of causation, negat-

ing the element of proximate cause. Generally, an act is an

intervening cause where it is unforeseeable or extraordinary.

See Maupin v. Widling, 192 Cal.App.3d 568, 571 (Ct. App.

1987). Plaintiffs cannot show that Bennett’s harsh lecture

proximately caused Anthony’s death.

Plaintiffs rely on Tate v. Canonica, 180 Cal.App.2d 898

(Ct. App. 1960). In that case, the California Court of Appeal

allowed a widow and her children to overcome a demurrer

where her deceased husband allegedly committed suicide

after the defendants harassed, embarrassed, and humiliated

him in the presence of others. Id. at 900. The Tate case pri-

marily addressed situations in which the defendant intended

to cause serious mental distress to the decedent, which is

inapplicable here. The Tate case also addresses negligent acts

that are the proximate cause of suicide, however, setting up a

distinction between situations in which the decedent can con-

trol the impulse to commit suicide, and when he cannot con-

trol that impulse: “where the negligent wrong only causes a

mental condition in which the injured person is able to realize

the nature of the act of suicide and has the power to control

it if he so desires, the act then becomes an independent inter-

vening force and the wrongdoer cannot be held liable for the

death.” Id. at 915.

6484 CORALES v. BENNETT

[23] Although Plaintiffs’ expert report opines on the cause

of Anthony’s suicide, attributing it, through the process of

elimination, to Bennett’s actions, the report does not give an

opinion regarding whether Anthony had an uncontrollable

impulse to commit suicide. Anthony attended classes after his

meeting with Bennett, spoke with Annette and his mother,

and wrote a detailed suicide note before committing suicide.

Thus, the record seems to show he had the opportunity to

appreciate the nature of his actions. Plaintiffs have failed to

establish proximate causation between Bennett’s statements

and Anthony’s suicide. Plaintiffs confuse this issue by argu-

ing that the causation finding supported by their experts show

that Anthony’s death was foreseeable. This argument ignores

the purpose of proximate causation, which seeks to avoid

hindsight bias by limiting causation to those results which

were foreseeable at the time of the action. Because Anthony’s

action in committing suicide was unforeseeable and extraordi-

nary, plaintiffs have failed to raise a triable issue of fact as to

the element of proximate cause. We affirm the district court’s

grant of summary judgment to Defendants as to the negli-

gence claim.

G. Eleventh Amendment and Qualified Immunity

[24] The district court correctly determined that school dis-

tricts in California are immune from § 1983 claims by virtue

of Eleventh Amendment immunity. Belanger v. Madera Uni-

fied Sch. Dist., 963 F.2d 248, 254 (9th Cir. 1992). Plaintiffs

do not contest this assertion. The district court also correctly

found that the same is true of the state civil rights claims

brought in federal court. Stanley v. Trustees of California

State Univ., 433 F.3d 1129, 1134 (9th Cir. 2006) (explaining

that the Unruh Act does not consent to federal court actions).

Eleventh Amendment immunity therefore provides an inde-

pendent legal basis upon which to grant summary judgment

in favor of the school district as to Plaintiffs’ federal and state

civil rights claims.

CORALES v. BENNETT 6485

We need not reach the issue of whether qualified immunity

extends to Bennett and Kinley, as Plaintiffs have raised no tri-

able issue of fact as to whether either Bennett or Kinley vio-

lated the students’ constitutional rights. See Saucier v. Katz,

533 U.S. 194, 201 (2001).

AFFIRMED.