Oral argument — Jonathan Starbuck v. Williamsburg James City County

All right we'll proceed to our next case. Mr. Ballinger. Thank you your honor, may it please the court. I'm the director of the Appellate Litigation Clinic at the University of Virginia School of Law and it's my pleasure to introduce Mr. Benjamin Lerman and Mr. Jacob Larson who will be presenting argument for Mr. Starbuck. Your honor and may it please the court. The board acted as the final policy-making authority when it reviewed Starbuck's suspension and upheld it on changed grounds. That decision constituted an official policy for which this board could be held liable under section 1983. The Supreme Court's precedents in Pembauer, Proprotnick, and Jett and this court's decision in Hall make it clear that even the three one-off decisions can represent official policies if they are made by an official or government body with final policy-making authority under state law. Under Virginia state law the board is the final policy-making authority with respect to short-term suspensions. It reviewed Starbuck's suspension and unquestionably had the final authority to remove it from his academic record. That suspension was a violation of our client's first amendment rights accomplished through a process that violated his 14th amendment right to due process. The board's action was an official policy that violated Starbuck's rights therefore the complaint did properly allege a section 1983 violation by the board. The district court focused instead on whether the board's action was taken pursuant to a pre-existing official policy or custom but did not recognize that the board's decision itself constituted an official policy. As Pembauer and Proprotnick made clear and this court reiterated in Hall, section 1983 applies where the actions of lower employees are officially sanctioned or ratified by the final policy makers in this case the board. A single violation is sufficient to invoke section 1983 liability so long as the decision maker possesses final policy-making authority with respect to the action order. Applying the Proprotnick principles it is clear that the board's action constituted an unconstitutional policy for purposes of section 1983 liability. So when we're talking about a Monell type liability for municipalities the district court seemed to consider that there's no express policy here and tell me where the error is in the district court making that determination and because you seem to be going to another prong there that you think maybe the district court should have considered. Yes your honor I think the crux of the error the district court made was it was looking for a pre-existing policy that the board was acting based upon when in fact the decision itself constituted a policy. Under section 1983 a single decision can be considered a policy if it's made by the final policy-making authority under state law and under Virginia law the board is the final policy-making authority with respect to short-term suspensions. They reviewed this suspension, considered the facts and chose as the board to take action ratifying that suspension and they changed the grounds for that suspension. So that action alone regardless of whether there was a pre-existing policy constitutes a policy and we see that in Pembauer and that those principles were reiterated and Jett and we see that again in Hall where the school board's decision to fire a teacher itself was a decision that constituted a policy. So to be clear you are saying essentially whether it's a policy or a pre-existing policy is one way if I'm understanding you correctly you're saying the fact that the board was a final policy-making authority making the decision was the word policy here is really it could refer to a policy that exists over numerous decisions that's been followed over a long period of time or it can exist for a decision that's made by the board. Ultimately section 1983 is meant to ensure that we're holding final policymakers or the but we're only holding municipalities responsible for the decisions that they themselves make and in this case they themselves made the decision to ratify this suspension. So of course you have to allege this or your client has to allege this in the complaint right? Yes. And what paragraph of the complaint do you rely on? The complaint makes clear that. Just tell me the paragraph I'll decide whether it makes it clear. Absolutely your honor I will pull it up right now. Because a lot depends I thought that what you were relying on is the school suspended Jonathan with approval from the school board. Yes. So the most direct thing you have so if you look to a school board's decision. Yes so if you look to joint appendix 13 the complaint led that the board considered starbucks appeal and found the suspension was board looked at the suspension and did ratify it which which is what sorry tell me again your citations. JA 13 paragraph 28. Yes. JA 14 paragraph 34. I don't see upon expiration of the allotted 30 days the school board's policies in dealing with this no response was received and no communications made. When the defendant responded to the written appeal the defendants found the suspension was proper but altered the cause finding that the plaintiff was a classroom disturbance. So the complaint clearly alleged that the board found the suspension proper. The complaint doesn't say and I don't think you maintain that the school board issued something that clearly said that this was their action so what you're saying is that this is sufficient so each time you tell me that it's clearly you know you you sabotage yourself but being that as it may let me just see when the defendant responded to the written appeal in May the defendants asked if he asked who are the defendants here? The board your honor. Defendants found the suspension was proper. Correct. Oh and this is a pro se complaint is that right? That's correct your honor. All right. Thank you. No I apologize for any confusion. No no I was just being As you're right. Applying the propotinic principles it's clear that the board's action constituted an unconstitutional policy for purposes of section 1983 liability. The board itself found stockwork suspension proper and altered the cause to classroom disturbance and the board is the final policy making authority for student suspensions under state law. To get around those facts the board has tried to append another requirement for section 1983 liability not found in the propotinic principles. Namely that the board cannot be held liable unless it was an active participant or moving force in the initial decision to suspend Starbuck. But the propotinic principles adopted by a majority of the Supreme Court and Jett include no such requirement. Rather both Pembauer and Propotinic made clear that when the final policy making authority reviews and approves a subordinate's decision their ratification is chargeable to the municipality. Certainly the board's participation and approval at every stage of the suspension would be sufficient to establish liability but it is not necessary. There is no requirement that the board be involved in the initial decision by lower officials to suspend Starbuck. The board's independent in the Supreme Court cases you're going to be a good so the Supreme Court cases in which we you rely do not involve this higher authority the equivalent of the school board being an active participant in the assertedly unconstitutional action but simply approving it. Is that right? Yes there's there's language in propotinic that essentially says that if the final policy making authority sanctions or orders upon review so for instance in propotinic the court acknowledged that the civil service commission was the final policy making authority had they chosen to review an employee transfer and obviously they wouldn't have been the one that initiated the transfer but if they had chosen to review it they would have been the final policy making authority. So there's no requirement there and certainly no court in hall there's no requirement. If we can go back to propotinic which I was trying to avoid saying anyway if we can go back there then what I guess you're saying to me is that there wasn't action and so it's not exactly like our case because you maintain that there was action by the school board. Is that right? I mean it's the way you described the Supreme Court case the court was saying if they had acted they would have been the final decision maker. Yes well I think it's it's very common for municipalities local governments in all places to to give a certain amount of discretion to lower officials but but reserve the right to intervene as the final authority if they choose to do so. Okay so what I'm asking you is the is the intervention necessary to make them the final decision maker? Yes yes and then the fact that you didn't have that decision that situation in propotinic right? Correct and the court essentially said that because that they did not act no final policy making authority acted in that case the the plaintiff lost but had they chosen to intervene at that point they would have opened themselves up to section 1983 liability and here the board did choose to intervene and as a result they have opened themselves up to section 1983 liability because they have spoken as the board and as the final policy making authority and that constitutes a policy for purposes of section 1983. Counsel you said the board chose to intervene wasn't that a part of their their their their due process effort to intervene or to make a decision? Your honor that that may be true the record is uh silent on whether the board was required here to intervene there could be a policy that they have that they must respond to written appeals our client made a written appeal to the board um and they did respond to that appeal. That's what I'm saying in this case you say that they chose to intervene that's that's a little bit of an overstatement that they they're responding to your client properly asking them to review it so do you equate a decision making under those circumstances to a policy? Were they trying to decide an incident that already been meted out and trying to make a decision as to whether or not those facts constituted something you equate that decision making process to a policy? Yes your honor and and a few points on that um first the the language in Propotnick and Pembauer is clear that where a final policy making authority reviews subjects a lower decision to review and then ratifies or of that order if it violates the uh the constitutional rights my client's constitutional right. Secondly I ratified them they didn't ratify nor sanction it because the grounds on which the suspension was was was carried out they ultimately they said no it was a disturbance. Well your honor and it was not a threat is that correct? Yes your honor the you're not arguing the your argument is counter to the facts of your case. Well I I think there is and I think uh discovery would be very helpful here there is some uh question over whether the the board changed completely the uh grounds for this from threats to classroom disturbance in which case they would be acting independently in which case they're even you know I I think in both scenarios they're liable for their action whether they ratify the board can't look at the facts and say under the facts here while it does not constitute a threat we will determine in our uh adjudicative function that it constitutes a disturbance. Certainly they can your honor and in that case they would still be open to the section 1983 liability as it's still an action that constitutes a final policy by the board. That means that under your thin thin protection under Monell would say that every time something occurs that they have to opine about in a review circumstance they're putting themselves on the line and saying their policy is at stake if they look at the facts and say uh it is or isn't I mean Monell would have very little would have to be a target without without teeth wouldn't it? Well your honor that if if they review the decision and approve it as they did in this case at that point they are articulating policy as the board that the students should be suspended in this case. They're not approving policy they're looking at facts to determine whether or not it constitutes you would agree that a school can discipline a student for threats correct? Certainly. You also agree that they could discipline students for disturbances correct? Certainly. Well when matters come before them in terms of the factual allegations of what happened why wouldn't the board just be in a situation like a court? I'm trying to turn policy would be listen you can suspend them for wearing a t-shirt that says uh you know America's a great country then that would be a policy that was set for broader parameters but you just conceded that disturbance and threat are both within the parameters of you know of you know New Jersey in the PLO you know uh in loco parentis and all those things like that they still have but don't you circumvent Monell on that extent of your argument? Ultimately your honor I feel that the the decision to discipline him under the facts of this case they essentially were saying that the speech that uh my client gave or that my client engaged in was subject to punishment and we feel under the first amendment that was protective speech and by reviewing and approving that suspension they they violated his rights and the suspension itself and I see that my time has expired uh if I could just briefly close the the one of the great harms to my client here is that suspension remains on his academic record and will appear when he applies to graduate schools potentially in jobs in the future and the board ultimately had the final authority to remove that from his record and chose not to so that injury was ongoing and was ultimately the result of the board's decision here not to remove it so the injury suffered here is absolutely a result of the board's action and therefore should be subject to 1983 liability and I with that I will close thank you your honor let me ask you one last question on what you just said there if the board at this point would acquiesce and remove it from his record would that end this case yes your honor that would be that that's it that is the the remedy that we are most seeking in this case all right all right thank you your honor thank you mr caps thank you your honor may it school board um sir could you uh address what my colleague just asked would the school board just consider withdrawing this suspension so the or removing it from his record essentially yeah in light of what's here and the reason it's being brought up is you know if something happens at birth this continues to move along it just seems to me what's being asked and I don't know when you look at the conduct that actually occurred here it's really hard to find something that happened here that was in all candor that and I think we probably all look at it and says probably nothing should have happened here and the question is is maybe it's a point of pride or maybe it's uh something here that's going on but why wouldn't you just remove it from the record and then that as I just heard that ends this well your honor one I can't speak to that issue because that that hasn't been presented to my my client although it's certainly one that would be considered um if we look at the amended complaint that isn't the remedy that uh mr starbuck asked for he asked for uh an injunction um requiring the school board not to enforce certain policies and he also asked for a declaration um with respect to declaring that the school board uh through its policies and the high school through its actions uh violated and continues to violate constitutional rights so it seems to me it seems to me that if you know in parts in light of and I respect where you're going from in terms of what's being asked for sounds like to me he's no longer in that situation the school or whatever but it seems to me that at least at this point there's something for you to consider possibly uh is the question that if it if in fact that is the case that we're simply removing from the record and that can be done you just might be able to take care of this case before we put a lot of work into what we're doing here but go ahead and proceed that that's that's understood your honor um and i can discuss that um with my client if if that's the position of mr starbuck as it goes forward um and and i think that goes to the point that on our motion to dismiss and the district court agreed that the policies that were alleged in uh the amended complaint uh did not state a cause of action under manel and as it as we i hear no i don't know that i don't know that the suggestion that you remove this from the records that goes one way or the other towards the manel claim if that's what you're suggesting it it is not uh what i'm what i am saying though is i based on the facts alleged in the amended complaint we it was our position that um the allegations could not and did not state a manel cause of action against the school board and the district court agreed with that that the policy understand that but if you went back now who would be making the decision the school board right it would be it would be the school board or uh an authorized representative yes your honor well it couldn't be without the correct your honor but but what i hear now on uh in in the briefs and on appeal is that the mr starbuck no longer relies upon the policies that were alleged in the complaint um sure he does all we're doing now is talking about the manel point i thought and he will his whole argument is that you can have a manel action when the final decision maker makes the decision and is the person in charge as your school board is correct but you don't need a separate policy that that to the school board the final decision maker is the person that's making the decision and then that is the policy that equals a policy a pre-existing policy so how does settling the case affect that i don't i don't think that it does your honor okay then i misunderstood you yeah i i don't think that it doesn't and and and if i suggested that i apologize because that's that's not my point i think i think there's two separate points one is certainly we can address the issue of um with with mr ballinger um if if that is the request to resolve the case if however the case let me also let me also just sort of look at it in terms of i don't know what you know the plaintiff situation is but apparently he proceeded in this matter pro se this court has kind of looked very liberally at complaints filed by pro se litigants and um you know we we look at it in in terms of all the facts now what we do know is i think we could probably it's established by law that the school board is the final policy making decision the authority for policy making uh the question is did it make a decision may arise it seems back where we're going back and forth on that um and you you probably could get something out of it we know they did certain things they they even intervene in participating in this post suspension meeting at the school with the student and and there's certain things they did do uh and when we look uh at this i'm just saying when you look at a case like this uh and and then you look and and and we're talking law and we're dealing with in terms of policy but then it is not wrong to go back and look at what actually did happen here and why doesn't someone just fix this this case screams for it i mean it's not like you've got who wants to defend themselves against what this this student said in the context of it and and the conduct that that occurred to him and i don't know what the student situation is but i notice his brother representing he's a single from a single mom and i just can't imagine this don't know what his economic situation but it doesn't sound good um and he's put in a situation that it would appear to me most students with vigorous parental and significant representation would not have faced this kind of situation and i don't know what the situation is i don't as i say i don't know about why it was the brother i know initially the brothers in it and the brothers dropped when it became of age the defendant came of age uh but there are some there's some there's some facts here that are not very favorable even if the school board prevails that i think you you just i don't know maybe it just seems to me you just ought not to this doesn't sound like something you should fight for if and like you say you don't know at this point what is on the table and it sounds like to me if that's on the table that might be something you would consider and i just throw that out because i i think that's that's important with this case and we'd like to resolve cases and move forward and be adversarial but there are points in which you are fighting a battle that it doesn't even if you win you don't you don't win on this and i don't know if you disagree with me on that agree but i like to hear well well i appreciate your point the the the issue though um for schools is an important one and and one a societal one which is teachers and administrators are put in very difficult positions when there are discussions or talk about violence in schools and they have to ask speak speak speak to this seems to end in some big threat i will i want to look back at the facts of what this student actually did he was i guess describing i mean this isn't a situation where he makes a threat that directly you've really got to read something into this to make something out of it well in the context of it so i mean what you just described i agree with you school boys have that authority but what happened here probably happens every day in the classroom it's some kind of context i mean it was it seemed to be rather light but the reaction was pretty pretty severe well well i would disagree your honor and and here's why let's make sure we disagree on what did he actually do what describe what happened right so it was um the day after the shooting and school shooting in florida and that that has to have some context right so it is concerning that we had a school shooting of multiple students in florida that there was the allegation is he was discussing that shooting in class talked about that with whom with whom with other students talked about the way that the uh shooter could have accomplished more damage talked about the what did he say what did he say not talked about what did he say a bunch of kids in school just talking about a shooting that happened somewhere else and what did he say the allegation and that's a ja10 number 11 is that he made remarks questioning the intent of the shooter stating that the shooter would be capable of more harm had he wanted to noting his possession of explosives and considering the time the shooter was elected alone in the building unchallenged by local law enforcement what's what's false about anything he just said that that that someone says well you know that guy down in uh and he had explosive he could have done that what's what's what's threatening in in a given an opinion about something that happened down in florida to some fellow students well again in the context of a school shooting uh where people are on edge and on edge for copycats and that's just the reality of what happens with with school you have any indication that situation existed here what we had any indication that that that there was some copycat or or i mean all he got is an opinion he just make an opinion this guy down there could have done more damage he had explosive he could have done this and from that you leak to well that's a threat and now well well what i do say is a teacher overheard those remarks and was concerned enough about those local her administrators but also the police and so and what did the police find so the police investigated sure right under the allegations and determined that there were no criminal charges no threat said it was not violated between your law right so no no criminal charges but that doesn't mean that um that it can't be inferred from the allegations that the teacher who overheard those remarks was concerned and and the law isn't that a school administrators can't issue a suspension a short-term suspension for disturbances in the classroom there's a there's a difference well counsel suppose the student had said uh while talking to his fellow students i can't understand why he did a thing like that i can't and said that 10 times in a row i can't understand why he did a thing like that couldn't the teacher be concerned about the student or about what he said well i suppose but i think that that's a different context than what the no no the context is in her mind because that's what you basically saying you said this is justified because she was concerned whether it was a threat or not she was concerned and maybe so but you could be concerned there you said he can he repeats i don't know why he did it so you're concerned well you take him down to office are you okay son are you all right you're concerned you bring in the police officers there but then he goes to you suspended for two days for something that clearly is no threat now concern a teacher you can look at that's how teachers are at least when i was in school you could have your head down on your desk and weepy and the teacher said i'm concerned about you because that's what we love about our teachers they think they're concerned about their students but you can't take transport concern to the point now you're gonna kick the kid out of school for two days that's what i have it on his permanent record i'll put on his permanent record too forever he has a scarlet letter on his literally on his record well that but but again it goes to what the school um and and the the process that it goes through the teacher is concerned and also note in the amended complaint that the plaintiff alleges that at one point in the discussion and this is in the first paragraph of the complaint amended complaint he noted the possession of explosive devices by the shooter the the use of a fire alarm to lure students out uh and and noted the time it took for law enforcement to enter in addition to what i read earlier that's different than saying i'm not sure it wasn't at all that was reported in the he's just saying what what the guy had explosive he took time to do all i mean he is really saying let me tell you there's something going on here and this doesn't make any sense to me because because i just cannot believe i don't know this student but there's something about this student that causes this thing to be elevated a student that's a model student i'm not saying he is or comes from an established family i do not believe any way in the world this would have happened there's something about this student while this was taken to this level and maybe the record doesn't doesn't bring it out but it has an air of there's something going on here you don't do a student like this unless you have some reason or something about that student that makes you think that student would do it and what is about this particular student because in an average student you would think well that's just talking about it but what about this student made this teacher and the board and others think we ought to suspend him for two days so again that that is not alleged in the amended complaint and and so that must be something but tell us tell us got to be something because you can't believe any if it was if it was one of our kids or someone that you wouldn't think for one moment you'd fight this all day long that kid would never get out of school and i'm trying to figure out what is it about this student that caused this kind of reaction to call the police and even though after the police comes and says you say they say those criminal charges because that's what they do but they did an investigation really they didn't if they thought it was a threat or anything they would have to act because the kind of seriousness you're talking about that's not the school board's concern that's police law enforcement if if he is talking about or disrupting things talking about a shooting and you think there's a chance of it that's law enforcement they looked at it and just said oh this is nothing but someone in that school system uh you know felt like because of this particular student there's something about him that's really troubling and and maybe the record doesn't show it now but at some point in time that has to come out so so the record doesn't as alleged in the amended complaint is that the local uh administrators of the high school followed the supreme court's guidance for due process in short-term um uh suspensions because they they brought him in they had him talk with a counselor they had him talk with a principal they according to the alleged complaint had him talk with a psychologist uh during the day that this was recorded and as a result they issued a two-day suspension a short-term suspension and called mom and told her about it and so the the decision that the school administrators made at the time did comply with the process according to the alleged complaint the due process said that he was really suspended for his own safety the allegation i'm sorry i'm saying in terms of what the vice principal said that didn't he say he suspended him for his own safety no so what is retaliation by other students no so what what the amended complaint says is he was held for three class periods during this initial investigation he calls that in-school suspension as alleged in the complaint the the complaint then alleges that the uh assistant principal and i'm on ja 11 at 18 the assistant principal contacted his parent notifying her of the out-of-school suspension and then on the next page ja 12 at 19 it says when questioned about the quote-unquote in-school suspension that was the three-hour period during this the where he talked with the counselor and uh the psychiatrist psychologist the principal said that he was in this three-hour in-school suspension this period for his own safety it doesn't reference the out-of-school uh suspension the allegations our mom was given the reason they're told of the out of out-of-school suspension so it's two different things um i see that my time's up so sir i i take your point about um procedural due process but doesn't he have a first amendment claim so so he doesn't one the the court uh um the district court agreed that the policies in play as alleged in the the complaint there were two policies one that we didn't comply with a long-term suspension policy which is not the issue here and two that there was some form of policy to continue investigations um but no facts to suggest that that did not rise to a policy of the school board that yeah but this all goes back to back to your monel argument suppose you lose the monel argument then he's alleged first amendment well if this court were to decide that the that there was a manel issue then and um that the school board engaged in a policy that um implicated the school board decision because this is the argument that school board because it is the final decision maker what it decides is the policy for the institution so taking that as what would be the conclusion yeah so it's our position and as we set out in the brief that that that's not the case here because i know it's not the case i'm asking you to assume that that's what we hold then if that is what we hold then hasn't he alleged a first amendment claim if you hold that the school board um made the final decision on his suspension um then yes it could be a policy maker um however uh judge gregory as he pointed out is it's just a a review of the decision the decision was already made by the but suppose you're not suppose he has alleged a monel claim against the school board then has did he allege a first amendment claim yes thank you okay i appreciate that i i want to be clear on that where that was going what judge mox is alluding to is that and maybe the trial judge seemed to gotten confused you know to to allege a claim against the municipality you can have an express policy but there are other ways in which you can get municipal liability it's an or and that or that that she's referring to is through the decisions of a person with final policy making authority the law is very clear that the board is a final policy making authority then when you say made a decision that's municipal liability when you wanted it but whether it constituted something that's actually was another thing but it falls under section 1983 there at least a couple other ways you can do it those two are not implicated here at all and and but the trial judge relied upon the first one and saying there's no policy well that's one way but the point being is there's one way and that's why that question went in that vein and asked if we found that one then would a first amendment right and your answer i think seems to me to be correct yes it would be a first amendment violation alleged first amendment violence understood and and that i guess the the point and we tried to distinguish this in the briefs um is this suspension already happened it was a short-term suspension um it wasn't a ratification theory the district court didn't get it wrong and it and it wasn't alleged in the amended complaint this way way and if you look at what the amended complaint says what he says is by changing the rationale he didn't say it was a first amendment violation he said it was a fifth amendment and even liberally construing that what he's saying is it's a due process violation and that's what's alleged in the that's why i asked you about the first amendment i think anyway i think we're as i say i don't think we need to uh but then i i apologize if i if i appear to be talking past you and and i was trying to answer your question but our position is what was alleged in the in the amended complaint is not a first amendment violation they didn't allege that what mr starbuck alleged is by by considering it and changing the rationale we violated the fifth amendment which is a due process under federal law but even liberally construed a due process claim not a first amendment claim mr cat before you go just would you help me on this uh okay let's assume that seemed like a lot of evidence i mean a lot of facts would point to that there's no policy really involved here but it's a question of as judge win said the other side of how it can be effectuated by decisions or some otherwise being involved in it it looks like now and i think that's why it started like this review my my dear colleagues and friends would ask me about ultimately in this now about the fact that it's on his permanent record and the board decided that this was a disturbance and their action is that it stays on his record now would you agree for due process now here was he given an opportunity to weigh in on whether or not what was the first told him to be a charge of threat they decided that it constituted disturbance without giving him an opportunity to speak to that well but what i think the allegations show in the facts the facts of the cases we know them didn't they was he there was he allowed to say to say well let me i'm here to defend threat if for example or i'm talking about the threat charge and then somehow it morphed into a disturbance and then without his heaven's chance to am i right there was no was he given a so so it's my understanding there was not a hearing what what he did is file a written appeal of that the school administrator's decision and the school board looked at his written appeal and essentially they said it's a lesser version they didn't they didn't change or create a quote-unquote new charge that he couldn't respond to he responded to that the assertions the allegations and the and even the amended complaint alleges that they didn't it didn't rise to threats what they said is no it's a classroom disturbance so there's not a different circumstance with which he would uh have had to to respond for due process purposes or really what it's not a lesser included offense because they had the same i said the same punishment the disturbance was two days too well in in the in the first paragraph i'm sorry yes you're correct but that they the suspension stayed in place uh the the allegations in the first amended complaint in the first paragraph said uh the remarks could not be supported as threats but were instead determined to be a classroom uh disturbance that's unlike the cases that the the plaintiff i'm sorry mr starbucks cited in his brief the newsome sixth circuit case um where uh it was a long-term expulsion hearing and he was not provided with evidence new evidence a confession statement for that purposes here there's not an allegation of new evidence or some form of new uh conduct that he needed to respond to yes it is because when you say a threat that comes from what you said when you say disturbance that means you've enlarged that the fact there must be something that hybrid somebody else reacted to it the disturbance comes from an outside right i mean other students there was just a threat you can make a threat in an empty room if that's a threat but a disturbance is something different so implicitly it must have been more and see that's if you get past manel on the due process the board is going to have to defend this on that you can find acting reasonably you can find a disturbance from what he did right that's what you that's what your client will be finding disturbance out of what he's saying and there's no evidence that any student acted out at this point so that certainly can't be done as a matter of law just miss it you don't have any facts you have to have discovery all those things don't you i may have may have if we say at very least on due process because right and and i and i would disagree and at and as a short-term suspension the allegations in the amended complaint show that he got the process due process that was required and and that's that's the board and that might be a strong case is all they did was suspended him for two days but when you print on this record forever that makes it more than short term you have made it about punishment long term because that's the rest of his life people go back to his record in school and say look you disturbed the school that's that's that that's the more in this case it seemed like it's not getting to you that's the more and the board is solely in the midst of that more and i appreciate that that point your honor again i when we were in the district court on a amended complaint that did not ask for that but asked for an injunction and declaration it's a different position of course you are a lawyer too you can think up maybe they should have presented it but you could you know you settle cases all the time one side presents one situation another side presents well no what about this i hear you but i'm not persuaded yeah i i i understand but and i appreciate that position judge let me be clear in understanding your statement did you i think you they that he he they did not allege a first amendment violation is that what your position or is they didn't say something to the fact that the decision made by this defendant had infringed upon the right of free speech uh as protected by the first amendment of the united states um states that this they found the suspension proper but altered the cause um is there a paragraph 34 and then it says this action was in violation of the fifth amendment is there a paragraph 34 sure and and i see that and what does it what does that paragraph say that that says the defendant's decision for infringement or decision for suspension infringed upon the free speech rights but based on the allegations in the complaint in the amended complaint the decision and the facts all relate to the school administrator's decisions to issue this short-term suspension and and that was the position the school board um and the as we set out in the briefs the the board didn't ratify that bad decision based on those allegations based on those allegations it did because it put the sword of damocles on his head forever that's the whole point of prescriptive speech you're saying now this is the result allegedly this is the result of what happens when you speak this way it's on your permanent record and believe me for a student that's a death penalty that's about as much as close to a death penalty as you can because it's saying when you leave these hallowed halls that will follow you just like people brag about being phi beta kappa and order the cork and all those things it's the other side of that coin this is the scarlet letter that hawthorne talked about the analogy it is that's the difference in this case it's not just a short-term suspension and the board is right in the mix of that that's that that's that that's the key i don't want to you've gone through it all but when you're responding to questions it seems like you know you don't get that part of it it's not just confined to a short-term that that's a policy you can take short-term suspensions and turn them into permanent records that's another question too is that policy so again those are things that judge when rooted to may come out this case goes but but anyway so you know your case and you obviously you've done well in the argument we've peppered you quite a bit here and you held your ground well and appreciate that but anyway we'll move on thank you your honor uh mr larson thank you your honor we just have a few points first we agree completely that threats is different than a classroom disruption those record require different evidence in order to goss second his primary relief that he seeks is to have his record to expunged he's also seeking declaratory and injunctive relief and we would have to speak with our client in order to determine whether he could that the settlement would be possible but we are very open to having that conversation third retreating from what your colleague said that um if they removed the um the this from his record the case would go away we would have to talk to him your honor about what he would really want but it seems that his primary desire is to have that scarlet letter on his permanent record removed and so as a result that would probably finish the case gotcha okay thank you your honor furthermore regarding the first amendment claim the board has failed to explain how starbucks statements has described the amended complaint which seemed to be discussing a current event that unfortunately is important to a lot of high school students meet that demanding standard under Mahanoy for speech that a school official can restrict when we look at cases where school officials are allowed to restrict speech where it's found unprotected like in Weinar, Renewski, and J.R. there were concrete threats of violence targeting children for murder and rape or in Kowalski a student created a website targeting another child calling her a slut and that had implications in the classroom for that student or finally we have Hardwick where a student was told to remove a confederate shirt in a school that had a history not just of racial tensions but racial tensions relating to clothing this isn't those kind of cases this is a case more like Newsom v. Albemarle where the student was wearing a shirt that reminded a school official of the recent Columbine shooting but wearing that shirt was found to be protected or in Tinker where the students were protesting an ongoing war that was affecting other students and rendering those and killing those students but that was found to be protected so from the facts alleged in the amended complaint there's certainly more facts more context that could be discovered if we were to get to discover it but from the facts alleged in the amended complaint we simply don't reach that standard under Mahanoy even if some of the things he said were perhaps caused discomfort because as the court held in Mahanoy there's always going to be discomfort that accompanies an unpopular opinion and so that cannot simply be the standard for what loses protection regarding municipal liability as the court held in Pembauer Supreme Court held in Pembauer even a single decision can create municipal liability in fact the court said that would be contrary to the very purpose of section 1983 to not allow it and so a one-off decision like this by the board as a final policy making authority rendering a decision as the area where state law Virginia statute 22.1-277.04 grants it authority over means that that decision can create liability under Monell they're certainly they are certainly protected in other capacities under qualified immunity the employees of the school may not be able to create liability under Monell but for that decision where they had final policy making authority and that they made a decision as a result of that authority they can create liability for themselves and they did here through their clear their violation of clear constitutional rights starbucks constitutional rights for punishing him for his protected speech and then forgiving him and rendering a decision that used another basis for his punishment than the one that he was told prior and giving him no opportunity to respond to it if I am happy to answer any questions you may have your honor but if not I believe we said enough all right thank you very much uh mr Ballinger and students I note that you're caught upon it and I appreciate that not only is the the assistance you give to our uh court but windows are very well being a part of that committee and we really couldn't do our job without that and even more so you bring it to the academy and have fine young law students to come before us and I say that the cavaliers acquitted themselves very well today as as well as mr caps and representing his client very ably uh we can't down and reach you as we'd like to but know very much and we appreciate your being here and for your fine arguments so we wish you well and please be safe thank you thank you